IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE &

THE HONOURABLE MR. JUSTICE P.SOMARAJAN TUESDAY ,THE 21ST DAY OF AUGUST 2018 / 30TH SRAVANA, 1940 CRL.A.No. 1718 of 2013 AGAINST THE JUDGMENT IN SC 238/2011 of ADDL. SESSIONS COURT-

II (SPECIAL), KOTTAYAM DATED 7-12-2013 CRIME NO. 766 /2009 OF Ettumanoor Police Station, Kottayam APPELLANTS/ACCUSED NOS.1, 2 AND 4:

1 SHIJI, AGED 40 YEARS, S/O.JOSEPH (LATE), KURUVIKKUNNEL (VADAKEMALA), ETTUMANOOR VILLAGE, KOTTAYAM.

2 SHIJO AGED 36 YEARS S/O.JOSEPH (LATE), KURUVIKKUNNEL (VADAKEMALA), ETTUMANOOR VILLAGE, KOTTAYAM.

3 PRAKASAN AGED 50 YEARS S/O.NEELAKANDAN, KUNNEL VEETTIL, (VADAKKEMALA), VETTIMUKAL BHAGOM, ETTUAMANOOR VILLAGE.

BY ADVS.

SRI. P. VIJAYA BHANU (SR.)

SRI. M. REVIKRISHNAN SRI. VIPIN NARAYAN RESPONDENT/COMPLAINANT:

STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM BY ADV.PUBLIC PROSECUTOR SRI.NICHOLAS JOSEPH THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON

17.01.2018, THE COURT ON 21/8/2018 DELIVERED THE FOLLOWING:

JUDGEMENT

Shaffique, J.

The appeal is filed by accused 1, 2 and 4 challenging the conviction and sentence, by which the Sessions court found them guilty of having committed murder of one Sri. Narayanan.

2. Prosecution alleged that on 6.12.2009 by about 2 pm, accused 1 to 4, trespassed into the house of Narayanan. There was a verbal altercation between them, which was followed by a scuffle. PW2 intervened and she was pushed aside causing her hurt. The 3^rd accused called upon the other accused to beat Narayanan and accordingly the first accused, took a spade from the compound of the victim. Accused 2 and 4 held him and 1^st accused inflicted a blow on the victim’s head. Victim fell down and all the accused ran away from the scene.

3. Crime was registered by the Sub Inspector of Police, on the basis of statement given by PW1, regarding the incident. PW13, Circle Inspector of Police conducted investigation, and final report was filed before the Magistrate’s Court. The case was committed to the Sessions Court and after framing charges, the case was tried. During trial, 3^rd accused died. Prosecution examined PW1 to PW14, marked Exts. P1 to P22, and identified MO1 to MO12. After questioning the accused under section 313 Cr.P.C., defence examined a neighbour as DW1. Defence marked Exts. D1 to D4.

4. Sessions Court found the accused guilty under sections 447, 341 and 302 read with section 34 of I.P.C. and sentenced them to imprisonment for life and to pay a fine of `25,000/- for the offence under section 302 read with section 34 of IP.C. They were also sentenced to undergo imprisonment for one month for the offence under section 447 read with section 34 of I.P.C and sentenced to pay a fine of `500/- each for the offence under section 341 read with section 34 of IP.C.

5. Heard the learned counsel appearing for the appellants and the learned Public Prosecutor. The question involved in the appeal is the correctness of the finding of guilt by the court below.

6. Appellants raised the following points:

(i) Eye witnesses version of the incident is not believable.

(ii) DW1’s version regarding the incident is more probable, in so far as the injury on the victim was due to an accident during a tussle and not a homicide. DW1's evidence was improperly discarded.

(iiii) None of the accused entertained a common intention to commit murder in order to attract section 302 read with section 34 of I.P.C.

(iii) Even assuming that the 1^st accused had inflicted the injury, the offence could be punishable only under Part II of section 304 I.P.C.

7. PW1 has given the first information statement regarding the incident. Ext.P1 is the F.I.S. He is not an eye witness. He reached the spot on hearing a hue and cry. His version in the F.I.S and before court regarding the version of PW2 was different and he was declared hostile.

8. PW2 is the daughter of Narayanan. She deposed that on the fateful day, before the incident, there was an altercation between