Vinoj vs State Of Kerala on 18 May, 2012

[Cites 13, Cited by 0]

Kerala High Court

Vinoj vs State Of Kerala on 18 May, 2012

The accused 1 and 2 in SC No.73/2008 of the Court of 3rd Additional Sessions Judge, Ernakulam has preferred this appeal challenging judgment dated 18/5/2012 by which they have been convicted and sentenced to undergo life imprisonment u/s 302 r/w S.34 of I.P.C. and to undergo 2 years rigorous imprisonment with fine of `10,000/- on default of which to undergo imprisonment for 6 months for the offence u/s 324 I.P.C.

2. The incident which resulted in the above case occurred on 21/5/2006 at about 6.00 p.m. According to the prosecution, on the aforesaid day, the 2nd accused came near the house of PW1 and started using abusive language against him. PW2, mother of PW1 had a verbal confrontation with him. 2nd accused immediately hit her with an iron rod. On seeing the above incident, PW1, PW3, PW4 Crl.Appeal No.801/12 -:2:- and PW5 along with Sudhakaran (deceased) came near the pathway which was adjacent to PW1's property. Immediately, accused 1, 3 and 4 also came. The 3rd accused had a chopper with him and the 4th accused had an iron rod. 1st accused was unarmed. There was a tussle between both the groups. 3rd accused immediately brandished the chopper towards Sudhakaran. Thereafter, 4th accused assaulted PW3 and PW4. 2nd accused assaulted PW1. 2nd accused thereafter took a crowbar and handed it over to the 1st accused. The first accused inflicted an injury on the head of the deceased with the crowbar. Deceased ran towards the house of PW6 and he fell down, again 1st accused hit him on his head with the crowbar. All the accused thereafter left the place. Deceased was later taken to Sanjoe Hospital at Perumbavoor and he was found to be dead.

3. The First Information Statement was given by PW1 and Ext.P1 is the FIS. Crime No.119/2006 was registered against accused 1 to 4. PW22 took over investigation and final report was filed by PW24 before the Magistrate Court, and thereafter the case was committed to the Sessions Court and thereafter made over to the Additional Court. Charge was framed and the accused pleaded that they were not guilty.

Crl.Appeal No.801/12 -:3:-

4. Prosecution examined PW1 to PW24 and marked Exts.P1 to P36. MO1 to MO11 were the material objects produced in Court. The defendant examined DW1 to DW4 and marked Exts.D1 to D7. The Court below found that there was sufficient evidence to prove that accused 1 and 2 were involved in the crime and accordingly they were convicted. Accused 3 and 4 were acquitted by giving them the benefit of doubt. Defence examined DW1 to DW4 and marked Exts.D1 to D7.

5. Learned senior counsel for the appellants raised various contentions. It is primarily contended that the prosecution case which had been proved before Court is completely at variance with Ext.P1, FI statement. The sequence of events spoken to by the eye witnesses completely differs from what has been mentioned in the FI statement. Further, the injuries suffered by the accused were completely suppressed and no investigation was conducted in that angle. It is also argued that there was no motive for the accused to commit the crime and no such motive has been proved as well. Further, the recovery is not in terms with S.27 of the Evidence Act and it cannot be treated as a circumstance to prove the guilt of the accused. All the witnesses are relatives and partisan witnesses. That apart, their Crl.Appeal No.801/12 -:4:- evidence itself is self contradictory and does not tally with the previous statements. The true and correct facts of the genesis of occurrence has been completely suppressed by the prosecution. Ultimately, it is argued that the common intention to commit the crime has not been proved and in so far as the 2nd accused is concerned, there is no allegation of him committing any act which could cause death of any person.

6. Learned counsel also placed reliance upon the following judgments:-

(i) Yudhishtir v State of Madhya Pradesh (1971 SCC Cri.684).

In this case, Apex Court held that when a particular fact deposed by the witnesses does not find mention both in the FIR and in the statements recorded u/s 161 Cr.P.C., it is an improvement and it cannot be considered. It was further held that corroboration for any evidence given by a witness may be found necessary when a Court is not inclined to reject the evidence of the witness to be false. But when the evidence of a witness has been rejected as unacceptable, there is no scope for attempting to find corroboration by other independent evidence or other circumstances.

Crl.Appeal No.801/12 -:5:-

(ii) Khalil Khan v. State of M.P (2004 SCC Cri.1052).

In this case, the Apex Court held that recovery of blood stained personal clothes of the accused four days after the murder is a fact which is extremely difficult to believe. In the said background, evidence of the hostile witnesses that the recoveries were made at the police station assumes importance. Apex Court therefore doubted the veracity of the recovery effected.

(iii) State of Haryana v. Gurdial Singh and another (1974 SCC Cri.530) In this case, it was held that if the prosecution witnesses have come out with two inconsistent versions of the occurrence, especially when one version is contained in the evidence of witnesses in Court and while the other version is contained in their statements made before police, the conviction of the accused cannot be sustained. In that case, according to the version given in Court, it was the accused/appellant who shot the deceased whereas according to the other version before the police, it was another person who was responsible for the crime. Further, before Court, the witness stated that the occurrence was seen by one person whereas before the police, it was recorded that the said person has not witnessed the occurrence. In such Crl.Appeal No.801/12 -:6:- instances, it was held that prosecution case cannot be believed.

(iv) Mohinder Singh and another v. State of Punjab and Others (AIR 2003 SC 4399).

In this case, the Apex Court held that where the eye witnesses evidence is acceptable, all other evidence that might have been produced by the prosecution recedes in background. However, if important factors mentioned by an eye witness in the trial court were not stated by him when a statement u/s 161 Cr.P.C was recorded and it is found that their evidence cannot be relied upon and when no independent witnesses were examined and the evidence of investigating officer was not found worth believing, there is always possibility of some other persons other than the accused having committed the murder, in which event the accused were entitled to benefit of doubt and acquittal.

(v) Kunju Muhammed @ Khumani & another v. State of Kerala (2004 SCC Cri.1425).

In this case also, the Apex Court held that when there is serious doubt as to the place of occurrence as stated by the prosecution, the conviction has to be set aside.

(vi) Meharaj Singh v. State of U.P. (1994 SCC Cri.1390) Apex Court held that the testimony of interested witnesses Crl.Appeal No.801/12 -:7:- should be subjected to close scrutiny. Further, when the prosecution fails to produce eye witnesses, it has to be presumed that they were not prepared to support a false case.

(vii) Ram Kumar Pande v. State of M.P. (AIR 1975 SC 1026).

The Apex Court was considering the effect of First Information Report. It was held that though FIR is a previous statement which can strictly speaking be only used to corroborate or contradict the maker of it, but omissions of important facts affecting the probabilities of the case are relevant u/s 11 of the Evidence Act in judging the veracity of the prosecution case.

(viii) Krishna v. State (2012 (2) KLT 769).

It was held that truth beyond reasonable doubt do not belong to different species and proof in criminal case need only offer further and surer assurance on probabilities. It was observed that a higher degree of probability alone need be insisted and proof beyond doubt not at all involve any magical insistence on absolute certainly or superhuman probability.

(ix) Asokan v State of Kerala [2017 (2) KHC 669].

In this case, Division Bench of this Court was considering the question whether non explanation of the injuries on accused is an important circumstance and the omission of the same assumes Crl.Appeal No.801/12 -:8:- importance when evidence consists of interested or inimical witnesses. It was held that if the prosecution fails to disclose the full and true facts regarding the occurrence, it creates reasonable doubt about the prosecution case. The injury sustained by the accused indicates that the origin and genesis of the occurrence was deliberately suppressed by the prosecution.

(x) Ishwar Singh v. State of U.P (AIR 1976 SC 2423).

It was held that, the witnesses essential to the unfolding of the narrative, on the basis of which prosecution is based, must be examined. If some of the eye witnesses to the occurrence named in the FIR who are important witnesses are kept back without any explanation, the non examination of such witnesses acquires a special significance in view of the discrepancy between the FIR and the version of occurrence given by the prosecution in court.

(xi) Ibrahimkutty v. State of Kerala (1983 KHC 298).

The Division Bench of this Court held that in order to convict the accused for offence punishable u/s 302 I.P.C. with the aid of S.34, there has to be proof of a pre arranged plan or a prior concern between the two accused. The mere fact that both the accused came together to the tea shop does not indicate, in the absence of proof that the crime was committed in furtherance of Crl.Appeal No.801/12 -:9:- the common intention. The essence of S.34 I.P.C. is simultaneous consensus of mind of persons participating in the criminal action to bring about a particular result. Before a man can be vicariously convicted for the criminal act of another, the act must have been done in furtherance of the common intention of truth. It is not enough to have the same independently of each another. Though it is true that the common intention may develop, in the course of completion of occurrence, it must precede the act constituting the offence. If there is no material to infer on the facts of the case that there had been a sharing of the intention to commit murder by both the accused, if one alone had caused the fatal injury, the conviction of the other cannot be upheld.

(xii) Ram Lal Singh and Others v. State of Haryana (1992 KHC 695) (SC).

The Apex Court has also held in an instance where the deceased had received four incised wounds besides two abrasions at the hands of the 2nd appellant, in the absence of any material to indicate that the said appellant shared the common intention of committing murder of the deceased, the others cannot be convicted with the aid of S.34 I.P.C.

(xiii) Lakshmi Singh and Others v. State of Bihar (AIR 1976 Crl.Appeal No.801/12 -:10:- SC 2263).

In this case, the Apex Court held that in a murder case, the non explanation of the injury sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance. The Court held that the following inferences can be drawn. (1) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version. (2) that the witnesses who have denied the presence of injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable and (3) that in case there is a defence version which explains the injuries on the person of the accused it is rendered probable as to throw doubt on the prosecution case. The said omission assumes more importance where the evidence consists of interested or inimical witnesses. However, after referring to the judgment in State of Gujarat v. Bai Fatima (AIR 1975 SC 1478), it was held that there may be cases where the non explanation of the injuries by the prosecution may not affect the prosecution case. The said principle would apply to cases where the injury sustained by the accused are minor and superficial or where the evidence is so clear and cogent, so independent and Crl.Appeal No.801/12 -:11:- disinterested, so probable, consistent and credit worthy, that it far outweighs the effect of the omission on the part of the prosecution to explain the injuries.

7. On the other hand, learned Public Prosecutor supported the judgment of the Court below and contended that there is no necessity to describe the entire sequence of events in the First Information Statement (FIS). PW1 has given the material particulars. Each and every act of the accused need not be stated. If the evidence is a verbatim reproduction of the previous statement, it could be stated to be tutored. It is also stated that the motive has been spoken to by PW1 to PW5 that there was a dispute relating to a pathway. Further even according to the defence there occurred a fight between two groups and even the accused suffered injuries. It is argued that the crowbar which was used for the crime has been recovered and it was blood stained. Though the recovery witness has turned hostile, the evidence of the investigating officer is enough to prove the recovery. It is submitted that the version of the eye witnesses can be believed and the conviction can be sustained. The case as against the 1st accused is rather clear. He has chased the deceased, attacked him, caused the fatal injuries, which caused the death of the Crl.Appeal No.801/12 -:12:- deceased. The 2nd accused was also involved in the crime and he had the common intention to commit murder.

8. The learned Public Prosecutor also relied upon the following judgments:-

(i) State of Haryana v. Tek Singh [(1999) 4 SCC 682].

In this case, the Apex Court held that the testimony of interested witnesses should be appreciated as a whole. The court has to separate truth from falsehood and if the evidence read as a whole has a ring of truth, then exaggerations, addition of facts and minor discrepancies on trivial matters should be avoided. It was further held that in an instance where the accused persons came all of a sudden, armed with deadly weapons and attacked the victims, it would be difficult for any witness to state exactly which accused inflicted how many blows on the deceased. In such circumstances, if there is some exaggeration in the evidence of witnesses, those are to be separated by taking into consideration the over all facts on record. Some contradictions as to who assaulted whom, with what weapon, and, whether it was by the sharp edge or blunt side of the weapon etc., to be spoken in evidence would be against the ground reality to expect the witnesses to depose exactly on which part of the body the blow Crl.Appeal No.801/12 -:13:- landed. Therefore, even if there is some exaggeration with regard to the infliction of blow, it would hardly be a ground for rejecting their testimony.

(ii) Hare Krishna Singh and Others v. State of Bihar (AIR 1988 SC 863).

In this case, the Apex Court after considering Jagdish v. State of Rajasthan (AIR 1979 SC 1010) held that before an obligation is placed on the prosecution to explain the injuries on the accused, two conditions must be satisfied. One is that the injuries on the person of the accused must be very serious and not superficial and secondly, it must be shown that his injuries had been caused at the time of occurrence in question.

(iii) Shriram v. State of M.P.[(2004) 9 SCC 292].

In this case, the Apex Court after having placed reliance on various judgments held that failure to explain injuries on the accused is not fatal to the prosecution case where the injury sustained by the accused are minor and superficial or where the evidence is so clear and cogent, independent and disinterested so probable, consistent and credible, that it far outweighs the effect of omission on the part of the prosecution to explain the injuries.

9. Ext.P1 is the FI statement. PW1 has given the Crl.Appeal No.801/12 -:14:- statement. The crime has taken place at about 6 p.m on 21/5/2006. Police got information at 9.30 p.m on the same day. PW1 is the son of Sudhakaran, who died in the incident. In the FIS, he stated that his father was murdered at about 6 p.m. on 21/5/2006 by the 1st accused. The 1st accused committed murder by hitting on his head with a crowbar. He further stated that he along with his family members, father and mother came to the family house of their father where his father's brother Rajan was residing. They reached by about 5.30 p.m. All of them were sitting in front of the house and eating jack fruit. By about 5.45 p.m, 2nd accused came towards their house and was abusing all of them by walking through the road to and fro. After some time, the other accused also came from the paddy field towards their compound. Vijayan (A3) had a chopper with him, Jayaprakash (A4) had an iron rod and Anoop (A2) had a wooden piece with him. They were saying that they will walk through the pathway in front of our house and they were uttering that, "if you can obstruct, you may do so". Immediately PW1's mother went to the pathway and told them that "this is our pathway and they have no right". A2 abused PW1's mother and inflicted a blow with the wooden stick which he was holding. Immediately, PW1, his father and father's Crl.Appeal No.801/12 -:15:- brother went towards their mother. There was a confrontation between both the groups. A4 inflicted a blow with the iron rod behind his right ear and above the right armpit. 2nd accused inflicted a blow with the wooden stick above the left elbow. Vijayan, the 3rd accused brandished the chopper against his father. In the meantime, 1st accused was shouting to kill all of them. Immediately, 2nd accused took a crowbar which was hidden in that place and gave it to the first accused. On seeing the crowbar, father ran to the house of Anilkumar (PW6). Uttering that "I will kill you", 1st accused ran behind his father. When father reached Ali's (PW6) front courtyard, 1st accused inflicted a blow on father's head. Father fell down with his face downwards. He again inflicted blow on his father. Blood flowed from the head. All of them cried and shouted. 1st accused threatened us that all of us will be killed. On hearing their loud cry, people in the locality came running. On seeing the people coming, they left the place leaving behind the crowbar, iron rod, wooden stick etc. Immediately, he called Thyagarajan's car. Father was taken in the said vehicle along with his father's brother and one Jayan. Father was taken to Sanjoe Hospital, Perumabavoor. He along with his mother and his wife went behind the car in an autorickshaw Crl.Appeal No.801/12 -:16:- towards the hospital. Doctor examined father and informed that he is already dead. The body was kept in the mortuary of Sanjoe Hospital. The crowbar they have used to inflict injury on his father was used for dehusking coconuts. He could identify the crowbar, the chopper and wooden stick. He further stated that there was a dispute between them regarding construction of a road and that is the reason why they had enmity with the members of their family and for that reason, his father was murdered.

10. When PW1 was examined before Court, he deposed that his father's brother Rajan was modifying the family house. A shed was constructed in a nearby place in the property and he was residing there. Shed was on the southern side of the house. The kitchen was on the eastern side of the shed. The door of the kitchen was on the eastern side. They were sitting in front of the said door in the courtyard and they were eating jack fruit. He further deposed that the tharavadu property was having 1 acre and it was divided into four. A way was provided through the middle of the road for all the sharers having a width of 10 feet. The road was on the north-south direction. There is a paddy field on the southern side of the property. They had some paddy field on the east and west of the said property as well. The road in the Crl.Appeal No.801/12 -:17:- middle of the property starts from the road on the northern side. The said road was used by accused 1 to 4 by demolishing the fence on the southern side of the paddy field. The said incident happened two months before the present incident. There was dispute between the accused with reference to the above action. One month before the above incident, 1st accused had inflicted an injury on the neck of father's brother Vidyadharan. Further, the shed which was constructed by his father's brother Rajan was destroyed by the accused a month back by throwing stones. It was during the relevant time that the incident referred to in the case happened. When they were having jack fruit, the 2nd accused came from the southern side. He had an iron rod with him. He was standing by the side of the road and abusing. He said that we will walk through the said road and he was inviting us to obstruct him if possible. Suddenly, other three accused came from the southern part of the road. Mother came down and told them that they have no right over the road and no right of way. 3rd accused had come with a chopper, 4th accused with an iron rod and the accused and mother had a verbal quarrel. 2nd accused hit mother with the iron rod on her left elbow. On seeing this, PW1, his father and father's brother along with father's brother's son Crl.Appeal No.801/12 -:18:- Nidhin Raj, his wife and his aunt along with the children all came to the road. Father was pushed down by accused 1 and 2 and they were stamping on him. 4th accused hit him by the side of his right ear. 3rd accused hit his father's brother on his elbow with the iron rod. 2nd accused also hit his wife with the iron rod when she tried to interfere. On the side of the road on the western side among a heap of coconut stumps a crow bar was kept hidden. The 2nd accused took the crowbar which was sharp on either of the edges and it was given to the 1st accused. 2nd accused uttered "kill him, kill him" and by saying that, the crowbar was given to the 1st accused. On seeing this, his father ran to the nearby house belonging to Anil Kumar (PW6). When he reached the front courtyard, first accused hit him with the crowbar on his head. He fell down. He hit him twice, again on his head. On seeing this, people in the locality came. Accused ran away with the crowbar. Other accused left the iron rod, chopper and other things and ran away. Father's brother, his wife and one Sasi took his father and he was taken to the Hospital in the vehicle of Thyagarajan. A person by name Jayan was also in the vehicle. He along with his mother and father's brother's son went in an auto to the hospital. When they reached there, it was informed that father had died. Crl.Appeal No.801/12 -:19:- When father was hit with the crowbar, blood flowed from the injury. He also identified Ext.P1 and all the accused. He identified the weapons. MO1 is the crowbar, MO2 is the chopper, MO3 is the iron rod and another iron bar with which he was hit is marked as MO4. He also identified MO5 shirt and MO6 dhoti which his father was wearing at the time when he suffered the injury. MO7 was his spectacle. MO8 was his watch. He had gone to the hospital for treatment after the father's cremation on 24th to the General Hospital, Perumbavoor.

11. PW2 is the wife of the deceased. She narrates the incident as under:-

On 21/5/2006, at about 5-5.30 p.m, while she along with her husband, PW1, his wife and two children were sitting near the shed in the property of brother's house and was eating jack fruit, 2nd accused came from the western side and started abusing them stating that he has also a right over the pathway. PW2 went near the pathway and asked him what right he has for a pathway belonging to Nedumpuram. 2nd accused was wielding an iron rod. He kept it behind him. 2nd accused hit PW2 on her left hand. She had a fracture. She pointed out her left palm near the joint before Court. She cried. Initially Maya came and thereafter PW1. Her Crl.Appeal No.801/12 -:20:- husband and husband's brother Rajan also came. They asked 2nd accused to go away without creating any problem. At that time, A3 and A4 came. A3 had a chopper with him. A4 had an iron rod. A3 inflicted a blow on the right ear of her husband. They have a tussle. A3 inflicted another blow behind the right knee of her husband. A4 kicked him in that area. Her husband ran towards the house of Anilkumar (PW6). At that time, A1 came from the southern side. When he came, the 2nd accused took a crowbar which was concealed in a heap of coconut stumps. 1st accused hit her husband on his head. He fell down with face down. He again hit him. Skull broke and blood oozed out. When all of them created a hue and cry, they left the scene by leaving two iron rods and taking away the crowbar and the chopper. Their nephew Thayagarajan came with a vehicle. A relative Sasi also came. All of them together took her husband to Sanjoe Hospital. When they reached there, he was proclaimed dead. She also stated that there was dispute regarding the use of pathway. She identified MO1 to MO4. She had gone for treatment to Perumbavoor Government Hospital after a few days as she had to attend the funeral ceremony and other rituals of her husband. Ext.D3 is a contradiction marked during cross examination with reference to Crl.Appeal No.801/12 -:21:- an earlier statement wherein she has stated that there was a case pending in respect of construction of a road from their property to the property of Vinod and Anoop for which they were on loggerheads.

12. PW3 is Rajan, brother of deceased. He also stated that while all of them were sitting near the shed of his property, 2nd accused came from the side of paddy field through the pathway in their partition deed. He had an iron rod with him. He came and abused them loudly and went back. When he was 10 feet away, PW2 came and told him that the pathway was not intended for them. At that time, 2nd accused hit her on her hand with the iron rod. She suffered a fracture. On hearing her cry, he along with Kalesh, Maya and Sudhakaran came running. At that time, PW3 was hit by accused 2 and 4 with an iron rod. At that time, 3rd accused had inflicted a cut injury on the deceased. The 2nd cut was on his right leg below the knee. His brother was unable to walk properly because of the pain. At that time, 2nd accused gave a crowbar to the 1st accused which he had concealed and asked him to kill him. At that time, 1st accused took the crowbar and hit Sudhakaran behind his head. On the first hit itself, he fell down face down. He gave a second hit and leaving behind the iron rods, Crl.Appeal No.801/12 -:22:- all of them ran away. They had taken the crowbar and chopper with them. The witness identified the accused as well as MO1 to MO4.

13. PW4 is the wife of PW1. She also narrated about the incident. The omission pointed out was that she had not mentioned before the police that she was injured while interfering in the commotion when PW2 was hit. Ext.D4 was marked as the contradiction. She had given a statement to the Police that when the fight started, she went inside the house and came back only after the incident.

14. PW5 is Nidhin Raj who is the son of Rajan. He was also present at the time when the incident occurred and he also narrated the very same incident. According to the defence, he was nowhere in the picture.

15. PW6 is Anilkumar. He deposed that he had not seen the incident which resulted in the death of Sudhakaran. On hearing the cry of his children, he came running. He saw Sudhakaran lying face down on his courtyard. Blood was oozing from his head. His son was standing in the veranda crying. When he went inside, he saw accused running away. He also identified the accused.

Crl.Appeal No.801/12 -:23:-

16. PW7 is Devaki M.S, who is the Village Officer who prepared Ext.P2 site plan.

17. PW8 is the Casualty Medical Officer of Sanjoe Hospital. He deposed that on 21/5/2006, he was the Casualty Medical Officer. On that day, at about 6.30 p.m, he was not on duty. He identifies intimation of Dr.Anwar who was working in the hospital. Ext.P3 is the said intimation. He produced Ext.P4 case sheet of Sudhakaran. It was recorded and the patient was brought in the casualty. It was recorded by Dr.Anwar. In cross examination, he was asked whether the time of incident is 6.05 p.m, it is stated that there is some overwriting in '0', it may be either 1 or 4.

18. PW9 was the Scientific Assistant in the office of Police Commissioner on 22/5/2006. On the request of the Circle Inspector of police, and in the presence of Dy.S.P. he had conducted a search in the scene of occurrence. He saw blood stained iron rod and another iron rod which was painted which was also blood stained. He had handed over the same along with the report to the investigating officer. Ext.P5 is the report. Items 3 and 4 in the report are the iron rods. He identifies MO3 and MO4 as the iron rods which he has stated in Ext.P5. He had also collected blood stained hairs and sample of blood in a pack and it Crl.Appeal No.801/12 -:24:- was sealed and handed over to the investigating officer.

19. PW10 is Thyagarajan who had taken the injured Sudhakaran to Hospital. He is also a witness to seizure mahazar regarding MO1. Ext.P6 is the mahazar. When he was asked where he had signed in the document, he deposed that it was signed in the office of Circle Inspector where he had seen the crowbar. Before seeing MO1 from the office of Circle Inspector, he had not seen the same. When a suggestive question was put to him that he had signed Ext.P6 when the 1st accused had taken the crow bar from a place near the bathing area of Periyar Valley Branch Canal and concealed under the bushes, he answered in the affirmative. In cross examination when he was again asked whether he had seen MO1 in the police station, he said "yes". He also does not know what has been recorded in Ext.P6. He further stated that he had gone to the Police station as informed by PW1.

20. PW11 is a witness to Ext.P7 inquest report. PW12 is a Manager of a petrol bunk. He is a witness to Ext.P8 mahazar.

21. PW13 is a witness to Ext.P6 mahazar by which the crowbar was recovered. He identified MO1.

22. PW14 has turned hostile. He denied having put his signature in the mahazar regarding recovery of chopper. PW15 Crl.Appeal No.801/12 -:25:- also has turned hostile.

23. PW16 is a witness to Ext.P9 mahazar by which MO2 chopper was recovered. But he proceeded to state that he does not know whether the recovery was effected. He also turned hostile. In cross examination he stated that he has not seen the chopper. He was asked to sign. He had put his signature.

24. PW17 was the Police Constable at the time when the incident occurred. He had signed Exts.P8, P10 and P6 mahazars and identified MO1. He is also a witness to Ext.P11 mahazar and recovery of MO9.

25. PW18 is Doctor Beena. She had examined Kalesh Kumar (PW1) and issued Ext.P12 wound certificate. She deposed that there was no external injury and he complained of pain in the right tempero mandibular joint, right shoulder, right ankle joint, right forearm and difficulty to open mouth. On the same day, she examined Maya (PW4), aged 29 years and Ext.P13 is the certificate. Injuries noted were contusion on right thigh 3x2cms and contusion right lower limb. She stated that those injuries could be caused by MO3. She had also examined Remani (PW2), aged 55 years and Ext.P14 is the wound certificate. The injury noticed was swelling and tenderness over the right dorsum of Crl.Appeal No.801/12 -:26:- hand. She was advised x-ray. She had also examined Rejani, aged 16 years and had issued Ext.P15 certificate. The injuries noted are abrasion on the right side of the chest, small contusion over the right thumb and it is stated that the injury may be caused by MO4. She had also examined Rajan (PW3). Ext.P16 is the certificate. It is stated that there is no external injury and he complained of pain in the chest. On examination he found tenderness in the upper part of the right side of abdomen. He was also admitted.

26. PW19 was the Doctor who conducted postmortem. There were 23 ante mortem injuries. The skull showed comminuted fracture over an area of 6x5 cm on the left tempro occipital region with a fissured fracture (6cm) extending to the left temporal bone with separation of the lower half of sagital suture. According to the Doctor, the death was due to head injury. Injury Nos.1 to 10 were on the head region and 8, 9 and 10 were fatal injuries which were sufficient to cause death in the ordinary course. Injuries 1 to 10 are extracted hereunder:-

"1. Contusion 0.7x0.7x0.5cm on the inner aspect of lower lip 0.5cm to the right mid-line.

2. Abraded contusion 2.5x2cm on right side of face just above upper lip, 1 cm to right of mid-line. Crl.Appeal No.801/12 -:27:-

3. Abraded contusion 6x4.5 cm on right cheek 7 cm above lower jaw border and 1 cm to right of ala of nose.

4. Abraded contusion 2.5x1.5 cm on bridge and root of nose in mid-line.

5. Abraded contusion 6x5.5cm on forehead 0.5 cm to right of mid-line and just above outer end of eye brow.

6. Lacerated wound 2.5x0.3x0.5 cm oblique on forehead, lower inner 3 cm to left of mid-line and 3 cm above eye brow.

7. Abrasion 0.3x0.7 cm on left ear 1 cm inner to outer border and 3 cm below its top.

8. Lacerated wound 4.5x0.3x2.5cm slightly oblique on back of head, upper inner end 11.5 cm behind the right ear in the mid-line and 12cm above the root of neck.

9. Lacerated wound 7.5x1.x2.5 cm oblique on back of head 13 cm behind root of right ear, upper inner end 1.5cm above injury No.8.

10. Lacerated wound 8x1x1 cm oblique on back of head lower inner end 5.5cm above injury No.9 in mid-line 13 cm behind the level of root of right ear."

He also opined that injury Nos.8, 9 and 10 could be caused by MO1. Injury No.21 could be caused by blunt portion of MO2. Injury Nos.6, 11, 12, 13, 15 to 19 can be caused with MO3 and MO4 or similar type of weapon. Other injuries can be caused due to fall on a hard surface during a scuffle. He opined that except injury Nos. 8, 9, 10 and 21, all other injuries were blunt force injuries. Crl.Appeal No.801/12 -:28:-

27. PW20 was the Police Constable during the relevant time. He was on surveillance duty for the 1st accused at the Angamaly Government Hospital. On the request of the Circle Inspector of police, after discharge from hospital, he was taken to the Circle Inspector's office.

28. PW21 was the Dy.S.P. during March, 2006 to August 2006. He had conducted investigation in the matter on 22/5/2006 and 23/5/2006. Further investigation was conducted by PW22.

29. PW22 was the Circle Inspector of Police, Perumbavoor on 24/5/2006. He had conducted further investigation into the said crime.

30. PW23 was the Sub Inspector of Police, Kodanad Police Station on 21/5/2006. He had recorded Ext.P1 First Information Statement and registered Ext.P1(a) FIR.

31. PW24 was the Circle Inspector of Police, Perumbavoor on 2/10/2006. He had submitted the final report and also marked Exts.P34 and P35 reports received from the lab.

32. DW1 is one Jijo. He is an auto driver. He knew the accused. He also knew Sudhakaran. He deposed that by about 5- 5.30 p.m on the fateful day, Sudhakaran's brother's son came and called him stating that there is pathway dispute and suddenly Crl.Appeal No.801/12 -:29:- Sudhakaran went to that place in his auto.

33. DW2 is one Shaji V.M. He knew the accused and deceased Sudhakaran. He deposed that on the eastern side of Rajan's property, there is a small road. About 25 people in the locality use their road. Said road is having a width of 12 feet now. Earlier it was only having 3 feet. Beneficiary Committee decided to increase the width of the road. 4th accused was the Joint Convenor. 3rd accused was the committee member. Father of 1st accused was a committee member. Father of 2nd accused was also a committee member.

34. DW3 is the Medial Officer in charge of Angamaly Public Health Centre. She was summoned to produce certain records which she said that it was not available.

35. DW4 is the Civil Surgeon of Community Health Centre, Chengamanad. On 22/5/2006, he was working as Assistant Surgeon, PHC Angamaly. He proved Ext.D7 wound certificate of one Mr.Vinoj V.S, aged 27 years. Certificate was issued on 22/5/2006. The following injuries were noted:- "1) Contusion 3x3 over left shoulder 2) Contusion 3x4 cm over left forearm. 3) Contusion 3x2cm over left side of back of chest." The alleged cause of injury is shown as assault at 5 pm on 21/5/2006 at Crl.Appeal No.801/12 -:30:- Chettinada. He was admitted on 22/5/2006 and discharged on 25/5/2006. Doctor opined that all the injuries can be caused by beating with an iron rod. He also deposed that injuries noted could be caused by a blunt force such as fist, whip and boot. Since all the injuries are on the same side of the body, there is a chance of these injuries to be caused by a fall from a height.

36. The fact that there was a confrontation or a fight between two groups on the fateful day when Sudhakaran was murdered is not in dispute. The fact that Sudhakaran suffered severe injuries on the said day is proved by the evidence of PW19, Dr.K.Valsala, who was the lecturer in Forensic Medicine and Assistant Police Surgeon at Medical College Hospital, Alappuzha. The post mortem examination revealed 23 injuries and cause of death was on account of injury Nos.8, 9 and 10 which were fatal. All those injuries were on the back of head. Doctor opined that those injuries could be caused by MO1 weapon which was the crowbar. Injury No.21 could be caused by the blunt portion of MO2. She also opined that except injuries 8, 9, 10 and 21, all other injuries were blunt force injuries and some of the injuries could be caused by MO3 and MO4 or similar weapons and other type of injuries could be caused by fall on a hard surface during a Crl.Appeal No.801/12 -:31:- scuffle. In cross examination she reiterated that injury Nos.8, 9 and 10 were the fatal injuries. Ext.P17 is the report. There cannot be any dispute about the fact that Sudhakaran died on account of the injury sustained by him and his body was found in the courtyard of PW6 from where he was taken to the hospital. The only remaining question is, who was responsible for the murder. The 1st accused in his separate statement filed after S.313 questioning stated that on the date of incident at about 6.00 p.m, he was proceeding towards his house through the southern side of the road leading from the Panchayat road. When he reached near the house of PW6, Rajan (PW3) and his people was having a quarrel with persons who were involved in cutting open a road. They were fighting and quarreling between them. He was standing by the side of PW6's property. At that time, Sudhakaran came in an auto. He took an iron rod from Rajan's courtyard and came straight towards him. Sudhakaran hit him with the iron rod. Accused caught hold of the iron rod. They had a confrontation. But he could not get the iron rod. Sudhakaran again hit him. Seeing the aforesaid incident, people around came running. They hit Sudhakaran and he ran away. On the said evening, he had severe pain and he applied some oil. Next day, the pain did not Crl.Appeal No.801/12 -:32:- deteriorate, therefore he went to Angamaly Hospital. Doctor admitted him. On 25th, Police came and forcefully discharged him from the hospital. The 2nd accused also filed a statement in which he stated that he was proceeding towards his house through the pathway on the eastern side of Rajan's property. PW2 and PW3 came down from their house and told him that they will not permit him to use the said road. They obstructed and abused him. Immediately PW1, Kalesh and PW3, Rajan also came. They joined PW2 and started assaulting him. They had a knife similar to a sickle. He cried. On hearing his loud cry, his father Sasi and certain others including women came. In the meantime, Rajan's relatives, CW6 Sasi and CW7 Jayaprakash and Rajan's wife Sreedevi also came. Both the groups started a fight. Somebody threw stones. At that time, first accused was standing by the side of Anilkumar's house. In the meantime, Sudhakaran came in an autorickshaw. Immediately he took an iron rod and proceeded towards the 1st accused and hit him left and right. They had a scuffle. Seeing this, others went towards them and caught hold of Sudhakaran. In the meantime, 1st accused ran away after being hit and Sudhakaran fell down. All others ran away from the scene here and there. He along with his father went home. Crl.Appeal No.801/12 -:33:-

37. The cross examination of eye witnesses proceeds on the basis that there was a scuffle between the two groups and in the process, according to the defence, Sudhakaran got injured and succumbed to his injuries.

38. Learned counsel for the appellant pointed out several discrepancies and omissions in the evidence of eye witnesses. The eye witnesses who had been examined in the case are PW1 to PW5.

39. The primary argument is that the case set up by the prosecution before court does not tally with the statement given by PW1 before the police as FI statement. As already stated, FI statement was recorded at 9.30 p.m on 21/5/2006. Statement was given by PW1. It was received by the Magistrate Court, Perumbavoor on 22/5/2006 at 11.00 a.m. Therefore, we do not think that there is any delay on the part of the police in registering the crime and sending the First Information Report with a statement to the Magistrate Court.

40. Learned counsel for the appellant had pointed out certain contradictions as well as omissions in the evidence of PWs 1 to 5 in comparison with their earlier statements as well as Ext.P1. In cross examination, PW1 stated that father was Crl.Appeal No.801/12 -:34:- cremated on 22nd evening by around 5.30-6.00 p.m. He suffered a hit injury behind his ear. He had pain but there was no blood stains. Mother suffered an injury on her hand and there was a fracture of her bone. Following were some of the omissions/contradictions of PW1, with reference to the statement in Ext.P1 which had been brought out during cross examination. That the 2nd accused had threatened them; that the 2nd accused was holding an iron rod; that the 2nd accused had hit any person using the iron rod; that PW4 was along with them and she had suffered any injury; that the mother had not gone to the road while all of the accused were standing on the road threatening them. He also denied having stated that when all the four persons came to the road and were threatening them, mother had gone towards them. According to him, he had not given any such statement to the police. He reiterated that the initial conflict was between 2nd accused and mother and only after the mother was hit that the incident started. According to him, he had given such a statement to the police. He also stated that he had not mentioned that the 2nd accused was holding a wooden rod whereas he was holding an iron rod. He further deposed that he and the 4th accused were having a fight until deceased was Crl.Appeal No.801/12 -:35:- inflicted with a blow and he fell down. The incident took place in the pathway in front of Anilkumar's house (PW6). He further deposed that other than Ext.P1, he had given another statement. That was on the day when he had gone to hospital. Statement was given from the hospital. When the police questioned him the second time, he had not stated that Anoop had taken a crowbar from the road and it was given to Vinoj (A1), and Vinoj was asked to kill him. PW1 said that he had not given such statement and that portion is marked as Ext.D1. He also denied having stated that seeing the first accused coming with a crowbar, Sudhakaran ran to the courtyard of Anil Kumar. He also stated that he had seen the first accused inflicting two blows on the head of Sudhakaran in Ext.P1. But he has no explanation why it is not mentioned. In further cross examination he stated that while Sudhakaran was running towards Anilkumar's house, 3rd accused had inflicted an injury on him with the chopper twice on his head as well as on his leg. After he fell down, 1st accused inflicted the blow, but it was not clear for him as to when he fell down. He also denied having stated in Ext.P1 that on seeing people coming to the scene, the accused had left leaving the crowbar, iron rod, wooden stick etc. According to him, two iron rods were left by Crl.Appeal No.801/12 -:36:- them while running away. When he was questioned that he had not stated in Ext.P1 that the 1st accused ran with the crowbar, his answer was that he had stated so. He also stated that he had mentioned to the police that Nidhin Raj was taken to the hospital. The suggestion was that on seeing the 2nd accused, PW2 had come near the road and she abused him. There was a quarrel between them. Thereafter PW1 along with PW3 and others came near the road and restrained the 2nd accused and manhandled him. On hearing his cry, people in the locality came to the scene. Nidhin Raj went in a cycle to Pallippady and informed the matter to Sudhakaran (deceased) who came in an autorickshaw. When Sudhakaran came, 1st accused was standing in the property of Anilkumar (PW6) and Sudhakaran took an iron rod from the place where building construction was going on, with which he hit the first accused and, on seeing the same, people in the locality manhandled Sudhakaran and he therefore suffered injuries. Accused 3 and 4 came only after the incident and it is after consulting their relative Salim who is a police constable and other police officers in Kodanad Police Station, Ext.P1 was prepared. In re-examination he stated that accused 2 and 3 are the relatives of his father. He could not state the entire aspects since it was given Crl.Appeal No.801/12 -:37:- at a time when his father died.

41. PW22 while being cross examined stated that the first accused had suffered injuries during the aforesaid incident. He however denied having suppressed the wound certificate. He also stated that another crime No.122/2006 was registered at the instance of the first accused and later it was referred, as it was a false case. When he was asked regarding the contradiction in Ext.P1, he stated that, in Ext.P1 statement, it is stated that the accused ran away after leaving the crowbar, iron rod and wooden stick. However, according to him, the said crowbar was not the one that was recovered as per Ext.P6(a). On further cross examination, he stated that MO1 was taken by the first accused himself. He also stated that no witnesses had stated about the presence of PW5 in the place of occurrence or that he had suffered any injury. Nothing has come out in his investigation that the 3rd accused had inflicted any injury on Sudhakaran. He also stated that none of the witnesses had stated that the 2nd accused had uttered to kill any person or that he had instigated any person to be killed. His evidence further discloses that at the time of postmortem of Sudhakaran's body it was observed that he had suffered several injuries. However he denied the suggestion Crl.Appeal No.801/12 -:38:- that after seeing such injuries that the statement of PW2 to 6 was recorded. He also deposed that PW2 had not stated that she suffered fracture on her hand. She has also not stated that on hearing a cry, that Maya came down and thereafter the others had come. PW2 has not stated that the 4th accused was holding a ridged iron rod. PW2 has also not stated that on hearing their cry, the accused had left behind the iron rods and had gone away with the chopper and crowbar. PW2 has also not given any statement that 3rd or 4th accused had inflicted any injury on Sudhakaran. She also deposed that PW3 has not stated that the 2nd accused had not inflicted any injury on him. In further cross examination, he states that though PW3 had not given any statement that 3rd accused had inflicted an injury on Sudhakaran and he could not walk and immediately the 2nd accused gave crowbar to the 1st accused and asked the first accused to kill him pursuant to which the 1st accused hit Sudhakaran on his head. Witness having stated that PW3 had not stated so, further stated that 2nd accused had taken a crowbar and gave it to the first accused and seeing this Sudhakaran ran away and the 1st accused went behind him uttering that he will be killed and hit him behind his head. Several of the contradictions and omissions had been put to the Crl.Appeal No.801/12 -:39:- witness which he agrees.

42. Apparently, and as already indicated above, there are several contradictions in the evidence of witnesses when viewed in the light of Ext.P1. Further, PW2 says that after seeing the first blow on the head of her husband, she fell unconscious. As far as PW3 is concerned, he does not remember whether his statement was recorded by the Police. PW4, in the statement to the police had stated that on seeing the quarrel between the parties, she went inside the house. She had not seen the incident. However, she deposes before Court as if she had seen the entire incident. PW5 had not given any statement to the Police that he had seen the incident. But he also speaks in the light of the evidence given by others. Taking into account all these aspects, we may have to discard the evidence of PW4 and 5. However, the evidence of PW1, PW2 and PW3 is believable. PW2's evidence can be believed only to the extent of Sudhakaran suffering the first blow. But as already mentioned and as evident from the factual circumstances, the witnesses have gone a little further to implicate the 2nd accused also in the crime of murder. In Ext.P1 statement, nothing has been stated about the 2nd accused asking the 1st accused to kill Sudhakaran or any other person whereas it Crl.Appeal No.801/12 -:40:- was the 1st accused who was shouting that they should be killed. As held by the Apex Court in a long line of decisions, a few of which had already been referred to, though the witnesses are partisan witnesses, relative and enemies of the accused, their evidence is to be tested in the light of all the factual circumstances. When PW1 had given a statement as Ext.P1 immediately after the incident, there is no reason why the statement in Ext.P1 is to be disbelieved. Of course, when it comes to oral testimony, they had tried to exaggerate the incidents in order to rope in the other accused as well.

43. First let us consider the involvement of first accused in the crime. In Ext.P1 statement, PW1 was stating that when Vijayan (A3) brandished a chopper against his father, A1 was uttering repeatedly to kill him. Immediately 2nd accused handed over to the 1st accused a crowbar which was concealed in that place. On seeing the crowbar, his father ran towards Ali's house (in evidence, it is stated that Anilkumar, PW6 is known as Ali). First accused ran behind his father uttering that "I will kill you". Father reached Ali's courtyard. First accused who was behind him hit his father behind his head once. His father fell down face down. Again he hit his father on the back of his head forcefully. Crl.Appeal No.801/12 -:41:- His skull broke and blood gushed out. In the evidence of PW1, he deposed that the 2nd accused gave the crowbar to the 1st accused and was uttering "kill him, kill him". When the first accused came with the crowbar, his father ran towards Anilkumar's house. When he reached the courtyard of Anilkumar's house, first accused hit him on his head with the crowbar. He fell down and then he hit him twice on his head. PW2, wife of Sudhakaran, also deposed that the 2nd accused had gave the crowbar to the 1st accused and the 1st accused hit her husband on the head with crowbar. He fell down face down. Thereafter, he hit him again once. His skull broke and blood oozed out. Her husband fell in the courtyard of Anilkumar. PW3 also deposed that A2 gave the crowbar to the 1st accused. He was asked to kill him. 1st accused took the crowbar and hit Sudhakaran on his head. On the first hit itself, he fell down face down. Again he hit him with the crowbar. Therefore, the involvement of the 1st accused in hitting the deceased on his head with the crowbar is stated in Ext.P1 statement. Of course, in Ext.P1, PW1 has only stated that he was hit on the head with the crowbar twice. The injuries noted would show that there were three major injuries on the head and there were other injuries also. Therefore, it is clear that Sudhakaran was manhandled and Crl.Appeal No.801/12 -:42:- when he was trying to escape by running towards the house of Anilkumar, he was hit with a crowbar. As far as the head injury which was the fatal injury and the cause of death is concerned, medical evidence coupled with the statement in Ext.P1 and the oral testimony of PW1 would show that the fatal blows were inflicted by the first accused. Of course, there are several omissions and contradictions pointed out with reference to the entire incident right from the beginning and even the presence of Sudhakaran at the relevant time. But when the involvement of the 1st accused in committing the aforesaid crime is clear from the oral testimony of the injured witnesses, should the said evidence be discarded merely for the reason that they are all related and therefore partisan witnesses.

44. As far as the overt act of the first accused is concerned, there is no discrepancy in the evidence of PW1, PW2 and PW3. The medical evidence adduced in the case would show that the fatal blows were the head injury caused at Sl.Nos 8, 9 and 10 as shown in the post mortem certificate. As far as the involvement of A1 is concerned, to that extent, there is no embellishment in the evidence. Even while discarding the contradictions and other embellishments in the oral testimony of Crl.Appeal No.801/12 -:43:- PWs 1 to 5, in so far as there is evidence to prove that the fatal blow was caused on Sudhakaran by the 1st accused, he cannot escape the liability.

45. Yet another argument is that there were several injuries on the deceased which is not explained and it is to explain those injuries that the witnesses were tutored to state regarding the involvement of A3 and A4. As stated by the witnesses and even according to the accused, there was a fight and all of them had attacked Sudhakaran. He tried to escape by proceeding to the courtyard of PW6. In fact he was running away from the scene when A1 inflicted a fatal blow behind his head and according to PW1, he was hit again after Sudhakaran fell down. It is true that failure to explain the injuries may not actually prove the genesis of the incident. But even according to the accused, Sudhakaran came at the time when there was a confrontation between the two groups and interfered in the fight. But, according to them, he started beating the 1st accused with an iron rod. But medical evidence proves otherwise. Sudhakaran was badly injured and the 1st accused had only minor injuries which were not at all fatal. Therefore, non explanation of injuries either on Sudhakaran or on accused is not fatal to the prosecution. But despite such Crl.Appeal No.801/12 -:44:- discrepancies or omissions which had been highlighted by learned counsel for appellant, the fact remains that the witnesses are unanimous and the material placed on record Ext.P1 clearly states that head injury to the deceased was caused by 1st accused which caused his death. Under such circumstances, we do not think that the involvement of first accused and his complicity in the crime can be ruled out. He is the person who had caused the fatal injuries on the head of the deceased with the crowbar. In all likelihood, he was sure that it would have caused death. Therefore he is responsible for the crime and in that event, the Court below was justified in convicting him for the offence u/s 302 I.P.C.

46. But as far as the 2nd accused is concerned, there is discrepancy in his involvement from what has been stated in the FI Statement and his involvement as spoken to by the witnesses.

47. In the FI statement, it is stated that he initiated the sequence of events by abusing them and when PW2 questioned, he hit her with a wooden rod. In the evidence, all of them stated that he was holding an iron rod. Further, in Ext.P1, it was Anoop (A1) who was uttering that all of them should be killed. It is stated that a crowbar was concealed and 2nd accused took it and gave it to the 1st accused and thereafter the 1st accused ran Crl.Appeal No.801/12 -:45:- behind the deceased, whereas in the evidence, an attempt has been made to improve the case against the 2nd accused and in evidence all of them deposed that 2nd accused gave the crowbar to the first accused and he shouted that all of them should be killed. The fact that 2nd accused had given the crowbar to the first accused is mentioned in Ext.P1. But nothing has been stated as to whether he had the intention to murder Sudhakaran. Of course, crowbar is a deadly weapon. But the severity of the injury would depend upon the nature of use. It could also be used for self defence. But the evidence is that Sudhakaran was running away to avoid any further assault and first accused ran behind him and inflicted a severe blow on his head. When he fell down, he inflicted another blow as well. From the aforesaid evidence, it is clear that there is a major discrepancy in the evidence and Ext.P1 statement, as far as the 2nd accused is concerned. If the 2nd accused had uttered "kill him, kill him" by giving the crowbar to 1st accused, we are of the view that definitely PW1 would have stated that in the FI statement, especially when PW1 stated that 1st accused was uttering to kill all of them. That part of the evidence especially when given by partisan witnesses who are relatives tends us to express a doubt regarding, as to whether, Crl.Appeal No.801/12 -:46:- there was a common intention to commit murder. On Sudhakaran getting the fatal blow, all of them ran away. The death blow of Sudhakaran was caused by the first accused. Second accused can be roped in for offence of murder only if he had the common intention of committing murder. That he had given the crowbar to the 1st accused alone may not suffice to arrive at a conclusion that he had the common intention to commit murder.

48. Yet another factor which had been highlighted is the statement of PW1, in FI statement that all the accused left the place by leaving the weapons. Later, it is stated that only two iron rods were left there. The accused had taken away the chopper and the crowbar. The witnesses who were cited to prove the recovery of chopper and crowbar had turned hostile. But the scientific evidence adduced in the case would show that there was blood stain in the crowbar which connects the accused to the crime.

49. It is settled law that when a scuffle takes place between two groups of persons, each and every person will not be in a position to state, exactly as to who had hit whom and at what time. When a fight or scuffle with deadly weapons take place, every witness who sees the incident may not see the entire Crl.Appeal No.801/12 -:47:- aspects of the matter. In this case, it could be seen that all of the witnesses also got injured, as according to them, the accused were having weapons with them. On the other hand, defence also takes up a contention that one of the witnesses was wielding a sickle like knife. But it could be seen that only the 1st accused was injured and that too some contusions probably on account of the scuffle he had with the deceased. But the major injuries were caused to the deceased and he succumbed to the injuries. When he died on account of the said incident which is proved by substantive evidence and the witnesses have clearly spoken about his involvement before court and, to that extent, there is no contradiction. Minor changes in the sequence of events may not render the prosecution case unbelievable.

50. In the case on hand, the prosecution has proved beyond reasonable doubt that the 1st accused was responsible for the crime of committing murder of Sudhakaran. Therefore we do not think it necessary for us to interfere with the said judgment.

51. But as far as the 2nd accused is concerned, common intention to commit murder is not seen proved. The evidence of witnesses who had spoken to the said fact is not believable on account of the embellishment which we have taken note of. At Crl.Appeal No.801/12 -:48:- best, he can only be convicted for offence u/s 324 I.P.C. for having caused injury to PW2.

In the result, this appeal is partly allowed as under:-

(i) The second accused is not found guilty u/s 302 I.P.C.

(ii) We sustain the conviction and sentence of the first accused for the offence u/s 302 and the conviction and sentence of the second accused u/s 324 I.P.C.

Sd/-

A.M. SHAFFIQUE, JUDGE Sd/-

P.SOMARAJAN, JUDGE Rp //True Copy// PS to Judge

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