State of Kerala v. Ahammed Kabeer, Shanavas & Arifa Beevi; Ramli v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** ## **&** **THE HONOURABLE MR. JUSTICE ASHOK MENON** **TUESDAY, THE 11TH DAY OF JUNE 2019 / 21ST JYAISHTA, 1941** ## **CRL.A.No. 1302 of 2014** **AGAINST THE JUDGMENT IN SC 1337/2011 of III ADDITIONAL SESSIONS COURT, KOLLAM DATED 28-11-2014** **CRIME NO. 1039/2009 OF Kadakkal Police Station , Kollam** **APPELLANTS/ACCUSED NOS.1 TO 3::** - **1 AHAMMED KABEER S/O.KABEER , MELEVEEDU HOUSE, KUNNUMPURAM, ILAMBAZHANNOOR MURI, KADAKKAL VILLAGE, KOTTARAKKARA, KOLLAM** - **2 SHANAVAS** **S/O.IBRAHIM KUNJU,SHANVAS MANZIL, (OLIYANKARA PUTHEN VEEDU)KADAKKAL VILLAGE, KOTTARAKKARA , KOLLAM** - **3 ARIFA BEEVI D/O.AVVA UMMA, MELEVEETTIL HOUSE, KADAKKAL VILLAGE, KOTTARAKKARA, KOLLAM** **BY ADVS. SRI.C.RAJENDRAN SMT.R.S.SREEVIDYA** Crl.Appeal No.1302/14 & Crl.Appeal (V) No.338/15 -:2:- ## **RESPONDENT/COMPLAINANT:** **THE STATE OF KERALA REP BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERANAKULAM** **BY ADV.SR. P.P.SRI.ALEX.M.THOMBRA** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 25.03.2019, ALONG WITH CRA(V).338/2015, THE COURT ON 11.06.2019 DELIVERED THE FOLLOWING:** Crl.Appeal No.1302/14 & Crl.Appeal (V) No.338/15 -:3:- **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** ## **&** **THE HONOURABLE MR. JUSTICE ASHOK MENON** **TUESDAY, THE 11TH DAY OF JUNE 2019 / 21ST JYAISHTA, 1941** **CRA(V).No. 338 of 2015** **AGAINST THE O JUDGMENT IN SC 1337/2011 of III ADDITIONAL SESSIONS COURT, KOLLAM DATED 28-11-2014** **AGAINST THE ORDER/JUDGMENT IN CP 134/2010 of JUDICIAL MAGISTRATE OF FIRST CLASS -II,KOTTARAKKARA** **CRIME NO. 1039/2009 OF Kadakkal Police Station , Kollam** ## **APPELLANT/DEFACTO COMPLAINANT (CW1):** **RAMLI S/O. MUHAMMED SALI, CHARUVILA PUTHEN VEEDU, KALLADATHANNI, POREDAM, CHAYAMANGALAM, KOTTARAKKARA, KOLLAM.** **BY ADVS. SRI.B.MOHANLAL SRI.KIRAN PETER KURIAKOSE** ## **RESPONDENTS/ACCUSED 2 & 3 & STATE:** **1 SHANAVAS** **S/O. IBRAHIMKUNJU, SHANAVAS MANZIL, (OLIYANKARA PUTHEN VEEDU), ILLAMBAZHANNOOR MURI, KADAKKAL VILLAGE, KOTTARAKKARA, KOLLAM DISTRICT.** Crl.Appeal No.1302/14 & Crl.Appeal (V) No.338/15 -:4:- - **2 ARIFA BEEVI D/O. AVVA UMMA, MELEVEETTIL HOUSE, ILLAMBAZHANNOOR MURI, KADAKKAL VILLAGE, KOTTARAKKARA, KOLLAM DISTRICT.** **3 STATE OF KERALA REPRESENTED BY THE STATION HOUSE OFFICER, KADAKKAL POLICE STATION, KOLLAM DISTRICT, THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM** **BY ADVS. SRI.C.RAJENDRAN SRI.K.R.RANJITH** **THIS CRL.A BY DEFACTO COMPLAINANT/VICTIM HAVING BEEN FINALLY HEARD ON 25.03.2019, ALONG WITH CRL.A.1302/2014, THE COURT ON 11.06.2019 DELIVERED THE FOLLOWING:** Crl.Appeal No.1302/14 & Crl.Appeal (V) No.338/15 -:5:- ## **J U D G M E N T** ## _**Shaffique, J.**_ Out of these two appeals before us, the first one is preferred by accused Nos. 1 to 3 challenging the judgment of conviction and order of sentence passed against them in S.C. No. 1337 of 2011 dated 28/11/2014 by the 3[rd] Additional Sessions Court, Kollam by which the 1[st] accused/1[st] appellant was found guilty for the offence under Section 302 of the Indian Penal Code, 1860 (for short 'IPC') and was sentenced to undergo imprisonment for life and to pay a fine of `50,000/- (Rupees Fifty Thousand only) with a default stipulation of simple imprisonment for one year, the 2[nd] accused/2[nd] appellant was found guilty for the offence under Section 324 of IPC and was awarded simple imprisonment for two years for the said offence and the 3[rd] accused/3[rd] appellant was found guilty for offences under Section 341 and 294(b) of IPC for which she was punished with simple imprisonment for one month each. Though 2[nd] and 3[rd] accused were charged for offence under Section 302 read with 34 of IPC, both of them were acquitted by the trial Court and the victim appeal is preferred to challenge the Crl.Appeal No.1302/14 & Crl.Appeal (V) No.338/15 -:6:- said verdict. 2. Prosecution case is as follows: An extent of 34 ares and 30 square metres of property having survey Nos. 35/19-2 and 35/19-1 in Block No. 47 of Kadakkal Village situated at Elampazhannoor belonged to PW2 who is the elder brother of PW1. The accused had attempted to take possession of that property by making a claim over the same and in connection with that there was dispute and police cases between parties. Hence, the accused/appellants were on inimical terms towards PW1 and PW2. Being so, PW1 and PW2 had entered into an agreement with CW8 for the sale of that property. On 20/12/2009 at about 09.45 A.M., to show the boundaries of the property to CW8 and also to clear the wild plants grown on the ground, PW1, PW2, PW8 and deceased Abdul Jabbar who is the brother of PW1 and PW2 came to the property in a Maruti Alto car bearing registration No. KL-24B-2249 owned by PW1. PW7 who is the previous owner of the property and PW6 accompanied them in a Tata Sierra car bearing registration No. KL-4J-3000, driven by PW6. As they entered into that property, the 3[rd] accused/3[rd] appellant started pelting stones towards them by Crl.Appeal No.1302/14 & Crl.Appeal (V) No.338/15 -:7:- uttering obscene words. Since the said actions of 3[rd] appellant became unbearable, PW2 and PW6 went to the Police Station in the Tata Sierra car for lodging complaint. At that time, 1[st] and 2[nd] appellants reached the spot in motor bikes bearing registration Nos. KL-24-7145 and KL-2X-3193 respectively with a knife in the bike of the 1[st] appellant and a chopper in the bike of the 2[nd] appellant. After parking the motor cycles, both of them entered into the property with weapons taken from the respective bikes, in their hands. The 3[rd] appellant also entered into that property. The 1[st] appellant entered into the said property shouting that they will chop and kill the persons who entered into their property. The appellants rushed towards PW1, PW8 and the deceased. On seeing the appellants approaching them, PW1, PW8 and the deceased moved towards the back side of a machine house in the property. As the appellants reached them, the 2[nd] appellant attempted to inflict cut injury with a chopper on the deceased Abdul Jabbar and the said attempt was prevented by Abdul Jabbar with his right palm due to which he sustained injury on his right palm. Seeing the attack on Abdul Jabbar, his brother PW1 attempted to resist and the 2[nd] appellant inflicted a cut on Crl.Appeal No.1302/14 & Crl.Appeal (V) No.338/15 -:8:- PW1 with the chopper aiming his head for a life attempt. PW1 warded it off and the chopper brushed on the right eyebrow of PW1 and caused injury. At that time, the 3[rd] appellant caught hold of both hands of the deceased Abdul Jabbar from behind and wrongfully restrained him and the 1[st] appellant stabbed on the left side of the chest of Abdul Jabbar with the knife and caused injury to him. Later, Abdul Jabbar succumbed to the injury. The appellants committed the said offence in furtherance of their common intention. 3. Prosecution examined PW1 to PW23 as witnesses, marked Exts.P1 to P63 and identified MO1 to MO32. Exts.D1 to D14 were marked through various prosecution witnesses. While questioning under Section 313 of the Code of Criminal Procedure, 1973 (for short 'Cr.P.C.') the appellants denied all incriminating circumstances against them and stated that they were falsely implicated in the case. DW1 and DW2 were examined as defence witnesses. 4. Learned counsel appearing for and on behalf of the appellants Sri.C.Rajendran argued that learned Sessions Judge went wrong in convicting the appellant under Section 302 of I.P.C. Crl.Appeal No.1302/14 & Crl.Appeal (V) No.338/15 -:9:- The case is a fabricated one. Prosecution suppressed material facts including the genesis of the incident from the Court. There is nothing on record to show that there was any intention or premeditation on the part of the 1[st] appellant to commit the offence. Even if not pleaded, if evidence on record shows, benefit of right of private defence should be extended to the first appellant in this case. It is pertinent to note that no evidence was forthcoming to hold 2[nd] and 3[rd] appellants guilty for offence under Section 302 read with Section 34 of IPC and Section 447 of I.P.C. Evidence on record clearly shows that the prosecution witnesses including the appellant were the aggressors and they came to the appellants to create problems in the first place. Mischief on property is done by them. Somehow during the scuffle, the victim got injured. Only one stab is allegedly inflicted. Motive for the crime is not proved by the prosecution. Appellants 1 and 2 were butchers by profession. Scene mahazar shows that there was evidence for scuffle and violence. Exts.D1 and D14 judgments of Civil Court and Ext.D11 encumbrance certificate show that there was a dispute in connection with the property in which the incident happened and that the 3[rd] appellant was a party to it though the Crl.Appeal No.1302/14 & Crl.Appeal (V) No.338/15 -:10:- verdict was not in her favour. This probabilizes the possibility of possession of a part of property by her. Under such circumstances, Court below ought to have found that the deceased and his team were the real aggressors. There is evidence on record to show that the 3[rd] appellant sustained injuries in the incident during the course of the same transaction which the prosecution did not venture to explain. He pleaded for an acquittal of appellants by extending benefit of doubt. He cited the following decisions of the Apex Court and this Court to substantiate his contentions regarding the applicability of right of private defence of property and body in the case at hand: (i) _**State of U.P. v. Gajey Singh and Another**_ [(2009) 3 SCC 414] (ii) _**Ramesh Chandra v. State of Madhya Pradesh**_ [1982 SCC (Cri) 136] (iii) _**Sekar v. State**_ [AIR 2002 SC 3667] (iv) _**Ranbir Singh v. State of Haryana**_ [(2009) 16 SCC 193] and (v) _**Subramani v. State of Tamil Nadu**_ [AIR 2002 SC 2980]. Crl.Appeal No.1302/14 & Crl.Appeal (V) No.338/15 -:11:- 5. _**State of Rajasthan v. Madho and Another**_ [AIR 1991 SC 782] is cited to remind us the danger in placing reliance on the evidence of injured eyewitness when there are serious infirmities in his or her evidence. 6. Learned counsel Sri.B.Mohanlal appeared for and on behalf of Ramli, who preferred the victim appeal. He argued that Court below erred in not finding guilty the 2[nd] and 3[rd] appellants herein for offence under Section 302 read with Section 34 of IPC. It is also in evidence that the appellants trespassed into the property but they were not convicted for offence under Section 447 also. The evidence adduced by the eyewitnesses including injured witnesses clearly shows the involvement of the 2[nd] and 3[rd] appellant in the commission of murder. Common intention is clearly established. 3[rd] appellant caught hold on the hands of the deceased and thereby facilitated the stabbing. She was also hurling abusive words at the deceased and witnesses. Evidence rather shows that the said action is done by the 3[rd] appellant after the 1[st] appellant exhorted to kill those who were in the property at his entry time. He vehemently argued for convicting the 2[nd] and 3[rd] appellants for offences punishable under Sections Crl.Appeal No.1302/14 & Crl.Appeal (V) No.338/15 -:12:- 302 read with 34 and Section 447 of IPC. 7. Adding to the said arguments, learned Senior Public Prosecutor Sri.Alex M.Thombra argued that evidence against the appellants are cogent and categoric. Eyewitnesses have clearly spoken to the occurrence, including overt acts of the appellants. 1[st] appellant inflicted stab injury on the left chest of the deceased, a very vital part of his body. Medical evidence clearly shows that the said injury is sufficient in the ordinary course of nature to cause death. Intention is clear from the words spoken by the 1[st] appellant. No injury is noted on the appellants. Originally the 3[rd] appellant had a case before Police Complaints Authority that the injuries noted on her was inflicted on her by the police. Right of private defence of property is not at all attracted in this case. This is a case in which true owners of property were attacked by armed assailants. He placed reliance on the decision of the Apex Court in _**Ram Bilas Yadav and Others v. State of Bihar**_ (AIR 2002 SC 530) to emphasize that unlike the learned counsel for the appellants argued, the right of a person to private defence of property would extent to the causing of death only against certain crimes which are Crl.Appeal No.1302/14 & Crl.Appeal (V) No.338/15 -:13:- enumerated in Section 103 of I.P.C. He pleaded for upholding the verdict of the trial Court. 8. We heard the learned counsel carefully in detail and perused the records. We are to decide three crucial points as far as the case at hand is concerned: (i) Whether the death of Abdul Jabbar was a homicide as alleged by the prosecution and as found true by the trial Court. (ii) Whether the 1[st] appellant had committed murder of the deceased as alleged by the prosecution and as found true by the trial Court. (iii) Whether the 2[nd] and 3[rd] appellants herein had common intention to commit murder of the deceased in the light of available evidence. 9. Evidence adduced by the prosecution, in short, are as follows: PW1 gave Ext.P1 FIS. He is the brother of PW2 and the deceased. PW1, PW2, PW3, PW6, PW7 and PW8 are cited as occurrence witnesses. PW3 turned hostile to the prosecution. PW4 is an attestor to Ext.P4 inquest report. PW5 is an attestor to Ext.P5 scene mahazar. PW9 is a witness to Exts.P6 and P7 recovery Crl.Appeal No.1302/14 & Crl.Appeal (V) No.338/15 -:14:- mahazars by which MO1 and MO2 were recovered. PW10 is the then Village Officer through whom Ext.P8 scene plan was proved. PW11 is the Doctor at Taluk Hospital, Kadakkal who issued Ext.P9 wound certificate of PW1. PW12 the Scientific Assistant, DCRB, Kollam deposed that she prepared Ext.P11 report after collecting MO10 to MO13 from the scene of crime. PW13 is the Doctor of Taluk Hospital, Kadakkal who collected scalp hairs of the 3[rd] appellant as per the request of the investigating officer. PW14 proved Ext.P12 registration particulars of motor cycle bearing no. KL-24-7145 belonging to the 1[st] appellant. PW15 is an attestor to Ext.P6 for the recovery of MO1 weapon. PW16 is another witness who signed in Ext.P7 recovery mahazar of MO2. PW17 is the Doctor of Primary Health Centre, Chadayamangalam. He issued Ext.P13 blood group analysis report of PW1 on his personal request and it was done by lab Assistant and found to be 'O' positive. PW18 is the Sub Inspector of Police, Kadakkal Police Station. He recorded Ext.P1 FIS given by PW1 on 20/12/2009 and registered Ext.P14 FIR for offence punishable under Sections 294(b), 341, 324 and 302 read with Section 34 of I.P.C. While recording Ext.P1 FIS, he prepared Ext.P1(a) body note of PW1. He Crl.Appeal No.1302/14 & Crl.Appeal (V) No.338/15 -:15:- had taken into custody the motor bike used by the 1[st] accused for which Ext.P15 is the seizure mahazar. Ext.P11 is the report prepared by PW12 regarding materials collected from the scene of occurrence. PW19 is the Doctor who conducted autopsy of the deceased Abdul Jabbar. Ext.P16 is the post-mortem certificate. PW20 is the Assistant Director (Serology), FSL, Thiruvananthapuram. Ext.P17 is the report prepared by him after examining the items received by him. He deposed that item nos. 1 to 5, 7, 10, 14, 15, 21 to 28, 30, 33, 35 and 36 contain human blood belonging to group 'O'. Item Nos. 8, 9, 12, 18, 29, 31, 32 and 34 contained blood but was insufficient to determine the origin. Blood is not detected in item Nos. 6, 11, 16, 17 and 19. PW21 is the Scientific Assistant, Biology Division, FSL, Thiruvananthapuram. She examined scalp hairs involved in the case and prepared Ext.P18 report. The hairs in item No.13 are human scalp hairs which are similar to the sample scalp hairs in item No.20. PW22 is the then C.I. of Police, Kadakkal who conducted the investigation. He conducted the inquest, prepared Ext.P5 scene mahazar and collected evidence by questioning the witnesses, seizing material objects by preparing various seizure Crl.Appeal No.1302/14 & Crl.Appeal (V) No.338/15 -:16:- mahazars, arrested the accused, collected scalp hairs from the scene of crime, effected recovery of weapon of offence based on the disclosure statement of 1[st] accused and seized the bike used by the 1[st] and 2[nd] accused. PW23, his successor-in-office laid the charge sheet. 10. The accused were questioned under Section 313 of the Code of Criminal Procedure, 1973 (for short 'Cr.P.C.') after the closure of prosecution evidence to give them a fair opportunity for explanation regarding incriminating circumstances appearing against them in prosecution evidence. Apart from pleading innocence, 1[st] accused submitted that he is not a butcher by occupation and he is engaged in the business of purchase and sale of domestic animals. 3[rd] accused is his wife. On 20/12/2009 at about 08.00 A.M., while he was at Kadakkal market, he got an information that PW1 along with his men had trespassed into his house and committed mischief in the house and assaulted his wife. On getting that information, he proceeded to his house and while he reached near the property belonging to his wife wherein the incident allegedly occurred, he had seen about 10 to 15 persons standing in that property and the road outside. Some Crl.Appeal No.1302/14 & Crl.Appeal (V) No.338/15 -:17:- persons among them had restrained him in the road and assaulted him. While so, he also assaulted them and in the meantime PW1 and the deceased Jabbar and their associates rushed towards him and all of them assaulted him. He ran away from there through the aforesaid property towards the paddy field but he was caught by them and again assaulted him. During the same, one among them had stabbed aiming him and he warded off and the stab happened to be inflicted on Jabbar. As Jabbar sustained injury, all associates of PW1 escaped from there by leaving PW1 and Jabbar there. He also escaped from there. Due to attack from PW1 and his men, he sustained injuries and there was severe pain. Hence, on the next day morning 08.00 o'clock, he came to Chadayamangalam to purchase medicine and at that time he was caught by some people and informed the matter to police. The Circle Inspector came there and he was taken to his office. Till 31/12/2009, he was kept in a room in the C.I. office and he was produced before Court on 31/12/2009 only after healing of his injuries. He further stated that he had seen the 2[nd] accused at the time when he was brought to the Jeep to take him to Court. He also stated that the case is a false one and he has no Crl.Appeal No.1302/14 & Crl.Appeal (V) No.338/15 -:18:- connection with MO1 and no recovery was effected through him. 11. The 3[rd] accused in her 313 explanation stated that the property wherein the incident allegedly happened originally belonged to her parents and she also has right over the property now. Regarding that property, several civil cases were pending. PW7 happened to purchase that property without knowing the existence of cases in connection with the property. When he came to know about the cases, he contacted PW1 who is engaged in the sale of properties involved in cases for huge profit and accordingly PW7 had created a sham document in favour of PW2, the brother of PW1. On the strength of that document, PW2 and his men attempted to cut down trees from the property and the same was resisted by her and her men. Regarding that incident, a case has been registered at Kadakkal Police Station against her due to the influence of PW1. After the execution of sham sale deed in favour of PW2, PW1 had made several attempts to take forcible possession of the property by influencing the property. On 20/12/2009 at about 07.00 A.M., PW1 along with some goons came to her house and uttered filthy words against her and assaulted her by threatening to kill her. Crl.Appeal No.1302/14 & Crl.Appeal (V) No.338/15 -:19:- Hence, due to fear, she went to the house of DW2, her sister-inlaw. While she was in the house of DW2, the C.I. of Police, Kadakkal along with some policemen came there at about 10.00 A.M. and had taken her, DW2 and the husband of DW2 forcibly to the police station in police jeep. While the police jeep was moving, the police had manhandled her. When it was informed that the husband of DW2 was a cancer patient, he was allowed to go. She and DW2 were brutally manhandled at the police station and she was produced before Court on 22/12/2009. While she was produced before the Magistrate, she had complained regarding the torture by the police and hence she was sent to hospital for treatment while in remand. She filed complaint before Human Rights Commission and Police Complaint Cell regarding the torture by C.I. of Police, Kadakkal. While she and her husband were in custody, PW1 and his men set fire to her house. Her hair sample was not taken. The case against her is totally false. 12. Coming to the first question, there is no quarrel about the identity of the deceased. Ext.P4 is the inquest proved through PW4. PW11 is the Doctor at Taluk Hospital, Kadakkal. He stated that on 20/12/2009 at about 10.40 A.M., he had seen the body of Crl.Appeal No.1302/14 & Crl.Appeal (V) No.338/15 -:20:- Abdul Jabbar, aged 47 years brought dead to the hospital and accordingly he had intimated the said matter to the S.I. of Police, Kadakkal through Ext.P10 intimation. PW19 is the then Assistant Professor and Deputy Police Surgeon, Department of Forensic Medicine, Medical College, Thiruvananthapuram who conducted autopsy of the deceased and issued Ext.P16 post-mortem certificate. He deposed that he had noted the following antemortem injuries on the corpse of the deceased:- _“(a) Incised penetrating wound 3.5x1.5 c.m., obliquely placed on the left side of front of chest with its upper inner end 6.5c.m. outer to midline and 4 c.m. below the level of the nipple. Both ends were sharply cut. It entered the left chest cavity by partially cutting the 5[th] rib and 5[th] intercostal muscle. It transfixed the lower lobe of left lung, punctured the front wall of pericardium, transfixed the heart by puncturing the right ventricle and adjoining part of interventricular septum and back wall of left ventricle and ended by puncturing the back wall of pericardium. The track of the wound was directed backwards, upwards and to the right and had a minimum depth of 10.5 c.m. The lower lobe of left lung was collapsed. Left chest cavity contained 1.5 litres of fluid blood. Pericardium contained 150 ml of fluid blood._ _(b) Incised wound 7x2 c.m. muscle deep, obliquely placed on the back of right hand involving webbing between the thumb and index finger.”_ 13. According to PW19, injury no.1 is on the vital part of Crl.Appeal No.1302/14 & Crl.Appeal (V) No.338/15 -:21:- the body and it is fatal. It is sufficient in the ordinary course of nature to cause death. He deposed that considering the nature and size, injury no.2 is a defence wound. Injury no.1 is possible using MO1 as weapon of offence and injury no.2 is possible with the contact of the sharp edged portion of MO2. These evidence coupled with the ocular version clearly shows that Jabbar met with a homicidal death. 14. The remaining two questions mentioned above may be considered together for the sake of convenience and to avoid repetition. To arrive at a conclusion it is essential to look into the evidence in detail, especially that of ocular witnesses. 15. PW1 is one of the injured who gave Ext.P1 FIS to police. He is a school teacher. He was a member of Chadayamangalam Grama Panchayath at the time of incident. Abdul Jabbar, the deceased herein is his elder brother. He stated that the incident occurred on 20/12/2009 at about 10.00 A.M., at the property of his brother Nazarudeen (PW2) at Elampazhannur. The said property which is a rubber estate was purchased by PW2 from PW7 Anil Kumar. PW7 had dug a well in that property and constructed a machine house. After the purchase of the property Crl.Appeal No.1302/14 & Crl.Appeal (V) No.338/15 -:22:- by PW2, when PW2 went to the property on the next day of purchase, the accused persons had assaulted PW2 and hit on his head with a hammer and caused injury to him. A police case was there in connection with the said incident against the accused and it is pending before Court. PW2 is working in Gulf countries and in his absence, he (PW1) was collecting yield from the property and PW2 had given a power of attorney to him. It is his version that for the sale of the property, he had entered into an agreement with CW8 Shihabudeen and two days prior to the incident, PW2 came from abroad and accordingly he along with his brothers, PW2 and the deceased Abdul Jabbar, PW8 Satharkunju, PW6 Hakkim and PW7 went to the property. As they entered into the property, the 3[rd] accused who is residing on the western side of the property pelted stones towards them by uttering filthy words. Since the abuse of 3[rd] accused had become unbearable, PW2 and PW6 went to Kadakkal Police Station in a car to lodge a complaint. Thereafter, PW7 and CW8 went out of the property to have tea. At that time, the 1[st] and 2[nd] accused came there in their motor bikes and after parking bikes, the 1[st] accused had taken a lengthy knife kept in a bag in the front of the Crl.Appeal No.1302/14 & Crl.Appeal (V) No.338/15 -:23:- bike and the 2[nd] accused had taken a chopper from the bag kept on his bike and then they rushed to the property with 1[st] accused shouting to chop the persons standing in the property. As the 1[st] and 2[nd] accused rushed towards them, PW1, his brother Abdul Jabbar and PW8 moved towards the back of the machine house. At that time, 2[nd] accused inflicted a cut injury on Abdul Jabbar with chopper in his hand aiming on his head and the said attack was blocked by Abdul Jabbar with his right palm and injury was sustained to him. On seeing the attack on his brother Abdul Jabbar, PW1 tried to prevent further attack. Then the 2[nd] accused attempted to cut him with chopper by aiming at his head, and in the course of warding off the said attack, it hit on the right eyebrow and caused injury. At that time, the 3[rd] accused had caught hold of both hands of Abdul Jabbar from behind and the 1[st] accused stabbed Abdul Jabbar with the knife on his left chest and he fell down. He cried aloud and people gathered there. The accused ran away with weapons. All of them were taken to hospital and Abdul Jabbar was declared dead. PW1 after suturing his wounds, went to Kadakkal Police Station and gave Ext.P1 FIS and Ext.P1(a) is his body note. He identified all accused persons Crl.Appeal No.1302/14 & Crl.Appeal (V) No.338/15 -:24:- and stated that 1[st] and 2[nd] accused are butchers by occupation. He identified material objects including weapons and dress of the accused. 16. In cross-examination, he admitted that himself, PW8, his brothers PW2 and the deceased reached the spot in a Maruti Alto car and CW8, PW7 and PW6 reached in a Tata Sierra car belonging to PW6. At the time of purchase of property by PW2 from PW7, himself or PW2 were not aware of the existence of any case or dispute in respect of that property. He denied that he is engaged in real estate business. He also denied the suggestion that he used to purchase properties involved in dispute for paltry amounts for selling the same for higher sums. He further denied the suggestion that the sale of property by PW7 in favour of PW2 is a fictitious transaction to facilitate the sale of property involved in dispute. He denied that 3[rd] accused is in possession and enjoyment of that property and he along with his goons made an attempt to trespass into the property to take possession of the same from the 3[rd] accused on 20/12/2009 at about 07.00 A.M., after attacking 3[rd] accused and when the 1[st] accused reached the spot on getting information regarding the attack of the 3[rd] Crl.Appeal No.1302/14 & Crl.Appeal (V) No.338/15 -:25:- accused by him and his team, a clash occurred in the property and in the course of the clash, the stab intended to inflict on 1[st] accused by one of the goons happened to injure Abdul Jabbar as the 1[st] accused warded off and he also happened to sustain injury in that group clash. 17. PW11 was the Doctor of Taluk Hospital, Kadakkal. He deposed that on 20/12/2009 at about 10.35 A.M., he had examined PW1 at the hospital and he issued Ext.P9 wound certificate. He deposed that he had noted the following injuries on PW1: _(a) Incised injury 2x1x1 c.m. on the right eyebrow._ _(b) Contusion on right index finger._ _(c) Contusion and abrasion on the left wrist._ - _(d) Generalised pain._ 18. According to PW11, the history and alleged cause of injury is stated as assault and cut with chopper by Kabeer, Shanavas and Arifa Beevi at 10.00-10.15 A.M. on 20/12/2009 while standing in the property of his elder brother near Thykkavu at Elampazhannoor. PW11 further stated that the injuries stated in Ext.P9 could be caused as alleged. Injury no.1 could be caused by contact with the sharp edged portion of MO2. Injury nos.2 and Crl.Appeal No.1302/14 & Crl.Appeal (V) No.338/15 -:26:- 3 are possible by a fall on a rough and hard surface. During crossexamination, he stated that injury no.1 in Ext.P9 could be possible by contact with a broken glass piece while on a fall and injury nos.2 to 4 could be caused by a scuffle. 19. PW2 who is the brother of PW1 and the deceased deposed in the same line as that of PW1. On 20/12/2009 morning, while they were entering into the property, the 3[rd] accused pelted stones by uttering obscene words. When the act of 3[rd] accused become intolerable, he and PW6 went to the police station in the car of PW6 to lodge complaint. As they were about to reach the police station, CW8 telephoned him and informed that PW1 and the deceased were being attacked and they were taking them to Kadakkal Hospital. He reached the hospital and later came to know from Doctors that his brother is dead. In cross-examination, PW2 reiterated that he had purchased the property from PW7 for valid consideration. He stated that he is unaware of the existence of any case or dispute in respect of the property at the time of purchase of the same. He denied the suggestion that on 20/12/2009 in the morning, he along with his brothers PW1 and the deceased reached the spot to take forcible possession of the Crl.Appeal No.1302/14 & Crl.Appeal (V) No.338/15 -:27:- property along with the goons arranged by PW1. He also denied the suggestion that after reaching the spot they had brutally manhandled the 3[rd] accused by trespassing into her house. 20. PW3 is cited as an eyewitness to the incident. He is a person residing near to the property wherein the incident happened. He stated that he had seen the incident and it occurred on 20/12/2009 at about 10.00 A.M. He stated that at the aforesaid time while he was in his house, two cars came there and from the said cars, PW1 and others came out and while they entered into the property wherein the incident occurred, the 3[rd] accused pelted stones by uttering obscene words. At that time, PW2 and PW8 returned from there in a car and thereafter two others went out of that property. While so, 1[st] and 2[nd] accused came there in motor cycles and they entered into the property by taking weapons from their bikes and after entering into the property, they had pushed PW1 and assaulted him. PW1 and others moved towards the back of the machine shed in the property. To see the incident clearly, he moved towards the property of Shahul Hameed and at that time he had seen the 3[rd] accused holding the hand of the deceased from his back and the Crl.Appeal No.1302/14 & Crl.Appeal (V) No.338/15 -:28:- 1[st] accused stabbing the deceased with knife. Abdul Jabbar fell down. He had seen blood coming out of the eyebrow of PW1. He had also seen injury on the hand of Abdul Jabbar. He identified MO1 as the weapon of offence. He stated that he had not seen the 2[nd] accused attacking anybody. According to him, after the incident, the accused persons went away in their bikes. He stated that 1[st] and 2[nd] accused are butchers by occupation. Since PW3 did not support the prosecution as to the alleged overt acts of 2[nd] accused, he was declared hostile to the prosecution to that extent. 21. PW6 deposed in tune with what PW1 and PW2 had stated regarding their reaching on the spot and all. He stated that while they entered into the property, the 3[rd] accused had pelted stones on them by shouting abusive words and as the said act of 3[rd] accused was intolerable, himself and PW2 went to Kadakkal Police Station in his car to lodge complaint. While they reached near the police station, CW8 informed him that an attack happened in the property. During cross-examination, he denied the suggestion by the defence that he was an associate of PW1 in purchase and sale of properties involved in cases and that he is Crl.Appeal No.1302/14 & Crl.Appeal (V) No.338/15 -:29:- giving false evidence at the instance of PW1. 22. PW7 deposed that the property wherein the incident occurred earlier belonged to him and he purchased the same in the year 2007 and after purchasing the same, he had taken yield from the property and put up the machine house in that property and had dug a well also. It is his further version that he through his wife as his power of attorney holder has sold the property to PW2. He stated that on 20/12/2009 at about 09.30-09.45 A.M., he along with others reached the spot and while they were entering into the property, the 3[rd] accused pelted stones towards them. PW2 and PW6 went to the police station to complain about the said acts of 3[rd] accused. At that time, himself and CW8 had proceeded towards the property wherein the incident occurred and sometime after that they came to know that an attack took place in the said property. He went to the property at the request of PW1. He stated that he had purchased the said property without knowing that any case in respect of the same was pending. He denied the suggestion that he had executed a sale deed in favour of PW2 when he could not enter into the property and take yield from the same due to resistance from 3[rd] accused Crl.Appeal No.1302/14 & Crl.Appeal (V) No.338/15 -:30:- and the said document was executed as a sham document at the instance of PW1 who is a person engaged in the sale of properties involved in cases for huge amounts after purchasing the same for lower sums. He also denied the suggestion that on 20/12/2009, he along with his relatives and PW1 reached the aforesaid property along with some goons arranged by PW1 to take forcible possession of the property. 23. PW8 stated that he had accompanied PW1 and others to carry out cleaning work in the property by removing wild growths in it. While they entered into the property, the 3[rd] accused pelted stones by uttering abusive words. As she continued the said acts, PW2 and PW6 went to Kadakkal Police Station to lodge complaint and PW7 and CW8 went out of that property. At that time, 1[st] and 2[nd] accused came there in motor cycles with weapons and thereafter rushed towards him, PW1 and the deceased who were standing near the machine house in the property. On seeing that the accused were approaching towards them, PW1 and Abdul Jabbar moved towards back of the machine house and at that time 1[st] and 2[nd] accused came there and had cut them with the chopper aiming the head of Abdul Jabbar and Crl.Appeal No.1302/14 & Crl.Appeal (V) No.338/15 -:31:- the said assault was blocked by Abdul Jabbar with his right hand. He sustained injury on that hand. On seeing the attack on Abdul Jabbar, PW1 attempted to resist further attack and at that time 2[nd] accused had cut PW1 with the chopper by aiming his head and the weapon hit on the eyebrow of PW1 and PW1 sustained injury. At that time, the 3[rd] accused had caught both hands of Abdul Jabbar from behind and the 1[st] accused had stabbed on the chest of Abdul Jabbar with a knife and Abdul Jabbar sustained injury and he fell down. All the accused ran away from there. Himself, PW1 and another person had taken Abdul Jabbar to Government Hospital, Kadakkal and after examining Abdul Jabbar, Doctor declared that he is dead. He identified all accused persons and MO1 and MO2 weapons used by 1[st] and 2[nd] accused respectively. Nothing material is brought out in evidence during his detailed cross-examination. 24. The appeal preferred by the victim challenges the judgment of acquittal passed by the Court below for A2 and A3 for offence under Section 302 read with 34 of IPC. Court below is of the view that A2 and A3 had not shared any common intention to commit the offence of murder. We have gone through the Crl.Appeal No.1302/14 & Crl.Appeal (V) No.338/15 -:32:- entire evidence on record especially that of eyewitnesses. There is ocular version to the effect that the deceased was caught hold of by the 3[rd] accused while the stab injury was inflicted by the 1[st] accused. The said version do not inspire our confidence. The evidence on record clearly establish that the deceased was stabbed by the 1[st] accused. There is no ambiguity on the said aspect. Learned counsel for the appellant/accused argued that the case at hand is a clear case of rightful exercise of private defence by the 1[st] accused. The 1[st] and 3[rd] accused were subsequently branded as trespassers. Initially, even prosecution did not have a case that the accused trespassed into the property. It clearly shows that the 3[rd] accused was in possession of the property at the relevant time. There was a civil case instituted in connection with the same. Even assuming the accused was not having legal right over the said property, there is ample evidence to arrive at a conclusion that the accused were having a _bona fide_ belief that the property belonged to them and that they, especially the 3[rd] accused, was there in the property at that time. The prosecution party, around 11 people in number came there with weapons in the pretext of clearing the Crl.Appeal No.1302/14 & Crl.Appeal (V) No.338/15 -:33:- compound. The said explanation is an eyewash and cannot be accepted. It is pertinent to note that there was a prior incident in which the accused were threatened by the prosecution party. Admittedly, the prosecution party entered into the property with so called weapons for clearing the compound which is nothing else but trespass and mischief on property. 3[rd] accused was found with serious injuries. The 1[st] accused reached the spot after the commencement of quarrel between 3[rd] accused and prosecution party. He was also badly injured by the prosecution party. Even if admitted for the sake of argument, the act of 1[st] accused would clearly come under right to private defence of property and body. Mischief is admittedly committed by the prosecution party who are more than 10 in number. The 1[st] accused is a butcher. MO1 if at all found with him, would not be sufficient to attribute intention or pre-meditation to commit offence, as it is his tool for breadwinning. Scuffle, trespass, mischief and bodily harm inflicted by the prosecution party cumulatively compelled the 1[st] accused to exercise his right of private defence to save himself and his property. 25. We do not find the above argument factually correct. Crl.Appeal No.1302/14 & Crl.Appeal (V) No.338/15 -:34:- There is nothing in evidence to show that the property belongs to the accused or that any mischief is committed by the prosecution party to the said property while it is in the possession of the accused. Moreover, nothing concrete is brought in evidence to show that the property belonging to the accused. The civil case was lost by the accused subsequently. Prosecution has produced materials to show that the property in question belonged to PW2 and that PW1 and PW2 had entered into an agreement with CW8 for the sale of that property. PW7 who is the prior owner of that property endorses the same. Apart from mere claim, no legal right is shown to have existed for the accused over the property. Under such circumstances, the contention that the accused believed in good faith that the property belonged to them and that the prosecution party was trying to cause mischief on the same is totally unsustainable and baseless. Evidence would show that 3[rd] accused pelted stones over prosecution party and that she abused them verbally. Trial Court rightly held her liable for offence under Sections 294(b) and 341 of I.P.C. Provocation came from her side. The evidence of witnesses clearly shows that the 1[st] accused inflicted injuries on the victim using MO1 weapon and Crl.Appeal No.1302/14 & Crl.Appeal (V) No.338/15 -:35:- that ended his life. This is neither a case of right of private defence or a case of exceeding right of private defence as the circumstances which occasion exercise of private defence enumerated under Section 97 read with Section 103 of IPC is not shown from available evidence. Section 103 of IPC reads as under: _“103. When the right of private defence of property extends to causing death.—The right of private defence of property extends, under the restrictions mentioned in section 99, to the voluntary causing of death or of any other harm to the wrong-doer, if the offence, the committing of which, or the attempting to commit which, occasions the exercise of the right, be an offence of any of the descriptions hereinafter enumerated, namely:—_ _(First) --Robbery;_ _(Secondly) – House-breaking by night;_ _(Thirdly) – Mischief by fire committed on any building, tent or vessel, which building, tent or vessel is used as a human dwelling, or as a place for the custody of property; (Fourthly) – Theft, mischief, or house-trespass, under such circumstances as may reasonably cause apprehension that death or grievous hurt will be the consequence, if such right of private defence is not exercised.”_ Nothing is on record to show that any of the above-mentioned situation under Section 103 had been committed by the prosecution party so as to arose a situation entitling the appellants' right of private defence of property. Also, no evidence Crl.Appeal No.1302/14 & Crl.Appeal (V) No.338/15 -:36:- is adduced to the satisfaction of the Court that the 3[rd] accused was in the rightful possession of the property in question at the relevant time. Hence the contention of the counsel is only liable to be discarded. 26. The only remaining question is whether his case would fall under any of the exceptions enumerated under Section 300 of IPC. Admittedly, the deceased and the prosecution party were not residents of the locality. It is pertinent to note that offence under Section 447 of IPC was not there initially and it was incorporated subsequently by the investigating agency through Ext.P21 report. It is also seen that the 3[rd] accused hurled abusive words at them from the time when they reached there. 1[st] and 2[nd] accused were not there at the place of occurrence at that time. They reached subsequently. Nothing is brought in evidence to show that the 2[nd] and 3[rd] accused entertained any common intention to kill the deceased either prior or during the entire incident. Much less is the chance of 3[rd] accused. There is nothing to show that she called 1[st] and 2[nd] accused to the spot or that she exhorted to kill the victim during the commotion. Evidence otherwise shows that the 1[st] accused is a butcher by profession. The weapon of offence Crl.Appeal No.1302/14 & Crl.Appeal (V) No.338/15 -:37:- is one used for butchering. Premeditation to murder cannot be attributed to the 1[st] accused as there is nothing to show the same. 1[st] and 2[nd] accused were not in the scene initially. They came to the spot subsequently. The injuries sustained by the 3[rd] accused assumes relevance here. Of course, she does not have a case initially that the said injuries were caused by the prosecution party during the scuffle that took place there. She had a definite case before the Doctor who treated her and also before Police Complaints Authority that the injuries found on her body was due to police torture. But Police Complaints Authority, after detailed inquiry, came to the conclusion that the injuries on 3[rd] accused was not caused by the police but it happened during the incident in question. Materials like this probablize the version that there was a scuffle and 3[rd] accused who is the wife of the 1[st] accused got injured in the incident in the compound in which they believe to exist they have a right and that 1[st] and 2[nd] accused reached the spot and had seen his wife with injuries and the 1[st] accused out of heat of passion and without any premeditation inflicted injuries on the deceased. Two injuries were noted by PW19 who conducted the post-mortem examination. Of course, the injuries Crl.Appeal No.1302/14 & Crl.Appeal (V) No.338/15 -:38:- were fatal. But in the facts and circumstances of this case, it cannot be said that the 1[st] accused acted in a cruel or unusual manner. Each case has to be decided on its own facts. Under such circumstances, we are of the view that the act of the appellant clearly falls under 4[th] exception to Section 300 of IPC. The view that offence under Section 302 of IPC is made out cannot be sustained. As already elaborated, there is nothing on record to show that the 2[nd] accused committed any overt act against the deceased. The overt act alleged against the 3[rd] accused is suspicious and hence liable to be discarded. As far as the 2[nd] and 3[rd] accused is concerned, the Court below is justified in acquitting them of charges under Section 302 read with Section 34 of I.P.C. by extending benefit of doubt. But when it comes to the 1[st] accused, the verdict of the trial Court did not reflect an offence under Section 302 of I.P.C. It could only be treated as an offence under Section 304 Part I of I.P.C. and should be sentenced to undergo rigorous imprisonment for 10 years and to pay a fine of `50,000/-. The 2[nd] accused had been found guilty for offence u/s 324 of I.P.C. and the 3[rd] accused was found guilty for offence u/s 341 and 294(b) of IPC. As already discussed, Crl.Appeal No.1302/14 & Crl.Appeal (V) No.338/15 -:39:- sufficient evidence is available in the case to prove the aforesaid offences against accused 2 and 3. There is no reason to interfere with the said conviction and sentence. In the result, the appeals are disposed of as under: (i) Crl.Appeal (V) No.338/2015 is hereby dismissed. (ii) Crl.Appeal No.1302/2014 is partly allowed. Conviction and sentence passed against the 1[st] accused by the trial Court under Section 302 of I.P.C. is hereby set aside. He is found guilty for offence under Section 304 Part I of I.P.C. and sentenced to undergo rigorous imprisonment for ten years and to pay a fine of `50,000/- (Rupees Fifty Thousand only) in default of which to suffer simple imprisonment for six months. (iii) Sentences imposed on the 2[nd] and 3[rd] accused by the trial Court stands confirmed. **Sd/-** **A.M.SHAFFIQUE JUDGE Sd/-** **ASHOK MENON** **JUDGE** Rp