CRL.A.122/2016 & CRL.A.127/2016

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE A.HARIPRASAD** **&** ## **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **MONDAY, THE 07TH DAY OF DECEMBER 2020 / 16TH AGRAHAYANA, 1942** ## **CRL.A.No.122 OF 2016** **SC 471/2007 DATED 01-12-2015 OF I ADDITIONAL SESSIONS COURT, THIRUVANANTHAPURAM** **CP 46/2013 OF JUDICIAL MAGISTRATE OF FIRST CLASS -I,NEDUMANGAD** **CRIME NO.167/2004 OF Palode Police Station , Thiruvananthapuram** ## **APPELLANTS/ACCUSED 2,3, 6 AND 9** **1 GOPAKUMAR SINDHU BHAVAN, BLOCK NO.18, NEAR TBGRI JUNCTION, JAWAHAR COLONY, ANAKUDI MURI, PANGODE VILLAGE. 2 SUMESH S/O.SUNDARESAN PPIII/52C, LEKSHAM VEEDU, JAWAHAR COLONY, ANAD MURI, PERINGAMALA VILLAGE. 3 GIREESH S/O.RENJAN RAJITHA BHAVAN, TBGRI JUNCTION, ANAKUDI MURI, PANGODE VILLAGE.** **4 SUDHEESH S/O.SUNDARESAN, PPIII/52C, LEKSHAM VEEDU, JAWAHAR COLONY, ANAD MURI, PERINGAMALA VILLAGE. BY ADVS. SRI.P.VIJAYA BHANU (SR.) SMT.MITHA SUDHINDRAN SRI.M.REVIKRISHNAN SRI.LATHEESH SEBASTIAN** ## **RESPONDENT/COMPLAINANT** **STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **Sr.PP SRI. ALEX M. THOMBRA** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 07-102020, ALONG WITH CRL.A.127/2016, THE COURT ON 07-12-2020 DELIVERED THE FOLLOWING:** Crl.A.122 & 127 of 2016 2 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A.HARIPRASAD** ## **&** **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **MONDAY, THE 07TH DAY OF DECEMBER 2020 / 16TH AGRAHAYANA, 1942** ## **CRL.A.No.127 OF 2016** **SC 471/2007 DATED 01-12-2015 OF I ADDITIONAL SESSIONS COURT, THIRUVANANTHAPURAM** **CP 152/2006 OF JUDICIAL MAGISTRATE OF FIRST CLASS -I,NEDUMANGAD** **CRIME NO.167/2004 OF Palode Police Station, Thiruvananthapuram** ## **APPELLANTS/ACCUSED NOS.1, 4, 10 AND 11** - **1 GAUTHA KUMAR S/O.GANGADARAN PILLAI,BLOCK NO.32,JAWAYAR COLONY, ANAKUDIMURI,PANGODE VILLAGE.** - **2 SUNIL KUMAR KUNJUMON S/O.SOMAN,HOUSE NO.52,JAWAHAR COLONY,ANAD MURI, PERINGAMMALA VILLAGE.** - **3 RINEESH KUMAR S/O.SWARNAPPAN,BLOCK NO.21,T.B.G.R.I.JUNCTION, ANAKUDI MURI,PANGODE VILLAGE.** - **4 BIJU S/O.APPU,SENANIPURAM BLOCK NO.28,JAWAHAR COLONY, ANAKUDI MURI, PANGODE VILLAGE.** **SRI.P.S.SREEDHARAN PILLAI SRI.ARJUN SREEDHAR SRI.ARUN KRISHNA DHAN SRI.T.K.SANDEEP** ## **RESPONDENTS/COMPLAINANT & STATE** **STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR,HIGH COURT OF KERALA,ERNAKULAM-31.** **Sr.PP SRI. ALEX M.THOMBRA** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 07-102020, ALONG WITH CRL.A.122/2016, THE COURT ON 07-12-2020 DELIVERED THE FOLLOWING:** Crl.A.122 & 127 of 2016 3 ## **JUDGMENT** ## Dated : 7[th] December, 2020 ## **M.R. Anitha, J.** 1) Crl.A.No.122/2016 has been filed by accused Nos.2, 3, 6 and 9 and Crl.A.No.127/2016 has been filed by accused Nos.1, 4, 10 and 11 in S.C.No.471/2007 on the files of the Additional Sessions Judge-I, Thiruvananthapuram. 2) Prosecution case can be summarized as follows: First accused spread a news that deceased, PW1 and others took bath unclothed in the river. The deceased and PW1 questioned the first accused about it and had a wordy altercation and assaulted him. In connection with that, first accused filed a complaint before Palode Police Station. On the previous day of the incident, deceased and PW1 were called to the police station in pursuance of that complaint. Eventhough they went to the police station and waited for long, first accused did not turn up and they returned. Out of enmity due to that incident, accused Nos.1 to 16 hatched a criminal conspiracy in the house of 12[th] accused at Jawahar Colony to do away with the deceased and Crl.A.122 & 127 of 2016 4 PW1 who are the President and Secretary of the DYFI Jawahar colony Unit Committee. Accused Nos.1 to 16 who are the sympathizers of BJP, formed themselves into an unlawful assembly knowing that they are members of the said assembly, armed with deadly weapons like, sword, bamboo stumps, cudgel and wooden logs and assembled on the eastern and northern side of Palode Madathara Road at Jawahar Colony junction on 18.07.2004 around 7.30 p.m. On seeing deceased and PW1 standing near the DYFI flag-mast situated on the western side of Palode Madathara road talking to PW2, PW3 and others, first accused came towards them and slapped at the left cheek of PW1 and caused pain. When deceased and others obstructed the same, accused No.4 rushed towards them proclaiming to kill them along with third accused. He was holding a cudgel. Accused Nos.6, 9, 10, 15 and 16 rioted with bamboo stumps and cudgel. On seeing the aggressive accused persons, deceased and PW1 ran towards north, then second accused armed with a sword and accused Nos.5, 7, 8, 11, 12, 13 and 14 armed with bamboo stumps and cudgels came from north. On seeing them, deceased and PW1 ran towards the shop of PW4 Mohanan situated on the eastern side of the road. 3) There upon deceased fell with his face down and second accused with Mo1 sword intentionally slashed on his right posterior part of thigh and inflicted a fatal injury. The second strike was warded off by the deceased with his right hand and Crl.A.122 & 127 of 2016 5 thereby his right index finger and ring finger sustained injury. The third accused at that time slashed on the posterior aspect of thigh of PW1 with MO2, who also had fallen down on the verandah of the shop of PW4 and sustained fatal injury. When CW1 and PW2 tried to obstruct them, with cudgel held by the fourth accused, he beat on the head of CW1, which was evaded by him and thereby he sustained a contusion on his forehead. When PW2 tried to intervene, fifth accused, with the bamboo stump held by him, hit at his left thigh and caused contusion. Accused Nos.6 to 16 created a dreadful scene by airing bamboo logs and cudgels. Deceased and PW1 were taken to Medical College Hospital and Dilshad died at about 9.15 p.m, thereby accused committed the offences under sec. 143, 147, 148, 323, 324, 302 r/w 149 IPC and S.27 of the Arms Act. 4) CW1, gave Ext.P16-FIS to PW17, the Head Constable attached to Palode Police Station during the relevant time. Based on the same, he registered the FIR, which is marked as Ext.P16(a). PW18, the Circle Inspector of Police, Aaryanadu, conducted the inquest on the body of the deceased (Ext.P1) and seized MO13 jetty from the body of the deceased at the time of inquest. Thereafter, PW19 conducted the investigation and questioned the witnesses, prepared scene mahazar (Ext.P2) and seized MO6 series and MO7 chapels from the scene of occurrence. He also seized two bamboo stumps and five cudgels by describing in Ext.P3 seizure mahazar. Those bamboo stumps Crl.A.122 & 127 of 2016 6 were identified and marked as MOs 3 and 4 and cudgels as MO5 series. Three pairs of chapels seized as per the mahazar (Ext.P3) is identified and marked as MO8 series, MO9 series and MO10 series. He arrested accused Nos.5, 6, 7 and 8 on 19.07.2004. Accused Nos. 1 to 3 and 9 were arrested on 21.07.2004. Recovery of the weapons were also effected by him at the instance of the second and third accused. Accused Nos.4, 11, 13 and 14 were arrested on 9.8.2004. PW20 is the successor of PW19. PW20 added Section 27 of the Arms Act and Ext.P14 is the report filed by him in that regard. PW21 and PW22 continued the investigation. Pw22 filed Ext.P52 report stating that only accused Nos.1 to 16 were involved and to delete other nine unidentifiable accused from the FIS. After completing the investigation he filed the final report before the court. 5) On the side of prosecution, PWs 1 to 22 were examined and Exts.P1 to P53 were marked. DWs 1 & 2 examined and Exts.D1 to D14 were marked from the side of the defence. MOs 1 to 13 were identified and marked. Thereafter, on hearing both sides, court below found the appellants/accused Nos.1 to 4, 6, 9, 10 and 11 guilty under Sections 143, 147, 148, 120(B), 323, 324 & 302 r/w. Section 149 of IPC except accused No.1. Against him, there was no conviction under Section 148 of IPC instead conviction is under S.147IPC. Accused No.2 and 3 were also found guilty under Section 27 of Arms Act. All the appellants were sentenced to undergo rigorous imprisonment for life and to Crl.A.122 & 127 of 2016 7 pay fine of Rs.50,000/- each in default to undergo rigorous imprisonment one year each for the offence under S.302 r/w S.149 IPC except 2[nd] accused against whom the fine amount is imposed is Rs.1,00,000/- and the default sentence is fixed as two years. All the accused were also sentenced to undergo rigorous imprisonment for six months each for the offence under S.143 r/w 149 IPC. They were also sentenced to undergo rigorous imprisonment for one year and to pay fine of Rs.2000 each in default to undergo imprisonment for six months each for the offence under s.148 r/w 149 except 1[st] accused against whom the conviction is under s.147 r/w 149 and sentenced to undergo rigorous imprisonment for 6 months and to pay fine of Rs.1,000/in default to undergo imprisonment for three months. All the accused were further sentenced to undergo rigorous imprisonment for 6 months each for the offence publishable under S.323 r/w 149. They were also sentenced to undergo rigorous imprisonment for 1 year each for the offence under Sec. 324 r/w 149 IPOC. All the accused were also sentenced to undergo rigorous imprisonment for life for the offence under s.120B IPC. Accused 2 and 3 were further sentenced to undergo rigorous imprisonment for three years each and to pay fine of Rs.10000/- each in default to undergo imprisonment for one year each for the offence u/s.27 of the Arms Act. 6) Aggrieved by the conviction and sentence, appellants filed separate appeals. Since both appeals arose out of the same Crl.A.122 & 127 of 2016 8 judgment both appeals were heard together and disposed of by a common judgment. 7) Advocate Sri.Arjun Sreedhar appeared on behalf of accused Nos.1, 4, 10 & 11, Senior Advocate Sri. P. Vijaya Bhanu appeared on behalf of accused Nos.2, 3 & 9, Adv. Sri. Latheesh Sebastian appeared on behalf of accused No.6. Sri.Alex M. Thombra, learned Public Prosecutor appeared for the respondent/State. Lower Court records were called for and both sides were heard. 8) Adv. Arjun Sreedhar led the argument and according to him the conviction and sentence passed by the court below is in total disregard to the facts and circumstances and evidence adduced in this case. The FIS - Ext.P16 could not be proved since CW1 is no more and there is inordinate delay in registering the FIR and forwarding the same to court. Despite getting information to PW19 at about 9.30 p.m about the death, the FIR was registered only at 4 a.m on 19.07.2004 and that delay has not been explained. 9) There is inordinate delay in recording the statements of PWs 4 and 1 and there is no explanation offered for the delay caused. PW21, succeeded Circle Inspector, Varghese in the investigation. But Sri.Varghese was not examined or cited as witness. It is also his contention that PW1 was the target of the accused persons and there was no intention to kill the deceased. The date of questioning the witnesses is not stated in the copy of Crl.A.122 & 127 of 2016 9 ## 161 statement. 10) He would further contend that it is at the house of 12[th] accused that the conspiracy alleged to have been hatched but he has been acquitted and no witnesses were examined to prove the conspiracy. Time and dates of conspiracy is also not revealed. But the accused were found guilty under Section 120(B), with out any evidence. 11) Sri. P. Vijaya Bhanu, learned Senior Counsel, would contend that the entire police machinery was at the place of occurrence within half an hour and entire scene was under their control thereafter. But the FIR has reached before the court only at 3.00 p.m and the delay caused is inordinate and unexplained and benefit of doubt in that regard has to be given to the accused. 12) The place of occurrence is not consistent, incident happened in the colony and deceased was taken to the shop of PW4 for taking in a vehicle and the case has been fabricated subsequently that as scene of occurrence. The motive alleged is also not proved since Ext.P39 complaint alleged to have been given by the first accused has been denied by him and the officer who recorded the statement - Ext.P39 has not been examined. 13) Sri. Latheesh Sebastian, learned counsel for the 6[th] accused and Sri. P. Vijaya Bhanu, learned Senior Counsel, appearing for accused No. 9 would contend that there was no recovery at the instance of accused No.6 and 9 and PW1 identified accused Nos.7 and 13 also. But they were acquitted and none of the other Crl.A.122 & 127 of 2016 10 witnesses identified 6[th] accused. So accused Nos. 6 and 9 also ought to have been given the same benefit as accused Nos.7 and 13 and ought to have been acquitted. 14) Sri.Alex M. Thombra, learned Public Prosecutor on the other hand would contend that PWs 1 and 2 are injured witnesses and PWs 3 and 4 are occurrence witnesses. PW1 identified all the accused who have been convicted and this is a case in which the accused hatched a criminal conspiracy for a simple matter which resulted in the death of the deceased. He also would contend that after the the first blow, again second accused aimed to slash with the sword at the neck of deceased which was warded off by him and thereby he sustained injury on his fingers and the fingers after sustaining injury were hanging. He would also contend that the delay was caused in questioning PW1 since he was hospitalized first at Medical College Hospital, and thereafter at Nedumangad Taluk Hospital for 10 – 11 days. It is after that he was questioned. PW4 is the witness who had shown the scene of occurrence to the investigating officer and PW20 is the person who questioned him and no question was put to PW20 about the delay caused in questioning PW4 and hence no opportunity was given to explain the delay to the investigating officer. In short according to the learned Public Prosecutor, Sri. Alex M. Thombra, the conviction and sentence passed by the learned Additional Sessions Judge is based upon the facts and circumstances and evidence and there is no reason whatsoever Crl.A.122 & 127 of 2016 11 to interfere with the same. 15) To prove the incident, prosecution mainly rely upon the evidence of PW1, the main injured, PW2, who sustained injury when tried to intervene the attack and PWs 3 and 4, two eye witnesses. PW1 narrates all the incident in detail. He states that deceased and himself were the president and secretary of DYFI Jawahar Colony Unit Committee and all the accused are BJP/RSS sympathizers. The incident occurred, on 18.07.2004 at around 7.30 p.m while deceased and himself were talking together with PWs 3, 4, CW1 and others. First accused came all of a sudden and slapped at his left cheek and tried to leave the scene. Thereupon, PW3 and deceased restrained him and there was a push and pull. Then, from the opposite side, 4[th] accused ran towards them holding a sword proclaiming to slash them to death. Accused Nos.3, 9, 6 and 10 accompanied the 4[th] accused. Third accused was holding a sword, 4[th] accused an iron road and the other accused were holding cudgels. Seeing them, they ran towards north to Chengotta area, first accused and others chased them. Then he saw accused Nos.2, 11, 13 and 7 coming from the opposite direction(north). The 2[nd] accused was holding a sword and accused Biju was holding iron rod and others were holding cudgels. Seeing them from both sides, having no other way, they rushed towards the shop of PW4, Mohanan situated on the right side (east). While so, they collided with each other and fell down on the verandah of the shop. Then, 3[rd] accused slashed Crl.A.122 & 127 of 2016 12 him on the posterior aspect of his right thigh and 2[nd] accused slashed on the thigh of the deceased. Again 2[nd] accused slashed the deceased aiming at the neck which was warded off by him, resulting in right finger hanging by cut injury. After the first slash, deceased attempted to stand up. Himself was just leaning on the wall in a perplexed mode. Having felt shivering of body on seeing the blood, he went to the shop of Prasad situated nearby and drank water. The deceased was unable to get up and was lying on the verandah. All these accused encircled them and did not permit anybody to approach and made huge commotion. When local people and party-men assembled there and made huge hue and cry accused moved towards north to Madathara road. PW3, CW1 and 5 took them by car to Medical College Hospital, Thiruvananthapuram. He was admitted there for three days. He further undergone treatment at Taluk Hospital, Nedumangad for 10 -11 days. Dilshad succumbed to the injuries. The motive behind the incident is stated as the spreading of news by 1[st] accused about taking bath unclothed by deceased, himself, Vinoy and Manikandan in the river. He questioned 1[st] accused regarding the same and there was a hot talk in between them and he poked at the cheek of 1[st] accused. On the subsequent day first accused gave a complaint at Palode Police Station regarding the same and on 17[th] they were called to the police station. Hence himself and deceased went to the police station along with PW3. But 1[st] accused did not turn up. Then Crl.A.122 & 127 of 2016 13 they were sent away by the police asking to come on further notice. He identified MOs 1 and 2 as the swords used for slashing him and deceased. He identified MOs 3 and 4 as the two bamboo stumps and MO5 series the cudgels used by other accused persons. 16) PW2 also narrated that while PW3, CW1 and others were talking below the flag-mast of DYFI at Jawahar Colony, deceased and PW1 came nearby them. While they were talking first accused suddenly came there and slapped at the cheek of PW1 once and tried to escape and he was prevented by them. Then, accused No.4 came from behind holding iron rod proclaiming to slash them to death along with second accused who was holding a sword. Accused Nos.9,10 and 6 and other unidentifiable accused also came along with them. Being scared, deceased and PW1 ran towards the road leading to Madathara. Then a group of people came from Madathara area, among them accused Nos.2, 7, 5 were there. On seeing them, deceased and PW1 entered into the grocery shop of PW4. Both of them in collision with each other fell down on the verandah. Then 2[nd] accused slashed on the right thigh of the deceased and next slash by the 2[nd] accused was warded off by the deceased using his hand and thereby he sustained injury on the hand. At the very same time 3[rd] accused slashed PW1. Then PW2 and others ran towards the victims. But they were prevented to be approached under the leadership of 1[st] accused. When he tried to enter into Crl.A.122 & 127 of 2016 14 the place where deceased and PW1 were lying, 5[th] accused beat him with cudgel on his left thigh, 4[th] accused bet CW1 with iron rod. Disregarding the assault, they rushed towards PW1 and deceased and took them in a car to hospital. within half- an hour Palode police came. At about 11'o clock he came to know about the death of deceased as informed by CW1. He also stated that PW1 and deceased are party workers and accused persons are BJP workers. 17) PW3 is Appu. He also deposed in tune with PWs 1 and 2 about the overt acts of accused persons. He identified MO1 and 2 swords used for slashing the deceased and PW1. He also identified MOs 3 and 4 and MO5 series used by the accused persons. The motive alleged is also spoken to by him as PW1. He had accompanied deceased and PW1 to the police station on 17.07.2004. They waited till 4 O' clock. But 1[st] accused/ complainant did not turn up. After waiting upto 5'o clock as directed by the Sub Inspector, they returned. He intimated the police immediately after sending the deceased and PW1 to hospital over phone. Police came within half-an hour and subsequently Circle Inspector and other police came to the spot. Though so many workers assembled there, all of them were driven away by the police. 18) PW4 is Mohanan to whose shop deceased and PW1 entered for shelter. His evidence is that on 18.07.2004 while he was conducting the business in the shop, he heard a commotion Crl.A.122 & 127 of 2016 15 from the place where salt is stored. Then he saw the deceased lying his face down and resisting the attack. The 2[nd] accused is found to be slashing on his right hand and slash was fall upon the fingers. Further he stated that PW1 was lying near him and 3[rd] accused was standing near PW1 holding a sword. Then pw1 went towards the shop of Prasad by dragging the legs. He also states about the presence of 4[th] accused and 1[st] accused. He identified MOs1 and 2 as the weapons used for slashing the deceased and Pw1. Further he states about collection of blood in that place and an injury on the thigh of the deceased. He also identified accused 1 to 4 clearly before the court. 19) The first attack of the learned counsel for the accused persons is with regard to the authenticity of Ext.P16 FIS and Ext.P16(a) FIR. On going through the judgment and also the proceedings of the court below, it could be seen that strenuous efforts were made from the side of the accused to disprove the authenticity of Ext.P16 FIS and Ext.P16(a) FIR. PW17 is the Head Constable who was in G.D.Charge of Palode Police Station on 18.07.2004 who recorded the FIS given by CW1. The entire controversy arose since CW1 expired subsequently. FIS was marked as Ext.P16 through PW17 and based on the same Ext.P16(a) FIR has been registered. Ext.P16(b) is the body-note of CW1. Prosecution has got a case that when CW1 and others tried to intervene, the accused attacked CW1 also and he sustained injury on his forehead when he evaded the same. It is Crl.A.122 & 127 of 2016 16 born out from the judgment that accused had filed C.M.P.No.2207/2015 calling upon the widow of CW1 to produce available documents signed by CW1 for sending the same for comparison for expert opinion. Since that petition was dismissed by the learned Additional sessions Judge, it was challenged in Crl.M.C. No.1652/2015 before this Court and this Court allowed the Crl.M.C. permitting to examine the wife of CW1 as a witness and accordingly the wife of CW1 was examined as DW1. But as rightly found by the court below no attempt was made from the side of the accused to confront with the signature of CW1 in the FIS. On the other hand it has been brought out during crossexamination of DW1 that on the date of the incident CW1 came home late about 9 p.m. On knowing about the death of the deceased, he again went out and subsequently returned in the morning and she also stated that he had given the statement at the police station and that was the reason for the late coming. It is also stated by her that during that period the deceased was living 3 - 4 houses away from their house. She also stated that her husband sustained injury in that incident. So as rightly found by the court below the lodging of FIS by Cw1 is proved through the evidence of DW1. So also the judgment passed by the court below would further show that at the instance of the third accused after the examination of DW1 C.M.P.No.110/2015 was filed seeking to issue summons to produce the bail bonds executed by CW1 in crime Nos.138/2004 & 139/2004 of Pangode Crl.A.122 & 127 of 2016 17 Police Station before the Judicial First Class Magistrate Court, Nedumangad and also to call for the Head-load Workers Welfare Fund Board Register from the Assistant Labour Officer, Nedumangad. Though that petition was dismissed by the learned Additional Sessions Judge, it was challenged before this Court by way of Crl.M.C.No.3325/2015 filed by the third accused and CMP was got remitted with specific directions. The judgment would further show that this Court empowered the learned Additional Sessions Judge to examine the authorship of the signatures in those records as per Section 73 of the Evidence Act. Accordingly, DW2 was summoned and examined and register for issue of Welfare Fund identity cards to Head load Workers was produced. The particular entry pertaining to late CW1 containing his photograph and signature were respectively marked as Exts.D12 and D12(a). The bail bonds received from the Court of Sessions in S.C.No.745/2006 and in S.C.No.748/2006 (Crime No. 138 of 2004 and Crime No.139 of 2004 of Pangode Police Station) were marked as Ext.D13 and Ext.D14. The learned Additional Sessions Judge also examined the signatures appearing in the entries in Ext.D12(a) of CW1 with his signature in Ext.P16 FIS and it has been found that there is no dissimilarity between both the signatures and it is also found that signature of CW1 appearing in Ext.D12(a) is strictly identical with the signature in Ext.P16. The signature in Exts.D13 and D14 bail bonds on comparison with Ext.P16 are also found to be one Crl.A.122 & 127 of 2016 18 and the same and ultimately the court below came to a conclusion that signature of CW1 in Ext.P16 FIS and those in Exts.D12, D13 and D14 are one and the same and there cannot be any suspicion regarding the authorship of signature in Ext.P16. On a scrutiny of the signature of CW1 in Ext.P16 FIS and the admitted signatures of CW1 in Exts.D12(a), D13 and D14 bail bonds, all are appear to be one and the same as has been rightly found by the court below. So we do not find any merit in the contention advanced by the learned counsel for the accused persons regarding the authenticity of Ext.P16 FIS. 20) The next contention of the learned counsel was with regard to the delay in registering the FIR. They would vehemently contend that it has come out in evidence that at about 7.45 p.m, PW17, the Head Constable who was in G.D.Charge admittedly has reached the scene of occurrence. PW17 stated that within half-an hour other officers also came to the spot. But the FIS has been registered only at 4 a.m on the succeeding day,19.07.2004. It reached the court only at 3 p.m. as per the court seal and initials. So there is inordinate delay in reaching the FIR before the court also, the learned counsel contends. 21) On evaluating the evidence of PW17 it is seen that he has stated categorically during cross-examination that while he reached there at about 7.45 p.m none of the injured were present there. Though he was cross-examined at length, nothing could be brought out to show that anybody was present at the scene of Crl.A.122 & 127 of 2016 19 occurrence to get information regarding the occurrence. He categorically stated that the shop of Mohanan was lying closed when he reached there. He stated that he reached the spot along with police party immediately and at about 8 p.m Circle Inspector and higher officials reached the spot and he was present at the spot till 2 a.m. 22) So there is nothing to indicate that anybody was present on the spot while he reached there so as to give any statement regarding the incident that occurred. The statement of CW1 seems to have been recorded at 4 a.m on the succeeding day and the incident occurred at 7.35 p.m. on the previous day. During re-examination PW17 stated that he came to know about the seriousness of the incident only on reaching the spot. FIR Book/Register never used to be taken to the spot also. Hence Ext.P16 FIS recorded at 4 a.m on the immediate next day cannot be said as delayed one, as has been contended by the learned counsel for the accused. 23) Next is with regard to the delay caused in forwarding the FIR to the court. The court seal and the initial in Ext.P16(a) would show that it has been initialled by the court at 3 p.m on 19.07.2004. On verifying Ext.P16 it seems to have been despatched on the same day i.e. on 19.07.2004 at 4.15. a.m. The distance between the police station and the place where the court is housed is not in evidence. No question in that regard seems to have been put to PW17. So there is no material to infer Crl.A.122 & 127 of 2016 20 whether the delay caused upto 3 p.m on the same day was due to the delay in transit. However, since it has reached the court on the same day at 3.00 p.m, the delay cannot be categorized as inordinate also. 24) Sri. Arjun Sreedhar, drew our attention to various decision in the context of delay in lodging the FIR. He placed reliance on Mahtab Singh & Anr. v. State of U.P. [(2009) 13 SCC 670]. But that was a case in which it has come out that police station is situated hardly one furlong away from the court. That was also a case of acquittal of the accused by the trial court and the High Court reversed the finding mainly taking into account the timely registration of FIR. So the facts situation of this case has no bearing to the decision cited above. 25) He further placed reliance on Lalitha Kumari v. Government of U.P. & Ors. [2013 4 KHC 552] wherein it has been held that if information received by an officer in charge of police station discloses the commission of a cognizable offence, then registration of FIR is mandatory etc. That decision was mainly relied on by the learned counsel for the reason that though it has come out in evidence that PW17, PW19 and other higher police officials had been to the spot immediately after the incident and PW19 admit that through out the night he was present in the scene of occurrence, they did not made any attempt to register the FIR in spite of knowing about the commission of a cognizable offence. But the evidence of Crl.A.122 & 127 of 2016 21 PW17 would not go to show that anybody who had witnessed the incident was present or any other inhabitants in the locality were present at the time when the police party went to the spot. When he was asked about the presence of PW4 Mohanan, he could not remember.PW4 during evidence deposed that when police party reached there, they asked him to close the shop and leave the place. PW19, the Circle Inspector though admitted to have gone to the spot and enquired with PW4, PW19 stated that he could not question him in detail and his statement was not recorded at that time. PW19 took charge of the investigation of this case only on the succeeding day on 19.07.2004. It has come out in evidence that FIS was given by CW1 at 4 a.m at the police station and based on the same FIR was also registered at 4 a.m and despatched to court at 4.15 a.m itself. Since nothing came out to show that any reliable information about the commission of offence has been collected by PW19 or PW17 at the time of their visit immediately after the incident to the place of occurrence they are not bound to register the FIR, then and there. So also the evidence of PW19 was that after reaching the spot he remained at the place of occurrence till morning. It is to be remembered that the incident occurred in Jawahar Colony junction where people from socially and economically backward classes are residing. So it appears that apprehending any untoward incident in continuation to this incident, the police party remained at the scene of occurrence Crl.A.122 & 127 of 2016 22 through out night. It is the specific prosecution case that the victims in this case belongs to a particular political party and the accused belonged to the rival political party. So the facts situation of the present case is entirely different from the decision cited above. 26) Sri. P. Vijaya Bhanu, learned senior counsel in the context of delay in lodging the FIR placed reliance on Sudarshan and Anr. v. State of Maharashtra [2014 KHC 4394 : (2014) 12 SCC 312]. In that case, the FIR was found to be anti-timed and the names of the two appellants were incorporated later showing them to be present at the time when statement was made by the complainant. It has also been found that the advocate was approached first after the incident before going to the police station and reporting the matter. There seems to have discrepancies with regard to the presence of the appellants. So all those factors were taken into account to conclude that there was suspicion about the recording of FIR at the time stipulated. So the fact situation of the above case has no relevance in the present case. That was a case wherein the Apex Court held that benefit from faulty investigation ought to be given to the accused and not to the prosecution. In that case they recorded the homicidal death of three innocent victims. But, due to the farce investigation, the prosecution could not prove the involvement of the accused beyond any reasonable doubt and it was held that unless the perpetrators of the crime is proved beyond reasonable Crl.A.122 & 127 of 2016 23 doubt, accused cannot be convicted. So that decision does not have any direct application to the present case. 27) The learned counsel for all the accused persons further contends about the lack of motive or the failure on the part of the prosecution to prove the motive behind the incident. In a case based on direct evidence motive is of little significance. Proof of motive will become more relevant in a case based on circumstantial evidence. In this context, it is relevant to quote **Abu Thakir and Others v. State [AIR 2010 SC 2119]** . That was also a case under Section 302 IPC and a contention was raised with regard to the absence of motive from the side of the appellant/accused. In paragraph no.22 of the said decision it has been held by the Apex Court that in the light of the direct evidence of PW2 to 4, 8 and 20 the motive was of no significance. 28) It is also relevant in this context to quote **Gosu Jairami Reddy and anr. v. State of Andhra Pradesh [AIR 2011 SC 3147]** . That arose in a murder trial. In paragraph no.13 the contention with regard to the absence of motive was dealt with and it has been held that in cases based on eyewitness account of the incident proof, absence of a motive is not of any significant consequence. If motive is proved it may support the prosecution version. It is also held that existence or otherwise of a motive plays a significant role in cases based on circumstantial evidence. So in a case of direct evidence if the deposition given Crl.A.122 & 127 of 2016 24 by the eyewitness account of the incident that led to the death of deceased is reliable, absence of motive would not make any difference. Moreover the prosecution in this case could establish the motive behind the incident also to a great extent. 29) PWs 1, 2 and 3 speaks about the motive alleged in this case. The motive alleged by the prosecution is that first accused spread a news that PW1, deceased and others take bath unclothed their dresses in the river nearby the house of the first accused. That was questioned by deceased and PW1 and there was an altercation in connection with the same and assault upon first accused. During evidence, PW1 deposed in page No.21 towards end of the chief examination about the motive alleged and also stated that when they questioned first accused there was a hot exchange of words in between them and he assaulted first accused. On the immediate next day, first accused filed a complaint against deceased himself and Vinoy at Palode Police Station and they were called upon to appear at the police station in connection with that complaint. So himself and deceased went along with PW3 to the police station and waited for two hours. But first accused did not turn up. Then the Sub Inspector permitted them to go with a direction to appear on further notice. Curiously enough during cross examination of PW1 no single question was put challenging this aspect. So, in effect, the evidence of PW1 with regard to the motive alleged remains unchallenged. Crl.A.122 & 127 of 2016 25 30) PW2 during the end of chief examination stated that the motive behind the incident is the issue occurred at the riverbank. During his cross examination also no question was put with regard to his evidence tendered during chief examination with regard to the motive. 31) PW3 also stated about it and the complaint filed at Palode police station by the first accused in connection with the same. During cross examination of PW3 it was brought out that it was the deceased who assaulted the first accused and there is also a challenge with the mode of assault and the particular portion is marked as Ext.D7. But Pw3 was not present along with Pw1 and deceased when they questioned the first accused. He only accompanied them to the police station. So also the evidence of PW1 with regard to the motive remains unchallenged. Moreover, prosecution examined PW11, the Head Constable/Writer of Palode Police Station who signed in the seizure mahazar prepared by PW19 for seizing the complaint filed by the first accused at Palode Police Station. PW19 also deposed about the seizure of the complaint filed by the first accused at Palode Police Station. That complaint is also marked subject to objection as Ext.P39. True, the complaint ought to have been proved by examining the officer who recorded the same. The learned counsel for the accused also would contend that at the time of examination under Section 313(1)(b), first accused denied to have given such a complaint also. Anyway, since the accused Crl.A.122 & 127 of 2016 26 denied to have given Ext.P39 complaint and the Head Constable who recorded the complaint and made endorsement to summon the parties to appear before the SHO was also not examined, it cannot be found that the contents in Ext.P39 complaint is proved. But the fact that such a complaint is filed by the first accused is proved. Coupled with the same the unchallenged oral testimony of PW1 and PW2 and also the evidence of PW3 would prove in abundance the prosecution case regarding the complaint filed by the first accused against PW1, deceased and others. So the contention of the defence that the motive alleged is not proved cannot be accepted. PW19 stated during cross examination that the motive behind the incident is not political animosity. At the same time, he stated that the case has been taken in political angle. On appreciating the entire evidence what can be gathered is that though the motive of the incident was the enimity in connection with spreading of news in connection with taking bath in the river, subsequently it assumed a political colour and political parties on the side of the assailants formed themselves into an unlawful assembly and rioted with lethal weapons and inflicted injuries upon PW1 and deceased. 32) Though the prosecution alleged a criminal conspiracy, defence strongly contents that no evidence has been adduced in the aspect of conspiracy. PW19 categorically stated that the incident had occurred due to a clear criminal conspiracy. But he could not collect evidence in connection with the conspiracy Crl.A.122 & 127 of 2016 27 during investigation. The learned counsel for the accused would also content that no witness was cited and the time and date of the alleged conspiracy is also not specifically stated by the prosecution even in the charge. But court below without any materials convicted the accused under Section 120(B)IPC also. 33) There cannot always be any direct evidence for criminal conspiracy since it is something that hatch in secrecy. Criminal conspiracy is a fact which can be discerned from the attending facts and circumstances. In E.K. Chandrasenan v. State of Kerala [(1995) 2 SCC 99 : 1995 Crl.L.J 1445], it has been held that there can hardly be any direct evidence on criminal conspiracy for the simple reason that conspiracies are not hatched in open, by their very nature they are secretly planned and so lack of direct evidence relating to conspiracy by the accused has no significance. But here as pointed out by the learned counsel no witness has been examined to prove the conspiracy. The date and time when it was hatched is also not revealed. Moreover accused No.12 in whose house the criminal conspiracy alleged to have been hatched was acquitted also. The investigating officer also admit that no evidence in that regard has been collected by him. So we are of the view that criminal conspiracy could not be established by the prosecution. 34) The learned counsel for the accused persons also has got a contention that first accused alleged to have slapped PW1 and deceased was not the target. It is true that PW1 during evidence Crl.A.122 & 127 of 2016 28 when a leading question was put as to whether he was the target, he answered in the affirmative. But we still have doubt whether Pw1 really understands the meaning of the word 'target'. He is only a coolie doing the tapping work. 35) It is to be noted that the complaint was filed by the first accused against the deceased, PW1 and two others and PW1 and deceased had gone to the police station along with PW3 in connection with that complaint. So the contention of the learned counsel that deceased was not the target of the accused cannot at all be accepted. What has been done by the first accused initially was that he rushed to the place where PW1 and deceased were standing and without any provocation slapped at the cheek of PW1. He might have known that it would provoke PW1 and deceased. As intended by him deceased intervened and there was a push and pull and they restrained him. It is at that time accused Nos.3, 4 and others came from the opposite direction. Third accused was armed with sword and fourth accused with cudgel proclaimed to slash them to death. So the facts and circumstances would go to show that the target was not only PW1 but the deceased also. Otherwise, when both of them ran towards north, these accused would not have chased them and second accused and others came from the opposite direction slashed at the thigh of the deceased and inflicted the fatal injury. 36) Defence also got a contention that PW1 did not state the Crl.A.122 & 127 of 2016 29 name of the assailants and time of incident also has been stated as 8.30 pm to PW12 the doctor of Medical College hospital at casualty. But PW1 explained that the alleged cause was stated by Sanosh Khan. During examination of PW12, no question was put from the defence as to who has stated the alleged cause. So we do not find any reason to disbelieve the evidence of PW1 that Sanosh Khan stated the alleged cause to the doctor. Time of incident stated as 8.30 pm would itself leads to an inference that it is not PW1 the injured who stated the same. The evidence of PW12 doctor would prove that he examined the deceased at casualty at 9.15 pm. PW19 admitted that 1½ hours will be taken in ambulance from the place of occurrence to Medical college hospital. So if the incident was at 8.30 pm, they could not have reached at Medical college at 9.15 pm. Ext.P9 and P10 wound certificates and evidence of PW12 also would prove that they were brought to hospital by Sanosh Khan. Since it has come out that Sanosh Khan has stated the alleged cause to the doctor, it can not be expected that he would reveal the name of the assailants. 37) The court below found the accused Nos.1 to 4, 6, 9, 10 & 11 guilty of the offences and convicted and sentenced them. According to the learned counsel for the 6[th] accused, accused Nos.7 & 13 have been acquitted by the court below. The 6[th] accused is on the same footing as far as the evidence adduced with respect to him is concerned. So according to him, A6 also Crl.A.122 & 127 of 2016 30 ought to have been given the same benefit as A7 & A13 and hence conviction of 6[th] accused is without any valid evidence. On perusing the records, it is seen that there was attempt from the side of the 6[th] accused to establish that he is a juvenile and after enquiry it has been found that he is not a juvenile and has been tried along with other accused. 38) The main contention of the learned counsel for the 6[th] accused Sri. Latheesh Sebastian is that only PW1 identified the 6[th] accused and there is no recovery and no overt act alleged against him. 39) On going through the evidence of the occurrence witnesses, it could be seen that PW1 deposed that among the 4[th] accused, who had come from the side of the waiting shed area the 3[rd] accused, 9[th] accused, 6[th] accused and 10[th] accused were also present. He also identified the 6[th] accused in the dock and stated that 3[rd] accused was holding sword and 4[th] accused was holding an iron rod and others were holding cudgels. Suddenly Pw1 and deceased ran towards north Chenkotta area. PW2 though stated about the name of the 6[th] accused among accused Nos.4, 3, 9 & 10 who came from the back while they restrained first accused, he could not identify the 6[th] accused and he could identify only accused Nos.1, 10, 9, 11, 4, 2 & 3 and he categorically stated that he cannot identify the other persons present in the dock. So as rightly contended by the learned counsel, the evidence of PW2 is of no use to inculpate the 6[th] accused. Crl.A.122 & 127 of 2016 31 40) PW3 did not state the name of 6[th] accused during his evidence and also did not identify him. PW3 also stated that though he stated the name of 16 accused, he had revealed to the police that he could not identify all of them. PW4-Mohanan, the shop owner, could identify only accused Nos.1 to 4. He also categorically admitted that he clearly identified A1 to A4 and some of the other accused he knew and the name of other accused have been stated to the police on the basis of hearsay. So in effect the evidence of PW4 also will not inculpate the 6[th] accused. So the question is whether the finding of guilt recorded against the 6[th] accused by the learned Additional Sessions Judge is acceptable. It is in this context that the delay in questioning PW1 and PW4 by the prosecuting agency assumes importance. 41) The defence has got a specific case that PW1 has been questioned only on 09.08.2004. PW4 has been questioned only on 02.09.2004 for the first time by PW20. To condone the delay, the explanation offered by the prosecution is that PW1 was admitted in the Medical College Hospital for three days and thereafter 10 -11 days he had undergone treatment at Nedumangad Taluk Hospital. During cross examination of PW1 it was brought out that it has not been stated by him to the police that he had undergone treatment at Nedumangad Taluk Hospital. PW19 also admitted that PW1 has not given a statement about the treatment undergone at Nedumangad hospital. The finding of guilt against the accused for the attack against PW1 is also under Crl.A.122 & 127 of 2016 32 Section 324 IPC. The evidence of PW12, the Doctor, who examined PW1 at Medical College Hospital and issued Ext.P10 wound certificate would show that the injury sustained by him is an incised looking wound 10x1x2 c.m on the right glute (the low hip) region. No other injuries. So the injuries of PW1 would go to show that the injury is not that serious. The prosecution also has no case that PW1 was in a critical condition or was in anyway prevented from giving statement. Admittedly he had been at Medical College Hospital for three days. Though he would state that he continued the treatment at Taluk Hospital, Nedumangad, no evidence in that regard has been adduced from the side of the prosecution also. Admittedly, he has been questioned by PW19 on 09.08.2004 though he took charge of the investigation on 19.07.2004. 42) According to the learned counsel, PW4 was not questioned by PW18 or PW19, who are the officers who conducted the inquest and the investigation initially and only when PW20 took charge of the investigation he has been questioned. PW20 took charge of the investigation on 31.08.2004. He admitted that it is he who recorded the statement of PW4 for the first time. PW20 questioned PW4 on 02.09.2004, that according to the learned counsel for the accused has been purposefully delayed by the prosecution to develop the case and in political murder cases delayed questioning would always lead to chances of inculpation of innocent persons out of political vendetta. Crl.A.122 & 127 of 2016 33 43) In this context, Adv. Sri. Arjun Sreedhar, drew our attention to Shahid Khan v. State of Rajasthan [(2016) 4 SCC 96]. That was a case in which there was a delay of three days caused in recording the statement. But in that case it has also been found that there is no corroboration of their evidence from any other independent source and it is also found that having witnessed the occurrence they did not inform anybody about the occurrence and they did not go to the police station for lodging the complaint. In the said circumstances, their presence at the place of occurrence was held to be doubtful. 44) In this case PW19 admitted that on the date of incident itself when he went to the scene of occurrence, within half-an hour PW4 came to the scene and he enquired with him and he also stated that his statement was not recorded. It has also come out in evidence that it is Pw4 who shown the scene of occurrence to the investigating officer on the succeeding day. PW4 during evidence also stated that he has been questioned by the police on the date of incident and also on the subsequent days. But PW19 stated that he did not record the statement of PW4. He has no explanation to offer as to what prevented him in questioning Pw4. PW20, the successor of PW19, questioned PW4 and recorded the statement of PW4, on 02.09.2004. He took charge of the investigation on 31.08.2004. Without much delay he seem to have questioned Pw4. So there is no need to question Pw20 about the delay in questioning Pw4. Crl.A.122 & 127 of 2016 34 45) The learned counsel also placed reliance on Madathil Narayanan & Ors. v. State of Kerala & Anr. [(2018) 14 SCC 513]. The fact situation of that case would go to show that on the date of incident the witness did not disclose the names of accused persons. After ten days the said witness disclosed the names of accused. So it was held that the trial court rightly not relied on their evidence and reversal of the same by the High Court was set aside. 46) The learned counsel further placed reliance on State of Madhya Pradesh v. Nande @ Nandkishore Singh [(2018) 3 SCC 196]. That was a case in which delay has been caused in recording the statement of PW5 and PW7 whose statements were mainly relied upon by the prosecution and the trial court. There was a delay of 25 days in recording their statement. On going through the entire decision, it is also seen that the FIR in that case was lodged after 13 days of the incident. In the said context that 25 days of delay caused in questioning those witnesses was held as fatal. 47) The learned counsel further placed reliance on Vijaybhai Bhanabhai Patel v. Navnitbhai Nathubhai Patel & Ors. [(2004) 10 SCC 583]. In that case, the incident was on 13.11.1985. But PW4 and PW7 who claimed to be the eyewitnesses were questioned only on 15.11.1985 and no explanation was given by the investigating officer and there was evidence to show that investigating officer had visited the house of the deceased on the Crl.A.122 & 127 of 2016 35 very next day. PWs 7 & 4 are the widow and son of the deceased also. So each case can be differentiated based on its own facts. 48) As has been held in Nandkishore Singh's case referred above, merely because witness was examined after a considerable period from the date of occurrence, his evidence need not be discarded on that ground alone. But at the same time, while testing the credibility and assessing the intrinsic worth of such witnesses the delay in their examination by the police has to be borne in mind and their evidence will take after strict scrutiny before being accepted. 49) A specific question was put to PW19 that it is due to the political background of the witnesses that delay has been caused in questioning them and that has caused prejudice to the accused, apart from giving a flat denial, he could not offer any explanation as to why he has not questioned PW1 the injured witness at an earlier date. PWs 2 and 3 were questioned by PW19 on the near days of the incident i.e. on 19.07.2004. But PW2 though stated the name of 6[th] accused he could not identify him during evidence. So also PWs 3 & 4 did not even refer the name of 6[th] accused also before the court. So the sole testimony of PW1 and identification of 6[th] accused by him before the court as one of the assailants who has been questioned by the police after 21 days cannot alone be based upon to inculpate the 6[th] accused. That is more so because PWs 2 to 4 could not identify him. It has also come out in evidence that immediately after the Crl.A.122 & 127 of 2016 36 first accused was restrained by PW1 and the deceased and others, these assailants came from southern opposite side. All the witnesses deposed in corroboration that a group of people headed by accused Nos.3, 4, 9 & 10 rushed towards them from south. So in such a situation when PW2 to 4 could not identify the 6[th] accused before the court the identification of the 6[th] accused by PW1 alone cannot be based upon for conviction of the accused in view of the delay caused in questioning him inspite of being an injured witness. 50) PWs 1 to 4, as discussed in the beginning gave evidence in corroboration with respect to the incident. The evidence of those witnesses in chief have already been extracted in the previous paragraphs. Though PW1 deposed in chief examination identifying accused Nos.1 to 4, 6, 7, 9, 10, 11 & 13, during cross examination he admitted that he came to know about the presence of accused Nos.8, 11 and 5 later. Further he stated that he had given statement to the police that the presence of accused Nos.12, 7 and 8 had been subsequently known to him and the presence of accused Nos.14, 13, 11 & 16 also came to his knowledge later. So in effect the evidence of PW1 would lead to a conclusion that he is sticking to the presence of accused Nos.1 to 4, 9, 6 and 10. PW2 also stated about the presence of accused 2, 3, 4, 6, 9 & 10 as the people came from the back side initially when they restrained first accused. Further he stated that on seeing them PW1 and deceased ran towards Madathara Crl.A.122 & 127 of 2016 37 road, a group of people came from Madathara area and among them he identified accused Nos.2, 7 and 5. He also stated that accused No.5 beat him when he tried to enter into the place where deceased and PW1 were lying with injuries and disregarding the attack they went near deceased and PW1. But when the question of identification of the accused came, he categorically stated that he can identify accused Nos.1 to 4, 9 & 10. He also categorically stated that he cannot identify 5[th] accused though he claimed that he was beaten by 5[th] accused. So that would show that these witnesses could not identify all the assailants. He also reiterated in cross-examination about the presence of 1[st] accused in the place where deceased and PW1 were slashed. Further he stated that there were about 10 -20 people holding swords and bamboo logs and iron rods. According to him, there are unidentifiable people also in the gang. On another occasion he stated that about 25 people might have come there. But he categorically stated that both Pw1 and the deceased sustained injury almost at the same time. He also clearly states about the overt act of the 2[nd] and 3[rd] accused and beating of CW1 with iron rod by the 4[th] accused. Though he was cross-examined at length, his identification of the accused persons in his chief examination with respect to accused No.1 to 4, 9 & 10 could not be successfully challenged. 51) PW4, is the owner of the shop who actually had seen only the incident from the second slash at the deceased with sword by Crl.A.122 & 127 of 2016 38 the 2[nd] accused and warding off the same by the deceased. During cross examination he asserted that he had clearly identified accused Nos.1 to 4. With respect to others, he informed the police as per the hearsay knowledge gathered by him. But his evidence was mainly attacked by the defence for the delay caused in questioning him. So the evidence of the prosecution would reveal that even though PW4 was a witness who was very much present at the spot and PW19 admitted that when he went to the scene of occurrence on the date of incident though PW4 was not present after about half-an hour of his arrival PW4 came there and he talked to him. PW4 also admitted that Circle Inspector had questioned him. But it was not recorded and PW19 had been in charge of the investigation of this case upto 19.08.2004. But curiously enough he had not recorded the statement of PW4. So, as rightly pointed out by the learned counsel for the accused, there seems to have some delay in questioning PW4. 52) So the failure to record the statement of PW1 the injured witness and also PW4 immediately after the incident would lead to an inference that the prosecution was taking time to get identification of all the assailants involved in the incident. But Pw2 and 3 were questioned on 19.07.2004 itself. So the evidence of pw4 and 1 to the extent in corroboration with Pw2 and 3 can safely be acted upon. 53) PW2 and PW3 categorically stated that they could not Crl.A.122 & 127 of 2016 39 identify all the assailants. They were questioned by the investigating officer on the immediate next day. Both of them categorically stated about the overt act in corroboration as against accused Nos.1 to 4. The presence and participation of accused Nos.9 & 10 also have been stated in corroboration by PWs 2 & 3. With regard to accused No.11, though PW1 identified accused No.11 in chief examination, in crossexamination, he categorically admitted that he came to know about the participation of accused No.11 on a later date. PW2 identified accused Nos.1 to 4, 9, 10 & 11. But PW3 identified only accused Nos.1 to 4, 9 & 10. PW4 identified only accused Nos.1 to 4. So the presence and participation of PW11 though stated by PW2 it is not corroborated with that of PWs 1, 3 & 4. This is a case in which FIR was registered against 12 named accused and 13 identifiable persons on completion of the investigation, Ext.P52 report was filed deleting 9 accused. Final report confined to 16 accused and prosecution witnesses also admitted that they could not identify some of the assailants. Hence the conviction of 11[th] accused based on the evidence of PW2 alone would not be safe. So we are of the considered view that the prosecution could prove the involvement of accused Nos.1 to 4, 9 & 10 alone beyond any reasonable doubt. 54) The defence has also got a contention that majority of 161 statements recorded by PW19 - do not bear any date. He would state that PW2 and PW3 were questioned by him on 19.07.2004. Crl.A.122 & 127 of 2016 40 PW19 admitted that in the statement produced before the court, date of recording the statement of Pw2 and PW3 were not shown. 55) In view of the objection raised by the counsel for the accused, we called for the Case Diary and it is found that as stated by the investigating officer the C.D. contained the date of examination of all the witnesses. So no prejudice in that regard has been caused in this case. 56) PW19 also deposed that since the dates are mentioned in the Case Diary that it has not been stated in 161 statement. That does not appear to be a plausible explanation since the accused would be in dark with regard to the date of questioning of the witnesses, which is a relevant fact for the defence to contest the case. Undisputedly the accused have no access to the Case Diary. So the explanation by PW19 that since date is mentioned in the Case Diary that it has not been extracted in the 161 statement cannot be taken as an acceptable reason. That practice has to be deprecated. 57) Rule 791 of the Kerala police Manuel 1972 volume Vl is relevant in this context to be extracted. “(1). Though under sub-section (3) of section 161 of the Code of Criminal Procedure a Police Officer is not bound to record the statement of witnesses examined by him during the course of investigation, yet it is desirable to reduce to writing the statements of all important witnesses who are acquainted with the facts and circumstances of the case and Crl.A.122 & 127 of 2016 41 who may have to be cited in the court as witnesses. The statement of each witness should be recorded separately. Statements recorded by Police officers under section 161(3) of the Code of Criminal Procedure should be in the first person and should, as far as possible, be in the language in which it was made in his own words. Such statements will be certified as truly recorded by the Police officer recording the same and will be attached to the case diary for the relevant dates. As sub-section (4) of section 173 of the Criminal Procedure Code indicates that copies of statements of all persons whom the prosecution proposes to examine as its witnesses should be given to the accused before the commencement of the inquiry, it is necessary that such statements, at least, are separately recorded.” (2).......................... 58) Going by the above it would be clear that the police officer is bound to record the statements and certify it as true and attach the same to the case diary for the relevant dates. As per s.173 (4) of Cr.P.C., accused is entitled to get copies of statements of all persons whom the prosecution proposes to examine as its witnesses. So it goes without saying that the date of recording the statement should also be there in the 161 statements so as to avoid unnecessary controversies at the time of trial. It would ensure a fair trial which is a constitutional mandate also. 59) The learned counsel for the accused further would raise a contention that Circle Inspector, Varghese had conducted a part of the investigation has not been Crl.A.122 & 127 of 2016 42 examined. According to PW22 who had filed the charge, as per records from 16.03.2005 to 04.04.2005 Circle Inspector Varghese is seen to have conducted the investigation. PW21 also deposed that he took charge of the investigation from Circle Inspector, Varghese. PW21 took charge of the investigation of this case on 25.04.2006. So probably Circle Inspector Varghese might not have conducted any investigation and collected any evidence and that may be the reason why he has not been cited as a witness and that will not in anyway affect the credibility of the prosecution case. - 60) The learned counsel for the accused persons have also strong objection with regard to the place of occurrence. According to them, the place of occurrence has not been properly located and the place of occurrence is quite away from the place alleged by the prosecution and the place where the deceased was brought for taking in vehicle to hospital had been changed as the place of occurrence. To substantiate the contention, the learned counsel would contend that at the time of giving FIS and also at the time of inquest the prosecution allegation was that deceased was slashed twice by the second accused and thereafter the deceased ran towards the shop of Mohanan - PW4 and fell down and at that time the third accused slashed at the buttocks of PW1 with a sword stick. At the time of evidence Crl.A.122 & 127 of 2016 43 all the witnesses stated that the deceased was slashed at the verandah of the shop of PW4 while deceased and PW1 fell down on collision with each other in a haste to enter into the shop of PW4 when chased by the accused persons. First of all, FIS was marked as Ext.P39 subject to objection. 61) We have already found that the contents in FIS has not been proved. So also PWs 1 to 3 would depose in corroboration with regard to the place of incident initially below the flag-mast opposite to the waiting shed and subsequently when the assailants came from south PW1 and deceased ran towards north and when other gang found to be coming from the northern side, they rushed to the shop of PW4 for shelter and during that course they fell down on collision with each other. PW6 is the witness in scene mahazar which is marked as Ext.P2. He deposed that it was prepared on the succeeding day of the incident at about 11 - 11.30 and PW19 also deposed about the preparation of the scene mahazar. PW6 identified one pair of chapel MO6 series seized by describing in the scene mahazar and also MO7 another chappel. PW14 Special Village Officer, Peringamala who prepared the scene plan which is marked as Ext.P13 in which the Village Officer has clearly marked the place where the initial incident took place and also the shop of Mohanan where the later part of the incident happened. During cross-examination he categorically stated Crl.A.122 & 127 of 2016 44 that item No.1 is in the middle tar road. Moreover, PW1, the injured witness, who sustained slash at the hands of third accused in this incident, categorically states about the place where the incident took place. He categorically stated that on seeing PW3 and others standing under the flag-mast opposite to the waiting shed himself and deceased who were talking together went near them and while they were talking together first accused came and slapped at his cheek and subsequently when the assailants came from the opposite southern side himself and deceased ran towards north and seeing a gang of assailants coming from north, both of them rushed towards the shop of PW4 where both of them fell down and second and third accused slashed them with swords. All these places are clearly stated in the scene mahazar and marked in the scene plan. In the deposition of PWs 2 and 3 also they gave a narration in corroboration with that of PW1 with regard to the place of occurrence. While preparing the scene mahazar, PW19-investigating officer stated about the presence of blood on the southern side of the shop of PW4 and he seized the blood in a cotton gauze and some chappals seized from the place of occurrence have been identified as MO6 series and MO7, MO8 to MO10 series three pairs of chappels were also seized by describing in the seizure mahazar Ext.P3. Seizure of chappals from the scene of occurrence is also a Crl.A.122 & 127 of 2016 45 circumstance leading to the inference that part of the incident took place there. Apart from making some suggestion to PW1 that the incident occurred somewhere else and the place where the deceased was brought for taking into the vehicle had been shown as the scene of occurrence falsely which was denied by him stoutly, there is no evidence to probabilise the version of the defence to show that the incident occurred somewhere else. So we are of the considered view that prosecution could prove the place of occurrence beyond any shadow of doubt. 62) We may also like to point out that even though PW1 to 3 would depose that 4[th] accused rushed to the spot armed with an iron rod, at the time of evidence the weapons identified are MO3 and 4 bamboo stumps and MO5 series cudgels. But the incident occurred during night at 7.30 pm and may be due to the fact that the accused came all of a sudden from the opposite side in a gang, they could not have properly identified the weapon held by the 4[th] accused. CW1 who alleged to have been beaten up by the 4[th] accused with iron rod also could not be examined since he is no more. Anyway that inconsistency with regard to the nature of the weapon held by the 4[th] accused is not seems to be much material. 63) Apart from the above, prosecution adduced evidence with regard to the recovery of the weapons and Crl.A.122 & 127 of 2016 46 the scientific evidence. PW1 the injured and PW3 the eye witness clearly identified MO1 and 2 as the weapons used by 2[nd] and 3[rd] accused for slashing the deceased and PW1. They could not pinpoint which among MO1 and 2 have been used respectively by 2[nd] and 3[rd] accused. Normally it is quite impossible to make such an identification also since both of them are almost similar weapons. 64) PW19, is the Circle Inspector who conducted the major part of the investigation and effected recovery of MO1 and 2 at the instance of 2[nd] and 3[rd] accused. According to him on questioning the 2[nd] accused he has given Ext.P6(a) disclosure statements with regard to the weapon and MO1 sword was recovered as per the disclosure statement given by him and recovery mahazar is marked as Ext.P6. PW9 is the witness in Ext.P6 recovery mahazar and he clearly supported the prosecution case of signing in Ext.P6 mahazar and also recovery of the weapon at the instance of the 2[nd] accused. It is true that he has stated during crossexamination that he was the Union Secretary of CITU, Chippanchira and there was a political case against him. But it has come out that he is residing just two kilometres away from the place where the recovery was effected and his presence at the place of occurrence also has been properly explained by him. PW19 would further depose that on questioning the 65) Crl.A.122 & 127 of 2016 47 3[rd] accused he gave Ext.P7(a) disclosure statement and as led by him, MO2 sword was recovered and it was seized by describing in Ext.P7 mahazar. PW10 is the witness in Ext.P7 recovery mahazar. He also proved to have been residing about 1½ kilometres away from the place where the seizure was effected. He also stated that the mahazar was prepared from the bonnet of the vehicle. He denied that he is a sympathizer of CPM and there are no political cases against him. So nothing to discredit his testimony could be brought out. - 66) It is true that PW19 deposed that he did not take the statements of the witnesses in Exts.P6 and P7 mahazars. Since they have been cited as witnesses in the mahazar and fully supported the prosecution case, the fact that their statements were not taken by the investigating officer by itself will not efface the recovery effected. - 67) PW18, who was the Aryanad Circle Inspector and prepared Ext.P1 inquest of the deceased, deposed that MO13 jetty was seized by him. PW19 deposed that he has produced the material objects by describing in the property list and the property list is marked as Ext.P17. Ext.P53 is the copy of the forwarding note. Exts.P11 and P14 are the FSL reports. 68) PW13 was the Assistant Director, Serology Division, FSL, Thiruvananthapuram, who received 11 sealed packets Crl.A.122 & 127 of 2016 48 involved in this case and examined the items in the laboratory. Ext.P11 FSL report has been marked through him. Ext.P12 series were also marked because during drafting the report, a clerical mistake was crept in. Instead of group 'A' the blood group was wrongly written as 'O' in page No.4 of the report. On detecting the mistake after taking permission of the Director, FSL, to issue a corrected report, he prepared the same and forwarded to the court and that has been produced by him at the time of examination and that is marked as Ext.P12. The worksheet and the draft report submitted by him were marked as Ext.P12(a) and 12(b). Ext.P11 FSL report would prove that item No.1 and 2 which are blood stains collected from the varandah of the shop of PW4, item No.3 (MO6 series) is a pair of footwear collected from the scene of occurrence, item No.4 is MO7 chappal, item No.5 is plastic mug, Mo12, item No.6 is MO3 bamboo stump, item No.7 is MO4 bamboo stump and item No.8 to 10 are MO8, 9 and 10 series seized from the place of occurrence and item No.11 is MO5 series, cudgels seized by describing in Ext.P3 seizure mahazar contained blood in all the items except MO5 series cudgels. It is also reported that blood stains collected from the verandah of shop of PW5 and MO12 mug were subjected to jel diffusion test and found to be human in origin. Though MO7 chappal, MO3, 4 8 to 10 though contained blood, the origin and group could Crl.A.122 & 127 of 2016 49 not be determined due to the insufficiency of the sample. The report would further states that the blood stains collected from the verandah of the shop of PW4 contained human blood belonging to group 'A'. PW15 the Joint Director, FSL, Thiruvananthapuram as on 3.3.2005 deposed that she received three sealed parcels containing the material objects in the above crime and were examined by her to determine the presence of blood, its origin and group and issued Ext.P14 certificate. Ext.P14 would show that item No.1 to 3, ie, item 1, MO1 sword and item No.2, MO2 sword and item No.3 and MO13 jetty of the deceased, were subjected to benzidine test and presence of blood was detected in all the items and jel diffusion test prove that the blood found in all items were human in origin. It is further reported that item No.1 (MO1) and 3 (MO13) contained human blood belonging to group 'A'. PW1 deposed during cross-examination that his blood group is 'B positive'. So the group of blood in MO13 would be that of deceased. The presence of group 'A' blood in items 1 and 3 would pinpoint the 2[nd] accused with the offence. The detection of blood of human origin in the material objects and detection of Group A blood in the bloodstains collected from the verandah and bloodstains in some of the items lend support to the prosecution case regarding the place of incident. It has already been found that prosecution could 69) Crl.A.122 & 127 of 2016 50 establish the involvement of accused 1 to 4, 9 and 10 in the act of causing the death of deceased and inflicting injury upon PW1 beyond any reasonable doubt. The evidence of PW1 and 3 would prove that while PW1 deceased and PW3 and others were talking together below the flag mast, the 1[st] accused came suddenly and slapped at the cheek of PW1. When he was restrained by deceased and others, 3[rd] accused, accused Nos.9 and 10 and others came from the opposite side and 4[th] accused proclaimed to slash them to death and accused 9 and 10 accompanied them armed with cudgels. PW2 also state that when they restrained 1[st] accused, 3[rd] accused, accused Nos.9 and 10 and others along with unidentifiable people rushed towards them. 4[th] accused proclaiming to slash them to death came armed with an iron rod. All of them also stated that seeing them PW1 and deceased ran towards north and the assailants chased them. It is also found already that there is evidence in corroboration with regard to the active participation of accused 9 and 10. So it is evident from their conduct that all the accused in furtherance of their common object armed with swords and cudgels constituted an unlawful assembly. It is clear from their conduct that they shared common object while they chased PW1 and the deceased. In prosecution of their common object 2[nd] accused inflicted fatal injury upon the deceased and 3[rd] accused inflicted a cut injury on the Crl.A.122 & 127 of 2016 51 buttock of PW1. So the formation of an unlawful assembly in prosecution of the common object of doing away with the deceased is established from the facts and circumstances. 70) The next argument of the learned counsel for the accused is that, conviction under Sec.302 IPC is not at all sustainable and the ingredients to attract Sec.300 IPC has not been proved. They would contend that the prosecution case is that the 2[nd] accused slashed the deceased at the posterior part of his thigh while he fell down on the verandah of the shop of PW4. Though there was a subsequent development that the 2[nd] slash aimed at the neck was warded off by the deceased and there by he sustained injury on fingers, that has not been proved. The place where the slash was made and only one serious injury was inflicted according to them would show that there was no intention to cause the death of the deceased. As far as PW1 is concerned, the finding of the lower court is only under Sec.324 IPC. So taking into account the facts and circumstances, according to them, the conviction under Sec.302 is not sustainable. 71) In this context, the learned Senior Counsel Sri.P.Vijayabhanu took our attention to Harjinder Singh v. Delhi Administration (AIR 1968 SC 867 = MANU/SC/0059/1967). In that case special leave was limited to the question as to whether the case come under Crl.A.122 & 127 of 2016 52 Sec.302 IPC or not. That was a case in which the appellant gave a blow with a knife under the belly and upper portion of the left thigh. So taking into the totality of the facts and circumstances in that case, the conviction was altered from Sec.302 to Sec.304 IPC. 72) In the same context, the learned counsel drew our attention to Laxman Kaly Nikalje v. The State of Maharashtra (AIR 1968 SC 1390 = MANU/SC/0053/1968). In that case also appellant was convicted under Sec.302 IPC and it was ultimately found that injury causing the death inflicted with knowledge of likely to cause death and the case is covered by third part of Sec.299 and not by any of four Clauses of Sec.300. Conviction of life imprisonment under Sec.302 was altered to second part of Sec.304. That was also a case in which the assailants took out a knife and stabbed the victim on the shoulder. A portion of paragraph 10 is relevant to be extracted which reads as follows : “But the second part in our opinion is not fulfilled, because but for the fact that the injury caused the severing of artery, death might not have ensured. In other words, looking at the matter objectively, the injury which Laxman intended to cause did not include specifically the cutting of the artery but to wound Ramrao in the neighbourhood of the clavicle. Therefore, we are of opinion, that the thirdly of S.300 does not cover the case. Inasmuch as death has been caused, the matter must still come within at least culpable homicide not amounting to murder. There again, Sec.299 is in three parts. The first part Crl.A.122 & 127 of 2016 53 takes in the doing of an act with the intention of causing death. As we have shown above, Laxman did not intend causing death and the first part of Sec.299 does not apply. The second part deals with the intention of causing such bodily injury as is likely to cause death. Here again, the intention must be to cause the precise injury likely to cause death and that also, as we have shown above, was not the intention of Laxman. The matter therefore comes within the third part.......” 73) The learned counsel further took our attention to Gokul Parashram Patil v. State of Maharashtra (AIR 1981 SC 1441 = MANU/SC/0144/1981). In that decision in a case of alteration of charge under Secs 300(c)(ii), 302 and 304 Part-II of IPC it has been discussed whether particular injury which was found to be sufficient in the ordinary course of nature to cause death was the injury intended by the appellant and it has been held that Sec.300(c)(ii) IPC provides that injury must intended to have been caused by the culprit and injury which was found sufficient in the ordinary course of nature to cause death does not satisfy the above test because it cannot be said to have been intended by the assailants and accordingly the appeal was allowed and conviction under Sec.302 IPC was set aside and altered to Sec.304 Part-II IPC. In that case also, prosecution case was that appellant attacked the deceased with a knife giving the latter a little blow above the left clavicle where it goes muscle deep incised wound having Crl.A.122 & 127 of 2016 54 dimension 1 – ¼ x 1/3. 74) The learned counsel also placed reliance on Ajit Singh v. State of Punjab (2011 (9) SCC 462 = 2011 KHC 4773) wherein while dealing with Secs 302 and 304 IPC, it has been held that, in the absence of clear evidence regarding intention to cause death and the intention to cause more bodily injuries to hold whether an offence would fall under Sec.302 or 304 Part-I IPC, the courts have to be cautions in examining whether the same falls under Sec.300 or it would fall under its five Exceptions which lays down when culpable homicide is not murder. 75) The learned Senior Public Prosecutor on the other hand placed reliance on Virsa singh v. state of Punjab (1958 KHC 451(SC) = AIR 1958 SC 465) and would contend that once intention to cause the bodily injury actually found to be present is proved, the rest of the enquiry is purely objective and the only question is whether as a matter of purely objective inference, the injury is sufficient in the ordinary course of nature to cause death. In para 12 of the said judgment it has been held that :- “the prosecution must prove the following facts before it can bring a case under S.300 “thirdly”: first, it must establish, quite objectively, that a Crl.A.122 & 127 of 2016 55 bodily injury is present ; secondly, the nature of injury must be proved; these are purely objective investigations Thirdly, it must be proved that there was an intention to inflict that particular bodily injury that is to say, that it was not accidental or unintentional or that some other kind of injury was intended. Once these three elements are proved to be present the enquiry proceeds further and ; Fourthly, it must be proved that the injury of the type just described made up of the three elements set out above is sufficient to cause death in the ordinary course of nature. This part of enquiry is purely objective and inferential and has nothing to do with the intention of the offender. Once these four elements are established by the prosecution the offence is murder under S.300, thirdly. It does not matter that there was no intention to cause death. It does not matter that there was no intention even to cause any injury of a kind that is sufficient to cause death in the ordinary course of nature. It does not even matter that there was no knowledge that an act of that kind will be likely to cause death. Once the intention to cause the bodily injury actually found to be present is proved, the rest of the enquiry is purely objective and the only question is whether as a matter of purely objective inference the injury is sufficient in Crl.A.122 & 127 of 2016 56 the ordinary course of nature to cause death. No one has a licence to run around inflicting injuries that are sufficient to cause death in the ordinary course of nature and claim that they are not guilty of murder. If they inflict injuries of that kind, they must face the consequences; and they can only escape if it can be shown, or reasonably deduced that the injury was accidental or otherwise unintentional”. - 76) So according to the learned Public Prosecutor the evidence adduced from the side of the prosecution would prove in abundance about the injury caused by the accused and that injury was sufficient in the ordinary course of nature to cause death. So the intention to cause death or that they have no knowledge that act of that kind will likely to cause death etc are immaterial. 77) Bearing in mind the above principles laid down by the Apex court, the facts and circumstances of this case have to be evaluated. The prosecution has got a case that, after giving a blow on the right posterior aspect of the thigh of the deceased, second accused again aimed to slash at the neck of the deceased which was warded off by him thereby he sustained injury on his fingers. There is also a case for the prosecution that under the leadership of 1[st] accused, they restrained others to approach the deceased Crl.A.122 & 127 of 2016 57 and PW1 and hence they could not take the victim to the hospital instantaneously. But on evaluating the evidence of the prosecution witnesses it is seen that PW1 deposed in chief-examination that all these accused stood in a round and prevented anybody to approach them and made a huge commotion. But during cross-examination it was suggested that such a statement was not given to the police. Though he denied that, PW19 the investigating officer would depose that PW1 did not give any such statement to the police. PW2 also stated in chief-examination that under the leadership of 1[st] accused nobody was permitted to approach them. But during his cross-examination he was questioned as to whether he has given such a statement to the police, though he asserted to have given such statement, no such statement has been given to the investigating officer as per the evidence of PW19. So the evidence of PW1 and 2 with regard to the threatening made at the instance of 1[st] accused and others thereby preventing the witnesses to approach PW1 and the deceased, seem to be a material omission and hence cannot be acted upon. On the other hand, the evidence of PW1 itself would show that after the incident, he went to the nearby store of Prakasan and had water from there. That itself would show that after the attack, nobody was there otherwise he could not have gone to the shop of Prakasan and take water. Crl.A.122 & 127 of 2016 58 78) Medical evidence also would go to show that the deceased and PW1 had reached the Medical College hospital at 9.15 pm. The incident admittedly occurred at 7.35 pm. PW19 would depose that 1½ hours time would be taken from the place of occurrence to the Medical College hospital on a travel by ambulance. It would go to show that immediately after the incident, the deceased and PW1 would have been taken from the place of occurrence to the hospital. So the case of the prosecution that after the incident, accused persons encircled themselves preventing the prosecution witnesses and public to approach the deceased and PW1 is not seems to be correct. 79) Prosecution has also got a specific case that the second attempt of the 2[nd] accused was slash aiming at the neck of the deceased. The evidence of witnesses in the above regard is contradictory. Admittedly apart from the injury on the thigh, the other injury sustained by the deceased is on his fingers. The injury which led to the death of the deceased as opined by the doctor is also injury on the thigh. In this regard, the evidence of PW1 in chiefexamination is that the first slash was at the thigh of the deceased and next 2[nd] accused aimed to slash on the neck and that was warded off by the deceased. But that has been proved as an omission. PW2 would only state even in chiefexamination that the 1[st] slash was on the right thigh and the Crl.A.122 & 127 of 2016 59 second slash was warded off by the deceased with hand and he sustained injury on the hand. PW3 though stated that 2[nd] accused slashed secondly aiming at the neck of the deceased and that was warded off by the deceased, he had not given such a statement to the police and it has been proved as an omission. The evidence of PW4, the shop owner, on the other hand, is that the second slash by the 2[nd] accused was warded off by the deceased with his hand. So the prosecution case that the 2[nd] accused aimed to slash at the neck of the deceased could not be substantiated by the prosecution. But it has come out that secondly also 2[nd] accused gave a blow to the deceased which was warded off by him. So the injury sustained by the deceased is deep incised looking wound on his right thigh and incised injuries on his fingers. 80) To determine the issue, it would be necessary to discuss the medical evidence. PW12 is the Lecturer in Surgery at Medical College hospital, Thiruvananthapuram who was attending the casualty duty on 18.9.2004. He examined the deceased on 9.15 pm and issued Ext.P9 would certificate. The doctor also stated that the injury can be caused by MO1. The injuries noted are : - “1. Incised looking wound 20x5x10 cm on the right thigh, posterior aspects cutting adductor and hamstring muscles suspected neuro vascular bundle. 2. Incised wound at the right hand cutting little and ring Crl.A.122 & 127 of 2016 60 finger. 81) PW8 is the Professor and Head of Department of Forensic Medicine at Government Medical College, Thiruvananthapuram who conducted postmortem on the body of the deceased. Ext.P4 is the postmortem certificate issued by him. The ante mortem injuries noted are as follows : 1. Incised wound 23x7.5 cm almost horizontal on the back of right thigh, 13 cm above the knee. It was 11 cm deep, directed downwards and forwards, cutting through the muscles and severing the femoral artery and femoral vein, the sciatic nerve and ending 1.5 cm behind the femur. 2. incised wound 2x1x1.5 cm oblique on the inner aspect and back of right little finger, its upper inner end 4 cm below its root, has cleanly cut and fractured the middle segment of the bone beneath leaving the distal part of the finger on the skin tag. 3. Incised wound 2x0.2 cm oblique on the back and inner aspect of right ring finger, its upper inner and 4 cm below the level of its root. 4. Abrasion 1x0.3 cm oblique on back of right hand, the lower inner and 4 cm above the root of middle finger. 5. Abrasion 0.6x0.2 cm oblique on back of right hand, the upper inner end 0.3 cm below injury No.4. 6. Abrasion 7.5 x 0.1 cm oblique on outer aspect and front of right thigh, the front lower end 17 cm above the knee. 7. Healing skin deep wound 2 cm long oblique on front of right index finger the upper outer and 4 cm above its root. Crl.A.122 & 127 of 2016 61 (margin were firmly adherent.). 82) The chemical examination report, Ext.P5, also marked through him which would rule out the possibility of death due to poison. The doctor also deposed that the femoral artery is one of the major arteries supporting blood to the lower limbs. Injury No.1 would make it clear that a sharp heavy cut was caused and he also stated that injury Nos.2 and 3 can be caused by warding off the attack by right hand. He would also state that injury No.1 cutting femoral artery and vein caused profuse bleeding and it is sufficient in the ordinary course of nature to cause death. He also stated that injury No.1 can be caused while the victim lying on a posture with face down. He also stated that injury Nos.2 and 3 can be caused by a single act and the weapon was also shown to the doctor. During crossexamination the doctor would state that, if profuse bleeding occurred, the person will get to a stage of shock and need not become unconscious. Though he was questioned whether a timely medical intervention will save the patient, according to him there is a bleak chance of saving the patient. 83) Injury Nos.2 and 3 are the cut injuries causing fracture to the middle segment of the bone on the inner aspect of back of right little finger. Injury No.3 is an incised wound, 2x0.1 cm on the back of inner aspect of right finger Crl.A.122 & 127 of 2016 62 and the doctor also opined that these injuries could be caused in a single act. It would indicate that injury Nos.2 and 3 had been caused while warding off the attack by the deceased. Abrasions noted might have been caused due to fall. - 84) So injury No.1 noted in Ext.P9 wound certificate and also in the postmortem certificate would go to show that it is a deep cut injury with a heavy weapon. The evidence of PW8 would also show that femoral artery and vein were severed and it would cause profuse bleeding and that is sufficient in the ordinary course of nature to cause death. So the evidence of PW12 and 8 coupled with the ocular evidence would prove conclusively that a deep sharp cut injury with a heavy weapon has been caused to the deceased which resulted in his death. It has also come out that the injury was caused to the deceased by chasing him and while he fell down in his attempt to take shelter in the shop of PW4. Second blow with MO1 was warded off by the deceased and thereby he sustained deep cut injuries on the middle finger and little finger. 85) According to PW8 injury No.1, cut femoral artery and vein and caused profuse bleeding and that is sufficient in the ordinary course to cause death. After causing that injury 2[nd] accused again struck him with MO1 which was warded off by the deceased and that resulted in deep cut Crl.A.122 & 127 of 2016 63 injuries on his ring finger and little finger. When such deep cut injuries are caused with heavy cutting weapon like MO1, the intention to cause such bodily injury likely to cause death is explicit and the act of the 2[nd] accused will come under culpable homicide not amounting to murder coming under Part I of S.304 IPC. - 86) Based on the above discussion, we are of the considered view that the conviction and sentence passed against appellant No.3/accused No.6 in Crl.A.122/2016 and the appellant No.4/accused No.11 in Crl.A.127/2016 are not sustainable and is liable to be set aside. Conviction and sentence against all accused under Sec.120B is also liable to be set aside. The conviction and sentence passed against appellant Nos.2, 3 and 4/accused Nos.2, 3 and 9 in Crl.A.122/2016 and that of appellant Nos.1 to 3/accused Nos.1, 4 and 10 under Sec.302 r/w 149 IPC is set aside and altered to first part of Sec.304 r/w 149 IPC. 87) In the result, Crl.A.122/2016 and 127/2016 are allowed in part setting aside the conviction and sentence passed against appellant No.3/accused No.6 and appellant No.4/accused No.11 and they are acquitted of all the charges and are set at liberty. They shall be released forthwith if their confinement is not required in any other case. Conviction and sentence passed against appellant Nos.2, 3 and 4/accused Nos.2, 3 and 9 in Crl.A.122/2016 Crl.A.122 & 127 of 2016 64 and appellant Nos.1 to 3/accused Nos.1, 4 and 10 in Crl.A.127/2016 under Sec.302 r/w 149 IPC is hereby set aside and their conviction is altered to Sec.304 Part-I r/w 149 IPC. They are convicted and sentenced to undergo rigorous imprisonment for ten years each and to pay fine of Rs.50,000/- (fifty thousand only) each under Sec. 304 Part-I r/w 149 IPC. Conviction and sentence passed against them u/s. 120B is also set aside and they are acquitted of that charge. In all other aspects the conviction and sentence passed by the Additional Sessions Judge is hereby maintained. Out of the fine amount, if realized, Rs.3,00,000/(three lakhs only) shall be given to the mother of the deceased as compensation due to the death of her son and Rs.50,000/- (fifty thousand only) shall be given to PW1 as compensation towards the injury sustained by him under Sec.357(1)(b) Cr.P.C. Sd/- **A.HARIPRASAD Judge** Sd/- **M.R.ANITHA Judge** Shg/Mrcs