Dismissed

Ratheeshkumar @Babu v. State of Kerala

Kerala HC5 Jan 2018CRL.A/779/2013

Case brief

AI extract

What is this about?

This criminal appeal challenged a life imprisonment sentence for murder and the acquittal of a co-accused. The High Court upheld the trial court's findings, rejecting the plea of private defence due to premeditation and failing to establish common intention for the acquitted accused.

What did the court decide?

Appeals dismissed; conviction and sentence upheld; acquittal of second accused maintained.

Ratheeshkumar @Babu Vs State of Kerala — Murder and Culpable Homicide | Kerala HC (2018)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE &

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THE HONOURABLE MR. JUSTICE P.SOMARAJAN

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FRIDAY, THE 5TH DAY OF JANUARY 2018 / 15TH POUSHA, 1939

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CRL.A.No. 779 of 2013

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AGAINST THE ORDER/JUDGMENT IN SC 490/2008 of ADDL. SESSIONS COURT, ADHOC-III (FAST TRACK COURT-III), PALAKKAD

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APPELLANT(S)/ACCUSED NO.1:-

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RATHEESHKUMAR @ BABU

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S/O.RAMAKRISHNAN, EDAKKADU, CHITHALI.

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BY ADVS.SRI.P.VIJAYA BHANU (SR.) SRI.P.M.RAFIQ

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SRI.VIPIN NARAYAN

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RESPONDENT(S)/COMPLAINANT:-:

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

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*2. N.MINI, W/O LATE E.R.NARAYANAN, EDAKKAD HOUSE, KUZHALMANNAM, PALAKKAD.

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(*IS IMPLEADED AS ADDITIONAL 2ND RESPONDENT IN CRL.APPEAL NO.779/13 AS PER ORDER DATED 28.10.2013 IN CRL.M.A.NO.6412/2013)

¶17

R1 BY ADV. ADDL.DIRECTOR GENERAL OF PROSECUTION SRI.SURESH BABU THOMAS RADDL 2 BY ADV. SRI.RENJITH THAMPAN (SR.) RADDL 2 BY ADV. SRI.M.V.ANANDAN

¶18

THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 4/12/2017, ALONG WITH CRL.A.(V) NO.1464/13, THE COURT ON 05/1/2018 DELIVERED THE FOLLOWING:

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A.M. SHAFFIQUE & P.SOMARAJAN, JJ.

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========================== Crl.Appeal No. 779 of 2013

¶21

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Crl.Appeal (V) No.1464 of 2013

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====================

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Dated this, the 5^th day of January, 2018

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J U D G M E N T

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Shaffique, J.

¶27

The accused No.1 in SC No.490/2008 of the Additional Sessions Court, Adhoc-III (Fast Track Court-III) Palakkad has preferred this appeal challenging judgment dated 10/5/2013 by which he was found guilty, convicted and sentenced to undergo imprisonment for life for the offence punishable u/s 302 I.P.C. and to pay a fine of `10,000/- and rigorous imprisonment for a period of one year for the offence u/s 324 I.P.C. The victim's legal heir has been impleaded as an additional respondent and she has also filed a separate appeal as Crl.Appeal (V) No.1464/2013 against the judgment acquitting the second accused from the charges levelled against him.

¶28

The prosecution alleged that the deceased and the accused 1 and 2 were neighbours. The deceased was building a

¶29

Crl.Appeal No. 779 of 2013 & Crl.Appeal (V) No.1464 of 2013 -:2:-

¶30

fence through the boundary of his property. At about 12.45 p.m on 6/4/2007, when the deceased came to inspect the fence, the 2^nd accused asked him not to extend the fence to his property. Both of them had a quarrel. The 2^nd accused grabbed the deceased by his neck and suddenly the first accused who was sitting in his house came running, took out a knife which was concealed in his waist and stabbed the deceased on the chest and right ribs causing grievous injuries. The deceased collapsed and fell down. Though he was taken to the hospital, he died on account of the said injuries. Hence, the case was chargesheeted against them u/s 302, 324 r/w 34 I.P.C.

¶31

The accused pleaded that they were not guilty of the offence charged and to prove the case prosecution examined PW1 to PW17 and marked Exts.P1 to P27. The material objects produced and proved were MO1 to MO7. The accused examined 4 witnesses as DW1 to DW4 and placed reliance upon Exts.D1 to D26. After completing the procedural formalities, the Sessions Court acquitted the 2^nd accused and convicted the 1^st accused as stated above.

¶32

Learned counsel for the appellant submitted that the

¶33

Crl.Appeal No. 779 of 2013 &

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Crl.Appeal (V) No.1464 of 2013 -:3:-

¶35

prosecution had failed to prove the case beyond reasonable doubt. The witnesses who are alleged to have seen the incident are partisan witnesses and therefore their evidence cannot be believed. Further, the deceased was the aggressor to the crime which part has not been investigated by the police. The first accused had come only to defend his father who was being assaulted and manhandled by the deceased. He also pointed out various infirmities in the evidence and according to the learned counsel, none of the contradictions and omissions had been taken note of by the trial court. He therefore sought for acquittal of the accused.

¶36

On the other hand, learned Public Prosecutor supported the judgment of the Court below and contended that when the eyewitnesses have clearly spoken about the incident, there is nothing more left to be considered. The stab injuries caused to the deceased were right on his chest and lower part of the ribs which was sufficient enough to cause death.

¶37

Learned counsel appearing for the victim's legal heir submitted that common intention to commit the crime was very much evident while considering the facts of the case and

¶38

Crl.Appeal No. 779 of 2013 &

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Crl.Appeal (V) No.1464 of 2013 -:4:-

¶40

therefore the Court below committed serious error in acquitting the second accused. It is at the instance of the 2^nd accused that the first accused came and stabbed the deceased and therefore, he was also responsible for the offence u/s 302 I.P.C.

¶41

Before proceeding further, it will be useful to have a brief narration of the evidence that had been adduced in the matter.

¶42

PW1 is a worker who was engaged by the deceased Narayanan for erecting a fence in the boundary of his property. In his evidence, he stated that he had seen the incident by which Narayanan was stabbed. He has also given the First Information Statement, Ext.P2 to the police. He also identified the knife and stick used by the accused as a weapon and the slippers and pen of deceased as MO3 and MO4 respectively.

¶43

PW2 and PW3 are the other two witnesses who is alleged to have seen the crime being committed. PW3 has taken the deceased to the hospital along with PW12, the wife of the deceased. She is also an occurrence witness. The deceased was taken in the vehicle driven by PW11. The deceased was taken to Palana hospital and was examined by Dr.R.V.K.Nambiar. Ext.P10

¶44

Crl.Appeal No. 779 of 2013 &

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Crl.Appeal (V) No.1464 of 2013 -:5:-

¶46

is the wound certificate issued by him. The postmortem was conducted by PW6 and Ext.P5 is the postmortem certificate. Doctor opined that the cause of death was due to the incised penetrating injuries to the chest of the deceased.

¶47

PW8 is a witness who had handed over the clothes of the deceased to the Circle Inspector of police. He had identified MO5 shirt and MO6 mundu.

¶48

PW9 is the attestor to the seizure mahazar MO5 and MO6. He is also an attestor to Ext.P8 seizure mahazar for MO1. PW10 is an attestor to Ext.P9 scene mahazar by which MO2 stick, MO3 slippers of the deceased and MO4 steel pen of the deceased were recovered.

¶49

PW15 is the Circle Inspector of police who conducted investigation into the crime based on Ext.P1(a) FIR and Ext.P1 statement given by PW1. On the basis of the disclosure statement by the first accused which was recorded in Ext.P16, he had recovered the knife, which was marked as MO1. He had also sent for analysis MO5 and MO6 as per Ext.P9 forwarding note.

¶50

PW16 is the Judicial First Class Magistrate Alathur who has been examined to prove Ext.P2, S. 164 of Cr.P.C. statement of

¶51

Crl.Appeal No. 779 of 2013 & Crl.Appeal (V) No.1464 of 2013 -:6:-

¶52

PW1.

¶53

PW17 is the Circle Inspector of police who continued the investigation. He also identified and proved Ext.P26 the chemical examiner's report.

¶54

It could therefore be seen that the incident was witnessed by four occurrence witnesses. Therefore, the question would be whether their evidence has been shaken by the defence in any manner in order to bring any doubt to the prosecution case.

¶55

PW1 deposed that he knew Narayanan, the deceased who died on account of stabbing. The incident happened in the compound of Narayanan's house at about 1.30 pm on 6/4/2007. He deposed that he saw the accused stabbing the deceased. He had gone there for constructing a fence. The fence was being put up from south to north in the western compound of Narayanan. There was a lady by name Chinna also to help him. The accused are residing on the western side of Narayanan's property. Their properties are lying adjacent. On the western side of Narayanan's property, one Sreenivasan also has some property. They started constructing the fence at 8.30 am. The 2^nd accused came there

¶56

Crl.Appeal No. 779 of 2013 &

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Crl.Appeal (V) No.1464 of 2013 -:7:-

¶58

between 10.30 and 11.30 am and went away. He did not say anything. He just looked at the fencing. Thereafter nobody came. The fencing was over and deceased Narayanan came to inspect the same. It was about 12.45 noon. At that time, the lady worker had gone after the work. When Narayanan came, the 2^nd accused told him that the fence has to be extended. They had a verbal quarrel and started pushing each other. Ramakrishnan (A2) immediately called Babu (A1). A1 is also called as Ratheesh Kumar. A1 came running from behind the house. A2 took hold of Narayanan by his neck. The moment the 1^st accused came, he caught hold of the collar of Narayanan's shirt, took a knife which he had concealed in his waist and stabbed Narayanan in his chest. There was a wooden stick by the side of the fence. When PW1 tried to hit Babu with the stick, Babu took away the stick from him. Then A1 tried to inflict another injury. Shibu, who is the son of Sreenivasan came. When Shibu tried to obstruct, the accused prevented him from creating such obstruction and stabbed Narayanan on his abdomen. When he attempted to stab him a third time, PW1 obstructed. Immediately A1 hit him with the wooden stick. He was hit on his right hand and shoulder.

¶59

Crl.Appeal No. 779 of 2013 &

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Crl.Appeal (V) No.1464 of 2013 -:8:-

¶61

Thereafter they ran away and while running, 1^st accused hit PW1 on his back. When he reached about 10 feet, he looked back. He saw Babu hitting Narayanan with the wooden stick two-three times. Narayanan's wife came running. The accused therefore ran away to their house. He along with Shibu took Narayanan and he was laid in the veranda of the house. Narayanan's dhoti was taken and it was tied around the injury from where blood was oozing. Santhakumaran came there and three of them carried him to the National Highway. From there, he was taken in an auto to Palana Hospital. A person by name Vinu came in a bike. PW1 went in his bike behind the autorickshaw. When they proceeded about 50 metres, a car came which was stopped and the persons who were in the autorickshaw got into the car along with the deceased. PW1 sat in the front seat of the car. After one hour of reaching the hospital, Doctor informed that Narayanan had died. That was at about 2.30 p.m. Narayanan's brother Sivadasan asked him to inform the matter to the police. He went in Sivadasan's car to Kuzhalmantham police station. The matter was informed to the police. It was recorded which he identifies as Ext.P1. He also showed them the place of occurrence. The

¶62

Crl.Appeal No. 779 of 2013 &

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Crl.Appeal (V) No.1464 of 2013 -:9:-

¶64

wooden stick, slippers and pen were recovered. He identified the knife also which was shown to him by the police after sometime. During cross examination, he deposed that in Ext.P1 he had not stated that they took the injured in a car when the auto reached Kuzhalmantham. He also deposed that he does not know why the fact that he looked back while he was running was not recorded by the police. Another contradiction was marked as Ext.D2 wherein he had stated that after everybody had gone, he came back. According to PW1, he had not given such a statement. He deposed that he had not stated that Narayanan came at about 1 pm when he was about to stop the work. That portion in Ext.P1 is marked as Ext.D4. He also stated that he did not say that the incident occurred after 1 pm. That portion is marked as Ext.D5. The contradictions pointed out were not material to discredit the oral testimony of PW1. However, we have to consider the other evidence also.

¶65

PW2 is one Hemachoodan, a neigbour of deceased. He also has witnessed the incident. He deposed that Narayanan's house and his brother Sukumaran's house are in the same compound. First it is Sukumaran's house and thereafter

¶66

Crl.Appeal No. 779 of 2013 &

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Crl.Appeal (V) No.1464 of 2013 -:10:-

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Narayanan's. He had gone to the said place to inform that there was default in payment of Co-operative bank loan and he had gone there to make a demand that the loan had to be closed. Narayanan was the Director of Kuzhalmantham Service Cooperative Bank. He reached the southern gate of Sukumaran's house at about 12.30-12.45. There was a confrontation between Narayanan and 2^nd accused. He also identified A2 as Ramakrishnan. He was standing by the side of a gate. Ramakrishnan asked Babu to come. At that time, he reached the courtyard of Narayanan. From there it was only 70 feet. He proceeded a little more towards north. At that time he saw A1 and A2 coming towards Narayanan. He also identified A1. Narayanan was standing in his own compound. The compound of Ratheesh was on the western side of Narayanan's house. When they reached near Narayanan, Ramakrishnan caught hold of his neck. A2 took a knife from his waist, caught hold of his collar and inflicted a stab injury on the right side of chest. According to him at that time PW1 was also present. PW1 tried to hit A1 with the stick. But A1 caught hold of that stick. When he was trying to inflict another stab injury, Shibu a neighbour came. 1^st accused

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Crl.Appeal No. 779 of 2013 &

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Crl.Appeal (V) No.1464 of 2013 -:11:-

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pulled away Shibu and for the second time, he stabbed Narayanan through his ribs. Narayanan fell down and when the accused attempted a third stab, PW1 obstructed. First accused hit PW1 with a wooden stick and asked him to run away. PW1 ran and A1 hit him with the wooden stick on his back side. Siddique ran towards Narayanan's house. Narayanan was lying on the ground. He further deposed that he saw A1 hitting PW1. Thereafter when wife of Narayanan came, both of them ran away from the scene.

¶72

PW3 Shibu is another eye witness. He also deposed that at about 12.45 noon on 6/4/2007 he was having food at his house. He saw the incident while taking food. He saw Narayanan standing in the property. When he came running, Babu was trying to stab Narayanan. He obstructed. A1 pushed away PW3 and stabbed Narayanan on his abdomen. At that time, blood was coming from Narayanan's chest. At that time, PW1 came. A1 and A2 were trying to assault PW1 with a wooden stick. PW1 ran for a while and in the meantime, A1 inflicted a blow on the back of PW1. A1 and A2 came back and they were beating Narayanan with a stick. Thereafter, they went home. He also stated about the

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Crl.Appeal No. 779 of 2013 & Crl.Appeal (V) No.1464 of 2013 -:12:-

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incident of Narayanan being taken to hospital.

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PW12 is the other eye witness. She also stated that while she was in the kitchen, she heard a quarrelling sound on the northern side. When she went outside, she saw A1 and A2. A1 was having a knife on one hand and on the other hand, he was having a wooden stick. A little away was PW1 and PW3. She went running and saw her husband lying down. When she saw him, he was having an injury on his chest and blood was oozing from it. When she reached there, the accused put down the wooden stick and went to their house. She cried aloud and people in the locality came. Later, he was taken to the hospital and was declared dead.

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On a perusal of the evidence of PW1, 2, 3 and 12, despite a few minor contradictions and omissions, there is nothing to disbelieve the witnesses. PW1, 2 and 3 have categorically stated how the incident had happened. There was a quarrel between Narayanan and second accused with respect to construction of the fence as a result of which there was a push and pull between them. Suddenly, A1 called the 2^nd accused who came running. He was armed with a knife in his waist. He took the knife and stabbed the deceased on his chest itself. PW1 tried to

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Crl.Appeal No. 779 of 2013 &

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Crl.Appeal (V) No.1464 of 2013 -:13:-

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obstruct. He was hit with a wooden stick. Again, the first accused stabbed the deceased by his abdomen among the ribs. When PW12 came running and started crying aloud, they left the place. When eye witnesses have clearly spoken about the incident, we do not think that there is any material to disbelieve their version. The victim was taken to the hospital and the Doctor's evidence clearly indicates that the cause of death was clearly on account of the injury sustained by the deceased. The following were the ante-mortem injuries as evident from the postmortem certificate.

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“1) Incised penetrating wound 1.8x0.5cm, on front of right chest, obliquely placed with upper inner round cut end 13cm below collar bone and 8cm outer to midline. The lower outer sharp cut end was 15cm below collar bone and 9cm outer to midline. On approximation, the wound measured 2.3cm in length. The wound cut the skin and subcutaneous tissues underneath and penetrated the right chest wall between 3^rd and 4^th ribs. The wound cut through the upper border of the 4^th rib into half the breadth of the rib. Depth of the wound in the chest wall measured 4.2cm. Right chest cavity contained 900 ml of blood. Right lung was collapsed. Mediastinum was found shifted to left. Incised penetrating wound 1.9x0.3x2.1cm was seen on the front aspect of right lung in the collapsed state. The wound was directed upwards, backwards

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Crl.Appeal No. 779 of 2013 &

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Crl.Appeal (V) No.1464 of 2013 -:14:-

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and to right and had a total minimum depth of 6.1cm.

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2) Incised penetrating wound 2x0.5cm, transversely oblique, placed on right side of chest, lower front round cut end 14cm below top of right front armpit fold and 17cm outer to midline front of chest. The upper back sharp cut end was 14cm below top of right armpit, in the mid-axillary line. On approximation, the wound measured 2.4cm in length. The wound cut the skin and subcutaneous tissues underneath and penetrated the right chest wall between 6^th and 7^th ribs, just cutting the lower border of 6^th rib. Depth of the wound in the chest wall measured 3.1cm. Incised wound 1.4x0.3x0.8cm was seen on the outer aspect of middle lobe of right lung, in the collapsed state. The wound was directed upwards, backwards and to left and had a total minimum depth of 3.9 cm. 3) Contusion 5x3x1cm, on back of right forearm, 7 cm below elbow. 4) Contusion 3x2x0.4cm, on back and outer aspects of right forearm, 3cm above wrist. 5) Contusion 20x6x1cm, on back of left forearm, wrist and hand, 10cm below elbow.”

¶85

Learned counsel for the appellant however would rely upon the judgment of the Apex Court in Darshan Singh v. State of Punjab [(2010) 2 SCC 333] and argued that this is also an instance where the facts clearly disclose that the accused were

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Crl.Appeal No. 779 of 2013 &

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Crl.Appeal (V) No.1464 of 2013 -:15:-

¶88

attempting to exercise a right of private defence. It is argued that when the son saw father being manhandled, he had to interfere in the matter which ultimately caused the injuries. Though such a ground was not specifically taken during defence, the evidence in the case establishes that he was only exercising a right of private defence and therefore even assuming that the injuries were caused by the accused No.1, it was only in exercise of his right of private defence. Para 58 of Darshan Singh (supra) lays down certain principles relating to the right of private defence, which reads as under:-

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“58. The following principles emerge on scrutiny of the following judgments:

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(i) Self-preservation is the basic human instinct and is duly recognised by the criminal jurisprudence of all civilised countries. All free, democratic and civilised countries recognise the right of private defence within certain reasonable limits.

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(ii) The right of private defence is available only to one who is suddenly confronted with the necessity of averting an impending danger and not of selfcreation.

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(iii) A mere reasonable apprehension is enough to put the right of self-defence into operation. In other words, it is not necessary that there should be an actual commission of the offence in order to give

¶93

Crl.Appeal No. 779 of 2013 &

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Crl.Appeal (V) No.1464 of 2013 -:16:-

¶95

rise to the right of private defence. It is enough if the accused apprehended that such an offence is contemplated and it is likely to be committed if the right of private defence is not exercised.

¶96

(iv) The right of private defence commences as soon as a reasonable apprehension arises and it is coterminous with the duration of such apprehension.

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(v) It is unrealistic to expect a person under assault to modulate his defence step by step with any arithmetical exactitude.

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(vi) In private defence the force used by the accused ought not to be wholly disproportionate or much greater than necessary for protection of the person or property.

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(vii) It is well settled that even if the accused does not plead self-defence, it is open to consider such a plea if the same arises from the material on record. (viii) The accused need not prove the existence of the right of private defence beyond reasonable doubt.

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(ix) The Penal Code confers the right of private defence only when that unlawful or wrongful act is an offence.

¶101

(x) A person who is in imminent and reasonable danger of losing his life or limb may in exercise of self-defence inflict any harm even extending to death on his assailant either when the assault is attempted or directly threatened.”

¶102

Learned counsel for the appellant also relied upon the

¶103

Crl.Appeal No. 779 of 2013 &

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Crl.Appeal (V) No.1464 of 2013 -:17:-

¶105

judgment in Udaikumar Pandharinath Jadhav. State of Maharashtra [(2008) 5 SCC 214] to contend that in order to make out a case of private defence, the accused need not plead it in specific terms, but if circumstances justify an inference with regard to such a right, the Court must examine that possibility as well.

¶106

But it could be seen that the genesis of the incident was a verbal quarrel between deceased Narayanan and the 2^nd accused. A fight started between them as spoken to by PW1. There was a push and pull between them. Evidence further indicates that A2 called A1. But the witness further says that A1 came running. He was having a knife kept in his waist. He took the knife from the waist and immediately stabbed the deceased on his chest. Further the witness also stated that before the inflicting of the injury, 2^nd accused caught hold of Narayanan by his neck. It could be seen that when 2^nd accused called the 1^st accused who was sitting in the house and when he suddenly came, there was no possibility for him to carry a knife in his waist. Therefore, he was ready to come when he is called or rather he was watching the incident and had the knife with him when he

¶107

Crl.Appeal No. 779 of 2013 &

¶108

Crl.Appeal (V) No.1464 of 2013 -:18:-

¶109

was called. But still the witness says that the knife was kept in his waist. So it is possible that he was ready with the knife even before his father called him. The moment he came, he stabbed Narayanan on his chest. 1^st accused did not try to pull them away. Being an youngster, he could have done so especially when Narayanan alone was fighting against his father. Even assuming for the sake of argument that there was an element of protecting his father from an assault by the deceased, after inflicting the first injury which itself is fatal, why did he inflict the 2^nd injury and that too in the abdomen by the side of the ribs which again was fatal and thereafter Narayanan fell down. Witnesses further state that he was beating Narayanan with a stick. All these circumstances would go to show that A1 has exceeded his right of private defence even assuming so. So he cannot get the benefit of right of private defence.

¶110

The evidence also disclose that the knife was recovered on the basis of a statement of the accused and the FSL examination proves that the knife was blood stained.

¶111

There are no facts available in the case to take a different view. The defence had examined four witnesses and

¶112

Crl.Appeal No. 779 of 2013 &

¶113

Crl.Appeal (V) No.1464 of 2013 -:19:-

¶114

several documents were also marked. The evidence of the defence witness was only to prove about the character of Narayanan and that several cases were pending against him. First of all, as rightly observed by the Court below, none of the documents produced had not been proved properly and further character of deceased cannot be a reason to give any benefit to the accused.

¶115

Therefore the defence evidence by itself will not help the accused in any manner.

¶116

Now coming to the appeal filed by the victim's wife challenging the acquittal of 2^nd accused, it is evident from the facts that other than getting hold of the neck of deceased and calling the first accused, the 2^nd accused had not done any overt act. The question is whether he had any premeditation or common intention to commit murder of the deceased. Section 34 of I.P.C. can be made applicable only when a criminal act is done by a few persons in furtherance of a common intention of all, in which event, each of such persons will become liable for that act in the same manner as it were done by him alone. The evidence in the case would disclose that initially the quarrel was between

¶117

Crl.Appeal No. 779 of 2013 &

¶118

Crl.Appeal (V) No.1464 of 2013 -:20:-

¶119

2^nd accused and Narayanan. Only when 2^nd accused called the first accused that he had come and inflicted the fatal injuries. The law in this regard is well settled. The common intention can develop before the incident or during the incident. But in the case on hand, there is no material to indicate that 2^nd accused had an intention to commit murder of the deceased. When we analyse the incident, it could be seen that on hearing the call of second accused, first accused came and immediately stabbed Narayanan on his chest with a knife.

¶120

Learned counsel for the appellant in Crl.Appeal (V) No.1464/13 would contend that there was a premeditation of meeting of minds to do away with the deceased, which is clear from the evidence itself. It is argued that evidence of PW1 clearly discloses that 2^nd accused came and verified the fencing on two occasions. He would have gone inside and cautioned his son about the same. They were looking for an opportunity to have a fight. Therefore, when the deceased came near the fence to inspect the same, 2^nd accused came and questioned the deceased. It is argued that while 2^nd accused came, he had already mentioned to the 1^st accused to get ready and that is the

¶121

Crl.Appeal No. 779 of 2013 & Crl.Appeal (V) No.1464 of 2013 -:21:-

¶122

reason why the first accused had a knife concealed in his waist when he came to the scene of crime. This fact, according to the learned counsel, would prove a common intention.

¶123

But, in a case where the Court below had acquitted the accused, unless there is a positive evidence or positive facts on which we could presume that the 2^nd accused had a common intention to commit murder of Narayanan, it may not be fair for this Court to render a different finding unless there is proof beyond reasonable doubt and the possibility visualised by the Court below was perverse and erroneous.

¶124

The Court below while considering the aforesaid aspect observed that the fight between deceased and 2^nd accused did not stop until the deceased collapsed after being injured and therefore the possibility of the 2^nd accused making a distress call as he felt that he was in danger cannot be ruled out. When such being the finding, which is also a possibility, it may not be proper to arrive at a conclusion that the 2^nd accused had any intention to commit murder of the deceased.

¶125