Criminal Appeal No.1007/2017 is filed by the convicted

accused Nos.1 and 2 against the judgment of conviction and

order of sentence dated 08.05.2017 passed in Sessions Case

No.21/2015 by the I Addl. District and Sessions Judge, D.K.,

Mangaluru, and Criminal Appeal No.367/2015 is filed by the

State against the acquittal of accused No.3 in the same

judgment in S.C No.21/2015 for the offence punishable under

Section 302 r/w 34 of IPC. Accused Nos.1 and 2 are convicted

for the offence punishable under Section 302 of IPC and

thereby, directed to undergo imprisonment for life so also

sentenced to pay a fine of Rs.20,000/- and in default to pay

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fine, they shall undergo further imprisonment for a period of six

months.

2. The brief facts of the prosecution case is that, Ullal

Police registered a case on the basis of a complaint filed by one

Rajesh who examined as PW.1 in this case, on 16.08.2014 in

Crime No.248/2014, that, he is an auto rickshaw driver and on

15.08.2014, he picked up some passengers and dropped them

at Maya Bar and Restaurant, which is near Nethaji Hospital at

Thokkottu, at about 11:00 p.m., in front of the said Maya Bar

and Restaurant, his friend Yatish Kumar (for short, 'deceased')

was talking to other persons i.e., one Udaya (Accused No.1),

Vinay, Robin and Pushparaj, who were known to PW.1. When

PW.1 got down from his auto rickshaw and was going near to

them, accused No.1 stabbed Yatish Kumar with a knife on the

left portion of the abdomen and tried to commit the murder.

On seeing the same the complainant, Udaya, Vinay and Robin

ran away from the spot. It is further alleged in the complaint

that the complainant and his two other friends were standing at

some distance, i.e. one Nitesh and one Kishore and they all

took the injured Yatish to Nethaji Hospital. The Medical Officer

of the said hospital advised that injured Yatish Kumar has to be

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taken to the hospital at Mangaluru and therefore, he was taken

to Unity Hospital at Mangaluru. On arrival at Unity Hospital,

the doctors informed that Yatish Kumar was brought dead.

Hence, PW.1-Rajesh lodged a complaint before PW.27-

Inspector of Police of the respondent Police Station and the said

complaint was registered in FIR as per Ex.P45 in Crime

No.248/2014 dated 16.08.2014 against one Udaya i.e., accused

No.1, Pushparaj, Vinaya and Raju.

3. Thereafter, the respondent Police investigated the

case and during the course of investigation, PW.1 complainant

gave

a

statement

before

the

Investigation

Officer

on

20.10.2014 alleging that in the incident dated 16.08.2014,

along with accused No.1 Udaya, Pushparaj, Vinay and Robin

were not present, and according to him, on that day, along with

accused No.1, one Lancy was present. Accordingly, the

Investigation Officer inserted the name of accused No.2-Lancy

in the crime and investigated the matter and thereafter

collecting the material and also recording the statement of all

the witnesses, the Investigation Officer laid charge sheet

against accused Nos. 1 to 3 for the offence punishable under

Section 302 r/w 34 of IPC, before the committal Court.

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4. Subsequently, on committal of the case before the

Sessions Court, the learned Sessions Judge framed the charge

against the accused for the aforesaid offence and read over the

same to the accused. However, the accused pleaded not guilty

for the charges and claims to be tried.

5. In order to bring home the guilt of the accused, the

prosecution in total examined 28 witnesses as PW.1 to PW.28

so also got marked 48 documents as Ex.P1 to Ex.P48 and 21

material objects as MO.1 to MO.21. However, after closure of

the prosecution evidence, the learned Sessions Judge read over

the incriminating portions of the evidence of the material

witnesses to the accused as contemplated under the provision

of Section 313 of Cr.P.C. However, the accused denied the

same however, they examined one witness on their behalf as

DW1 who is none other than the mother of ac