Sree Kumar @ Thampi, Sahadeva Panicker and Anil Kumar @ Ani vs State of Kerala

P. Bhavadasan, J.—What started as an innocuous rebuke, snow balled into a feud, resulting in the death of a merchant and landing three other persons, father and two sons, the male members of a family, being put on trial for the offences punishable under Sections 342, 324 and 302 read with Section 34 of Indian Penal Code. They were found guilty of all the offences. They were therefore convicted and sentenced to suffer imprisonment for life and pay fine of Rs. 50,000/- each, in default of payment of which, to suffer rigorous imprisonment for a further period of two years for the offence punishable u/s 302 read with Section 34 IPC. They were also sentenced to suffer rigorous imprisonment for six months for the offence punishable u/s 342 read with Section 34 IPC. No separate sentence was awarded for the offence punishable u/s 324 IPC. The substantive sentences were directed to run concurrently. It was also directed that if the fine amounts were realised, the entire amount shall be given to the widow and daughter of the deceased in equal proport8ion u/s 357 (1)(b) of Criminal Procedure Code.

The deceased, namely, Mohanan, and the accused were merchants carrying on business in Peroorkada market at Trivandrum. Late Mohanan was engaged in the business of plantains and bananas. The first accused, namely, Sreekumar, was new in that field and he had started his business in plantain and banana about two months ago. On the date of the incident, A1 was seen selling plantains and bananas at a reduced price than the other merchants in the market. This annoyed deceased Mohanan and he questioned the conduct. Exchange of words followed and finally both were infuriated. The prosecution allegation is that the second accused, who is the father of first and third accused beat Mohanan with an iron rod. By that time, the third accused had also arrived at the spot. The second accused is alleged to have beaten the deceased on the left shoulder with the iron rod. Late Mohanan fell down. When he tried to get up, his hands were held by second and third accused and the first accused is alleged to have stabbed Mohanan with M.O.1 knife. The brother of the deceased, namely, Suku came to the aid of the deceased. Two other persons, who were carrying on business in the market, namely, Sasi and Asokan removed the injured to the hospital in an autorickshaw. P.W.1 and another person by name Salim went to the Medical College Hospital. When they reached the place, they found that Mohanan was no more. The allegation is that there was a quarrel between the deceased and the first accused regarding the sale of bananas and plantains in the market. P.W.1 laid Ext.P1 first information statement before Peroorkada Police Station. C.W.19 recorded the first information statement furnished by P.W.1 and registered Crime No. 100 of 1998 of Peroorkada Police Station for the offences punishable under Sections 342, 324 and 302 read with Section 34 IPC as per Ext.P1(a) FIR. P.W.10, the Circle Inspector of Police took over investigation on 7.5.1998. He went to the medical college hospital and conducted inquest over the body of late Mohanan and prepared Ext.P2 inquest report. Thereafter the body was sent for postmortem. P.W.9, the then Lecturer in Forensic Medicine and Assistant Police Surgeon, Medical College Hospital, Thiruvananthapuram conducted autopsy on the body of Mohanan and prepared Ext.P7 postmortem report. Meanwhile P.W.10 inspected the place of occurrence and prepared Ext.P4 scene mahazar. He seized M.Os. 1 to 6 from the place. He claims to have arrested the accused on 7.5.1998 at 4 p.m. According to him, on the basis of Ext.P5 confession statement said to have been given by the first accused, M.O.1 knife was recovered as per Ext.P5 mahazar. He also claims that on the basis of Ext.P6(a) confession statement said to have been given by the second accused, M.O.2 iron rod was recovered as per Ext.P6 recovery mahazar. He filed Ext.P9 report showing the details of the accused. He had the articles seized during investigation sent for forensic examination and obtained Ext.P10 report. He recorded statements of witnesses. Investigation was completed by P.W.8 and final report was filed by him.

Judicial First Class Magistrate II, Thiruvananthapuram, before whom, the final report was laid, took cognizance of the offences. On appearance of the accused before the said court, all legal formalities were completed. Learned Magistrate found that the offence was one exclusively triable by a Sessions Court and therefore committed the case to Sessions Court, Thiruvananthapuram u/s 209 Criminal Procedure Code. The Sessions Court made over the case to the II Additional Sessions Court, Thiruvananthapuram for trial and disposal. On appearance of the accused before the said court, after preliminary hearing charge was framed for the offences punishable under Sections 342, 324 and 302 read with Section 34 IPC. When charge was read out to them, the accused pleaded not guilty and claimed to be tried. The prosecution therefore had P.Ws. 1 to 10 examined and Exts.P1 to P10 marked. M.Os. 1 to 7 were also got identified and marked. After the closure of the prosecution evidence, the accused were questioned u/s 313 Cr.P.C..

The first accused had stated that he had commenced his business in plantains and bananas about a month prior to the date of the incident. According to him, that was not to the liking of other merchants, who were dealing in the same commodity. He would state that on the date of the incident in the evening a few people, to whom the deceased owed money came to his shop and created problems. At that time, he was selling the commodity at a lower price. That was questioned by the deceased. A1 told the deceased that he would take care of his affairs. That, according to the first accused, annoyed Mohanan, who snatched the knife and slashed it at the first accused. According to the first accused, at that time somebody beat Mohanan and the knife fell from his hand. By that time, electric supply had gone. There was a commotion involving several persons. He would claim that by about 7.30 p.m. on the date of the incident he was called to the police station by the Circle Inspector. Next day he was produced before court. A1 claims that only at that point of time he came to know that he had been arrayed as an accused. He says that he had not committed any act, which would constitute an offence and that he is innocent.

Second accused said that he was asked to go to the police station on the date of the incident and all the three of them were detained in the station. He claims to be innocent.

Accused No. 3, in his turn submitted that he too was asked to go to the station and he went there. Later he came to know that he was arrayed as an accused. He too would claim to be innocent.

Finding that the accused could not be acquitted u/s 232 Cr.P.C., they were asked to enter on defence by the trial court. They chose to adduce no evidence. On a careful appreciation of the evidence in the case, the court below came to the conclusion that the prosecution had succeeded in establishing the acts alleged to have been committed by the accused and held them guilty of all the offences. Conviction and sentence as already mentioned followed. The said conviction and sentence are assailed in this appeal.

Two main questions arose for consideration in this appeal. They are:

(1) Whether the prosecution has succeeded in establishing the acts attributed to the accused?

(2) What if any are the offences committed by the accused?

Point No. 1 : The unfortunate incident occurred on 6.5.1998 at about 7 p.m. at Peroorkada, Thiruvananthapuram. The deceased as well as accused Nos. 1 to 3 were business men carrying on business in the same market. The third accused was helping the second accused in the shop run by the second accused. About a month or two before the date of the incident, the first accused had commenced business in plantains and bananas in a shop situate on the opposite side of the shop owned by late Mohanan. It is alleged that the first accused used to sell plantain and bananas at a lower price, thereby affecting the business of other merchants in the market dealing in plantain and banana. They took objection to the conduct of the first accused. On the date of the incident, it is stated that Mohanan took objection to the conduct of the first accused selling banana at a lower price than other merchants in the market. There was exchange of words between the two and the prosecution would allege that after the attack by A2 and A3, late Mohanan was stabbed by the first accused.

The fact that Mohanan''s death was homicidal and was caused as a result of knife injury are facts which are not in dispute at all. P.W.10 had conducted inquest and prepared Ext.P2 inquest report. P.W.9 P.W.9 had conducted autopsy on the body of late Mohanan and prepared Ext.P7 report. Ext.P7 report shows the anti mortem injuries found on the body of late Mohanan. Injury No. 1 causes the death of Mohanan.

P.W.1 was working with Mohanan in his shop. He says that the incident had occurred on 6.5.1998 at about 7 p.m. The incident, according to him had took place inside the market. On the date of the incident at the relevant time he would depose that the first accused was selling bananas and plantain at a lower price than the other merchants in the market. The deceased is stated to have asked the first accused that if he is selling for a lower price, he would have to do it every day. This, according to P.W.1, invoked abuses from the first accused. According to this witness, when the first accused showered abuses and also referred to the mother of Mohanan, the latter took objection to the said conduct. At that time, according to this witness, the second accused, who is the father of first accused is said to have beaten the deceased on the left shoulder with M.O.2 iron rod. Receiving the blow Mohanan fell on his back. When he got up, he was again beaten by the second accused. He again fell down. When he got up, second and third accused are said to have caught hold of both his hands. Even though Mohanan tried to extricate from the hold of A2 and A3, he was unsuccessful in his attempt. At that time, the first accused came with a knife from his shop and stabbed the deceased twice. When P.W.1 got out of the shop, he claims, that, the accused ran away. The incident according to him occurred on the side of the shop run by the deceased. By that time, the brother of the deceased, namely, Suku, arrived at the spot and the injured was removed to Medical College Hospital at Thiruvananthapuram. When the injured reached the hospital, he was pronounced dead. This witness would depose that previously also there had been quarrels between the two regarding the matter. This witness would also say that A2 also runs business in the same market. He identified M.O.1 as the knife used by A1 and M.O.2 as the iron rod used by the second accused. He says that he had gone to Peroorkada Police Station and furnished Ext.P1 first information statement.

P.W.2 is another merchant running business in vegetables and fruits in the same market. He says that Mohanan and the accused are familiar to him. The incident had occurred on 6.5.1998 by about 7 p.m.. P.W.2 at the relevant time was attending to the business in his shop. Then he claims to have heard a commotion from the rear side of the shop. He went to the place. He then found A2 and A3 holding the hands of the deceased. He further deposed that he saw the first accused coming with a knife and stabbing late Mohanan. He would also depose that at the relevant time A2 had an iron rod with him. By that time Suku, the brother of the deceased had arrived at the spot. P.W.2 claims that he, with the aid of Suku took the injured to the main gate of the market. Thereafter, he along with one Asokan claims to have removed the injured to the hospital. On reaching the Medical College Hospital, doctor had examined Mohanan, and found him dead. He would also depose that the reason for the incident was the quarrel between the deceased and the first accused regarding the price at which plantains and bananas were being sold by the first accused. He too identified M.Os. 1 and 2.

P.W.3 runs business in chips in the same market. He too would depose that the incident had occurred on 6.5.1998 by about 7 p.m. inside the market. He used to purchase banana and plantain for his business from one Gopan. On the date of the incident, he was returning after giving money due to Gopan. He heard the first accused hurling abuses at the deceased. There was exchange of words between them. He says that at that time he saw the second accused coming to the place with an iron rod. He would depose that the second accused had beaten the deceased on his left shoulder. He was again beaten with an iron rod. Receiving the blows, according to this witness, Mohanan fell down. This witness would also depose that Mohanan tried to get up and run away from the place. At that time he had occasion to see A2 and A3 holding the hands of Mohanan. According to this witness, he had seen Sreekumar, the first accused, stabbing Mohanan with M.O.1 knife. He was taken to the hospital by Sasi and Suku.

The other witnesses are not much importance in this case. The lower court chose to believe the oral evidence adduced by P.Ws.1 to 3. The court below had also found corroboration of their testimony from other evidences in the case.

Learned Counsel appearing for the appellants pointed out that the court below has not critically analyzed the evidence and had acted mechanically. According to the learned Counsel, P.W.1 was an employee of the deceased. P.Ws. 2 and 3 are untrustworthy. Learned Counsel pointed out that it is clear from the records that several other persons were available at the place of the incident, who, are impartial, but they had not been examined. Learned Counsel pointed out that a close scrutiny of the evidence will show that the incident had occurred not in the manner alleged by the prosecution and a distorted version had been given before the court. Learned Counsel also pointed out that if one properly appreciates the evidence in the case, it can be found that a lot of things have been concealed. It is also pointed out that going by the evidence adduced by the prosecution, it is not possible to come to the conclusion that even assuming that late Mohanan was stabbed by the first accused, the first accused had done the said act in furtherance of the common intention shared by the accused. Learned Counsel emphasized that even going by the evidence, the incident had occurred on the spur of a moment and therefore question of applying Section 34 IPC does not arise. At worst, according to the learned Counsel, each of the accused would be liable for his individual acts.

Learned Public Prosecutor on the other hand contended that the evidence is clear regarding the acts committed by the accused persons. Learned Public Prosecutor pointed out that the court below has critically analyzed the evidence in the case and had come to the right conclusion. Merely because some of the witnesses have not been examined is not a ground, according to the learned Public Prosecutor to reject the prosecution case. He pointed out that the defence was unable to show that they were prejudiced by the non-examination of any of the witnesses cited by the prosecution.

The fact that the incident had occurred in a market was highlighted by the Public Prosecutor and stressed that all the aspects have been considered by the lower court. According to him, there are no grounds to interfere with the conviction and sentence passed by the court below.

As could be noticed, the prosecution relies on the evidence of P.Ws.1 to 3 to prove the incident. P.W.1 is an employee of the deceased. He gives a version of the incident, which gets support from the evidence of P.W.3 also. As far as P.W.2 is concerned, a reading of his entire evidence would create some doubt regarding his testimony. It is true that in the chief examination he speaks about the incident in consonance with the version given by P.Ws.1 and 3. But, in cross examination his attention was drawn to the previous statement. He denied having given the statement marked as Exts.D1 to D4 to the investigating officer. Going by Exts.D1 to D4, it could be seen that he has only hearsay knowledge about the incident. There is no reason as to why the investigating officer should have recorded the statements such as Exts.D1 to D4, if actually they were not given by P.W.2. Moreover a reading of the evidence of P.W.2 would also show that he was anxious and enthusiastic to depose against the accused. An evaluation of his evidence would show that his presence at the spot at the time of the incident is doubtful. Going by his previous statement it would appear that he had come to the spot after the incident and had learnt the details of the incident from others.

Even assuming that the court could not depend upon the evidence of P.W.2, the evidence of P.Ws. 1 and 3 stand on a different footing. No special reasons are given as to why they should falsely implicate A1 to A3. It is true that going by the evidence of P.Ws.1 to 3 it could be seen that the first accused was a novice in the business of bananas and plantains. Even though the defence case is that the act of the first accused annoyed the other business men in bananas and plantains in the market does not appear to be very correct. Of course, there is evidence to show that there used to be exchange of words between the deceased and the first accused. The father of the first and third accused, namely the second accused, was also conducting a business in the same market. That was slightly away from the place of occurrence. As per the evidence, A3 was helping A2 in his business. From the evidence it could be seen that there were a few other persons who had been doing business as the one being carried on by the first accused and the deceased.

There can be no doubt regarding the place of occurrence. The place of occurrence is spoken to by P.Ws. 1 to 3. Ext.P4 is the scene mahazar and Ext.P3 is the plan prepared by the Village Officer. It is true that all the shops in the market have not been shown in Ext.P3. However, from both Exts.P3 and P4 it could be seen that the shop of the first accused is situated on the opposite side of the shop of the deceased. To be exact on the northern side of the shop of A1, separated by a passage in between. According to P.W.1, the shop of the first accused is situated about ten feet from the shop owned by the deceased. It is significant to notice that both the shops of A1 as well as that of the deceased have access from three sides. The incident, according to the witnesses, occurred on the southern side of the shop owned by the deceased. P.W.1 has stated that the incident occurred behind the shop of the deceased. The shop of the deceased and the first accused is separated by a pathway, which has a width of six feet. The scene of incident is marked as I in Ext.P3 plan. The investigating officer was able to spot blood stains at the place of occurrence. The lower court in its judgment has observed that no argument was in fact advanced by the defence highlighting any significant aspect, which would show that the place of incident is not as shown in Exts.P3 and P4 and as spoken to by the witnesses and investigating officers.

According to the defence, the evidence of P.W.1 is open to serious doubt. It has come out in evidence that he is related to the deceased and he is also an employee of the deceased. According to the learned Counsel for the appellant, if as a matter of fact P.W.1 was present at the place at the time of the incident, it is inconceivable that he would have remained passive seeing the attack on his employer. If in fact he was present, he would have certainly run to the aid of the deceased. His passive attitude is quite an unnatural conduct and it will not therefore be proper to rely on his evidence.

Though the argument taken by the defence may look attractive at the first blush, on a close scrutiny of the evidence, it can be found to be without basis. The evidence of P.Ws. 1, 2 and 3 are clear to the effect that the incident had taken place at the spur of the moment. Nobody had anticipated that such an incident would happen. On a reading of the evidence it could be seen that it was usual in the market to hurl abuses and use foul language at each other on various occasions. Everybody took the rebuke by the deceased on the date of the incident in the same manner as was done before. None had the expectation that it would soon turn into an incident as alleged by the prosecution. The evidence is also to the effect that soon after the incident took place, the brother of the deceased reached the place. At the risk of repetition one may notice that even before P.W.1 could respond the incident had occurred. It is not in the contemplation of anybody that a usual rebuke would result in such an unfortunate incident. If as a matter of fact, the initial act were of serious nature, one would have expected P.W.1 to react immediately. Moreover, P.W.1 has offered his explanation as to why he did not interfere when the attack was made on his employer, the deceased. It is not a case where P.W.1 or anybody in the market could have expected that the incident would take a serious turn. Such exchange of words as was happened on the date of the incident used to occur between the first accused and the deceased. Since P.W.1 has been able to offer convincing and acceptable reason for his non-interference in the incident, it cannot be said that his evidence is open to serious doubt.

There is no infirmity pointed out by the appellants regarding the evidence of P.W.3. As already noticed, even assuming that one has to eschew the evidence of P.W.2, there is consistent and cogent evidence adduced by P.Ws.1 and 3. No convincing reasons are given as to why their evidence should be discarded.

It is pointed out that even going by the prosecution evidence, several persons had gathered at the spot. If as a matter of fact the incident had taken place as alleged by the prosecution, there is no reason as to why any one of them could not have informed the police soon after the incident?

The question appears to be legitimate. The evidence on record shows that as soon as the incident took place, the brother of the deceased Suku had reached the place. It should be remembered that the incident was quite unexpected and had taken place at the spur of the moment. The injury suffered by the deceased appeared to be serious one and the immediate concern was to ensure that he was taken to the hospital in an attempt to save him. It is true that P.W.1 had not gone along with the deceased to the hospital. But the evidence would show that at the time of the incident, P.W.1 was alone in the shop owned by the deceased. He could not leave the place immediately. Soon after the incident P.W.1 had reached the hospital and was told that Mohanan was no more. He had then immediately left to the police station and furnished First Information Statement. Even assuming that P.W.1 was present at the spot, his initial anxiety would be to see that Mohanan, the deceased survives. Under that circumstance if there was some delay in lodging the First Information Statement, he cannot be found fault with. It is also to be remembered that A2, the father of the first accused had been running business in the same market for a long time. If the other business men in the market did not feel that police should be informed forthwith, it cannot be a ground to doubt the prosecution version of the incident.

Another aspect highlighted by the defence was that going by the evidence, Suku, the brother of the deceased and P.W.1 had accompanied the deceased to the hospital. It is also in evidence that P.W.2 had helped the deceased to be mounted in an autorickshaw. According to the defence as soon as the injury was suffered by the deceased, he had started bleeding. If the case of the prosecution is correct, then the clothes of P.W.2 ought to have been stained with blood.

True the evidence of P.W.2 shows that he had helped the deceased to be mounted in the autorickshaw. The fact that the deceased was immediately taken in an autorickshaw to a hospital is not disputed. It is not always necessary that dress of the person, who had helped the deceased to be mounted in an autorickshaw to be taken to the hospital, to be stained with blood. That depends upon several facts. There is some evidence to show that as soon as the injury was suffered by the deceased, an autorickshaw had been fetched. It could be that the bleeding started after the injured was mounted in the autorickshaw. The mere fact that the prosecution has not produced blood stained clothes of P.W.2 cannot by itself a ground to say that the prosecution case should be thrown out.

The evidence available in the case discloses that Suku, the brother of the deceased, reached the spot immediately after the incident. He, according to P.W.2, had taken the deceased to the hospital. P.Ws.1 and 3 did not claim that they had accompanied the deceased to the hospital. As already stated, at the relevant time P.W.1 was all alone in the shop owned by the deceased. If he thought it not fit to leave the shop, he could not be found fault with. The evidence shows that soon after the incident P.W.1 had closed his shop and gone to Medical College Hospital. It is also seen from the records that the injured was taken to the hospital by P.W.2 and one Asokan along with the brother of the deceased. If as a matter of fact, P.W.3 did not feel it proper to accompany the deceased to the hospital, he could not be found fault with. He too was running a business in the market. The mere fact that he had neither accompanied the deceased nor had gone to the police station immediately does not make his evidence doubtful. It could not be said that the evidence of P.Ws. 1 and 3 were unnatural viewed in the light of the facts on record.

It was then contended that going by Ext.P1 it could be seen that two other persons, namely Salimraj and Asokan were present at the place of the incident. According to learned Counsel for the defence, they were two independent persons, who should have been examined by the prosecution. Non-examination of these two persons, according to learned Counsel for the defence, shows that material evidence has been withheld from the court. According to the learned Counsel it is significant to notice that their names appear in Ext.P1 FIS itself.

Though the argument may seems to have much force, it is without substance. A reading of Ext.P1 and the evidence of P.W.1 could show that Salimraj was a employee of the deceased. It is true that P.W.1''s evidence would show that he was present in the shop at the relevant time. The prosecution has offered explanation for the non-examination of Suku, who is the brother of the deceased. There seems to be some substance in the claim of the prosecution for non-examination of the brother of the deceased, namely Suku. There is nothing in the evidence to show that Asokan had actually seen the incident. May be that he had come to the spot immediately after the incident. It is not necessary that the prosecution should examine all the witnesses, who are cited by them. If Salimraj had been examined, criticism would be that he is an employee of the deceased like P.W.1 and that he is an interested witness. Moreover, there would have been nothing more for Salimraj to depose than what was deposed to by P.W.1.

It is not the number of witnesses that is the criteria. It is well settled that it is not the quantity of evidence, but the quality that matters. There is no rule that a minimum number of witnesses will have to be examined by the prosecution. The attempt should be to see if the available evidence support the prosecution case and whether the same is sufficient. Of course, withholding of material witnesses may be significant, if it could be shown by the defence that they have been prejudiced by the said act of the prosecution. If the evidence of those witnesses is essential to establish the prosecution case, then the non-examination of those witnesses is fatal. If as a matter of fact the prosecution is able to establish its case by the evidence of persons who are examined, the mere non-examination of other witnesses will not be a ground to reject the prosecution case. There is nothing to indicate that the prosecution had any ill motive in withholding the other witnesses in the case. It is also not possible to understand what prejudice has been caused to the defence by the non-examination of Salimraj, Asokan etc. Therefore, this ground too does not have much substance.

A contention was taken that though the first information statement was lodged on 6.5.1998 and Ext.P1 FIR had been drawn up, the same has reached the court only on 8.5.1998. This delay according to the defence causes considerable doubt about the prosecution case. According to the defence this shows that there could have been deliberation and consultation before FIS has been lodged and also that FIS has not been lodged at the time as indicated in Ext.P1.

The court below has considered this aspect in detail.

It is true that FIR and the FIS should be forwarded to the Magistrate concerned forthwith. From the judgment of the court below, it is seen that 7.5.1998 was a Sunday. It is also true that merely because 7.5.1998 was a Sunday and a holiday, it does not mean that Exts.P1 and P1

(a) should not have been forwarded to the Magistrate concerned. One may notice that the words used in the provision is ''the Magistrate'' and not ''the court''. Technically saying therefore the FIR should have been placed before the Magistrate soon after it was registered. However, there is nothing to indicate that there were deliberations and consultations and also that there was a conscious attempt to give a different version of the incident. Merely because Exts.P1 and P1(a) were forwarded to the Magistrate only on 8.5.1998 by itself may not be a ground to reject the prosecution case or to come to the conclusion that it is a fabricated and concocted one.

The evidence of P.W.10, the investigating officer, shows that the knife was recovered based on Ext.P5(a) confession statement said to have been given by the first accused. Based on the said statement, knife was recovered from a heap of waste near the gate of the market. Recovery is recorded in Ext.P5 mahazar. Chemical analysis report shows that it contained blood stains of ''O'' group, which matches with the blood group of the deceased. It is significant to notice that the report also shows that blood collected during the postmortem examination of the deceased also is of the same group. The recovery gets support from the evidence of P.W.7 also. The evidences of P.Ws.10 and 7 also show that M.O.2 iron rod was recovered as alleged by the prosecution. That was based on the confession statement said to have been given by the second accused. The slight difference in the date in Ext.P6 mahazar had been convincingly explained by P.W.10.

It is pointed out that the investigation of the case was conducted only till 9.5.1998. But the charge was laid before the court concerned only on 8.5.2001. There is no acceptable reason provided by the prosecution for the long delay in filing the final report, which makes the prosecution case suspect.

It is true that there is considerable delay in filing the final report after the investigation was completed on 9.5.1998. However, the records indicate that Ext.P3 plan was prepared much later and so also the receipt of chemical analysis report. Probably those would have been the reasons for the delay in filing the final report. Even assuming that there was lack of interest on the part of the investigating agency to immediately file the report, that by itself is not a ground to reject the prosecution case. As earlier noticed, in this regard also nothing is shown to indicate that the accused have been prejudiced by the conduct of filing the final report belatedly.

It is to be mentioned that a feeble plea of self defence was also taken. However, no arguments were advanced in this regard, and there is nothing to indicate that the said aspect needs to be considered at all.

It could thus be seen that the contentions taken by the defence do not have much weight. Of course the defence is able to create some minor doubts. But those by themselves are insufficient to reject the prosecution version of the incident.

It is significant to notice that it was the evidence of P.Ws.1 to 3 and other items of evidence which had persuaded the court below to hold against the accused. At the risk of repetition, even assuming that the evidence of P.W.2 is to be viewed with suspicion, there are no reasons shown as to why the other evidence in the case is to be rejected. No acceptable reasons are given as to why the finding of the court below that the prosecution has succeeded in establishing the acts alleged against the accused, should be interfered with. It is only to be held that the prosecution has succeeded in establishing the alleged acts of the accused.

Point II: What now remains to be considered is what are the offences committed by the accused. One may recapitulate the sequence of events.

It is not in dispute that the incident had occurred in a market. There was a rebuke by the deceased of the first accused. The evidence adduced by the prosecution would show that that was usual in the market. There is nothing to indicate that the deceased and the accused were at logger heads. There is nothing to show that the accused had been nursing vengeance against the deceased. Even going by the prosecution evidence, the deceased had been conducting business in plantains and bananas for a long period in the market. It is also in evidence that the first accused was a novice in that business. Probably the act of the first accused in selling bananas and plantains at a lower rate might have annoyed the deceased and might have created a doubt in his mind that the said act of A1 might affect his business. The whole thing started when the deceased questioned the act of the first accused. The evidence is to the effect that the first accused used foul language at Mohanan. The latter had taken objection to the same. Going by the prosecution evidence at that point of time the second accused came with an iron rod and beaten the deceased. It is not possible to understand from the prosecution evidence as to what have prompted the second accused to come to the spot with an iron rod. The evidence also discloses that the second accused was followed by the third accused. It is true that A2 was also running a business in the same market. But the evidence discloses that his shop was near the gate of the market. There is no dispute regarding the fact that the whole thing started when deceased Mohanan questioned the act of the first accused. The evidence also discloses that Mohanan had questioned the act of A1 while he was sitting in his shop.

There is no evidence at all to show that the attack was made on the deceased inside his shop. The place of occurrence, according to P.W.1, was in front of the shop of the deceased. It is on the south eastern side of the shop owned by the deceased. It is not discernible from the evidence as to what had prompted Mohanan to come out of the shop. Of course there is a suggestion by the defence that the incident had occurred when late Mohanan had rushed towards the first accused with a knife in his hand. There is want of evidence in that regard. But the fact remains that something else had occurred in the place of the incident, which brought A2 and A3 to that place. The prosecution case was that there was a commotion at the place of incident and that had brought A2 and A3 to the scene anticipating problem. One must remember here that going by the prosecution evidence A2 had come to the spot with an iron rod. But if as a matter of fact the deceased was so innocent, there was no necessity for the second accused to come to the spot with an iron rod. It is therefore clear that something more had happened at the place of incident, which has not been revealed by the prosecution. According to the prosecution, the second accused, as soon as he reached the place of incident, beat the deceased with M.O.2 iron rod. Obviously there would have been some reason for A2 to come to the spot with an iron rod and assault the deceased. Recalling the evidence in the case, that exchange of words that took place between the deceased and the first accused being usual in the market, that could not have brought A2 to the scene with a weapon. Going by the evidence of P.W.2, it could be seen that he saw several persons rushing to the spot and thereafter when he reached the place he learnt about the incident. It is also significant to notice that initially the first accused did not have knife with him. Going by the prosecution case, it was after A2 and A3 had come to the spot and after A2 had inflicted blows, A1 had gone to his shop and returned with a knife. As already noticed there must have been some provocation from the deceased or someone else, which caused apprehension in the mind of A2 and A3 and which prompted A2 to come to the spot armed with a weapon. Even going by the prosecution evidence, the incident had occurred at the spur of the moment and nobody had anticipated the incident. Thus accepting the prosecution case as spoken to by the witnesses, there is nothing to indicate that the acts said to have been committed by the first and second accused were as a result of premeditation or pre-arrangement shared by the accused persons.

It is true that going by the evidence, the first accused had inflicted two stab injuries on the deceased and also that the second accused had beaten the deceased with M.O.2 iron rod. It has already been noticed that there should have been some reason for the second accused to come to the spot with an iron rod and that link is missing in the prosecution case. Since the shop of the second accused was far away from the place of incident unless he was informed about the incident, he could not have come there. That would indicate that something had happened in the place which has been concealed by the prosecution and which prompted the second accused to come to the place armed with an iron rod. It is also significant to notice that the third accused did not come along with the second accused, but he came a little while after A2 had reached the place.

The court below was much impressed by the fact that the second and third accused had caught hold of the hands of the deceased and thereafter the first accused inflicted stab injury on him. The first stab injury was inflicted near to the left armpit of the deceased. The second injury was on the left side of the chest above his nipple. The first injury was a fatal one. If as a matter of fact the act committed by the first and second accused were the result of a common intention, obviously A1 would have come to the place armed. It is significant to notice that the evidence discloses that there was a commotion and exchange of words at the place of the incident. At the risk of repetition, one may notice that the evidence seems to show that the second accused had some reason to come to the spot. One has to suspect the prosecution case that deceased Mohanan was totally innocent. One must also remember that deceased Mohanan had been conducting business in the market for a long time. He was a familiar person in the area. It is difficult to accept the prosecution case that the accused acted in the manner as they did merely because Mohanan had taken objection to the words used by the first accused against him when he had questioned the act of the first accused. There is absolutely no evidence to show that the acts stated to have been committed by the second and third accused were in furtherance of the common intention shared by the accused. May be that the first accused had acted excessively. But one cannot omit to note that it was much later that the first accused had returned to the place of incident with a knife. There is nothing to show that initially the first accused was armed. It is significant to notice that it was only after A2 and A3 had reached the spot and caught hold of Mohanan that A1 had gone to the shop and returned with a knife. There is nothing to show that a common intention was developed at the spot. It is here that one has to recall the evidence of other prosecution witnesses that there was a commotion at the place of incident. Obviously something must have happened in the place, which the prosecution is not willing to reveal, which could have caused apprehension in the mind of the accused and which would have prompted the first accused to return with a knife from his shop. At any rate there is nothing to show that the accused had committed the act in furtherance of a common intention or pre- arrangement. If that be the position, the prosecution could not take the aid of Section 34 IPC to fasten liability on all the accused for all the acts said to have been committed by the accused persons. Therefore, even assuming that the entire prosecution case is true, the accused could be made liable for their individual acts. There is nothing to indicate that A2 and A3 caught hold of the hands of Mohanan to facilitate the first accused to inflict stab injury. The court below was inclined to hold that there was common intention since the stab injury was inflicted after A2 and A3 had held the deceased by his arms. There is nothing to indicate, as already stated, that the act of A2 and A3 in holding the deceased was in furtherance of the common intention so that A2 could inflict injury on the deceased. It is also not possible to assume from the evidence available that the accused had shared a common intention. It is not possible therefore to accept the finding of the court below that the act of the first and second accused was the result of a pre-arranged plan or scheme. There is nothing to indicate that the accused could have anticipated the incident, that took place in the market on the particular day. The evidence is found wanting to show that the accused had the common intention and in furtherance of that intention that the assault was made on the deceased. To this extent it is not possible to accept the finding of the court below.

Since it has been found that the acts committed by the first and second accused are not in furtherance of a common intention, as already noticed, they could be made liable only for their individual acts. Recapitulating the prosecution evidence and the sequence of events, initially the second accused comes to the place armed with an iron rod and inflicted blows on the deceased. It was thereafter the third accused had reached the spot. Thereafter they caught hold of the hands of Mohanan. It was thereafter the first accused had gone to his shop and returned with a knife. There is nothing to show that the second and third accused could anticipate that the first accused would return with a knife and stab the deceased. It is also significant to notice that the incident had taken place at the spur of the moment. Of course, common intention can develop at the spot also. But there is no evidence in this case to establish that fact. There is no proved act by A2 and A3, which had prompted the first accused to cause stab injury on the deceased.

There is also nothing to show that the first accused had any intention to cause the death of the deceased. It is no doubt true that the fatal injury was inflicted on the vital part of the body and it was a severe injury. In fact the cause of death is the stab injury. It is difficult to accept that the said stab injury was inflicted deliberately. However, knowledge must be attributed to the first accused that his act could result in a serious consequence. Considering the entire facts and circumstances of the case and also the fact that the incident had occurred at the spur of the moment, the act of the first accused could be brought only under Part II of Section 304 IPC.

As far as second and third accused are concerned, there is nothing to show that they had shared common intention with the first accused, as a result of which the first accused had acted in the manner he did. The evidence would show that the second accused had inflicted blow using M.O.2 iron rod. That indeed is a dangerous weapon. It is also seen from the evidence that he had restrained the deceased. If that be so, he is guilty of the offence punishable under Sections 324 and 341 IPC.

As far as third accused is concerned, the accusation against him is that he had restrained the deceased by holding his hands. There is nothing to show that he had shared common intention either with the first accused or with the second accused as a result of which A1 and A2 had committed the excessive acts. He could be held guilty only for the offence punishable u/s 341 IPC.

To the above extent, the judgment of the court below needs to be interfered with.

In the result the appeal is partly allowed as follows:

1) Conviction and sentence passed by the court below u/s 302 read with Section 34 IPC against the accused persons are set aside and they are found not guilty of that charge.

2) The first accused is convicted for the offence punishable u/s 304 Part II and he is sentenced to suffer rigorous imprisonment for a period of ten years and to pay a fine of Rs. 30,000/-, in default of payment of which, he shall suffer rigorous imprisonment for a period of one year.

3) The second accused stands convicted for the offence punishable u/s 324 IPC and he is sentenced to suffer rigorous imprisonment for a period of three years and to pay a fine of Rs. 10,000/-, in default of payment of which, he shall suffer simple imprisonment for a further period of one year.

The second accused is convicted for the offence punishable u/s 341 IPC and he is sentenced to suffer simple imprisonment for a period of one month and to pay a fine of Rs. 500/-, in default of payment of which, he shall suffer simple imprisonment for a further period of one month.

Substantive sentences, as against the second accused, shall run concurrently.

The third accused stands convicted for the offence punishable u/s 341 IPC and he is sentenced to suffer simple imprisonment for one month and to pay a fine of Rs. 500/-, in default of payment of which, he shall suffer simple imprisonment for ten days.

The amount, if realised, shall be paid to the legal heirs of the deceased as contemplated u/s 357(1)(b) of Criminal Procedure Code.