M.R. Somashekara vs The State of Karnataka

Mohan M. Shantana Goudar, J.—The judgment and order of conviction dated 11/14.2.2011 passed by the Additional Sessions Court, Hassan, in SC. No. 194/2006, is called in question in this appeal.

Case of the prosecution in brief is that the deceased Narayana was a petty businessman as well as a Gram Panchayat member; he was doing the sand mining also; he used to hire tractor of accused No. 2 for transporting the sand from one place to another place; however of late, the deceased Narayana had stopped hiring the tractor of accused No. 2, consequent upon which accused No. 2 had grouse against the deceased Narayana; at about 6.00 p.m. on 14.9.2006, the deceased Narayana received a telephone call from accused No. 2-Somashekhara saying that the deceased should come and meet him at Balupete; on receipt of the said telephone call, the deceased took his jeep bearing Regn. No. MEC.8380 to go to Balupete to meet accused No. 2; PW.2-Sudeepa (son of deceased), PW.3-Paramesha and PW.5-Lokesha (nephews of the deceased) also boarded the jeep in order to have panipuri (chats) at Balupete; PWs.2, 3 and 5 were aged between 12 and 14 years during the relevant point of time; the deceased met both the accused on the way to Balupete; both the accused as well as the deceased travelled for about two hours and ultimately, all of them including PWs.2, 3 and 5 started back to their native place, i.e., Muthige Village of Alur Taluk, Hassan District; on the way back to home, accused No. 2 started quarrelling with the deceased Narayana as to why he stopped hiring his tractor for transporting the sand and in that regard, deceased told accused No. 2 that hire charges fixed by him are on the higher side and therefore he has stopped to hire his tractor; when the altercations were going on in that regard, accused No. 1 told accused No. 2 that the deceased is not heeding to their request and therefore he should be finished; accused No. 1 who was driving the jeep stopped the jeep near the garden land of Honkaravalli Neelakantappa; both the accused dragged the deceased out of the jeep, accused No. 2 held him tightly and accused No. 1 took out the button knife-MO. No. 6 and stabbed the deceased mercilessly, consequent upon which the deceased sustained six injuries, out of them three are incised wounds; the three children (PWs.2, 3 and 5) having feared, started crying in the jeep itself and they prayed both the accused to save the life of the deceased; thereafter, both the accused took the injured Narayana in the jeep and went to Government Hospital, Sakaleshpura, wherein the Hospital authorities told that the deceased was brought dead.

PW.2-Sudeepa called his mother (complainant-PW.1) from a public telephone situated in the premises of Government Hospital, Sakaleshpura and intimated about the incident in question; immediately thereafter, the complainant (PW.1), brother of the deceased (PW.8) and PW.20 came to the Hospital.

The incident has taken place at about 11.45 p.m. on 14.9.2006; the complainant-PW.1 lodged the First Information as per Ex. P1 at 4.30 a.m. on 15.9.2006 before Sakaleshpura Police Station, which came to be registered in Crime No. 170/2006 for the offences punishable under Sections 341 , 302 r/w. Section 34 of IPC. The First Information Report reached the jurisdictional Magistrate at 11.15 a.m. on the very day. PW.19, the Inspector of Police completed the investigation and laid the charge sheet against both the accused for the offences punishable under Sections 341 , 302 r/w. Section 34 of IPC.

In order to prove its case, the prosecution in all examined 22 witnesses and got marked 16 Exhibits and 9 Material Objections. On behalf of the defence, 3 Exhibits were got marked. However, oral evidence on behalf of the defence was not let in. The Trial Court on evaluation of the material on record, convicted both the accused for the offences with which they were charged.

It is relevant to note here itself that accused No. 1, namely, Manja @ Choori Manja @ Yuvaraja has expired during the pendency of this appeal. Hence, appeal filed by him in Crl.A. No. 728/2011 came to be dismissed by this Court on 10.12.2015 as having been abated. Hence, we heard only this appeal which is filed by accused No. 2.

Sri Dinesh Kumar, learned advocate appearing on behalf of the appellant taking us through the entire material on record, submits that there is a delay in sending the FIR to the jurisdictional Magistrate, inasmuch as though the complaint is said to have been registered at 4.30 a.m. on 15.9.2006, the FIR reached the jurisdictional Magistrate at 11.15 a.m. on the said day. Thus, according to the appellant''s counsel there was a lot of time available for the prosecution to concoct the story against the accused and to create the eye-witnesses; PWs.2, 3 and 5 are not the eye-witnesses to the incident in question, inasmuch as there is no reason as to why they should accompany the deceased during night hours of 14.9.2006, particularly when their monthly tests were going on and on the next day i.e. on 15.9.2006, there was one more paper. He further submits that PWs.2, 3 and 5 (child witnesses) have admitted that generally at about 10.30 p.m. they would sleep in their house and thus, therefore they must have not seen the incident at all; if really PWs.2, 3 and 5 are the eye-witnesses to the incident in question, they would have accompanied the complainant-PW.1 to the Police Station for assisting her while lodging the complaint; their statement would have been recorded during the course of inquest, which was held from 7.30 a.m. to 10.00 a.m. on 15.9.2006; the very fact that the statements of the eye-witnesses are not recorded by the Police during the course of investigation itself would clearly reveal that these three children are not eye-witnesses to the incident in question. He also submits that statements of the eyewitnesses are recorded subsequently on 15.9.2006 and 16.9.2006 and such delay in recording the statements of these eye-witnesses is not explained satisfactorily by the prosecution. Lastly, he submits that the appreciation of the evidence by the Trial Court is improper and incorrect, which has resulted in miscarriage of justice. In the alternative, he submits that accused No. 2 at the most is liable to be convicted for the offence punishable under Section 304 Part-II of IPC and not under Section 302 of IPC, inasmuch as he did not have any intention to commit the murder of the deceased and as the incident has taken place on a spur of the moment; accused No. 1 suddenly took out the button knife brought by him and stabbed the deceased without sharing the said fact with accused No. 2 prior to the incident in question. In other words, the argument of the appellant''s counsel is that accused No. 2 did not share the common intention along with accused No. 1 and therefore accused No. 2 is wrongly held liable for the offence of murder which was committed by accused No. 1.

Per contra, Sri Keshavamurthy, learned SPP-II argued in support of the judgment of the Court below contending that the evidence of the three eye witnesses is consistent, cogent and reliable. Their names are forthcoming in the inquest panchanama as well as in the scene of offence panchanama which were drawn one after the other immediately after registering the complaint; the statement of PW.2 was recorded on 15.9.2006 without any delay and the statements of PWs.3 and 5 were recorded on the next day, i.e., on 16.9.2006; the delay of one day if any, in recording the statements of PWs.3 and 5 cannot be made much of by the defence, inasmuch as they have withstood in their cross-examination. Having regard to the totality of the facts and circumstances of the case, he submits that the trial Court is justified in convicting accused No. 2 also for the offence punishable under Section 302 of IPC, inasmuch as he had shared common intention with accused No. 1 for committing the murder of the deceased. He also supports his arguments based on the evidence of recovery of knife and as the blood stained clothes of accused No. 2 as well as the FSL report and the serology report as per Exs. P14 and P16 respectively.

Before proceeding further, it could be beneficial to refer to the depositions of each of the witnesses in brief.

PW1 is the wife of the deceased and mother of PW.2. She has lodged the complaint as per Ex. P1 based on the information given to her by her son Sudeepa-PW.2 who is the eye witness to the incident in question. She has also deposed about the deceased receiving a telephone call from accused No. 2 and about the deceased leaving the house in the jeep along with PWs.2, 3 and 5. She has further deposed about he getting information through phone from PW.2 in the early hours of 15.9.2006 consequently she rushed to the hospital along with PWs. 8 and 20 in the vehicle of PW.20 to the hospital for seeing to deceased. She has emphatically deposed about the motive for commission of offence as well as the incident which happened prior to the deceased leaving the house in the jeep after getting the telephone call from accused No. 2.

PWs.2, 3 and 5 are the child witnesses. All these three witnesses have deposed about the incident in question and in the manner in which the deceased as well as they were taken by both the accused in the jeep to different places. It is specifically deposed by them that during the transit, accused No. 2-Somashekhara instructed them to alight from the jeep with a view to take the deceased alone in the jeep to a different place. However, deceased objected for the same by telling accused No. 2 that it is getting night and therefore the children would be safe in the jeep itself. All the three witnesses have consistently deposed about the incident in question.

PW.4 is the sister-in-law of the deceased. She has also deposed that PWs.2, 3 and 5 went along with the deceased in the jeep during the evening of 14.9.2006. She also rushed to the hospital and saw the dead body.

PW.6 is the daughter of the deceased. Her evidence is on par with the evidence of PW.1, inasmuch as she has deposed about the deceased leaving the house on getting the telephone from the accused.

PW.7 is the witness for inquest mahazar at Ex. P3.

PW.8 is the elder brother of the deceased. His evidence is almost on par with PWs.4 and 6. He has deposed that PWs.2, 3 and 5 accompanied the deceased in the jeep in the evening of 14.9.2006. He rushed to the hospital after getting the news of death of the deceased.

PW.9 is the witness for scene of offence mahazar at Ex. P2.

PW.10 is the witness for seizure mahazar at Ex. P4 under which blood stained clothes of the deceased (MO. No. 1 to 3) are recovered.

PWs.11 and 12 are the witnesses for recovery of blood stained clothes of accused No. 1 as per recovery mahazar at Ex. P5. But however, they have turned hostile to the case of the prosecution.

PW.13 is the doctor who conducted autopsy over the dead body. Postmortem report is at Ex. P6. Ex. P7 is the opinion of the doctor. Postmortem report as well as the evidence of the doctor-PW.13 disclose that the injured had sustained as many as six injuries and out of them two were stabbed wounds; one incise wound; two contusions and one abrasion. The doctor has opined that the death is due to hypovolemic shock as a result of injury to the vital organs lung and major blood vessel (femoral vessels).

PWs.14 and 15 are the Police Constables; among them, PW.14 has carried FIR to the jurisdictional Magistrate. PW.14 has deposed that he carried the FIR from the Police Station at about 10.30 a.m. and submitted before the jurisdictional Magistrate at 11.15 a.m. on 15.9.2006.

PW.16 is the witness for recovery mahazar at Ex. P9 under which the knife (MO. No. 6) is recovered at the instance of accused No. 1 from his car.

PW.17 is the witness for recovery panchanama at Ex. P10 under which blood stained jerkin of accused No. 2 (MO.NO.7) is recovered from his house. PWs.16 and 17 support the case of the prosecution.

PW.18 is the Sub-Inspector of Police. He registered Crime No. 170/2006 based on the complaint lodged by PW.1 in Sakaleshpura Police Station.

PW.19 is the Inspector of Police. He completed the investigation and laid the charge sheet.

PW.20 assisted PW.1 and others to go to Hospital in the car in the early hours of 15.9.2006.

PW.21 is the Scientific Officer of Forensic Science Laboratory. FSL report is at Ex. P14.

PW.22 is another Scientific Officer of Forensic Science Laboratory. Serology report is at Ex. P16.

From the aforementioned, it is clear that case of the prosecution mainly depends upon the ocular testimony of PWs.2, 3 and 5 and the testimony of PWs.16 and 17 who have deposed about recovery of knife-MO. No. 6 as well as the blood stained clothes of accused No. 2 (MO. No. 7).

We have gone through the evidence on record, more particularly evidence of three child witnesses PWs.2, 3 and 5. PW.2 is none other than the son of the deceased. He has deposed that at about 6.00 p.m. on 14.9.2006, accused No. 2 had called the deceased over phone and after getting such telephone call from accused No. 2, the deceased told the inmates of the house that he has received telephone call from accused No. 2 and therefore he has to go to Balupete; so saying he started proceeding to Balupete; at that point of time, himself (PW.2), Paramesh (PW.3) and Lokesh (PW.5) insisted to go along with the deceased for having panipuri (chats) at Balupete; the deceased accordingly took the three children to Balupete in the jeep for getting them chats; the deceased stopped the jeep at Hosakote and got chats to PWs.2, 3 and 5; the deceased went elsewhere for a brief period from that chat shop; however, he came back with Kantaraj (not examined before the Court); accused No. 2 followed the jeep on a motorcycle; after PWs.2, 3, 5 boarded the jeep, accused No. 2-Somashekhara went ahead of the jeep; when the jeep reached Kadlurukudi Village, both the accused were standing along with the bike and both of them talked with the deceased and at that point of time, the aforementioned Kantharaj left the company of the deceased and children and went away; accused No. 1 requested the deceased to come to Balupete and accordingly, they started proceeding towards Balupete; however, accused No. 2 insisted that three children should alight from the jeep inasmuch it was getting late, but the deceased did not allow the children to alight from the jeep and told both the accused that the children will also accompany them in the jeep; thereafter the accused took the deceased towards Balupete; after filling the diesel in a petrol bunk at Balupete, they went to Baage Village; in the said village, both the accused as well as the deceased went to the house of relative of accused No. 1 for getting certain articles in the house; and at that point of time, all the three children were left in the house of relative of the deceased, wherein the children were watching the television; after some time, both the accused as well as the deceased came back to the children and took them in the jeep once again; they went further to Balupete; the jeep stopped for certain period subsequently and both the accused as well as the deceased went to certain place for some time and they came at about 10.00 p.m. on 14.9.2006; all of them started back to their native place and at that point of time, accused No. 1 was driving the jeep, deceased was sitting in the middle seat of the front row and accused No. 2 was sitting on the left side of the deceased, three children were sitting on the rare seat of the jeep; when the jeep came near the garden land of Neelakantappa, accused No. 2 started quarrelling with the deceased and told him as to why he has stopped hiring his tractor for transporting the sand; the deceased replied that hire charges of accused No. 2 are on the higher side and therefore he has made alternative arrangements; when such altercations were going on, accused No. 1 told accused No. 2 that the deceased is not heeding to their request and therefore he should be finished; when accused No. 1 stopped the jeep, accused No. 2 got down from the jeep, dragged the victim and held him tightly; accused No. 1 took out the button knife and stabbed the deceased; PWs.2, 3 and 5 on seeing the ghastly incident, were shocked; they requested both the accused to save the life of the injured and therefore the injured was taken in the jeep once again and he was shifted to hospital at Sakaleshpura; hospital authorities declared that the deceased was brought dead; while taking injured in the jeep, both the accused threatened the children not to intimate about the incident to anybody or else they would also be killed; after taking the injured to the hospital, both the accused went away; immediately thereafter PW.2 called his mother (PW.1) over phone from the public telephone situated in the hospital premises; after getting the telephone call, PWs.1, 8 and 20 came to the hospital and they were informed about the incident in detail by PWs.2, 3 and 5.

PW.2 has identified all the three accused in the Court. It is specified in the evidence of PW.2 that he knew both the accused since they were coming to his house frequently. PW.2 being the child witness was subjected to cross-examination by the defence, however the said eye witness has withstood in his cross-examination fully. Nothing worth is elicited in favour of the case of the defence. Number of suggestions are made by the defence for getting favourable answers from the mouth of PW.2, but all suggestions are denied by PW.2. He has completely withstood in his cross-examination. We find that the evidence of PW.2 fully supports the case of the prosecution in all material particulars. Not even a single incident is left over without being deposed by PW.2 before the Court. However, PW.2 has admitted that the police had come to the hospital after his mother came to the hospital. There is no dispute that the police had come to the hospital. Mere presence of the police in the hospital could not shake the credibility of the evidence of PW.2 inasmuch as the complaint came to be lodged based on the information given by PWs.2, 3 and 5.

It is emphatically deposed by PW.2 that he not only gave information to his mother initially over phone, but also gave detailed information when PW.1 came to the hospital along with the relatives. Based on the information given by PW.2, complaint came to be lodged as per Ex. P1 by PW.1 at 4.30 a.m. on 15.9.2006. PW.1 and her relatives came to the hospital at about 2.00 a.m., and after getting full information from PWs.2, 3 and 5, PW.1 lodged the complaint as per Ex. P1. The complaint gives full and graphic picture as to how the incident took place. The evidence of PW.2 fully supports the contents of the complaint at Ex. P1 in all material particulars.

Version of two other eye witnesses, viz., PWs.3 and 5 is almost consistent with the evidence of PW.2. Both these eye witnesses have also deposed on par with the evidence of PW.2 with regard to all particulars. They have also boarded the jeep along with PW.2 (son of the deceased) in order to have chats (panipuri). The house of PWs.3 and 5 is adjoining the house of PW.1. PWs.3 and 5 are none other than the sons of brother of the deceased. PWs.3 and 5 are brothers inter se. It is but natural for the children to accompany the elders whenever they get chance to go outside. PWs.2, 3 and 5 being the children went along with the deceased with a view to have chats in the evening of 14.9.2006. The deceased took PWs.2, 3 and 5 without suspecting that he would be murdered by the accused. PWs.3 and 5 though was subjected to lengthy cross-examination by the defence, they withstood in their cross-examination. On meticulous reading of the depositions of PWs.2, 3 and 5, we are in complete agreement with the reasons assigned by the trial Court while accepting the version of these eye witnesses. We find that the evidence of these witnesses is consistent, cogent and reliable. We do not find any artificiality in their evidence. There is no reason as to why the prosecution should plant the eye witnesses in the form of PWs.2, 3 and 5. If really the prosecution wanted to create a story by planting eye witnesses, it could have taken the help of majors and not minors.

Be that as it may, we find that the presence of all these eye witnesses is natural on the scene of offence. We do not find any ground to disbelieve the version of these witnesses particularly when their evidence would not have been shaken by the defence.

As mentioned supra, the defence commented that the statements of PWs.3 and 5 are recorded with the delay of one day and the statement of PW.2 was recorded with the delay of few hours after the incident. It is no doubt true that the police had come to the hospital and had talked with PW.1 as well as PWs.2, 3 and 5. Consequently, the defence may be justified in arguing that the police knew very well about the culprits during the early hours of 15.9.2006 itself. But such arguments though appear to be attractive, the same have to be tested along with the attending circumstances. It is not in dispute that the complaint came to be lodged at 4.30 a.m. on 15.9.2006 itself. PWs.2, 3 and 5 were minors in age during the relevant point of time. They were aged between 12 and 14 years and they were school going children. After seeing ghastly incident, they might have feared to talk with anybody, more so with the police. It cannot be lost sight off that these three eye witnesses are from the remote village and they did not have worldly knowledge. Therefore, they might have waited till the arrival of PW.1. More over, the three children were threatened by the accused that they should not disclose about the incident to anybody and if they disclose, they would also be killed. Under these circumstances, they might have kept mum till PW.1 and her relatives came to the hospital. Immediately after getting the information from PWs.2, 3 and 5, the complainant-PW.1 has lodged the complaint as per Ex. P1 at 4.30 a.m. on 15.9.2006. Thus, virtually there is no delay on the part of the complainant in lodging the complaint. There is no scope for concoction also, inasmuch as the children were very much present in the hospital and narrated about the incident, based on which the complaint came to be lodged by PW.1.

It is no doubt true that there is some delay in reaching the FIR to the jurisdictional Magistrate. Though the crime came to be registered at 4.30 a.m. on 15.9.2006, the FIR reached the jurisdictional Magistrate at 11.15 a.m. on the very day. Thus, there is a gap of 6 to 7 hours after registration of the crime. Such a delay cannot be made much of as much water has flown within the period of seven hours. The inquest mahazar was conducted from 7.30 a.m. to 10.00 a.m. on 15.9.2006 and thereafter the scene of offence mahazar was conducted from 11.30 a.m. In both these mahazars, the names of three eye witnesses(PWs.2, 3 and 5) find place. In column No. 17 of the inquest panchanama, it is clearly mentioned that the incident is narrated by these three eye witnesses. Question No. 3 of inquest panchanama relates to the persons who saw the incident, when and where. Inquest report states that the incident has taken place at about 10.45 pm. on 14.9.2006 near the garden land of Neelakantappa, Hoskote Road and the incident is witnessed by Sudeepa (PWs.2), Paramesh (PW.3) and Lokesh (PW.5). Thus, the inquest panchanama which is drawn between 7.30 a.m. and 10.00 a.m. on 15.9.2006, i.e., immediately after lodging the complaint clearly reveals that PWs.2, 3, and 5 are the eye witnesses to the incident it states and about the details of the incident. In view of the same, the delay of about 6 to 7 hours in reaching the FIR to the jurisdictional Magistrate cannot be made much of by the defence.

It is by now well settled by catena of judgments that merely because the Investigating Officer has not recorded the statements of eye witnesses/important witnesses at an earliest, the case of the prosecution cannot be suspected and it is not open to contend that such witnesses are got-up witnesses. It is essential that the Investigating Officer should be asked specifically about the delay and the reasons therefor. Evidence of a witness does not become untrustworthy merely because he was examined after delay by the Investigating Officer. Delay in examining the witnesses by police itself cannot be ground to discard their testimony, more so, when in the cross-examination of the witnesses, nothing tangible had been brought out to impeach their testimony {see the judgments in the case of Ranbir and Others Vs. State of Punjab, ; Ramesh v. State of M.P. - 2000 SCC (CRI)206 ; Hari Singh and another Vs. State of Rajasthan, }

We have already clarified supra that all the eye witnesses have withstood in their cross-examination and nothing tangible is elicited by the defence so as to discard the version of the three eye witnesses. All the three eye witnesses have identified the knife (MO. No. 6) as the weapon used for commission of the offence. Hence, in our considered opinion, the trial Court is justified in relying upon the version of these eye witnesses for coming to the conclusion.

The case of the prosecution and the evidence of the eye witnesses is further supported by the evidence relating to recovery of certain incriminating articles. The prosecution has lead the evidence of PWs.11, 12,16 and 17 to prove the aspect of recovery. However PWs.11 and 12 who were supposed to depose regarding recovery of blood stained shirt of Accused No. 1 from his house under panchanama - Ex. P5, have turned hostile to the case of the prosecution. Despite the cross-examination of PWs 11 and 12 by the Public Prosecutor, no useful material is gathered in favour of the prosecution. Therefore the evidence of PWs.11 and 12 may not be of any use for either of the parties.

The evidence of PWs.16 and 17 is relevant for the purpose of proving recovery. PW.16 is the witness for panchanama - Ex. P9 under which the knife MO.6 used by Accused No. 1 for commission of the offence is recovered from Accused No. 1. PW.17 is the witness for panchanama - Ex. P10 under which the blood stained jerkin - MO.7 worn by Accused No. 2 was recovered from his house. Both these witnesses have supported the case of the prosecution. Their evidence is also supported by the Investigating Officer - PW.19.

PW.16 has deposed that Accused No. 1 lead the Police to his car and took out a knife (MO.6) hidden in the car and the same was seized under panchanama -Ex. P9. The knife - MO.6 was blood stained. As mentioned supra, MO.6 is also identified by three witnesses as the weapon used for commission of the offence.

PW.17 has deposed that Accused No. 2 lead the Police and the panchas to his house wherein he had hidden his blood stained jerkin - MO.7 which he was wearing at the time of the incident and the same was seized under mahazar - Ex. P10.

Nothing is brought out from the cross-examination of PWs.16 and 17. On reconsidering the evidence of these witnesses, we are of the considered opinion that the trial Court is justified in relying upon the evidence of these witnesses relating to the recovery of the knife - MO.6 and jerkin - MO.7. We have already mentioned supra that the blood stained apparels of the deceased (MOs.1 to 3) were seized under panchanama -Ex. P4. From the evidence of PWs.16 and 17, it can be safely concluded that the prosecution has proved recovery of blood stained knife and the blood stained jerkin at the instance of Accused Nos. 1 and 2 respectively.

The case of the prosecution is further supported by the Forensic Science Laboratory report - Ex. P14 and the Serology report - Ex. P16. The blood stained clothes of the deceased, blood stained mud collected during the course of scene of offence panchanama, unstained mud collected from near the spot, the blood stained jerkin of Accused No. 2 and the blood stained knife used by Accused No. 1 for commission of the offence were sent to FSL in sealed cover for examination. The FSL by its report dated 30.10.2006 vide Ex. P14 has reported that all the items sent to FSL except the control mud were stained with blood. It is specified that the blood stains were found on the blade and handle of the knife. The serology report - Ex. P16 discloses that all the items sent for examination by Serologist except the control mud/sample mud, were stained with blood. After grouping of the blood, the Serologist has concluded that item Nos. 3, 4, 5, 6, 7, 8 and 9 were stained with ''B'' group blood and the blood group of the blood stains in item No. 1 could not be determined since the results of the tests were inconclusive. Item No. 1 is blood stained mud collected from the scene of offence. Other items viz., item Nos. 3 to 9 were stained with ''B'' group of human blood. Thus it is clear that the clothes of the deceased, the jerkin worn by Accused No. 2 and the knife used for commission of the offence by Accused No. 1 were all stained with ''B'' group human blood.

From the totality of facts and circumstances and the aforementioned discussion of us, the only conclusion that can be reached is that the trial Court is justified in convicting both the accused for the offences with which they were charged.

We also do not find any reason to accept the arguments of the defence counsel that Accused No. 2 shall be convicted for the offence under Section 304 Part II of IPC. It is not in dispute that Accused No. 2 called the deceased over phone while the deceased was in house, to go over to Balupet village. At the instance of Accused No. 2, the deceased proceeded on his jeep to Balupet alongwith PWs. 2, 3 and 5 who are the minor children. It was Accused No. 2 who took the deceased and the three eye witnesses to different places during the midnight intervening between 14.9.2006 and 15.9.2006. It was Accused No. 2 who started quarreling with the deceased on the ground that the deceased had stopped hiring his tractor for transporting sand. Thereafter the Accused No. 2 dragged the deceased from the jeep and facilitated Accused No. 1 for stabbing. It is conclusively proved that Accused No. 2 has held the deceased tightly and Accused No. 1 stabbed the victim. Without the active cooperation of Accused No. 2, the offence would not have occurred. There was no motive for Accused No. 1 for commission of the offence. But the Accused No. 2 had got motive for commission of the offence. In that regard, the arguments of learned SPP that the accused has shared the common intention all through from 6 p.m on 14.9.2006 till the commission of the offence deserves to be accepted. If really Accused No. 2 did not want Accused No. 1 to commit the murder of the deceased, he would have requested Accused No. 1 not to stab the deceased. On the other hand till the deceased fell down on the ground with bleeding injuries, Accused No. 2 had held the deceased. It was Accused No. 2 who wanted to avoid the company of three children (eye witnesses) before committing the murder and in that regard, he instructed three eye witnesses not to accompany them. However the deceased took the said three eye witnesses alongwith him to the scene.

Hence looking to the totality of facts and circumstances of the case, we are of the view that both the accused have shared the common intention for committing the murder of the deceased. In view of the same, Accused No. 2 is also liable to be convicted for the offence under Section 302 of IPC. Hence the order of conviction passed by the trial Court is just and proper and no interference is called for.

Accordingly, the appeal fails and the same stands dismissed.