Manoj s/o Paulose v. State of Kerala (CRL.A. No. 503 of 2014) and Alice v. State of Kerala (CRA(V). No. 405 of 2015)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** ## **&** **THE HONOURABLE MR.JUSTICE N.ANIL KUMAR** **TUESDAY, THE 16TH DAY OF JULY 2019 / 25TH ASHADHA, 1941** ## **CRL.A.No.503 of 2014** **AGAINST THE JUDGMENT IN SC 501/2012 of ADDITIONAL SESSIONS COURT, MUVATTUPUZHA DATED 03-06-2014** **AGAINST THE ORDER/JUDGMENT IN CP 17/2012 of JUDICIAL MAGISTRATE OF FIRST CLASS -I MUVATUPUZHA** **CRIME NO.167/2012 OF Koothattukulam Police Station, Ernakulam** ## **APPELLANT/ACCUSED NO.1:** **MANOJ S/O PAULOSE, KUZHIPARAMBIL HOUSE, MUTHOLAPURAM KARA, ELANJI VILLAGE.** **BY ADVS. SRI.C.P.SAJI SMT.M.V.SREELAKSHMI** ## **RESPONDENT/COMPLAINANT/STATE:** **STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM--682031.** **BY ADV.SR.P.P-SRI.S.U.NAZAR.** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 26.06.2019, ALONG WITH CRA(V).405/2015, THE COURT ON 16.07.2019 DELIVERED THE FOLLOWING:** CRL.A 503/2014 & CRA(V).405/2015 -:2:- ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** ## **&** **THE HONOURABLE MR.JUSTICE N.ANIL KUMAR** **TUESDAY, THE 16TH DAY OF JULY 2019 / 25TH ASHADHA, 1941** ## **CRA(V).No.405 of 2015** **AGAINST THE JUDGMENT IN SC 501/2012 of ADDITIONAL SESSIONS COURT, MUVATTUPUZHA DATED 03-06-2014** **AGAINST THE ORDER/JUDGMENT IN CP 17/2012 of JUDICIAL MAGISTRATE OF FIRST CLASS -I MUVATUPUZHA** **CRIME NO.167/2012 OF Koothattukulam Police Station, Ernakulam** ## **APPELLANT/VICTIM:** **ALICE, AGED 45 YEARS W/O.LATE JOHN, 45 YEARS, KUZHIPARAMBIL HOUSE, MUTHOLAPURAM, ELANJI, MUVATTUPUZHA,-686665.** **BY ADV. SRI.DINESH MATHEW J.MURICKEN** ## **RESPONDENTS/COMPLAINANT & ACCUSED:** **1 STATE OF KERALA, REPRESENTED BY THE INSPECTOR OF POLICE, PIRAVOM, THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2 MANOJ, S/O. PAULOSE, KUZHIPARAMBIL HOUSE, MUTHOLAPURAM KARA, ELANJI VILLAGE, PIN-686665.** CRL.A 503/2014 & CRA(V).405/2015 -:3:- - **3 VINOD @ BIJU, S/O. PAULOSE, KUZHIPARAMBIL HOUSE, MUTHOLAPURAM KARA, ELANJI VILLAGE, PIN-686665.** - **4 KAMALAKSHY, W/O. PAULOSE, KUZHIPARAMBIL HOUSE, MUTHOLAPURAM KARA, ELANJI VILLAGE, PIN-686665.** **BY ADVS. SR.PP. SRI.S.U.NAZAR SRI.C.P.SAJI SMT.P.DEEPA MOHAN** **THIS CRL.A BY DEFACTO COMPLAINANT/VICTIM HAVING BEEN FINALLY HEARD ON 26.06.2019, ALONG WITH CRL.A.503/2014, THE COURT ON 16.07.2019 DELIVERED THE FOLLOWING:** CRL.A 503/2014 & CRA(V).405/2015 -:4:- ## **J U D G M E N T** ## _**Shaffique, J.**_ Two appeals are under consideration. Altogether there were three accused. 2[nd] and 3[rd] accused (hereinafter referred to as A2 and A3 respectively) were acquitted. 1[st] accused (hereinafter referred to as A1) was convicted. Crl. Appeal No.503 of 2014 is preferred by A1 challenging judgment of conviction and order of sentence dated 03.06.2014 passed by the Additional Sessions Judge, Muvattupuzha in S.C. No.501 of 2012 arising out of Crime No.167 of 2012 of Koothattukulam Police Station by which he was found guilty for offence under Section 304 Part II of the Indian Penal Code, 1860 (for brevity 'IPC') and was sentenced to undergo rigorous imprisonment for a period of six years and to pay a fine of `2,00,000/- (Rupees Two Lakhs only) with a default stipulation of rigorous imprisonment for one year for the said offence. Fine amount, if realized, was directed to be paid to Alice, who is the wife of the deceased John as compensation under Section 357(1) of the Code of Criminal Procedure, 1973 (for short CRL.A 503/2014 & CRA(V).405/2015 -:5:- 'Cr.P.C.'). Crl.Appeal (V) No. 405 of 2015 is preferred by the wife of the deceased, Alice, by which she challenges both the acquittal of A2 and A3 of charges under Section 302 read with Section 34 as well as the finding of the learned Sessions Judge that A1 is not guilty for offence under Section 302 read with Section 34 of IPC instead he is guilty only for offence under Section 304 Part II of the same Code. 2. With reference to the victim appeal, the judgment in favour of A2 and A3 being one of acquittal, there is double presumption of innocence in their favour. Only if the judgment is found to be perverse or unreasonable in so far as it affects A2 and A3, this Court is supposed to interfere with the finding of the trial Court. As far as A1 is concerned, the question to be looked into is whether Court below was justified in convicting A1 for offence under Section 304 Part II of I.P.C. though he was charged with offence punishable under Section 302 read with Section 34 of I.P.C. Admittedly, these two appeals arise out of the same incident and parties involved are the same. Hence, it is only appropriate to hear and dispose of the matter together and we do CRL.A 503/2014 & CRA(V).405/2015 -:6:- the same. 3. Prosecution case against the accused is as follows: Accused were not in good terms with John, S/o Devasia, Kuzhiparambil House, Kurumala, Mutholapuram Kara. On 16/04/2012 at about 08.45 p.m., a scuffle took place between A1 and PW3 Jojo near the public tap situated on the side of the pathway near the house of the accused as well as deceased John at Kurumala bhagam. John, who is the father of PW3 interfered in the scuffle. In furtherance of common intention of A1 to A3 to kill John, A1 Manoj caught hold on the neck of John with his elbow and A2 and A3 assaulted John with their hands and legs. John died in consequence of throttling and assault by accused. Accused were charged for offence under Section 302 read with Section 34 of I.P.C. 4. To prove the case, prosecution examined PW1 to PW9 as witnesses, marked documents Exts.P1 to P10 and identified MO1 and MO2 as material objects. After the closure of prosecution evidence, accused were questioned under Section 313 of the Code of Criminal Procedure, 1973 (for short 'Cr.P.C.'). CRL.A 503/2014 & CRA(V).405/2015 -:7:- They denied all incriminating circumstances and filed a joint written statement. They pleaded innocence. From the side of defence, DW1 to DW3 were examined. 5. Learned counsel for A1, Sri.C.P Saji argued that prosecution failed to prove their case beyond reasonable doubt. Court below ought to have acquitted A1 also, for want of evidence. Motive is not even alleged by the prosecution. The place of occurrence and time of incident is doubtful. There is no light available at the alleged place of occurrence. PW1 to PW3 are tutored witnesses and they contradict each other in many material aspects. Admittedly, no weapon is used. Medical and other evidence do not go along with the so called ocular version. Nothing is available to prove that there was any common intention for A2 and A3 to commit the offence. He relied on the decisions of the Supreme Court in _**Lakshmi Chand and Another v. State of Uttar Pradesh**_ (AIR 2018 SC 3961), _**Syed Tousef Hussain v. State of A.P**_ [2013 (4) SCC 517] and _**Sudheer v. State of Tamil Nadu**_ (2006 Crl.L.J. 4541) to show that, for convicting a person for offence under Section 34 of I.P.C., CRL.A 503/2014 & CRA(V).405/2015 -:8:- there must be common intention to commit a criminal act and the said act must have taken place in furtherance of such common intention. He submitted argument notes also. He placed reliance on the decisions of the Apex Court in _**Ganga Singh v. State of Madhya Pradesh**_ [2013 (7) SCC 278], _**Raj Kumar Singh v. State of Rajasthan**_ (2013 KHC 4377), _**Habeeb v. State of U.P.**_ (AIR 2013 SC 1764), _**Sudhakar v. State of M.P.**_ (2012 KHC 4388), _**Kailas Gour and Others v. State of Assam**_ (2011 KHC 5111), _**Paramjeet Singh @ Pamma v. State of Uttarakhand**_ (2010 KHC 4714) and _**Ekhanath Ganapath Aher and Others v. State of Maharashtra**_ [2000 (6) SCC 519] to substantiate his arguments on appreciation of evidence, burden of proof and benefit of doubt. He pleaded to allow his appeal and dismiss the appeal preferred by the victim. 6. Per contra, both learned Senior Public Prosecutor Sri.S.U.Nazar and learned counsel appearing for and on behalf of the victim Sri.Dinesh Mathew J. Murickan contended that there are enough evidence to prove the guilt of A1 to A3 for offence under Section 302 read with 34 of I.P.C. Evidence of PW1 to PW3 CRL.A 503/2014 & CRA(V).405/2015 -:9:- are categoric and fully reliable. There is no omission or contradiction in their version. They corroborate each other in material particulars. A1 throttled John to death and A2 to A3 assisted in accomplishing their common intention. Medical evidence supports the testimony of eyewitnesses. Court below committed serious error in acquitting A2 and A3. Also, Court ought to have found A1 liable for offence under Section 302 of I.P.C. Reliance was placed on the decisions of the Apex Court in _**Virsa Singh v. State of Punjab**_ (AIR 1958 SC 465), _**Rajwant Singh v. State of Kerala**_ (AIR 1966 SC 1874) and _**Abdul Waheed Khan v. State of Andhra Pradesh**_ (AIR 2002 SC 2961) to point out the aspects to be taken note of while interpreting various clauses of Section 300 IPC. _**Nand Kishore v. State of Madhya Pradesh**_ (AIR 2011 SC 2775) was cited to emphasize the applicability of Section 34 in cases involving murder. 7. Primarily, we are concerned with the question whether trial Court is justified in arriving at the present conclusion in the light of evidence available. Hence three questions are to be CRL.A 503/2014 & CRA(V).405/2015 -:10:- answered in this appeal. Firstly, whether the death of John was a homicide as alleged by the prosecution. Secondly, whether A1 throttled John as alleged. Thirdly, whether A1 throttled John, in furtherance of the common intention of A1 to A3 as alleged. 8. We heard all counsel in detail and perused the records. It is only appropriate to re-appreciate evidence on record to arrive at a conclusion. 9. Evidence adduced by the prosecution, in short, are as follows: PW1 gave Ext.P1 First Information Statement (for short 'FIS') to police on 16/04/2012 based on which Ext.P1(a) First Information Report (for short 'FIR') was prepared. PW1 to PW3 are cited as occurrence witnesses. PW4 is an attestor to Ext.P2 scene mahazar. PW5 is an attestor to Ext.P3 inquest report. PW6 is the Village Officer, Elanji who prepared Ext.P4 site plan. PW7 is the Doctor who conducted autopsy of the deceased. Ext.P5 is the post-mortem certificate issued by him. PW8 is the Sub Inspector of Police, Koothattukulam Police Station. Ext.P1(a) FIR was registered by the then ASI Sunny on the basis of Ext.P1 FIS given CRL.A 503/2014 & CRA(V).405/2015 -:11:- by PW1 on 16/04/2012. Sunny is no more. PW8 identified the signature of Sunny in Ext.P1(a). PW9 is the then Circle Inspector of Police, Piravom who conducted investigation. He prepared Ext.P2 scene mahazar and Ext.P3 inquest report on 17/04/2012. MO1 and MO2 are the mundu and shirt worn by the deceased at the time of incident. Ext.P6 is the property list for the same. Accused were arrested by PW9 on 17/04/2012. Exts.P7, P8 and P9 are arrest memos of A1 to A3 respectively. Exts.P7(a), P8(a) and P9(a) are the respective inspection memos of A1 to A3. Ext.P8 is the report showing actual time of occurrence. After completing investigation, PW9 laid charge-sheet before Court. From the side of defence, DW1 to DW3 were examined. 10. Coming to the first question, evidence of witnesses coupled with Ext.P3 inquest report would show that deceased herein is John, S/o Devasia, Kuzhiparambil House, Kurumala, Mutholapuram Kara. PW7 is the District Police Surgeon, Ernakulam who conducted post-mortem examination. Ext.P5 is the certificate issued by him which bears his seal and signature. PW7 deposed that he had noted the following injuries on the CRL.A 503/2014 & CRA(V).405/2015 ## -:12:- ## corpse of the victim: _“1. Contusion 1 x 1 cm on right side of neck, just below angle of jaw bone. Flap dissection of neck was done under bloodless field. Superior born of thyroid cartilage on right side was fractured with blood infiltration to surrounding tissue._ _2. Contusion 0.5 cm x 0.5 cm on inner aspect of upper lip at midline”._ According to PW7, injury no.1 is homicidal in nature and injury no.2 can be caused by assault using hands. PW7 answered in affirmative to a question put by learned public prosecutor as to whether an elbow lock on neck from behind will cause injury no.1 mentioned in Ext.P5. He also agreed to the question that such an act would cause instant death due to vagal inhibation. Instant death can be caused due to constrictive force around the neck. In cross-examination, he stated that contusion was found at the right side of the neck just below the ankle of jawbone having 1 c.m. length and 1 c.m. width. He agreed to the suggestion put by learned counsel for the accused that the injury no.1 could be caused when somebody catch holds on the neck of a person using his left hand by standing behind him. PW7 added that possibility is more to cause injury on the side. He stated that CRL.A 503/2014 & CRA(V).405/2015 -:13:- possibility is less to apply force if neck is caught hold of using forearm. He added that usually forearm is referred to as 'ക�തണ' in Malayalam and it is impossible to cause injury no.1 using forearm. Blood was found spread on the neck. Another suggestion was put to PW7 as to whether injury no.1 could be caused if the person falls on a round water pipe hitting neck for which he replied that it is possible, provided the size of pipe is only 1x1c.m. If the size of the pipe is more than that, the dimension of injury also increases. There was no abrasion in injury no.1. No other injury was found on the corpse of the deceased. During reexamination, he stated that injury no.1 would not be caused due to a simple fall. To a Court question, he replied, in an ankle lock, forearm alone is not used though usually forearm is used. In our view, evidence of PW7 shows that John died due to constriction force applied on the neck. Hence we are in agreement with the trial Court that death of John was homicidal. 11. Next point to be answered is whether A1 caused the said injury which resulted in the death of John. Some specific arguments were raised by the learned counsel for the appellant CRL.A 503/2014 & CRA(V).405/2015 -:14:- to show that evidence available is not sufficient to hold the accused guilty of offence as alleged by the prosecution. He submitted an argument note as well. According to defence side, John died in some accident and not in the course of alleged scuffle between accused and prosecution party. So called occurrence witnesses made material improvements and alteration in evidence by deviating from their earlier case before police. There are inconsistencies regarding place of occurrence, time of occurrence, source of light, narration of overt acts committed by A1 to A3, persons present at the time of occurrence, persons who had taken injured John to hospital, admission of injured John to hospital, time of his death, cause of injury suffered by John and by whom said injury was inflicted or whether it was accidental and time of arrival of PW1, PW2, PW3, A2 and A3 to the spot. No independent witnesses who were allegedly gathered at the place of occurrence were examined. To unveil whether prosecution has proved the case beyond all reasonable doubt, it is necessary to look into the evidence of PW1 to PW3 who are cited as eyewitnesses of the incident by the CRL.A 503/2014 & CRA(V).405/2015 -:15:- prosecution. 12. PW1 is a close relative of the deceased. He is residing at Kurumala in Elanji Panchayath. There is no road facility there. The pathway having 3 feet towards their house begins from near St.Thomas Chapel. There are houses on the northern side of the pathway. When proceeding from Chapel, the first house belongs to the accused and second belongs to deceased John. The residents over there collects water from the public tap situated by the side of the said pathway. To the northern side of the pathway, there is a _kayyala_ (fence) having a height of two feet. Public tap is filled joining the said _kayyala_ . He deposed that accused are known to him from childhood and they are relatives and neighbours. Deceased John was the husband of his aunty. John was leading his family life with two offsprings. On 16/04/2012 at about 08.45 p.m., while he was sitting in his house, he heard a noise from the house of accused. Manoj (A1) was uttering filthy words. Voice of Jojo was also audible. To know what is happening, PW1 went there. By the time PW1 reached there, he saw deceased John, his son Jojo and Manoj (A1) standing near the CRL.A 503/2014 & CRA(V).405/2015 -:16:- public tap. He saw Manoj pushing and pulling Jojo. At that time, John interfered and tried to set them apart. Then, Manoj caught hold on the neck of John from behind using his left hand and pressed. PW1 tried to loose the clutches of Manoj. Then Manoj without leaving the hold on John's neck, turned back and using his right hand hit on the chest and face. Then Vinod (A2) and Kamalakshy (A3) reached there and started beating John using their hands. PW1 who tried to save John was also beaten by A2 and A3. By that time, his aunt Alice and Joy, the younger son of John reached there and pushed away Manoj and released John from the hands of Manoj. John fell down. All the accused kicked and stamped John who was lying on the ground using their legs. Hearing the cry of Alice, people gathered there and accused ran away. John was taken by them to Devamatha Hospital, Koothattukulam. Doctor examined John and found him dead. John died due to throttling done by Manoj. Accused did not allow the prosecution party to save John. John had given statement against Manoj to police. Also, PW3 kept a torch light near public tap. These two incidents are the causes for enmity. PW1 saw the CRL.A 503/2014 & CRA(V).405/2015 -:17:- incident with the help of Torch light of PW3 and also natural light. The torch was kept on at _kayyala_ . Ext.P1 is the F.I. Statement given by him to police. During cross-examination, he stated that they went to police station from hospital in Joshy's car. Deceased and himself are neighbours. His house is about 30 metres away from public tap and it is possible to see his house from the place where public tap is situated. The tap is situated adjoining _kayyala_ . At the time of incident, torch was on and kept towards eastern side. The _kayyala_ is situated east-west and not northsouth. He heard commotion at 08.45 p.m. At that time, there was no power supply. There was no street light at the place. Within one minute of hearing noise, PW1 reached the spot. At that time, only John, Manoj and Jojo were there. Round stones and rocks are there in the pathway. Before PW1 reaching the spot, there was push and pull between A1 Manoj and PW3 Jojo. By the time he reached the spot, he saw John setting both of them apart. Thereafter, there was no scuffle between A1 and PW3. (But the said aspect is brought out as an omission). He admitted that after he reaching the spot, John attempted to set both A1 and PW3 CRL.A 503/2014 & CRA(V).405/2015 -:18:- apart. A1 pressed on the neck of John using his left arm by standing behind. PW1 was standing in front of John. PW1 tried to pull the hands of A1 so as to save John. PW3 also tried for the same. Suddenly, A1 turned back and using his right hand, beat John on his face and chest. As PW1 and PW3 tried to prevent A1 again, A2 and A3 reached the spot and hit them. PW1 stated that he had told police that A1 had hit on the face and chest of John using his right hand. Said aspect is also brought out as an omission. A2 and A3 came to the spot running. At that time PW1 was standing behind A1. As PW1 and PW3 pushed, A1 released his hold from John. Then John fell down. But before police, PW1 does not have a case that they pushed Manoj and hence he released his clutches from John. He admitted that he did not give a statement to police that when John fell down, A1 to A3 stamped on the chest and abdomen. He also agreed that he did not have a case that A2 and A3 had beaten them. He has no previous case that PW2 and Joy tried to release the clutches of Manoj over John. The statement that PW2 Alice cried is not there in his previous statement. They took John in the autorickshaw of Thampi to CRL.A 503/2014 & CRA(V).405/2015 -:19:- hospital. Himself, Jojo and Kochunni brought John to casualty. He stated that he did not say about availability of moonlight earlier. John went to the place hearing commotion. Death of John happened because of his being present in the place of occurrence. 13. PW2 is the wife of the deceased. She deposed in tune with PW1 regarding the surroundings of their residence, pathway, public tap etc. On the date of incident, her husband and two children were there in their house. The incident happened on 16/04/2012 at about 08.45 p.m. By 08.45 p.m., PW3 Jojo went near to the public tap with a torch for taking bath. After sometime, she heard voice of Manoj and commotion from near the public tap. Hearing this, her husband rushed to the spot. Commotion progressed. Then herself and her younger son Joyce went to that place. As she reached there, she saw Manoj pressing the neck of her husband using his left hand from behind. Manoj, Babu and her husband were there. PW3 Jojo and PW1 Babu were trying to push apart A1. Then A3 Kamalakshy and A2 Vinod reached there. They beat and hit her husband in different parts of CRL.A 503/2014 & CRA(V).405/2015 -:20:- body. PW2 and others tried to loose the hand of A1 from the neck of her husband. A3 and A2 pushed them away. PW1, PW3 and Joyce managed to push apart A1 Manoj. Then her husband fell down. A2 and A3 beat and kicked her husband, when he fell down. Hearing their cry, people from the locality gathered there. At that time, all the accused went to their house. Her husband was taken to the hospital. On the very same day, her husband died. Her husband died because A1 had throttled him. There was property dispute between accused and relatives. Her husband gave statement to police against accused. Hence accused had enmity towards them. But they do not have any enmity towards accused. Another reason is that PW3 had lighted torch towards their house. She saw the incident with the help of light from the torch switched on by PW3 and natural light. She had shown the place of occurrence to police. All accused are known to her and they are relatives. During cross-examination, she stated that the pathway leading to their house is having stones on it. PW1 is the son of her brother Peter Joseph. At the time when she reached the spot, PW1 was there. Her husband went there hearing CRL.A 503/2014 & CRA(V).405/2015 ## -:21:- commotion. Herself, A2 and A3 reached the spot at the same time. The water supply was available four days a week. On the date of incident, there was supply of water through the public tap. The incident happened during load shedding. She heard abusive words of Manoj soon after PW3 went to take bath. PW3 went to take bath by wearing a kerchief. PW3, Joyce and Shijo carried her husband to autorickshaw. Others followed in another vehicle. She took dress for PW3 with her while shifting her husband to autorickshaw. By the time PW2 reached the spot at the time of incident, PW1 was present there. Both PW1 and PW3 were trying to save her husband by loosening the clutches of first accused's hold on the neck of her husband. All of them attempted to do the same. Manoj pushed them aside using his right hand. Jojo was standing on the right side and Babu was standing on the left side while the attempt to save her husband was going on. Thereafter, they pushed Manoj towards the front and he fell. At that time, her husband fell down. It was A2 and A3 who tried to keep them away from saving their husband. They tried to save her husband from the clutches of Manoj by pulling Manoj from his CRL.A 503/2014 & CRA(V).405/2015 -:22:- back. PW1 and PW3 pulled from the opposite side by holding on the hands of A1. A2 and A3 had hit on the back, face and shoulder of her husband. She also deposed that it was possible for them to walk through the road even without light since the way is familiar to them. Manoj asked who was taking bath by lighting torch towards his house. Husband was taken to hospital in the autorickshaw of Thampi. She denied the suggestion that the injury was caused to John due to fall on a pipe hitting neck on it. During re-examination, she stated that the pipe of 2 inches diameter was lying closer to the ground. 14. PW3 who is the son of deceased and PW2 deposed that the incident happened on 16/04/2012 at about 08.45 p.m. Himself, his father, mother and brother were there in their house. Accused are neighbours and relatives. There is a public tap in the pathway near their house. Accused were not in good terms with them. His father had given statement in a case between accused and accused's relative and hence they entertained grudge against his father. On the date of incident, she went to the public tap for taking bath. He placed the torch in his hand on the CRL.A 503/2014 & CRA(V).405/2015 ## -:23:- _kayyala_ in switched on condition. Thereafter, he opened the tap. At that time, A1 Manoj came towards the tap by shouting “ആര�ട� വ�ട�ല�ക� ലട�ർചട�കനത� .” Manoj was using abusive words as well. PW3 replied that he placed it on the _kayyala_ and not towards A1's house. A wordy altercation took place. Using a stick on his hand, A1 hit on the left shoulder of PW3. Hearing the sound, his father reached the spot and tried to pacify them. At that time, A1 caught hold on the neck of John with his left hand from behind. Left forearm was placed on the neck and pressed. His father attempted to loose the hold of A1 in vain. At that time, PW1 reached there. PW1 and PW3 tried to push aside A1. But A1 turned by continuing the hold on the neck of John. By that time, his mother (PW2) and brother reached the spot. A2 and A3 also reached there and tried to prevent them and they too hit his father. Some or how, they managed to push off Manoj. Then, John fell down. John was taken to hospital. Accused kicked John while he was lying down. People gathered there hearing the cry. John was taken to Devamatha Hospital, Koothattukulam. Doctor examined him and declared him dead. He deposed that his father CRL.A 503/2014 & CRA(V).405/2015 -:24:- died due to throttling done by A1. A2 and A3 prevented them from saving his father. He saw the incident with the help of torch light and natural light. In cross-examination, he stated that the tap and _kayyala_ are situated on the same level. The house of accused and the house of PW3 are behind _kayyala_ . The house of accused were 25 metres away from tap. The pathway is full of stones and sand. It is possible to see the house of Peter by standing near the tap. The incident happened at 08.45 p.m. At that time, there was load shedding. PW3 went to take bath by wearing a bath towel and having a torch with him. He placed the torch on the _kayyala_ by switching it on and started taking bath. At that time, A1 came there hurling abusive words. PW3 do not know whether light from torch reached the house of A1. After PW3 reaching the place, within 2 minutes, his father John reached the spot. At that time, himself and Manoj alone were there. A scuffle took place. Voice of both of them were audible. After his father John reaching the spot, his mother and brother reached there. Before PW2 and brother of PW3 reaching there, PW1 came there. By the time Babu (PW1) came there, John was trying to set CRL.A 503/2014 & CRA(V).405/2015 -:25:- PW3 and A1 apart. PW1 reached within one minute of John reaching the place. A1 hit PW3 with a stick soon after he reached the spot. He admitted that he did not state the same to police. He also admitted the fact that he had no case earlier to police that his mother and brother reached the spot after PW1 reaching the spot. He admitted that he stated to police that A1 caught hold on the neck of John before PW1 and PW2 reaching the spot. He added that it was a mistake as he was in a difficult mental state. He also admitted that he omitted by mistake to give the name of his brother as one who was present at the place of occurrence at the relevant time. He was having no case earlier that they tried to loose the clutches of A1 from the neck of John by pushing A1. His father fell down almost 1½ feet away from the pipe. He denied the suggestion that there was rock around the pipe. He stated that stones and sand were there. They sprinkled water over the face of John. Since he remained unconscious, he was taken to hospital. PW3 changed his clothes in between as his mother brought dress for him. Himself, his brother, PW1 and Kochunni took John to autorickshaw. Just before John fell down, CRL.A 503/2014 & CRA(V).405/2015 -:26:- accused, Balan, himself, PW2 and his brother were there. None of the accused had called John to the spot. No wordy altercation took place between John and accused. While John was falling, accused were also nearby. They kicked his father. Accused left home before they took his father to hospital. Accused did not speak anything among them after coming to the spot. He deposed that it would be possible that A2 and A3 reached the spot thinking that A1 was being beaten by them. 15. The evidence available would show that the public water tap is situated about 35 metres away from the house of PW3 and 25 metres away from the house of accused. Ext.P2 is the scene mahazar and Ext.P4 is the site plan. We do not find any reason to doubt the alleged place of occurrence. The reasoning of the learned Sessions Judge regarding availability of light and place of occurrence are reasonable and just. Even assuming there was no light as alleged, the accused and occurrence witnesses are relatives and neighbours and are known to each other. The pathway also is familiar to them. PW3 categorically stated that his torch was switched on at the time of incident and there was CRL.A 503/2014 & CRA(V).405/2015 -:27:- natural light available. Prosecution through the evidence of PW1 to PW3 and PW7 ruled out the possibility that the neck injury happened due to fall on the pipe. The only inference possible is that A1's elbow lock on the neck of John resulted in his death. Court below rightly rejected the evidence of DW1 to DW3 by holding that even assuming their version is true, it will not negate the possibility of A1 to A3 being present at the place of occurrence at 08.45 p.m. as these witnesses stated that they had seen accused at 09.00 p.m. in the shop. So called discrepancies pointed out by the defence is not material to discard the testimony of eyewitnesses. The material aspect in the case is the throttling on John. All three witnesses categorically deposed that it was A1 who throttled John by way of elbow lock. All witnesses attempted to release John from the clutches of A1 but he did not loose his hold for quite some time. By the time witnesses managed to release his hold, it was too late. John fell down and thereafter there was no response from him. PW2 stated that they sprinkled water on his face but he remained without any response. Medical evidence indicates that John was brought dead. CRL.A 503/2014 & CRA(V).405/2015 -:28:- It is proved beyond doubt that John was declared dead by the time he reached hospital. Appreciation of evidence of eyewitnesses would reveal that A1 throttled John and thereby caused his death. Though there are some contradictions in the evidence of PW1 to PW3, they are not material and would not affect the core of prosecution case. The acts of A1 is proved beyond doubt. 16. The only question remaining is whether A1 had the necessary _mens rea_ so as to make his deeds within the wordings of Section 300 of IPC. Admittedly, the incident happened all of a sudden and without any premeditation. Motive for the crime is not proved. Of course, motive is immaterial in a case where direct evidence is available. The incident started between A1 and PW3. It is brought out in evidence that the deceased rushed to the spot hearing commotion. A scuffle took place there. No weapon is used for committing the offence. It is proved that A1 caught hold on the neck of John with his left elbow and in spite of attempts from witnesses, he did not withdraw from pressing on the neck of John. But nothing is there to infer that A1 had the intention to kill CRL.A 503/2014 & CRA(V).405/2015 -:29:- John. Learned counsel for the appellant/accused vehemently argued that the offence of culpable homicide is not attracted in the case. According to him, the evidence shows that there was not even knowledge for A1 that the alleged act would result in death of John. At most, the offence attracted would be one under Section 324 of IPC, he argued. But we do not think the said argument is valid. It is common knowledge that neck is a vital part of body. Pressing neck for sometime itself is an act capable of endangering life. Medical evidence clearly shows that John died due to throttling. It is only common sense and logical inference that every man is presumed to be knowing the consequence of his acts unless he be acting under involuntary intoxication, unsoundness of mind etc. Evidence shows that in spite of repeated attempts made by PW1 to PW3 and brother of PW3, A1 did not release his clutch from the neck of John. It negates the contention that he had no knowledge about the consequence of his act. His act, _per se_ , is an act which is likely to result in death of a person. A1 had necessary knowledge that his act would likely cause death. We are convinced in the light of available CRL.A 503/2014 & CRA(V).405/2015 -:30:- evidence that this is a case in which intention to kill or intention to cause bodily injury likely to cause death is absent but of course knowledge enumerated under third clause of Section 299 is present. Hence under the facts and circumstances of the case, we are of the view that offence would not fall within the words of Section 300 of IPC. A1 Manoj can only be held liable for offence under Section 304 Part II of I.P.C. as rightly held by the learned trial Judge. So, we do not find any reason to interfere in the finding regarding conviction as far as A1 is concerned. 17. Coming to the acquittal of A2 and A3 are concerned, the following aspects comes out in evidence and out of them, some are cited as reasons by the Court below for arriving at the said conclusion: Admittedly, A2 and A3 were not present at the inception of the incident. Prosecution did not have even a case that A1 to A3 had any prior meeting of minds before A1 coming to the spot. Even prosecution witnesses admitted that had not John reached the place, he would not have been killed. There is nothing to show that A2 and A3 had prior knowledge that PW3 or the deceased would come to the public tap. They reached the CRL.A 503/2014 & CRA(V).405/2015 -:31:- spot hearing hue and cry, like that of PW1 and PW2. It is in evidence that they interfered in the scuffle. But allegations including overt acts committed by A2 and A3 against the deceased and PW3 is found to be an omission amounting to contradiction. It is a subsequently developed story by the prosecution. There is no motive at all for A2 and A3 to commit the crime. Absolutely there is nothing to show that a common intention had developed on the spot. PW3 stated that none of the accused spoke anything to each other at the time of incident while they were in the spot. No indication is there to show that any exhortations were made by any of the accused. A1 alone is the one who did the act which resulted in the death of John. Hence we have no hesitation to hold that prosecution failed to prove both overt acts as well as common intention on the part of A2 and A3. Court below is justified in acquitting A2 and A3. 18. Learned counsel for the appellant pleaded for a reduction in quantum of punishment also. According to him, considering the facts and circumstances of the case in its entirety, even if this Court is inclined to find the first accused CRL.A 503/2014 & CRA(V).405/2015 -:32:- guilty, lesser sentence may be awarded. Punishment imposed by trial Court is not commensurate with the offence. It can be seen that learned Sessions Judge ordered an imprisonment of six years only on proof of an offence under Section 304 Part II of I.P.C. We do not find any reason to reduce the quantum of punishment. In the result, both appeals are dismissed. The bail bond of A1 stands cancelled and he shall be apprehended to suffer the sentence imposed on him. **Sd/-** **A.M.SHAFFIQUE JUDGE Sd/N.ANIL KUMAR** Rp //True Copy// **JUDGE** PS to Judge