Judgment :- M.R.Hariharan Nair, J. Appellant, Thomman @ Thomas is the accused in S.C. No. 138 of 1996 of the Sessions Court, Tellicherry. The challenge is with regard to the conviction entered against him for the offence under Sec. 304 Part II with regard to the earth of one Siby and for the offence punishable under Sec. 324 of the I.P.C. with regard to the injury suffered by PW1 – Raveedran Chettiar and the sentence of R.I. for six years and fine of 10,000/- (in default R.I. for six months); and R.I. for two years and fine of Rs. 2500/- (in default R.I. of one month) respectively for the said two offences. 2. Detailed facts of the case are available in paragraph 2 of the impugned judgment and it is unnecessary for me to narrate the entire details all over again. Suffice it to say that the prosecution had alleged that following an incident of insult from Siby, the deceased, at about 9.30 p.m. on 25.8.1995 when Siby and PW1, who were walking southwards from the shop ‘Tasty Food’ which is sandwiched between Toddy shop No. 58 and Arrack shop No, 80 at Karthikapuram bazaar and when they reached in front of the Cinema Theatre by name ‘Udaya Talkies’, the accused, who was walking behind them, asked Siby whether he would insult him and also warned him that he should not pose tall. When Siby retorted that the accused also need not pose tall, the accused suddenly took out MO1 knife and after removing its paper wrapper, inflicted a stab in jury, which struck near the eyebrow of Siby. PW1 then rushed to the aid of Siby and then stating that “you too could get” the accused stabbed at the stomach of PW1. On suffering the stab PW1 ran back to ‘Tasty Food’ shouting that the accused had stabbed him. After the wound suffered by PW1 was dressed with a towel, both the injured were removed to the government Hospital, Taliparamba. By that time Siby had succumbed to the in juries. PW1 was taken to the District Hospital, Kannur and from there to the Medical College Hospital, Kozhikode. His life, however, could be saved. 5. On the arguments advanced in the case the points that arise for decision are: 1. By that time Siby had succumbed to the in juries. PW1 was taken to the District Hospital, Kannur and from there to the Medical College Hospital, Kozhikode. His life, however, could be saved. 5. On the arguments advanced in the case the points that arise for decision are: 1. Whether there is reliable evidence to conclude that the accused was the person responsible for the fatal injuries suffered by Siby? 2. Whether there is reliable evidence to show that the accused inflicted the injuries suffered by PW1? 3. Whether the recovery of MO1 weapon spoken to by the investigating Officer is a proper link connecting the accused with the crime? 4. Whether the offence committed by the accused resulting in the death of Siby comes within Part II of Sec. 304 or only falls under Sec. 326 of the I.P.C.? and 5. Reliefs. 6. Points Nos. 1 and 2 :- these are considered together for the sake of convenience. Ext. P6 wound certificate shows that at 11.15 p.m. on 25-8-1995 the body of Siby reached the Government Hospital, Taliparamba in dead condition and that stab injuries were found on his body. Ext. P4 postmortem certificate proved by PW1 gives the details of the injuries found on the body of Siby as follows: “External Injuries:- 1. Incised wound of about 4cm x .5 cm below (R) eye. 2. Stab wound on (r) upper arm about 5cm below anterior axillary fold of about 5 ½ cms. Length, 3cm width and 6.5 cms deep, directing upwards, backwards and Inwards. The wound extended upwards with the result that the axillary artery and vein were completely cut, just before the posterior circumflex branch arises. Internal Examination: Lungs - Place & congested. Heart - Chambers empty Liver, spleen, kidneys - pale and congested Stomach contained whitish brown viscous fluid (food material) Skull - No fracture Brain - Congested.” The cause pf death stated by the doctor is “shock due to haemorrhage.” He also deposed that external injury No.2 aforementioned is fatal in nature and that both the external injuries found on Siby could be caused by stabbing with a weapon like MO1. 7. PW11 also proved Ext P7, which is the wound certificate in respect of PW1. The said certificate in respect of PW1. The said certificate was based on examination on PW1 at 10.50 p.m. on 25-8-1995. 7. PW11 also proved Ext P7, which is the wound certificate in respect of PW1. The said certificate in respect of PW1. The said certificate was based on examination on PW1 at 10.50 p.m. on 25-8-1995. The injury found was a stab injury at the left subcoastal region. He did not note down he full details of the injury as the condition of the patient was critical and he had to be immediately referred to the District Hospital, Kannur. However, PW11 has stated that the cause of the injury stated to him was ‘stabbed by one Thomas’. 8. Ext. P8 is the discharge certificate issued from the Medical College Hospital, Kozhikode, where PW1 underwent treatment from 26.8.1995 for the stab injuries, the details of which are already mentioned. Emergency laprotomy was done and a small laceration was then found on the spleen. A spleenography was done on the patient and the post operative stage was uneventful. 9. The medical evidence as above clearly shows that Siby sustained fatal injuries and PW1 also sustained stab injury, which had affected even his spleen and that his life could be saved only because of expert management that he received in the hospital. What remains to be looked into is the cause of the said injuries. 10. PW1 has deposed that in the evening of 25-8-1995 he and Siby alighted from a bus at Alakkode, and in a jeep returned to Karthikapuram. He reached the ‘Tasty Food’ at about 9 p.m. and consumed 360 ml. Of arrack along with Siby and one Johny. One Valliyil George waited outside the shop and some time later the four of them went in search of PW10, who was the owner of Udaya Talkies situated a little over 30 metres to the south of the ‘Tasty Food’. PW10 could not be found there. Valliyil George left the other three at that stage. PW1 and Siby thereafter went to the shop; but could not get arrack. At that time the owner of the shop and his son and the accused were inside the shop. Siby asked the accused in an insulting manner whether he was continuing to live at the cost of others. Siby left the shop and thereafter PW1 and Siby went southwards towards Udaya Talkies and the accused followed them. At that time the owner of the shop and his son and the accused were inside the shop. Siby asked the accused in an insulting manner whether he was continuing to live at the cost of others. Siby left the shop and thereafter PW1 and Siby went southwards towards Udaya Talkies and the accused followed them. Some distance away from the accused PW2, who was the curry salesman of the toddy shop, was also coming. The accused overtook Siby, restrained him and asked him whether he would make fun of him again and also warned that he should not pose tall. Siby retorted that the accused also need not pose tall. PW1 was looking elsewhere at that time, but hearing the conversation he turned towards the accused and at that time saw the accused taking out a knife and after removing its paper wrapper, stabbing Siby. Siby raised his right hand apparently to resist and the knife struck on his right armpit. The accused stabbed him again and this time it struck on the eyebrow. PW1 rushed to the aid of siby shouting to stop the attack. PW1 caught hold of Siby and at that stage stating that ‘you too could get it’ the accused stabbed PW1 also. That struck him below his left chest. He ran towards the arrack shop shouting that he had been stabbed by the accused. While there he told the owner of the shop by name Gopi and the owner of the ‘Tasty Foods’ by name Rajappan that he sustained a stab injury and that he might be taken to the hospital. By that time PW4 – Johny, came running and PW1 requested him to bandage his injury. PW4 brought a towel; but it was of insufficient length and therefore PW4 used the shirt and dhoti of PW1 himself to bandage the wound. Thereafter he was taken to the place where Siby was lying injured and from there both were taken to the Government Hospital, Taliparamba. Pw1 was subsequently taken to the Distr4ict Hospital, Kannur. 11. The motive spoken to by PW1 for the occurrence is that Siby made fun of the accused while he was inside the arrack shop. The above version of PW1 finds some corroboration in the wound certificate recorded by PW11, where his statement the cause of injury was the stab inflicted by the accused is seen mentioned. 12. 11. The motive spoken to by PW1 for the occurrence is that Siby made fun of the accused while he was inside the arrack shop. The above version of PW1 finds some corroboration in the wound certificate recorded by PW11, where his statement the cause of injury was the stab inflicted by the accused is seen mentioned. 12. PW2 has corroborated PW1 in all material aspects. He was walking some distance behind the accused, who, in turn, was following PW1 and Siby, who were walking southwards from the shop ‘Tasty Food’. He also heard the conversation between Siby and the accused warning and threatening each other. He has also deposed about the details of the infliction of stab injuries on Siby and PW1. 13. PW3 Antony has corroborated PWs. 1 and 2 with regard top certain parts. He saw the accused coming into the ‘Tasty Foods’. When the shop was almost about to be closed, Siby reached there and he heard Siby asking the accused suing colloquial as to whether he was continuing to live at the cost of others. Thereafter Siby left the shop. PW1 also told him at that him that Siby also sustained stab injuries. PW3 also spoke of the finding of Siby in injured condition and the removal of the victims to the hospital. It was PW3 who gave the F.I. statement, marked as Ext.P1. 14. PW4 Johny shared two quarter bottles of arrack along with PW1 and Siby at the ‘Tasty Foods’ and thereafter all the three went towards the Udaya Talkies and they departed company there. After some time when he was sitting beside the road for urination he heard PW1 who was running, shouting out that the accused had stabbed him. PW1 had also mentioned then about the stab suffered by Siby. When PW4 looked up he saw Siby lying injured and the accused running away holding a knife. PW1 reached the Tasty Food. When PW1 saw PW4 there he requested that his injury might be bandaged. Accordingly PW4 brought a towel from the toddy shop, but that was insufficient for the purpose and ultimately PW4 was bandaged the wound with the shirt and dhoti of PW1 himself. PW4 also spoke about the removal of the injured to the hospital in a jeep. 15. PW5 is the brother of PW4. Accordingly PW4 brought a towel from the toddy shop, but that was insufficient for the purpose and ultimately PW4 was bandaged the wound with the shirt and dhoti of PW1 himself. PW4 also spoke about the removal of the injured to the hospital in a jeep. 15. PW5 is the brother of PW4. He had gone with his wife to Udaya Talkies to see the film, but while the show was on, he sneaked out leaving his wife in the cinema theatre and went to the Tasty Foods where he consumed arrack along with the accused. Thereafter he went over to the adjoining toddy shop and had a talk with its owner Gopi. It was at that time that he saw Siby and PW1 going towards the south and the accused walking some distance away form the accused. After some time PW1 came back running and told that the accused had stabbed himself and Siby. Later he also saw Siby lying injured. He also spoke about the removal of the injured to the hospital. 16. Notwithstanding minor variations, which are insignificant, the sequence of events spoken to by these witnesses is consistent. The trial court which had the benefit of seeing the witnesses in the box and the court chose to believe them. On a perusal of their evidence I do not find any reason to differ from the conclusion of the trial court that these witnesses are trustworthy. 17. The accused has a contention that these witnesses could not have seen the occurrence as there was no light at the scene of occurrence as there was no light at the scene of occurrence which could have enabled them to identify the assailment. This contention has no force. It is clear from Ext.2 scene mahazar that on the eastern wall of the cabin room of the theatre which was facing east (towards the scene of occurrence) a bulb had been fitted at a distance of only 9 metres away. At the northern verandah of the theatre there were 5 more electric bulbs. About 13 metres to the north of the scene, an electric bulb in front of the ticket counter of the theatre was also available. There was hence every possibility for PWs 1, 2, 3, 4 and 5 to have seen the respective parts of the occurrence. At the northern verandah of the theatre there were 5 more electric bulbs. About 13 metres to the north of the scene, an electric bulb in front of the ticket counter of the theatre was also available. There was hence every possibility for PWs 1, 2, 3, 4 and 5 to have seen the respective parts of the occurrence. It is therefore safe to conclude from the evidence of the said witnesses that the fatal injuries suffered by Siby and the injury that PW1 sustained were both caused by none other than the accused herein. 18. Point No.3: One of the items of evidence relied on by the trial court to convict the accused is the recovery MO1 based on the confession statement recorded from the accused after his apprehension. PW19 has deposed that he received the accused, who was under judicial custody to his own custody based on a report filed by him on 30-8-1995 and that while the accused was in police custody as above he gave a confession statement which included a reference to the fact that the knife used for the occurrence and the blood stained clothes of the accused were available in his house and these would be taken out and surrendered. The accused had also told him that he would also show the person from whom the knife had been purchased, Pursuant to this information the accused himself led PW19 to his house and in the presence of witnesses mentioned in Ext. P3 recovery mahazar, MO1 knife and Mos. 7and 8, which are the shirt and lungi worn at the time of occurrence were surrendered by the accused. The said dress items were blood stained. Eventually Mos. 1,7, and 8, along with other items, were sent over for chemical analysis and in Ext. P13 it was certified that all these items contained human blood, though the precise blood group could not be ascertained as the results were inconclusive. 19. PW8, who is an independent witness, has corroborated PW19 in his evidence with regard to the recovery and about the preparation of Ext. P3, to which he was an attesting witness. Absolutely nothing has been brought pout in the cross examination of PW8 with regard to the recovery of these items and in the circumstances the recovery spoken to by PW19 stands established through adequate corroborative evidence. P3, to which he was an attesting witness. Absolutely nothing has been brought pout in the cross examination of PW8 with regard to the recovery of these items and in the circumstances the recovery spoken to by PW19 stands established through adequate corroborative evidence. The medical evidence shows that the injuries sustained by Siby and PW1 were capable of being caused with a weapon like MO1. In the circumstances the recovery of Mos. 1,7 and 8 based on the confession statement given by the accused is also a strong link connecting him with the occurrence. 20. Some decisions were cited by the learned counsel for the appellant to show that recovery evidence is a week form of evidence. It may be so in a case where there is no other adequate evidence. But here is a case where strong oral evidence is available to establish the responsibility of the accused for the injuries suffered by PW1 and Siby and in such a case the recovery can certainly form a corroborative link. 21. PW19 has deposed that he had questioned PW9, who had sold MO1 weapon PW9 deposed in Court that such knives were available in his hardware shop for sale and that a knife were available in his hardware shop for sale and that a knife like MO1 had been sold to the accused by him. When it was suggested to PW9 that he was giving false evidence to help the police, he denied the suggestion. The only challenge with regard to the evidence of PW9 in this regard is based on the fact that he had not asserted that MO1 was the particular knife that he had sold and also that the sale is not covered by any bill. I do not think that these are sufficient reasons to discard the evidence of the witness. In the absence of any serial number or other distinguished mark stamped on each of the knives a dealer like PW9 would not be able to assert positively that MO1 was the particular knife that he sold. He can only say that similar weapons were sold. In the circumstances of this case such evidence also goes in support of the prosecution case that the accused was in possession of MO1 weapon on the date of occurrence and that was used to inflict injuries on Siby and PW1. He can only say that similar weapons were sold. In the circumstances of this case such evidence also goes in support of the prosecution case that the accused was in possession of MO1 weapon on the date of occurrence and that was used to inflict injuries on Siby and PW1. In this circumstances I find that the deposition of PW9 is also a piece of evidence connecting the accused with the crime. 22. Point No. 4: The alternative contention of the appellant is that even assuming that he was responsible for the injuries suffered by the two victims that will not take the case within the frame of Part II of Sec.304 and would come only under Sec. 326. Secs. 304 and 326 are extracted hereunder for the sake of convenient reference. “sec. 304. Punishment for culpable homicide not amounting to murder: Whoever commits culpable homicide not amounting to murder shall be punished with imprisonment for life, or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death. Or with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is done with the knowledge that it is likely to cause death, or to cause such bodily injury as is likely to cause death.” Sec. 326. Voluntarily causing grievous hurt by dangerous weapons or means - Whoever, except in the case provided for by Sec. 335, voluntarily causes grievous hurt by means of any instrument for shooting, stabbing or cutting, or any instrument which, used as a weapon of offence, is likely to cause death, or by means of fire or any heated substance, or by means of any poison or any corrosive substance, or by means of any explosive substance, or by means of any substance which it is deleterious to the human body to inhale, to swallow, or to with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.” 23. There is no dispute that the injuries suffered by Siby were grievous. I have already found that the weapon use for the offence is MO1. There is no dispute that the injuries suffered by Siby were grievous. I have already found that the weapon use for the offence is MO1. A perusal of Ext. P3 shows that MO1 is a knife having total length of 26.5 cms., of which the grip portion had length of 15.5 cms. And the blade had pointed edge. At the mid if the metal portion it had a width of 3.25 cms. There is no doubt at all that, when used as a weapon of offence, is likely to cause death. The ingredients of Sec. 326 no doubt, are clearly established in the present case. But the additional factor to be taken note of is that the victim succumbed to the injuries soon after sustaining it. A person wielding weapon like MO1 aimed at the chest with such force that it completely cut the axillary artery and vein, has to be fixed with at least the knowledge that such injury was likely to cause death. Since death resulted from the attack and acknowledge is evident as above the case goes beyond the purview of Sec. 326 and falls within Sec. 304. The nature of injuries inflicted and the utterances made by the accused at the time show that it was intentional infliction of injury. The medical evidence shows that death of Siby took place in consequence of the injury sustained and that the injury was also likely to cause death of the victim. The ingredients of Sec. 304 part II are thus complete. 24. Reliance was placed by the learned counsel for the appellant on the decision in Parusuraman v. State of Tamil Nadu (AIR 1993 S.C. 141) to support the contention that merely because death was caused, offence need not fall under Sec. 304. The facts of the said case were different. It was obvious from the proved facts therein that the assailants did not have the intention to kill the victim. Out of 13 injuries,11 were on lower kegs ‘and arms. Even at the spot where the victim was apprehended the accused could have certainly killed him, but instead of doing so, he was removed to a cholam field. The attack was merely a retaliatory step. 25. Out of 13 injuries,11 were on lower kegs ‘and arms. Even at the spot where the victim was apprehended the accused could have certainly killed him, but instead of doing so, he was removed to a cholam field. The attack was merely a retaliatory step. 25. In the present case the fatal injuries were suffered at the scene of occurrence itself and from the depth of the injury, the way in which the weapon was wielded and the injuries suffered etc. the intention of the assailant can be deduced. The accused must have known that the stab injuries inflicted by him were likely to cause death. In these circumstances I do not think that there is scope for scaling down the offence from part II of Sec.304 to Sec. 326. IN this view of the matter, I do not think it necessary to go into the decisions cited by the learned Public Prosecutor. To sum up, the conviction entered against the accused for the offence under Part II of Sec. 304 I.P.C. as against PW1 are both fully justified. 26. What remains is the aspect of sentence. The trial court has imposed R.I. for six years for the offence under Sec. 304 and R.I. for two years for the offence under Sec. 324 and both these are allowed to run consecutively. Since both transactions took place at the same scene of occurrence and simultaneously I do not think that it is necessary to make the sentences consecutive. As regards the offence under Sec. 304 Part II, I am inclined to show some leniency. The sentence is accordingly brought down from R.I. for six years to R.I. for five years. The appellant, in the circumstances, is directed to undergo sentence of R.I. for five years and to pay a fine of Rs. 10,000- (in default R.I. for six months) for the offence under Part II of Sec. 304 and to R.I. for two years ad fine of Rs. 2,500-(in default R,.I. for one month) for the offence under Sec. 324 of the I.P.C. The substantive terms of both the sentence will run concurrently. The direction for payment of compensation and default sentence will also stand. The appeal is disposed of with the modification in sentence as mentioned above. The trial court will enforce the sentence as above.