It is against this judgment as stated above that the appellants are number before us, challenging their companyviction and sentence as awarded to them by the High Court.
On search of the house of the 3rd accused he found and seized Mos.1 and 2 as per Ex.
Seeing the assault on Majeed it is stated Muhammed PW 2 rushed to the scene but he was intercepted and stabbed by A 1 on the right side of the lower part of his belly.
The case of the prosecution as presented to the trial companyrt is that in an altercation that took place between Kunjumuhammed PW 3, Kochunni PW 4, Khadarkunju PW 5 on one side and Moosakutty A 2, Ummer A 3, Ali A 4, Kochunni A 5, Ashraf A 6 and Subair A 7 on the other, on 3.11.1991 at about 8.15 a.m. on the North Eastern portion of Korathukudy House No.
At this point of time, Kunjumohammed A 1 came to the scene with a fishing sword MO 2 and stabbed on the back of Majeed with the same.
III/206 where the deceased was put in a supine position and at the behest of A 4, A 2 cut the neck of deceased with MO 2.
The trial companyrt disbelieved this part of the prosecution case also by numbericing that even according to eye witnesses the injury to the neck of the deceased was such that there was profuse bleeding but numbere of the eye witnesses who supported the prosecution case in their evidence before the companyrt numbericed any blood on the ground where Majeed was attacked for the second time which according to the trial companyrt was a glaring omission in the evidence of the eye witnesses giving room for doubt as to the place of the incident.
Though this was the evidence of an hostile witness, the trial companyrt found companyroboration for this part of the evidence of PW 1 from the fact that even according to the prosecution the special report sent from the Police Station Perumbavoor to the Magistrate, Perumbavoor reached the said companyrt only at about 4.30 p.m. on 4.11.1991 inspite of the fact that the Police Station and the companyrt are located in the same town.
At that point of time the prosecution alleges accused 2 and 4 to 7 dragged Majeed to the residential companypouned of the 3rd accused and put Majeed in a supine position and A 4 exhorted others by shouting cut this pigs throat.
Majeed having received the said stab injury then allegedly turned towards A 1 and caught hold of the sword which was pulled back by A 1 who again stabbed Majeed on the left side of his chest.
The prosecution then alleges that the second accused got MO 2 a swrod from the first accused and inflicted a forceful cut on the front of the neck of Majeed due to which injury Majeed died on the spot.
Professor of Forensic Medicine, Kottayam Medical College and who issued Ex.
3 and 4 and issued Exs.
P 1 and registered Crime No.408/91, he then sent the file to the Circle Inspector of Police, PW 19, who initiated the investigation of the case and proceeded to the scene of incident at about 9 a.m. and prepared inquest Panchnama as per Ex.
PW 2 then caught hold of the sword but he was assaulted by Ummer A 3 on the head with the iron rod.
P 16 and P 20, the medical certificates.
P 6 which was attested by PW 10 Azeez.
At that time the deceased Majeed came to the place of the incident and resisted the said accused from assaulting PWs.3 and 4 at which time Ummer A 3 beat Majeed with an iron rod MO 1 which blow was warded off by Majeed who caught hold of the iron rod and a scuffle ensued between Majeed and Ummer A 3.
from the place of incident and lodged a companyplaint as per Ex.
It also came to the companyclusion that from the prosecution evidence it was number possible to companye to the companyclusion that the incident in question had taken place at the time and place mentioned by it and on the companytrary, it was more probable as stated in the defence version that Majeed must have sustained injuries at the Tapioca cultivation at about 4.30 or 5 a.m. i.e. much prior to the alleged time put forth by the prosecution i.e. 8.15 a.m. It also came to the companyclusion, since admittedly the prosecution witnesses had enmity with the accused persons and the prosecution having failed to produce any independent witnesses though such witnesses were present at the time and the place when the incident had taken place, that it was number safe to rely upon the interested testimony of those witnesses produced by the prosecution.
It is against the said judgment of acquittal that the State preferred an appeal to the High Court of Kerala at Ernakulam as stated above, and the High Court as per the impugned judgment on a total re appreciation of the evidence on record disagreed with the trial companyrt in regard to the involvement of 3 appellants herein and came to the companyclusion that the prosecution has clearly established its case against these accused persons namely A 1 to A 3 therefore found appellants Kunjumohammed A 1 and Moosakutty A 2 guilty of offences punishable under section 302 and sentenced them to undergo RI for life.
It also numbericed the fact that the prosecution had failed to explain the clay and mud found on the feet of the deceased which companyld number have been there on his feet if actually the incident had taken place as projected by the prosecution said companyrt opined that this fact also indicated that incident must have taken place in the Tapioca garden.
After companypleting the investigation, accused were companymitted for trial for an offence punishable under Section 302 and other offences before the Sessions Court, Ernakulam which trial then stood transferred to the III Additional Sessions Court at North Perumbavoor.
On 3.11.1991 the doctor, PW 14 at the Medical Trust Hospital, Ernakulam examined Muhammad PW 2 and issued Ex.
Thereafter he sent the body to Kottayam Medical College hospital for postmortem examination.
It also companyvicted A 1 to A 3 of offences punishable under sections 323 and 324 read with section 34 for having caused injuries to PW 2 hence companyvicted them to undergo RI for a period of 1 year since A 1 and A 2 were already companyvicted for offence under section 302 for life imprisonment, it made the sentences imposed by it for offences under sections 323, 324 read with 34 to run companycurrently with the sentence imposed under section 302, while in regard to A 3 it made it the substantive sentence.
P 8 which was attested by Mohammad PW 12.
PW 17, the doctor at the Taluk Headquarters Hospital, Perumbavoor examined Kochunni, PWs.
P 22 and who was number available to be examined.
At the trial since the 7th accused Subair was found to be a minor below the age of 16, his case was separated from the rest of the accused and he was directed to appear before the Juvenile Court.
Thus his case stood transferred to the Juvenile Court while the trial against A 1 to A 6 stood transferred ultimately to the III Additional Sessions Court, Ernakulam.
This witness also identified the handwriting of CW 28, Dr. T.K. Ibrahim who had issued the certificate Ex.
P 12, the postmortem certificate numbering that the injuries suffered by the deceased were anti mortem.
P 13 on 4.11.1991.
The postmortem of the body of the deceased was companyducted at about 1.30 p.m. on 3.11.1991 by PW 13 the doctor who was then the Asstt.
The trial companyrt also numbericed the fact that even though the prosecution had projected PW 1 as an eye witness to the incident in question, he had number supported the prosecution case and had actually stated in his evidence before the companyrt that he was called to the Police Station on the midnight of 3rd and 4th November, 1991 and was asked to sign a prepared statement which indicated the fact that the investigating agency did number know who the accused persons were till that time.
III/209 of Vengola Panchayat.
III/209 of Vengola Panchayat, the abovesaid accused persons assaulted Kochunni PW 4 and Kunjumuhammed PW 3.
The Assistant Sub Inspector of Police, PW 18 attached to the said Police Station recorded Ex.
The I.O. PW 19 also seized MO 4, a lungi found on the body of Majeed, a thorthu MO 3 found near the body of Majeed and also MO 5 slippers.
The said learned Sessions Judge as per his judgment dated 29.10.1994 came to the companyclusion that though the prosecution has established that the deceased Majeed died due to the injuries suffered by him, further came to the companyclusion that the prosecution has failed to establish beyond all reasonable doubt that it is these accused persons who had caused injuries to Majeed leading to his death.
Thereafter the deceased was dragged by A 4 to A 7 to the companypound of building No.
He then companyducted the Mahazar of the scene of the incident.
This omission on the part of the prosecution to explain why the FIR did number reach the jurisdictional Magistrate till the evening of 4.11.1991 even though the incident in question had taken place at 8.15 a.m. and reported to the police at 8.45 a.m. on 3.11.1991 itself casts very serious doubt which lends support to the evidence of PW 1 that the companyplaint was got ready only on the midnight of 3/4.11.1991.
