Cheriyan @ Cheriyachan & Joy v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** **&** **THE HONOURABLE MR.JUSTICE N.ANIL KUMAR** **FRIDAY, THE 30TH DAY OF AUGUST 2019 / 8TH BHADRA, 1941** **CRL.A.No.809 OF 2015(A)** **(CP 51/2006 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-II, KOLLAM)** **AGAINST THE JUDGMENT IN SC No.1566/2006 DATED 16-07-2015 OF ADDITIONAL DISTRICT & SESSIONS COURT - VI, KOLLAM CRIME No.213/2005 OF Sakthikulangara Police Station** ## **APPELLANTS:ACCUSED Nos.1 & 3 :-** **1 CHERIYAN @ CHERIYACHAN, AGED 57 YEARS, S/O.GABRIYEL, KEVINDALE NAME AS PALLIYUDE, VADAKKATHIL, SAKTHIKULANGARA CHERI, SAKTHIKULANGARA VILLAGE. 2 JOY, AGED 36 YEARS, S/O.MATHEW, KALLIKKATTUTHOPPIL VEEDU, VADAKKATHIL, SAKTHIKULANGARA CHERI, SAKTHIKULANGARA VILLAGE.** **BY ADVS. SRI.P.VIJAYA BHANU (SR.) SRI.VIPIN NARAYAN** ## **RESPONDENT:COMPLAINANT :-** **STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **SR.PUBLIC PROSECUTOR - SRI.S.U.NAZAR** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 02-08-2019, THE COURT ON 30-08-2019 DELIVERED THE FOLLOWING:** Crl.A.No.809 of 2015 :-2-: ## **JUDGMENT** ## **N.ANIL KUMAR,J:** Accused Nos.1 and 3 in S.C.No.1566/2006 on the file of the Additional Sessions Court -VI, Kollam are the appellants in this appeal. By judgment dated 16.7.2015, the trial court convicted and sentenced A1 and A3 to undergo imprisonment for life and to pay a fine of Rs.3,00,000/- by both equally, in default of fine, to undergo rigorous imprisonment for one year more for the offence punishable under Section 302 read with Section 34 of IPC. The fine amount, if realized, was ordered to be given to the parents of the deceased Emmanuel under Section 357(1) of Cr.P.C. A1 and A3 were further convicted and sentenced to undergo imprisonment for one year each for the offences punishable under Sections 323 and 324 read with Section 34 of IPC. For the offence punishable under Section 341 read with Section 34 of IPC, A1 and A3 were convicted and sentenced to undergo simple imprisonment for one month each. Further A1 and A3 were sentenced to rigorous imprisonment of one year each under Section 201 read with Section 34 IPC. All the above sentences were ordered to run concurrently. 2. First accused Cheriyan @ Cheriyachan is the father of the second accused Kevin. The 3[rd] accused is the Crl.A.No.809 of 2015 :-3-: son-in-law of the 1[st] accused. The 2[nd] accused was a juvenile on the date of commission of the offfence. Hence, the case against him was split up for trial and disposal in accordance with law by order in Crl.M.P.No.1469/2012 dated 22.6.2013. The case against the 2[nd] accused was forwarded to the Juvenile Justice Board, Kollam for trial and disposal. The parties and proceedings are hereinafter referred to as stated in the trial court proceedings unless otherwise stated. 3. Prosecution case, in brief, is hereinbelow:- On 14.8.2005 at 8.45 pm. out of prior enmity towards PW1 Jijo and his friend Emmanuel, accused Nos.1 to 3 in furtherance of their common intention to do away with the aforesaid Emmanuel, wrongfully restrained him near the meat shop bearing door No.1/290 owned by A2 and conducted by PW7, and thereafter, the 2[nd] accused inflicted a cut injury to PW1 with MO2 sword. On seeing this, the aforesaid Emmanuel made an attempt to block the same. Feeling agitated, accused Nos.1 to 3 pulled him and dragged him to the nearby pathway on the western side of the meat shop just opposite to Sakhi Building. Further, A1 stabbed Emmanuel with MO2 knife at his lower abdomen and thereafter, A2 made a cut injury on the top portion of the left Crl.A.No.809 of 2015 :-4-: eye lid of the deceased with MO1 sword and as a result of which, Emmanuel had fallen down. Then, A1 kicked him several times on his face and other parts of the body and made an attempt to ride a motor cycle over the body of Emmanuel. Emmanuel succumbed to the injuries sustained to him later. Thus, the accused committed the offences punishable under Sections 341,323,324,201,302 r/w 34 of the Indian Penal Code (for short 'the IPC'). 4. Ext.P1 First Information Statement was given by PW1 at 2 a.m. on 15.8.2005. PW21, who was the Sub Inspector of Police, Sakthikulangara Police Station, recorded Ext.P1 FIS and registered Ext.P19 FIR and forwarded to the court on the same day. PW22 the Circle Inspector of Police, Chavara took over charge of the investigation of this case on 15.8.2005 and conducted inquest in the presence of witnesses. He prepared Ext.P20 inquest report on that day. He had taken into custody the shirt, pants, jetty, belt, ring etc. worn by deceased Emmanuel. He had located the sharp edged cut, 4.5 cm length in front of the jeans particularly 7.5cm on the left side from the zip portion. He also prepared Ext.P21 scene mahazar specifying the place of occurrence. As per Ext.P21, the place of occurrence is in front of the meat Crl.A.No.809 of 2015 :-5-: shop as well as on its western side of Eerapuram pathway. The meat shop is situated at the southern side of the public road, which starts from Sakthikulangara Peedikamukku Junction to the harbour, popularly known as port road. PW22 took custody of the blood stained sand, a pair of slippers etc. as per Ext.P21 mahazar. PW22 noticed blood on the western sidewall of the meat shop and western wall of the pathway leading to Earappuram where the occurrence took place. Over and above, PW22 had noticed blood on the pathway as well as on the northern tar road portion, i.e., 6.2 metres away from the place of occurrence. The portions where the blood marks were found, are specifically noted in Ext.P17 scene plan prepared by PW19, the Village Officer. PW22 arrested the accused on 22.8.2005 at 11 a.m. from AGC Nursing Home at Kollam by Ext.P26 arrest memo. On being questioned, the accused confessed that he would show the place where he had kept MO2 knife if he was taken there. Based on Ext.P5 (a) confession statement as aforesaid, PW22 went to the meat shop as led by the accused and recovered MO2 knife from the meat shop and entrusted to PW22. Pursuant thereto, PW22 prepared Ext.P5 recovery mahazar and produced before court. PW22 arrested the third accused on 26.8.2005 Crl.A.No.809 of 2015 :-6-: from the E.A.K.Lodge at Kottiyam. He had prepared Ext.P14 mahazar verifying the lodge register in the presence of PW16, who was then working as the care taker of the said lodge. Thereafter, he conducted search of A1's residence in accordance with law and prepared Ext.P23 search list. However, nothing was recovered from the house. Based on the confession statement of A1, PW22 went to Vrindavan Lodge, Medical College, Thiruvananthapuram and prepared Ext.P6 mahazar, verifying Ext.P7 Lodge Register. PW11 identified A1 and A3 respectively. On being questioned, A3 confessed that the shirt and the pant worn by the victim were thrown away on the western portion of the lodge and he would show the same if he was taken there. Accordingly, he proceeded to the place as led by the accused and recovered the shirt and pant as per Ext.P13 mahazar. PW22 also questioned the Doctor, who treated A1. PW22 made a request to disclose the identity of Mos.4 and 5 motor cycles, which were utilised by the accused for committing the offence. Pursuant to the letter issued by PW22, Additional RTO, Kollam issued Exts.P30 and P31 certificates. The registered owner of the vehicle as per Ext.P31 is the first accused. PW22 further conducted enquiry regarding the Crl.A.No.809 of 2015 :-7-: ownership of the building where the meat shop was conducted. Ext.P32 ownership certificate would show that the second accused was the owner of the building on the date of occurrence. PW22 questioned the witnesses, completed the investigation and filed the final report before the Judicial First Class Magistrate Court-II, Kollam where the case was taken as C.P.No.51/2006. The learned Magistrate committed the case to the Sessions Court,Kollam, after complying with the usual formalities. The learned Sessions Judge took cognizance of the offence under Section 302 of IPC and registered the case as SC No. 1566/2006 from where the case was made over to the Additional Sessions Court-VI, Kollam for trial and disposal. 5. The accused entered appearance before the Sessions court through a counsel of their choice. As indicated earlier, the case against A2 was split up for trial and disposal in accordance with law. Charge was framed against A1 and A3 for the offences punishable under Sections 341,323,324,201 and 302 r/w 34 of IPC. Accused 1 and 3 pleaded not guilty to the charge whereupon the prosecution was permitted to adduce evidence in support of their case. 6. The prosecution altogether examined PWs.1 to 25 Crl.A.No.809 of 2015 :-8-: and got marked Exts.P1 to P36(a) and five material objects were marked as MOs.1 to 5. Exts.D1 to D8 were marked on the side of the defence. 7. After the closure of the prosecution evidence, the accused 1 and 3 were questioned under Section 313(1)(b) of Cr.P.C. with regard to the incriminating circumstances appearing against them in the evidence for the prosecution. Their evidence is one of total denial. The first accused filed an additional statement contending that he was employed in Gulf countries for a period of 20 years. He had purchased an area of 5 cents with a small shop and an adjacent old house therein out of the income he earned while he was working in Gulf. PW5 was interested in purchasing the property earlier. Since he purchased the property incurring more amount, PW5 was on inimical terms with him. Before one week from the date of occurrence, he had done maintenance of the shoproom and the house expending money from his pocket. On 13.8.2005, his only daughter delivered a premature baby. The baby died instantaneously. After the funeral of the baby, he went to the property purchased by him for paying wages to the labourers working there. The workers told him that PW5 came there and abused the workers without any reason. Crl.A.No.809 of 2015 :-9-: Thereafter, in a short while, PW5 also came there. He had started abusing him unnecessarily, which resulted in push and pull between them. Neighbours intervened and prevented PW5 from doing further acts. PW5 left the place threatening him with dire consequences. Apprehending danger, he stayed inside his house. PW5 again came and attacked him. While so, the employees of the meat shop locked the shop and went away from there. Around 8 p.m. PW5 and PW1 along with a group of people came there, trespassed into his house and assaulted him. While so, he sustained injuries on the finger of his left hand. His relatives assembled, which resulted in a scuffle, consequent to the attack made by PW5 and others. According to the first accused, Emmanuel sustained injuries on the very same occurrence. After the occurrence, the first accused was taken to the Medical College Hospital and he underwent treatment there. After undergoing initial treatment at the Medical College Hospital, he came to Kollam and underwent treatment at Chacko Hospital as an inpatient. The Police had arrested the first accused from there. He had no prior acquaintance with the deceased. He maintained that he is totally innocent. Crl.A.No.809 of 2015 ## :-10-: 8. The fact that Emmanuel died as a result of homicidal stab injury sustained by him as a result of the occurrence on 14.8.2005 at 8.45 p.m. is not in dispute. PW22 prepared Ext.P20 inquest report on 15.8.2005 at 9.30 am. In Ext.P20 inquest report, in column Nos.7 and 8(a), PW22 noted the fatal injury at the left side of lower abdomen as well as head of the deceased. Column No.11 in Ext.P20 is pertaining to the apparent cause of death. PW22 noted that the victim died as a result of injuries inflicted with dangerous weapons. 9. PW18 Dr.C.S.Sreedevi, Additional Professor of Forensic Medicine and Deputy Police Surgeon, Government T D Medical College, Alappuzha conducted autopsy on the body of the deceased and prepared Ext.P15 postmortem certificate. PW18 noted the following ante mortem injuries:- ## “INJURIES (ANTE MORTEM) 1. Abrasion 5.3x1.5cm on the right side of face 3cm in front of tragus of ear. 2. Lacerated wound 1.2x0.3x0.3 cm on the right side of face of the outer end of right eyebrow with an abrasion 3x1.5cm around. 3. Abrasion of 2x0.8cm on the right side of forehead 2.3cm above the middle of eyebrow. 4. Incised wound 1.2x0.3x0.4cm oblique on the left side of head its lower back end 4.1cm above the upper end of ear. Brain showed subdural and sibrachnoid hemorrhages, Sulci were narrowed and gyri flattened. Crl.A.No.809 of 2015 :-11-: 5. Incised punctured wound 5.3x1cm having sharply cut ends,oblique on the left side of lower abdomen. Its lower inner end 3.4cm outer to midline and 2.5 cm above the root of penis. The wound terminated in the femoral canal of right thigh completely serving the femoral vessels 5.5cm below the mid-inguinal point. The wound directed downwards and to the right in the muscle plane for a depth of 16.5cm. Right side of scrotal sac contained 180 gms of blood clot. 6. Abrasion 1.5x0.6 cm on the top of right big toe 3.5cm behind its tip. 7. Two abrasions 0.5x0.5cm each, 1cm. apart on the top of second toe of right foot the distal one being 1.5 cm behind its tip. Air passage contained mucoid fluid. Lungs were pale. Stomach contained unidentifiable food materials in 250 ml of watery fluid medium having no unusual smell, mucosa normal. Urinary bladder was empty. All other internal organs were pale, otherwise appeared normal.” PW18 testified that injury Nos.4 and 5 are fatal injuries, which caused the death of the victim. According to PW18, injury Nos.4 and 5 are independently sufficient to cause death of the victim, though injury Nos.1 and 3 have also contributed to cause death of the victim. PW18 opined that injury No.4 could be caused by MO1 sword whereas injury No.5 could be caused by MO2 weapon or any other similar weapon. PW18 further clearly stated in Ext.P15 postmortem report that the blood group of deceased Emmanuel was 'O' Rh positive. 10. PW14 is the Director of State Forensic Lab, Crl.A.No.809 of 2015 :-12-: Thiruvananthapuram, who verified the jeans worn by the deceased at the time of occurrence and formulated an opinion that a severance seen in front of the jeans could be caused by a sharp edged weapon. He also identified rubber footwear used by the deceased at the time of occurrence. PW14 issued Ext.P10 certificate dated 25.10.2005 stating the above details. 11. PW20, the Joint Director of Forensic Lab, Thiruvananthapuram examined and verified 17 material objects to find out the presence of blood, its origin and group. On examination, PW20 issued Ext.P18 certificate stating that item Nos.1 to 5, 7 to 9, 11,13,15 and 16 contained human blood coming under the category of 'O' group. Item No.13 is MO2 alleged to have used by A1 to stab the deceased. The blood contained in item No.14 was insufficient to determine its origin and group. Item No.14 is MO1 sword.On going through the scientific evidence, it is clear that Emmanuel died as a result of injury Nos.4 and 5. 12. PW1 Jijo, who is the son of PW5 Justin, was a close friend of deceased Emmanuel. He had witnessed the occurrence when he was standing in front of his house under the name and style 'Sakhi Building', just opposite side of the Crl.A.No.809 of 2015 :-13-: meat shop being conducted by A1 and A2. On the date of occurrence, PW1 accompanied PWs.2 and 3, who were coming through Port road towards east in order to visit the house of PW2 in connection with the house warming ceremony. On the way, they had a discussion with deceased Emmanuel, who was standing in front of his house adjacent to the road, in respect of an occurrence, which took place at 8.30 p.m. inside the meat shop. 13. PWs.5 and 9 adduced evidence that on 14.8.2005, in the evening, when they were on the way to Kollam Town, they had an occasion to see a 'goat head' for sale inside the meatshop of PW7. Immediately, they paid an advance amount of Rs.25/- to the meat vendor and agreed to pay the balance amount as and when they returned from Kollam town for collecting the same. They returned by 8.30 p.m. and purchased the 'goat head'. While so, PW5 had demanded a goat liver exhibited in the meat shop for sale. When the demand was made, A1 suddenly came in his MO5 scooter and demanded the goat liver instead of selling to PW5. He had a feeling that he, being the owner of the shop and let out to PW7's father for conducting a meat shop, had a better claim to purchase the goat liver. Consequently, A1 assaulted PW5, Crl.A.No.809 of 2015 :-14-: slapped on his face and pushed him down inside the meat shop, while he was sitting on a bench. Feeling agitated, A1 took a broken bottle and attempted to stab PW5. PW9 had obstructed the attempt of A1 and while so, PW9 and A1 sustained injury in their hands. Thereafter, PW5 went back home, which is situated just opposite to the meatshop. Similarly, PW9 also went back home and thereafter, underwent treatment at Sanker's Hospital. A1 also left the place. PWs.5 and 9 had witnessed the occurrence at 8.30 p.m. inside the meatshop on the same day. PW7, yet another witness, who had witnessed the very same occurrence, though turned hostile to the prosecution, had admitted the presence of PW5, PW9 and A1 at the occurrence place and the role played by A1 touching the purchase of 'goat liver' and 'goat head' from the shop of PW7. 14. As indicated earlier, PWs.1 to 3 had discussion with deceased Emmanuel touching the occurrence detailed above, which took place at 8.30 p.m. on the same day inside the meat shop. While so, A1 along with his son A2 had passed through the road towards the house of PW1 by MO4 motor cycle. After some time, A3 passed through the same direction on the motor cycle of Mr.Astin as a pillion rider. Crl.A.No.809 of 2015 :-15-: PW1 had a genuine doubt regarding the conduct of A1 and A2. He doubted that they were going to create nuisance at his residence to wreak vengeance against his father in connection with the occurrence, which took place at 8.30 pm. Hence he had decided to go back to his house in the motorcycle owned by PW4 Hillari, who came through the road towards western side for the purchase of goods. The deceased Emmanuel also went along with him on the bike owned by PW4. When PW1 and Emmanuel reached in front of the house of PW1, A2 attempted to assault PW1 with MO1 sword, which he took from the pipe additionally fitted on the crash guard of MO4 motor cycle. Emmanuel had immediately obstructed an attempt made by A2 standing in between them. The conduct of Emmanuel was not liked by A1 to A3. A1 and A3 dragged Emmanuel towards Eerappuram pathway (the western side of the meatshop) and both of them assaulted Emmanuel by fisting and kicking. Suddenly, A1 took a knife from his waist and stabbed at the lower portion of the abdomen of Emmanuel. As a result of the attack, blood started oozing out profusely and deceased fell on the ground. The deceased sustained injuries on his face. Although the victim cried and requested to spare him, according to PW1, Crl.A.No.809 of 2015 ## :-16-: A1 kicked the deceased 3 or 4 times and made an attempt to ride over the body of Emmanuel using MO4. After sometime, PW3 also reached there and they took Emmanuel in an autorickshaw driven by PW8 came through the way along with passengers. On the request of PWs.1 to 3, the passengers alighted there so as to take the injured to the hospital. They took the deceased to Upasana Hospital from where he was shifted to the Police Station and then to the Kims Hospital, Trivandrum in an ambulance. A1 had gone through the highway portion in his motor cycle from the scene. A2 and A3 followed the suit. PW1 came back to Sakthikulangara Police Station in the very same ambulance and gave Ext.P1 before the Sub Inspector of Police, Sakthikulangara at 2 a.m on 15.8.2005. 15. PW2 is a friend of PW1 and deceased Emmanuel. PW2 is also the cousin of PW3. PWs.2 and 3 supported the evidence let in by PW1. PWs.1 to 4 and Emmanuel were residing near to the place of occurrence and the first accused was residing 500 meters away from the place of occurrence towards east at Kevin Dale @ Pallikku Vadakkathil Veedu, Sakthikulangara. Kevin is the second accused, who is none other than the son of A1. Crl.A.No.809 of 2015 :-17-: 16. A1, PW5 and PW9 were classmates. A1 had purchased two cents of property in Sy.No.12/13-5 just opposite to Sakhi Building prior to the incident in the name of A2, who is admittedly a juvenile on the date of commission of offence and let out to one Shamsudeen, who is the father of PW7, for conducting the meat shop. The building consists of two rooms, which could be evident from Ext.P33 letter issued by the Secretary, Kollam Corporation on 2.12.2005. Ext.P32 is the Certificate dated 1.12.2005 issued by the Charge Officer of Sakthikulangara Zonal, Corporation of Kollam wherein it is certified that the building bearing Door No.1/290 is owned by one Kevin, Pallivadakkethil, Sakthikulangara. Shamsuddin was conducting the meatshop detailed in Ext.P33 on the date of occurrence. 17. PW6, a blacksmith by profession testified that he had manufactured MO1 sword, concealed and locked it within an iron pipe brought by A1 on his request and received a payment of Rs.450/-. He had identified MO4 motor cycle and MO1 sword before court. 18. PW10, an employee of the meatshop being conducted by PW7 identified MO2 knife kept in the meatshop and witnessed the recovery of MO2 knife by A1 on 23.8.2005 Crl.A.No.809 of 2015 :-18-: at 8 am in the presence of PW22. He had put his signature in Ext.P5 recovery mahazar. PW22 recovered MO2 based on the confession statement of A1 in accordance with Section 27 of the Evidence Act. 19. From the evidence on record, we find that the trial court has elaborately discussed all the points in detail. Exts.D1 to D8 contradictions have been dealt with elaborately in the impugned judgment. It is well settled law that minor discrepancies or contradictions or omissions are not to be given undue emphasis and evidence is to be considered from the point of trustworthiness. The real test is the evidence, which inspires confidence in the mind of the court. The trial court, on well-founded reasons, considered each and every minor contradictions, omissions, inconsistencies as trivial matter, which do not affect the framework of the prosecution case. We agree with the views of the trial court. 20. Assailing the finding of conviction, the learned Senior counsel for the appellants Sri.P.Vijayabhanu submits that since there was a delay in lodging the FIR, serious doubts arise as to the genuine nature of the prosecution case. It is contended that the accused also sustained injuries in the Crl.A.No.809 of 2015 :-19-: very same occurrence for which the prosecution has not offered any explanation and the prosecution has suppressed the genesis of the occurrence. Learned counsel for the appellants contends that even if the prosecution case is accepted as gospel of truth, offence under Section 302 IPC is not made out, in view of the circumstances emerging from the evidence adduced as the attack was in a scuffle when parties had assembled in front of the meat shop in respect of purchasing meat from the shop. 21. The main contention of the appellants is that the prosecution has not explained the injuries on the person of the accused and PW1 and others are the aggressors. In the written statement filed under Section 313 of Cr.P.C., the first accused contended that there was a scuffle at the time of occurrence and PW1 and others sustained injuries on account of the same. It is also contended that the prosecution failed to prove the injuries sustained on PW1 and therefore, the prosecution case should be disbelieved. 22. In the very same incident, PW1 sustained injuries. On 15.8.2005, PW13 the Lecturer in Orthopaedic, Medical College Hospital, Thiruvananthapuram examined A1 in the midnight at 00.00 hours and issued Ext.P9 wound certificate. Crl.A.No.809 of 2015 :-20-: On going through Ext.P9, it is stated that A1 was brought in the casualty of the hospital at Sakthikulangara at 9.30 p.m. PW13 noted the following injuries:- - “1. Lacerated wound 2x2 cm near the volar aspect of right little finger. 2. Lacerated wound 1x1 cm over the volar aspect of right middle finger. 3. Lacerated wound 1x1 cm over the volar aspect of the right finger and 4. Lacerated wound 2x1 cm exterior aspect of right index finger. PW13 also noted tendon injury to the right middle and ring finger.” Accused was admitted as an inpatient in the hospital. However, he had absconded from the ward. PW13 stated that A1 was able to ride motor cycle with the tendon injury on hand. No probable explanation was offered by the defence as to why the accused had left the hospital without intimating the hospital authorities though he was an inpatient in the hospital. He had also offered no explanation as to why he went to Medical College Hospital, Thiruvananthapuram for treatment instead of treating immediately after the occurrence at Kollam. 23. It cannot be held as an invariable proposition that as soon as the accused received injury in the same Crl.A.No.809 of 2015 :-21-: transaction, the deceased and the de facto complainant were the aggressors. It cannot be held as a rule that the prosecution is bound to explain the injuries and in case of failure, the prosecution case should be disbelieved. It is well settled proposition that before placing the burden on the prosecution to explain the injuries on the person of the accused, two conditions are to be satisfied; - i) the injuries were sustained by the accused in the same transaction; and - (ii) the injury sustained by the accused is serious in nature. 24. In the present case, evidence tendered by PWs. 5 and 9 is eloquent to show that prior to the occurrence, at 8.30 pm, A1 took a broken liquor bottle and attempted to stab PW5. While so, PW9 obstructed the attempt and A1 and PW9 sustained injuries at their hands. The prosecution has adduced evidence to show that the injuries sustained to A1 were not in the same transaction. On going through the injuries sustained by the accused, the injuries are not serious in nature. 25. The Supreme Court has considered the effect of non-explanation of injuries sustained by the accused in **Takhaja Hiraji** v. **Thakore Kubersing Chamansing and** Crl.A.No.809 of 2015 :-22-: ## **Others** [(2001)6 SCC 145] and held as under:- “17. The first question which arises for consideration is what is the effect of non-explanation of injuries sustained by the accused persons. In Rajender Singh vs. State of Bihar, (2000) 4 SCC 298; Ram Sunder Yadav vs. State of Bihar, (1998) 7 SCC 365 and Vijayee Singh vs. State of U. P., (1990) 3 SCC 190 all 3- Judge Bench decisions, the view taken consistently is that it cannot be held as a matter of law or invariably a rule that whenever the accused sustained an injury in the same occurrence, the prosecution is obliged to explain the injury and on the failure of the prosecution to do so the prosecution case should be disbelieved. Before non-explanation of the injuries on the persons of the accused persons by the prosecution witnesses may affect the prosecution case, the Court has to be satisfied of the existence of two conditions: (i) that the injury on the person of the accused was of a serious nature; and (ii) that such injuries must have been caused at the time of the occurrence in question. Nonexplanation of injuries assumes greater significance when the evidence consists of interested or partisan witnesses or where the defence gives a version which competes in probability with that of the prosecution. Where the evidence is clear, cogent and credit worthy and where the Court can distinguish the truth from falsehood the mere fact that the injuries on the side of the accused persons are not explained by the prosecution cannot by itself be a sole basis to reject the testimony of the prosecution witnesses and consequently the whole of the prosecution case.” 26. From the evidence let in by the prosecution, it is clear that the injury on the person of the accused was not of serious in nature; and that the injuries were caused not at the time of occurrence in question. The prosecution explained the injury sustained to A1 satisfactorily and evidence adduced by PWs.1 to 7 is clear, cogent and trustworthy. Crl.A.No.809 of 2015 :-23-: 27. In retaliation of the earlier incident, the accused came to the spot in furtherance of their common intention and assaulted the deceased. Both the deceased and PWs.1 and 2 were unarmed. Initially, A1 made an attempt to assault PW1, which was prevented by the deceased. Feeling agitated, A1 stabbed the deceased with MO2 knife. A2 and A3 facilitated A1 to complete the task. Even after inflicting a severe injury on the deceased, A2 inflicted one more injury to the deceased with MO1 sword. The sequence of events would show that A1 and A3 in furtherance of their common intention inflicted severe injuries on the deceased and the deceased succumbed to the injuries later. There is clear evidence to prove as to who had started the attack. From Ext.P15 postmortem report, PW18 noted that the deceased sustained injuries to his head and left side of lower abdomen. 28. There was no delay in lodging the First Information Statement. At the time of examination, PW21 testified that though he was in charge of G.D. from 8 pm on 14.8.2005 to 8 am on 15.8.2005, he had obtained permission from his higher officials and went to his home at Thiruvananthapuram on the date of occurrence. At about 9 p.m. on 14.8.2005, he received a telephone message from the Police Station that a Crl.A.No.809 of 2015 :-24-: boy had sustained stab injury at Sakthikulangara. He immediately started from Thiruvananthapuram to Kollam and on the way, he received information that the aforesaid boy had passed away. He reached the police station at 11pm on 14.8.2005 and recorded the First Information Statement given by PW1 on 15.8.2005. Immediately, he posted Police Constables to guard the scene of occurrence. PWs.23, 24 and 25 were examined to prove Exts.P35 and P36 before court to prove the genuineness of the FIR. On a perusal of Exts.P35 and P36, it is clear that the relevant entries in respect of Ext.P19 and also its entrustment with PW25 are clearly noted. According to PW25, he had received Ext.P19 FIR at 3am on 15.8.2005, but could not entrust the same to the learned Magistrate during the day time on account of a 'Harthal' declared in the area. He was in additional duty in connection with the Harthal. After the 'Harthal' was over, PW25 entrusted Ext.P19 at the residence of the Magistrate, who in turn made an endorsement in Ext.P19. Having regard to the above facts and circumstances, we are inclined to hold that there was no delay in submitting the FIR before the court. 29. The question falling for consideration now is the Crl.A.No.809 of 2015 :-25-: nature of offence whether it would fall under Section 34 of IPC or not. The learned Senior Counsel for the appellant heavily relied on the following decisions and submitted that the role played by A1,A2 and A3 are distinct and separate. 1. **Sripathi and Others** v. **State of Karnataka** [(2009)11SCC 660] 2. **State of U.P.** v. **Jamshed and another** [1994 Suppl.(1) SCC 610] and 3. **Madhu** v. **State of Kerala** [2017(4) KLT SN 24 C.No.28]. According to the learned Senior Counsel, it is the prosecution version that A1 had MO2 knife in his possession and he suddenly brought out and stabbed the deceased. 30. It is true that Section 34 of IPC has been enacted on the principles of joint liability in the commission of a criminal act. The liability of one person for an offence committed by another in the course of criminal act perpetrated by several persons arise under Section 34 of IPC if that act is done in furtherance of a common intention of all the persons who joined in committing the crime. In this case, the facts are very clear. There was a plan or meeting of minds of all the accused persons to commit the offence. They had a clear motive to commit the crime. It was a Crl.A.No.809 of 2015 :-26-: prearranged plan in continuation of the earlier occurrence. It could not be treated as an event on the spur of the moment. On analysing the entire evidence, we are satisfied that the accused are liable for the act which caused the death of the victim. 31. According to the prosecution, the earlier incident which took place at 8.30 p.m. was the immediate cause to commit the offence at 8.45 p.m. Immediately, after the occurrence at 8.30 p.m., A1 went back from the meatshop in his MO5 scooter and rushed to the spot along with his son A2 in his MO4 motor cycle, wherein MO1 sword was concealed inside a pipe additionally fitted in the crashguard. A3 also came to the scene of occurrence along with A1 and A2, which would inter alia show identity of minds and consensus among all the accused to do away with the victim. In the case on hand, the prosecution has attributed common intention of A1 and A3 along with A2 to murder Emmanuel. Under the circumstances, it should be shown that all the accused shared common intention to murder the victim. The provision is intended to meet a case to which it may be difficult to distinguish between acts of individual members of a party who act in furtherance of common intention of all or Crl.A.No.809 of 2015 :-27-: to prove exactly what part was taken by each of them. For applying Section 34 of IPC, it is not necessary to show overt act on the part of each and every accused. It is settled principle of law that Section 34 is applicable even if no injury has been caused by the particular accused himself. Initially A2 made an attempt to chop PW1 with MO1 sword, but Emmanuel succeeded in blocking the same. Apparently, offended by the action of Emmanuel, A1 and A3 dragged Emmanuel towards Eerappuram pathway adjacent to the meatshop and A1 stabbed on the abdomen of the victim with MO2 knife. While blood was profusely oozing out, A2 made a cut injury on the head of Emmanuel with MO1 sword. Merely because A2 could not be tried along with other accused in this case for the reason that he was a juvenile on the date of occurrence and the competent forum to deal with the case of a juvenile is the Juvenile Justice Board, the entire circumstances and evidence would show that A3 did not make any attempt to prevent A1 and A2 from inflicting injuries on the deceased. Had A2 been in the party array as a major before this Court, it would not have been possible to raise a contention that A3 had no common intention to commit the crime. The sequence of events inter alia would Crl.A.No.809 of 2015 :-28-: show that A3 shared common intention with A1 to commit the crime. PWs.5 and 9 adduced evidence to show that an occurrence took place on 14.8.2005 in the evening just prior to the occurrence which prompted the accused to commit the offences. 32. Coming to the question as to whether the nature of the offence would fall under Section 302 or under Section 304 of IPC. It is necessary to examine the testimony of the eye witnesses. From the evidence recorded by the trial court, it is clear that the case of the prosecution is mainly based on the oral evidence of PWs.1 to 7 and PW18 the Doctor who conducted the autopsy. It is brought out in evidence that the nature of injuries inflicted by the first accused was such that the first accused had an intention to do away with the deceased totally. This was done in furtherance of his common intention with A2 and A3. According to the prosecution witnesses, there were sufficient electric lights to witness the occurrence. PWs.1 to 4 had seen clearly the accused inflicting stab injury on the deceased. PW1 testified that the deceased has rushed to save him from inflicting injuries which ultimately turned against him. PW1 could not save the deceased from inflicting Crl.A.No.809 of 2015 :-29-: injuries on him as he had inflicted severe fatal injury on him with MO2 with the aid of A2 and A3. It is stated that when he found the deceased lying in a pool of blood, he took him to the hospital with the help of others, who had rushed to the scene of occurrence. 33. The case was tried by the trial judge, who held that the accused 1 and 3 were guilty of murder. It was not urged before the trial court that the appellants were not guilty of murder, but at the most, the appellants would be held guilty under clause(ii) of Section 304 of IPC. The contention was taken first time before this Court. 34. The trial court came to the conclusion that the direct evidence brought on record contained positive proof and factual proof linking the accused with the commission of murder. The trial court convicted the accused upon the following evidence. - I) Relied upon the statement of Pws.1 to 7 regarding the occurrence. - 2) There was clear motive to commit the crime in view of the earlier occurrence on the same day. - 3) The accused 1 and 2 were armed with deadly weapons to commit the crime and A3 assisted A1 and A2 to Crl.A.No.809 of 2015 :-30-: accomplice the act. - 4) The accused 1 and 3 forcibly took the deceased towards the pathway adjacent to the meatshop and assaulted the deceased. - 5) The accused 1 to 3 were present at the occurrence place. - 6) The injuries found on the victim are sufficient to cause death. - 7) The nature of injuries found on the deceased was antemortem. - 8) The accused did not take the deceased to the hospital and left the place immediately after the occurrence. - 9) The accused No.1 brought MO2 knife with a design to cause the death of the victim. - 10) Accused No.1 instigated his minor son to make preparation for the crime and he brought MO1 sword safely in his motor cycle to commit the crime. - 11) Considering the nature of injury found on the deceased, those injuries could not have been caused by accident or negligence. - 12)Testimonies of PWs.1 to 7 are accepted regarding the time, place, light, nature of fatal injuries Crl.A.No.809 of 2015 :-31-: sustained by the deceased on the date of occurrence as well as the identity of the accused. 35. The accused 1 and 3 were present at the scene of occurrence on the date of occurrence. The injuries inflicted all over the body of the deceased as held by the trial court were caused by attacking him forcibly is a strong circumstance against the accused which cannot be brushed aside likely. More so, in view of the conduct of the accused, the injury sustained at the left side of lower abdomen as well as the head of the accused indicate that the deceased was subjected to violence before inflicting injuries. In the Section 313 statement, the first accused admitted his presence at the time of occurrence. According to him, as a result of a scuffle among a group of persons, the victim sustained injuries. Yet another circumstance which points a finger of doubt on the accused 1 and 3 is that though they were fully aware that the condition of the deceased was critical and was struggling for life while bleeding due to the injuries sustained on him, accused Nos.1 and 3 some how managed to escape from the occurrence place. 36. It is clear from the evidence that A1 and A3 intentionally left from the scene of occurrence and did not Crl.A.No.809 of 2015 :-32-: take the victim to the hospital. A1 cleverly left the district and got himself admitted in the Medical College Hospital for treatment in connection with an injury sustained to him just prior to the occurrence. After coming to know that Emmanuel succumbed to the injuries sustained to him, A1 had absconded from the hospital unauthorisedly apprehending police action against him. The deceased was taken to the hospital by PWs.1 and 2 and others. It goes without saying that had the accused 1 and 3 been innocent as contended by them, they would have certainly taken the deceased to the hospital immediately and lodged the complaint before the Police. The lack of logic in several areas of the case is obvious. 37. Learned Senior Counsel Sri.P.Vijayabhanu appearing for the accused 1 and 3 contends that the appellants had no intention to cause death as alleged by the prosecution. The learned Senior Counsel submits that the bodily injuries found on the deceased were not intentionally inflicted by accused 1 and 3 and that the injuries were not sufficient to cause death in the ordinary course of nature. No doubt, as per the scheme of the Indian Penal Code, all murders are culpable homicide, but not vice versa. According to the Rule laid Crl.A.No.809 of 2015 :-33-: down in **Virsa Singh** v. **State of Punjab** [AIR 1958 SC 465], even if the intention of the accused was limited to the infliction of bodily injury sufficient to cause death in the ordinary course of nature and did not extend to the intention of causing death, the offence would be of murder. To consider as to whether the act was done with the intention of causing death, all acts, utterances and circumstances will be counted together. In the case at hand, the prosecution has proved quite objectively that bodily injuries were present, the nature of the injuries is serious; that there was an intention to inflict the bodily injuries sustained to the deceased on account of prior enmity; that the injuries sustained to the deceased were not accidental or unintentional or that the accused intended to inflict some other kind of injuries. More so, the prosecution has proved that the injuries sustained to the deceased are sufficient to cause death in the ordinary course of nature. The logic is pure and simple. No one has a licence to run around inflicting injuries that are sufficient to cause death in the ordinary course of nature and claiming that they are not guilty of murder. If the accused inflicted injuries of the above, the accused must face the consequences, and the accused can only escape if it is proved Crl.A.No.809 of 2015 :-34-: that the injury was accidental or otherwise unintentional. On going through the evidence of PW18, it is clear that the accused 1 and 2 inflicted several injuries on the body of the deceased with Mos.1 and 2, in furtherance of common intention with A1 to A3 and the nature of the injuries suggest that none of the acts were an impulsive act and rather the manner in which these acts were done clearly established the acts are being premeditated acts. A1 took MO1 from his waist and applied deep in the body of the deceased resulting severe injuries. This would lead to the inference that the accused did the overt act with the intention of causing death to the deceased. We are satisfied that A1 was carrying MO1 safely with him from the meatshop with an intention to cause death of the deceased. Since the injuries were caused in such a brutal manner, there is no scope for discussing the case from the point of having committed the offence due to the lack of knowledge on the part of the accused or its consequences. The present case does not fall under any of the exceptions mentioned in Section 300 IPC, nor has any such exception being proved by the accused during the trial. Needless to say that all the acts of the accused would squarely fall within the first category of Section 300 IPC as Crl.A.No.809 of 2015 :-35-: these acts were done with the intention of causing death. Judged by the above standards, we are of the view that the decisions cited by the learned Senior Counsel do not lay down a different proposition of law other than the rule laid down in Virsa Singh's case (supra). 38. For all the foregoing reasons, we are of the view that there are no valid grounds to alter the conviction of the accused from one under Section 302 to that under Section 304 Part II of the IPC. We are aware of the fact that A2 was a juvenile on the date of commission of the offence and the law does not permit to try A2 along with the other accused in the case. However, we have considered the injuries inflicted by A2 on the deceased during the course of the very same transaction for arriving at a logical conclusion in this case as against A1 and A3. We make it clear that the observations contained in this judgment against A2 are only for the purpose of deciding this case and shall not be used against A2 in the case against him before the Juvenile Justice Board or matters connected thereto. In our considered opinion, the judgment and order of conviction passed by the trial court was based upon proper appreciation of circumstances and the evidence adduced in the case. Crl.A.No.809 of 2015 :-36-: In the result, we uphold the judgment of conviction and order of sentence passed by the court below. The appeal is therefore dismissed. The appellants will suffer the remaining sentence imposed by the court below. Sd/- **A.M.SHAFFIQUE, JUDGE** sd/- **N.ANIL KUMAR, JUDGE** MBS/