Kerala High Court
Midhun vs State Of Kerala on 11 June, 2019
Bench: A.M.Shaffique, Ashok Menon
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
&
THE HONOURABLE MR. JUSTICE ASHOK MENON
TUESDAY, THE 11TH DAY OF JUNE 2019 / 21ST JYAISHTA, 1941
CRL.A.No. 1102 of 2014
AGAINST THE JUDGMENT IN SC 461/2012 of ADDITIONAL DISTRICT
& SESSIONS COURT, NORTH PARAVUR DATED 26-09-2014
AGAINST THE ORDER/JUDGMENT IN CP 12/2010 of JUDICIAL
MAGISTRATE OF FIRST CLASS - I, NORTH PARAVUR
APPELLANT/ACCUSED A-2:
MIDHUN
S/O.CHANDRAMOHAN,VATTATHARA
HOUSE,CHARIYAMTHURUTH KARA,KADAMAKKUDY VILLAGE
BY ADV. SRI.SAIBY JOSE KIDANGOOR
RESPONDENTS/STATE & COMPLAINANT:
1 STATE OF KERALA
REP BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA
682 031
2 THE CIRCLE INSPECTOR OF POLICE
NORTH PARAVUR,RNAKULAM DISTRICT 682 031
BY ADV.SR.PP. SRI.S.U.NAZAR
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
4.04.2019, ALONG WITH CRL.A.131/2015, CRL.A.1047/2014,
CRL.A.1192/2014, THE COURT ON 11/6/2019 DELIVERED THE
FOLLOWING:
CRL.A 1102/2014 ,CRL.A.131/2015 ,
CRL.A.1047/2014 & CRL.A.1192/2014 -:2:-
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
&
THE HONOURABLE MR. JUSTICE ASHOK MENON
TUESDAY, THE 11TH DAY OF JUNE 2019 / 14TH CHAITHRA, 1941
CRL.A.No. 131 of 2015
AGAINST THE JUDGMENT IN SC 461/2012 of ADDITIONAL DISTRICT
& SESSIONS COURT, NORTH PARAVUR DATED 26-09-2014
AGAINST THE ORDER/JUDGMENT IN CP 12/2010 of JUDICIAL
MAGISTRATE OF FIRST CLASS - I, NORTH PARAVUR
CRIME NO. 402/2009 OF Varappuzha Police Station , Ernakulam
APPELLANT/1ST ACCUSED:
JOBY @ JOSEPH JOBY
S/O.AUGUSTINE, MANAPPURATH HOUSE,
CHARIYAMTHURUTH KARA, KADAMAKKUDY VILLAGE.
BY ADV. SRI.GRASHIOUS KURIAKOSE (SR.)
RESPONDENT/COMPLAINANT:
STATE OF KERALA
CIRCLE INSPECTOR OF POLICE, NORTH PARAVUR,
REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF
KERALA, ERNAKULAM.
BY ADV. SR.PUBLIC PROSECUTOR SRI.S.U.NAZAR
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
4.04.2019, ALONG WITH CRL.APPEAL NO.1102/14 & CONN.CASES,
THE COURT ON 11/6/2019 DELIVERED THE FOLLOWING:
CRL.A 1102/2014 ,CRL.A.131/2015 ,
CRL.A.1047/2014 & CRL.A.1192/2014 -:3:-
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
&
THE HONOURABLE MR. JUSTICE ASHOK MENON
TUESDAY, THE 11TH DAY OF JUNE 2019 / 14TH CHAITHRA, 1941
CRL.A.No. 1047 of 2014
AGAINST THE JUDGMENT IN SC 461/2012 of ADDITIONAL DISTRICT
& SESSIONS COURT, NORTH PARAVUR DATED 26-09-2014
AGAINST THE ORDER/JUDGMENT IN CP 12/2010 of JUDICIAL
MAGISTRATE OF FIRST CLASS - I, NORTH PARAVUR
CRIME NO. 402/2009 OF Varappuzha Police Station , Ernakulam
APPELLANT/3RD ACCUSED:
KUTTAPPI @ DIVIN
S/O.MOHANAN, VITHAYATHIL HOUSE, CHARIYAMTHURUTH
KARA, KADAMAKKUDY VILLAGE, ERNAKULAM DISTRICT
BY ADV. SRI.T.A.SHAJI (SR.)
RESPONDENT/COMPLAINANT:
STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF
KERALA, ERNAKULAM (REPRESENTING THE C.I. OF
POLICE NORTH PARAVUR)
BY ADV. PUBLIC PROSECUTOR SRI.S.U.NAZAR
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
4.04.2019, ALONG WITH CRL.APPEAL NO.1102/14 & CONN.CASES,
THE COURT ON 11/6/2019 DELIVERED THE FOLLOWING:
CRL.A 1102/2014 ,CRL.A.131/2015 ,
CRL.A.1047/2014 & CRL.A.1192/2014 -:4:-
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
&
THE HONOURABLE MR. JUSTICE ASHOK MENON
TUESDAY, THE 11TH DAY OF JUNE 2019 / 14TH CHAITHRA, 1941
CRL.A.No. 1192 of 2014
AGAINST THE JUDGMENT IN SC 461/2012 of ADDITIONAL DISTRICT
& SESSIONS COURT, NORTH PARAVUR DATED 26/9/2014
AGAINST THE ORDER/JUDGMENT IN CP 12/2010 of JUDICIAL
MAGISTRATE OF FIRST CLASS - I, NORTH PARAVUR
CRIME NO. 402/2009 OF Varappuzha Police Station , Ernakulam
APPELLANT/4TH ACCUSED:
ANTONY AJI DESILVA
S/O.AUGUSTINE DESILVA,CHETTIVALAPPIL
HOUSE,CHARIYAMTHURUTH KARA,KADAMAKKUDY VILLAGE
BY ADV. SRI.S.SREEKUMAR (SR.)
RESPONDENT:
THE STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF
KERALA,ERNAKULAM
BY ADV.SR.PUBLIC PROSECUTOR SRI.S.U.NAZAR
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
4.04.2019, ALONG WITH CRL.APPEAL NO.1102/14 & CONN.CASES,
THE COURT ON 11/6/2019 DELIVERED THE FOLLOWING:
CRL.A 1102/2014 ,CRL.A.131/2015 ,
CRL.A.1047/2014 & CRL.A.1192/2014 -:5:-
JUDGMENT
Shaffique, J.
These appeals have been preferred by the appellants who are four in number challenging the judgment of conviction and order of sentence passed by the Additional District and Sessions Judge, North Paravur in S.C. No. 461 of 2012 with C.P. No. 12 of 2010 arising out of Crime No. 402 of 2009 of Varappuzha Police Station dated 26/09/2014 by which the appellants were found guilty and sentenced as follows:
A1 to A4 were sentenced to undergo rigorous imprisonment for 10 years each for offence under Section 307 read with Section 34 of the Indian Penal Code, 1860 (for short 'IPC') and they were further found guilty for offence under Section 302 read with Section 34 of IPC and each of them were sentenced to suffer imprisonment for life and to pay a fine of `50,000/- (Rupees Fifty Thousand only) with a default stipulation of rigorous imprisonment for three years each. A5 was not found guilty for offence under Section 212 of IPC and was set at liberty. A1 to A4 were not found guilty for offences under Sections 323 and 324 of I.P.C. and were CRL.A 1102/2014 ,CRL.A.131/2015 , CRL.A.1047/2014 & CRL.A.1192/2014 -:6:- acquitted of those charges. The fine amount, if realized, was directed to be given to PW12 who is the father of the deceased as compensation under Section 357(1)(c) of the Code of Criminal Procedure, 1973 (for brevity 'Cr.P.C.').
2. The specific case of the prosecution against the appellants/accused are as under:
A1 to A4 had previous animosity towards Manu (deceased herein) and his friends CW1 and CW9. Manu and CW9 had manhandled one Syamkumar, a friend of A1 and Crime No.257 of 2009 under Sections 341, 323, 324 and 506(1) read with Section 34 of IPC was registered against Manu and others. Due to the same, the accused/appellants had ill-will towards Manu and his friends and they intended to kill him. On 12/07/2009 at 09.00 P.M., A1 to A4 in furtherance of their common intention to kill Manu and others, while Manu was talking with CW1 and CW9 at the doorsteps of the Anganavady at Charayamthuruth kara, Kadamakkudy village started quarrelling with CW1, CW9 and Manu. A scuffle took place there. At that time, A1 stabbed CW9 at his abdomen saying "നന ഞൻ പണത തര ". Seeing this, CW10 pushed away CW9 and hence the stab only caused a scratch on the abdomen of CW9. Thereafter, A2 Midhun kicked down Manu and A1 Joby stabbed CRL.A 1102/2014 ,CRL.A.131/2015 , CRL.A.1047/2014 & CRL.A.1192/2014 -:7:- Manu with a knife below his right side of the chest which resulted in serious injuries to two ribs, diaphragm, liver and right kidney. Seeing the same, CW1 intervened. Thereupon, A1 attempted to kill CW1 by stabbing him. When CW1 defended himself with his left hand, he sustained a deep injury on his left wrist. A1 to A4 also manhandled CW1 and CW9 by fisting and kicking. A5 arranged a hiding place at Doha hotel at Seminarippady, Aluva for A1 to A3 who escaped from the scene after the incident and thereby committed offence under Section 212 of I.P.C.
3. PW1 to PW30 were examined as witnesses, Exts.P1 to P45 series documents were marked and MO1 to MO17 objects were identified by the prosecution to prove their case. Exts.D1 to D6 were marked from the side of the defence. During examination under Section 313 of Cr.P.C., the accused denied all incriminating circumstances shown against them. A1 to A4 stated that they were not present at the scene of occurrence. A1 specifically stated that he was falsely implicated by the people of the colony. A2 stated that he did not know as to why he was implicated in the case. A3 stated that the witnesses are telling lies. A4 stated that he is innocent. No evidence was adduced by the defence.
CRL.A 1102/2014 ,CRL.A.131/2015 , CRL.A.1047/2014 & CRL.A.1192/2014 -:8:-
4. The 1st 2nd 3rd and 4th accused were represented by learned counsels Sri.Grashious Kuriakose (Sr.), Sri.Saiby Jose Kidangoor, Sri.T.A. Shaji (Sr.) and Sri.P. Martin Jose respectively and the State of Kerala is represented by Senior Public Prosecutor Sri.S.U.Nazar. Learned counsels for the appellants/accused submitted that there is absolutely no evidence to connect the appellants with the crime. For A1, it was contended that he is innocent. Prosecution failed to prove the case against the appellant beyond reasonable doubt and hence the trial Court erred in convicting the appellant. There are definite improvement and purposeful embellishment in the prosecution case right from the beginning. The version of PW1 in FIS is contradictory to his 164 statement and the deposition in Court. Prosecution did not adduce any evidence to show the motive for the crime. Nothing is brought out in evidence to show that the appellant had any intention to commit murder. Totally different versions are forthcoming from the evidence of the prosecution as far as overt acts are concerned. Even according to the prosecution evidence, it can be seen that the real aggressors were the prosecution party. They were waiting at the veranda of Anganwadi carrying the sword. They started the aggression. If at all this Court is CRL.A 1102/2014 ,CRL.A.131/2015 , CRL.A.1047/2014 & CRL.A.1192/2014 -:9:- inclined to find that A1 caused the injury to the victim, it is only the lawful exercise of his right to private defence against aggression on the body of his friends. There is only one injury. Nothing is brought in evidence to show that there was any premeditation or intention on the part of A1. All happened after a scuffle and prosecution suppressed material facts from the Court. Not even a single piece of evidence is available to show that there was any common intention. Sword was recovered from the place of occurrence as per scene mahazar. He vehemently pleaded for an acquittal by extending benefit of doubt to A1. To avoid repetition, the arguments put forth by the counsels for A2 to A4 are stated together which is as follows: PW1 in his FIS stated that A3 was carrying the sword. In Court, he stated that the sword was carried by A2. Court below acquitted A5 for offence under Section 212 of IPC and A2 to A4 were acquitted of charges under Sections 323 and 324 of IPC which clearly shows that there is absolutely no evidence to show that there was any overt act on the part of A2 to A4. The genesis of the incident is suppressed. Evidence on record is contradictory. PW1 and PW4 contradict on material particulars. As already pointed out by the learned Senior counsel for A1, there is no evidence to show that CRL.A 1102/2014 ,CRL.A.131/2015 , CRL.A.1047/2014 & CRL.A.1192/2014 -:10:- there was any prior meeting of minds among the accused. A close watch of the incident revealed in evidence would show that there was no common intention to commit offence as alleged by the prosecution. It is brought in evidence that A2 to A4 remained at the spot even after the alleged occurrence and some people over there told them to go away. Sword was also seen at the spot itself. If at all inspires confidence, the evidence of so called eyewitnesses would reveal that A1 ran towards the western direction and A2 to A4 ran to the opposite direction. The scuffle was allegedly between A2 to A4. They had no weapon with them. Allegation of the prosecution is that A1 ran to the spot with MO1 knife. All these aspects clearly shows that there was no concert of mind among A1 to A4 to commit the offence as alleged by the prosecution. Motive for A2 to A4 to commit the crime has not even been alleged. They argued for an acquittal of A2 to A4 by extending benefit of doubt. To fortify their contention regarding settled positions on Section 34 of I.P.C., they relied on decisions of the Apex Court in Nagaraja v. State of Karnataka (AIR 2009 SC 1522), Chandrakant Murgyappa Umrani v. State of Maharashtra (AIR 1999 SC 1557) and Mewa Ram and Ors. v. State of Rajasthan [(2017) 11 SCC 272]. Learned Senior CRL.A 1102/2014 ,CRL.A.131/2015 , CRL.A.1047/2014 & CRL.A.1192/2014 -:11:- counsel appearing for the 1st accused cited the judgment in Surinder Kumar v. Union Territory, Chandigarh [(1989) 2 SCC 217] and Ranjitham and Another v. Basavaraj and Others [(2012) 1 SCC 414] to strengthen his argument that the case would not at all fall under Section 302 of IPC if at all this Court is inclined to believe that the 1 st accused committed overt act as alleged by the prosecution.
5. On the other hand, learned Senior Public Prosecutor Sri.S.U.Nazar argued that there are ample evidence against the appellants and trial Court is justified in convicting the appellants. PW1 and PW4 are injured eyewitnesses. Their evidence is worthy of acceptance as they are truthful. PW5 and PW6 throws sufficient light into the incident. Oral evidence of these witnesses are more than sufficient to convict the appellants herein. Their motive is clearly proved by the prosecution. The evidence of Doctor who conducted autopsy shows that the injury inflicted was a too fatal that it penetrated almost all vital internal organs including liver and kidney. The intention is clear. This is not at all a case of exercise of right of private defence. He also argued that common intention of the accused is evident from the deposition of witnesses. He pleaded to dismiss the appeals. He relied on the CRL.A 1102/2014 ,CRL.A.131/2015 , CRL.A.1047/2014 & CRL.A.1192/2014 -:12:- decisions of the Apex Court in Virsa Singh v. State of Punjab (AIR 1958 SC 465) and C. Muniappan and Ors. v. State of Tamil Nadu (AIR 2010 SC 3718) to support his contentions.
6. In our view, correctness of the view taken by the Court below regarding the following four questions are to be considered and decided by us.
i. Whether the death of Manu was a homicide as alleged? ii. Whether A1 had caused the injuries on Manu as alleged by the prosecution?
iii. Whether the alleged act of A1 to A4 can amount to offence under Sections 302 and 307 of I.P.C. r/w S.34 of I.P.C.?
7. Before addressing the above questions, it would be profitable to briefly state the evidence adduced by the prosecution to prove the case.
8. PW1 is an injured witness who gave Ext.P1 FIS to PW29. Ext.P2 is his statement recorded under Section 164 of Cr.P.C by PW28. PW2 is the father of PW4. He is an attestor to Ext.P3 inquest report and Ext.P4 seizure mahazar for MO1 knife which was recovered by the Investigating Officer based on Ext.P4(a) disclosure statement of A1. He produced MO5 to MO8 dresses worn by PW1 and PW4 at the time of incident. PW3 CRL.A 1102/2014 ,CRL.A.131/2015 , CRL.A.1047/2014 & CRL.A.1192/2014 -:13:- deposed that he had seen A1 Joby running towards west with a knife. He also saw A2 to A4 standing at the spot. He identified MO1 knife and MO3 dhothi worn by the deceased. PW4 is another injured eyewitnesses. Ext.P5 is the 164 statement of PW4. PW5 and PW6 are also occurrence witnesses. Exts.P6 and P7 respectively are the 164 statements of them. PW7 is another occurrence witness who saw a part of the incident. He identified MO1 knife used by A1. Ext.P8 is the 164 statement of PW7. PW8 was present at the time of inquest. PW9 deposed that she had seen A1 running towards the west with MO1 knife. PW10 is an attestor to Ext.P9 scene mahazar. He identified MO4 shirt and MO9 series chappals as items seized at the time of preparing Ext.P9. PW11 is the teacher of the Anganwadi in front of which the incident took place. PW12 is the father of Manu. He identified MO9 series chappals of Manu. PW13 is a neighbour of PW12 and he was a student during the relevant time. It is his evidence that A1, the deceased Manu and others were friends and later they quarrelled. PW14 is the taxi driver in whose car the injured were taken to the hospital. PW15 is another occurrence witness who stated that he had witnessed the incident in part. He saw A1 running with a knife towards west. PW16 turned hostile to the CRL.A 1102/2014 ,CRL.A.131/2015 , CRL.A.1047/2014 & CRL.A.1192/2014 -:14:- prosecution. Exts.P10, P10(a) and P10(b) were marked through him. PW17 is the owner of Doha Hotel, Seminarippady, Aluva. PW18 is the owner of the shop from where A1 purchased MO1 knife. He turned hostile to the prosecution. PW19 is an attestor to Ext.P12 seizure mahazar for MO5 to MO8 dress produced by PW2 before police. PW20 is the brother of A1's father. He did not support the prosecution case. Ext.P13, P13(a), P13(b), P13(c) and P13(d) were marked. PW21 is the then Asst. Surgeon, Taluk Head Quarters Hospital, North Paravur. He examined PW1 on 12/07/2009 at 10.30 P.M. and issued Ext.P14 wound certificate. Manu was brought dead on the same day at 10.15 P.M. and Ext.P15 is the intimation sent to the police in that regard. PW22 is the then Scientific Assistant who inspected the scene of occurrence on 13/07/2009 at 11.30 P.M. She collected five items which includes, MO13 cotton swab from the wall in front of Anganwady, MO14 cotton gauze which is the control for MO13, MO15 stained soil from the ground below the wall for which MO16 is the control and MO17 is the swab from the stain found on the concrete slab. She stated that she had found MO4 blood stained shirt, MO2 sword and MO9 series chappals at the place of occurrence. PW23 is the then Village Officer, Kadamakkudy who CRL.A 1102/2014 ,CRL.A.131/2015 , CRL.A.1047/2014 & CRL.A.1192/2014 -:15:- prepared Ext.P16 scene plan. PW24 turned hostile to the prosecution. Ext.P17 and P17(a) were marked through him. PW25 is a friend of PW24. He also turned hostile. PW26 is a relative of A5. He is an attestor to Ext.P11 mahazar. He did not support the prosecution case. Exts.P18, P18(a) and P18(b) are case diary contradictions marked through him. PW27 is the then District Police Surgeon, General Hospital, Ernakulam. He conducted post- mortem examination on the corpse of the victim on 13/07/2009 and issued Ext.P19 certificate. PW28 is the then Judicial First Class Magistrate, North Paravur. He recorded Exts.P2, P5, P6, P7 and P8 statements of PW1, PW4, PW5, PW6 and PW7 respectively under Section 164 of Cr.P.C. Ext.P20 is the authorization order dated 20/08/2009 which he received from Chief Judicial Magistrate, Ernakulam.
9. PW29 is the then Sub Inspector of Police, Varappuzha Police Station. He recorded Ext.P1 FIS of PW1 and registered Ext.P21 FIR. Ext.P1(a) is the body note of PW1. PW30 is the then Circle Inspector of Police, North Paravur. He took over the investigation on 13/07/2009. Ext.P3 is the inquest report and Ext.P9 is the scene mahazar prepared by him. He seized MO2 sword, MO9 series chappals and blood-stained shirt from the CRL.A 1102/2014 ,CRL.A.131/2015 , CRL.A.1047/2014 & CRL.A.1192/2014 -:16:- crime scene. He arrested A4 on 14/07/2009 at 08.00 P.M. for which Ext.P22 is the arrest memo, Ext.P23 is the custody memo, Ext.P24 is the inspection memo and Ext.P25 is the remand report. Ext.P41 report pertains to the name and address of A1 to A4. On 15/07/2009 at about 10.00 P.M., he arrested A1 to A3 from the upper room of hotel Doha at Seminarippady, Aluva. Ext.P26, P27 and P28 are the respective arrest memos, Exts.P29, P30 and P31 are the respective custody memos and Exts.P32, P33 and P34 are the respective inspection memos of A1 to A3. Ext.P35 is the remand report dated 16/07/2009.Based on Ext.P4(a) disclosure statement of A1, PW30 recovered MO1 knife from the bushy area on the north eastern side of Puthussery bridge for which Ext.P4 is the seizure mahazar. Also, on the basis of Ext.P11(a) disclosure statement of A1, MO10 and MO11 dresses of A1 were recovered as per Ext.P11 mahazar. He had also taken into custody MO12 dhothi of A2. On 16/07/2009, he arrested A5. Ext.P36 is the arrest memo, Ext.P37 is the custody memo and Ext.P38 is the inspection memo. Ext.P39 is the remand report dated 17/07/2009. Ext.P40 is the report incorporating offence under Section 212 against A5. Ext.P42 is the property list. Ext.P43 is the forwarding note for sending the properties for chemical CRL.A 1102/2014 ,CRL.A.131/2015 , CRL.A.1047/2014 & CRL.A.1192/2014 -:17:- examination. Ext.P45 series are the chemical examination reports. Ext.P44 is the application submitted before CJM, Ernakulam for recording statements of CW1, CW9, CW10, CW11 and CW12 under Section 164 of Cr.P.C. Case diary contradictions brought out by the learned Public Prosecutor were proved through him. He also proved Exts.D1 to D6. Ext.P16 is the site plan he obtained from the Village Officer. He completed the investigation and laid the charge sheet.
10. Coming to the first question, there is no dispute to the fact that the deceased herein is Manu aged 22 years, son of PW12 Sasi. Ext.P3 is the inquest report. PW27 is the Doctor who conducted autopsy on the corpse of the deceased. Ext.P19 is the post-mortem certificate issued by him. He deposed that he noted the following ante-mortem injuries on the victim:
"Incised penetrating wound (stab wound) 5.5x2.6 cm seen over the right side of lower chest, obliquely placed with the upper outer end being bluntly cut and lower inner end being sharply cut. The upper outer end was placed 12 cm outer to midline and 26.5 cm below topline of shoulder, the lower inner end was placed 10 cm outer to midline and was placed 121 cm above heel. On approximating the edges, the wound measured 7 cm in length. On dissection, the wound had gone through the chest wall cutting the 6 th and 7th ribs and measured 4.5x0.4 cm and in the same direction as the skin wound and at the lower end of this wound was a downward CRL.A 1102/2014 ,CRL.A.131/2015 , CRL.A.1047/2014 & CRL.A.1192/2014 -:18:- extension measuring 3x0.4 cm (Remark: due to locking of the weapon) underneath, the wound had passed through the diaphragm producing a rend of size 4 cm, passing into the abdominal cavity and penetrated the liver over its top front aspect, transfixing the liver, producing an incised penetrating wound 3.7x0.1 cm, obliquely placed in the same direction as the skin wound and at the lower inner end was a downward extension measuring 1.8x0.1 cm (due to locking movement of the weapon). Further, the wound track exited the lower aspect of the liver and had passed through the pedicle of the right kidney cutting the renal artery and vein, passing downwards and medially cutting the right psoas major muscle and had stopped after striking the lumbar vertebra. The total minimum depth of the wound track from the outer skin wound to its end at the point where it struck the vertebra was 19.5 cm. The wound track was directed downwards, backwards and from right to left. There was approximately 1.5 litres of fluid blood in the right chest cavity and 2 litres of fluid blood in the peritoneal cavity".
11. According to him, the victim died due to massive haemorrhage and exsanguination due to stab injury to the lower aspect of right side of front of chest, injuring the liver and pedicle of the right kidney. He further stated that the said injury could be inflicted using MO1 as weapon of aggression. It can be seen that viscera was not even collected to rule out the possibility of poisoning. Only blood-soaked gauze was sent for chemical examination. However, the facts and circumstance coupled with evidence eyewitnesses and PW27 the Doctor, it is proved beyond CRL.A 1102/2014 ,CRL.A.131/2015 , CRL.A.1047/2014 & CRL.A.1192/2014 -:19:- doubt that Manu died due to the injuries he sustained as already noted above. Trial Court is justified in arriving at that conclusion.
12. Next point to be looked into is whether A1 had caused the injuries on Manu as alleged by the prosecution. It is necessary to peruse the depositions of witnesses especially those who were cited as occurrence witnesses to arrive at a conclusion. PW1 and PW4 are cited as injured eyewitnesses. PW5, PW6 and PW7 are also eyewitnesses to the incident, according to the prosecution. PW3 and PW15 also deposed crucial circumstances that resulted in the death of Manu in the incident.
13. PW1 deposed that he is a resident of Cheriyamthuruth. On 12/07/2009 at 09.00 P.M., himself, Sarathlal (PW4) and Manu (the deceased herein) were sitting and talking near the Anganwady. At that time Joby (A1), Midhun (A2), Divin (A3) and Antony Aji D'silva (A4) came to assault them without any provocation. They were armed with weapons. Divin @ Kuttappi (A3) was holding a sword while Joby (A1) was armed with a long knife. The accused manhandled them. A1 Joby stabbed PW4 Sarathlal. The knife caused a scratch in the abdomen of PW4 Sarathlal. At that time, A2 Midhun kicked down Manu. Thereupon, A1 Joby stabbed Manu below the right chest. Thereafter, A1 came CRL.A 1102/2014 ,CRL.A.131/2015 , CRL.A.1047/2014 & CRL.A.1192/2014 -:20:- to attack him. He defended himself with the left hand and sustained injury on the left wrist. He has a scar on the left wrist. When people gathered, all the four accused ran towards the west. There was light from the electric post at the place of occurrence and with the help of it he saw the incident. They were taken in a boat to Thundathinkadavu and thereafter in a car to the hospital at Koonammavu. As they did not get treatment there, they went to K.M.K. Hospital, North Paravur. They were referred to Government Hospital. Doctor examined Manu at Taluk Head Quarters Hospital and declared him dead. Himself and PW4 were treated at that hospital. According to him, two or three months ago, there was a quarrel between Syam on the one side and Manu and Sarathlal on the other on a girl named Malu. The said Malu was the lover of Shajo, a friend of A1. A case was registered on the said quarrel. On account of the same, the accused guarded enmity towards them. It is his version that A1 used to threaten that he would kill one of them. He identified A1 to A4 before Court. He identified MO1 knife used by A1 to attack them. He also identified MO2 sword allegedly used by A3. He had given Ext.P1 statement to the police. Ext.P2 is the 164 statement given by him to PW28. He identified MO3 mundu and MO4 short worn CRL.A 1102/2014 ,CRL.A.131/2015 , CRL.A.1047/2014 & CRL.A.1192/2014 -:21:- by the deceased at the time of incident. MO5 jeans and MO6 shirt were worn by him. He further identified MO7 shirt and MO8 dhothi worn by PW4 Sarathlal at the time of occurrence. During cross- examination, it is suggested to PW1 that the injury sustained by him was not in the incident as stated by him and that in order to help his friends Manu and PW4 Sarathlal, he created a false story by making use of the injury sustained by him in some other incident and at some other place. It is also suggested that he went to the Government Hospital alone with a plan to be cited as a witness in this case and for that purpose, created a record of wound certificate. Both suggestions were denied by him. Pointing out the different versions of the incident given by PW1 in Ext.P1 FIS, in Ext.P2 statement recorded under Section 164 of Cr.P.C. and before the Court, it is suggested that he had given three different versions as he was not actually present at the scene of occurrence. PW1 denied this suggestion. Regarding the further statement of PW1 to the police about MO1 and MO2 weapons, it is suggested that he had no direct knowledge of MO1 and MO2. PW1 admitted that none of the accused had any personal animosity towards him. It is also suggested that PW5 was not present at the time of incident and that it is a falsehood that she CRL.A 1102/2014 ,CRL.A.131/2015 , CRL.A.1047/2014 & CRL.A.1192/2014 -:22:- pushed PW4, Sarathlal. The said suggestions were denied by PW1.
14. PW4 is also an injured eyewitness. He deposed that while they were sitting at the steps of Anganavady, they saw A1 to A4 walking in front of them twice. Thereafter they came towards them. A2 Midhun was armed with a sword. Accused started a quarrel. Thereafter they caught hold of the sword from the hands of Midhun. A3 and A4 had beaten them. A2 Midhun kicked him. Thereafter, A1 Joby ran towards them from the eastern side and fisted him and PW1 Hariprasad. Thereafter, he took out a knife and tried to stab him. He was pushed away by PW5 Geetha. A1 was threatening them. He sustained a scratch on his abdomen. If he was not pushed away, he would have sustained injury to his abdomen. At that time, A2 Midhun kicked Manu. When Manu fell down, A1 Joby stabbed him on his chest. When people came to the spot, A1 ran towards the west with the knife. A1 had also cut PW1 Hariprasad with the knife and PW1 defended himself and sustained injury on his left wrist. All of them were taken to hospital. He identified MO1 knife used by A1 and MO2 sword which was in the hands of A2 Midhun. He identified the dresses worn by him and PW1 as MO5 to MO8. CRL.A 1102/2014 ,CRL.A.131/2015 , CRL.A.1047/2014 & CRL.A.1192/2014 -:23:- There was a quarrel between Manu and one Syam who is a friend of A1. Due to the same, A1 had animosity towards them. There was a case regarding the said quarrel in which he was one of the accused persons along with Manu, Suneesh and Vishnu. He identified A1 to A4 in Court. Ext.P5 is his statement recorded by PW28 under Section 164 Cr.P.C. During cross-examination, suggestion was put to the witness that he was not present at the spot at the time of occurrence and that he is telling falsehood and that he had not sustained any injury as stated by him. The witness denied the suggestion. It is also suggested that the details of the incident are not stated by PW4 in Ext.P5 statement recorded under Section 164 Cr.P.C. Ext.D2 is marked through him. Joby went to his kochappan's house which was near to the Anganwadi. He further stated that when there was problem with A2, A3 and A4, A1 was not present there. There was a scuffle between the prosecution party and Midhun, Aji and Kuttapi. When the sword was snatched, A1 came there running. After the said scuffle, again there was a fight among them. According to PW4, it was at that time A1 came there running. He stated that it was on seeing the said scuffle, A1 had come there. At the time of scuffle, Manu, Hari, PW4, Midhun, Kuttappi and Aji were present there. He CRL.A 1102/2014 ,CRL.A.131/2015 , CRL.A.1047/2014 & CRL.A.1192/2014 -:24:- affirmed that he had given statement to the Magistrate that a scuffle took place in the beginning and that they snatched the sword. He stated that he did not remember whether he had given a statement to the effect that 1st accused came running from his house and was stabbing Manu. He stated that he had given statement to the Magistrate that himself and Hariprasad tried to pacify the attack but PW4 got stabbed and a cut injury was inflicted on the hand of Hariprasad. He admitted that he had not given a statement to Magistrate to the effect that Geetha (PW5) was present there and that since she had pushed, the stab was not inflicted on him. He also admitted that he stated in Ext.P5 that the reason for the said attack was unknown to him. Joby and others were his friends and were friends of Manu as well. The deposition that Midhun had kicked PW4 is brought out as an omission. Also the statement of PW4 that the 1 st accused came running and had hit PW4 and Hari is proved to be another omission. He admitted that Ext.P5 did not contain a statement to the effect that Midhun had kicked Manu and Manu fell down. The statement "At that time, Manu fell down and Joby came running and stabbed Manu" is admitted to be not given to Magistrate. He stated that the wound in the hand of Hari was caused due to stab CRL.A 1102/2014 ,CRL.A.131/2015 , CRL.A.1047/2014 & CRL.A.1192/2014 -:25:- and he had seen it. During re-examination, he stated that detailed statement was not given to the Magistrate but given to the police. Out of the five accused in Court, four of them assaulted them and that the 5th accused is familiar to him.
15. PW5 Geetha deposed that she witnessed the incident. The incident was on 12/07/2009 at 09.00 P.M. PW1, PW4 and Manu were sitting on the steps in front of the Anganwady. At that time, A2 to A4 assaulted them. While so, A1 rushed to the spot and stabbed Manu below his chest. A1 tried to stab PW1 but PW5 intervened and pacified it and the said stab caused injury on PW1's hand. Before that, A1 tried to stab Sarathlal but PW5 managed to save him and he sustained only a scratch on his stomach. According to PW5, she reached the spot hearing the quarrel. Being stabbed, Manu stood leaning on the compound wall of Joppan. As the shirt was removed she found blood pumping out from the wound. It is her version that Manu fell down by saying "Joby stabbed me." The accused ran away. People gathered there. She saw the incident with the help of street light. According to her, the prosecution party and the accused were friends and later they become enemies. It is on the revenge of the same that A1 and his friends had assaulted Manu, CRL.A 1102/2014 ,CRL.A.131/2015 , CRL.A.1047/2014 & CRL.A.1192/2014 -:26:- PW1 and Sarathlal. It is her version that A1 threatened the prosecution party by saying "I will take you." She identified A1 to A4 in Court. She did not identify A5. She identified the weapon used, dresses worn by the deceased etc. Ext.P6 is the 164 statement given by her to the Magistrate. During cross- examination, she deposed that PW1 is her son-in-law. She heard hue and cry. By the time she reached the spot there was scuffle. She admitted that she had given statement to police to the effect that at the time she had reached the spot, she had seen knife and sword in the hands of Joby and Midhun and the quarrel was getting heated up and there took place a scuffle. She stated that she had not given earlier statement to indicate that she had seen knife and sword with Joby and Midhun. She pleaded loss of memory to the suggestion that she did not have a case earlier that Midhun had kicked Manu and that he had fell down. Her deposition that Sarathlal was pacified by her from stab and that the stab caused scratch on his stomach was brought out to be an omission. To a Court question, she replied that the sword was with Midhun and he was standing there with the sword. In cross, she admitted that she had no such case earlier.
16. PW6 Bindu stated that she had seen the incident and it CRL.A 1102/2014 ,CRL.A.131/2015 , CRL.A.1047/2014 & CRL.A.1192/2014 -:27:- happened on 12/07/2009 at 09.00 P.M., in front of the Anganwadi. She reached the spot hearing noise. Manu, PW1, Sarathlal, Joby, Midhun, Kuttappi and Aji were engaged in scuffle. CW12 Sudheesh pacified them. Thereafter, A1 Joby attempted to stab Kannan (Sarathlal) and PW5 interfered and the said stab caused a scratch on the stomach of Sarathlal. A2 kicked Manu and he fell down. At that time, A1 sat on the body of Manu and forcefully stabbed him on right side of his chest and injured him. PW1 tried to prevent A1. But A1 stabbed PW1 also and he sustained injury on his hand. Thereafter, A1 went towards the western side. A2 to A4 was standing there itself. PW6 scolded A2 to A4 and at that time they left the place. On getting stab injury, Manu leaned towards the compound wall and stood there. To a Court question whether she had seen any other weapon, she stated that she did not. She added that on the next day, a sword was recovered. She went to her house and brought her husband to the spot. He husband and others had taken the injured to the hospital. She identified MO1 knife used by A1. She identified A1 to A4 in Court. She stated that she do not know A5. She identified MO2 also. Ext.P7 is the 164 statement given by her before Magistrate. She stated that in Ext.P7, she gave a statement to the effect that as CRL.A 1102/2014 ,CRL.A.131/2015 , CRL.A.1047/2014 & CRL.A.1192/2014 -:28:- A1 was walking away, he was telling that he would finish one more person. She had seen the incident with the help of street light. During cross-examination, she stated that she knew PW5 Geetha. On the date of incident and at relevant time, she heard heated arguments and foul words. She went to the spot hearing the same. She admitted that she did not have a case in Ext.P7 that A1 had stabbed Kannan and PW5 pacified him. She also admitted that she had not stated earlier that Midhun had kicked Manu and Manu fell down. She also admitted that she did not give a statement to Magistrate to the effect that A1 sat on the chest of Manu and stabbed him with knife. She denied the suggestion that she is giving false evidence.
17. PW7 Subeesh deposed that he is a resident of Chariyamthuruth and he had seen the incident. The incident took place on 12/07/2009 at 09.00 P.M. in front of Anganwadi on the road. He heard noise from there and reached the spot. There he had seen A1 to A4, PW1, Sarathlal and deceased Manu quarrelling. He tried to pacify them. At that time, A2 Midhun kicked Manu and Manu fell down on the road. A1 stabbed Manu with a knife which was on his hand. Manu got injury below the right chest. As PW7 was trying to help Manu to stand up, he CRL.A 1102/2014 ,CRL.A.131/2015 , CRL.A.1047/2014 & CRL.A.1192/2014 -:29:- scrolled towards the wall and sat there leaning to the wall. PW5 Geetha told PW7 that Manu received a stab and asked PW7 to untie Manu's shirt. Manu told him that it was on his foot. The injury was on his chest. Manu fell unconscious. A1 ran towards the west. It is the version of PW7 that he did not notice other accused. People had taken the injured to the hospital in two country boats. Manu was declared dead. He identified MO1 weapon. He also identified all the accused except A5. Ext.P8 is the 164 statement given by him to the Magistrate. In cross- examination, he admitted that he is the first accused in a stab case. PW3 Sunil is his brother and he is second accused in the said stab case. CW9 Sarathlal is a co-accused in the said case. Sasankan, father of Sarath is also an accused in the said case. Umesh (PW15) is also an accused. PW7 stated that there is altogether 12 accused in that case and the said case is a false one. The trial was going on. He admitted that the person who got stab injury in that case is one Mr.Shan. He pleaded ignorance to the suggestion that the said injured Shan is the son of the sister of A1's father. The said incident occurred five months prior to the incident in this case. He denied the suggestion that himself and other witnesses in this case had approached A1 to settle that CRL.A 1102/2014 ,CRL.A.131/2015 , CRL.A.1047/2014 & CRL.A.1192/2014 -:30:- case. He also denied the suggestion that it was due to the animosity for not settling the said case, the prosecution witnesses are deposing falsehood against A1. In Ext.P8, an omission is brought out that PW7 had not stated earlier that Midhun kicked Manu and he fell down. He stated that he reached the spot hearing hue and cry and that he heard "come quick" and "will finish you." Ext.D3 is marked through him.
18. PW3 Sunil deposed that on 12/07/2009 at about 09.00 P.M. he had seen PW1, PW4 and Manu sitting on the steps of the Anganwady and talking. His house is situated on the western side of Cheriyamthuruth. While he got down from the ferry and was walking towards west, he saw A2 Midhun, A3 Kuttappi and A4 Aji. After sometime, he heard a hue and cry. When he went back, he saw Manu lying in front of the Anganwady. He saw A1 Joby running towards west with a knife. There was street light. Then PW5 Geetha told him that Manu was stabbed by A1. He saw A2 to A4 standing there. PW1 had sustained injuries on his left hand. There was a scratch on the abdomen of PW4 Sarathlal. People took the injured to hospital in boat. Doctor at Government hospital declared Manu as dead. It is the version of PW3 that there was a quarrel between the accused and the deceased CRL.A 1102/2014 ,CRL.A.131/2015 , CRL.A.1047/2014 & CRL.A.1192/2014 -:31:- regarding a girl. Manu had quarrelled with a friend of A1. Thereafter there was animosity between A1 and the deceased. It was due to the said animosity that A1 stabbed Manu. He identified MO1 as the weapon found on the hands of A1. He identified MO3 dress of the deceased. In cross-examination, he deposed that he did not have direct knowledge about the reason for the animosity between A1 and the deceased. Ext.D1 is marked. He denied the suggestion that he had not seen A1 going towards west with MO1.
19. PW15 Umesh deposed that on 12/07/2009 at about 09.00 P.M., he heard noise near Anganwady. When he went there, he saw A1 running towards the west holding a knife. He identified MO1 knife and A1 Joby in Court. He saw Manu lying on the ground and blood was flowing out. He saw A2, A3 and A4 at the place of occurrence. They walked towards west. He identified A2 to A4 in Court. According to him, there was quarrel between Manu and his friends and Joby and his friends. It was on account of the said animosity Joby stabbed Manu. Joby used to challenge Manu that he would 'give him a work.' When he reached the place, he had seen PW5 Geetha and PW6 Bindu there. He was told by them that Manu was stabbed by Joby. He helped to take the injured to CRL.A 1102/2014 ,CRL.A.131/2015 , CRL.A.1047/2014 & CRL.A.1192/2014 -:32:- hospital. PW1 and PW4 had also sustained injury. There was injury on the left hand of PW1 and PW4 had a scratch on his abdomen. During cross-examination, he stated that he is the 12 th accused in S.C. No. 13/2010. PW7 and PW2 also are accused in the said case. The allegation is that one Shan was stabbed. He pleaded ignorance to the suggestion of the defence that the said Shan is the son of the sister of A1's father. He denied the suggestion that they approached A1 for settling the said case. He further stated that A1 was his friend but then they are not talking each other. PW1, PW4 and Sethu was there in the country boat in which Manu was taken to hospital. The said boat was rowed by PW15. Ext.D5 is his previous statement showing that initially he stated that Manu alone was taken in the country boat rowed by him. The statement made by him during chief examination that PW5 and PW6 had told him that it was A1 who stabbed Manu was proved to be an omission. There is no mention in the previous statement of PW15 as to the quarrel between A1 and prosecution party. He stated that he did not know Shan. The alleged incident of S.C. No.13/10 took place at Chariyamthuruth. A2 to A4 are residents of a colony at Chariyamthuruth. PW15 is residing in a Harijan colony.
CRL.A 1102/2014 ,CRL.A.131/2015 , CRL.A.1047/2014 & CRL.A.1192/2014 -:33:-
20. The evidence on record would show that Manu sustained injuries at the hands of A1. MO1 is the knife used by A1 to inflict the fatal injury on Manu. PW1, PW4, PW5, PW6 and PW7 deposed the same though there are some discrepancy in their versions. It is also brought in evidence that A1 was found running towards the west with MO1 in his hands. The said version of the above witnesses is corroborated by the testimonies of PW3 and PW15. The Court below is justified in arriving at the conclusion that it was A1 Joby who stabbed Manu using MO1 as weapon of offence.
21. Next aspect to be looked into is whether the act of A1 would come within any of the exceptions enumerated under Section 300 of I.P.C. On an analysis of the evidence, we have already arrived at a finding that the first accused had committed the fatal injuries on the deceased. PW1, PW4, PW5, PW6 and PW7 are eyewitnesses to the incident, among which, according to the prosecution, PW1 and PW4 were the injured eyewitnesses. PW1 deposed that while all of them were sitting near Anganwadi, the accused came with deadly weapons and started assaulting them and in the process, A2 kicked down Manu and A1 stabbed him below the right chest. A1 had also attacked PW1 and PW4, CRL.A 1102/2014 ,CRL.A.131/2015 , CRL.A.1047/2014 & CRL.A.1192/2014 -:34:- but PW1 suffered only a minor injury. PW4 and PW5 deposed about the very same incident. According to PW5, A1 rushed to the spot and stabbed Manu below his chest and A1 tried to stab PW1 and PW4, but they managed to avoid the same. PW6's version was that A1 attempted to stab PW4 and in the meantime, Manu kicked A2 and when he fell down, A1 sat on the body of Manu and stabbed on the right side of his chest. When PW1 attempted to interfere, A1 brandished the knife and PW1 suffered injury. PW7 also deposed that when Midhun kicked Manu and he fell down, A1 stabbed Manu with a knife. PW3, yet another witness, saw A1 running towards west with a knife after causing the injury on Manu. PW15 also deposed that he saw Manu running towards west with a knife. Despite the discrepancies in the evidence that was pointed out, It is apparent from the aforesaid evidence that there appears to have been a group fight. There was a quarrel with two groups and in the process when Manu fell down, A1 stabbed Manu with a knife. The contention that the incident occurred on the spur of a moment without premeditation and in a sudden fight in the heat of passion cannot be accepted nor can it be contended that there was grave and sudden provocation from the side of the victim or any other person. It cannot also be CRL.A 1102/2014 ,CRL.A.131/2015 , CRL.A.1047/2014 & CRL.A.1192/2014 -:35:- stated that he was defending himself. All the witnesses have clearly spoken to the fact that A1 came with a knife and he attempted to stab PW1 and PW4. When Manu fell down, he sat on his chest and inflicted a fatal blow on his chest and the said injury was the cause of death. It is true that there was a scuffle, but, the involvement of A1 with the knife in his hand is sufficient proof to establish a deliberate intention to commit murder. Otherwise, there was no reason why he should inflict such a grievous hurt on Manu especially when he fell down and the injury was sufficient enough to cause death. Hence, we do not think that the first accused can get any benefit of the Exceptions enumerated u/s 300 of I.P.C. and the act clearly amounts to murder punishable u/s 302 of I.P.C.
22. Accused 1 to 4 were also convicted and sentenced to undergo rigorous imprisonment for 10 years each for the offence u/s 307 r/w S.34 of I.P.C. Of course, there is some evidence to indicate that A1 had brandished the knife against PW1 and PW4. But PW1 sustained only a minor injury as those were warded off. The wound certificate of PW1 is produced as Ext.P14. No other wound certificate is seen produced in the case. It would show that he had only a lacerated wound curved in shape. There is CRL.A 1102/2014 ,CRL.A.131/2015 , CRL.A.1047/2014 & CRL.A.1192/2014 -:36:- also contradiction in the evidence of the witnesses as to whether accused 2 to 4 were holding any weapon. Court below however found from the evidence of PW1 that either A2 or A3 was holding MO2 sword. It is also found that there are contradictions as to who was actually having the sword and certain other particulars as far as A2 to A4 are concerned. Even in respect of the first accused, from the available evidence, we are unable to arrive at a conclusion that he had attempted to commit murder of PW1 or PW4. It is apparent from the acts committed by him that his victim was Manu and A1 had inflicted the fatal injury on him. Therefore, the accused cannot be found guilty for the offence u/s 307 r/w S.34 of I.P.C.
23. Next important question to be decided is whether Section 34 would attract in the facts and circumstances of this case as far as accused/appellants are concerned. Court below already found that A2 to A4 were not guilty for offence under Sections 323 and 324 of IPC stating that no corresponding injuries like contusion or abrasion are noted on Manu. Section 34 of I.P.C. reads as follows:-
"34. Acts done by several persons in furtherance of common intention.--When a criminal act is done by several persons in furtherance of the common intention of all, each of such CRL.A 1102/2014 ,CRL.A.131/2015 , CRL.A.1047/2014 & CRL.A.1192/2014 -:37:- persons is liable for that act in the same manner as if it were done by him alone".
Section 34 puts the accused in the peril of criminal vicarious liability when a criminal act is done by two or more persons in furtherance of their common intention. Each of the persons so involved in sharing common intention is liable for the acts done by any of them. In the case at hand, even according to the prosecution, A2 to A4 were engaged in scuffle with Manu, PW1 and PW4 in front of Anganwadi. A1 was not present there. A1 came to the spot from his uncle's house with MO1 knife and inflicted injury on Manu. There is nothing on record to indicate that there was any prior meeting of minds between A1 and A2 to A4 to commit the crime. Needless to say, there is nothing on record to show that there was any premeditation on the part of A2 to A4 to commit murder of Manu. No motive is shown against A2 to A4 to commit the murder of Manu. Evidence clearly shows that A1 inflicted the injury on Manu. As far as possession of weapon MO2 is concerned, there are different versions coming forth from prosecution witnesses. That apart, the sword was not recovered. It was seized from open ground. Admittedly, there was a scuffle. The genesis of the incident is also not brought out on record. The subsequent conduct of A2 to A4 also throw light to CRL.A 1102/2014 ,CRL.A.131/2015 , CRL.A.1047/2014 & CRL.A.1192/2014 -:38:- the correctness of the above finding. PW6 deposed in her chief examination that after stabbing Manu, A1 went towards the western side. A2 to A4 were standing there itself. She scolded A2 to A4 and at that time they left the place. PW3 deposed that he saw Manu lying in front of the Anganwady and A1 Joby running towards west with a knife. He saw A2 to A4 standing there. PW15 stated that he saw A1 running towards the west holding a knife and Manu lying on the ground and blood was flowing out. He saw A2, A3 and A4 at the place of occurrence. They (A2 to A4) walked towards west. Evidence did not reveal any common intention to commit murder or attempt to murder as found by the trial Court. Considering all these aspects, in the facts and circumstances of the case at hand, we are of the view that the Court below erred in finding A2 to A4 guilty for offence under Section 302 read with Section 34 of I.P.C. and also A1 to A4 for offence under Section 307 read with Section 34 of I.P.C.
In the result, these appeals are disposed of as under:-
(i) Crl.Appeal No.131/2015 is partly allowed. We confirm the conviction and sentence of the 1 st accused for offence u/s 302 of I.P.C. He is acquitted for having committed the offence under Section 307 r/w S.34 of I.P.C.
CRL.A 1102/2014 ,CRL.A.131/2015 , CRL.A.1047/2014 & CRL.A.1192/2014 -:39:-
(ii) Crl.Appeal Nos. 1102/2014, 1047/2014 & 1192/2014:-
Accused 2 to 4 are acquitted for the offence u/s 302 r/w S.34 of I.P.C. and Section 307 r/w S.34 of I.P.C. and the sentence against them is hereby set aside. In respect of the accused who are already on bail, their bail bond shall stand cancelled.
Sd/-
A.M.SHAFFIQUE JUDGE Sd/-
ASHOK MENON
Rp //True Copy// JUDGE
PS to Judge