IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR FRIDAY, THE 14^TH DAY OF JUNE 2024 / 24TH JYAISHTA, 1946 CRL.APPEAL NO. 638 OF 2011 AGAINST THE JUDGMENT DATED 06.04.2011 IN SC NO.2523 OF

2006 OF THE ADDITIONAL SESSIONS COURT (ADHOC)-II, THIRUVANANTHAPURAM APPELLANTS/ACCUSED 1 & 2:

1 JOSEPH S/O PUILLIPPAS, MOOLAKKARA PURAMPOKKU PURAYIDOM, ADIMALATHURA, KOTTUKAL DESOM, KOTTUKAL, THIRUVANANTHAPURAM DIST.

2 MARTIN, S/O. JOSEPH, MOOLAKKARA PURAMPOKKU PURAYIDOM, ADIMALATHURA, KOTTUKAL DESOM, KOTTUKAL, THIRUVANANTHAPURAM DIST.

BY ADVS.

SRI.SUMAN CHAKRAVARTHY SMT.K.R.RIJA RESPONDENT/STATE:

STATE OF KERALA PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.

SMT.SHEEBA THOMAS, PUBLIC PROSECUTOR THIS CRIMINAL APPEAL HAVING COME UP FOR FINAL HEARING ON 07.06.2024, THE COURT ON 14.06.2024 DELIVERED THE FOLLOWING:

P.G. AJITHKUMAR, J.

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Crl.Appeal No.638 of 2011 -----------------------------------------------------------

Dated this the 14^th day of June, 2024

JUDGMENT

The appellants stand convicted and sentenced for the offences punishable under Sections 323, 324 and 304 Part II read with Section 34 of the Indian Penal Code, 1860 (IPC). They assail the judgment of conviction and the resultant order of sentence in this appeal filed under Section 374(2) of the Code of Criminal Procedure, 1973 (Code).

2. The appellants stood trial on a charge for the offence punishable under Sections 447, 323, 324 and 302 read with Section 34 of the IPC. The facts forming basis for the charge are the following:

At about 1.30 p.m. on 25.07.2005 the appellants in furtherance of their common intention of causing death of Sri.Selvadima trespassed into the courtyard of his house. The 1^st appellant beat Sri.Selvadima using an oar. He fell down. At that time, the 1^st appellant stamped at his abdomen resulting in serious injuries. The 2^nd appellant at that time stabbed Sri.Selvadima using a knife, which was warded off by him and that resulted injuries at his right fingers. Sri.Selvadima succumbed to the injuries on 26.07.2005 while undergoing treatment at the Medical College Hospital, Thiruvananthapuram.

3. The prosecution has examined PWs.1 to 14, proved Exts.P1 to P23 and produced MOs.1 and 2 to prove the charge. During the examination under Section 313(1)(b) of the Code, apart from denying the incriminating circumstances appeared against them in evidence, they stated that they were innocent. The 1^st appellant added that the deceased attempted to stab the wife of the 1^st appellant, and the people gathered there intervened. In the ensued melee, the deceased fell down and sustained injury to his abdomen. Wife of the 1^st appellant was examined as DW1. Exts.D1 to D9 were marked on the side of the appellants. The trial court, after considering the evidence in detail, found the appellants guilty.

4. Heard the learned counsel for the appellants and the learned Public Prosecutor.

5. The learned counsel for the appellants would submit that the trial court convicted the appellants based only on the evidence of PWs.1 and 10, who are interested and partisan witnesses. The presence of so many persons at the place of occurrence is evident, but no one who is disinterested has been examined. The medical records did not reflect a cause of injury that tallies with the charge. There is discrepancy in regard to the time when the deceased reached the hospital. When the Doctor, who first examined the deceased, is not examined, those inconsistencies make it impossible to use the medical evidence to render support and corroboration to the oral evidence of PWs.1 and 10. PW1 is the daughter and PW2 is the daughter’s brother-in-law. PW10 also is her relative. Apparently, there were disputes between PW1 and the deceased on the one side and the appellants on the other side in regard to immovable properties, where the deceased was residing. There was a civil suit also in that regard. An altercation and scuffle had