CRL.A Nos. 558 & 1213 of 2016 (Kerala High Court)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **&** **THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN** **WEDNESDAY, THE 10[TH] DAY OF NOVEMBER 2021 / 19TH KARTHIKA, 1943** **CRL.A NO. 558 OF 2016** **[AGAINST THE JUDGMENT IN S.C.NO.594/2014 OF THE 1ST ADDITIONAL SESSIONS JUDGE, THRISSUR DATED 27.04.2016]** **[C.P.NO.32/2014 OF JUDICIAL MAGISTRATE OF FIRST CLASS MAGISTRATE’S COURT-I,THRISSUR, THRISSUR]** **APPELLANT/ACCUSED NO.3:** **ALEX, AGED 28 YEARS, S/O.ANTHONY, MANGALAPPULLY HOUSE KODANNUR AMSOM, DESOM THRISSUR DISTRICT.** **BY ADVS. SRI.P.VIJAYA BHANU (SR.) SMT.MITHA SUDHINDRAN SRI.V.C.SARATH** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA** **REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY SRI. S.SREEJITH, PUBLIC PROSECUTOR** **THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 02.11.2021, ALONG WITH CRL.A.NO.1213/2016, THE COURT ON 10.11.2021 DELIVERED THE FOLLOWING:** Crl.Appeal Nos.558 & 1213 of 2016 2 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** ## **&** **THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN** **WEDNESDAY, THE 10[TH] DAY OF NOVEMBER 2021 / 19TH KARTHIKA, 1943** **CRL.A NO. 1213 OF 2016** **[AGAINST THE JUDGMENT IN S.C.NO.594/2014 OF THE 1ST ADDITIONAL SESSIONS JUDGE, THRISSUR DATED 27.04.2016]** **[C.P.NO.32/2014 OF JUDICIAL MAGISTRATE OF FIRST CLASS MAGISTRATE’S COURT-I,THRISSUR, THRISSUR]** ## **APPELLANTS/ACCUSED NOS.1 & 2:** - **1 PRAJIL, AGED 39 YEARS, S/O.THILAKAN, MANDATHARA HOUSE, SASTHAMKADAVU DESOM, KODANNUR VILLAGE, THRISSUR DISTRICT. (C.NO.3029, CENTRAL PRISON, VIYOOR, THRISSUR DISTRICT PIN-680010).** **2 SURESH, AGED 46 YEARS, S/O.RAGHAVAN, THAYYIL HOUSE, CHAKKIARKADAVU DESOM, KODANNUR VILLAGE, THRISSUR DISTRICT.(C.NO.3032, CENTRAL PRISON, VIYOOR, THRISSUR DISTRICT PIN-680010).** ## **BY ADV SRI.MANJU ANTONEY** ## **RESPONDENTS/PROSECUTION/STATE:** **STATE OF KERALA REPRESENTED BY CIRCLE INSPECTOR OF POLICE, CHERPU POLICE STATION, THROUGH PUBLIC PROSECUTOR, HIGH COURTOF KERALA, ERNAKULAM, COCHIN-682031.** **BY SRI. S.SREEJITH, PUBLIC PROSECUTOR** **THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 02.11.2021, ALONG WITH CRL.A.NO.558/2016, THE COURT ON 10.11.2021 DELIVERED THE FOLLOWING:** Crl.Appeal Nos.558 & 1213 of 2016 3 **K.VINOD CHANDRAN & C.JAYACHANDRAN, JJ. ------------------------------------------Crl.Appeal Nos.558 & 1213 of 2016 ------------------------------------------Dated this the 10[th] day of November, 2021** ## **JUDGMENT** **One who lives by the sword falls by the sword; seems to be the defence set up by the three out of the five accused convicted and sentenced in the above case. The two murdered and one grievously injured are projected to be goondas and extortionists; antisocial elements, whose end is a direct consequence of their actions, assert the accused, while also proclaiming their innocence.** **2. The accused five in number were charged under various offences of the Indian Penal Code (for brevity, 'IPC') and the Arms Act. A4 & A5 were acquitted. A1 to A3 were found guilty of offences punishable under S.302 read with S.34 and S.307 read with S.34 IPC. All of them were sentenced to imprisonment for life with a fine of Rupees Ten thousand and default sentence of six months under S.302 read with 34 IPC. They were also sentenced to seven years R.I. and fine of Rupees Ten thousand with default** Crl.Appeal Nos.558 & 1213 of 2016 4 **sentence for six months under S.307 read with S.34 IPC. The sentences are to run consecutively. The incident leading to the alleged offence is said to have commenced in PW1's tea-shop, where first, the deceased and injured came, followed by the accused. A quarrel erupted and the aggressors pushed the victims out on to the road, where they were hammered and slashed to death. One of them, though suffered grievous injuries, survived.** **3. Sri. P.Vijayabhanu, learned Senior Counsel, instructed by Adv. Pooja Pankaj, argued for A3. It was argued that A3's name was never stated by PW1 and there is no allegation of any animosity harboured by A3 against the deceased or the injured. There is no recovery at the instance of A3. Neither the clothes of A3 were recovered nor were the motor bikes seized, in the name of A3. The medical evidence does not indicate any injury having been caused by MO4, which is stated to be the weapon used by A3. The prosecution case, that after the aggression commenced, A3 & A4 ran away from the scene to purchase two swords, with which the deceased were attacked, is** Crl.Appeal Nos.558 & 1213 of 2016 5 **absurd and fallacious. PW4 is a planted witness and her identification of A3 is valueless as the Hon'ble Supreme Court declared in** _**Mohanlal Gangaram Gehani v. State of Maharashtra [1982 (1) SCC 700]**_ **,** _**N.J. Suraj v. State represented by Inspector of Police [(2004) 11 SCC 346]**_ **and** _**State of M.P. v. Chamru @ Bhagwandas [2007 (12) SCC 423]**_ **and** _**Krishnan Kumar Malik v. State of Haryana [(2011) 3 SCC (Cri) 61]**_ **.** **4. It is pertinently pointed out that, Ext.P16 sketch of the scene of occurrence does not depict the shop of PW4. Item No. 15 in Ext.P16 is a hardware shop, which is in a different road, having a different name, contrary to the location and name of the shop elicited from PW4. Admittedly, the deceased and injured were goondas, who were also extortionists. There is medical evidence to show that they were drunk, which is also attested by PW3, the injured. Even as per the Investigating Officer (I.O.), immediately before the incident there was a fight in the barber shop visited by the deceased, which could have eventually culminated in** Crl.Appeal Nos.558 & 1213 of 2016 6 **the death of the goondas; not at all incriminating against A3.** **5. Learned Counsel appearing for A1 & A2, while adopting the arguments of the learned Senior Counsel would address us further. That PW1, neither in the FIS, nor in the 164 statement and not at all in the testimony speaks of A2. The entire prosecution case rests on PW1 to PW3. PW3, it is asserted, is a planted witness. Even the trial court refused to take into account the testimony of PW3 by reason of the rank embellishments. The story of his intervention in the melee was not spoken of at the first instance to the Police. The recovery under S.27 is seriously challenged since only the relatives have been made witnesses. The casual statement of the mahazar witnesses that they came to know of the accused being brought for recovery cannot be believed, since the concealment is spoken to the Police, who would not divulge it to the public. Challenging the testimony of PW2, it is pointed out that there is pictorial testimony of the overt acts committed, which itself makes it** Crl.Appeal Nos.558 & 1213 of 2016 7 **unbelievable. The genesis of the incident indicates a melee in which there were a number of people involved. The learned Counsel argues that, for one, the accused should be given the benefit of doubt, especially since there are many people involved in the melee that erupted inside PW1's tea-shop. The alternate contention is that in any event the punishment has to be under S.304, since the incident occurred in the heat of passion.** **6. Sri. Sreejith, learned Public Prosecutor, relies heavily on the 164 statement of PW1. It is argued that, PW1 has deposed that he is the relative of A2 and the suppression of his name is intentional. PW1 to PW3 are reliable witnesses and their evidence is clinching. The medical evidence by the Doctor who conducted the postmortem is corroborated by PW23 & PW24. The report of chemical examination indicates blood on all the three weapons, MO1, MO2 & MO4. There is no reason to upset the conviction entered into by the learned Sessions Judge and the sentence also is commensurate with the gravity of the offence. There is no question of falling upon S.304,** Crl.Appeal Nos.558 & 1213 of 2016 8 **since the accused followed the deceased and the injured into the tea shop, pushed them out and bludgeoned and hacked them to death.** **7. PW1 is the tea shop owner, who gave the FIS. Even in the FIS he did not speak of having seen the incident; ie. the crime proper; of the deceased being murdered or PW2 being injured. As per the FIS, on 25.04.2014, A1 and three identifiable persons hacked to death one Ayyappadas and also grievously injured Rajesh and Shijo (PW2) with the intention of murdering them. PW1 runs a hotel at the Kodannur Centre. He was making porotta inside the hotel at about 3.30 p.m., when the deceased and the injured came into the shop. They were followed by A1 and three persons, who could be identified by sight. They picked up a quarrel with Rajesh and his friends and there was pushing and pulling on both sides. Rajesh and his friends went out of the hotel, followed again by A1 and his friends. At that time, PW1's daughter started crying and he turned to pacify her. He heard the nearby shops downing their shutters and came out of his** Crl.Appeal Nos.558 & 1213 of 2016 9 **shop, to see Rajesh lying grievously injured in front of his shop. When he looked towards the Kodannur Centre, he saw PW2 also lying there with slash injuries. There was a pool of blood in the scene of occurrence. Frightened, PW1 along with his children came out of the hotel, the shutters of which were downed and went home. On his way, he saw Ayyappadas also lying on the Chakiarkadavu Road, again grievously injured. He expressed his apprehension that there was some animosity between the two groups and both were regular criminals involved in fights. The injured persons were taken in an ambulance to the hospital and he heard of Ayyappadas having passed away on the way. He stated that when the quarrel between the deceased and accused erupted inside the hotel, there were two or three people inside the hotel, who were drinking tea.** **8. PW1, more or less, spoke in tune with the FIS, but for certain modifications. He said that, among the three victims, he knows Rajesh and as far as the accused, he knows both A1 & A2. He admitted his signature** Crl.Appeal Nos.558 & 1213 of 2016 10 **on the FIS and also confirmed the statement under S.164 Cr.P.C (Ext.P2). His wife was sitting in the cash desk of the hotel. He stated that A1 & A2 were drinking tea and he was not able to identify the other accused. He also admitted that A2 was his relative. He confirmed that the melee, which commenced at his shop, ended in the death of Rajesh. PW1 admitted that he omitted to mention the name of A2 at the first instance and that was not deliberate. He denied the statement in FIS that he had come to the police station to speak about the death of Ayyappadas and the attempt to murder Rajesh and PW2, as also certain other statements made in the FIS. He was declared hostile by the prosecution, but only for the reason of his statement that but for A1 & A2, he couldn't identify any others. PW1's testimony can be relied on to assert A1's presence in the company of certain others who together turned on the three, two of whom were murdered and the third grievously injured.** **9. PW2 is the eye-witness, who was also injured in the incident. He was friendly with both the deceased** Crl.Appeal Nos.558 & 1213 of 2016 11 **and was with them when they were hacked to death. The three of them sat down to drink tea in PW1's hotel, when A1, A2 and three others came to the hotel. He identified A1 to A5 and spoke of having seen all of them, going to work along with A1. From inside the hotel, the accused pushed and pulled the deceased and PW2, out of the hotel and attacked them, outside, on the road. A2 & A3 disappeared momentarily from the scene of occurrence, when A1 took a hammer from his hip and hit Rajesh on his head, just above the left ear, from which injury, blood gushed out. Rajesh fell down and PW2 and PW3 tried to help Rajesh up. At that point, A2 & A3 came back and A2 had two swords in his hands, one of which was handed over to A1. A1 took the sword and hacked Ayyappadas on his neck, beneath the left ear. The blade of the sword in A1's hands, slipped out of its handle and fell down. A2 took the blade and hacked Rajesh on his left thigh. A3 with the other sword slashed on both the deceased, when A1 hit PW2's head with the hammer. In that impact, PW2's head was crushed and blood gushed out resulting in his** Crl.Appeal Nos.558 & 1213 of 2016 12 **falling down. He felt somebody slashing on his back and he lost consciousness. He also said that he saw Rajesh lying in front of PW1's Hotel and he fell down at a little distance from Kodannur Centre to the South of where Rajesh was lying. He also spoke of Ayyappadas having run towards the west to fall down at a distance. He identified MO1 hammer, MO2 sword from which the blade slipped away, MO3 handle, and MO4 sword carried by A3. He withstood searching cross examination. Ext.D1, D1(a) and D1(b) contradictions were marked by the defence, not of any compelling relevance.** **10. PW3 is another occurrence witness, who narrated the incident and spoke, of having intervened in the quarrel, in the same manner as PW2 did. D2 and D2(a) contradictions were marked. He identified all the accused** **and the weapons. PW4 is the witness who spoke of A2 and A3 having purchased MO2 and MO4 weapons from her shop. PW5 and PW6 were the attestors to the inquest report of the deceased. PW7, a relative of the deceased Rajesh, attested Ext.P5 scene mahazar and the material objects** Crl.Appeal Nos.558 & 1213 of 2016 13 **recovered from the scene of occurrence. One of the MOs recovered was the wooden handle, MO3. PW8 attested Ext.P6 mahazar seizing the shirts of the deceased. PW9 attested Ext.P7 recovery mahazar; by which MO1 hammer was recovered on the confession statement of A1 marked as Ext.P7(a). He supported the prosecution case. PW9 is a relative of PW2. PW10 attested recovery mahazar Ext.P8 by which MO2 and MO4 swords were recovered under Section 27; by virtue of confession statement marked as Ext.P8(a). PW10, the brother of one of the deceased, deposed in tune with the mahazar. PW12 also supported the recovery and identified the swords recovered at the instance of A2. The witnesses to the recovery mahazars identified the weapons, MO1, MO2 & MO4.** **11. PW11 is the Scientific Assistant who collected samples from the scene of occurrence. PW12, a fisherman, recovered MO2 and MO4 from a stream as pointed out by A2. PW13 attested seizure mahazar, Ext.P11 seizing the dress worn by A2 and A3 and identified three keys of motor bikes, marked as MO11 series said to have been** Crl.Appeal Nos.558 & 1213 of 2016 14 **handed over to him by A1. PW14 is the CPO who again attested Ext.P11 mahazar. PW15 and PW18, are respectively the room boy and manager of the Tourist Home where the accused is said to have resided after the crime. PW16, Magistrate recorded S.164 statement. PW17 witnessed preparation of Ext.P16 sketch; whose presence was not recorded therein. PW19 issued the registration particulars of the three bikes. PW20 recorded the FIS and PW21 conducted postmortem examination. PW22 is the I.O and PW23 and PW24, the Doctors of the Hospital, where the two deceased were declared dead and the injured, PW2 was treated.** **12. PW3 has been disbelieved by the trial court and considering the omissions as also the contradictions, we do not think any credence can be placed on his testimony as an occurrence witness. Likewise, the dress of the accused recovered, sent for scientific examination has not been identified by the occurrence witness PW2. PW1 who admits to have seen them in the tea shop, just prior to the incident, was also not confronted with the** Crl.Appeal Nos.558 & 1213 of 2016 15 **dress worn by the accused at the time of the crime proper. The recovery of the bikes also have no value in so far as none of the witnesses speak of the accused having come to the scene of occurrence in bikes or having fled from there on the recovered bikes.** **13. The medical evidence by PW21 supports the testimony of PW2. PW21 conducted postmortem examination of both the deceased. The antemortem injuries of Ayyappadas were nine in number, of which injury No.1, 5, 7, 8 and 9 were incised wounds. The Doctor looked at MO4 weapon and deposed that the wounds sustained by Ayyappadas could be caused by that weapon. The cause of death was stated to be the incised wound sustained to the neck, involving the base of the skull. The description of the injury (Serial No.1) reveals that the left ear lobule was cleanly cut and so was the external jugular vein. The muscles and muscular blood vessels on the left side of the neck were found cleanly severed under this injury. There was also a fissured fracture extending into the left middle cranial fossa from the above injury. The** Crl.Appeal Nos.558 & 1213 of 2016 16 **injury caused subarachnoid hemorrhage on the left and right parieto temporal lobes of the brain.** **14. As far as Rajesh is concerned, the antemortem injuries were 34 in number; incised and lacerated as also multiple abrasions. The cause of death was stated to be the blunt injury sustained to the head and incised wounds sustained to the neck and chest. The description of the wound is available at injury No.3, which is as under:** _**“3. Lacerated wound 4.5 cmx1xscalp tissue deep on the left side of head, 4 cm above left ear. There was a commin,uted fracture over an area 7x5.5 cm involving the left parietal and temporal bones. There was a fissure fracture 7 cm long extending from the back aspect of upper border of the comminuted fracture. Another fissured fracture 9 cm long extending in the parietal bone from the upper border of comminuted fracture. Lacerated wound 2x2x0.5 cm with surrounding contusion over an area 6x4x0.2 cm over the left parietal lobe. Contusion 5x3x0.5 cm over the under aspect of left temporal lobe. Contusion 8x5x0.5 cm across midline over the under aspect of both frontal lobes. Lacerated wound 4x3x2 cm over the right frontal lobe. Multiple small haemorrhage over an area 4x4x1 cm in the substance of left parietal lobe. Multiple small haemorrhages over an area 4x3x1 cm in the substance of right frontal lobe. Thin diffuse subdural**_ Crl.Appeal Nos.558 & 1213 of 2016 17 _**haemorrhage over both cerebral and cerebellar hemispheres. Thick subarachnoid over the left fronto parieto temporal and right parietal both cerebellar hemispheres.”**_ **15. The Doctor was shown MO1, MO2 & MO4; hammer and two swords respectively, one of the swords (MO2), without handle. It was opined that the injuries on the body of Rajesh could be caused by using MO1, MO2 & MO4 weapons. That the death of the two deceased was by homicide cannot at all be disputed. Since there was no certificate of death produced as issued at the time of admission of the two persons, PW24 was examined. He was the Casualty Medical Officer of Elite Mission Hospital, Thrissur. He deposed that there is a Register maintained in the hospital for recording the details of persons brought dead to the Hospital. When victims are brought dead, there is no Wound Certificate issued and Ext.P40 is the extract of the relevant entry at page 77. This indicates one Ayyappadas having been brought dead at 4.15 p.m., on 25.04.2014. As far as Rajesh is concerned, the case-sheet was marked as Ext.P41 and the witness knew the** Crl.Appeal Nos.558 & 1213 of 2016 18 **handwriting of the Doctor, who made the entries. Ext.P41 shows Rajesh having been admitted on 25.04.2014, who breathed his last on the very same day at 6.15 p.m. Rajesh was brought to the hospital by his brother.** **16. PW23 is a Neurosurgeon, who treated PW2. The Doctor deposed that PW2 was admitted on 25.04.2014 with a head injury and underwent surgery on the same day. He was an inpatient in the hospital till 07.05.2014. The discharge summary was marked as Ext.P37(a), which indicated fracture of skull bone, intra-cerebral hematoma and contusion of brain. PW2 was again admitted on 09.06.2014 and treated till discharge on 14.06.2014. During that period he underwent cranioplasty and it was opined that injuries on the head was possible by MO1 hammer. Though it was also opined that the injuries were fatal, obviously PW2 survived and the Doctor's opinion is only to the effect that it could have been fatal.** **17. The murder admittedly was caused in an incident, which happened after 3 O' Clock in front of PW1's tea shop. PW1, though was declared hostile, he** Crl.Appeal Nos.558 & 1213 of 2016 19 **unequivocally spoke of A1, along with his friends, having come to the tea shop following Ayyappadas, Rajesh and PW2. The melee is also spoken of by PW1. But his statement is only to the effect that the persons who came later and those who were sitting for tea were involved in the scuffle. There is no statement of any others being involved in the scuffle. PW1 did not see the incident as such, but saw the deceased and injured being pushed out of the shop, on to the road.** **18. PW2 is the eye-witness, who has categorically stated about the manner in which one of them was hacked and the other bludgeoned to death. PW2 also suffered injuries, quite serious, resulting in surgical procedures having been carried out on him. The injuries found on the deceased as also PW2 are in consonance with the version put forth by PW2; an eyewitness account. The learned Counsel for A1 & A2 argued that the pictorial representation would itself indicate that the witness was tutored. We are unable to find any credence to such an argument especially looking at the** Crl.Appeal Nos.558 & 1213 of 2016 20 **eye-witness account and also the fact that the eyewitness was one of the victims, who also suffered grievous injuries. The eye-witness spoke of A1 having hit Rajesh with a hammer, which resulted in his falling down. Later, A3 handed over a sword to A1, who hacked Ayyappadas and the blade of the sword slipped away from the handle after the injury was inflicted.** **19. The medical opinion as to the cause of death of Ayyappadas was that the incised wound sustained to neck involving the base of skull is the fatal injury. Similarly, Rajesh, after being hit with a hammer, was hacked by A2 repeatedly. A3 also inflicted incised injuries on both the deceased. The cause of death of Rajesh was the blunt head injury and an incised injury possible by MO1 hammer and MO2 or MO4 sword. It was subsequently that PW2 was hit with a hammer and after he fell down, he felt somebody slashing him on the back with the sword. He lost consciousness and the later acts spoken of were hearsay. Before PW2 was hit with the hammer he saw Rajesh lying supine in front of PW1's** Crl.Appeal Nos.558 & 1213 of 2016 21 **teashop and Ayyappadas running away, only to fall at a distance, within eyesight. We do not think it is a pictorial representation impossible of an eye-witness account and there is no outrageous precision in the account which alone could lead to the version being discredited totally.** **20. One other contention taken up by the learned Senior Counsel was that A3 was not in possession of MO2 sword. On going through the deposition of PW21, the Doctor who conducted postmortem, he had opined that the injuries caused to Ayyappadas are with MO4, caused by A1. As far as the injuries on Rajesh, the Doctor said they were possible with MO1 hammer and MO2 & MO4 swords. MO2 & MO4 are swords of an identical kind. None can say that a particular one; from these two, caused the injuries. The deposition is only to the extent of establishing that a weapon of like nature, as confronted to the expert, was possible of causing such injuries.** **21. The next contention regarding the weapons is** 22 Crl.Appeal Nos.558 & 1213 of 2016 **that the story of a purchase of the two weapons in the midst of the melee is an impossibility. Coupled with that is the fact that the site plan does not indicate the shop of PW4. We agree with the learned Senior Counsel that PW4's testimony cannot be believed and the story itself is far fetched. But however the evidence of PW2 is only that when A1 hit Rajesh, A2 & A3 ran away and then came back; when A2 had two swords in his hands, one of which was handed over to A1. Though PW4 is disbelieved, there is no warrant to ignore the evidence of PW2, the eyewitness with respect to the genesis, the continuation and the culmination of the incident.** **22. Added to this, are the recoveries effected at the instance of A1 & A2. A1 led the Police to MO1 hammer. As per Ext.P7(a) confession statement, the recovery was made under S.27 by Ext.P7 mahazar; witnessed by PW9. A2 led the Police to the two swords, which were thrown away in a stream. The recovery under S.27, by Ext.P8 mahazar was witnessed by PW10. The swords were recovered from the stream by a fisherman-PW12, who** Crl.Appeal Nos.558 & 1213 of 2016 23 **recovered it from the bottom of the stream as pointed out by A2. The appellants, seriously assailed the description of PW1 as a diving expert, since even according to the witness there was water only up to the hip. However that would be disclosed only on a person stepping into the water and at any rate one has to search on the bed of the stream to get the weapons.** **23. The recoveries are seriously challenged on the further ground that both the witnesses are close relatives. PW9 is a relative of PW2 and PW10, the elder brother of deceased Rajesh. Learned Counsel appearing for A1 & A2 would argue that they were chance witnesses. This is very unlikely and the Police could have definitely required an independent witness from the public, who would have gathered there to attest the recovery mahazar. We are not impressed, since the I.O. on a specific question stated that he was not aware of the relationship of the witness with the deceased and injured. More over, when a recovery is being carried out, the Police would ask for witnesses and many would be reluctant to proffer** Crl.Appeal Nos.558 & 1213 of 2016 24 **themselves. The Police can only take the assistance of those who voluntarily come forward. Yet anther contention is that it is unlikely that none would know of the place where the recovery is being carried out, which again cannot be a ground to discard the recovery. On an arrest being made, the public would be vigilant and they would be closely following the moves of the Police especially in a case of double murder, with another grievously injured. It is also only natural that the relatives of the victims would follow the course of investigation. Unless the credibility of the recovery witnesses are questioned and substantiated as not worthy of consideration, there cannot be a rejection of the same merely on the relationship being established.** **24. The recoveries by A1 & A2 corroborates the eyewitness account fully and so does the medical evidence. It is true that A3 was not the author of any confession about concealment, but the eye-witness account nails him squarely as one of the persons involved in the incident. He is roped in under S.34 and also based on his own overt** Crl.Appeal Nos.558 & 1213 of 2016 25 **acts spoken of by PW2, the eye-witness. That both the deceased died at the hands of the accused-appellants is well established from the ocular evidence, which is corroborated by medical evidence and the recoveries made under S.27. The offence of attempt to murder also stands equally established by the eye-witness account of the injured; whose injuries could have been fatal as opined by the Doctor. The eye witness account against the appellants/accused establish their culpability in the offence of murder and of attempt to murder, which they carried out in furtherance of a common intention. The decisions relied on have no application in the facts of this case.** **We find no reason to differ from the reasoning of the learned trial court nor is there any warrant to make any modification of the sentence. There is no warrant to doubt the death and injuries having been caused by anyone else and there is also no circumstance coming out to apply any of the Exceptions under Section 302. We hence reject the appeals affirming the conviction** Crl.Appeal Nos.558 & 1213 of 2016 26 **and sentence passed by the learned Sessions Judge.** **Sd/-** **K.VINOD CHANDRAN, JUDGE** **Sd/-** **C.JAYACHANDRAN, JUDGE** **sp/21/10/2021** Crl.Appeal Nos.558 & 1213 of 2016 27 ## **APPENDIX OF CRL.A.NO.558 OF 2016** ## **APPELLANT’S EXHIBITS:-** ## **ANNEXURE A** **:** **COPY OF THE MEDICAL CERTIFICATE FROM THE MEDICAL COLLEGE, THRISSUR.**