Shiju vs State Of Kerala on 27 November, 2024

[Cites 18, Cited by 0]

Kerala High Court

Shiju vs State Of Kerala on 27 November, 2024

This appeal arises from S.C.No.1106 of 2009 on the files of the Court of the First Additional Sessions Judge, Kollam. There were five accused in the case. Among them, the first accused was convicted and sentenced for the offence punishable under Sections 302 and 307 of the Indian Penal Code (IPC) and accused 2 to 5 were convicted and sentenced for the offence punishable under Section 323 IPC. The accused challenge their conviction and sentence in the appeal.

2. The accused were persons residing in and around the place called Paripally. One Rajesh Kumar and his cousin brother Binudas sustained stab injuries in an occurrence that took place on the National Highway near Paripally at about Crl.Appeal No.955 of 2017 -: 4 :- 2024:KER:89012 6.45 p.m. on 27.02.2009. The injured and the accused were among the persons gathered at the National Highway and its surroundings to attend a music programme conducted in connection with the festival of a nearby temple. There was a statue of Sree Narayana Guru close to the venue of the music programme. When the music programme began, the fifth accused started dancing in front of the said statue. Rajesh Kumar objected to this behaviour of the fifth accused and had even gone to the extent of beating him for it. The fifth accused then moved to a different location and started dancing with the remaining accused. Rajesh Kumar then proceeded to that place also and objected to the behaviour of the accused yet again. A verbal altercation followed by physical altercation occurred between the accused and Rajesh Kumar due to the objection by the latter to their behaviour. Binudas, who was watching the music programme nearby, intervened in the altercation, and during the ensuing fight, both Rajesh Kumar and Binudas sustained stab injuries. Though the injured persons were taken to a nearby private hospital, Binudas died on the way to the Crl.Appeal No.955 of 2017 -: 5 :- 2024:KER:89012 hospital. Rajesh Kumar was referred from that hospital to Medical College Hospital, Thiruvananthapuram for better management and he had undergone treatment there.

3. A case was registered by Paripally Police in the early hours of the following day based on information furnished by Rajesh Kumar at the Medical College, Thiruvananthapuram. The investigation in the case revealed that it was the first accused who caused injuries to the deceased as also Rajesh Kumar while the remaining accused were beating and stamping them and final report was accordingly filed in the case. The accusation against the accused in the final report is that, enraged by the conduct of Rajesh Kumar in requiring the accused who were dancing at the venue of the music programme to refrain from doing so, the accused formed themselves into an unlawful assembly and assaulted Rajesh Kumar by beating and stamping him; that when Binudas intervened in the altercation, accused 2 to 5 beat him and the first accused then stabbed Binudas on his chest; that when Binudas fell down, Rajesh Kumar attempted to save him and Crl.Appeal No.955 of 2017 -: 6 :- 2024:KER:89012 the first accused then stabbed Rajesh Kumar also on the right side of his neck and also on the left side of his abdomen. The offences alleged were offences punishable under Sections 143, 147, 148, 323 and 302 read with Section 149 IPC.

4. On the accused being committed to trial, the Court of Session framed charges against them, to which they pleaded not guilty. Thereupon, the prosecution examined 13 witnesses as PW1 to PW13 and proved through them 34 documents as Exts.P1 to P34. MOs 1 to 25 are the material objects in the case. When the incriminating evidence was put to the accused in terms of the provisions contained in Section 313 of the Code of Criminal Procedure (the Code), they denied the same and maintained that they are innocent. Since the Court of Session did not find the case to be one fit for acquittal under Section 232 of the Code, the accused were called upon to enter on their defence. Seven witnesses were examined thereupon on the side of the accused as DWs 1 to 7 and 5 documents were proved through them as Exts.D1 to D5. Thereafter, on a consideration of the matters before it, the Crl.Appeal No.955 of 2017 -: 7 :- 2024:KER:89012 Court of Session came to the conclusion that the first accused is guilty of offences punishable under Sections 302 and 307 IPC and the remaining accused are guilty of the offence punishable under Section 323 IPC. The accused were accordingly convicted for the said offences. Consequent on the conviction, the first accused was sentenced to imprisonment for life and to pay a fine for the offence punishable under Section 302 IPC and imprisonment for five years and to pay fine for the offence punishable under Section 307 IPC. Accused 2 to 5 were sentenced to imprisonment for one year each for the offence punishable under Section 323 IPC. As noted, the accused are aggrieved by their conviction and sentence. Hence this appeal.

5. Heard the learned counsel for the accused as also the learned Public Prosecutor.

6. It is seen that the prosecution relies on the evidence tendered by PW1, Rajesh Kumar and PW3, Subin, an acquaintance of the deceased as also the evidence relating to the recovery of the weapon allegedly used by the first accused to stab the injured on a disclosure made by him, to prove the Crl.Appeal No.955 of 2017 -: 8 :- 2024:KER:89012 guilt of the accused. The contention raised by the learned counsel for the accused, however, was that the evidence tendered by PW1 and PW3 are mutually destructive and the same cannot be the basis of a conviction, that too, in a case under Section 302 IPC. It was also contended by the learned counsel that no sanctity could be attributed to the recovery evidence since the recovery of the weapon was not in accordance with the disclosure stated to have been made by the first accused. In other words, according to the learned counsel, there is no satisfactory evidence to prove that the accused beat the deceased as also PW1 and that in the course of the said physical altercation, the first accused stabbed the deceased and PW1. Alternatively, it was argued by the learned counsel that even if it is found that the evidence tendered by PW1 and PW3 are reliable and trustworthy, the first accused cannot be convicted for the offence punishable under Section 302 IPC, for, the materials on record would demonstrate that the accused were justified in committing the acts alleged against them in exercise of their right of private defence. Crl.Appeal No.955 of 2017 -: 9 :-

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7. In the light of the arguments advanced by the learned counsel for the accused, it is necessary to delve deep into the evidence relied on by the prosecution to prove the guilt of the accused. The witness examined on the side of the prosecution as PW1, as noted, is none other than Rajesh Kumar. PW1 is a fish vendor by profession. It was deposed by PW1 that when the music programme began at about 6.45 p.m. on 27.02.2009, the fifth accused started dancing in front of the statue of Sree Narayana Guru, and he objected to this behaviour and that he beat the fifth accused for it. It was deposed by PW1 that the fifth accused then moved towards the south and started dancing with the remaining accused again in front of the shop "P.S. Electrical Works". PW1 deposed that he then questioned the said behaviour of all the accused and when he did so, they beat as also stamped him. It was deposed by PW1 that Binudas then intervened in the physical altercation and the first accused then stabbed Binudas on his left chest with the knife that was carried by the first accused. It was deposed by PW1 that when he attempted to prevent the Crl.Appeal No.955 of 2017 -: 10 :- 2024:KER:89012 first accused from assaulting Binudas further, the first accused stabbed PW1 also on his right shoulder and on the left side of his abdomen. PW1 identified MO1 two bladed foldable knife as the weapon used by the first accused to inflict the stab injuries. In cross-examination, PW1 stated that large number of persons were present at the venue of the music programme where the occurrence took place and that he had consumed liquor when the occurrence took place. It was also stated by PW1 in cross- examination that the location of "P.S. Electrical Works" is about 15 meters away from the statue of Sree Narayana Guru where PW1 was standing and that when the accused started dancing in front of "P.S. Electrical Works", PW1 went to that place and informed them that they cannot dance there. Binudas was a stout person and the said fact was also affirmed by PW1 in cross-examination. The suggestion made by the counsel for the first accused to PW1 during cross-examination was that there was a clash between PW1 and Binudas on one hand and some of those who had gathered to watch the music programme on the other hand, as PW1 and Binudas had assaulted the fifth Crl.Appeal No.955 of 2017 -: 11 :- 2024:KER:89012 accused and it is in the course of that clash that PW1 and Binudas sustained injuries, and the said suggestion was denied by PW1.

8. PW3 is a person who was watching the music programme with Binudas by standing near the statue of Sree Narayana Guru. According to PW3, he reached that place at about 5.30 p.m. and at about 6.45 p.m, he heard the sound of a commotion from the place in front of "P.S.Electrical Works"

and when PW3 went to that place along with Binudas, they saw the accused persons beating and stamping PW1. It was deposed by PW3 that Binudas then intervened in the physical altercation and the first accused then stabbed Binudas on his left chest and when PW1 rushed to that place, the first accused stabbed PW1 also on his right shoulder and abdomen with the knife carried by him. In cross-examination, it was admitted by PW3 that PW1 did not come near the statue of Sree Narayana Guru while PW3 was standing there; that PW3 did not see anybody dancing in front of the statue nor did PW3 see anyone being beaten for dancing there and that he saw PW1 for the Crl.Appeal No.955 of 2017 -: 12 :- 2024:KER:89012 first time on that day at the scene of occurrence.

9. PW2 is the doctor who examined PW1 and the deceased in the nearby private hospital, namely Royal Hospital. PW2 deposed that on 27.02.2009 at about 7.45 p.m., he had examined the deceased who was brought to the hospital with the alleged cause of injury "കണ ലറയ വന ആറപ ർ പ ർന മർദ ചതൽ വച" and there was no signs of life at the time of examination. It was also deposed by PW2 that on the same day, he examined PW1 also who was brought there with identical alleged cause of injury and PW2 noted (i) a lacerated wound on the right shoulder joint above the middle one third of clavicle 4 x 2 x 6 cm and (ii) a lacerated wound on the left side of abdomen 5 x 2 cm. Ext.P3 is the wound certificate issued by PW2 in respect of PW1. It was opined by PW2 that the injuries sustained to PW1 could be caused with MO1 foldable knife. It was clarified by PW2 in cross-examination that he examined the injuries suffered by PW1 only superficially and that they are injuries that could be caused on account of a fall on a broken piece of brick or a hit with a stone or beating with a Crl.Appeal No.955 of 2017 -: 13 :- 2024:KER:89012 stick of blunt surface. Likewise, it was clarified in cross- examination that the injuries sustained to PW1 were injuries that could be caused when a weapon is used to frighten others also.

10. PW7 is the doctor who conducted the postmortem examination on the body of the deceased. Injury 1 noted by PW7 at the time of postmortem examination as deposed by her reads thus:

"Incised penetrating wound 3x1.5cm oblique on the left side of front of chest, its upper inner rounded end was 1.5cm to the left of midline and 2cm below the level of inner end of collar bone. The lower margin of the injury showed a side cut of 0.4cm, 1cm away from the lower outer sharply cut end. The wound entered into the left chest cavity through the left first intercostal space and by cutting the left 2 nd costal cartilage, it then transfixed the upper lobe of left lung with an entrance wound of 1.5 x 0.3cm and exit wound of 1.5 x 0.8cm for a minimum depth of 1cm. It then pierced the pericardium and ended in the lumen of pulmonary trunk by cutting its front wall (1x0.2cm), 3cm above its origin from right ventricle. The wound was directed downwards, backwards and to the right for a total minimum depth of 3.5cm. The left chest cavity contained 2000ml of blood with clots and pericardial cavity contained 100ml of blood. Left lung was collapsed."

PW7 opined that the cause of death was due to injury 1 and Crl.Appeal No.955 of 2017 -: 14 :- 2024:KER:89012 that the same is sufficient in the ordinary course of nature to cause death. Ext.P9 is the postmortem certificate issued by PW7. It was also opined by PW7 that injury 1 could be caused with MO1 knife. In cross-examination, when the opinion of PW7 was sought on the question whether the entire blade portion of MO1 knife would have entered inside the body if the infliction was a forceful one, the answer given by PW7 was that it is not always necessary, but it is possible. The relevant evidence reads thus:

"ഈ MO1 കക ണ ആഞകതയ ൽ ഈ Blade portion കമ ത കയറമപ (Q) കയറണകമന , കയറ "

11. PW12 is the police officer who conducted the investigation in the case. Among others, PW12 deposed that the first accused in the case was arrested on 28.02.2009 and during interrogation after the arrest, the first accused disclosed to PW12 that he dropped a foldable knife beneath a cashew tree on the way to Neeronthi Junction and when the first accused was taken to that place as guided by him, the first accused took out from beneath an electric post, MO1 foldable Crl.Appeal No.955 of 2017 -: 15 :- 2024:KER:89012 knife and the same was seized as per Ext.P10 mahazar. In cross-examination, it was stated by PW12 that the opinion of panchayatdars at the time of preparation of the inquest as to the cause and manner of the death of Binudas, is that he was stabbed when Binudas restrained the accused from dancing at the venue of the music programme. Likewise, it was also stated by PW12 in cross-examination that the existence of any thicket or presence of leaves were not recorded at the place from where MO1 foldable knife was recovered.

12. The questions that need to be examined are whether the evidence discussed above would establish that the accused beat the deceased and PW1 and whether the first accused stabbed them in the course of the physical altercation that ensued when PW1 questioned the accused as to their behaviour in dancing at the venue of the music programme. As noted, the specific case of the prosecution is that PW1 was standing near the statue of Sree Narayana Guru to watch the music programme and when the said programme began at about 6.45 p.m., the fifth accused started dancing in front of Crl.Appeal No.955 of 2017 -: 16 :- 2024:KER:89012 the statue and PW1 objected to the said behaviour of the fifth accused and had even gone to the extent of beating the fifth accused for it. According to the prosecution, the fifth accused then moved to a place near the shop, "P.S.Electrical Works". PW1 gave evidence in tune with the said case of the prosecution. The evidence tendered by PW3, however, was not consistent with the evidence tendered by PW1. As noticed, the version of PW3 was that he reached near the statue of Sree Narayana Guru at about 5.30 p.m. and at about 6.45 p.m, he heard the sound of a commotion from the place near "P.S.Electrical Works" and when PW3 went to that place along with Binudas, they saw the accused persons beating and stamping PW1. According to PW3, PW1 did not come near the statue of Sree Narayana Guru while he was standing there and he did not see anybody dancing in front of the statue nor did he see anyone being beaten for dancing there and that PW3 saw PW1 for the first time on that day only at the scene of occurrence. The version aforesaid of PW3 creates a serious doubt as to whether PW3 was present at the scene at the time Crl.Appeal No.955 of 2017 -: 17 :- 2024:KER:89012 of occurrence for, if he was present near the statue of Sree Narayana Guru as claimed by him, he would have certainly witnessed the occurrence in which PW1 beat the fifth accused. In the circumstances, we are of the view that it may not be safe to place reliance on the evidence tendered by PW3 as regards the occurrence. If the evidence tendered by PW3 is not reliable, then there is only the evidence of PW1 to prove the occurrence. Coming to the evidence tendered by PW1, we find that it does not give a clear picture of the sequence of events that ensued when PW1 questioned the behaviour of the accused at the venue of the music programme. Instead, according to PW1, when he questioned the behaviour of the accused in dancing at that place, they beat him. Going by the normal human behaviour, there would have certainly been a verbal altercation before the assault, and PW1 was silent as regards the same. Be that as it may, on an appraisal of the materials on record, we do not find any reason to disbelieve the version of PW1 that the accused beat him when he objected to their behaviour in dancing at the venue of the Crl.Appeal No.955 of 2017 -: 18 :- 2024:KER:89012 music programme and that when the deceased intervened in that altercation, the first accused beat the deceased also. Likewise, we do not find any reason to disbelieve the version of PW1 that it is in the course of that physical altercation, the first accused stabbed the deceased as also PW1. It is all the more so since the evidence tendered by PW1 is corroborated by the recovery of MO1 foldable knife at the instance of the first accused.

13. Of course, as noted, it was contended by the learned counsel for the accused that inasmuch as the recovery of the weapon was not from the place mentioned by the first accused in the disclosure statement, the same may not fall within the scope of Section 27 of the Indian Evidence Act. No doubt, the disclosure stated to have been made by the first accused is that he has dropped a foldable knife beneath a cashew tree on the way to Neeronthi Junction and the evidence tendered by PW12, the Investigating Officer is that the recovery of the weapon was effected from beneath an electric post near Neeronthi Junction. The relevant portion of the Crl.Appeal No.955 of 2017 -: 19 :- 2024:KER:89012 evidence reads thus:

               " രപള വപ ജൽ എഴപറ പ രയൽ ന(പര ന        junction ൽ നന എഴപറ
               വയല പലക മറ പ കന     ഞ യത Road ൻകറ        ടഞ റവശ സ        ചടള

PYMC 27/7 എന നമരള concrete electric post ക6 ചവടൽ നന 7.15 m കതകക ഴക മ റ ട Road ൻകറ കഴകവശ സ ചടള നമര ത electric post ക6 ചവടൽ നന 1 .53 m കഴകമ റയ ട post ക6 stay കമയകട 45 cm കതകമ റയ ഭ ഗത നന പത എടത ഹ ജര കതന മടക ച ത മഹസറൽ വവരച സ ക കളകട സ ന ദFതൽ ബനവസകലടത."

It was brought out by the accused in the cross-examination of PW12 that existence of any thicket or presence of leaves were not recorded at the place from where MO1 foldable knife was recovered. It was on the basis of the said evidence that it was argued by the learned counsel for the accused that the recovery was not from the place mentioned in the disclosure statement. Even assuming that the recovery of the weapon was not exactly from a place beneath a cashew tree as disclosed by the first accused, the evidence tendered by PW12 would indicate beyond doubt that the weapon was recovered from a place in the close proximity of the place mentioned by the first accused in the disclosure statement. Merely for the reason that the recovery was not effected exactly from the Crl.Appeal No.955 of 2017 -: 20 :- 2024:KER:89012 place mentioned by the first accused in the disclosure statement, but effected a few yards away from there, according to us, it cannot be a ground to hold the recovery in the case would not fall under Section 27 of the Indian Evidence Act and that the information which relates distinctly to the fact thereby discovered, is not admissible in evidence. Section 27 of the Indian Evidence Act is based on the doctrine of confirmation by subsequent events. The doctrine is founded on the principle that if any fact is discovered in a search made on the strength of any information obtained from a person, such a discovery is a guarantee that the information supplied by such a person is true. When the accused gives information to a police officer that a particular object is kept by him at a particular place and when he takes out and hands over the said object to the police when he is taken to that place, the recovery of the object confirms the truth of the information given by the accused. We fail to understand why the doctrine of confirmation by subsequent events would not apply in a case where the recovery is made not exactly from the place Crl.Appeal No.955 of 2017 -: 21 :- 2024:KER:89012 mentioned, but from a few yards away from there. The argument, in the circumstances, is only to be rejected. Needless to say, we are inclined to hold that there is no infirmity in the finding rendered by the Court of Session that the accused beat the deceased as also PW1 and when the deceased intervened in the physical altercation between the accused and PW1, the first accused stabbed both the deceased and PW1.

14. What remains to be considered is the argument of the learned counsel for the first accused that the first accused was justified in committing the acts alleged in exercise of his right of private defence. As noted, after the first incident, the fifth accused moved to a place near "P.S.Electrical Works" and started dancing there with the remaining accused. It was admitted by PW1 that he then proceeded to that place and objected to the behaviour of the fifth accused and others in dancing there also. It has come out in evidence that PW1 was under the influence of alcohol at the relevant time. The materials indicate that it was an act of moral policing on the Crl.Appeal No.955 of 2017 -: 22 :- 2024:KER:89012 part of PW1 for, the accused cannot be found fault with for merely dancing at the venue of the music programme. True, when PW1 required the accused to refrain from dancing, the accused questioned the authority of PW1 to do so. Even though there is no evidence to indicate as to how PW1 reacted to such questioning, it can be inferred from the previous conduct of PW1 that a wordy altercation would have occurred between them consequent to such questioning, and it was the said wordy altercation that ensued in the physical altercation between them. It was in that physical altercation that the deceased intervened. It has come out in evidence that the deceased was not only the cousin brother of PW1, but was also a person who was residing at the relevant time with PW1 in his house. If the deceased had only attempted to separate PW1 from the accused, there was no reason why the first accused attacked PW1 with a weapon when he had no motive to do so as against the deceased. It could, therefore, be inferred that the deceased had attacked the accused to save PW1, and under the circumstances, we are inclined to hold that the first Crl.Appeal No.955 of 2017 -: 23 :- 2024:KER:89012 accused stabbed the deceased at that stage to protect himself from the attack of the deceased. We take this view also for the reason that the deceased was a stout person, as brought out in evidence. In the circumstances, we are of the view that the act alleged against the first accused was one committed by him in exercise of his right of private defence. Having said so, what needs to be considered further is whether such exercise of the right of private defence by the first accused, is within the limit permissible by law. The right of private defence is subject to the restrictions contained in Section 99 IPC. Section 99 IPC clarifies that the right of private defence in no case extends to the inflicting of more harm than it is necessary to inflict for the purpose of defence. Section 100 IPC provides that the right of private defence of the body extends, under restrictions mentioned in Section 99, to the voluntary causing of death or of any other harm to the assailant, if the offence which occasions the exercise of the right be any of the descriptions enumerated therein. Seven categories of cases are mentioned in Section 100, of which only categories "First" and "Secondly" Crl.Appeal No.955 of 2017 -: 24 :-

2024:KER:89012 are relevant in the context of the present case, as the same would not fall under any other categories of the said Section. Category First is cases involving assault which may reasonably cause the apprehension that death will otherwise be the consequence of such assault and category Secondly is cases involving assault which may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such assault. "Assault" as defined in Section 351 including illustration (a) to the Section reads thus:

"351. Assault.--Whoever makes any gesture, or any preparation intending or knowing it to be likely that such gesture or preparation will cause any person present to apprehend that he who makes that gesture or preparation is about to use criminal force to that person, is said to commit an assault.

Explanation.--Mere words do not amount to an assault. But the words which a person uses may give to his gestures or preparation such a meaning as may make those gestures or preparations amount to an assault.

Illustrations

(a) A shakes his fist at Z, intending or knowing it to be likely that he may thereby cause Z to believe that A is about to strike Z. A has committed an assault.

               (b)                   xxxx
 Crl.Appeal No.955 of 2017

                                 -: 25 :-



                                                         2024:KER:89012



               (c)               x x x x."

In the case on hand, inasmuch as it is found that the first accused stabbed the deceased when the latter attempted to attack him, the pointed question is whether the said conduct of the deceased was sufficient to cause a reasonable apprehension in the mind of the first accused that the deceased would either cause his death or cause grievous hurt to him, so as to justify the first accused to stab the deceased to prevent the apprehended act. No one is expected to calmly assess the situation to determine the extent of right of private defence which is necessary to inflict for the purpose of defence and that the right of private defence is one that is done as an involuntary reflex action. But at the same time, merely for the reason that the deceased had attacked the first accused, it cannot be said that the first accused had apprehended that the deceased would have caused his death or at least caused grievous hurt to him. Inasmuch as there is nothing on record to indicate that the deceased had carried any weapon with him, Crl.Appeal No.955 of 2017 -: 26 :- 2024:KER:89012 according to us, on the facts and circumstances of the case, the first accused was not justified in stabbing the deceased in exercise of his right of private defence, for it is now settled that while exercising the said right, the act shall not be unduly disproportionate to the injury which is sought to be averted or which is reasonably apprehended [See Sikandar Singh v. State of Bihar, (2010) 7 SCC 477]. Needless to say, on the facts and circumstances of this case, the first accused can be convicted for having caused the stab injury on the deceased only under Part II of Section 304 IPC.

15. As indicated, the first accused was convicted for the offence punishable under Section 307 IPC also for having caused the stab injuries on PW1. As noted, the specific case of PW1 is that while he attempted to save the deceased from the attack of the first accused, the first accused stabbed him also. But, as evident from the deposition of PW2, the doctor who examined PW1 immediately after the occurrence, the injuries sustained by PW1 at the instance of the first accused are only two lacerated wounds and not incised Crl.Appeal No.955 of 2017 -: 27 :- 2024:KER:89012 wounds, which would have been the result had this been a case where the first accused stabbed PW1 with the intention of causing bodily injury sufficient in the ordinary course of nature to cause death. That apart, PW2 clarified in his evidence that the injuries sustained by PW1 were injuries that could be caused when a weapon is used to frighten others also. In the circumstances, we are of the view that the Court of Session was not justified in convicting the first accused for the offence punishable under Section 307 IPC. Having regard to the totality of the facts and circumstances of the case, according to us, at the most, the first accused should have been convicted only for the offence punishable under Section 324 IPC for having caused the injury sustained by PW1 at his hands. Needless to say, the conviction of the first accused under Section 307 IPC is liable to be altered to conviction under Section 324 IPC. At the same time, we do not find any reason to interfere with the finding rendered by the Court of Session that accused 2 to 5 are guilty under Section 323 IPC for having beaten PW1 and the deceased.

Crl.Appeal No.955 of 2017

-: 28 :-

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16. Coming to the sentence, having regard to the facts and circumstances of the case, according to us, the appropriate sentence to be imposed on the first accused for the offence punishable under Part II of Section 304 IPC would be rigorous imprisonment for a period of seven years and the appropriate sentence to be imposed on the first accused for the offence punishable under Section 324 IPC would be rigorous imprisonment for a period of two years. The sentence imposed by the Court of Session on accused 2 to 5 for the offence punishable under 323 IPC is grossly disproportionate and the appropriate sentence to be imposed on the said accused for the said offence would be simple imprisonment for a period of one month, in the peculiar facts of this case especially the fact that the occurrence in which they caused hurt to PW1 and the deceased was one invited by PW1.

In the result, the appeal is allowed in part altering the conviction of the first accused under Section 302 IPC to Part II of Section 304 IPC and altering the conviction of the first accused under Section 307 IPC to Section 324 IPC. The first Crl.Appeal No.955 of 2017 -: 29 :- 2024:KER:89012 accused is sentenced to undergo rigorous imprisonment for a period of seven years for the offence punishable under Part II of Section 304 IPC and rigorous imprisonment for a period of two years for the offence punishable under Section 324 IPC. The sentence imposed on accused 2 to 5 for the offence punishable under Section 323 is modified to simple imprisonment for a period of one month. The period of detention undergone by the accused shall be set off against the substantive sentence of imprisonment under Section 428 of the Code.

Sd/-

P.B.SURESH KUMAR, JUDGE.

Sd/-

C.PRATHEEP KUMAR, JUDGE.

YKB

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