Joseph Chacko @ Joy vs State Of Kerala on 27 February, 2009

[Cites 12, Cited by 0]

Kerala High Court

Joseph Chacko @ Joy vs State Of Kerala on 27 February, 2009

The accused in Sessions Case No.27/05 of the court of Additional Sessions court, Ad hoc-II, Alappuzha, who stands convicted for the offence under sections 341, 323 and 302 r/w 34 of IPC and each of whom sentenced to undergo simple imprisonment for one month for the offence under section 341 of IPC r/w 34 of IPC, simple imprisonment for 1 year under section 323 r/w 34 of IPC and imprisonment for life and to pay fine of `10,000/- each, and in default to undergo rigorous imprisonment for 3 months each under section 302 r/w 34 of IPC, have come up in appeal.

2. The first appellant is the younger brother of the 2nd Crl.A.No.914 of 2009 2 appellant. Deceased Jose Mon, a poultry merchant was their neighbour. The allegation against the appellants is the murder of the deceased in connection with a dispute for a paltry amount of `5/-, which was allegedly due from the 2nd appellant to the deceased in the transaction in which the 2nd appellant had purchased a chicken from the deceased.

3. On 8.7.2002 at about 4 p.m., there occurred a wordy altercation between the 2nd appellant and the deceased in connection with the aforesaid dispute, while they were sitting on the bench placed at the verandah of the shop of PW6. When the wordy altercation became severe, PW6 intervened and separated them and sent them away. The same incident was followed by another incident in between the deceased on the one part and the appellants on the other part ; that too just near the shop of PW6. The deceased after the wordy altercation with the appellants in connection with the dispute, on his demand for `5/- due to Crl.A.No.914 of 2009 3 him from the 2nd appellant, inflicted a blow on the 2nd appellant, which culminated in a severe quarrel, in which the deceased was pushed down to the ground and was severely beaten by both the appellants. The local people intervened, separated them and sent them away. Even though the appellants went away, the deceased remained there by slanting on a coconut tree just near the bathing ghat situated near the shop and residence of PW6. Evidently, the deceased wanted to take his bath as he had put oil on his head.

4. While so, at about 8.45 p.m., the 1st appellant came over there and simply went to the shop of PW6, purchased a cigarette and came back to the place where the deceased was standing, after lighting the cigarette. The 1st appellant attempted to stab the deceased with MO1 knife; however PW2 who was there, intervened and warded it off, and thereby the stab did not fell on the deceased. By that time, A2 came over there and severely beat on the back of the Crl.A.No.914 of 2009 4 neck of the deceased with his hand and thereby the deceased fell down. When he got up, the 2nd appellant forcibly caught hold of the deceased and stopped him by locking both his hands from behind, thereby enabling the first appellant to stab the deceased. Swiftly, the 1st appellant inflicted two stabs just above the abdomen of the deceased with MO1 knife. Blood spouted and the deceased was about to collapse by leaning forward, thereby the 2nd appellant released him from his clutches. Then the 1st appellant indiscriminately inflicted a series of stab injuries on the back of the head and the back of the deceased with MO1 knife. The deceased, on getting the stabs, went forward for 2-3 steps and collapsed near the shop. Immediately, he was taken by PWs.2 and 3 by the goods autorickshaw of PW2 to a hospital at the place called Pacha, from where he was immediately referred to the Medical College Hospital, Alappuzha. He succumbed to the injuries, on the way to the hospital. On reaching the Crl.A.No.914 of 2009 5 Medical College Hospital, Alappuzha, the doctor declared his death.

5. On the basis of Ext.P1 FIS furnished by PW1, who is a close relative of the deceased, before PW12 Sub Inspector, Edathua Police Station, PW12 registered Crime No.82/02 of Edathua Police Station through Ext.P6 FIR.

6. The investigation was taken over by PW15 Circle Inspector of Police, Mannar. On 9.7.2002 itself, he reached the Medical College Hospital, Alappuzha, and conducted the inquest of the dead body and prepared Ext.P4 inquest report and sent the body for postmortem examination. On the same day at 3 p.m., he reached the scene of occurrence and prepared Ext.P2 scene mahazar. He identified the scene of occurrence with the help of PW6. Thereafter, he proceeded to the house of the 1st appellant, reached there by 4.30 p.m., conducted a search and seized MO2 lungi worn by the 1st appellant at the time of the incident, through Ext.P8 search memo. Even though the house of Crl.A.No.914 of 2009 6 the 2nd appellant was also searched, any incriminating materials were not seized from the house.

7. On 18.7.2002 at 5 a.m., PW15 placed the 1st appellant under arrest from the KSRTC bus stand Alappuzha and also placed the 2nd appellant under arrest at 5.45 a.m. from Thyparambil house situated near Pankaj Theatre, Alappuzha. On the basis of Ext.P3(a) information furnished by the 1st appellant and as laid by him, he reached the property behind the house of the 2nd appellant and seized MO1 knife taken and produced by the 1st appellant which was concealed among the bunches of leaves of a coconut sapling, through Ext.P3 mahazar. He completed the investigation. PW14 who was the successor officer to PW15, verified the investigation and filed the final report.

8. On the side of the prosecution, PWs.1 to 17 were examined and Exts.P1 to P7 documents were marked, MOs.1 and 2 were identified. After closing the evidence of Crl.A.No.914 of 2009 7 the prosecution, the appellants/accused were examined under section 313 of Cr.P.C. The appellants denied the incriminating circumstances appeared in the evidence against them and contended that they are innocent in this case and that the incident, in which the death of the deceased had occurred, was inside the house of PW6 situated near the place of the scene of occurrence, as the deceased had used to visit the said house during odd hours at night. Even though the prosecution and the appellants were heard, the court below could not identify any ground to acquit the appellants under section 232 of Cr.P.C. and thereby the appellants were called upon to enter on their defence. On the side of the appellants, Dr.Ashok Kumar who was the Lecturer in department of Medicine, Medical College, Alappuzha, was examined as DW1. Again the prosecution and the accused were heard. The court below found the appellants guilty, convicted them thereunder, and sentenced them as aforesaid.

Crl.A.No.914 of 2009 8

9. We heard Adv.Sri.G.Priyadarsan Thampi, the learned counsel for the appellants and Sri.Gikku Jacob, the learned Public Prosecutor, for the State.

10. Learned counsel for the appellants has argued only three points, namely, (1) the case as narrated by the prosecution is a concocted one and the prosecution has deliberately suppressed the real incident, ie., mainly with regard to the time of occurrence as well as the time of death of the deceased, (2) there cannot be any intention on the part of the appellants to do away with the deceased and that the prosecution has failed to prove any intention on the part of the appellants in order to canvass a conviction under section 302 of IPC, and (3) that, even if the incident is admitted, there is no evidence to show any common intention from the part of the appellants to carry out the offence in question and at any stretch of imagination the 2nd appellant cannot be dragged into the incident with vicarious liability under section 34 of IPC. Crl.A.No.914 of 2009 9

11. We have heard the matter in extenso. The learned counsel for the appellants has taken us through the entire deposition of the witnesses and also the contents of the documents in this case. Admittedly, PW1 is not an eye witness to the incident. He is the younger brother of the father of the deceased. According to him, he came to know about the incident during the night on 8.7.2002 at about 8.30 p.m. while he was about to sleep. Immediately, he rushed to the spot and saw blood at the scene of occurrence. He came to know that the deceased was taken to the hospital and he died on the way to the Medical College Hospital, Alappuzha. He came to know that the deceased was stabbed by the appellants and thereby he died. He went to Edathua Police Station and reached there during the mid night and furnished Ext.P1 FIS before PW12.

12. The prosecution is relying on the evidence of PWs.2 to 7 to prove the occurrence. PW2 is an Crl.A.No.914 of 2009 10 autorickshaw driver, who is the younger brother of PW6. According to him, on 8.7.2002 after 8.15 p.m., while he was having supper, he heard a tumult from the courtyard of the house. Supper was being provided to him by PW4, who is the wife of his elder brother, PW6. Immediately, he came out of his house and saw the deceased standing by slanting on a coconut tree just near the bathing ghat near to his house, ie., at the western side of the road. He could see PW5 there. From PW5, he came to know that there occurred a quarrel between the deceased on the one side and the appellants on the other side, and the deceased was beaten by the appellants. While so, he could see A1 coming from south of his house and passing through courtyard of his (PW2's) house and going to the shop of PW6 for purchasing cigarette. PW5 also went behind the first appellant. Then the first appellant came back by lighting a cigarette and approached the deceased and asked whether his brother the 2nd appellant had owed any money to him. Crl.A.No.914 of 2009 11 When the deceased answered in the affirmative, immediately, the 1st appellant stabbed towards the deceased by using MO1 knife. PW2 intervened and warded it off, thereby the deceased did not sustain any injury. Immediately, he could see the 2nd appellant also coming from south and on approaching the deceased, the 2nd appellant beat on the back of neck of the deceased with his hand, thereby the deceased fell down at the courtyard. When he got up, the 2nd appellant forcibly caught hold of the deceased from behind, by locking both the hands of the deceased and stopped the deceased thereby facilitating the 1st appellant to inflict stab injury at the front portion of the body of the deceased. Immediately, the 1st appellant by catching on the left shoulder of the deceased inflicted two stabs on the body of the deceased. On getting stabs on the front portion of the body of the deceased, the deceased leaned forward. At that time, the 2nd appellant released the deceased from his clutches. Then the 1st appellant again Crl.A.No.914 of 2009 12 inflicted stabs on the back of the deceased with MO1 knife. The deceased who collapsed, got up, went forward for some distance and again collapsed. The deceased uttered, "Joy has stabbed me". The persons who gathered there took the deceased. By that time, the appellants ran away from the spot towards south. At that time also, the knife was in the hand of the 1st appellant.

13. According to PW2, the deceased was taken in his goods autorickshaw to Lourd Matha Hospital at Pacha, from where he was immediately referred to the Medical College Hospital, Alappuzha. He was taken to the Medical College Hospital, Alappuzha by an ambulance ; but prior to their reaching the hospital, the deceased died. PW2 identified MO1 as the knife which was made use of by the 1st appellant to inflict stab injuries on the deceased. He identified MO2 as the lungi that was worn by the 1st appellant at the time of incident. According to PW2, there was sufficient light in his house as well as at the courtyard Crl.A.No.914 of 2009 13 and the incident was clearly visible. Even though PW2 was subjected to searching cross examination at length, we do not find anything in order to disbelieve or discredit his testimony.

14. PW3 is also one of the relatives of the deceased. It has come out that the father of PW3 and grandfather of the deceased are brothers. PW3 has given the very same version as given by PW2 regarding the incident occurred at 8.45 p.m., in which the deceased was beaten by the 2nd appellant and caught hold of by the 2nd appellant and also stabbed by the 1st appellant. His versions regarding the said incident clearly corroborate the versions of PW2 in all the material particulars. According to PW3 also, there was sufficient light and thereby he could clearly see the incident. In the cross examination of PW3 also, we do not find anything in order to shake the credibility of PW3. We find that the versions of PW3 are believable.

15. PW4 Ancy is the wife of PW6. According to her, Crl.A.No.914 of 2009 14 he heard a tumult from outside while she was serving supper to PW2, and on hearing the quarrel, PW2 went outside. Thereafter, she washed the vessels and by 8.45 p.m., she also came out and looked. Then, she could see the 2nd appellant rush towards the deceased and beating on the back of the neck of the deceased. On getting the slap, the deceased fell down. Regarding the subsequent incident, she has given the very same version as narrated by PW2 and PW3. According to her, she could see blood spurting from the stab injuries sustained on the front portion of the body of the deceased after the stabs and it was at that time, the 2nd appellant released the deceased from his clutches. According to PW4 also, after the incident, both the accused had ran away from the spot towards the south and at that time, MO1 knife was in the hand of the 1st appellant. PWs.2, 3 as well as PW4 have clearly identified MO1 as the knife used by the 1st appellant to stab the deceased. Even though PW4 was also subjected to searching cross Crl.A.No.914 of 2009 15 examination at length, nothing could be brought out in order to impeach her credit or impair her credibility.

16. PW5 is not related to the deceased or to the accused. According to him, he had been constructing a house during the period of incident near that place. So, he had to pass through the road lying in front of the said house as well as the shop. On the date of the incident, while he was passing through that road at about 8.30 p.m., he could see the deceased beating the 2nd appellant. On seeing that, he stopped his vehicle and went towards them. By that time, the deceased was severely beaten by both the appellants. The deceased was lying on the ground and both the appellants were seen sitting on the deceased and beating him black and blue. Even though he along with others had directed the deceased to go away from there, the deceased did not care to go away and he stood there by slanting on a coconut tree near the bathing ghat. Both the appellants went away. He could see PW2 also coming to Crl.A.No.914 of 2009 16 the deceased and telling him to go away. By that time, he could see the 1st appellant coming to the shop for purchasing cigarette. While he was standing there, he could see the 1st appellant going away from the shop towards the deceased, by lighting a cigarette. While PW5 was standing at the shop, he could hear the sound of a tumult and thereby he came out and looked. He could see MO1 blood stained knife in the hand of the 1st appellant and also the blood oozing downwards from the southern wall of the shop. There, he could see the deceased lying with stab injuries just near the shop. He asked PW2 to bring the goods autorickshaw. He along with PWs.2 and 3, took the deceased to the goods autorickshaw of PW2. The remaining versions regarding the incident are as narrated by the other witnesses. In the cross examination of PW5 also, we do not find anything to impair his credibility or to impeach his credit.

17. PW6 has narrated the incident occurred at 4 p.m. Crl.A.No.914 of 2009 17 at the verandah of his shop on the date of the incident itself. The deceased and the 2nd appellant were sitting on a bench at the verandah of the shop and they had entered in a wordy altercation regarding the amount to be paid by the 2nd appellant to the deceased. When the wordy altercation resulted in push and pull, PW6 intervened, separated them and sent them away from his shop. Thereafter, at about 8.15 p.m., again the 2nd appellant came and sat on the bench at the verandah of his shop. The deceased came that way after putting oil on his head for taking bath, with a bathing towel, and again, another wordy altercation ensued between the parties, which culminated in a push and pull. He separated them and sent them away from the shop and in order to avert further untoward incidents at his shop, PW6 started closing his shop from inside. While so, he heard a tumult from the courtyard of the nearby house. When he went over there, he could see the appellants were being separated by the people gathered there. From the Crl.A.No.914 of 2009 18 persons standing there, he came to know that the deceased had slapped the 2nd appellant and thereafter the deceased was beaten by the appellants. Even though all of them were directed to go away from there, the deceased remained there and the appellants went away. Again, PW6 went back to his shop and entered inside the shop. After some time, the 1st appellant came over there at his shop and purchased cigarette from him. While he was giving cigarette to the 1st appellant, PW5 also came over there for purchasing cigarette. With the cigarette, the 1st appellant went away from there. Immediately, he could hear a tumult from the southern side. When he came out of the shop, he could see the first appellant standing at the courtyard with MO1 knife in his hand, and the 2nd appellant was also standing near the 1st appellant. He could see the deceased in a miserable state who was supported by other people to stand and blood was oozing from the injuries of the body of the deceased. He could see MO1 knife in the hand of the Crl.A.No.914 of 2009 19 1st appellant. The deceased was taken to the hospital and by that time, the appellants went away from there. According to him, the police came during night at the scene of occurrence and on the next day, he pointed out the scene of occurrence to PW15 for preparing the scene mahazar. On going through the entire evidence adduced by PW6, we do not find anything to disbelieve the versions of PW6. All his versions are quite natural and his versions corroborate the versions of PWs.2 to 5.

18. PW7 is none other than the mother of the deceased. According to her, two days back to the death of the deceased, there occurred a dispute between the deceased and the 2nd appellant regarding the amount to be paid by the 2nd appellant to the deceased, towards the purchase of chicken. The said dispute was followed by a wordy altercation, which culminated in the death of her son. According to her, while she was offering her prayers during 8.45 p.m. on the date of incident, she could hear the Crl.A.No.914 of 2009 20 sound of tumult and also cries. When she looked out, she could see the 1st appellant along with the 2nd appellant running towards the house of the appellants and she could see MO1 knife in the hand of the 1st appellant. When she reached the spot, she could see her son in a miserable state after sustaining injuries. The deceased was not capable of speaking.

19. PW8 has proved Ext.P2 scene mahazar. PW10 has proved Ext.P4 inquest report.

20. According to PW15, the 1st appellant when questioned, furnished Ext.P3(a) information as follows :

"I have placed the knife among the coconut leaves in the coconut sapling situated at the northern side of the house of my elder brother Kunjumon. I shall take it and produce if I am taken there."

Based on Ext.P3(a) information and as laid by the 1st appellant, PW15 reached the spot. The 1st appellant took the knife from the said place, at which it was hidden and Crl.A.No.914 of 2009 21 handed over it to PW15, which PW15 seized through Ext.P3 mahazar. PW9 is one of the attestors to Ext.P3 mahazar. According to him, he saw the 1st appellant taking out MO1 knife that wrapped in a newspaper, from among the coconut leaves of the coconut sapling and handing it over to PW15. Both PWs.15 and 9 have identified MO1 and also the paper with which it was wrapped. The said paper is marked as Ext.P15. On going through Ext.P3(a), it is evident that it contains the authorship of concealment and it qualifies all the ingredients required for an information admissible in evidence under Section 27 of the Indian Evidence Act.

21. PW11 Village Officer has prepared Ext.P5 plan in respect of the scene of occurrence. PW12 has proved the registration of the crime. According to PW12, he made arrangements for scene guard during the night by about 1o' Clock.

22. It was PW16 who conducted the autopsy of the Crl.A.No.914 of 2009 22 deceased. PW16 was working as lecturer in Forensic Medicine, Medical College, Alappuzha. She conducted the autopsy between 2.30 and 3.45 p.m. on 9.7.2002 and prepared and issued Ext.P16 post mortem certificate. She has noted the following ante mortem injuries on the body of the deceased :

"1. Incised penetrating wound 3x1 cm., obliquely placed on the left side of front of chest. Its upper outer end 31 cm. below outer end of collar bone. The lower inner end was 13 cm to the left of mid line and was sharply cut. The outer end of the wound showed splitting of tissues. It was directed downwards, backwards and to the right. It has cut the lower attachment of diaphragm at the level of 9th intercostal space entered into the abdominal cavity, transfixed the stomach, punctured the omentum and terminated by cutting the mesenteric vessels. The total minimum depth was 12 cms.

2. Incised wound 1.5x0.8 cm oblique on the right side of front of chest. Its outer lower end 15.5 cm. below right nipple end was sharply cut and the inner upper end was 6 cm to the right of mid line and was blunt.

3. Incised wound 1.5x0.5 cm. obliquely placed on the left side of chest. Its inner lower end 19 cm below the axilla and was sharply cut and its other end was blunt.

Crl.A.No.914 of 2009 23

4. Incised penetrating wound 3x0.9 cm. obliquely placed on the left side of back of chest. Its lower inner end 30 cm below the root of neck and its upper outer end 8.5 cm to the left of mid line and was sharply cut. The other end was blunt. The wound entered into the abdominal cavity and terminated by cutting the Aorta above the openings of renal arteries. The wound was directed forwards, downwards and to the right. The minimum possible depth was 9.5 cm. Tissues around the kidneys showed collection of blood.

5. Skin deep incised wound 1.2 cm on the left side of the back 10 cm to the left of mid line and 9 cm above the injury number 4.

6. Abrasion 1.6x0.8 cm on the back of left side of chest 18 cm below the level of root of neck 13.5 cm to the left of mid line.

7. Incised wound 4.5x0.8 cm bone deep vertically placed on the right side of back of head. The lower end was 18 cm above the level of root of neck and 4 cm to the right of mid line. Scalp showed contusion of size 1.5x1 cm. The skull, brain and its coverings were intact."

Her opinion as to the cause of death of the deceased is that, deceased died due to penetrating injuries sustained, ie., injury nos.1 and 4 noted in Ext.P16. According to her, all Crl.A.No.914 of 2009 24 the above injuries could be caused by MO1 or by a similar weapon. On going through the nature of the ante mortem injuries, it can be seen that injury no.4 is an injury, which cut the Aorta above the openings of renal arteries. Much discussion is not required to conclude that the said injury is necessarily fatal. Injury no.1 is also a fatal one. There is no challenge regarding the cause of death of the deceased; whereas, the challenge is only with regard to the cause of injuries. When the cause of death is not in dispute, there is absolutely nothing to disbelieve the versions of PW16 and the contents of Ext.P16. There is no reason to have a different opinion than the one expressed by PW16 as to the cause of death of the deceased. It stands proved that the deceased died on account of injury nos.1 and 4 noted in Ext.P16, and that the death is homicidal.

23. Learned counsel for the appellants has pointed out that as per the versions of PW16 in cross examination, the probable time of death can be between 8.30 a.m. on Crl.A.No.914 of 2009 25 9.7.2002 and 8.30 p.m. on 8.7.2002. In cross examination, PW16 has stated in evidence that she could not say the exact time of death but it could be approximately 18 hrs. prior to the postmortem examination. According to the learned counsel for the appellants, in the light of the evidence adduced of PW16, the time of death should be prior to 8.30 p.m. and not after 8.45 p.m. When the opinion expressed by PW16 regarding the probable time of death is admittedly an opinion of approximate time and not the exact time, the difference of 15 minutes is inconsequential.

24. DW1 was examined by the defence in order to prove that even in a medico-legal case, wherein the deceased was brought dead at the hospital, the concerned doctor should have prepared a wound certificate. Here, in this particular case, no such wound certificate was prepared. At the same time, it will not militate against the prosecution case when there is direct evidence which is enough and more. Further the presence of injuries on the Crl.A.No.914 of 2009 26 body of the deceased, as well as the cause of death are not in challenge. Therefore, the evidence of DW1 does not serve any purpose at all.

25. Learned counsel for the appellants has invited our intention to decision in Pandurang and others Vs. State of Hyderabad (AIR 1955 SC 216), relating to the applicability and scope, as well as the nature of evidence required regarding the prior concert in order to apply section 34 of IPC. In the said decision, it was held, "In the case of S.34 it is well established that a common intention presupposes prior concert. It requires a pre- arranged plan because 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 them all. Accordingly there must have been a prior meeting of minds. Several persons can simultaneously attack a man and each can have the same intention, namely the intention to kill, and each can individually inflict a separate fatal blow and yet none would have the common intention required by the section because there was no prior meeting of minds to form a pre-arranged plan. In a case like that, each would be individually liable for whatever injury he caused but none could be vicariously convicted for the act of any of the others ; & Crl.A.No.914 of 2009 27 if the prosecution cannot prove that his separate blow was a fatal one he cannot be convicted of the murder however clearly an intention to kill could be proved in his case. The partition which divides their bounds is often very thin ; nevertheless, the distinction is real and substantial, and if overlooked will result in miscarriage of justice."

26. Further, our attention has been invited to the decision in Sheoram Singh and another Vs. State of U.P. (AIR 1972 S C 2555), wherein it was held, "For conviction of an accused for a specific act of violence by force of Section 34 there must be direct evidence of his actual participation in that particular act of violence. Where the particular act of violence was the direct result of firing by a particular accused and the common intention of the assembly was not to commit that particular act and there was no evidence to show that common intention to commit that particular act had developed during the occurrence, conviction of the other accused for the act actually committed was not proper, especially when the other accused forming part of the unlawful assembly were absolved of that charge on the ground of no evidence to connect them with the act was available."

27. According to the learned counsel for the appellants, it was held in State of U.P. Vs. Rohan Singh Crl.A.No.914 of 2009 28 and another (1996 Crl.L.J.2884 [SC]) that, "Section 34 of IPC can be applied only if the accused shared common intention and not where the shared only similar intention". In one of the decisions noted supra, the incident which resulted in the death of the deceased had occurred on account of firing. Only one of the accused could fire ; Whereas the other accused were also convicted for the offence under section 302 of IPC with the aid of section 34 of IPC. In that case, it was held that there was no participation in the act of causing death by the other accused persons and therefore, they could not be dragged with the aid of section 34 of IPC.

28. Our attention was also invited to the decision in Chhotu Vs. State of Maharashtra (AIR [SC]-1997-0- 3501), wherein it was held that, in a case wherein the 4th accused was armed with a knife but he did not caused any injuries at all on the body of the deceased ; whereas the other 55 incised injuries were caused by the other accused Crl.A.No.914 of 2009 29 by using knife on the body of the deceased. In that case, it was held that the 4th accused, who was only an onlooker who had no participation in the incident could not be dragged in with vicarious liability under section 34 of IPC.

29. The facts and circumstances of the case in hand are not similar to the facts and circumstances involved in the cases relating to the decisions noted supra. In this particular case, there is clear and cogent evidence to prove that there was meeting of minds between the 1st appellant and the 2nd appellant. Prior to the incident, which resulted in the death of the deceased, there had occurred another incident wherein the deceased was beaten by the appellants. Then they went away. Thereafter, the 1st appellant came and under the guise of purchasing cigarette, he simply went to the shop of PW6, purchased a cigarette and came back towards the deceased by lighting the cigarette. When he attempted to inflict a stab on the deceased at first, it was warded off by PW2. Immediately, Crl.A.No.914 of 2009 30 the 2nd appellant came over there, by rushing to the scene from his house and slapped the deceased on the back of his neck, by which the deceased fell down. When he rose to his feet, the 2nd appellant forcibly caught hold of the deceased and stopped him by locking both his hands from behind and paved way to the 1st appellant to inflict stab on the front of the body of the deceased. The 1st appellant could inflict stab injuries on the body of the deceased on the front part, which ultimately resulted in the death of the deceased. On going through the facts and circumstances of the case and the incident, as clearly proved by all the occurrence witnesses, we find that there was proper presence and participation of the 2nd appellant also in the incident which resulted in the death of the deceased. Matter being so, there is no escape for the 2nd appellant from vicarious liability under section 34 of IPC.

28. We do not find any infirmity, illegality or irregularity in the conviction and sentence passed by the Crl.A.No.914 of 2009 31 court below. The conviction and sentence passed by the court below do not call for any interference at all. This appeal is devoid of merit and is only to be dismissed, and we do so.

In the result, this appeal is dismissed.

Sd/-

V.K.MOHANAN, Judge Sd/-

B.KEMAL PASHA, Judge ami/ //True copy// P.A. to Judge

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