The prosecution failed to prove the guilt of the accused beyond a reasonable doubt due to significant inconsistencies and gaps in the evidence presented.

JUDGMENT

[CRL.A Nos.736/2018, 1214/2018]

Raja Vijayaraghavan, J.

The above appeals have been preferred by the accused Nos. 1 to 3 in S.C.No. 816 of 2015 on the file of the Additional Sessions Judge-II, Kollam. Crl.A.No. 1214 of 2018 has been filed by the accused Nos. 1 and 3 and Crl.A.No. 736 of 2018 has been preferred by the 2nd accused in the above case. By the judgment under challenge, the accused Nos. 1 and 3 were convicted and sentenced to undergo imprisonment for life and to pay a fine of Rs.50,000/- each with a default clause for the offence under section 302 r/w. Section 34 of the IPC . The 2nd accused was sentenced to undergo RI for seven years and to pay a fine of Rs.50,000/- with a default clause under Section 304 (ii) of the .

2. A brief summary of the prosecution case is as under:

Unni, the deceased, and the accused were close friends. On 9.10.2014, they gathered at around 5:30 p.m. in the rubber plantation of one Sainulabudeen to consume liquor. An altercation arose between them and it is alleged that the accused Nos. 1 to 3 with intent to murder started assaulting the deceased. The accused Nos. 2 and 3 are alleged to have restrained Unni by holding his hands, thereby immobilizing him, while the 1st accused kicked and stamped on his abdomen. When the deceased fell to the ground, all the accused allegedly continued assaulting him causing severe abdominal injuries. Unni succumbed to these injuries on 11.10.2014, at 11:50 a.m. It is on these allegations that the accused were charged for having committed offences punishable under Sections 323 and 302 read with Section 34 of the IPC .

3. The younger brother of the deceased went to the Anchal Police Station on 11.11.2014 at 11.00 a.m. and furnished Ext.P1 statement, based on which, Ext.P9 FIR was registered for offence under Sections 323, 324, 325, 392 r/w. Section 34 of the IPC . In his statement, it was mentioned that the injured had been taken to the Medical College Hospital, Thiruvananthapuram as surgery was required. However, it appears that while undergoing treatment, Unni succumbed to the injuries at 11.50 hrs. on 11.10.2014.

4. PW17, the Circle Inspector of Police, Anchal Police Station, took over the investigation. He stated that on being informed of the death of Unni, he forwarded Ext.P10 report to the jurisdictional Magistrate seeking to alter the Sections to Sections 323 and 302 r/w 34 of the IPC . He went to the spot and prepared Ext.P3 Scene Mahazar. Steps were taken to conduct the postmortem over the dead body. The 1st accused was arrested on 11.10.2014 and accused Nos. 2 and 3 were arrested on 15.10.2014. He recorded the statements of all witnesses and after completing the investigation, laid the final report before the Judicial First Class Magistrate Court, Punalur. The learned Magistrate took the case on file and initiated committal proceedings. After complying with the legal formalities, the case was committed to the Court of Session, which the Court made over to the Additional Sessions Judge-II, Kollam, for trial.

5. After considering the prosecution records and after conducting the preliminary hearing, the learned Additional Sessions Judge framed charges under Section 302 r/w. Section 34 of the IPC . When the charge was read over and explained to the accused, they pleaded not guilty and claimed that they be tried.

6. The prosecution examined 19 witnesses as PWs 1 to 19. Exts.P1 to P16 were exhibited and marked. MO1 series chappel was produced and identified. After the close of the prosecution evidence, the incriminating materials arising out of the prosecution evidence were put to the accused under Section 313 of the Cr.P.C. They denied all the incriminating circumstances brought against them and maintained their innocence. On the side of the defence, D1 to D4 were marked.

7. The learned Sessions Judge, after evaluating the evidence, concluded that the testimony of PW2, a nearby shopkeeper, who spoke about the manner in which the incident occurred