Ravi vs State of Kerala

P. Bhavadasan, J.—1. Three persons were prosecuted for the offences punishable under Sections 341, 323, 302, 307 and 201 read with Section 34 of IPC. All of them were found guilty and convicted for the offences punishable under Section 302 read with Section 34, Section 324 read with Section 34, Section 323 read with Section 34 and Section 341 read with Section 34 of IPC. They were sentenced to undergo imprisonment for life and to pay a fine of Rs. 5,00,000/-each with a default clause of rigorous imprisonment for two years under Section 302 read with Section 34 of IPC and sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rs. 5,000/- each with a default clause of rigorous imprisonment for six months under Section 324 read with Section 34 of IPC and sentenced to pay a fine of Rs. 1,000/- each with a default clause of rigorous imprisonment for three months under Section 323 read with Section 34 of IPC and also sentenced to pay a fine of Rs. 500/- each with a default clause of rigorous imprisonment for three months under Section 341 read with Section 34 of IPC. The second accused is also sentenced to undergo rigorous imprisonment for five more years and to pay a fine of Rs. 50,000/- with a default clause of rigorous imprisonment for two more years under Section 201 of IPC.

Rajan and Ravi are brothers and neighbours. The deceased Sajeevkumar is the uncle of Sandeep, who is the son of Rajan. Praveen, the 2nd accused who is the son of Ravi who is the first accused and Baby, the third accused is the family friend of Ravi. It seems that there was a dispute pending between Ravi and Rajan with regard to a pathway which led to the house of Ravi. On the date of incident, it appears that the fencing on the pathway was tampered with. It seems that the third accused had intervened in the matter.

On the day of incident, going by the prosecution version, PW2 was returning home with his autorickshaw after the days work. When he reached the canal bund where the people of the locality used to take bath, he found Sajeevkumar and Sandeep standing there. He got down from his autorickshaw and moved towards them. He happened to hear Sajeevkumar talking to the second accused over mobile phone. Soon thereafter, he happened to see the second accused coming along and while the second accused and Sajeevkumar were engaged in conversation, the first and the third accused also reached the place. While PW2 was speaking over his phone, he heard loud noise from behind and found that the assailants, the deceased and the injured were engaged in exchange of words. There was also a mutual push and pull. PW2 claims that he intervened and tried to pacify both the groups. The commotion was so fierce that the people of the neighbourhood gathered at the place. The scuffle and exchange of words continued. When PW2 managed to find his slippers and tried to move away from the place, he heard a cry "iyyo" from Sajeevkumar and he found blood oozing out from the chest of the said Sajeevkumar. He also found the second accused holding a knife. In the meanwhile, Sandeep had also suffered a stab injury. He and Sibi, PW4 tried to remove the injured to the hospital in the autorickshaw belonged to PW2, but they were unsuccessful in doing so. By that time, one Shibu had brought an Omni Van and the injured were transferred into the said van. While they were on the way, when they passed Thycavupadi and were going along the canal bund road, by about 8.30 Sajeevkumar breathed his last. On reaching Kothamangalam Baselious Hospital, the doctor examined him and pronounced him dead. After examining the injured, namely, PW1, he was sent for better management to another hospital. PW2 laid Ext. P1, First Information Statement. PW13 recorded the same and registered crime as per Ext. P10 FIR. PW14 took over investigation as he was the Circle Inspector of Perumbavoor Police Station within whose jurisdiction the offence had taken place. On 11.12.2009, he conducted inquest over the body of Sajeevkumar and prepared Ext. P2 report. He then visited the place of occurrence and prepared the scene mahazar. He had the place of occurrence examined by a scientific expert also. He recorded the statements of witnesses available at the place and collected the mobile number of all the persons. He happened to gather information that after the incident, the first and the third accused had escaped in a vehicle. On tracing the vehicle, he was able to arrest the first and the third accused immediately and they were brought to the Station. The second accused was apprehended from Chalakkudy and brought to the Station. After having conducted the inquest over the body of the deceased, it was sent for autopsy by PW14. PW6 conducted autopsy and furnished Ext. P3 report. PW14 had the clothes worn by the second accused and knife used by him seized as per the relevant mahazars and also had seized the clothes worn by the third accused as per another mahazar. He thereafter filed a report to the court seeking to incorporate Sections 341, 323 and 201 read with Section 34 of IPC. He had the materials collected during investigation sent for chemical examination. His successor-in-office, PW15 who took over the investigation, prepared the forwarding note namely, Ext. P28, had the site plan prepared and obtained the Chemical Analysis Report, namely, Ext. P29. He completed investigation and laid charge before court.

The court before which the final report was laid, took cognizance of the offences and finding the offences to be exclusively triable by a Court of Sessions, committed the case to Sessions Court, Ernakulam under Section 209 of Cr.P.C. after following the necessary procedures. The said court made over the case to Additional Sessions Court, (Adhoc-I), Ernakulam, for trial and disposal.

The latter court, on receipt of records and appearance of the accused, framed charges for the offences punishable under Sections 341, 323, 302, 307 and 201 read with Section 34 of IPC.

To the charge the accused pleaded not guilty and claimed to be tried. The prosecution therefore examined PWs 1 to 16 and had Exts.P1 to P31 marked. At the time of prosecution evidence, the accused had Exts. D1 and D2 marked. MOs 1 to 10 were got identified and marked.

After the close of prosecution evidence, the accused were questioned under Section 313 Cr.P.C. regarding the incriminating circumstances brought out in evidence against them. Apart from denying the incriminating circumstances, the first accused stated as follows: He denied being present in the scene of occurrence on the date of incident. He claimed that due to kidney ailment, he had been confined to his house for the last five years and he was unable to go for work. He further added that the road leading to his house exclusively belonged to him and it was being used by his family. However, PW1, Sandeep and his father, who is none other than the younger brother of the first accused, namely, Rajan tried to cause obstruction to the way. Thereafter, their sister by name Rukmini approached Rajan seeking her share of the property which was due to her as per the deed executed by their father at the time of his death. Under the impression that the said demand was made by Rukmini due at the instigation by the first accused, Rajan nursed grudge against him. He denied having any role to play in the incident.

The second accused in his turn stated in addition to denying the incriminating circumstances, that, on 10.12.2009 at about 8.00 p.m., the deceased had called him over phone and asked him to come over to Nagamcheri canal bridge for a talk about certain matters. When he reached the place, he found Sajeevkumar and a few people gathered there. The second accused would claim that as soon as Sajeevkumar saw him, he pulled him by the collar and he was pushed aside. Since it was dark, he could not identity the persons who were along with Sajeevkumar. He would further claim that he was caught hold of his neck by Sajeevkumar and he fell down on the road. He does not know what happened thereafter. He too would add that Rukmini, who is the sister of his father, had approached Rajan, the father of PW1 for her share of the property and Rajan and PW1 believed that the demand was made at the instigation of the first accused. He also pointed out that the local inhabitants had taken objection to the said conduct of Rajan in obstructing the way leading to the house of the accused. He claimed to be totally innocent with regard to the incident. He pointed out that the first accused and Rajan were at loggerheads with regard to a pathway. When there was mediation talk with respect to the said dispute, the third accused claims to have pointed out that the conduct of Rajan was not proper and it is not warranted. That caused annoyance to them. He would say that he has been falsely implicated in this case.

Finding that the accused could not be acquitted under Section 232 Cr.P.C., they were asked to enter on their defence. They examined DW1.

It appears that the court below was considerably impressed by the evidence of PWs 1 to 4 and found that the incident has been established. The court did not find it difficult to come to the conclusion on the basis of their evidence that the stab injuries which resulted in the death of Sajeevkumar was inflicted in furtherance of the common intention shared by accused Nos. 1 to 3 and therefore, all of them were liable for the death of Sajeevkumar and they were also found guilty of having caused injuries by PW1. The conviction and sentences as already mentioned followed.

Assailing the conviction and sentence, Sri. Vijayabhanu, the learned senior counsel appearing for the appellants contended that the court below has mechanically acted on the evidence of PWs 1 to 4 without making a critical analysis of the same. Had it been done, it would have been seen that the evidence of PWs 1 and 2 are incompatible. It will be quite evident from a close reading of the evidence of PW1 that he was trying to exculpate himself while the evidence of PW2 and the record would show that PW1 was an active participant in the incident. The learned senior counsel pointed out that the switch over made by PW1 is deliberate to fasten liability on the first and the third accused which otherwise would not have been possible, if one would simply go by the evidence of PW2 and Ext. P1. These aspects of the case has been lost sight of and the lower court was mainly carried away by the fact that the first and the third accused had held the deceased enabling the second accused to stab him repeatedly.

The learned senior counsel pointed out that the first and the third accused were sought to be prosecuted for the offence of murder taking aid of Section 34 of IPC. The evidence was to the effect that the first and the third accused were aware of the possession of knife with the second accused and they had a reasonable knowledge that he would use it against the deceased and if then they had restrained the deceased enabling the second accused to inflict stab injuries on him, there would be no doubt regarding their complicity. On the other hand, if it was otherwise, they are entitled to the benefit of doubt.

The learned senior counsel went on to point out that the evidence on record is clear to the effect that there was a push and pull between the parties and there was a scuffle. It would well be that the deceased was held by the first and the third accused to prevent him from committing such acts and taking aid of that opportunity, the second accused might have stabbed him. Such an act cannot be said to be in furtherance of the common intention shared by the first and the third accused and if that be so, at worst, the second accused alone was responsible for the act. These vital aspects have been omitted to be noted by the court below and probably, according to the learned senior counsel, the fact that a person has lost his life had clouded the mind of the court below. If the evidence of PWs 1 to 4 are critically analysed, it is very evident that what PW1 says cannot be true and that the incident had not originated as stated by him. That there was a mutual exchange of words followed by push and pull and scuffle cannot be disputed by the prosecution. That a few of the participants had fallen on the ground also cannot be disputed. It is under these circumstances, according the learned senior counsel, that the restraining of the deceased by the first and the third accused will have to be looked into.

Viewed from that angle, the learned senior counsel pointed out that the fastening of liability on the first and the third accused taking aid of Section 34 of IPC for the purpose of finding him guilty under Section 302 of IPC cannot be sustained.

The learned Public Prosecutor on the other hand very vehemently contended that though a clever way of putting the case in the manner that might appear to be persuasive and effective, the evidence is otherwise. It is quite clear from a reading of the evidence of PWs 1 and 3 that the fatal injuries on the deceased Sajeevan was inflicted while he was held tight by the first and the third accused. It is significant to notice that there was no defensive injuries on the body of the deceased and he suffered all the injuries inflicted on him. Had he been a free man, of course, he could have at least tried to escape or at least tried to prevent the injuries being inflicted on the fatal part of the body. After having enabled the second accused to inflict as many as four or five injuries on the vital parts of the body, the first and the third accused cannot be heard to say that they were unaware of the fact that the second accused was carrying a knife or that he would not inflict injuries or that the first and the third accused had no idea that stab injuries would be inflicted on the deceased. The evidence speaks for itself and the court below had rightly found that the offensive act had been committed in furtherance of the common intention. Any other view would be doing violence to justice and the learned Public Prosecutor pointed out that the court below has analysed the evidence meticulously and correctly and there are no grounds made out to interfere with the finding of the court below.

We have heard the learned counsel for the appellants as well as the learned Public Prosecutor and have carefully gone through the records in detail.

The first and the foremost question that arises for consideration is the cause of death of Sajeevkumar. That Sajeev and Sandeep were together seems to be the prosecution case when the incident occurred. The prosecution case as now revealed is that Praveen was brought to the scene at the behest of a call made by Sajeev and then the incident occurred. It is not in dispute that there was a pending dispute regarding the pathway between the father of PW1 and the father of the second accused or in other words, the first accused.

The evidence of PWs 1, 2 and 3 show that in the incident that took place on 10.12.2009, Sajeev, the deceased had suffered stab injuries on his chest, which is a vital part of the body. Though he was taken to the hospital immediately, he, unfortunately, did not survive for long. He died on his way. On reaching the hospital, the Doctor examined him and pronounced him dead. The body was removed to the mortuary.

PW14, who took over the investigation at the instant case, conducted inquest over the body of the deceased and prepared Ext. P2 inquest report. That succinctly narrates the injuries found on the body of late Sajeevkumar. This was followed by the autopsy conducted by PW6 who furnished Ext. P3 report which shows the following ante-mortem injuries:

Injuries (ante-mortem):

"i. Incised penetrating injury 2.5x0.8 cms. (Transverse) on left side of front of chest, inner end sharp and outer end blunt, inner extent 11.8m outer to midline and 29 cms. below top line of shoulder. Its upper border showed beveling. It was 114.5 cms above heel. It passed from left to right and ended in the subcutaneous plane after passing through a distance of 8 cms.

ii. Incised penetrating injury 1.6x0.9 cms. obliquely placed over the left sub costal region, lower inner end sharp cut and 7.5 cms. outer to midline outer upper blunt end 9.5 cms outer to midline, and 34 cms below top line of shoulder. Its lower edge was bevelled. It was 118.5 cms. above heel. It cut through the inter costal muscle between the 5th and 6th ribs and the left 6th costochondral cartilage and measured 4.5x0.2 cms. The wound track entered the left chest cavity and an incised wound 2.5x0.5 cms was seen in the pericardium and an incised wound 2x0.3 cms entering the left ventricle was seen near the apex of the left ventricle. There was approximately 300 ml of fluid blood in the pericardial sac. There was an incised wound 3x1 cm. seen in the hilum of left lung injuring the bronchus and pulmonary vein and also an incised wound 4x0.5 cms. entering the lumen of the descending aorta. The left lung was collapsed. There was approximately 2 liter of fluid and clotted blood in the left chest cavity. The wound track into the chamber of left ventricle measured 13.5 cms from the skin. It was directed from left to right and below upwards and in a slightly backward direction.

iii. Incised penetrating injury 2x1 cm.(Transverse) on outer aspect of left side of chest outer sharp cut end and inner blunt cut end. It was 20.5 cms. below axilla and 32.5 cms. below shoulder prominence. It was 116 cm above heel. It had cut through the costal cartilage of the 9th and 10th ribs and had gone in to the lower part of left chest cavity and had entered the peritoneal cavity by cutting the diaphragm which showed an incised wound 3x1 cm. and had entered the stomach. The wound track measured 10 cms. from skin and was directed from left to right and from above down wards.

iv. Incised penetrating injury 2.7x1 cm. (Transverse) on outer aspect of left side of chest 1 cm. below and 0.5 cm behind previous injury. Outer end sharp cut and inner end blunt cut. The wound track entered the peritoneal cavity and just nicked the stomach wall. The wound track measured 7 cms. in length and was directed from left to right.

v. Incised penetrating injury 1.4x0.7 cms. (vertical) on outer aspect of the left side of abdomen, upper end 43.6 cms below top line of shoulder. It ended blindly in the muscles and the wound track measured 7 cms.

vi. Curved incised injury 1.5x1cm. which raised a flap of skin on middle of nose tip."

The Forensic Surgeon, who was examined as PW6, is of the opinion that the death of Sajeevkumar was caused due to the injuries suffered by the deceased on his chest. When examined in court, he pointed out that, there was no defensive injuries found on the body and that it shows that the victim was kept in such a position that he was unable to ward off the attack on him. He also deposed that the injuries found on the body of the deceased could be well inflicted with a weapon of the nature of MO1. It leaves one in no doubt that the injury suffered on the chest is the fatal injury suffered in the ordinary course of nature to cause death.

There is no doubt that the death of Sajeevkumar was homicidal.

Two questions then arise for consideration. The first among them is as to whether the prosecution has succeeded in proving that the fatal injuries were inflicted by the accused. The second question, which is more significant in this case, is whether the infliction of injuries on the deceased by second accused was in furtherance of a common intention shared by accused Nos. 1 to 3.

The prosecution mainly relies on the evidence of PWs 1 to 4 to prove the incident and the acts of the accused. Among them, PW1 is the nephew of the deceased. The first accused is the brother of the father of PW1 and the second accused is the son of first accused.

The prosecution case has already been referred to it and it is unnecessary to repeat the same. As already noticed, the court below was considerably impressed with the evidence of PWs 1 to 4.

It therefore becomes necessary to consider their evidence in some detail to see if the findings of the court below are justifiable.

Among the 4 witnesses, PW1, who is the nephew of the deceased, states that he is a surveyor by profession and at the relevant time he was working at Perumbavoor. On the date of incident, that is., on 10.12.2009, the fencing, which was the subject matter of the dispute, was destroyed, ie., the way which accused Nos. 1 and 2 wanted to use. According to him, there have been disputes regarding the pathway which was settled. But, accused Nos. 1 and 2 did not abide by the settlement and they wanted the pathway to be set apart to them also. The third accused had also intervened in the dispute which is not to the liking of the deceased. In the evening, on the date of incident at about 7.00 p.m., while the deceased was returning from his workshop, he happened to see the third accused. The deceased hinted to third accused that the dispute between them is purely a family dispute and his interference was not warranted. Thereafter, the deceased went to the library, where PW1 and PW2 were already there. Going by the version given by PW1, the deceased got a telephone call from the second accused, Praveen. The deceased could not reply to the call. When the deceased called the second accused thereafter, he questioned the act of the deceased in taking objection to the intervention of the third accused in the dispute between the parties. PW1 would say that the second accused threatened to do away with the deceased. PW1 would say that he left the library in his auto and the deceased on his motor bike. After reaching home, PW1 would say that he wanted to take bath and therefore he came to the ghat near the canal. Then he found that the deceased and the second accused were engaged in a conversation. PW1 says that at that time, PW2 had also come to take bath. Then, it was found that first and the third accused were coming from the house of the first accused. On the way, it is claimed by PW1 that the first accused was hurling abuses at the deceased. No sooner than they reached near the deceased, they began to inflict blows. PW1 claimed that he then tried to intervene and save the deceased. According to PW1, then, the second accused pulled out the knife and first stabbed him on his stomach. When he tried to ward it off, the blow fell on his left armpit, which was followed by injury on the left side of chest which made PW1 to cry out with pain. PW1 would go on to say that thereafter the first and the third accused held the deceased tight and then the second accused repeated stab injuries on the deceased. The deceased fell on suffering the injuries. PW2 went to fetch a vehicle and by that time, the accused had escaped from the spot. The matter was conveyed to the nearby shop owners etc., and they were able to procure an Omni van in which the injured and deceased were removed to the hospital. PW1 was advised to go over to the Medical College Hospital, Kolencherry. While he was on his way to Kolencherry hospital, he learned that his uncle was no more. He identified the accused and also the weapon used by them.

We will come to the criticism levelled against the evidence of this witness a little later.

PW2 is the next witness on whom considerable reliance is placed by the prosecution. He is the author of Ext. P1 First Information Statement. He stands by the same. According to his version of the incident as disclosed by Ext. P1, when he was returning after his days work to his house, he happened to see the deceased and PW1 engaged in a conversation near the bathing place adjacent to the canal. He got down from his auto rickshaw and moved towards them. He heard Sajeevkumar talking to Praveen over the mobile phone and a little while thereafter, he saw Praveen coming to the spot. Praveen, the second accused was followed by accused Nos. 1 and 3. By that time, a call came for PW2 and he moved away from the place of incident. While he was talking over his phone, he heard loud noises from behind. When he turned back, he found exchange of words and scuffle between the two groups. PW2 claims that he switched off the phone and tried to pacify the aggressors. Hearing the commotion, PW4 had also come to the spot. That only aggravated the situation. Somehow, PW2 claimed that he managed to move out of the place of incident. Then he heard a loud cry let out by Sajeevkumar and he found Sajeevkumar had suffered injuries on his chest. He also stated that in that process, he also suffered injuries. He also thought of taking the deceased in his auto rickshaw to the hospital, but, the auto rickshaw did not start. Thereafter, PW2 would say that he was able to get an Omni van in which he transported PW1 and the deceased to the hospital. On reaching the hospital, Sajeevkumar was pronounced dead and PW1 was removed to another hospital for better management.

Next is the evidence of PW3. PW3 runs a shop near by to the place of incident. He runs a dry cleaning shop. On the date of incident, he heard a loud noise from near the bridge and he came out of his house to see what was happening in the place. He happened to see the first accused and the third accused had caught hold of the deceased from both sides and the deceased was unable to move and he saw the second accused repeatedly stabbing the victim. When PW3 cried for help, PW4, a friend of PW3 pleaded that further injuries may not be inflicted. PW3 would say that thereafter, the accused left the place. He then found PW1 also bleeding and then realized that he too had suffered injuries in the incident.

Next is the evidence of PW4. He does not claim to have seen the incident at all. He, after hearing the noise from the place of incident, on reaching the place, found both Sajeevkumar and Sandeep, the injured and that Sajeev was unconscious and further says that they were removed to the hospital.

The above are the oral testimony which weighed with the court below.

A cursory reading of the evidence of PWs 1 and 2 would show that they are incompatible. The prosecution case as now stands is that after having left the library, PW1 and his uncle, the deceased left for their house. If one is to take the evidence of PW2 thereafter, when he returned after the day''s work to go home, he found the deceased and PW1 standing near the garden. He stopped his vehicle, dismounted from the same and went towards them. The rest of the evidence is referred to in detail. What is significant is that his evidence is clear to the effect that Praveen had come on receiving the call from deceased and then the incident had occurred. The evidence would also show that first and the third accused had followed the second accused.

When one looks at the evidence of PW1, one gets an entirely different picture. PW1 has no case that Praveen happened to come to the spot at his behest but his stand is that when he came to take his bath, he had found that his uncle, the deceased and the second accused were engaged in conversation.

The above version of PW1 cannot be accepted for the reason that there is no material to show as to how Praveen and the deceased happened to come together at the time when the incident took place. If one goes by the evidence of PW1, there is no explanation for the same. On the other hand, if one may accept the evidence of PW2, it seems more reasonable and probable.

As rightly pointed out by the learned counsel for the appellants, a reading of the evidence of PW1 would leave one in no doubt that he is trying to exculpate himself and playing the role of a gentleman. The evidence of PWs 2, 3 and 4 are to the effect that there was commotion, exchange of words, push and pull and scuffle between the two groups and if on goes by the evidence of PW4, he happened to see a few people falling on the ground.

It is significant to notice that PW1 stands by the FIS namely., Ext. P1. We are aware of the fact that the said statement could be used only to contradict and corroborate the author of that statement. Since PW2 owns up Ext. P1, the prosecution stands by the same and the version of the incident as disclosed from Ext. P1 cannot be discarded.

Even assuming that it cannot be used either to corroborate or contradict any other witness, one cannot omit to note that this is the first virgin version of the incident having been brought into existence almost immediately after the incident. It is entitled to considerable weight. If one is to accept that version, then, of course, it is difficult to believe PW1.

This aspect of the case has been lost sight of by the trial court and the act of the lower court in placing implicit faith on the evidence of PW1 does not appear to be quite convincing enough. We feel that PW1 is hiding more than what was revealed.

If the version of PW1 appears to be doubtful, then, we are left with the versions given by PWs 2 and 3.

PW2 though at the time of evidence in court says about the first and the third accused having caught hold of the deceased and the second accused inflicted repeated stab injuries, this statement made by him is conspicuously absent in Ext. P1 and it can therefore be taken only as an embellishment or subsequent development to suit the prosecution case. His statement in that regard will have to be viewed with suspicion.

Coming to the evidence of PW3, his evidence is to the effect that on hearing huge sound from near the bridge, when he came out of his house and went to the spot from where the noise had emanated, he found accused Nos. 1 and 3 holding the deceased and the second accused inflicting repeated stab injuries.

It is true that PW1 is an injured witness. His evidence is therefore, entitled to considerable weight for the simple reason that his presence at the spot cannot be disputed. But, it is well settled that the evidence of an injured witness is not gospel truth and will have to be weighed along with the other items of evidence in the case. If that exercise is undertaken, the narration of incident given by PW1 is open to serious doubt, which has already been referred to.

However, one is left in no doubt regarding the fact that the injuries which resulted in the death of Sajeevkumar were inflicted by the second accused. There is overwhelming evidence in that regard.

Coming to the third issue, it now remains to be considered whether the act of infliction of stab injuries by the second accused was in furtherance of the common intention shared by accused Nos. 1 to 3. The court below was persuaded to take the view that it was in furtherance of common intention for the simple reason that since the infliction of the stab injuries was at a point of time, when he was held tight by accused Nos. 1 and 3 and since there were no defensive wounds on the body of the deceased, it must be presumed that the act was done in furtherance of a common intention.

We hasten to hold that the above aspect is not a matter for presumption, but the matter for proof. Prosecution has to prove the necessary ingredients to attract Section 34. It will have to adduce evidence to show that the act done by one of the assailants was in furtherance of a common intention shared by all of them.

In the case on hand, there is no evidence at all to show that the first and the third accused were aware of the fact that the second accused was carrying a knife. They could not have anticipated a scuffle and wordy altercation at the spot. It was a spontaneous incident. That there were exchange of words and scuffle between the parties is evident from the materials already referred to.

As long as it is not shown that the first and the third accused were aware of the possession of a knife with the second accused and as long as it is not established that if they could even have a remote imagination of the fact that the second accused intended to inflict injuries, the mere fact that, they held the accused tight will not be sufficient to hold that, the act committed by the second accused was in furtherance of the common intention shared by accused Nos. 1 and 3. One may remember here that the evidence of PW4, to the effect that, there were a scuffle between the parties and two of them had fallen on the ground. It may well be that the deceased was held tight by accused Nos. 1 and 3 to prevent further blows or intervention by him in the incident. This possibility cannot be ruled out. If that be so, the benefit of doubt would certainly go to the first and the third accused.

That leads the question as to what exactly are the offences committed by each of the accused. We have already found that there are no grounds to interfere with the conviction and sentence passed against the second accused.

It is also contended by the learned counsel for the appellants that as far as the second accused is concerned, it is clear that the incident has not occurred as alleged by the prosecution as could be clear from the evidence of PWs 1 and 2 and even assuming that the act has been proved, the learned counsel pointed out that it cannot constitute a culpable homicide amounting to murder and also that at any rate, he is entitled to private defence or Exception 4 to Section 300.

Coming to the question of the private defence set up by the second accused, we find no merits in the same. He carried a knife with him and inflicted fatal injuries on the deceased. After having inflicted as many as 6 incised wounds on the vital parts of the body, the second accused cannot be heard to contend that he neither intended the death of the person concerned, nor did he have the knowledge that having inflicted such injuries it is sufficient in the ordinary course of nature to cause the death of the person concerned. On the evidence on record, we find that the question of private defence does not arise for consideration at all. In short, none of the defence as set up by the second accused calls for any interference with the finding of the court below.

Our discussion shows that it is difficult to impute that the stab injuries inflicted by the second accused is in furtherance of the common intention shared by accused Nos. 1 and 3 and the act of infliction by the second accused can be treated only as an individual act and it is difficult in the facts and circumstances of the case to impute the act to a common intention shared by accused Nos. 1 and 3. Necessarily, the conviction and sentence under Section 302 read with Section 34 of the Indian Penal Code will have to be set aside as against accused Nos. 1 and 3 are concerned. So also except for restraining the deceased, no overt acts are seen attributed or proved as against accused Nos. 1 and 3. That means, their conviction and sentence for the offence under Section 324 read with Section 34 cannot be sustained. So also the conviction under Section 323 read with Section 34 of the IPC.

But, however, their conviction and sentence for the offence under Section 341 read with Section 34 of IPC will have to stand. We find no grounds to interfere with the finding of the court below for that offence.

In the result, Crl.Appeal Nos. 1099/2012 and 1158/2012 filed by the first and the third accused respectively are allowed and they are held not guilty of the offences punishable under Section 302 read with Section 34 of IPC, Section 324 read with Section 34 of the IPC and Section 323 read with Section 34 of IPC. But, however, their conviction and sentence for the offence under Section 341 read with Section 34 of IPC stands confirmed. If they already paid the fine amount for the offence under Section 341 read with Section 34 IPC, or suffered the default sentence, they shall be released forthwith, if not wanted in any other case. We confirm the conviction and sentence passed against the second accused for the offences punishable under Sections 302, 324, 323, 341 and 201 read with Section 34 of the IPC and it is unnecessary to say that the sentences as far as the second accused is concerned shall run concurrently. In the result, we dismissed Crl. Appeal No. 1185/2012 filed by the second accused.