Sabu @ San S/o Thomas vs State Of Kerala

Ziyad Rahman A.A., J

The unfortunate victim of Crime No 66/11 of Chittar Police station, subject matter of S.C.No 846/2012 on the file of Additional Sessions Judge-II,

Pathanamthitta, would have never imagined that, singing devotional songs in his leisure time at the courtyard of his own residence, would result in an

abrupt end to his life, at the hands of his intolerant neighbour. In connection with the said incident, three accused persons, were implicated for the

offences punishable under Section 302 read with Section 34 of the Indian Penal Code. The 2nd accused passed away during the trial, and only the 1st

and 3rd accused, faced the trial and both of them now stand convicted.

The prosecution case is that, on 19/03/2011, at about 8 PM, the deceased Sasidharan Pillai @ Sasi, was talking loudly while he was on the southern

courtyard of his house. The 1st accused, an immediate neighbour along with the other accused rushed to the deceased, shouting that his loud talk was

causing disturbance to his daughter's studies. There ensued a physical altercation, during the course of which fight, the 1st accused stabbed the

deceased thrice on his chest, with a knife. The deceased succumbed to the injuries on the spot itself. The prosecution charged the aforesaid offences

and the accused stood trial.

During the course of trial, the prosecution examined PW1 to PW14, marked Exts P1 to P20, and identified MO1 and MO2. Upon completion of the

prosecution evidence, statement of the accused was recorded under Section 313 of Cr.P.C in which all the incriminating evidence brought out by the

prosecution during the course of trial, were denied by the accused. No defense evidence was adduced and thereafter taking into account the materials

produced before it, the Sessions Court arrived at a finding of guilt of the 1st and 3rd accused. Accordingly they were convicted and sentenced for

imprisonment for life and a fine of Rs 1 lakh each, with default sentence of rigourous imprisonment for one year. The Appellants herein, have come up

with this appeal against the conviction and sentence.

We heard Smt. T.V. Neema, learned counsel for the appellants, and Sri. Alex Thombra, the learned public prosecutor. The learned counsel for the

appellants contends that the prosecution miserably failed in establishing the guilt of the accused. According to her, there are several discrepancies in

the prosecution case, such as, (1) PW2, who is the sole eyewitness to the incident, is not at all a reliable witness, as she is an interested witness; being

the wife of the victim, (2), the prosecution failed to prove any motive for commission of the crime (3) the father of the victim, who was residing in the

residential house where the incident occurred, was not examined by the prosecution, (4), the dress worn by PW2 was not produced by the prosecution

and subjected to forensic test, (5) the fingerprints on MO1 knife was not examined and (6) the prosecution could not bring in any materials showing

the common intention of the 3rd accused and no specific overt acts were also alleged against him. On the other hand, the learned public prosecutor

contends that, the prosecution was successful in establishing the guilt of both the accused persons, and all the contentions raised by the appellants are

unsustainable. Accordingly he prays for dismissal of the appeal.

The proceedings were set into motion as per Ext. P1, First Information Statement which was given by PW1 at 11 P.M on 19.03.2011. He is the

brother of the deceased and he is residing on the northern side of the residence of the deceased. On 19/03/2011 at 8 PM, while he was sitting in his

house, he heard an outcry from PW2. Under the impression that it might be due to some quarrel between the deceased and his wife, he did not give

much attention.

But, half an hour later, one Sahadevan (PW6), who is one of their neighbours, came to his house and informed him that his brother was inflicted with

stab injuries and was lying in the courtyard of the adjacent house. Immediately he along with PW6 rushed to the place of occurrence, to find that the

deceased was lying in a pool of blood. Upon inquiry, PW2, wife of his brother, informed him that, at about 8 PM, accused 1 to 3, who were in the

courtyard of the neigbouring house of accused No. 1, infuriated with the act of the deceased talking loudly, rushed to the scene of occurrence shouting

that the loud noise made by the deceased disturbed the studies of 1st accused's daughter. The other accused were also along with the 1st accused.

This resulted in a physical altercation between the deceased and accused, during which the 1st accused took out a knife and inflicted stab injuries upon

the body of the deceased. After the incident, the accused ran away from the place of occurrence. While being examined as PW1, he reiterated all the

above aspects before the Court. However there was a small improvement in his version to the effect that, the deceased was singing devotional songs

at the relevant time and this act made the accused furious, which ultimately led to the altercation and stab injury.

When we examine the scientific materials available, it can be seen that there is a Postmortem Certificate which is marked as Exhibit P7 and the

doctor who conducted the postmortem was examined as PW12. He clearly explained the nature of injuries and the same reads as follows:

“Injuries ante-mortem:-

Abraded contusion on outer aspect of right elbow 2x.5 cm Vertical .

Abraded Contusion on tip of right shoulder 3x1 cm front

to back direction.

Stab wound on front of chest on midline 3.2x1cm, transverse, with left end blunt 6.5 cm below root of neck, runs upwards and outwards through muscle plain at

second intercostal space for a length of 5.5 cm.

Stab wound on front of chest on left side 1.5 x .5 cm transverse, 6 cm below injury No.3, right end blunt situated, 1 cm left to midline, skin deep.

Stab wound on left side of chest 3.5 x 1cm, vertical, 13 cm outer to front midline at intercostal space with a surrounding round contusion of 3 cm in diameter

around the wound expecially at lower portion with upper end blunt. The wound pierced the skin pleura and lower portion of upper lobe of left lung for a depth of

8 cm runs upwards and rightwards from the left fifth intercostal space with a total minimum depth of 10 cm. The chest cavities contained a total of 1.5 litres of

blood and blood clots.â€​

According to him, the death was due to the stab wounds sustained to the chest which are described as injury numbers 3, 4 and 5. He categorically

stated that, those stab injuries could be inflicted by M.O. 1 weapon, which was shown to him during the course of trial. The evidence of PW12 and

Ext P7 Postmortem Certificate would clearly prove that the death of the deceased was a homicide.

This finding, clearly leads us to the next question as to whether it was the accused who committed the offence, as alleged by the prosecution and

also as to whether while committing such an offence, all the accused persons shared a common intention, as contemplated under section 34 of IPC.

While examining the above question, the crucial evidence is that of PW2, who is the wife of the deceased. She stated that on 19/03/2011, at about 8

PM, the deceased was singing devotional songs, while sitting on the southern courtyard of his residence. At that time, the accused persons were sitting

in the courtyard of the 1st accused, who is their neighbour on the southern side of their residence. While so, the 1st accused along with the other

accused came running to their residence, by shouting that, “my daughter is unable to study due to your songâ€. This resulted in an altercation

between the accused persons and the deceased. Seeing the altercation from inside the house she came out and intervened when, the 1st accused took

out a knife, MO1 weapon and stabbed on the chest of the deceased thrice. Thereupon, the accused ran away from the spot. She further stated that,

the 1st accused used to indulge in brewing illicit liquor and hunting, and the deceased used to threaten that he will be reported to the Police. She stated

that, the action of the accused persons stabbing him was due to this grudge. During cross-examination, she stated that her husband used to sing

devotional songs everyday for half an hour from 7:30 PM onwards. She further stated that, she had seen the incident in the light available on the

southern side of her house. She identified the dress worn by the deceased at the time of the incident and also the knife used for inflicting stab injury

and the said materiel objects were marked through her.

On going through her deposition, it can be seen that, it reveals a vivid picture of the incident occurred, and the same is perfectly in tandem with the

statement made by her before the Police except on one aspect. What she had stated before the Police was that at the relevant time, the deceased

was talking loudly, whereas as per the deposition, he was singing devotional songs loudly. In response to the question asked by the learned counsel for

the accused, she had stated that such a statement was made by her to the Police, due to her mental state at the relevant time. We notice that, the said

statement was recorded by the Police at about 10 AM on 20.03.2011, whereas the incident in this case happened at 8 PM on the previous night.

Therefore, the explanation offered by her is a plausible one and there is no reason to treat it as a serious discrepancy as to doubt the veracity of her

version. Even otherwise, it cannot be treated as a discrepancy since, it amounts to only a clarification of the statement made by her before the Police.

Apart from the above, the deposition of PW2 does not contain any discrepancies to disbelieve her version of the incident. What is relevant is the fact

that the 1st accused got infuriated with the loud noise made by the deceased as it interfered with his daughter's studies.

The evidence of PW2 is also corroborated by the scientific evidence available. It is evident from Exhibit P12 Postmortem Certificate that there

were three stab injuries upon the body of the deceased. PW2 categorically stated that, the 1st accused stabbed the deceased thrice. It is also stated

that the stab injuries were sustained by the deceased during a physical altercation between the accused and the deceased. Such statement regarding

the altercation clearly justifies the other injuries most of which are minor in nature, found on the body of the deceased and specifically noted in Ext P7

Postmortem Certificate. Further PW2 also identified MO1 knife and PW12 Doctor, has clearly stated that the stab injuries could be inflicted with

MO1. More so, her evidence was corroborated by the evidence of PW1 and PW6 as well. As per the deposition of PW6, at 8 PM on 19/03/2011, he

heard an outcry and thereupon he rushed to the residence of the deceased. On reaching there, he could see the deceased lying on the southern

courtyard of the residence in a pool of blood with stab injuries. He stated that, at the time when he reached the place of occurrence, he had seen PW2

there and he could not see any blood on her dress. He further stated that, the father of the deceased, who was an inmate of the said residence was

not there. Later he went to the residence of PW1 and informed him. Both came back to the residence of the deceased after half an hour of the

incident and upon inquiry with PW2, she had stated that the 1st accused stabbed the deceased. When we are examining the evidence of Pws 1, 2 and

6, it can be seen that the entire sequence of events are clearly linked and it provides a complete story without any break. In other words, the version

of PW2 as to the incident that occurred in the premises, is fully tallying with the version advanced by PW1 and PW6, who came to the scene

immediately after the occurrence. PW1 stated that at 8 PM he heard an outcry from PW2 and half an hour later, PW6 came to his residence and

informed him about the stabbing of his brother. Immediately they went to the place of occurrence and found the deceased lying with stab injuries.

PW6 has clearly stated that, he came back to the place of occurrence along with PW1 after half an hour. PW2 also stated that, PW1 came along with

PW6, after the incident. So, all these evidence offer mutual corroboration and lends credence to each other.

The learned counsel for the appellants contended that the evidence of PW 2 cannot be relied upon as she is a highly interested witness, being the

wife of deceased. It is a well settled position of law that, merely because of the reason that the witness is a close relative to the victim, evidence of

such witness cannot be disregarded, treating it as an interested version. Unless otherwise established, it cannot be concluded that a person who is

closely related to the victim, would make any statement for falsely implicating any person, so as to permit the real culprit to escape from the clutches

of law. In the judgment reported in Mohabbat and others Vs State of M.P (2009 (13) SCC 630) it was held by the Honourable Supreme Court as

follows:

“Merely because the eyewitnesses are family members their evidence cannot per se be discarded. When there is allegation of interestedness, the same has to be

established. Mere statement that being relatives of the deceased they are likely to falsely implicate the accused cannot be a ground to discard the evidence which

is otherwise cogent and credible. We shall also deal with the contention regarding interestedness of the witnesses for furthering the prosecution version.

Relationship is not a factor to affect credibility of a witness. It is more often than not that a relation would not conceal actual culprit and make allegations

against an innocent person. Foundation has to be laid if plea of false implication is made. In such cases, the court has to adopt a careful approach and analyse

evidence to find out whether it is cogent and credible.â€​

Similarly, in the judgment reported in 2012 (4) SCC 107 (Amit Vs State of Uttar Pradesh), the Honourable Supreme Court held that, an interested

witness must have some direct interest in having the accused somehow convicted for some extraneous reasons and a near relative of the victim is not

necessarily an interested witness. Thus while examining the facts of this case in the light of the principles laid on by the Hon’ble Supreme Court, it

can be seen that the materials available do not reveal the existence of any extraneous intention on the part of PW2, in seeing the accused convicted.

To create a ground for such extraneous reasons, there must be some evidence indicating some enmity between them. In the absence of any such

materials, it cannot be assumed that, PW2 had any interest in seeing the accused convicted for the offence.

It is the further case of the appellants that the evidence of PW2 is not reliable and the finding of guilt entered into by the Sessions Court mainly on

the basis of such evidence is not proper. It is a well settled position of law that, it is not the quantity of witnesses that matters, but the quality of

evidence adduced. In this case going through the evidence of PW2, no circumstances against the credibility of the said witness are brought out. There

is nothing to doubt the presence of PW2, who is the wife of the deceased and the scene of occurrence is the southern courtyard of their residence.

PW2 withstood the cross-examination and no contradiction worth its name was brought out by the prosecution.

The learned counsel for the appellants attempts to create a shadow of doubt over the prosecution case, pointing out that, even though the father of

the deceased was a permanent resident in the very same house, he was not examined by the prosecution. However, it is clearly explained by PW2 in

her evidence that, at the relevant time, father of the deceased was not in the house as he went to the hospital. The said aspect was corroborated by

the evidence of PW6 as well, who stated that when he reached the spot on hearing the outcry of PW2, the father of the deceased was not there. It is

in that circumstance that PW6 ran to PW1 , the brother of the deceased, an adult male relative of the deceased, to inform him of the stabbing incident.

In such circumstances, we do not think that the non-examination of the father by the prosecution will in any manner, create any doubt as to the

veracity of the case advanced by the prosecution.

Similarly, the learned counsel for the Appellants submitted that, the prosecution has not produced the dress worn by PW2 in support of the

prosecution case. But, we are of the view that non-production of the dress worn by PW2 is not at all material. It is pertinent to note in this regard that,

PW6 has already stated in his deposition that, when he reached the place of occurrence, he saw the deceased lying in a pool of blood with stab injuries

and he also found PW2 there. He has further stated that, there were no bloodstains on the dress worn by the PW2. There is no reason to disbelieve

the same. Though PW2 intervened in the struggle there were about four males in the scuffle and PW2 would just have been in the fringe, thus not

being near her husband when the stabbing occurred. Also when a knife, a lethal weapon is brandished it is natural for any person, especially a woman

to draw back in alarm or self-preservation. Hence non-production of the dress of PW2 which could have been examined for presence of blood stains

does not have any significance.

Another crucial contention taken by the learned counsel for the appellants, is that no motive could be proved by the prosecution. In this regard, it is

to be noted that, case of the prosecution is that, 1st accused assaulted the deceased, as the loud noise made by the deceased disturbed the studies of

the daughter of the 1st accused. The words uttered by the 1st accused at the time of commission of the crime, were clearly spoken of by PW2 and

there is nothing to disbelieve the said statement. PW2 categorically stated that, the deceased was in the habit of singing devotional songs on every

evening loudly, by sitting at their courtyard on the southern side. The house of the 1st accused is on the southern side. Therefore it is evident that, the

first accused was irritated and infuriated by the disturbance constantly caused by his neighbour. We are of the view that, the said evidence is

sufficient to arrive at a conclusion as to the motive; which in any event is not a crucial aspect when there is direct evidence, which is the case here;

with the eye-witness testimony of PW2, the wife of the deceased.

While considering the above, another important aspect to be looked into is whether, the act was committed on grave and sudden provocation

without any premeditation or design. Even though the learned counsel for the appellants would contend that, it was without any premeditation, the

conduct of the 1st accused would show otherwise. As per the evidence of PW2 and also from the circumstances as revealed from the other

materials, it can be seen that, the 1st accused came to the courtyard of the deceased, armed with MO1 knife. The fact that he carried MO1 weapon

to the place of occurrence, clearly shows that, there was per-meditation on his part. MO1 weapon was lethal enough to cause death of another, if

used on the vital parts of the body, as any person can understand and it was used on the chest of the victim, thrice by the assailant causing wounds

deep enough to cause death. It cannot be said that the accused lacked premeditation or the injury was caused in a sudden fit of anger.

Another aspect is relating to the the recovery of MO1 weapon. Immediately after the incident, under the belief that the weapon used for

commission of the crime was kept in the residence of the 1st accused, the PW13 investigating officer conducted a search in the residence of 1st

accused by preparing Ext P8 search memo and forwarding the same to the jurisdictional Court, but no recovery could be affected. Subsequently, the

1st accused was arrested on 23/03/11 at 4 PM and when he was interrogated, he made a confession statement to the effect that, he had concealed

the knife inside the hole in a tree situated on the road-side, between Neelipilavu and Kattachira. Accordingly PW 13 went to the place along with 1st

accused and recovered MO1 knife therefrom. Ext P12 is the confession statement and Ext P13 is the seizure mahasar. To prove Ext P13 seizure

mahasar, the prosecution examined PW 7 and PW 8, but both the said witnesses turned hostile to the prosecution. By relying upon the said hostility, a

contention was raised by the accused, before the Sessions Court to the effect that, the recovery of MO1 is not reliable. However, the Sessions Court

found, the evidence of the investigating officer PW13, to be trustworthy. By relying upon the said evidence, the contention of the accused on this issue

was rejected. While discarding the said contention, the Sessions court relied upon the judgments reported in 1992 (1) KLT SN 22 (Sadanandan Vs

State of Kerala) and 1990 (2) KLT 564 ( Mathew Vs State of Kerala). We cannot find any infirmity in the said finding of the Sessions Court, as the

same was arrived at based on reliable evidence of PW13, and also on a confession statement made by the 1st accused. It is admissible under Section

27 of the Indian Evidence Act and is a valuable piece of evidence, specifically pointing to the guilt of the accused. This is particularly so, as PW2, who

is the sole eyewitness to the incident, had identified the said weapon and PW12 Doctor opined that, the injuries which caused the death of the

deceased could be inflicted with the same. The hostility of witnesses to recovery based on confession statements is a perennial problem; the

acceptability of which has to be evaluated on an assessment of the totality of the circumstances, as discernible from the evidence led in a particular

case.

Another contention put forward by the learned counsel for the appellants is that, no scientific examination has been done by the prosecution, to

prove the fingerprints of the accused on M.O. 1 knife and also to identify the characteristics of the bloodstain found on the same. It is true that no

such exercise has been done by the prosecution, but that by itself cannot be a ground to discard the case advanced by the prosecution. In this case,

there is a reliable eyewitness, namely PW2, who is a natural witness whose presence cannot be doubted at the place of occurrence at the time when

the offence was committed. PW2 is the wife of the deceased and she provided a graphic description of the entire sequence of events that led to the

commission of the crime and the incidents occurred thereafter. Her evidence is clearly corroborated by the evidence of PW1 and PW6 who came to

the place of occurrence after the accident. Since the incident had occurred at 8 PM, in the premises of the residential house where the deceased and

PW2 were residing, her presence is natural and it may not be possible for the prosecution to find out any other witnesses. At this juncture, it is to be

reiterated that, as held by the Hon’ble Supreme Court in various decisions, what matters is the quality of the evidence of the witness and not the

quantity thereof. In this case there is no reason to disbelieve the version of PW2 and on careful scrutiny of the contents of the same, we have no

doubt in our mind that the Sessions Court is completely justified in basing a conviction on the evidence of such a witness.

The learned counsel for the appellants then argues that, even if the entire evidence is taken into consideration, there is absolutely no material to

show the complicity of the 3rd accused in the crime. She points out that, the prosecution has not alleged any specific overt act against the 3rd accused,

but on the other hand he was arraigned as an accused based on Section 34 of IPC alone. She further submits that, the materials produced by the

prosecution do not reveal the sharing of a common intention by the parties, which is the most important ingredient for attracting Section 34. In support

of the said contention, the learned counsel for the Appellants relies on the judgments reported in 2006 (9) SCC 307 (Dhaneswar Mahakud) and others

v. State of Orissa) and 2017(5) KHC 83 (Madhu v.State of Kerala). In Madhu’s case, (supra), a Division Bench of this court held as follows;

“11. …………….. In order to attract S.34 IPC, there should be a common prior concert, which would be capable of even developing on the spur of the

moment or at the scene of the crime. What is important is the meeting of minds of the co - accused that the particular criminal act should be committed. S.34 of IPC

essentially resting on the principle of joint liability in doing a criminal act and the essence of the liability is to be found in the existence of a common intention

animating the accused to do a criminal act in furtherance of such intention. The criteria is the existence of a common intention and the act done in furtherance of

such common intention. The acts may be different in character but must have been actuated by one and the same common intention in order to attract the

provision. It is not necessary that the acts of several persons charged with commission of an offence jointly must be the same or identically similar. The true

purport of S.34 is to extend the liability of the acts done in furtherance of a common intention even in the absence of proof as to what exactly done by each of the

accused. The principle of constructive liability under S.34 thus, in the absence of common intention, cannot be extended. Though S.34 was incorporated in IPC,

the Section really deals with and operate as a rule of evidence and does not create a substantive offence by itself. The principle of vicarious liability enshrined by

S.34 IPC extends only to the extent of common intention shared by the parties and as such an apportionment of liability based on the sharing of the common

intention to the extent possible is permissible. In the absence of common intention the parties are liable only in respect of the act done by them and the

consequences thereof. In other words, the extent of liability is also an issue to be adjudicated based on the sharing of common intention to do a particular act. An

act done by one of the accused exceeding the common intention shared by them cannot be brought under S.34 of IPC. The apportionment of liability amongst the

co - accused would be permissible with the aid of S.34 IPC and the liability of an accused under S.34, therefore, is a matter of inference to be drawn from the facts

and circumstances of each case.â€​

The Honourable Supreme Court in 2020 (10) SCC 516 (Subed Ali and others Vs State of Assam), observed at para 13 as follows:

 “Common intention consists of several persons acting in unison to achieve a common purpose, though their roles may be different. The role may be active or

passive is irrelevant, once common intention is established. There can hardly be any direct evidence of common intention. It is more a matter of inference to be

drawn from the facts and circumstances of a case based on the cumulative assessment of the nature of evidence available against the participants. The foundation

for conviction on the basis of common intention is based on the principle of vicarious responsibility by which a person is held to be answerable for the acts of

others with whom he shared the common intention. The presence of the mental element or the intention to commit the act if cogently established is sufficient for

conviction, without actual participation in the assault. It is therefore not necessary that before a person is convicted on the ground of common intention, he must

be actively involved in the physical activity of assault. If the nature of evidence displays a pre - arranged plan and acting in concert pursuant to the plan, common

intention can be inferred. A common intention to bring about a particular result may also develop on the spot as between a number of persons deducible from the

facts and circumstances of a particular case. The coming together of the accused to the place of occurrence, some or all of whom may be armed, the manner of

assault, the active or passive role played by the accused, are but only some of the materials for drawing inferences â€​

While making a factual analysis of this case, in the light of the principles laid down as per the judgments mentioned above, the crucial aspect to be

verified is whether there exist any element of common intention between the parties during the course of commission of the crime. In this case the

specific case of the prosecution is that, when the deceased was making a loud noise, the accused persons came to the premises of the deceased,

indulged in physical altercation during the course of which, the 1st accused inflicted three stab injuries on the chest of the deceased. The commission

of the act of inflicting stab injuries at the instance of the 1st accused is clearly proved from the evidence available, but the crucial question is whether

the 3rd accused had shared such intention, so as to call it as common intention. Despite scanning through the entire evidence meticulously, we could

not find any specific instance from which any assumption can be drawn as to the pre-designed plan or concert or meeting of minds of the accused 2

and 3, with that of the 1st accused. While considering this issue, the words uttered by the 1st accused during the course of commission of the crime is

very much material. The said words are relating to the disturbance that was being caused by the loud noise created by the deceased, to the daughter

of the 1st accused. Admittedly the 3rd accused or even the 2nd accused who is no more, are not residing in the immediate neighborhood of the

deceased. The chances of any disturbance being caused to them due to the loud noise allegedly made by the deceased was practically nil. Further,

there are absolutely no materials to show the exact relationship between the 1st accused and the other accused persons, so as to draw an inference of

both of them sharing a common intention with the 1st accused. In such circumstances, merely for reason that the 3rd accused was present in the

place of occurrence at the time of commission of the offence, it cannot be concluded that they were sharing a common intention. The words uttered

by the 1st accused during the course of commission of crime, clearly indicate the individual interest of the 1st accused alone, which is very much

personal to himself, and under normal circumstances it could not be a matter of concern for the other accused, unless there are specific materials

pointing out such concerns on their part. As mentioned above, despite meticulous scrutiny of entire materials, we are unable to find any such reasons

for such concerns and hence we do not think that the 3rd accused shared a common intention to commit an offence along with the 1st accused. Mere

presence of the 3rd accused by itself will not attract the rigour of Section 34. In the above circumstances we have no hesitation to hold that the 3rd

accused is not guilty of the offence and to that extent the judgment passed by the Sessions Court is liable to be interfered with.

In the above circumstances, after examining the entire evidence on record, our findings can be summarized in the manner as follows:

(a) The evidence of PW2, who is the sole eyewitness to the incident is convincing, trustworthy and reliable. The said evidence, which is corroborated by the

evidence of PW 1 and PW6, clearly establish the guilt of the 1st accused. The scientific evidence in the form of Ext P7 Postmortem Certificate which is proved by

PW12 is also in tune with the evidence of PW2. PW2 has also identified MO1 weapon and PW12 has categorically stated that injury Nos 3, 4 and 5 mentioned in Ext

P7, could be inflicted by MO1. All these evidence clearly establish the guilt of the 1st accused, beyond any reasonable doubt.

 (b) However, the materials available on record, are not sufficient to establish the sharing of a common intention to commit the murder of the deceased, between the

accused persons. The immediate reason for commission of the crime is evidently the disturbance caused by the victim, to the daughter of the 1st accused and it is so

personal in nature to the 1st accused alone. It is not possible to impute the sharing of common intention by the 3rd accused, in the absence of specific materials

pointing to the same and hence it cannot be concluded that the prosecution has succeeded in establishing the 3rd accused guilty of the offence.

In such circumstances, this appeal is allowed in part, by confirming the conviction and sentence imposed upon the 1st appellant/ 1st accused and

finding the 2nd appellant/3rd accused not guilty of the offence alleged against him. The 2nd appellant/3rd accused shall be set at liberty forthwith; if he

is not required in any other case.