State of Kerala v. Shiju M.S., Shanavas & Abdul Saleem (Criminal Appeal Nos. 875 of 2013 & 908 of 2013)

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE & THE HONOURABLE MR. JUSTICE P.SOMARAJAN WEDNESDAY, THE 15TH DAY OF NOVEMBER 2017/24TH KARTHIKA, 1939 CRL.A.No. 875 of 2013 -------------------------------AGAINST THE JUDGMENT IN SC 891/2010 of ADDITIONAL DISTRICT AND SESSIONS COURT (ADHOC)-II, KOLLAM, DATED 31.05.2013 APPELLANT / ACCUSED No.4 :- ---------------------------------------------- SHIJU M.S., PADINJARE KADAYIL VEEDU, NEAR AMBALAMKUNNU JUNCTION, AMBALAMKUNNU WARD, VELINALLOOR WARD. BY ADV. SRI.M.T.SURESHKUMAR RESPONDENT/COMPLAINANT:- ----------------------------------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 682 031. BY SR. PUBLIC PROSECUTOR SRI. S.U. NAZAR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 01-11-2017, ALONG WITH CRA. 908/2013. THE COURT ON 15.11.2017 DELIVERED THE FOLLOWING: DMR/- ## **A.M.SHAFFIQUE & P. SOMARAJAN, JJ.** ------------------------------------------------ Crl.Appeal No.875 of 2013 & Crl.Appeal No.908 of 2013 -----------------------------------------------Dated this the 15[th] day of November, 2017 ## J U D G M E N T ## **Somarajan, J.** These are the two appeals against the judgment of conviction and orders of sentence under Sections 302 and 324 IPC against accused No.4 in Crl.Appeal No.875/2013 and accused Nos.2 and 3 in Crl.Appeal No.908/2013 in S.C.No.891/2010 of the Additional Sessions Judge, Kollam, dated 31.05.2013. Four persons faced trial, viz. accused Nos.2 to 4 and 6, on the allegation of offence punishable under Sections 341, 324, 302, 114, 120B read with Section 34 IPC in connection with the death of one Renjith. The alleged incident has happened while he was riding a motor bike, bearing registration No.KL-3A 2231, at about 7.15 p.m. on 25.12.2004, along with a pillion rider PW21 through the Ambalamkunnu - Poriyacodu Public Road. In furtherance of the common intention and criminal conspiracy to kill the victim, accused No.1 unleashed attack on the victim Renjith Crl.Appeal Nos.875 & 908/13 with a sword given to him by accused No.4, but it hit on the back of the head of the pillion rider PW21 (CW13) and both the rider and pillion rider fell down on the road on receiving the attack. Thereon accused No.1 inflicted several cut injuries on Renjith one after another. Though the victim tried to escape from the attack by running towards the shop of CW2, accused No.1 followed him and inflicted injuries with the sword. When the injured tried to hold on him, accused No.2 hit him with a plantain stalk on his left shoulder. Accused No.1 continued his attack on various parts of the body of the victim with the sword. Though the victim, Renjith, ran towards the shop of CW5, accused No.1 chased him and continued his attack with the sword. Accused No.2 also joined with accused No.1 and inflicted cut injuries on the victim with a sword given by accused No.4. Accused Nos.1 and 2 dragged the victim Renjith to the 4[th] place of occurrence near the shop of CW5. Accused No.3 also inflicted cut injuries on the victim using the sword handled by accused No.2. Accused No.1 inflicted stab injuries on the victim Renjith by using a knife. Though he was removed to the nearby hospital, by that time, he succumbed to the injuries. Crl.Appeal Nos.875 & 908/13 2. Accused Nos. 2, 3 and 4 were found guilty for the offence punishable under Sections 302 and 324 IPC with the aid of Section 34 IPC and convicted thereunder and sentenced to undergo imprisonment for six months under Section 324 read with Section 34 IPC and imprisonment for life and to pay a fine of Rs.1,00,000/- each for the offence under Section 302 read with Section 34 IPC, in default, to undergo rigorous imprisonment for two years with a direction to run the sentence of imprisonment concurrently and ordered to release an amount of Rs.2,50,000/- to the widow of the victim under Section 357(1) Cr.P.C. Set off was also allowed under Section 428 Cr.P.C. Accused No.6 was found not guilty and hence acquitted by the impugned judgment. These two appeals are preferred against the judgment of conviction of accused Nos. 2 to 4 for the offence punishable under Sections 302 and 324 IPC read with Section 34 IPC and orders of sentence passed therein. 3. PW1, on receiving a phone call, went to the place of occurrence along with one of his friends Sunil Das by 7.30 p.m. on the ill-fated day and found the dead body of Renjith lying at Nettayam Road. He was taken to Kottarakkara Government Crl.Appeal Nos.875 & 908/13 Hospital, but, the Doctor declared him as dead. Then the body was taken to the Medical College Hospital, Thiruvananthapuram, for post-mortem examination. He had also given FI statement before the police, which is exhibited as P1. PW2, one Salahudheen, who witnessed the incident, turned hostile to the prosecution, but admitted that the alleged incident has happened on 25.12.2004 at Ambalamkunnu Junction. PW3, one Remadeviyamma, who was conducting a flower shop at Nettayam Road, admitted that the alleged incident has happened on 25.12.2004 between 7.30 and 8.00 p.m, but turned hostile to the prosecution. PW4, another shop owner, also turned hostile to the prosecution after admitting the time and date of incident, as spoken by PW2 and PW3. PW5 Thomas also turned hostile to the prosecution. PW6, another shop owner, Shahul Hameed, who witnessed the alleged incident, also turned hostile to the prosecution and the same was followed by PW7 and PW8. PW9 and PW10 also turned hostile to the prosecution admitting the time and day in which the incident has happened. PW11 is the witness to Exhibit P2 seizure mahazar of recovery of MO1 weapon at the instance of accused No.5. MO2 and MO3 shirt and pant were Crl.Appeal Nos.875 & 908/13 recovered under Exhibit P4 mahazar and PW13 is the witness. He is also a witness to the recovery of MO4 knife under Exhibit P5 and MO5 and MO6 T-shirt and kaily of accused No.4 under Exhibit P6 mahazar. MO7 sword was recovered under Exhibit P7 mahazar and PW14 is the witness to the recovery. PW22 is the attester to Exhibit P9 mahazar under which a sword was recovered. He is also a witness to Exhibit P10 mahazar by which the shirt and pant, identified as MO8 and MO9, were recovered. 4. PW24 is the Senior Lecturer in Forensic Medicine at Medical College Hospital, Thiruvananthapuram, who conducted post-mortem examination on the body of Renjith and issued Exhibit P14 post-mortem examination report. There were 57 ante-mortem injuries which are as follows:- - _“1. Abrasion 2x1 cm, on the left side of face 0.5cm below the outer angle of eye._ _2. Incised wound 7x1.5x1.5 cm, oblique, on the left side of face, with, its inner lower end 6 cm outer to ala of nose, with tailing 2cm long, directed inwards and downwards from its lower end._ _3. Multiple small abrasions over an area of 7x4 cm, on the left side of forehead 2cm above the inner end of eyebrow._ Crl.Appeal Nos.875 & 908/13 _4. Abrasion 6x4 cm, on the left side of forehead, 1cm above the outer end of eyebrow._ _5. Incised wound 5x1 cm, bone deep, vertical, on the left side of back of head, with its upper end 6 cm outer to midline, at the level of the occiput._ _6. Incised wound 6x2x2 cm horizontal, on the back of neck, across the midline, 7cm above root of neck._ _7. Contusion of scalp 10x5x0.5 cm on the top of head 8 cm above the occiput._ _8. Incised wound 24x3cm bone deep, horizontally placed on the sides of lower half of face including the chin, 2.5 cm below the lower lip margin, the entire extent of the underlying fragmented mangible was seen exposed._ _9. Incised wound 13x4x4 cm horizontal on the under chin, 2 cm behind the tip of chin._ _The brain showed a thin film of bilateral subarachnoid haemorrhage._ _10. Incised wound 5x2x2 cm oblique on the left side of neck, with its upper outer end 1cm below the left ear lobule, and its lower inner end merging with the left end of injury No.9._ _The soft tissues and internal jugular vein (whole thickness) was seen cleanly cut. The right ventricle of heart contained blood mixed with air under pressure._ _11. Incised wound 7x0.5x5 cm horizontally placed, across the right side and front of neck, 5cm above root of neck. The larynx underneath was cleanly cut at the level of the middle of thyroid cartilage._ Crl.Appeal Nos.875 & 908/13 _12. Incised wound 8x1x2.5 cm oblique on the left side of neck, with its lower inner end merging with the left end of injury No.11._ _13. Superficial incised wound 12x0.3 cm oblique on the outer aspect of right arm, with its upper inner end 7cm below top of shoulder._ _14. Incised wound 10x9 cm bone deep, horizontal, on the back of right arm, 2 cm above the elbow, the underlying, humerus was found fragmented._ _15. Incised wound 6x3 cm, bone deep, on the back of right elbow._ _16. Incised wound 3x1x1 cm horizontal, on the back of right forearm, 1 cm below the elbow._ _17. Two incised wounds, 4x1.5 cm and 5x2 cm each bone deep and 1 cm apart, obliquely placed and parallel to one another, on the back of right forearm, 2cm below the elbow, their lower outer ends showed tailing. The underlying ulna was found obliquely cut 3x0.5x0.8cm._ _18. Incised wound 6x3 cm, bone deep, oblique, on the back of right forearm, lower outer end being 14cm above the root of ring finger._ _19. Incised wound 3x1 cm, bone deep, oblique, on the back of right forearm, lower inner end 14cm above root of middle finger._ _20. Incised wound 2x1 cm, bone deep, oblique, on the back of right forearm, lower outer end 18cm above root of index finger. The underlying radius showed a corresponding superficial cut on it._ Crl.Appeal Nos.875 & 908/13 _21. Two incised wounds 2.5x1.5 cm and 2x1 cm each bone deep, vertically placed, side by side and 1 cm apart, on the inner part of front of right forearm 5 cm above the wrist._ _22. Incised wound 2.5x1.5x1 cm, oblique, on the inner part of front of right forearm, 11 cm below elbow._ _23. Incised wound 1x0.2x0.5 cm, vertical, on the web space between thumb and index fingers of right hand._ _24. Incised wound 1.5x1x0.5 cm on the outer aspect of right middle finger 2.5 cm below its root._ _25. Superficial incised wound 1x0.5 cm on the back of root of right ring finger._ _26. Incised penetrating wound 3.3x1.5 cm obliquely placed, on the right side of front of abdomen, with its lower inner rounded end 16cm outer to midline and 11 cm below costal margin, the upper outer end was sharply cut. The wound was directed upwards, backwards, and to the left for a total minimum depth of 6cm and terminated by puncturing the full thickness of the mesentry of small intestine (3x1.5cm)._ _27. Incised penetrating wound 3.3x2cm oblique on the right side of front of abdomen, with its lower inner rounded end 1 cm above the outer end of injury No.26. Its upper outer end was sharply cut. The wound was directed upwards, backwards and to the left for a total minimum depth of 6cm and terminated by puncturing the whole thickness of the mesentry of small intestine (3x1cm)._ Crl.Appeal Nos.875 & 908/13 _28. Incised penetrating wound 4x3.5cm, roughly ' ' shaped on the middle of front of abdomen 4.5 cm above the umbilicus, its ends were blunt, the wound was directed backwards for a total minimum depth of 5cm terminating by puncturing the whole thickness of the mesentry of small intestine (3x2 cm)._ _29. Incised penetrating wound 3.5x2cm oblique, on the right side of front of abdomen, with its lower inner sharply cut end 6cm outer to midline and 8cm above the pubis. Its upper outer end was rounded. The wound was directed backwards, upwards and to the left for a total minimum depth of 5.5 cm, puncturing the whole thickness of the mesentery (3x1.5cm)._ _30. Incised penetrating wound 4x2.5x4.5 cm oblique, on the right side of front of abdomen, with its upper inner rounded end 1cm to the right of umbilicus. Its lower outer end was sharply cut._ _31. Incised penetrating wound 4x1.5x4.5cm vertical, on the middle of front of abdomen its lower rounded end was 9cm above the pubis. Its upper end was sharply cut._ _32. Incised penetrating wound 3x1.5x4.5 cm vertical, on the right side of front of abdomen, with its upper sharply cut end 4cm outer to midline and 4cm below umbilicus, its lower end was rounded._ _The abdominal cavity contained 100ml of fluid blood._ _33. Incised penetrating wound 4x1x6cm horizontal, on the right side of back of trunk, with its inner sharply cut end 4 cm outer to midline and 18cm above the buttock, the wound was directed forwards and to_ Crl.Appeal Nos.875 & 908/13 _the left in the muscle plane._ _34. Incised penetrating wound 3x1cm horizontal on the left side of back of trunk with its inner sharp end 5cm outer to midline and 16cm above the buttock. The outer end was rounded. The wound was directed forwards and to the left for a total minimum depth of 6 cm._ _35. Three incised wounds 10x3 cm, 12x3 cm and 13x2 cm, each being, 7 cm deep, horizontal and parallel to one another and 1 cm apart, on the right side of back of trunk, with the inner end of the upper most one being 6 cm to the right of midline and 13 cm above the buttock._ _36. Multiple linear superficial incised wounds of length varying from 3 to 12 cm, of varying disposition, over an area of 20x18 cm on the back of right shoulder._ _37. Superficial incised wound 8x0.5 cm oblique, on the outer aspect of right thigh, its lower inner end 6 cm above the knee._ _38. Incised wound 10x6 cm bone deep, across the front of right knee. Upper end of tibia was cut to a depth of 1 cm, the joint cavity was exposed._ _39. Incised wound 9x5 cm bone deep, on the inner aspect of right knee. The femoral condyle showed a cut 4x0.3x0.5 cm._ _40. Incised wound 3x1 cm bone deep, horizontal, on the front of right leg 6 cm below the knee. Underlying tibia showed a cut 2x0.5x0.5 cm._ _41. Incised wound 2.5x1 cm bone deep, oblique, on the front of right leg, 11 cm above the ankle._ Crl.Appeal Nos.875 & 908/13 _42. Incised wound 7x3 cm bone deep, horizontal, on the front of left leg, 5 cm below the knee. Underlying tibia was fragmented._ _43. Incised wound 10x3 cm bone deep, oblique, on the lower part of left knee. The upper end of tibia was cut (5x0.3x1cm)._ _44. Incised wound 8x2 cm bone deep, on the front of left leg, just below the knee._ _45. Incised wound 8x3 cm bone deep, oblique, on the front of left knee._ _46. Incised wound 5x2x3 cm, horizontal, on the outer aspect of left thigh 6 cm above the knee._ _47. Incised wound 11x5x2 cm vertical, on the outer aspect of left thigh 16 cm above the knee._ _48. Incised wound 8x4x1 cm vertical, on the inner border of left palm, just below the wrist._ _49. Incised wound 8x2x1 cm vertical, on the back of left hand and wrist, its lower end at root of index finger._ _50. Superficial incised wound 1.5x1 cm on the back of left hand, 5 cm above root of middle finger._ _51. Incised wound 2.5x0.5x1 cm oblique, on the front of left hand 3 cm below the wrist._ _52. Incised wound 7x3 cm bone deep, horizontal, on the inner border of left forearm 9 cm above wrist. The ulna was seen cut and separated._ _53. Incised wound 8x4 cm bone deep, horizontal, on the back of left forearm, 8 cm above wrist. Underlying radius and ulna was cut and separated._ Crl.Appeal Nos.875 & 908/13 _54. Incised wound 6x4 cm bone deep, on the back of left forearm, 2 cm above injury No.53._ _55. Contused abrasion 5x5 cm on the back of left arm, 4 cm above elbow._ _56. Abrasion 6x1 cm oblique, on the front of left shoulder 3 cm below its tip._ _57. Abrasion 8x1 cm vertical, on the left side of neck, with its lower end 9 cm inner to the tip of shoulder and 1 cm above collar bone.”_ 5. The cause of death was stated as due to multiple injuries sustained. PW23 was working as an Assistant Surgeon at Taluk Hospital, Kottarakkara, who examined PW21 Saji and issued Exhibit P13 certificate. He had sustained an abrasion of 2 x 1 cm over occipital region. 6. Among the witnesses examined by the prosecution, PW21, pillion rider, had narrated what actually happened at the initial stage on the ill-fated day. The victim was riding a motor vehicle and PW21 was the pillion rider. The attack on them was commenced by accused No.1 with a sword. Though it was against the victim, it hit on the head of the pillion rider which has resulted in skidding of the bike and falling over the road. Thereon accused No.1 inflicted cut injuries on the victim Renjith one after another in a furious manner. He did not Crl.Appeal Nos.875 & 908/13 speak anything with respect to the involvement of other accused except to the statement that accused Nos.2 and 3 turned against him and caused him to ran away from the place of occurrence and that they even chased him for a while. The incident has happened on 25.12.2004 between 7.00 and 7.30 p.m. at Ambalamkunnu Junction. PW21 went to Veliyam Yogashema Hospital and then on the next day to the Kottarakkara Hospital. He had also deposed the presence of sufficient light in the place of occurrence from the streetlight as well as the nearby shops. Enmity and strained relationship existed in between accused and the victim also spoken by him. The prosecution mainly relied on the oral testimony of PW18 to prove the complicity of accused Nos.2 to 4 in the alleged commission of offence. PW18 had given a complete narration of the incident which has happened on the ill-fated day and the respective role of accused Nos.1 to 5 in the alleged incident. During his cross-examination, Exhibit D2 contradiction was also marked. The oral testimony of PW18 is under attack mainly on the reason that he is a distant relative of the deceased, his presence in the nearby occurrence place is doubtful, he did not disclose his relationship with the deceased Crl.Appeal Nos.875 & 908/13 before the investigating officer, he did not make any attempt to prevent the attack on the victim, he did not opt to inform the matter to the police and that he did not make any attempt to remove the injured to the hospital. 7. PW18 was a College student aged 19 at that time. There is only a distant relationship between PW18 and the deceased Renjith, though he used to call him as 'uncle'. The non-disclosure of his distant relationship with the deceased at the time when he had given statement before the investigating officer is not fatal unless it is found to be a conscious attempt on the part of PW18 to suppress that relationship from the notice of the investigating officer. The age of PW18 at the time when he had seen the alleged incident is a vital factor. He had seen the attack by accused No.1 on the victim, followed by a massive attack on him by accused Nos.1 to 3, with the active assistance of accused No.4. Though the victim tried to escape from the attack by running towards two shops situated nearby, one after another, the accused persons chased him and inflicted several injuries by using two swords and one knife. The post-mortem examination report would sufficiently explain the manner in which the attack was Crl.Appeal Nos.875 & 908/13 unleashed on the victim who had sustained 57 ante-mortem injuries. This would create its own impact on a young boy aged 19 years who had witnessed the entire episode. The relationship in between the young boy PW18 and the deceased is only a distant relationship and the massive attack inflicting 57 injuries on the victim by using several weapons by a group of persons would show that he was in a frightened stage at that time. The omission to state the distant relationship of PW18 with the deceased before the investigating officer is hence not fatal and it cannot be treated as a suppression of material facts. It is quite normal and natural under the said circumstances to omit to state the distant relationship of PW18 with the deceased. The fact that PW18 did not make any attempt to prevent the attack on the victim or to attend the victim or to inform the police has to be viewed under the given circumstances of massive inhuman attack which has resulted in 57 ante-mortem injuries to the victim. The explanation given by PW18 that he did not contact the police as he did not know the contact number of the police cannot be disbelieved. What is done by PW18 who went to the house of the victim to intimate the alleged incident cannot be overshadowed with any Crl.Appeal Nos.875 & 908/13 improbability. On the other hand, at the time when he was examined, he was working as an Asst. Professor in T.K.M.M. College, Nangiarkulangara and holding a respectable position in the society. It is too hard to digest that such a person would tell lie before court, especially in connection with a criminal case registered on the allegation of offence of murder under Section 302 IPC. Neither the prosecution nor the appellant had any case that there exists a political rivalry between the victim and the accused which has resulted in the alleged incident. No case of politically motivated attack was made out by the prosecution or even suggested by the appellant. The fact that PW18 is an active worker of a political party may not itself sufficient to reject his oral testimony when it is found to be not tainted by ill-will, ill-thought or hatredness. During the course of cross examination, the appellants did not raise even a single incident to show any enmity, hatredness or ill-will existed between them and PW18. The alleged delay on the part of investigation to question PW18, who was questioned only on 17.01.2005, few days after the alleged incident, is not at all fatal to the prosecution, especially when there is an acceptable explanation from the Crl.Appeal Nos.875 & 908/13 prosecution that the investigating officer was engaged in Sabarimala duty as well as Psunami duty. The other material witness, PW21, the pillion rider, who is an injured witness, was also questioned only on the same day, i.e. on 17.01.2005, and hence there is nothing to doubt about the credibility of the witness, PW18, on that account. Merely because the evidence of a witness is recorded by the police under Section 161 Cr.P.C. belatedly by itself does not make the evidence unacceptable provided, there is some logical or acceptable explanation for the same [see **Kantilal Alias K.L. Gordhandas Soni v. State of Gujarat - 2003 Supreme Court Cases (Cri). 1408].** 8. Exhibit D2 contradiction that he did not give any statement before the investigating officer, that he heard the utterance made by Azad Shaji and Thajudeen while they were on the southern side of provisionary store of Raju is not material and it is not possible to depose every minute aspect of transaction which had happened about more or less ten years back. No other contradiction or omission was brought out during the course of examination of PW18. On the other hand, the oral evidence tendered by PW18 touches on each Crl.Appeal Nos.875 & 908/13 and every part of the incident alleged to have been happened on the ill-fated day. At that time, he was standing near to the waiting shed. The deceased Renjith along with Saji (PW21) came to the junction in a bullet motorcycle and alighted in front of the modern bakery and bought a cigarette and lighted the same. Then they proceeded through the said road in the very same motorcycle ridden by Renjith, wherein PW21 was the pillion rider and proceeded towards Poriyacodu road taking a deviation. It is at that time accused No.1 Najeem came there with a sword while they were on the southern side of the shop of CW2 Salahudeen and hit on them. The hit fell on the back of the head of the pillion rider, PW21 Saji. After receiving the injury, he jumped down from the motor cycle and, by that time, loosing balance, the motor cycle skidded and fell down. Accused No.1 thereon inflicted injuries on Renjith, the victim, by using the above said sword one after another on his neck, hand, leg etc. Accused No.3, Abdul Saleem, and accused No.5, Thajudeen caused PW21 Saji to ran away from the place of occurrence by chasing him with sword. Though the victim Renjith tried to escape and ran towards the front side of the shop of CW2 Salahudeen **,** accused No.1 chased him and Crl.Appeal Nos.875 & 908/13 continued to inflict injuries with the sword. The victim by that time caught hold on accused No.1. It is at that time accused No.2 hit on deceased Renjith with a plantain stalk on his back. Receiving the hit with the plantain stalk, the victim again ran away from that place to the provisionary shop of CW5 Raju. Thereon accused No.4 Shiju given a sword to accused No.2 Shanavas. Accused No.1 Najeem and accused No.2 Shanavas then again inflicted injuries on Renjith by using two swords. Though CW6 Thomas tried to intervene, accused No.4 Shiju pushed him out of the shop by unleashing filthy language against him. Thereon, accused Nos. 1 and 2 caught hold on his legs and pulled and dragged out of the shop room to the pathway leading to Nettayam. It is at that time accused No.3 Abdul Saleem took the sword from accused No.2 and inflicted another injury on the victim. Accused No.4 by that time handed over a knife to accused No.1 and by using the knife, accused No.1 inflicted several stab injuries to the stomach of the victim Renjith. Accused Nos. 1 to 3 then went away from the place of occurrence. PW18, on seeing all these, went to the house of Renjith to intimate what has happened to the victim. The oral testimony of PW18 testifies the involvement Crl.Appeal Nos.875 & 908/13 of accused Nos.2 to 4 in the alleged commission of offence and their participation. It also reveals the respective roles played by accused Nos.2 to 4 in the commission of offence. It is true that as far as accused No.4 is concerned, no overtact was brought out except facilitating the offence and instigating accused Nos.1 and 2 to inflict injuries on the victim. He had given a sword to accused No.2 at the place of occurrence so as to facilitate the commission of offence by accused No.2 by inflicting injury on the victim. He had also given a knife to accused No.1 at the 4[th] occurrence place so as to facilitate further attack on the victim by accused No.1 by inflicting several stab injuries (6 to 7 approximately) by using the said knife. It is not a case in which an unwarranted situation was developed in a spur of moment. On the other hand, the entire sequence of the incident which had happened would show that accused No.1 along with other accused proceeded towards the victim without having any exchange of words or without having any immediate quarrel, but unleashed attack all on a sudden to the victim, from which a pre-planned commission of offence is well evident. A massive attack on the victim by using several weapons, inflicting 57 injuries on the body of the victim Crl.Appeal Nos.875 & 908/13 and participation of accused Nos.2 to 4 is well evident from the oral testimony of PW18. It is also permissible to sustain conviction on the evidence of a solitary eye witness when it is found to be wholly reliable [see **Joseph v. State of Kerala 2003 KHC 764 : 2003 (1) SCC 465 : AIR 2003 SC 507]** . The same view was reiterated in another decision in **Bhimapa** **Chandappa Hosamani and others v. State of Karnataka** reported in **2006 KHC 1312** . But in the present case the oral evidence tendered by PW18 stood as corroborated by the oral evidence of another eye witness, who is an injured examined as PW21, to the extent what he had seen on the ill-fated day. 9. The oral testimony of PW21 also gives sufficient corroboration to the oral testimony of PW18 in respect of the initial part of the alleged incident. The oral evidence tendered by PW21, being an injured in the alleged incident, is possessing high probative value which cannot be rejected simply on hypothetical reasons such as he went away from the place of occurrence and he did not attend the victim etc. 10. MO4 is the knife recovered based on the disclosure statement given by accused No.4 while he is in police custody. It was recovered under Exhibit P5 mahazar on 24.01.2005 at Crl.Appeal Nos.875 & 908/13 the instance of accused No.4 and the alleged recovery was proved through PW13 who is a witness to recovery under Exhibits P4, P5 and P6. The submission made by the appellants that the recovery under Exhibit P4 mahazar is on 30.12.2004 while the recovery under Exhibits P5 and P6 mahazars are on 24.01.2005 and the same person PW13 cited as a witness to all these three mahazars and that he is only a hired witness will not stand as nothing was brought out to shake the credibility of PW13 while he is in the box. On the other hand, he had deposed about the alleged recoveries under Exhibits P4, P5 and P6 in clear terms. 11. The knife, identified as MO4, found to be stained by human blood of group 'O' on chemical analysis and Exhibit P29 is the chemical analysis report. MO7 sword was also recovered under Exhibit P7 mahazar at the instance of accused No.3 based on the disclosure statement alleged to have been given by him while he is in police custody. It was recovered from the bottom of a culvert (kalunk). Both MO7 and MO16 swords and MO4 knife were found to be stained by human blood of 'O' group. MO4 knife was recovered from the top of a slab of the house belonged to accused No.4. Though the recovery of MO4 Crl.Appeal Nos.875 & 908/13 knife is from the house of accused No.4, it was really kept over a slab in the house of accused No.4. The blood group detected in the material objects collected at the time of inquest from the body of the victim was found to be 'O' group on chemical examination under Exhibit P29, and hence recovery of the weapons used would clearly come under the purview of Section 27 of the Evidence Act, and gives sufficient corroboration to the oral testimony of PW18. 12. Item Nos. 18 and 19 in Exhibit P29 forensic lab report are the dress of accused No.3 recovered under the disclosure statement and item Nos. 24 and 25, which are MOs 5 and 6, dress of accused No.4 recovered under Exhibit P6 mahazar were also found to be stained by human blood of 'O' group in Exhibit P29 report. These dresses were recovered from the respective houses of accused Nos.3 and 4 and it could be possible for the investigating officer to recover the same on conducting a search in the respective houses. The recovery of dresses as that of accused Nos.3 and 4 were witnessed by independent witness who was examined as PW13. The presence of human blood in the dress worn by accused Nos.3 and 4 further gives corroboration to the oral testimony of Crl.Appeal Nos.875 & 908/13 PW18. 13. The motive behind the crime is also established by the prosecution as the accused and the victim were in inimical terms and there were quarrel in between them and the same is proved through PW28 as there was a crime registered as crime No.461/2004 on 05.09.2005, which was subsequently converted into CC No.625/2005 wherein accused No.1 Najeem is the de facto complainant and the victim herein is the accused. The medical evidence adduced through PW24 Doctor, who conducted autopsy and issued Exhibit P14 post-mortem examination report, and 57 ante-mortem injuries also give support to the prosecution case as deposed by PW18 and PW21. The number of injuries which comes into 57 antemortem injuries would probablize the involvement of more than one person and the nature of injuries spoken by PW24 Doctor would reveal user of more than one weapon. It gives sufficient corroboration to the ocular version of PW18 and PW21 and the main substratum of the prosecution case. The cause of death is due to the multiple injuries, noted as antemortem in Exhibit P14 post-mortem report. Among the Crl.Appeal Nos.875 & 908/13 injuries, item Nos. 8, 14, 38, 42, 52 and 53 are incised wounds with corresponding bone fracture and they could be caused by heavy sharp cutting weapon shown to the witness (PW24). Item Nos.26, 27 and 29 to 34 are penetrating wounds and can be caused by the stabbing action with a single edged sharp cutting instrument shown to him. It is also testified by PW24, when all weapons were shown to him, that except injuries 1, 2, 3, 4, 7, 8, 28, 38, 42, 52, 53, 26, 27, 29 to 34, 55, 56 and 57, the other injuries can be caused by three heavy cutting sharp edged weapons shown to him. The medical evidence tendered through PW26 are fully and completely tallying with the injuries alleged to have been caused to the victim as spoken by PW18 and user of three independent weapons identified as MO4 knife, MO7 and MO16 swords. The participation of accused Nos.2 to 4 are well evident and clear. All of them participated in the crime and the nature of participation and the manner in which the incident has happened would also satisfy a prior concert and common intention to commit the offence and hence there is no scope for apportionment of liability under Section 34 IPC. Hence, there is no reason for any interference to the finding of guilt of accused under Crl.Appeal Nos.875 & 908/13 Sections 302 and 324 IPC and the conviction thereunder. The sentence ordered strikes a balance between mitigating and aggravating circumstances. Being the lessor punishment, there is no reason for any interference by this Court. Hence, both the appeals lacks in merits, deserves only dismissal and we do so. ## **A.M.SHAFFIQUE (JUDGE)** ## **P. SOMARAJAN (JUDGE)** DMR/-