Judgment :- Radhakrishnan, J Santhakumari (PW-7) would have never thought that she would become a widow at the hands of her own brothers and that her brothers would have to undergo imprisonment for life for committing murder of her husband. Deceased Sasi was enjoying the evening of 27.05.2001, after a day’s labour, with his wife (PW-7) and his son (PW-1) watching television. At 9.30 p.m on 27.05.2001 brothers of his wife along with third accused came to his house and third accused pulled him out of the house to the courtyard facilitating others to do the rest. First accused stabbed him with knife and second accused inflicted cut injuries on several parts of the body of the deceased with tapping knife and when the wife of the deceased intervened second accused also inflicted cut injury on her hands as well. P.W.7’s husband was taken to Kanjirappally Government Hospital and on reaching the hospital, P.W.8 the Doctor declared him dead. P.W.1 son of the deceased went to Mundakkayam Police Station and gave Ext.P1 statement which was recorded by P.W.16 Sub Inspector of Police Station and Crime No 107/2001 under Sections 302, 447 and 324 I.P.C read with Section 34 I.P.C was registered. 2. Investigation was taken over by P.W.17 Circle Inspector of Police, Kanjirappally who conducted inquest on the body of the deceased at the Government Hospital, Kanjirappally and prepared Ext.P9 inquest report in the presence of P.W.12 and recovered M.Os 3,4 and 5 from the body of the deceased. Deadbody was sent to Medical College Hospital for post-mortem examination. P.W.15 Assistance Professor of Forensic Medicine, Medical College Hospital conducted autopsy on the body of the deceased and issued Ext. P13 post-mortem certificate. He also collected blood and viscera of the deceased and obtained Ext. P14 chemical analysis report. P.W.17 visited the place of occurrence and prepared Ext. P10 scene mahazar in the presence of P.W.13 and another. On 2.6.2001 P.W.17 arrested the accused persons from near the private bus stand or Earattupetta and when questioned, first accused gave Ext.P11(a) statement and as led by him P.W.17 went to a place from where M.O.1 knife was recovered with the help of the first accused. P.W.17 prepared Ext.P11 seizure mahazar in the presence of P.W.14 and another. On 2.6.2001 P.W.17 arrested the accused persons from near the private bus stand or Earattupetta and when questioned, first accused gave Ext.P11(a) statement and as led by him P.W.17 went to a place from where M.O.1 knife was recovered with the help of the first accused. P.W.17 prepared Ext.P11 seizure mahazar in the presence of P.W.14 and another. Second accused was also questioned who gave Ext.P12(a) statement regarding the place where he concealed the weapon of offence, M.O.2 which was recovered under Ext.P12 mahazar in the presence of the same attestor to M.O.1. 3. In order to establish the case, prosecution examined P.Ws 1 to 18 and marked Exts. P1 to P19 documents and M.Os 1 to 4. After closure of the prosecution evidence, the accused persons were questioned under Sections 313 of the Code of Criminal Procedure and they denied all incriminating circumstances brought against them and maintained their innocence. The court felt that the case warranted no acquittal under Section 232 of the Code of Criminal Procedure, and the accused persons were called upon to enter on defence. D.W.1 to D.W.4 were examined on the side of the defence. The court below after appreciating the oral and documentary evidence came to the conclusion that prosecution has proved the case beyond reasonable doubt and found that accused 1 to 3 had committed the offence punishable under Section 302 read with Section 34 I.P.C and were convicted and sentenced to undergo imprisonment for life and to pay compensation of Rs.50,000/- each to P.W.1, P.W.7 and the daughter of the deceased under Section 357 (3) of the Code of Criminal Procedure. Accused 1 to 3 were further sentenced to undergo simple imprisonment for three months under section 447 read with Section 34 I.P.C. The second accused was sentenced to undergo rigorous imprisonment for one year under section 324 I.P.C and the sentences were ordered to run concurrently. Aggrieved by the same these appeals have been preferred. Crl. Appeal No.110 of 2004 is filed by accused 1 and 2 and Crl. Appeal No.1812 of 2003 is filed by the third accused. 4. Sri Varghese Prem, counsel appearing for the appellants – accused persons took us elaborately through the oral and documentary evidence adduced in the case and also the evidence of D.Ws 1 to 4, examined on the side of the defence. Appeal No.1812 of 2003 is filed by the third accused. 4. Sri Varghese Prem, counsel appearing for the appellants – accused persons took us elaborately through the oral and documentary evidence adduced in the case and also the evidence of D.Ws 1 to 4, examined on the side of the defence. According to the counsel, prosecution has failed to prove the case against the accused persons beyond reasonable doubt and argued for acquittal. Counsel submitted that P.Ws 1 and 7, are highly interested witnesses and their version of the incident is totally unreliable warranting acquittal of the accused persons. The evidence tendered by other witnesses is also most unreliable and not worthy of acceptance. Counsel submitted that the deceased is none other than the brother-in-law of accused 1 and 2 and it is highly improbable that they would commit such a gruesome act. Counsel submitted that in any view of the matter, prosecution has no case that third accused had inflicted any injury on the body of the deceased and hence he has shared no common intention with accused 1 and 2 so as to commit the offence of murder. In any view, counsel submitted that the worst that could be said is that the acts of accused Nos. 1 and 2 would amount to only culpable homicide not amounting to murder and therefore imposition of imprisonment for life is unwarranted in the facts and circumstances of the case. 5. Sri sujith Mathew Jose, learned Public Prosecutor, on the other hand submitted that the prosecution has established its case beyond reasonable doubt and the trial court has rightly accepted the version of the prosecution and found the accused persons guilty and appropriate sentence has been awarded to accused persons. Counsel submitted there is no reason to disbelieve the evidence tendered by the eye witnesses even if they are interested witnesses. Counsel submitted that the accused persons shared a common intention and so found by the trial court warranting no interference. 6. Motive for the murder: Evidence of previous quarrels or resentment which must reasonably engender ill feeling are always relevant. Prosecution version is that two or three years prior to the incident there was a theft of palmyra bunches from the palm trees of P.W.4, leased to P.W.6, brother of the deceased for tapping. 6. Motive for the murder: Evidence of previous quarrels or resentment which must reasonably engender ill feeling are always relevant. Prosecution version is that two or three years prior to the incident there was a theft of palmyra bunches from the palm trees of P.W.4, leased to P.W.6, brother of the deceased for tapping. P.W.4 had lodged Ext.P18 complaint before Mundakkayam Police station but the case could not be charge sheeted due to lack of evidence. Similar incident had happened a few days prior to 27.05.2001, the date of occurrence. Deceased Sasi had given publicity that it was done by accused 1 and 2. Enraged by the accusation, the first accused a few days prior to the date of the occurrence had disclosed to P.W.5 that the deceased Sasi is not permitting them to live peacefully and if continued they would do away with him. P.W.5 was asked to convey the message to Sasi, the deceased. Accordingly P.W.5 had conveyed the same to P.W.6 Thankappan as well as to the deceased Sasi. The evidence of P.W.5 coupled with the evidence of P.Ws 4 and 6 would indicate that first accused was having some grudge against deceased for making allegation against him regarding theft of palmara bunches in the property of P.W.4. Further evidence of P.Ws 1 and 7 also would clearly establish the motive. On the fateful day accused persons came to the house of the deceased and questioned him about the same and the deceased retorted that it was they who had done it. Consistent statements of P.W.5, Ext.P1, and P.W.7 would establish the ill feeling which the accused persons had towards the deceased. No infirmity was pointed out in their evidence and in our view, the motive for commission of murder stands proved. Evidence adduced by the prosecution, in our view, would clearly establish the motive for the accused persons to commit the crime. Motive, it is true, alone however strong it may be, cannot be made the basis for conviction unless it receives corroboration from other sources since it is only a link of evidence. In Rizan and another v. State of Chattisgarh (AIR 2003 S.C. 976). The apex court held that the proof of motive is never indispensable in criminal cases for conviction, but may be important as evidencing a state of mind which is material evidence coupled with other evidence in the case. 7. In Rizan and another v. State of Chattisgarh (AIR 2003 S.C. 976). The apex court held that the proof of motive is never indispensable in criminal cases for conviction, but may be important as evidencing a state of mind which is material evidence coupled with other evidence in the case. 7. We may now examine the version of the eye witnesses. P.Ws 1 and 7 have categorically stated that at about 9.30 p.m on the fateful day accused persons came to their residence and challenged the deceased. Deceased then came out of the house on hearing the utterances, followed by P.W.1 son and P.W.7 wife and nephew Ajesh. At that time second accused was holding a tapping knife in his hand and third accused was holding a lighted candle in his hand. First accused questioned the deceased as to wether he had seen them cutting palmyra bunches of P.W.4 and the deceased retorted no one else other than the accused persons would do that. First accused immediately ordered the third accused. Then third accused obeyed the command by trespassing into the courtyard and pulling Sasi by holding his hand to the road shouting. First accused then stabbed the deceased on the back of the shoulder with M.O.1 knife. Deceased then cried and fell down on the side of the road. Second accused then sat on the legs of the deceased and started inflicting cut injuries repeatedly with M.O.2 tapping knife. P.W.7 wife witnessing the same tried to prevent the attack but the second accused inflicted cut injuries on the hands of P.W.7 also with M.O.2. P.W.1 and Ajesh tried to intervene but the second accused slashed the knife at; them and threatened; them. Hearing the hue and cry accused persons ran away from the place of occurrence. 8. Interested witnesses; P.W.7 and P.W.1 are the interested witnesses. P.W.7 has lost her husband and P.W.1 lost his father. Relationship is not a factor to affect the credibility of a witness. The apex court in Sucha Singh and another v. State of Punjab (AIR 2003 S.C. 3617) held that it is more often than not that a relation would not conceal actual culprit and make allegations against an innocent person. See also: Amzad Ali alias Amzad Khan and others v. State of Assam (AIR 2003 S.C. 3587), Harichand Narayana v. State of A.P. (AIR 2003 S.C. 3606). See also: Amzad Ali alias Amzad Khan and others v. State of Assam (AIR 2003 S.C. 3587), Harichand Narayana v. State of A.P. (AIR 2003 S.C. 3606). Evidence has to be considered from the point of trustworthiness and from the angle as to whether it inspires confidence in the mind of the court. P.W.1 and P.W.7 were cross-examined at length but nothing was brought out to discredit their evidence regarding the incident and the overt acts committed by the accused persons. P.W.7 is none other than the sister of accused 1 and 2, who has seen her husband being murdered by her own brothers; so also P.W.1 has seen his father being stabbed by his own uncles. They have no reason to falsely implicate accused 1 and 2. We have gone through the evidence of P.W.7 and P.W.1. In our view, the version given by them is trustworthy and reliable and nothing infirm was elicited to cast doubt on their veracity and they have no reason to falsely implicate; their own relatives. Though the incident happened at 9.30 p.m there was no difficulty for P.W.7 to identify her brothers; so also P.W.1 to identify his uncles. Both of them have given a clear version of the whole incident. P.W.7 had even sustained injuries at the hands of the second accused her own brother. There is nothing to disbelieve even the evidence of P.W.7 regarding the incident. Sufficient light was there to identify the accused persons, coupled with the fact that the accused persons were the closer relations of P.W.7 and P.W.1. We are of the view, the trial court has correctly appreciated the evidence of PW.7 and P.W.1, though they are interested witnesses. 9. Res gestae. Res gestae is described as a term of protean significance and applies to civil and criminal cases. The term res gestae is not used in the Evidence Act. Section 6 of the Evidence Act and the succeeding Sections merely embody the principle of res gestae. Court must however be guarded that the facts sought to be proved as part of the res gestae are not in actuality what is known as res inter alias actae. The term res gestae is not used in the Evidence Act. Section 6 of the Evidence Act and the succeeding Sections merely embody the principle of res gestae. Court must however be guarded that the facts sought to be proved as part of the res gestae are not in actuality what is known as res inter alias actae. The test of admissibility of evidence as part of res gestae is that the declaration should be contemporaneous, so intimately inter woven or connected with the transaction in issue, giving no room for any pre-meditation or opportunity for fabrication of evidence. The principle of res gestae has been dealt with by this court in Bhaskaran v. State of Kerala (I.L.R. (1985) 1 Kerala 846), Polachan v. Kerala state (I.L.R. (1994) 1 Kerala 158), Krishnankutty v. State of Kerala (1994) (2) K.L.T Sh. Notes 47 etc. Reference may also be made to the decisions of the apex court in Sukhar v. State of U.P. (1999) 9 S.C.C. 507), Gentela Vijayavardhan Rao v. State of A.P. (1996) 6 S.C.C. 241) and Rattan Singh v. State of H.P. (1997) 4 S.C.C. 161). Facts which form part of the res gestae and are consequently provable as facts relevant to the issue, include acts declaration and incidents which themselves constitute or accompany and explain the facts or transaction in issue. P.W.11 id the neighbour of the deceased who has deposed that on hearing the hue and cry from the house of the deceased he along with his wife D.W.4 came there and saw the deceased lying on the side of the road with bleeding injuries. They helped P.Ws 1 and 7 to take the deceased to the hospital. P.W.11 stated that when he enquired as to what happened P.W.1, the son of the deceased stated. The evidence of P.W.11 is admissible under section 6 of the Evidence Act as res gestae because after the incident as part of the transaction, eye witness to the incident had explained as to how the incident had happened. Section 6 of the Evidence Act states that facts which, thought not in issue, are so connected with a fact in issue as to form part of the same time and place or at different times and places. Section 6 of the Evidence Act states that facts which, thought not in issue, are so connected with a fact in issue as to form part of the same time and place or at different times and places. Section 8 of the Act states that any fact is relevant which shows or constitutes a motive or preparation for any fact in issue or relevant fact. The testimony of res gestae is always relevant when it goes to the root of the matter concerning the commission of the crime. P.W.4 wife of P.w.11 has also admitted in her evidence that when she enquired with P.W.7 wife of the deceased about the incident she disclosed that the act was committed by her brothers. We have already stated that P.W.1 son and P.W.7 wife of the deceased had disclosed to P.W.11 and D.W.4 respectively that it was P.W.7’s brothers along the third accused who had committed the gruesome murder. P.W.11 is the immediate neighbour who reached the place after hearing the hue and cry and helped them to take the deceased in an autorickshaw to the hospital. Evidence tendered by him is admissible under Section 6 of the Evidence Act as res geatae. The trial judge who had the unique advantage of seeing the witnesses and assessing their credibility has chosen to accept the credible testimony of P.Ws 1, 7 and 11. That court has also given valid reasons in paragraphs 24 to 26 of the judgment for eschewing the versions spoken by D. Ws 1 to 4. We see no reason to differ from the conclusion reached by the trial court. 10. Injuries (ante-mortem). There were 18 injuries on the body of the deceased as revealed from P13 post-mortem certificate issued by P.W.15 Assistant Professor of Forensic Medicine. It is clearly stated therein that the deceased died on account of the injuries sustained on the chest and left thigh which was noted as injury Nos. 1 and 2 in the post-mortem certificate and injury No.2 could have been caused by weapon like M.O.1 and injury Nos. 1 and 3 to 13 could have been caused by using weapon like M.O.2. P.W.15 had also deposed that injury Nos. 14 to 18 could have been caused by that part of the body of the deceased coming into contact with any hard or rough object. 1 and 3 to 13 could have been caused by using weapon like M.O.2. P.W.15 had also deposed that injury Nos. 14 to 18 could have been caused by that part of the body of the deceased coming into contact with any hard or rough object. He also deposed that except injury No. 6 other injuries could not have been caused during a scuffle. He further deposed that injury Nos. 1, 3, 5 and 7 could have been caused when the deceased was in a lying position and the assailant sitting on the body of the deceased. P.W.15 deposed that injury Nos. 1 and 2 are independently sufficient in the normal course to cause death of a person and those injuries could have been caused by weapon like M.O.1 and M.O.2 knives. The above statements would conclusively show that the deceased died on account of the fatal injuries 1 and 2 noted in Ext. P13 post-mortem certificate which are independently sufficient to cause the death of a person in the normal course and those fatal injuries could have been caused by weapons like M.O.1 knife and M.O.2 tapping knife respectively and those injuries are homicidal in nature. P.W.17 has stated that on the basis of the statements given by accused 1 and 2 respectively he has seized M.Os 1 and 2 as per Exts. P11 and P12 mahazars. Weapons alleged to have been used for the commission of offence were seized by the Investigating Officer on the basis of the statement given by the accused which is clearly admissible under Section 27 of the Evidence Act. 11. Common intention: Section 34 I.P.C lays down a principle of joint liability in doing a criminal act. The nucleus of the liability is the existence of common intention, animating the accused leading to the commission of a criminal act in furtherance of that intention. 11. Common intention: Section 34 I.P.C lays down a principle of joint liability in doing a criminal act. The nucleus of the liability is the existence of common intention, animating the accused leading to the commission of a criminal act in furtherance of that intention. Evidence in this case would clearly show that accused 1 and 2 were harbouring a grudge against the deceased for making allegations against them connecting with the theft of palmyra bunches from the property of P.W.4 and all the accused in furtherance of their common intention came to the place of occurrence and provoked the deceased to come out of his house and that when he came out, as directed by the first accused, the third accused pulled the deceased from the courtyard of his house to the road with the intention of committing the crime. The first accused stabbed on his back with M.O.1 knife and second accused inflicted several injuries sitting on his legs. Third accused also exhorted when he pulled the deceased to the road. Evidence would clearly show that all the accused shared the common intention to commit the murder of the deceased. Accused persons apart from the fact that they were armed with weapons also exhorted and instigated others to kill the deceased. 12. Common intention means acting in concert. Scope of Section 34 I.P.C came up for consideration before the apex court in Krishnan and another v. State (AIR 2003 S.C. 2978) and the court held that the applicability of Section 34 depends upon the facts and circumstances of each case and no hard and fast rule can be laid down as to the applicability or non-applicability of Section 34. The court held that Section 34 deals with the doing of separate acts, similar or diverse, by several persons; if all are done in furtherance of common intention, each person is liable for the result of them all as if he had done them himself; for “that act� and “the act� in the latter part of the Section must include the whole section covered by a “criminal act� in the first part, because they refer to it. Constructive liability under Section 34 may arise in three well defined cases. Constructive liability under Section 34 may arise in three well defined cases. A person may be constructively liable for an offence which he did not actually commit by reason of: (1) the common intention of all to commit such an offence (S.34); (2) his being a member of a conspiracy to commit such an offence (S.120-A); (3) his being a member of an unlawful assembly, the members whereof knew that an offence was likely to be committed (S.149). For applying Section 34 it is not necessary to show some overt acts on the part of the accused. (See: Anil Sharma and others v. State of Jharkhand (AIR 2004 SC 2294) and Girija Shankar v. State of U.P. (AIR 2004 SC 1808) etc.) 13. We are of the view that the facts of this case would clearly show that all of them shared a common intention to attract Section 34 I.P.C. Therefore the mere fact that the third accused had not inflicted any bodily injury on the deceased would not absolve him from the criminal liability. When the common intention of two or more persons to kill the deceased is established, the question as to who among them inflicted the fatal blow is wholly irrelevant. Once the medical evidence shows that the injuries caused by one or the other of the accused was sufficient in the ordinary course of nature to cause death, that is sufficient to bring the case of the accused within the purview of Section 302 read with Section 34 I.P.C even if one accused had not inflicted the fatal blow. Prosecution has also proved that when P.W.7 attempted to ward off the attack from the second accused, he had inflicted injuries on the hand of P.W.7 with M.O.2 with an intention to cause that injury. Thus, P.W.7 is an injured witness as well. P.W.8 the doctor who examined P.W.7 has stated that the injury could have been caused by weapon like M.O.2. Prosecution has therefore clearly established that the second accused had committed the offence under section 324 I.P.C. Prosecution has proved beyond reasonable doubt that all the accused persons have committed the offence punishable under Section 302 read with Section 34 I.P.C and were rightly convicted and sentenced warranting no interference by this court. Appeals are accordingly dismissed confirming the conviction entered and the sentence passed against the appellants.