Point of Law: Murder case - Conviction - murder of deceased which is proved beyond any reasonable doubt against A1 - But at the same time the Prosecution could not prove any overt act or active involvement of any of the other accused

JUDGMENT :

M.R.Anitha, J.

1. These appeals are filed by accused Nos.1 to 5 in S.C.No.247/2007 on the file of the Additional District and Sessions Court-VI, Kollam.

2. Prosecution case can be summarized as follows: Radhakrishna Pillai, the victim was a non-resident who used to hire the autorickshaw of the first accused whenever he comes home on leave. When he came home, at this particular instance, he did not hire that autorikshaw, for reason of which first accused had enimity towards him. Out of that enmity, on 14.01.2005 at 7 p.m first accused came to the shop of PW1, the brother of the deceased and there was an altercation between the first accused and PW1. On the same day at 8 p.m first accused came again and abused PW1 and his brother. Later at 8.15 p.m the first accused along with the other accused, in furtherance of their common object to assault PW1 and to do away with the deceased, trespassed into the varandah of the shop of PW1 bearing No.III of 214 of Velluva Panchayath. Accused No.2 to 10 hit PW1 and deceased with hand and first accused stabbed the deceased with MO1 knife repeatedly on his chest on the left side and abdomen. The injured was taken to the Medical College Hospital, Thiruvananthapuram and was declared dead at 10.30 p.m.

3. PW1 lodged the FIS at 1 a.m on 15.01.2005 and PW17 the Sub Inspector of Police, Kadakkal Police Station registered the FIR and conducted initial investigation. PW19, the Circle Inspector of Police, Kadakkal took over and conducted major part of investigation. Pw18 conducted a part of investigation and Pw20 verified the records and filed the Charge Sheet against the accused.

4. On the side of prosecution, PWs 1 to 20 were examined and Exts.P1 to P48 were marked and MOs 1 to 14 were identified and marked. Exts.D1 to D4 were marked from the side of defence. Thereafter, on hearing both sides, learned Additional Sessions Judge acquitted accused Nos. 6 to 10. Accused Nos.1 to 5 -the appellants in these appeals were found guilty and convicted and sentenced u/s. 143, 147, 148, 323, 448 and 302 r/w.149 IPC. Accused No.1 is further convicted and sentenced u/s.294(b) also. Assailing the conviction and sentence the appellants came before this court.

5. Notice was issued to the respondent and the respondent appeared through learned Senior Public Prosecutor Sri. S.U. Nazar. Lower court records were called for and perused and both sides were heard.

6. The learned counsel for the 1st accused would contend that time of death in the FIS is stated as 18.30 hours. In the court charge, the time is stated as p.m, which is not consistent with the FIR and FIS. No incident happened at 8 O' clock as Charged by the Court and the incident occurred was not as alleged by the prosecution. The FIS though seen to have been recorded at 1.00 hours, PW1, the informant deposed that he gave the FIS at 5.00 a.m. PW17, S.I, stated about the inspection of the scene of occurrence before recording the FIS, but no GD entry was made and FIR also not registered at that point. The evidence of PW1 and PW2 are not reliable and the prosecution case that PW2 snatched the knife from the first accused is against normal human conduct. There is no evidence as to how MO1 knife came to the hands of the first accused. Prosecution could not prove that MO1 is the weapon used for the commission of offence. Though PW1 and 2 went to the police station on 15.01.2005 and intimated about MO1, the seizure of MO1 knife was only on 16.1.2015. Though FSL report states about the presence of human blood, in the property list Ext.P28 there is no mention regarding blood stains on MO1. PW1 though stated to have taken the bleeding victim to the hospital from where he directly came to the police station, there was no blood smeared on his dress as per the body note recorded in the FIS itself, which is highly improbable. PW1 according to the first accused was not available in the scene of occurrence. The prosecution suppressed the fact of taking the deceased to the hos