SANTHOSH, SAJAYAN and RAVEENDRAN v. STATE OF KERALA

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** **&** ## **THE HONOURABLE MR.JUSTICE N.ANIL KUMAR** **WEDNESDAY, THE 10TH DAY OF JULY 2019 / 19TH ASHADHA, 1941** ## **CRL.A.No.848 of 2015** **AGAINST THE JUDGMENT IN SC 1665/2006 of ADDITIONAL DISTRICT COURT & SESSIONS COURT - VI, KOLLAM DATED 25-08-2015 CRIME NO.58/2003 OF Kottarakkara Police Station** ## **APPELLANTS:ACCUSED Nos.1 to 3:** **1 SANTHOSH, AGED 38 YEARS, S/O.RAVEENDRAN, SANTHOSH BHAVAN, PERUMKULAM MURI, KALAYAPPURAM VILLAGE. 2 SAJAYAN, AGED 27 YEARS, S/O.SAHADEVAN, SALEELALAYAM, PERUMKULAM MURI, KALAYAPURAM VILLAGE. 3 RAVEENDRAN, AGED 61 YEARS, S/O.GANGADHARAN, SARASWATHY MANDIRATHIL, KOTTATHALA PADINJARE MURI, PUTHOOR VILLAGE, KOTTARAKKARA. BY ADVS. SRI.C.P.ANIL RAJ-FOR A1 SRI.C.RAJENDRAN-FOR A1 SRI.M.K.CHANDRA MOHANDAS-FOR A2 & A3 SRI.SHAKTHI PRAKASH-FOR A2 & A3** ## **RESPONDENT:** **STATE OF KERALA** **REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682 031. (CRIME NO.58/2003 OF KOTTARAKKARA POLICE STATION, KOLLAM DISTRICT)** **SR.PUBLIC PROSECUTOR-SRI.ALEX.M.THOMBRA** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 26.06.2019, THE COURT ON 10.07.2019 DELIVERED THE FOLLOWING:** Crl.A.No.848/2015 **==> picture [22 x 8] intentionally omitted <==** ## **JUDGMENT** ## N.Anil Kumar, J. The appellants (hereinafter referred to as accused) have been convicted under Section 302 of the Indian Penal Code, 1860 (hereinafter referred to as 'IPC') and sentenced to life imprisonment and a fine of Rs.25,000/in default to undergo rigorous imprisonment for two years. Besides, A1 and A2 have been found guilty for the offence punishable under Section 326 of IPC and sentenced to undergo rigorous imprisonment for ten years and a fine of Rs.20,000/- in default to undergo rigorous imprisonment for 18 months for the offence punishable under Section 326 of IPC as well. The accused have been convicted for the offence punishable under Section 324 of the Indian Penal Code. By applying the provision under Section 71 of IPC, no separate sentence has been imposed for the offence under Section 324 of IPC. The 3[rd] accused has been convicted and sentenced to undergo Crl.A.No.848/2015 ..3.. rigorous imprisonment for one year for the offence under Section 323 of IPC. A1 to A3 have been sentenced to undergo rigorous imprisonment for 6 years and to pay a fine of Rs.10,000/- and in default of payment to undergo 1 year rigorous imprisonment for the offence punishable under Section 120B of the IPC. All the sentences were ordered to run concurrently and it was also ordered that from the fine amount, if paid, Rs.1,00,000/- should be given to the wife of the deceased under Section 357(1)(c) of Cr.P.C. Feeling aggrieved, the present appeal has been filed. 2. The case of the prosecution, in brief, is that the accused entered into a criminal conspiracy to commit the murder of Nala Rajan, who is the father of PW1, and in furtherance of the conspiracy, with a common intention to commit the murder of Nala Rajan, the accused assembled together on 17.1.2003 at about 8.35 p.m. on the side of Crl.A.No.848/2015 ..4.. Poovannal, Muzhikodu Chira in Kottathala, near the house of accused No.3, A1 and A2 inflicted injuries on the head of the deceased by hitting him with a pestle and while so A3 stabbed the deceased with his legs. The 1[st] and 2[nd] accused also inflicted injuries on the said Nala Rajan and when PW1 attempted to interfere, he was also attacked and both Nala Rajan and PW1 sustained injuries and the said Nala Rajan succumbed to the injuries. 3. On the above factual matrix, the police conducted investigation and submitted the final report. Ext.P1 First Information Statement was given by PW1 who is the son of deceased Nala Rajan. He gave the First Information Statement to CW22, the then Head Constable of Kottarakkara Police Station, who passed away during the pendency of the proceedings. CW22 proceeded to the spot and prepared Ext.P3 mahazar on 20.1.2003. From the occurrence place, CW22 seized blood stained sand Crl.A.No.848/2015 ..5.. and soil. He also seized the sticks used by the accused for committing the occurrence by Ext.P3 mahazar. PW17 is familiar with the signature of CW22. Hence relevant documents were marked through PW17. On 23.1.2003, PW17 commenced the investigation. On that day, around 11.15 am., he had conducted inquest on the body of the deceased. PW17 forwarded Ext.P14 report to the court incorporating Sections 324, 326 and 302 read with Section 34 of IPC against the accused. On 24.1.2003, PW1 produced MO4 shirt worn by the accused on the date of occurrence. PW17 recovered MO4 by Ext.P4 mahazar. PW17 arrested the accused at 9 pm on 28.1.2003 from Chengamanadu. On 29.1.2003, PW17 questioned the 3[rd] accused. On being questioned, it was disclosed that the lungi owned by the accused at the time of occurrence has been kept in his house and if he would be taken to his house, he would show the same. Based on Ext.P8(a) Crl.A.No.848/2015 **==> picture [22 x 8] intentionally omitted <==** confession statement of the 3[rd] accused, CW22 proceeded to the residence of the accused and recovered the lungi as per Ext.P8 mahazar. On being questioned, A1 confessed that the lungi and shirt worn by him at the time of occurrence were kept at his residence and in case he would be taken there, he would show the same. Accordingly, as led by the accused, CW22 proceeded to the residence of the 1[st] accused and recovered MO4 shirt. CW22 also questioned the 2[nd] accused. On being questioned, the 2[nd] accused confessed that the lungi and shirt worn by him were kept at his residence and he would show the same if he would be taken there. Based on the confession, CW22 recovered MO5 lungi as per Ext.P18 mahazar. On enquiry, it was disclosed that the actual occurrence took place on 17.1.2003 at 8.35 pm. Stating the above facts, Ext.P20 report was filed before the court. The accused were produced before the learned Crl.A.No.848/2015 ..7.. Magistrate. They were remanded to judicial custody. CW22 produced the recovered material objects before court by Exts.P22(a) and P22(b) respectively. Chemical analysis was done. Ext.P25 is the report obtained from the Forensic Science Laboratory which states that item Nos.3 and 5 contain human blood. 4. PW17 laid the final report before the jurisdictional magistrate who took cognizance of the offences. After complying with the formalities, the learned Magistrate committed the case to the Court of Sessions, Kollam on 2.11.2006. 5. After having heard both sides, charges were framed against the accused for the offences punishable under Sections 120B, 323, 324, 326 and 302 read with Section 34 of IPC. A1 to A3 pleaded not guilty to the charges whereupon the prosecution was permitted to adduce evidence in support of his case. Crl.A.No.848/2015 ..8.. 6. A large number of witnesses (18 in all), have been examined by the prosecution in support of his case and Exts.P1 to P25 documents were marked. MO1 to MO5 were also marked. For the present appeal, it would suffice to notice the evidence of relevant witnesses. 7. After the close of the prosecution evidence, the accused was questioned under Section 313(1)(b) of Cr.P.C. with regard to the incriminating circumstances appearing against the accused in the evidence for the prosecution. The accused 1 to 3 consistently maintain that they do not either remember or know any of the circumstances put to them. To some of the questions asked, they gave an emphatic 'No'. 8. The trial judge did not consider this as a fit case for recording an acquittal under Section 232 of Cr.P.C. The accused were therefore called upon to enter on their defence which they might have in support thereof. Crl.A.No.848/2015 ..9.. However no oral or documentary evidence was adduced by the defence. 9. After the conclusion of the trial, the learned sixth Additional Sessions Judge, Kollam by judgment dated 25.8.2015 found the accused 1 to 3 guilty for the offences charged against them and sentenced to undergo rigorous imprisonment as stated in para 1 of this judgment (supra). 10. We heard Sri.C.P.Anil Raj, the learned counsel for the 1[st] appellant/A1 and Sri.M.K.Chandra Mohandas, the learned counsel for the 2[nd] and 3[rd] appellants/A2 and A3 and Sri.Alex M.Thombra, the learned Senior Public Prosecutor, who appears for the State. 11. The following points arise for consideration in this appeal. 1. Has the prosecution proved that Nala Rajan died on 23.1.2003 at 5.30 pm. Crl.A.No.848/2015 ..10.. as a result of sustaining homicidal injuries as alleged? 2. Has the prosecution proved that A1 to A3 in furtherance of their common intention caused the death of Nala Rajan by inflicting head injury on him and they have thereby committed the offence of murder punishable under Section 302 of IPC? 3. Are the conviction entered and sentence passed against the accused/appellants sustainable? 12. The fact that Nala Rajan died as a result of head injury sustained by him does not admit of any doubt or controversy. On 23.1.2003, while PW15 Doctor Geetha who was working as Professor and Head of Forensic Medicine, Medical College Hospital, Thiruvananthapuram, Crl.A.No.848/2015 ..11.. conducted autopsy on the dead-body of the deceased Nala Rajan and noted the following ante-mortem injuries:- ## _INJURIES (ANTEMORTEM):_ _1.) Surgical sutured wound '_ റ _' shaped on the right side of front of head, 22.5cm long, its lower front end being 3cm above eyebrow and 6cm. outer to midline. Underneath a bony flap was seen reflected from frontoparietal region by 4 burr holes at the corners and kept insitu except on area 4x3cm where bony deficit was seen. Underneath the dura was seen sutured._ _2.Surgical incised wound 0.7cm long and bone deep on the right side of head 4.5 cm behind the top of ear._ _3.Sutured wound irregular in shapes, 4.5cm long and bone deep, on the left side of front of head, oblique, its lower inner end being 4.7cm above the middle of eyebrow._ _4.Contusion of scalp on the left side of head, 16x14x0.7cm just above top of ear including the whole thickness of left temporalis muscle._ _Coronal suture showed separation_ Crl.A.No.848/2015 ..12.. _over a length of 15cm involving the top and left side. Fracture fragmentation of both sides of anterior cranial fossae seen. Fissured fractures seen extending to both sides of middle cranial fossae. Bilateral subdural and subarachnoid hemorrhages seen. Laceration with softening was seen over the left parietal lobe (5x3x0.5cm). Brain showed flattening of gyri and narrowing of sulci and was softened. Multiple irregular hemorrhages were seen in the brain stem._ _5.Fracture of tip of right lateral incisor seen._ _6. Contusion 4x3x0.5cm on the back of right hand 4.5cm above the root of little finger._ _7. Contusion 4x2X0.5cm on the back of left forearm, 14cm below elbow._ _8. Contusion 9x6x0.5cm. on the front of left thigh, 13cm below the top of hip bone._ _9. Contusion 5x4x1cm, on the front of left leg 7cm below knee._ _10.Contusion 9x5x0.5cm. on the front of left leg 12cm below knee with abrasion 2x1.5cm. around._ _11.Contusion 6x3x1cm on the inner aspect of left leg 16cm below knee._ Crl.A.No.848/2015 ..13.. _Underneath both bones of left leg were fractured 11cm below knee with dark red infiltration around._ _Abrasion was covered with brown adherent scab. Contusions and hemorrhages were dark red in colour._ _Air passages contained blood stained mucoid froth. Lungs were congested and bedematous. Lower lobes of both lungs showed consolidation. Aorta showed atheromatous streaks. Stomach contained 100 ml of bile stained fluid having no unusual smell, mucosa normal. Spleen was congested and friable. Kidneys were pale and flabby with distinct corticomedullary demarcation and multiple subcortical hemorrhages._ _Urinary bladder was empty. All other internal organs were congested, otherwise normal._ _Viscera and sample of blood were preserved and sent for chemical analysis._ _Blood grouping and Rh typing done at Blood Bank, attached to Medical College Hospital, Thinuvananthapuram revealed it to be O Rh positive.”_ With reference to injury Nos.3 and 4 in Ext.P10, PW15 Crl.A.No.848/2015 ..14.. opined that the victim died as a result of head injury. 14. PW1-Jinu is the son of the deceased. Subsequent to the occurrence, PW1 lodged Ext.P1 First Information Statement before the police. According to him, the deceased was conducting a Chicken Shop wherein A1 Santhosh was an employee. A1 allegedly misappropriated an amount of Rs.12,000/- from the shop of the deceased. Having come to know of the misappropriation, the deceased demanded the amount back. On 17.1.2003 at about 11 am., 3[rd] accused Raveendran, who is the father of the 1[st] accused, reached the shop of the deceased. While so, the deceased demanded the amount due from the 1[st] accused. Resultantly, there arose a scuffle between them. PW1 and PW6 intervened and dispersed the commotion. It is alleged that, while so, the 3[rd] accused left the place threatening dire consequences. PW1 adduced evidence to Crl.A.No.848/2015 **==> picture [28 x 8] intentionally omitted <==** show that there was an occurrence at 11 am. on 17.1.2003 as stated (supra). On the same day around 2 pm., the 3[rd] accused came to the shop of the deceased alleging that he had committed theft of a tree lying in the land belonging to the brother of the deceased. Consequently, there arose a commotion between them. However, PW1 intervened and prevented them from any further untoward incident. A3 became angry and threatened the deceased with dire consequences. After the incident, he went towards the Northern side. PW1 and the deceased closed the Chicken Shop and was returning home. Around 8.35 pm. they reached on the Northern side of the house owned by A3. While so, A3 was waiting there. According to PW1, A3 shouted and declared that “they are going - come immediately”. All of a sudden, A1 and A2 armed with two dangerous sticks joined with A3, inflicted blows on the head of the deceased by A1 and A2 Crl.A.No.848/2015 ..16.. and while so A3 stabbed the deceased with his legs. Due to the impact of the blow, the deceased sustained injuries and sat on the floor. While so, it is alleged that A2 inflicted blows on the left leg and arms of the deceased. A3 stabbed the deceased on his right elbow. It is alleged that when PW1 intervened, A1 and A2 assaulted on his legs below the knees. On seeing this, PW2 and PW3 who are neighbours of the accused, cried aloud. Since the deceased sustained injuries, he was initially taken to KNS Hospital from where he was referred to Medical College Hospital. PW1 stated that while undergoing treatment, his father passed away on 23.1.2003 at 5.30 pm. at the Medical College Hospital. PW1 also identified MO1 and MO2 sticks and MO4 shirt worn by the deceased on the date of occurrence. 15. PW2 supported the case advanced by PW1. PW2 is the sister of PW3. On the date of occurrence Crl.A.No.848/2015 **==> picture [28 x 8] intentionally omitted <==** around 8.20 pm. PW3 came to the house of PW2 and while PW2 and PW3 were talking together, they had an occasion to witness the occurrence spoken by PW1. PW3 also supported the case advanced by PW1. PW3 identified MO1 and MO2 allegedly used by the accused for inflicting injuries on the deceased. MO1 and MO2 are two pieces of a pestle. He also stated that prior to the date of occurrence, one day, he saw the 3[rd] accused cutting a pestle into two pieces at his residence. 16. PW4 was an autorickshaw driver on the date of occurrence. The 2[nd] accused hired his autorickshaw on 17.1.2003 at 7.30 pm. from Poovannal Junction. Initially he went to the house of one Jayakumar and brought him to Poovannal Junction. According to PW4, when they reached at a place 100 m. away from the said Junction, PW4 had an occasion to hear a conversation of the 2[nd] accused to Jayakumar in respect of an unfortunate incident Crl.A.No.848/2015 ..18.. at noon on that day. It is his further case that when the autorickshaw reached at Poovannal Junction, he was asked to stop and 2[nd] accused alighted there and joined with them. It is his further case that Jayakumar advised them not to make any problem. 17. PW6 Suseelan Pillai supported the version of PW1 and stated that he intervened in the dispute between A3 and the deceased on the date of occurrence around 11 am. He is also a signatory in Ext.P2 inquest prepared by CW22. 18. PW7 is a practicing Advocate at Kollam. He was present at the time of preparing inquest report. He admitted that he gave statement before CW22 while preparing Ext.P2. In Column No.9 of Ext.P2, CW22 recorded the statement of PW7. According to him, the deceased is his father's brother. He also stated that A1 to A3 inflicted injuries on the deceased on 17.1.2003 Crl.A.No.848/2015 ..19.. adjacent to the residence of the deceased. According to him, financial dealings between the parties was the cause of the occurrence. He went to the Medical College Hospital, Trivandrum to visit the deceased. Since the deceased was undergoing treatment in the Intensive Care Unit, he could not visit the deceased. He came to know that the deceased passed away on 23.1.2003. 19. PW8 is yet another witness who initially accompanied the deceased to the KNS Hospital along with PW1. PW9 is a signatory in Ext.P3 mahazar prepared by CW22. PW9 identified MO3 shirt worn by the accused. 20. PW14 was working as Assistant Engineer of KSEB on 21.1.2003. On the request of CW22, he issued Ext.P9 reply stating that the load shedding time on 17.1.2003 was between 8 and 8.30 pm. He was examined to show that there was sufficient light on the date of occurrence to witness the occurrence. PWs.2 and 3 Crl.A.No.848/2015 **==> picture [28 x 8] intentionally omitted <==** adduced evidence to show that they had witnessed the occurrence in the night from the street light adjacent to the occurrence place. Evidence tendered by PW14 tallies with the evidence let in by PW1. 21. On 17.1.2003 at 9.25 pm., the deceased Nala Rajan was initially examined by PW11, the Medical Officer of KNS Hospital, Kottarakkara. As indicated earlier, immediately after the occurrence, deceased Nala Rajan was taken to the KNS Hospital, Kottarakkara. PW11 noted mainly three injuries on the deceased. 1) lacerated wound on the left side scalp 2) pain and tenderness over the little finger 3) deformity of the left leg below knee joint. Stating the above injuries PW11 issued Ext.P6 wound certificate. PW11 further stated that injuries 1 to 3 could be caused with Mos 1 and 2. Going by the nature of injuries sustained to the deceased, it is clear that the evidence tendered by PWs1 to 3 tallies with the injuries Crl.A.No.848/2015 ..21.. sustained by the deceased. On the same day at 9.30 pm PW11 examined PW1 and issued Ext.P7 wound certificate noting the following injuries:- i) Abrasion 2x2 cm of the right big toe. ii) Abrasion 2x2 cm of the left big toe. iii) Pain with tenderness upper third medial aspect. iv) Abrasion 2x2 cm left elbow joint. PW11 further stated that the above injuries could be caused with MOs1 and 2. 22. On cross-examination, with reference to Ext.P6 wound certificate PW11 stated that the deceased had consumed alcohol and the smell of alcohol was present at the time of examination. 23. The learned counsel for the appellants/accused contends that there is inordinate delay in submitting the First Information Statement and registering the crime. According to the learned counsel, a close scrutiny of Crl.A.No.848/2015 ..22.. ocular evidence and contemporaneous documents would clearly reveal that the prosecution had shifted the place of occurrence with oblique motive. The learned counsel further submits that the injury as per the medical evidence is in conflict with the oral evidence adduced by the occurrence witness. It is his submission that almost six times PW17 questioned PW1 and on all occasions he had put forwarded new version regarding the occurrence. It is further contended that in all the contemporaneous document, only two persons were involved in the occurrence, but later, to suit the prosecution case, the 3[rd] accused was also implicated in the crime. Besides, the learned counsel contends that the evidence of PW1 is self contradictory and the fact that the nature of weapon or identification with respect to the weapon was not mentioned by PW1 in the statement. The learned counsel further contends that the evidence of PW17 would Crl.A.No.848/2015 **==> picture [28 x 8] intentionally omitted <==** establish the fact that he had conducted an arm chair investigation which would cause serious prejudice to the accused/appellants. 24. Per contra, the learned Public Prosecutor appearing on behalf of the State submits that the allegation of conspiracy causing hurt and grievous hurt to PW1 and the deceased are proved based on cogent and convincing evidence. The learned Public Prosecutor further submits that the evidence tendered by PWs1 to 4 and PW11 are reliable and nothing is brought out in crossexamination to discredit the evidence tendered by them. The learned Public Prosecutor further submits that PW1 is an injured witness and his evidence is a built in guarantee to establish the prosecution case. The learned Public Prosecutor further submits that there was an intentional preparatory action to murder the deceased which achieved in its object. In other words, the contention is Crl.A.No.848/2015 ..24.. that the appellants conspired together and in furtherance of their common intention to cause death of the victim, inflicted bodily injuries on the deceased. Thus, the submission is that the injuries found on the deceased were intentionally inflicted by the accused/appellants. 25. Ext.P1 First Information Statement was lodged by PW1 on 19.1.2003 at 9 am. The note appended to Ext.P1 indicates that CW22 who died pending proceedings went to Medical College Hospital, Trivandrum and recorded the statement of PW1 in front of the Neurology unit, Medical College Hospital, Trivandrum. It is a fact that the occurrence took place on 17.1.2003 at 8.30 p.m. Immediately after sustaining injury to the deceased and PW1, the fact was brought to the notice of PW7, a practising Advocate at Kollam. PW7 is a close relative of the deceased. It has come out in evidence that PW11 first came to know of the incident between 9.30 and 10 Crl.A.No.848/2015 ..25.. pm. on 17.1.2003 itself. Initially, the deceased was taken to KNS Hospital, Kottarakkara where PW11 examined the deceased and PW1. No doubt, the occurrence was a medico legal case. Prosecution has not explained the reasons for not furnishing information disclosing cognizable offence from the KNS Hospital to the Police Station, Kottarakkara. PW11 is aware of the legal consequences of not furnishing First Information Statement to the Police right in time. Still he had not chosen to do so. In case there is some delay in filing the FIR, the informant must give explanation for the same. Undoubtedly, the delay in lodging the FIR does not make the complainant's case improbable when such delay is properly explained. However, deliberate delay in lodging the complaint may prove to be fatal. In Ext.P12 FIR, the reason for delay in reporting has been stated. Column No.8 of Ext.P12 discloses that the injured was taken to Crl.A.No.848/2015 ..26.. Medical College Hospital, Trivandrum for treatment. True, PW1 might take some appreciable time to regain certain level of tranquility of mind for moving to the Police Station for furnishing the requisite information. PW1 accompanied the deceased to the Medical College Hospital, Trivandrum. Under the circumstances, CW22 cannot be faulted to reach the Hospital on getting some nebulous information about the incident. Ext.P12 FIR registered for the offences punishable under Sections 324, 326, 308 and 34 of the IPC. Going by Ext.P12 FIR, it is clear that the police registered the case alleging that the accused did the acts with such intention or knowledge and under such circumstances that, if they by that act caused death, they would be guilty of culpable homicide not amounting to murder. Going by Ext.P1 First Information Statement, attempt to commit culpable homicide is made out. Besides, the accused voluntarily caused hurt and Crl.A.No.848/2015 **==> picture [28 x 8] intentionally omitted <==** grievous hurt with dangerous weapons to the deceased and PW1. This is an indication that the genesis of the occurrence does not disclose an offence under Section 307 of IPC. 26. The learned counsel for the accused submits that the occurrence place has not been established in this case. As per Ext.P3 scene mahazar, the place of occurrence is a narrow lane proceeding from Poovannan to Mozhikodu Karimkulam through an Eastern cut road and then proceeds towards South to Mozhikodu chira side. Merely because Poovannan junction is not mentioned in Ext.P11 site plan, it is incorrect to discard the oral evidence let in by PWs.1 to 3 in this regard. The place of occurrence was shown to PW17-Investigating Officer by PW1 on 20.1.2003 at 10 am. subsequent to the First Information Statement. Further there is no evidence to show that the Kottathala Gandhi Nagar Junction is 150 Crl.A.No.848/2015 ..28.. meters away from the place of occurrence. An attempt was made by the learned counsel for the appellants/accused that the occurence was taken place at Kottathala Gandhi Nagar Junction at 8.30 pm on the strength of Ext.P6 wound certificate issued by PW11 the Medical Officer of KNS Hospital, Kottarakkara. It is not evident from Ext.P6 that such a statement was given by PW1. History and alleged cause of injury is generally stated by the Medical Officer in the accident register cum wound certificate based on the information given by the informant or some other person present there. Evidently, the deceased sustained serious injuries including major fractures. PW1 who accompanied the deceased cannot be faulted for not furnishing the history and alleged cause of injury to the Doctor when PW1 himself was an injured in the very same occurrence. 27. It is true that PW1 was questioned by the Crl.A.No.848/2015 ..29.. Investigating Officer almost 6 times. The law does not prohibit to record the statement of PW1 after recording his First Information Statement. The First Information Statement can be used for contradiction and corroboration whereas his statement recorded under Section 161 Cr.P.C. subsequent to the First Information Statement can be used for contradiction as provided under Section 162 of Cr.P.C. Hence the contention that PW1 has improved his case regarding the occurrence is unsustainable. There is nothing on record to show that the subsequent statements are contrary to the statement contained in Ext.P1. 28. A3 is a senior citizen. The only overtact alleged against accused No.3 is that he stabbed with his legs while the deceased fell down on account of the attack made by accused Nos.1 and 2. The trial court convicted and sentenced accused Nos.1 and 2 for the offence under Crl.A.No.848/2015 ..30.. Section 326 of the IPC. A3 was not convicted under Section 326 of the IPC. This would indicate that fatal injuries were inflicted by accused Nos.1 and 2. The 3[rd] accused is more than 75 years old now. Even though the overtact alleged against accused No.3 is only that he stabbed the deceased with his legs, he is implicated in the case invoking Section 34 of the IPC. We are of the view that the evidence let in is not sufficient to prove that the 3[rd] accused either stabbed the deceased or caused hurt to him in furtherance of common intention. The learned counsel for the accused/appellants contends that evidence of PW1 is self contradictory. On going through the evidence of PW1, there is nothing on record to show that his evidence is contradictory. His evidence tallies with the oral evidence adduced by the eye witnesses and circumstances proved in this case. Further, the presence of A1 and A2 at the time of occurrence was clearly Crl.A.No.848/2015 ..31.. brought out in evidence. MOs1 and 2 are pestle pieces. These are coming under the category of dangerous weapons as defined under the Indian Penal Code. Identification of weapons involved in the occurrence is proved. It is not necessary to prove the same invariably with the aid of Forensic Lab test in all cases. 29. The evidence adduced by PW11 and the opinion given by him as medical expert exactly tallies with the opinion expressed by PW15-the Doctor who conducted post-mortem examination. However, there is nothing on record to show that the victim died as a result of head injury from the evidence tendered by PW15. Ext.P10 postmortem certificate would reveal that the victim died due to head injury. However, no question was put to PW15 touching the injury sustained to him with special reference to the circumstances leading to the death of the victim presumably for the reason that the victim Crl.A.No.848/2015 ..32.. died on 23.1.2003 after the lapse of six days from the date of occurrence. Under the circumstances, we are of the view that examination of the Doctors who treated the deceased at the Medical College Hospital, Thiruvananthapuram are absolutely essential to prove the prosecution case. Admittedly, the Doctors who treated the deceased from 17.1.2003 to 23.1.2003 were not examined in this case. The entire records were not placed before this Court to come to a logical conclusion that the injuries sustained by the victim on 17.1.2003 were likely to cause the death of the victim. Evidence adduced in this case does not show that the accused 1 and 2 did the act or did they contemplate as ordinary prudent men that death was likely to result to the victim or the grievous bodily harm sustained to the victim was likely to result the death of the victim. Merely because the deceased sustained head injury, this Crl.A.No.848/2015 ..33.. Court is not justified in holding that the accused 1 and 2 are guilty of murder. 30. In the decision reported in **Pulicherla Nagaraju @ Nagaraja Reddy vs. State of AP [(2006)** **11 SCC 444],** the Apex Court held that whether there was an intention to cause death has to be gathered from several circumstances and one of the circumstances mentioned is whether the weapon was carried by the accused or was picked up from the spot. In the case on hand, there is no evidence to show that the accused carried MOs 1 and 2 from the beginning for attacking the deceased on the vital parts of the body. In this connection, it is a fact that majority of the injuries sustained to PW1 and deceased are below the knees. PW1 adduced evidence to show that the accused 1 and 2 inflicted blows on him below his right and left knees. The deceased also sustained injuries below the knees. This is Crl.A.No.848/2015 ..34.. an indication that the accused had no intention to inflict injuries on the deceased or PW1 to do away with them. In this connection, it is to be noted that the First Information Statement was lodged for the offence punishable under Section 308 of IPC only. Having regard to the statement of the Doctor who conducted the postmortem we are satisfied that the deceased sustained serious grievous injuries. PW1 also sustained injuries. There is no evidence in this case to come to a conclusion that the accused 1 and 2 inflicted injuries with the intention to cause death of the victim. However, it is brought out that the intention of accused Nos.1 and 2 was limited to the infliction of bodily injuries and did not extent to the intention of causing death. There is no evidence to show that the injuries sustained by the deceased were sufficient to cause death in the ordinary course of nature. Crl.A.No.848/2015 ..35.. 31. For all the foregoing reasons, we are of the view that the requisite knowledge that in view of the circumstances stated supra, the act of accused 1 and 2 may cause death cannot be attributed as alleged by the prosecution. On analyzing the entire facts and circumstances of the case, particularly with reference to the occurrence on the very same day prior to the occurrence in the night, we are of the view that the accused 1 and 2 cannot be held liable for murder for the simple reason that the accused had no intention to cause death or knowledge that such act may cause death. The trial court on well founded reasons has rightly come to a conclusion that the accused 1 and 2 in furtherance of their common intention voluntarily caused hurt and grievous hurt to the deceased and PW1 on the date of occurrence. However, in the absence of clear intention on the part of the accused to murder the deceased, it is not just and Crl.A.No.848/2015 **==> picture [28 x 8] intentionally omitted <==** proper to convict and sentence accused Nos.1 and 2 for the offence under Section 302 of IPC. Judged by the above standards, we are of the view that the assault inflicted on the deceased Nala Rajan would more appropriately attract the offence under Section 304 Part II of IPC. We are not persuaded to find out reasons some way of treating the offence to be under Section 302 of IPC. Coming to Section 120B of the IPC, privacy and secrecy are more characteristics of a conspiracy, than of a loud discussion in an elevated place open to public view. To prove criminal conspiracy, there must be direct or circumstantial evidence to show that there was an agreement between two or more persons to commit an offence. There must be a meeting of minds resulting in ultimate decision taken by the conspirators regarding the commission of an offence for which the prosecution is duty bound to show that the circumstances giving rise to Crl.A.No.848/2015 ..37.. irresistible inference of an agreement between two or more persons to commit the offence. Going by the facts of the case, this is a simple case where accused Nos.1 and 2 did the offences in furtherance of their common intention. Criminal conspiracy absolutely lacks in this case. Hence, the conviction under Section 120B is set aside. Resultantly, accused Nos.1 and 2 stand acquitted for the offence under Section 120B of the Indian Penal Code. 32. In the light of the discussion made herein above, we partially allow the appeal filed by the appellants/accused. The 3[rd] accused is found not guilty for the offences punishable under Sections 120B, 323, 324, 326, 302 read with Section 34 of IPC and he is acquitted for the said offences. While maintaining the conviction under Section 326 of IPC against accused Nos.1 and 2, the conviction under Section 302 of IPC is Crl.A.No.848/2015 ..38.. set aside and altered to one under Section 304 Part II of IPC. Thus A1 and A2 are sentenced to undergo rigorous imprisonment for seven years and also to pay a fine of Rs.10,000/- in default of payment of fine to undergo rigorous imprisonment for three months more for the offence under Section 304 Part II of IPC. The court below found A1 and A2 guilty for the offence punishable under Section 326 of IPC and sentenced A1 and A2 to undergo rigorous imprisonment for a period of 10 years and a fine of Rs.20,000/- in default to undergo rigorous imprisonment for 18 months. Section 326 IPC is triable by a court of Judicial First Class Magistrate. We are of the view that the sentence imposed is against the doctrine of proportionality. Hence, in modification of the sentence imposed by the court below A1 and A2 are sentenced to undergo rigorous imprisonment for three years and to pay a fine of Rs.10,000/- in default of payment of fine to Crl.A.No.848/2015 ..39.. undergo three months rigorous imprisonment more for the offence punishable under Section 326 of IPC. All the sentences imposed shall run concurrently. The judgment of conviction and order of sentence passed by the trial court is modified to the above extent. The appellants/accused Nos.1 and 2 will suffer the remaining sentence as modified by this judgment. Sd/- ## **A.M.SHAFFIQUE, JUDGE** Sd/- **N.ANIL KUMAR, JUDGE** skj