Kerala High Court
Ummar vs State Of Kerala
Author: P.Bhavadasan
Bench: M.Sasidharan Nambiar, P.Bhavadasan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE M.SASIDHARAN NAMBIAR
&
THE HONOURABLE MR.JUSTICE P.BHAVADASAN
TUESDAY, THE 10TH DAY OF JULY 2012/19TH ASHADHA 1934
CRL.A.No. 799 of 2009 (D)
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[AGAINST THE ORDER DATED 22/01/09 IN S.C.NO.507/2006 OF THE
ADDL.SESSIONS JUDGE, FAST TRACK (ADHOC)-IV, THIRUVANANTHAPURAM,
C.P.NO.43/2004 OF JUDICIAL FIRST CLASS MAGISTRATE COURT, VARKALA]
...........
APPELLANTS/ACCUSED NOS.1 AND 3 IN SC.NO.507/2006:
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1. UMMAR,S/O.ALIYARUKUNJU,
NEDIYAVILA PUTHENVEEDU, NEAR GURU MANDIRAM,
THOTTAKKAD DESOM, KARAVARAM VILLAGE.
2. CHANDRA BABU @ BABU,
S/O.ANANDAN,AALUMOOTTIL VEEDU, NEAR PUNNAVILA SCHOOL,
28TH MILE, NAVAIKULAM DESOM,NAVAIKULAM VILLAGE.
BY SRI.P.VIJAYA BHANU, SENIOR ADVOCATE,
ADVS. SRI.P.M.RAFIQ,
SRI.V.C.SARATH.
RESPONDENT/COMPLAINANT IN S.C.NO.507/2006:
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STATE OF KERALA,
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA,
ERNAKULAM.
BY PUBLIC PROSECUTOR SRI. K.K. RAJEEV.
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD
ON 10-07-2012, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
Prv.
M.SASIDHARAN NAMBIAR &
P.BHAVADASAN JJ.
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Crl.Appeal No.799 of 2009
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Dated this the 10th day of July, 2012
JUDGMENT
Bhavadasan, J A couple and their servant were prosecuted for the offences punishable under Sections 307, 302 read with 34 IPC. Wife namely A2 was found not guilty and acquitted of all the offences. A1, the husband and A3, servant were found guilty of the offence punishable under Section 302 read with 34 IPC. They were therefore sentenced to undergo imprisonment for life with a fine of Rs.10,000/-(Rupees ten thousand only) each with default sentence of rigorous imprisonment for a further period of six months for the former offence but they were found not guilty of the offence punishable under Section 307 read with 34 IPC.
2. The incident is said to have occurred on 24.03.2002 at about 3.30 pm in a property admittedly in the possession, enjoyment and cultivation of the 1st accused. On that day, it is alleged that, the deceased, CW1,PW1,PW2 and PW18 in a jeep, started from Mannanthala and they reached the property Crl. Appeal No.799/ 2009 2 belonging to the 1st accused. While they were uprooting tapioca, it is alleged that the 2nd accused came with a basket of granite stones and A1 and A3 came armed with chopper and stick. The accused persons are said to have mounted an attack on the deceased and his companions in which the deceased suffered injuries as also PW1. PW1 was initially taken to the hospital at Nagaroor, where PW20 examined him and prepared Ext.P10 Wound Certificate. Thereafter, deceased Hamsa, who is none other than the brother of the 1st accused, was taken to the Medical College Hospital and he died on the way. CW1 laid the First Information Statement and it was recorded by PW23 who registered Crime No.77/2002 for the offences punishable under Sections 143,147,148, 149,302 & 307 read with 34 IPC. As per Ext.P15 First Information Statement, along with the three accused persons who stood trial, it was alleged that three other persons were also included in the incident. Investigation was taken over by PW26, Circle Inspector of Police, Varkala, who prepared Ext.P8 Inquest Report and thereafter sent the body of the deceased for autopsy. PW19, the doctor attached to the Medical College Hospital, Forensic Department conducted Crl. Appeal No.799/ 2009 3 autopsy and prepared Ext.P9 Postmortem Certificate. PW26 thereafter went to the scene of occurrence and prepared Ext.P3 Scene Mahazar. He conducted search of the house of the accused persons and prepared Ext.P23 search memo. The search list prepared by him was marked as Ext.P24. He arrested the 2nd accused on 27.03.2002 from her residence and he recovered MO3 basket, based on the Ext.P25(a) confession statement given by the 2nd accused. He thereafter filed Ext.P26 report before the Court after altering some sections of the offences. He seized the dress of PW1, who is one of the victims as per Ext.P4 Scene Mahazar. He arrested the 1st accused on 03.04.2002 at 3 pm and based on Ext.P5(a) confession statement is said to have been given by A1, recovered MO4 chopper. He also claims to have recovered MO5 wooden stick as per Ext.P6(a) confession statement said to have been given by A1 as per Ext.P6 Mahazar. He had arrested A3 on 09.04.2002 at 5 am from his residence and as per his confession statement, that is Ext.P7(a), PW26 had MO8 chopper recovered as per Ext.P7 mahazar. MO12 stick and MO13 shirt was recovered as per Ext.P28(a) and Ext.28(b) confession statement said to have been given by Crl. Appeal No.799/ 2009 4 accused No.3 as per Ext.P28 Mahazar. He, thereafter, filed Ext.P29 report showing the correct name and address of the accused . He had, the materials seized and produced before the court, sent for chemical examination. PW27 furnished Ext.P36 report and PW29 furnished Ext.P42 report. PW30 furnished Ext.P43 certificate. PW26 recorded statement of witnesses and his successor in his office namely PW28 completed the investigation and laid charge before Court.
3. Judicial First Class Magistrate, Varkala, before whom the final report was laid took cognizance of the offence. Finding that the offence is exclusively triable by the Court of Sessions, the said court committed the case to Sessions Court, Trivandrum under Section 209 Cr.P.C. The said Court made over the case to Additional Sessions Court, Fast Track No.II (Adhoc), Trivandrum for trial and disposal.
4. The latter court, on appearance of the accused, framed charges under Sections 302 and 307 read with 34 IPC and when the charge was read over to the accused, they pleaded not guilty and claimed to be tried. The Prosecution Crl. Appeal No.799/ 2009 5 therefore examined PW1 to PW30 and had Exts.P1 to P43 marked. M.Os 1 to 13 were identified and marked.
5. After the close of the prosecution evidence, all the accused persons were questioned under Section 313(1)(b) Cr.P.C with regard to the incriminating circumstances appearing against them in the evidence for the prosecution. They denied those circumstances and maintained their innocence.
6. The 1st accused stated that on the date of incident while he, his wife and the 3rd accused were carrying on agricultural operations in their property, deceased along with four others armed with various weapons trespassed into the property and began to destroy the cultivation in the property. When he tried to prevent them from committing atrocities in the property, he was kicked aside and he became unconscious and did not know what happened thereafter. The 2nd accused also gave almost a similar version as A1. The 3rd accused denied the story as alleged by the prosecution. Crl. Appeal No.799/ 2009 6
7. Finding that the accused could not be acquitted under Section 232 Cr.P.C they were asked to enter on their defence. The accused did not choose to adduce any evidence except getting D1 and D2 marked. On an appreciation of evidence in the case, trial court came to the conclusion that the prosecution has succeeded in proving the offence attributed as against A1 and A3 and found them guilty of the offence punishable under Section 302 read with 34 IPC as already mentioned. They were therefore convicted and sentenced as mentioned above.
8. The learned counsel appearing for the appellants very vehemently attacked the findings of the court below mainly on the premises that there is no consistency regarding the incident and the three witnesses who speak about the incident have no consistent version. A close scrutiny of their evidence, according to the learned counsel, will clearly show that incident has not occurred as alleged by the prosecution and the prosecution has tried to present a distorted version of Crl. Appeal No.799/ 2009 7 the true incident. The evidence of PWs.1, 2 and 18 were elaborately referred to and it was pointed out that it is very clear from the reading of the evidence that they are not speaking the truth and they are hiding more than what they have revealed. The court below was not jusitified in accepting their evidence and finding the accused guilty. It was pointed out that it is strange that after noticing that Hamza had received injuries, PW1 who suffered relatively minor injuries was first taken to the hospital, leaving Hamza there on the spot itself. In fact, according to the learned counsel for the appellant, a reading of the evidence of PWs.1,2 and 18 will show that it is not discernible from their evidence as to how actually Hamza had received injuries and who had inflicted injuries on Hamza, the deceased. The learned counsel also emphasized that the deceased and his companion had no reason to be present in the property as the property admittedly belongs to A1 as could be seen from the certificates issued by the Village Officer concerned. They had Crl. Appeal No.799/ 2009 8 trespassed into the property and had destroyed the agricultural operation which the accused persons were unable to resist and in that process injuries might have been inflicted. If that be so the accused are entitled to exemption of private defence under Section 97 IPC. At any rate, according to the learned counsel for the appellant, the incident has not occurred as alleged by the prosecution and it is inconceivable that the deceased and his companions had come unarmed carry on innocent activities in the property belonging to the 1st accused. A reading of the evidence of PWs.1,2 and 18, according to the learned counsel, will show that the sequence of evidence spoken to by these witnesses are entirely different and that affects the veracity of their evidence and it is open to serious doubt. When the origin and development of the incident is shrouded in mystery, the accused are entitled to benefit of doubt. The trial court, according to the learned counsel was not justified in ignoring glaring anomalies, inconsistencies and contradictions in the evidence of PWs.1,2 Crl. Appeal No.799/ 2009 9 and 18 which make the prosecution case extremely vulnerable. According to the learned counsel, the conviction and sentence of the appellants are unsustainable and unwarranted by the evidence.
9. The learned Public Prosecutor on the other hand pointed out that the court below has chosen to rely on the evidence of Pws.1,2 and 18 who were the occurrence witnesses and among them PW1 is an injured witness. The learned Public Prosecutor pointed out that in law the evidence of injured witnesses has considerable weight unless it is shown that he is stating falsehood, the evidence cannot be rejected.
10. The learned Public Prosecutor pointed out that the presence of Pws.1,2 and 18 was also admitted by the accused. They have given different version of the incident. It is pointed out by the learned Pubic Prosecutor that in an incident of this nature it is possible that there may be contradictions, embellishments and inconsistencies in the evidence of Crl. Appeal No.799/ 2009 10 PWs.1,2 and 18 and that is quite natural, unless, the inconsistencies and contradictions are so glaring and manifest so as to make the evidence unbelievable. The learned Public Prosecutor also pointed out that even assuming a portion of their evidence of a witness is not acceptable that portion which inspires confidence of the mind of the court has to be accepted and that is precisely the court below has done to find the accused guilty. The learned Public Prosecutor pointed out the fact that Hamza met with death in the incident cannot be disputed and so also the fact that PW1 had suffered injuries. The accused has no explanation to offer as to how the death of Hamza has been caused. There is no justification, according to the learned Public Prosecutor, in refusing to accept the evidence of PWs.1,2 and 18 to hold that there is no true version of the incident given by the prosecution. At any rate, trial court which had the occasion to see the demeanour of the witnesses, had chosen to rely on the evidence of PWs.1,2 and 18 and there is no reason as to Crl. Appeal No.799/ 2009 11 why this Court should take a different view. In short the contention is that there are no grounds to interfere with the conviction and sentence passed by the court below.
11. The learned Public Prosecutor in support of his contentions relied on the following decisions.
Edakkandi Dineshan @ Pulipp Dineshan and others vs. State of Kerala (2011 KHC 350), Dineshan v. State of Kerala (2011(3) KLT SN1), Rizan vs. State of Chhatisgarh (AIR 2003 SC 976), State of Punjab vs. Jagir Singh (AIR 1973 SC 2407).
13. That an incident took place on 24.03.2002 in the property belonging to the 1st accused cannot be disputed. It cannot also be disputed that deceased Hamsa and PWs.1,2, CW1, and PW18 had come in a jeep from Mannanthala to the property belonging to the 1st accused which was situated nearly 30 kms away from Mannanthala. It cannot be disputed by the prosecution that there is nothing to show that the deceased Hamza had any manner of right over the property Crl. Appeal No.799/ 2009 12 in which the incident took place. In fact the evidence of PW21 along with the certificate issued by the Village Officer clearly show that the property in which the incident took place belonged to the 1st accused and he was in absolute possession, enjoyment and cultivation of the same. Going by the prosecution evidence, there is nothing to show that the deceased Hamza had done any agricultural operations in the property in which the incident took place and he had any right in the property.
14. The court below placed considerable reliance on the evidence furnished by PWs.1,2 and 18. The court below found that their evidence has to be accepted. The question is whether the approach of the court below is justified or not.
15. PW1 is an electrician by profession. His evidence shows that he had accompanied the deceased Hamza along with CW1, PWs.2 and 18. His evidence is to the effect that when they reached the property from where they uprooted tapioca , 1st accused, his wife and servant came to the place Crl. Appeal No.799/ 2009 13 and there was exchange of words between them. Going by his evidence deceased Hamza was first beaten by A1 with a stick and then attacked with a chopper. He would also say that before doing so stones, brought by A2 in a basket, were pelted at him by A1. He would say that then he was attacked and that he suffered injuries on his hand. He ran for shelter. His evidence would show that when he received injuries he ran to the road for safety and thereafter he did not see the rest of the incident. He says that he learned from PW18 as to what had happened to Hamsa.
16. The evidence of PW2 is to the effect that he had gone along with others to the property of the 1st accused and while they were engaged in uprooting tapioca, stones were pelted at them and he then claims to have seen Hamza being attacked by the 1st accused. Thereafter he claims that PW1 came with injuries. He says that he took PW1 to the hospital leaving Hamsa at the place. In cross-examination, he would say that there was no exchange of words between the parties. As soon Crl. Appeal No.799/ 2009 14 as uprooting tapioca, took place they were attacked by the accused persons. In cross-examination he would say that he did not know from where the accused had come and he learned about the attack in detail from the son of Hamza. In cross-examination he would also say that he could not pin point the place at which the attack took place and also that he was unable to say that who suffered injuries first.
17. The evidence of PW18 is to the effect that he had gone along with deceased Hamza and others ie.PW1,PW2 and CW1. According to his version, while they were uprooting tapioca, stones were pelted at them and one of the stones fell on him and Hamza was beaten first. When PW1 went to the rescue of Hamza, he was attacked. He would thereafter say that they took PW1 to the hospital. At the time when PW1 was taken to the hospital, Hamza has not suffered any bleeding injuries. In cross-examination he would say that he was not definite about who had inflicted injures on Hamza. He would also say that he along with Hamza and his Crl. Appeal No.799/ 2009 15 companions had gone to the property belonging to A1, six months back, a case which neither PW1 nor PW2 has. Going through the evidence of PWs.1 and 2, they had gone to the property of the 1st accused for the first time on the date of the incident.
18. It is true that minor inconsistencies and contradictions in the evidence of the witnesses are not to be taken very seriously. However, there is distinction between normal discrepancies and material discrepancies. Normal discrepancies which are bound to arise due to difference in capacity of perception, retention and reproduction of the witnesses. But when there are material discrepancies in the evidence of witnesses which make the core of the prosecution story doubtful, then the said contradictions and inconsistencies cannot be ignored. In the case of the decisions reported in Rizan vs. State of Chhatisgarh (2003 SC 976) it was held as follows:-
As observed by this court in State of Rajasthan v. Smt.Kalki and another (AIR 1981 SC Crl. Appeal No.799/ 2009 16 1390) normal discrepancies in evidence are those which are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence and those are always there, however, honest and truthful a witness may be. Material discrepancies are those which are not normal and not expected of a normal person.
Courts have to label the category to which a discrepancy may be categorized. While normal discrepancies do not corrode the credibility of a party's case, material discrepancies do so. These aspects were highlighted recently in Krishna Mochi and others v. State of Bihar etc.(2002 (4) JT (SC) 186) and Gangadhar Behera and others v.
State of Orissa (2002(7) Supreme 276).
Accusations have been clearly established against accused-appellants in the case at hand. The courts below have categorically indicated the distinguishing features in evidence so far as acquitted and convicted accused are concerned. In the decision reported in State of Punjab vs. Jagir Singh (AIR 1973 SC 2407) it was held as follows:- Crl. Appeal No.799/ 2009 17
A criminal trial is not a fairy tale wherein one is free to give flight to one's imagination and phantasy. It concerns itself with the question as to whether the accused arraigned at the trial is guilty of the crime with which he is charged. Crime is an event in real life and is the product of interplay of different human emotions. In arriving at the conclusion about the guilt of the accused charged with the commission of a crime, the court has to judge the evidence by the yardstick of probabilities , its intrinsic worth and the animus of witnesses. Every case in the final analysis would have to depend upon its own facts. Although the benefit of every reasonable doubt should be given to the accused, the courts should not at the same time reject evidence which is ex facie trustworthy on grounds which are fanciful or in the nature of conjectures.
In the decision reported in Dineshan v. State of Kerala (2001(3) KLT SN 1) it was held as follows:-
Criminal Trial-When an incident is witnessed by 3 or 4 persons and when they are asked to depose with regard to that incident at a later point of time, inconsistencies which do not shake fabric Crl. Appeal No.799/ 2009 18 of prosecution case cannot be projected with much importance.
19. One can no quarrel with the above propositions at all. In the case on hand, close reading of evidence of PWs.1,2 and 18 will show that they are incompatible and versions of the incident given by each one of them differ. PW1 is to be believed that he had not seen Hamza suffering any injuries and he is the first one who suffered the injuries. If PW2 is to be believed, PW1 suffered injuries while intervening to save Hamza and PW2's evidence is to the effect that while Hamza was lying on the ground, PW1 suffered injuries. If that be true there will be obviously an attempt to take Hamza first to the hospital after he had received more serious injuries than PW1. But the evidence of PWs1,2 and 18 is to the effect that it was Saji who had taken PW1 to the hospital leaving Hamza there. Evidence of PW18 is to the effect that at the time when PW1 suffered injuries Hamza had not suffered any bleeding injury and was lying on the ground. A reading of the evidence of PW18 would show that he had actually not witnessed Crl. Appeal No.799/ 2009 19 Hamza receiving any of the injuries.
20. Apart from the above fact, it is inconceivable that the deceased Hamza ,PW1,PW2 and PW18 would have gone to the place, totally unarmed, merely for the purpose of uprooting tapioca. It is significant to notice here that PW1 is an electrician by profession, PW2 is a lorry driver, PW18 is engaged in the manufacture of soda and CW1 is a tailor does not stand. Hamza would not have take them for innocent uprooting tapioca from the property of A1 without any implements.
21. It is true that the evidence of PW19 taking along with Ext.P9 post mortem report shows that Hamza had died due to the multiple injuries suffered by him. As many as ten injuries were noticed on the body of Hamza which reads as follows:-
"Injuries (Ante Mortem)
1.Incised wound 5.5x1 cm, bone deep, oblique on the right side of top of head, its upper inner end and 2cm outer to midline and 18 cm above eyebrow.
2. Incised wound 6x1cm bone deep, oblique on the left side of top of head, its upper inner end 4cm Crl. Appeal No.799/ 2009 20 outer to midline and 20 cm above eyebrow.
3.Incised wound 9.5x2.5x5cm, oblique on the outer aspect of right forearm, the upper front end 3.5 cm below middle of elbow. The radius and ulna were found out for a depth of 1.5cm and 0.5cm respectively. The cut edges showed fragmentation.
4.Incised wound 8x1x3 cm and 5x1x5x2.8 cm, oblique and parallel connected by a bridge of skin 7x2 cm in the middle on the right palm. The upper inner end at the front aspect of second web . The first metacapal bone is found cut obliquely, the edges showed fragmentation. Muscles and tendous were found cut clean.
5.Incised wound 12.2x0.5x2.3 cm oblique, on the inner aspect of right lower thigh, knee and leg, the front lower end 4cm knee. The edges showed contusion and the back end showed an ..4.5x0.5 cm extending upwards. Upper end of tibia was found cut an area 3x0.5xo.5cm. The edge showed fragmentation.
6.Incised wound 1.5x1x1 cm, on the front of right leg 20.5cm below knee. Cut muscle edges protruding through the wound.
7.Incised wound 12x3x6.2 cm obliquely placed on the back of left thigh its upper end 15 cm above Crl. Appeal No.799/ 2009 21 knee.
8.Three obliquely parallel incised wounds 12x1x5cm 18x19 cm exposing the joint cavity, 16x5.5x7 cm separated by tags of skin, 2cm and 5cm broad in between, placed on the outer and back aspect of left thigh, knee and leg, the upper one was at the level of knee. Lateral condlye of femur was found cut and separated. Popliteal blood vessels and nerves were cut cleanly along with muscles.
9.Contusion 3.5x2x0.5 cm on the outer aspect of tip of right shoulder.
10. Contusion 0.8x0.5x0.5cm on the front or right arm 14 cm above elbow.
22. The evidence of PW19, the doctor who had conducted autopsy would show that the injuries which resulted in the death of Hamza were 8,5,3 and 4 which, according to the doctor, was sufficient to cause the death of the person concerned.
23. There can be no dispute that the death of Hamza was homicidal. But the question is whether the evidence furnished by PWs.1,2 and 18 can be believed. Their evidence have been discussed in detail and their versions of the Crl. Appeal No.799/ 2009 22 incident were not uniform or compatible with each other. A reading of the evidence would not indicate that they had occasion to see Hamza receiving injuries. At best they had seen Hamza lying on the ground and nothing more. There are contradictions and inconsistencies regarding the material aspects of the prosecution case and the prosecution does not appear to have presented the true picture of the incident before court. It is not discernible from the reading of the evidence of PWs.1,2 and 18 that how exactly the incident originated. PW1 would say that there was an exchange of words. PW2 and 18 would depose otherwise. PW1 would depose that he had not seen the injuries inflicted on Hamza and PW 2 would depose otherwise. According to PW2 and 18 Hamza was first beaten by A1 and he had fallen on the ground. As already noticed if Hamza was the first to receive injuries and fell motionless on the ground, normally he would have taken to the hospital first. But evidence of PWs.1,2 and 18 show that no attention was given to him and the less injured Crl. Appeal No.799/ 2009 23 PW1 was taken to the hospital first. Thereafter PW18 says that when they returned to the spot, he found that Hamza has already been removed to the Medical College Hospital . The version of PWs.1,2 and 18 on the very face of it show inconsistencies and their conduct is also unnatural and does not stand to reason.
24. It cannot be disputed that the property exclusively belonged to the 1st accused. It is admitted that deceased Hamza had instigated PW1,PW2,PW18 and CW1 who were engaged in different profession to go to the property of A1 for uprooting tapioca.
25. The result is that we are unable to concur with the trial court that the evidence of PWs.1,2 and 18 is sufficient to prove the prosecution case. The anomalies, inconsistencies, contradictions noted in their evidence by this Court make it extremely dangerous to place implicit faith on them. We are unable to rely on their evidence and come to the conclusion that the incident has occurred as narrated by the prosecution. Crl. Appeal No.799/ 2009 24 Sequence of evidence as spoken to PWs.1,2 and 18 are totally inconsistent and contradictory thus making the origin and development of the incident extremely doubtful. It is true that Hamza lost his life but that does not mean that inconsistencies and contradictions in the evidence of PWs.1,2 and 18 can be ignored and the accused held guilty. One must remember that they ie. PWs.1,2 and 18 were not innocent spectators at the place and they had no reason to go along with deceased Hamza to the property of A1. Apart from the fact that they had no justification for the act done by them in the property of A1, the inherent weakness and inconsistencies in the evidence of PWs.1,2 and 18 make the prosecution case very vulnerable and open to serious doubt. At any rate, it is clear that the incident has not occurred as projected by the prosecution.
26. At the risk of repetition one may see that PWs.1 and 18 do not say that they have witnessed the act of beating on Hamza. The only evidence regarding the attack on Hamza is Crl. Appeal No.799/ 2009 25 given by PW2. PW2's evidence, as already noticed, do not inspire confidence in the mind of court and not free from doubt. His version is totally inconsistent with the versions given by PWs.1 and 18. PW1 has no case that he suffered injuries while going to the rescue of one Ajayaghosh, while PW18 would say otherwise. PW2 does not admit that there was an exchange of words between Hamza and the accused when Hamza reached the property of A1 for uprooting tapioca, while the evidence of PW1 is otherwise. Thus the evidence of PW2 is also not credit-worthy or acceptable. There is nothing in evidence to show that the incident has occurred as alleged by the prosecution and appellants are entitled to benefit of doubt.
27. In the result the appeal is allowed, the appellants (accused Nos.1 and 3) are found not guilty of the offence punishable under Section 302 read with Section 34 of the Indian Penal Code and acquitted for the said offence. They shall be released from prison forthwith, unless their continued Crl. Appeal No.799/ 2009 26 detention is found necessary in connection with any other case.
M.Sasidharan Nambiar, Judge P.Bhavadasan, Judge sj