Kerala High Court

Arun vs State Of Kerala on 27 August, 2025

Author: A.K.Jayasankaran Nambiar

Bench: A.K.Jayasankaran Nambiar

                                            2025:KER:65465

          IN THE HIGH COURT OF KERALA AT ERNAKULAM
                           PRESENT
    THE HONOURABLE DR. JUSTICE A.K.JAYASANKARAN NAMBIAR
                                &
         THE HONOURABLE MR.JUSTICE JOBIN SEBASTIAN
  WEDNESDAY, THE 27TH DAY OF AUGUST 2025 / 5TH BHADRA, 1947
                    CRL.A NO. 573 OF 2019
      AGAINST THE ORDER/JUDGMENT DATED 25.03.2019 IN SC NO.8
OF 2013 OF ADDITIONAL DISTRICT COURT & SESSIONS COURT - V,
KOTTAYAM ARISING OUT OF THE ORDER/JUDGMENT DATED IN CP NO.28
OF 2012 OF JUDICIAL MAGISTRATE OF FIRST CLASS -II,
KANJIRAPPALLY
APPELLANTS/ACCUSED Nos.1 & 2:

    1    ARUN, AGED 33 YEARS, S/O. MOHANAN,
         PARACKAL HOUSE, THONIPARA BHAGOM, KUNNUMBHAGAM
         KARA, VELLAVOOR VILLAGE.

    2    MOHANAN, AGED 63 YEARS, S/O. SHANKARAN, PARACKAL
         JHOUSE, THINIPARA BHAGOM, KUNNUMBHAGAM KARA,
         VELLAVOOR VILLAGE.

         BY ADVS.
         SRI.S.RAJEEV
         SRI.K.K.DHEERENDRAKRISHNAN
         SRI.V.VINAY
         SRI.D.FEROZE
         SHRI.ANAND KALYANAKRISHNAN


RESPONDENT/STATE:

         STATE OF KERALA,
         REP. BY PUBLIC PROSECUTOR,
         HIGH COURT OF KERALA, ERNAKULAM 682 031
         (CRIME NO. 342/2011 OF MANIMALA POLICE STATION,
         KOTTAYAM DISTRICT)

     THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
19.08.2025, THE COURT ON 27.08.2025 DELIVERED THE FOLLOWING:
 Crl.A.No. 573 of 2019            :: 2 ::



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                            JUDGMENT

Jobin Sebastian, J.

The accused in S.C.No.8/2013 on the file of the Additional

Sessions Court-V, Kottayam, have preferred this appeal challenging

the judgment of conviction and the order of sentence passed

against them for the offences punishable under Sections 324 and

302 r/w 34 of the Indian Penal Code.

2. The case of the prosecution in brief is as follows:

The 1st accused is the son of the 2nd accused and both of

them were harbouring animosity towards one Shaji, the deceased

in this case. Owing to the said animosity, on 10.08.2011 at 9.30

p.m., on the panchayat road in front of the house of CW4 at

Thonippara, the 1st accused, with an intention to kill Shaji, struck

him on his abdomen with a stick. Due to the blow when Shaji fell

down, the 1st accused repeatedly beat Shaji using the said stick

and stamped him. Upon seeing the same, when CW2, the wife of

Shaji, intervened to rescue her husband, the 1st accused beat on

her head with the stick, thereby causing hurt. In the meantime, the

2nd accused, the 1st accused's father, who rushed to the scene,

grabbed the stick from the hands of the 1st accused and beat Shaji

on his head repeatedly, uttering that he would kill him, while Shaji

lay on the ground. Both the accused then together caught hold on Crl.A.No. 573 of 2019 :: 3 ::

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both the hands of Shaji and dragged him through a mud road that

originates from the panchayat road and leads towards the house of

the accused and further assaulted him. Due to the severity of the

injuries sustained, Shaji succumbed to the same. Hence, the

accused are alleged to have committed the offences punishable

under Sections 324 and 302 r/w 34 IPC.

3. Upon completion of the investigation, the final report was

laid before the Judicial First Class Magistrate Court-II,

Kanjirappalli. Being satisfied that the case is one triable exclusively

by a Court of Session, the learned Magistrate, after complying with

all the necessary formalities, committed the case to the Court of

Session, Kottayam, under section 209 of Cr.P.C. The learned

Sessions Judge, having taken cognizance, made over the case for

trial and disposal to the Additional Sessions Court-V, Kottayam. On

the appearance of the accused before the trial court, the learned

Additional Sessions Judge, after hearing both sides under section

227 of Cr.P.C. and upon a perusal of the records, framed a written

charge against the accused for offences punishable under Sections

324 and 302 r/w 34 of IPC. When the charge was read over and

explained to the accused, both of them pleaded not guilty and

claimed to be tried.

 Crl.A.No. 573 of 2019            :: 4 ::



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4. During the trial, from the side of the prosecution, PW1 to

PW15 were examined and marked Exts.P1 to P20. MO1 to MO12

were exhibited and identified. After the completion of the

prosecution evidence, the accused were questioned under Section

313 of Cr.P.C., during which they denied all the incriminating

materials brought out in evidence against them. Thereafter, both

sides were heard under Section 232 of Cr.P.C., and since it was not

a fit case to acquit the accused under the said provision, both the

accused were directed to enter on their defence and to adduce any

evidence that they may have in support thereof. Thereupon, from

the side of the accused, DW1 to DW4 were examined and marked

Exts.D1 to D5. Thereafter, both sides were heard in detail, and

finally, the learned Additional Sessions Judge found both the

accused guilty of the offence punishable under Section 302 r/w 34

of IPC, and they were convicted and sentenced to undergo

imprisonment for life and to pay a fine of Rs.1,00,000/- each. In

default of payment of the fine, the accused were ordered to

undergo simple imprisonment for six months each. The 1st accused

was also found guilty of an offence punishable under Section 324

IPC, and he was convicted and sentenced to undergo rigorous

imprisonment for one year for the said offence. Fine amount, if

realised or paid, was ordered to be given to PW2, the wife of the

deceased, as compensation under Section 357(1)(b) of Cr.P.C.

Aggrieved by the said finding of guilt, conviction, and the order of Crl.A.No. 573 of 2019 :: 5 ::

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sentence passed, the accused have come up with this appeal.

5. I heard Sri. S. Rajeev, the learned counsel appearing for

the appellant and Sri. T.R. Renjith, the learned Public Prosecutor.

6. The law was set in motion in this case on the strength of

the FIS given by a common neighbour of the accused and deceased

in this case. However, when the said first informant was examined

as PW1, apart from admitting his signature in the FIS, he turned

hostile to the prosecution case. According to him, on the alleged

date of the incident, he heard a commotion in front of the house of

CW4, and upon hearing the same when he reached there, he saw

Shaji, the deceased in this case, pelting stones at the house of the

accused. He further deposed that at around 10 p.m., the Police

came there, and by that time, several people had already gathered.

PW1 admitted that he had given a statement to the Police and

identified his signature in Ext.P1 FIS. Though the learned Public

Prosecutor, with the permission of the court, put some questions to

PW1 in terms of Section 154 of the Indian Evidence Act, nothing

could be elicited to support the charge levelled against the accused

It is pertinent to note that during cross-examination, PW1 deposed

that the deceased was a drunkard and a problem maker in that

locality. Furthermore, he deposed that on the alleged date of the

incident, the deceased Shaji was also under the influence of alcohol Crl.A.No. 573 of 2019 :: 6 ::

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and was incapable of taking care of himself. According to PW1, he

saw Shaji pelting stones at the house of the accused, and in the

course of doing so, Shaji fell down. PW1 further stated that he then

called the wife of Shaji and asked her to take him back home.

Thereupon, the wife of Shaji came with a headlight. Thereafter,

Shaji stumbled down as his legs struck against the root of a tree.

According to PW1, he also saw Shaji approach the house of the

accused and smash the window glass panes of the said house using

a stick. When the wife of Shaji attempted to catch hold of the stick,

it hit on her head and she sustained injury. Thereafter, Shaji fell

onto a granite stone, and by that time, Shaji was completely

exhausted. Subsequently, the Police arrived at the scene and took

Shaji to the hospital.

7. A perusal of the deposition given by PW1 shows that during

cross-examination, he gave evidence totally contrary to the

prosecution case. Though the learned Public Prosecutor sought

permission for further examination, the learned Sessions Judge

declined the permission, citing the reason that the said witness

was already cross-examined. However, the action of the learned

Sessions Judge in this regard is not legally justifiable. When a

prosecution witness turns hostile to the prosecution, the

Prosecutor, with the permission of the court, is entitled under

Section 154 of the Indian Evidence Act to put questions which Crl.A.No. 573 of 2019 :: 7 ::

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could ordinarily be put in cross-examination by the adverse party.

The same is seen done in this case. However, putting questions in

terms of Section 154 of the Indian Evidence Act does not amount to

cross-examination, but only enables the party who calls the witness

to put questions in the nature of cross-examination. Therefore, the

reason stated by the trial court that the prosecution had already

cross-examined PW1 and hence further cross-examination cannot

be allowed is not legally sustained. In this case, the evidence of

PW1 reveals that during cross-examination by the learned counsel

for the accused, he had deposed totally against the prosecution

version of the incident. Therefore, it was incumbent upon the trial

court to permit the learned Public Prosecutor to re-examine PW1,

so as to afford him an opportunity to contradict the witness with

his earlier statement given under Section 154 of Cr.P.C. if any

contradictions existed. We do agree that a statement given under

Section 154 of Cr.P.C. is not a substantive piece of evidence.

Therefore, if contradictions are found between the previous

statement and the testimony given in court, the Prosecutor is

entitled to confront the witness with earlier statements as provided

under Section 145 of the Indian Evidence Act and thereafter to

prove the same through the officer who recorded the FIS. However,

such an opportunity was not given to the Public Prosecutor by the

learned Sessions Judge.

 Crl.A.No. 573 of 2019           :: 8 ::



                                                      2025:KER:65465

8. Now, reverting to the other evidence adduced in this case,

it can be seen that the main evidence relied upon by the

prosecution to bring home the guilt of the accused is the ocular

evidence of the wife and son of the deceased, who were allegedly

present at the scene of occurrence at the time of commission of the

offence. When the wife of the deceased was examined as PW2, she

deposed as follows: Shaji, the deceased in this case, was her

husband. During the relevant period, she was working as a

bookbinder in a press at Kanjirappally. She was residing with her

husband and their two children at a place called Thonippara. Her

husband was a rubber tapper. On 10.08.2011, as usual, she left for

her work at 8.30 am, and at that time her husband and children

were at home. Thereafter, at 1.00 p.m., her husband called her on

her mobile phone and informed her that he was at his workplace.

By around 6.00 p.m., she returned to her house and both her

children were present there. By 8.00 p.m., her husband telephoned

her again and told her that he was at the house of one Kochurani

and asked her to send their children with a torchlight so that he

could return. At about 8.30 p.m., she, along with her younger son

Shalumon, went to the house of Kochurani carrying a headlight,

and at that time her husband was talking with Kochurani and her

parents. After spending some time there, she, along with her

husband and son, started walking back to their house. On the way,

when they reached on the road in front of the house of one Crl.A.No. 573 of 2019 :: 9 ::

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Chellappan, the 1st accused Arun(A1) rushed towards her husband

uttering that "നിന്നെ വഴിയിൽ കിട്ടാൻ കാത്തിരിക്കുകയായിരുന്നു" (I

was waiting to get you on the way). Immediately thereafter, the 1st

accused beat forcefully on the abdomen of her husband with a

stick. Due to the said blow when her husband fell down, the 1st

accused again beat on the head and body of her husband with the

stick. Moreover, the 1st accused stamped on the chest of her

husband 3 to 4 times. When she pleaded not to stamp on her

husband, the 1st accused beat her on the left side of her head with

a stick, thereby causing injury. Then her son (PW3), who was an

8th standard student at that time, cried aloud. By then, Mohanan

(A2), the father of the 1st accused, rushed to the spot from his

house. Then the 2nd accused grabbed the stick from the hands of

the 1st accused and beat on the body and the head of her husband,

uttering that "നിന്നെ കൊല്ലുമെടാ "(I will do away with you). When

her son again cried aloud, 1st accused snatched the umbrella from

the hands of her son and beat her husband with the same, and

threw it on the road. Thereafter, both the accused caught hold of

both the hands of her husband and dragged him towards the

accused's house through the road that leads to their house. Scared

of the accused, she and her son stood away. Thereafter, both the

accused together kicked and beat him. Thereafter, the accused

themselves pelted stones towards their house, saying that " കേസ്

എന്താണെന്നു കാണിച്ചു തരാമെടാ". Thereupon she contacted the Crl.A.No. 573 of 2019 :: 10 ::

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Police over the phone and went to the house and informed the

matter to parents of her husband. The incident occurred at around

9.30 p.m. After some time, the Police arrived and took her husband

to the hospital in the police jeep. She saw the incident in the light

emitted from the house of Chellpan as well as in the light in the

house of the accused. Immediately thereafter, she went to

Sushalayam Hospital, Kuttikkattuvalavil, where she was treated as

an inpatient. According to PW2, the cigarette lamp, diary, and

other belongings of her husband have fallen in the road. The

headlamp of her husband was also thrown down by the accused.

She identified MO1 as the stick used by both the accused to beat

her husband. MO3 is the cigarette lighter, and MO4 is the

headlamp of her husband. MO5 is the pair of sandals of her

husband. MO6 is the diary, MO7 is the comb, MO8 is the pen. MO9

is the shirt worn by her husband at the time of the incident. MO10

is the dhoti worn by the 1st accused, and MO11 is the dhoti worn

by the 2nd accused at the time of the commission of the offence.

PW2 identified both the accused in the dock. According to her, the

accused were having previous enmity with her husband, and it was

on account of such enmity that they attacked her husband.

9. Similarly, when the younger son of the deceased, who was

aged only 13 years at the time of the occurrence, was examined as

PW3, he deposed that the incident in this case took place on Crl.A.No. 573 of 2019 :: 11 ::

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10.08.2011. During that period, he was studying in St. George High

School, Manimala, in the 8th standard. On 10.08.2011, at about 8

pm, his father telephoned his mother and told her to send the

children with a light to the house of Kochurani, where he was

sitting. Thereafter, he and his mother went to the house of

Kochurani with the headlight used by his father for rubber tapping.

After spending some time there, he, along with his parents, walked

back to their house. When they reached the road in front of the

house of Chellapan, the 1st accused came running from near his

house, uttering the words "നിന്നെ വഴിയിൽ കിട്ടാൻ

കാത്തിരിക്കുകയായിരുന്നു" (I was waiting to get you on the way)

and with a stick he beat on the abdomen of his father, and

thereupon his father fell down. The 1st accused again beat his

father and kicked him on his chest. When his mother attempted to

intervene, the 1st accused, struck her on the head with the stick.

PW3 identified MO1 as the stick used by the 1st accused.

According to PW3, the 2nd accused came running from near the

house of the accused and, after snatching MO1 stick from the

hands of the 1st accused, he also beat his father. When PW3 cried

aloud, the 1st accused snatched the umbrella (MO2) from his

hands and beat his father with it, and threw it away. Thereafter,

both the accused caught hold of his father's hand and dragged him

towards their house through the road leading thereto. Thereafter,

both the accused pelted stones towards their own house, saying Crl.A.No. 573 of 2019 :: 12 ::

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that "കേസ് എന്താണെന്നു കാണിക്കാം". His mother, thereafter,

telephoned the police, and they went to the house of his

grandparents and informed the matter. Subsequently, the police

arrived, and his father was taken in the police jeep to the hospital.

PW3 identified both the accused in the dock. According to PW3, the

incident occurred at around 9.30 p.m., and we saw the same in the

light emitted from the house of Chellappan (DW1) and also in the

light of the headlamp.

10. Apart from the above-discussed eyewitnesses' account

of the incident, the evidence which the prosecution relies on to

prove that the death of Shaji, the deceased in this case, was a

homicide is the evidence of the Doctor who conducted the

postmortem examination of the deceased. When the Doctor who

conducted the autopsy was examined as PW10, he deposed that on

11.08.2011, while working as a Police Surgeon at the Medical

College Hospital, Kottayam, he conducted the autopsy of Shaji and

issued a postmortem certificate. The postmortem certificate issued

by PW10 was marked as Ext.P6. According to PW10, he had noted

the following antemortem injuries in the postmortem examination.

1. Abraded contusion on back of right shoulder 1.5 x 0.5 cme, veritical 5 cm below top of shoulder.

2. Vertical graze abrasions seen on right side of back of chest 20 cm below top of shoulder, inner end at midline 26x15 cm, vertical with central abraded contusion on 8x5 cm.

3. Contusion on back of left shoulder 2x0.5 cm, vertical 7 cm below top of shoulder.

4. Abraded contusion on left side of back of chest 7x2.5 cm, transverse, Crl.A.No. 573 of 2019 :: 13 ::

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22 cm below top of shoulder with a central pale area of 4x1 cm.

5. Abraded contusion on left side of front of chest 11 x 2.5 cm transverse, 4 cm below nipple and the front and at midline region with central pal area of 6 x 1 cm.

6. Vertical graze abrasion on back of left side of chest 20 x 15 cm vertical lower end, 5 cm above top of hip bone.

7. Abraded contusion on outer aspect of right ankle 2 x 2 cm.

8. Abraded contusion on top of left shoulder 2 x 2 cm.

9. Abraded contusion on top of left shoulder 6 cm inner to injury No.7.

10. Abraded contusion on left deltoid dominance 2 x 2 cm.

11.Abraded contusion on inner aspect of left belbow 3 x 3 cm.

12. Abraded contusion on back of left hand 1 x 1 cm, 2 cm above left middle finger knuckle.

13. Abraded contusion onout aspect of left bflank 7 x 5 cm, vertical 12 cm above top of hip bone.

14. Lacerated wound on inner aspect of left side of upper lip 1 x 1 cm muscle deep.

15. Lacerated wound on inner aspect of right side of upper lip 0.5 x 0.5 muscle deep.

16. Abraded contusion on right frontal eminence 2 x 2 cm.

17. Abraded contusion on inner aspect of right eyebrow 1 x 1 cm.

18. Abraded contusion on right cheek 6 x 6 cm.

19. Lacerated wound on right parietal region 4 x 0.5 cm. Front to abc direction, 8 cm above top of right ear, bone deep.

20. Lacerated wound on right parietal region 4 x 0.5 cm, front to back direction 3 cm above injury No.18. Bone deep scalp contusion underneath over an area of 6 x 6 cm, skull intact. The brain congested.

21. Laceration of apex of left side of heart 2 x 2 cm, through and through entered the left ventricle with the intact pericardium contained 220 gm of blood clot.

11. Referring to Ext.P6 Postmortem certificate, PW10

opined that death was due to blunt injuries sustained to the heart.

Similarly, when PW10 was confronted with MO1 stick, he deposed

that injury Nos.4 and 5 can be caused by a weapon like that. He

further deposed that injury No.6 was possible by dragging a body

through the ground while in a living state, and that all other

injuries could be caused by stamping and fisting. During re-

 Crl.A.No. 573 of 2019              :: 14 ::



                                                               2025:KER:65465

examination PW10 stated that on a forcible stamping even without

fracture of ribs, rupture of heart is possible. A conjoint reading of

the evidence of PW10, the Doctor, and the postmortem certificate

prepared by him establishes beyond doubt that the death of Shaji,

the deceased in this case, was homicidal in nature.

12. The Circle Inspector of Police, Manimala, who conducted

the major part of the investigation in this case, was examined as

PW15. According to him, it was on 11.08.2011, he took over the

investigation in this case. According to PW15, as part of the

investigation, he reached the mortuary of Taluk Hospital

Kanjirappally, where the dead body of the deceased was kept, and

conducted an inquest in the presence of independent witnesses.

Thereafter, he forwarded the dead body for autopsy examination to

Medical College Hospital, Kottayam. Subsequently, he visited the

crime scene and prepared Ext.P3 scene mahazar. A pair of

chappals, pen, umbrella, pocket diary, comb, and other artcles

which were found at the crime scene, were also seized after

describing in Ext.P3 scene mahazar. Thereafter, PW15 got an

information that both the accused in this case had appeared before

the SHO, Manimala Police Station. Accordingly, he proceeded to

the Police Station and interrogated both the accused. Being

convinced of the involvement of the accused in the commission of

the offence, both were arrested. Thereafter, he interrogated both Crl.A.No. 573 of 2019 :: 15 ::

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the accused, and during interrogation, the 1st accused made a

disclosure that "വടി ഞാൻ എന്റെ വീട്ടിൽ ഒരു സ്ഥലത്തു വച്ചിട്ടുണ്ട്.

എന്നെ കൊണ്ടുപോയൽ ഞാൻ കാണിച്ചു തരാം". On the basis of the

said disclosure made by the accused, and as led by the accused, he

reached the house of the accused. Thereafter, the 1st accused took

a key from inside a heap of bricks and using it he opened the front

door of his house. Thereafter, the 1st accused took a stick which

was kept under a cot in the bedroom of the said house. According

to PW15, the stick so taken and handed over to him by the 1st

accused was recovered by him after describing in Ext.P4 recovery

mahazar. According to PW15, the further part of the investigation

of this case was conducted by his successor in office.

13. The prosecution is having a definite case that prior to the

incident in this case, the accused were at loggerheads with the

deceased, and that such animosity impelled them to commit the

present offence. While considering whether the prosecution

succeeded in proving the motive alleged, it is to be noted that

when the wife of the deceased was examined as PW2 she

categorically deposed that the accused were in a feud with the

deceased, and it was due to such enmity, they murdered her

husband. Notably, during cross-examination, to a definite question

put by the learned defence counsel, PW2 deposed that prior to the

incident in this case, the accused had, on one occasion, filed a Crl.A.No. 573 of 2019 :: 16 ::

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complaint against her husband at Manimala Police Station. She

further stated that the complaint was filed on 01.05.2008, pursuant

to which the Police summoned her husband to the Police Station,

where she also accompanied him. According to PW2, apart from

the said case on 05.08.2014, the wife of the 2nd accused lodged a

complaint against PW2's husband. PW2 deposed that she came to

know about this complaint when the Police informed her over the

Phone. The above evidence of PW2 clearly indicates that on two

different occasions, the accused had lodged complaint against the

deceased at Manimala Police Station. Therefore, it is apparent that

there existed animosity and disputes between the deceased and the

accused. In essence, it is liable to be held that no further proof is

required to establish the motive alleged by the prosecution.

However, it is equally pertinent to note that this case is essentially

built upon direct ocular evidence to prove the guilt of the accused.

In such circumstances, proof of motive is not sin qua non. When

there is a direct eyewitness account of the occurrence, proof of

motive assumes little significance.

14. The crucial evidence that the prosecution relies upon to

prove the occurrence is the evidence of PW2 and PW3, who are the

wife and son of the deceased, respectively. A perusal of the

evidence given by PW2 reveals that she gave a vivid account of the

incident that culminated in the death of her husband. Although she Crl.A.No. 573 of 2019 :: 17 ::

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was subjected to piercing cross-examination, she withstood it

successfully. Her testimony is free from contradictions and

omissions of even minor nature. More importantly, while

considering the reliability of the evidence of PW2, first of all, it is to

be noted that she is having a case that, in the incident, she also

sustained injuries. Her evidence reveals that when she saw her

husband being brutally attacked by the 1st accused, she pleaded

not to attack her husband. But the 1st accused beat her on the left

side of her head, causing serious injuries. Moreover, she deposed

that immediately after the incident, she went to Sushalayam

Hospital at Kuttikkattuvalavu, where she was treated as an

inpatient.

15. When the Doctor who examined PW2 at Sushalayam

Hospital was examined as PW14, he deposed that on 10.08.2011 at

11.00 p.m., he examined one Beena Shaji (PW2) and on

examination, a lacerated wound 6x1x1cm over the left side of the

scalp parieto-occipital region was noted. According to PW14, the

alleged history furnished was that assault with a stick by

neighbours. The wound certificate prepared by PW14 relating to

the examination of PW2 was marked as Ext.P9. When PW14 was

confronted with MO1 stick, he opined that injury noted by him on

the examination of PW2 can be caused by a weapon like MO1.

During cross examination, referring to Ext.P9 wound certificate, Crl.A.No. 573 of 2019 :: 18 ::

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PW14 deposed that the alleged history was that "സ്വന്തം വീടിനു

സമീപത്തുള്ള വീട്ടിൽ നിന്നും മദ്യപിച്ചെത്തിയ ഭർത്താവിനെ

കൂട്ടികൊണ്ടു വരാനായി മകനുമായി പോയി തിരിച്ചുവരുമ്പോൾ മുൻ

വൈരാഗ്യത്തിന്റെ പേരിൽ അറിയാവുന്നവർ (മോഹനൻ, പ്രസന്നൻ,

അരുൺ) എന്നിവർ വലിയ കമ്പു കൊണ്ടടിച്ചതിൽ വച്ച്". However,

PW14 deposed that he did not remember who exactly had

furnished that history to him.

16. The above-discussed evidence of PW14, together with

Ext P9 wound certificate, lends sufficient corroboration to the

evidence of PW2 that she too sustained injury during the same

incident. Similarly, the medical evidence reveals that immediately

after the occurrence, PW2 was taken to the hospital and on

examination, injuries corresponding to the overt act attributed to

the 1st accused were noted in the medical examination. The

serious nature of the injuries and the part of the body on which the

same was inflicted clearly shows that the injuries sustained by PW2

was not a self-inflicted one.

17. While analyzing the evidence of PW2, it is important to

note that it is well settled through a catena of judicial

pronouncements that the testimony of injured witnesses carries

special evidentiary value. Ordinarily, such a witness would not

falsely implicate an innocent person, thereby letting the actual

assailant go unpunished. In Brahm Swaroop and another v. State of Crl.A.No. 573 of 2019 :: 19 ::

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Uttar Pradesh reported in AIR 2011 SC 280, the Supreme Court

held that:

"The testimony of an injured witness has its own relevancy and efficacy as he has sustained injuries at the time and place of occurrence, and this lends support to his testimony that he was present at the time of occurrence. The testimony of an injured witness is accorded a special status in law. Such a witness comes with a built in guarantee of his presence at the scene of the crime and is unlikely to spare his actual assailants in order to falsely implicate someone. Convincing evidence is required to discredit an injured witness. Thus, the evidence of an injured witness should be relied upon unless there are grounds for the rejection of his evidence on the basis of major contradictions and discrepancies therein."

18. In essence, there is no illegality in convicting an accused in

a criminal case on the basis of the evidence of injured witnesses,

provided such evidence is convincing and reliable. The evidence

that the injured witnesses guarantee is primarily with respect to

their presence at the scene of occurrence and the fact that they

sustained injuries during the incident. However, it can not be laid

as an inflexible rule that the testimony of an injured witness must

be considered as gospel truth in every circumstance. If there is a

reasonable possibility of false implication or if contradictions and

material discrepancies are apparent in their evidence, such

testimony must be viewed with care and circumspection. In the

present case, the evidence of PW2, the injured witness, is

convincing and reliable. She withstood the cross-examination

successfully, and her evidence is free from material contradictions Crl.A.No. 573 of 2019 :: 20 ::

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and omissions. More pertinently, her evidence is amply

corroborated by the testimony of PW3, who is her minor son, who

was also allegedly present at the time of the commission of the

offence and had no apparent motive to falsely implicate the

accused.

19. The evidence of PW2 is mainly assailed by the learned

counsel for the appellant on the ground of the relationship of PW2

with the deceased. According to the learned counsel, PW2 being

the wife of the deceased, she is a partisan witness and her

interested testimony cannot form a basis for a conviction in this

case. It was urged that it is unsafe to rely on the evidence of a

relative witness to enter upon a conclusion of guilt against the

accused. While considering the appellant's contention in the above

regard, it should not be forgotten that there is no rigid or inflexible

rule that the evidence of a related witness should be viewed with

suspicion under all circumstances. However, while considering the

reliability of the evidence of a relative witness, the court must be

very cautious and must act with discerning circumspection.

Therefore, we are of the strong view that the contention of the

appellant that the evidence of PW2 is liable to be discarded at the

threshold solely on the ground that she is a relative of the

deceased cannot be accepted.

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20. In State of Andhra Pradesh v. S. Rayappa and others

[(2006) 4 SCC 512], the Supreme Court observed as under:

"Testimony of a witness otherwise inspiring confidence cannot be discarded on the ground that he being a relation of the deceased is an interested witness. A close relative who is a very natural witness cannot be termed as an interested witness. The term interested postulates that the person concerned must have some direct interest in seeing the accused person being convicted somehow or the other either because of animosity or some other reasons. On the contrary, it has now almost become a fashion that the public is reluctant to appear and depose before the court especially in criminal cases because of varied reasons. Criminal cases are kept dragging on for years to come and the witnesses are harassed a lot. They have been threatened, intimidated and at the top of all they are subjected to lengthy cross-examination. In such a situation the only natural witness available to the prosecution would be the relative witness. The relative witness is not necessarily an interested witness. On the other hand, being a close relation to the deceased they will try to prosecute the real culprit by stating the truth. There is no reason as to why a close relative will implicate and depose falsely against somebody and screen the real culprit to escape unpunished. The only requirement is that the testimony of the relative witness should be examined cautiously."

21. In Kartik Malhar v. State of Bihar [(1996) 1 SCC 614], it

was observed that a close relative who is a natural witness cannot

be regarded as an interested witness. The term "interested"

postulates that the witness must have some interest in having the

accused somehow or the other convicted for some animosity or for

some other reasons.

22. Keeping in mind the above-mentioned principles

enumerated by a series of judicial pronouncements, while Crl.A.No. 573 of 2019 :: 22 ::

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analyzing the evidence of PW9, it is significant to note that she

testified about an incident in which her husband had tragically lost

his life, allegedly at the hands of the accused. Even the accused did

not have a case that PW2 had any animosity or grudge of such a

nature towards the accused that would motivate her to falsely

implicate them in a grave murder case like this. Therefore, it defies

common sense to categorize PW2 as an interested witness and to

doubt her testimony solely on the basis of her relationship with the

deceased.

23. We are conscious of the fact that since PW2 is a close

relative of the deceased, it is the duty of this Court to act with

much care and circumspection while evaluating her evidence. In

the present case, as already noted, the serious nature of the

injuries sustained by PW2 itself guarantees her presence at the

crime scene. The evidence of PW2, read along with that of PW3,

her son, clearly establishes that on seeing her husband being

brutally attacked by the 1st accused, PW2 attempted to intervene

to rescue him. The 1st accused, however, did not spare her either,

and the 1st accused struck her on the head with a stick. As

already stated, there is ample medical evidence corroborating her

version that she also sustained a serious lacerated injury on her

head. Therefore, we find no reason to suspect the presence of PW2

at the crime scene or to doubt her testimony that she witnessed the Crl.A.No. 573 of 2019 :: 23 ::

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incident.

24. Likewise, PW3, the son of the deceased, vividly portrayed

the entire sequence of events before the court. He also deposed in

a convincing manner as to how the incident commenced,

developed, and ultimately ended. The evidence of PW2 and PW3

particularly regarding the material aspects of the incident, are

mutually corroborative. PW2 and PW3 are also eye witnesses to

the incident. Their depositions while corroborating each other in

material particulars are also consistent and have withstood cross

examination. Their depositions would therefore qualify as of

sterling quality within the meaning of that phrase as laid down by

the Supreme Court in Rai Sandeep v. State (NCT of Delhi) - [(2012) 8

SCC 21] as follows:

"In our considered opinion, the "sterling witness" should be of a very high quality and calibre whose version should, therefore, be unassailable. The court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the court. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the cross-examination of any length and howsoever strenuous it may be and under no circumstance should give room for any doubt as to the factum of the occurrence, the persons involved, as well as the sequence of it. Such a version should have co-relation with each and every one of other supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of every other witness. It can even be stated that it should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him. Only if the version of such a witness qualifies the above test as well as all other such Crl.A.No. 573 of 2019 :: 24 ::

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similar tests to be applied, can it be held that such a witness can be called a "sterling witness" whose version can be accepted by the court without any corroboration and based on which the guilty can be punished. To be more precise, the version of the said witness on the core spectrum of the crime should remain intact while all other attendant materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the court trying the offence to rely on the core version to seive the other supporting materials for holding the offender guilty of the charge alleged."

25. From the outset of the argument, the consistent attempt of

the learned counsel for the appellants was to establish that the acts

attributed to the accused would not constitute culpable homicide.

Relying on the evidence of the defence witness as well as that of

PW1, it was submitted that it was the deceased who initially

provoked the incident by pelting stones at the house of the

accused, creating a horrendous situation in the vicinity of their

house. It was further contended that the deceased, who had come

in an inebriated mood after consuming liquor, was not in a position

to control himself and fell down on several occasions, thereby

sustaining the injuries in question. Although the learned counsel

for the appellant, by relying on the evidence of PW1 and DW1

attempted to impress upon us that the injuries sustained by the

deceased were the result of such an accidental fall, we cannot

agree with the contention of the learned counsel for the appellant

in this regard for reasons more than one. The nature, gravity, and

location of the injuries rule out such possibility. Moreover, the

consistent evidence of PW2 and PW3 establishes that the injuries

were the result of the overt acts of the accused. In such Crl.A.No. 573 of 2019 :: 25 ::

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circumstances, even a detailed discussion as to whether the

injuries could have been sustained in fall is unnecessary. Moreover

the evidence of the Doctor who conducted the autopsy, also leads

to an irresistible conclusion that this case is a clear instance of

culpable homicide.

26. At the same time, it cannot be overlooked that all the

main overt acts have been attributed to the 1st accused. It was he

who, allegedly, on seeing the deceased, rushed to the scene and

commenced the attack. The evidence of PW2 clearly establishes

that it was the 1st accused who struck the deceased on the

abdomen with a stick. Her testimony further reveals that when the

deceased collapsed due to the said blow, the 1st accused stamped

forcefully on his chest 3 or 4 times. It was thereafter, the 2nd

accused, the father of the deceased, arrived at the scene. It is true

that as per the evidence of PW2, after rushing to the scene, the

2nd accused allegedly snatched the stick, which was the weapon of

offence in this case, from the hands of the 1st accused and beat the

deceased. It is relevant to note that the evidence of PW10, the

Doctor who conducted the autopsy of the deceased, opined that the

death was due to the blunt injury sustained to the heart. It is

relevant to note that neither PW2 nor PW3 had a case that any of

the accused beat on the chest of the deceased using MO1 stick. On

the contrary their consistent testimony is that it was on the Crl.A.No. 573 of 2019 :: 26 ::

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abdomen of the deceased, the 1st accused struck hard. However,

PW2 categorically deposed that due to the said blow on the

abdomen, the deceased collapsed, and thereafter the 1st accused

stamped on the deceased's chest three or four times. Pertinently,

during examination before court, PW10, the Doctor deposed that

on a forceful stamping even without fracture of ribs, rupture or

heart is possible. Therefore, it is evident that the fatal blunt injury

to the heart, which, according to the Doctor, resulted in the death

of the deceased, was due to the forceful stamping of the 1st

accused on the chest of the deceased. Notably, at the time when

the said injury was inflicted by the 1st accused, the 2nd accused

was not even present at the scene of occurrence.

27. In light of the above factual matrix, the next question that

arose is whether the 2nd accused can be held liable for the overt

acts of the 1st accused which culminated in the death of the

deceased with the aid of Section 34 of the Indian Penal Code. It is

trite in criminal jurisprudence that only a person who actually

commits the offence is liable to be punished. However, Section 34

lays down a principle of joint liability in a criminal act, the essence

of it is to be found in a common intention. Even when separate acts

are done by two or more persons in furtherance of such common

intention, each person is liable for the result of all the acts, as if all

every act had been done by all of them. Section 34 is only a rule of Crl.A.No. 573 of 2019 :: 27 ::

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evidence which attracts the principle of joint criminal liability and

does not create any distinct substantive offence. The distinctive

feature of Section 34 is the element of participation in action and

intention of each one of the accused should be known to the rest of

the accused. Mere participation is not sufficient to attribute

common intention. Common intention can be inferred from proved

facts and circumstances and the same can develop during the

course of an occurrence or at the spot. This section does not

whittle down the liability of the principal offender committing the

principal act but additionally makes all other offenders liable. The

question whether the prosecution has established common

intention in a given case has to be decided on the basis of the

proved facts. In other words, the prosecution is required to prove a

premeditated intention of all the accused. Section 34 of the Indian

Penal Code, is really intended to meet a case in which it is difficult

to distinguish between the acts of individual members of a group

and prove exactly what part was played by each of them. To

attract Section 34 of IPC, no overt act is needed on the part of the

accused if they share common intention with others in respect of

the ultimate criminal act, which may be done by any one of the

accused sharing such intention. Common intention implies acting

in concert. Existence of a prearranged plan has to be proved either

from the conduct of the accused, or from circumstances or from

any incriminating facts. It is not enough to have the same intention Crl.A.No. 573 of 2019 :: 28 ::

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independently of each other [see Chhota Ahirwar v. State of M.P.

(2020) 4 SCC 126].

28. Now, while reverting to the facts of the present case, it

can be seen that when the fatal injury was inflicted on the chest by

the 1st accused, the 2nd accused was not even present at the scene

of occurrence. It was only thereafter that he rushed to the spot. We

are not unmindful that a common intention may develop on the

spur of moment. However, the proved facts in the said case reveals

that there is nothing to show that there was a prior concert or

existence of a pre-arranged plan. On the contrary, the sequence of

events demonstrates that the 2nd accused arrived at the scene only

after witnessing the first phase of the incident. Therefore, it is

difficult to hold that he shared a common intention with the 1st

accused to commit culpable homicide of the deceased. As already

stated by the time when the 2nd accused reached the scene, the

main overt act which led to the death of the deceased had already

taken place. The evidence of PW2 and PW3 indicates that

immediately upon his arrival, the 2nd accused snatched the stick

from the hands of the 1st accused and assaulted the deceased on

his head and body. However, during cross-examination PW2

admitted she had not stated before the Police that the 2nd accused

had struck on the head.

 Crl.A.No. 573 of 2019          :: 29 ::



                                                      2025:KER:65465

29. Likewise, both PW2 and PW3 deposed that thereafter both

the accused together dragged the deceased near their house and

again assaulted him. Nevertheless, the evidence makes it clear that

none of the acts attributed to the 2nd accused led to the death of

the deceased, instead it was the overt acts of the 1st accused

resulted in the death of the deceased.

30. As we have already stated, in the absence of any material to

show prior concert or pre-arranged plan, it is difficult to hold that

the 2nd accused shared a common intention with the 1st accused

to commit culpable homicide. It is true that PW2 deposed that at

the time of beating the deceased, the 2nd accused uttered that

"നിന്നെ കൊല്ലുമെടാ" (I will do away with you). However, verbal

exhortation of this nature, unaccompanied by any fatal overt act

and unsupported by any common intention, cannot by itself fasten

liability on the 2nd accused under Section 302 r/w 34 IPC. While

engaging in a quarrel or assaults, it is not uncommon for

participants to raise threats or exhortation in a heat of passions.

Such utterances however by themselves, cannot be taken as

conclusive proof that the accused actually intended to carry out the

threat.

31. In short, the evidence establishes that the 2nd accused was

not sharing a common intention with the 1st accused to cause the Crl.A.No. 573 of 2019 :: 30 ::

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death of the deceased. Mere participation in assualt is not

sufficient to attribute common intention. Consequently, the 2nd

accused cannot be held liable for the fatal acts of the 1st accused

with the aid of Section 34 of the Indian Penal Code. Nonetheless,

the proved facts and circumstances unmistakably show that the

acts of the 2nd accused amount to an offence punishable under

Section 324 of IPC.

32. The question that remains to be considered is as to the

offence committed by the 1st accused. Culpable homicide is

murder only if the act by which the death is caused is one that

must have been done by the accused with the intention of causing

the death of the victim as provided for under the first limb of

Section 300 IPC or with intention of causing a bodily injury to the

victim as the accused knows to be likely to cause his death as

provided under the second limb of Section 300 IPC or with the

intention of causing a bodily injury to the victim, which is sufficient

in the ordinary course of nature to cause his death, as provided

under the third limb of Section 300 IPC or with the knowledge that

that act is so imminently dangerous that it must in all probability,

cause the death of the victim or cause such bodily injury as is likely

to cause the death of the victim and committed such act without

any excuse for incurring the risk of causing death or such injury as

aforesaid, as provided under the fourth limb of Section 300 IPC Crl.A.No. 573 of 2019 :: 31 ::

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[See Satheesh @ Kunchan v. State of Kerala - (2024 KHC 495) and

Francis @ Sekofy v. State of Kerala (2024 KHC 506].

33. Now, while considering the question of whether the 1st

accused bore any intention to cause the death of the deceased, it is

to be noted that intention is a state of mind. No one can directly

perceive the mind of a person. Therefore, intention can only be

inferred from the proved facts and circumstances of each case.

Inference regarding intention may be drawn from the conduct of

the accused at the crime scene, the nature of the weapon used, the

part of the body where the injury was inflicted, the force used in

such infliction etc. We are cognizant that the above list is, of course

illustrative and not exhaustive. In the case at hand, it is evident

that from the beginning of the incident, the 1st accused was

holding a stick in his hand. The evidence of PW2 and PW3

establishes that it was on the abdomen of the deceased that the 1st

accused gave the first blow. Due to the said blow, when the

deceased fell down the accused repeatedly stamped on his chest

three or four times. None of the witnesses have stated that the 2nd

accused inflicted any other fatal blows on any vital part of the body

of the deceased, including the head, though he had an ample

opportunity to do so while the deceased was lying on the ground.

34. The circumstances proved in the case are not sufficient Crl.A.No. 573 of 2019 :: 32 ::

2025:KER:65465

to hold that the accused intended to cause the death of the victim

or that he intended to cause a bodily injury on the victim which is

sufficient in the ordinary course of nature to cause death.

Likewise, the circumstances are also not sufficient to hold that the

act was one committed by the accused with the knowledge that it is

so imminently dangerous that it must, in all probability, cause

death or such bodily injury as is likely to cause death and

committed such act without any excuse for incurring the risk of

causing death or such injury aforesaid. In essence, the act of the

1st accused also will not fall under the 4th limb of Section 300 of

IPC. But at the same time, one who stamps on the chest of another

three or four times must certainly be attributed with the

knowledge that by such act he is likely to cause death. If that be

so, the act committed by the 1st accused would fall under the 3rd

limb of Section 299 of IPC, and he is liable to be convicted under

Part of II of 304 of IPC. Moreover, the proved facts clearly establish

the commission of an offence under Section 324 of the IPC by both

the accused.

In the result, the criminal appeal is allowed in part, altering

the conviction of the 1st appellant/1st accused under Section 302

IPC to one under Section 304 Part II of IPC, and he is sentenced to

undergo rigorous imprisonment for a period of eight years and to

pay a fine of Rs.1,00,000/-. In default of payment of fine, the 1st Crl.A.No. 573 of 2019 :: 33 ::

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accused shall undergo rigorous imprisonment for a further period

of six months. For offence punishable under Section 324 IPC, the

1st accused is sentenced to undergo rigorous imprisonment for one

year. The substantive sentences imposed on the 1st accused shall

run concurrently. The 2nd appellant/2nd accused is found not

guilty of an offence punishable under Section 302 r/w 34 IPC, and

he is acquitted on the said charge. However, he is found guilty of

an offence punishable under Section 324 of IPC, and he is

convicted and sentenced to undergo rigorous imprisonment for two

years and to pay a fine of Rs.10,000/-. In default of payment of

fine, the 2nd accused shall undergo rigorous imprisonment for a

period of four months. The fine amount, if realised or paid, the

same shall be given to the wife of the deceased as compensation as

provided under Section 357(1)(b) of Cr.P.C.