JUDGMENT :

Vinod Chandran, J.

The always potent mixture of playing cards and liquor, led to the murder of a person by his own brother. On 16.09.2013 after the revelry in connection with Onam; laced with intoxication of liquor, five friends sat together for a game of cards at the house of one of them (the deceased victim). The brother of the victim, who resides nearby, also under the influence of liquor, demanded to be participated in the game. Presumably due to his demand having been declined, there ensued a brawl and some pushing and pulling. The intruder was then led to his own neighbouring house and the wife of the victim requested that the friends disperse, since the brother was sure to return and again pick up a quarrel. The friends hence decided to rejoin at the house of another among them. While they were leaving the premises in three bikes, with two riding pillion, the intruder waylaid his brother's bike and stabbed him. The injured was taken by his friends first on a bike and then in a Scorpio car initially to a hospital at Chettikuzha where he was given first aid and then to the Medical College Hospital, Kottayam. The victim succumbed to his injuries at 10.30 p.m. on the same day. The FIR was registered on the basis of the First Information Statement of PW1 and the accused arrested at 1.00 p.m on the next day.

2. Before the Trial Court the prosecution examined PW1 to PW19 and produced MO1 to MO6. Exts.P1 to P20 documents were marked. PW1 to PW4, who in the company of the deceased was engaged in the game of cards were occurrence witnesses. MO1 knife said to be the weapon used for stabbing was alleged to have been seized from the body of the accused at the time of arrest. The Trial Court found the accused guilty of the offence of murder punishable under Section 302 of the Indian Penal Code and sentenced him to life imprisonment and fine of Rs.25,000/-with a default sentence of one year.

3. We heard learned State Brief Preethy R Nair for the accused/appellant and Sri. S.U Nazar learned Prosecutor for the State. Learned Counsel for the appellant argued that the seizure of MO1 knife was stage managed. The inspection report at the time of arrest did not show such seizure having been made from the body of the accused. Further it is very unlikely that the accused would have carried the knife after the alleged incident of stabbing. It is also pointed out that though the arrest was made on 17.09.2013, the material object alleged to have been seized from the body of the accused, a crucial piece of evidence being the offending weapon, was produced before Court only on 26.09.2013. There was no explanation offered by the prosecution as to why the delay was occasioned in producing the knife which is the most crucial piece of evidence. The learned Counsel also argues that there is no scientific evidence to show that the offence of stabbing was carried out with the material object produced before Court. It is pointed out that PW1 to PW4 though occurrence witnesses admit that they were driving away from the scene and saw the incident while looking back from the moving vehicles, which is very improbable. There are major embellishments and discrepancies in the evidence of PW1 to PW4 which definitely enables the accused to the benefit of doubt. The discrepancies in the evidence of the ocular witnesses raise serious doubts about the incident having occurred as set up by the prosecution. According to the accused his brother got injured when the bike he was riding slipped and the rider fell on to the fence. The sharp pickets on the fence caused the various incised wounds. One of the witnesses had also spoken of a drizzle at the time of the incident which probablize the version of the accused that the bike ridden by the deceased slipped causing the rider to fall down. The post-mortem report also indicates that the deceased was intoxicated at the time he was riding the bike. Alternatively it is also pleaded that the accused is entitled to Excepti