JUDGMENT SASIDHARAN NAMBIAR, J. W1. Appellant, the second accused in S.C.No.216 of 2004 on the file of Additional Sessions Court, Mavelikkara, was convicted and sentenced to imprisonment for life and a fine of Rs.15,000/-and in default rigorous imprisonment for two years for the offence under Section 302 read with Section 34 of the Indian Penal Code. The first accused was acquitted. Appeal is filed challenging the conviction and the sentence. 2. Prosecution case is that on the night of 14.3.2003 PW2 Jijo George, the son of PW1 Ponnamma George and deceased Georgekutty, was reading the books inside the house. PW2 was then a student of SSLC. Deceased Georgekutty had returned after his work and was sitting near PW2. The two accused were walking along the canal road, which lies to the west of the residential house of deceased Georgekutty, where he resides along with his wife and children. When the accused made loud noise while walking, Georgekutty came out of the house and asked them not to make noise as his son is studying. It was not liked by the accused. There was a verbal altercation between the deceased and the accused and also a push and pull. The accused then proceeded towards the south. By 11.30 p.m. Georgekutty went near the well, which lies to the north-west of the residential house, to take bath. After completing bath when Georgekutty was drying himself with a thorthu, the two accused came along the canal road. They stood opposite to the house of Georgekutty and asked where Georgekutty is. Hearing it Georgekutty moved towards the courtyard. First accused asked the second accused to throw a stone at Georgekutty with the common intention to cause his death. Second accused took MO1 granite stone and threw it at Georgekutty, which landed on his right hand in between the elbow and the wrist causing a bleeding injury. The accused left the scene. PWs 1 and 2 took Georgekutty, who was sitting on the ground sustaining injury, to the house. PW2 went to fetch an autorickshaw. PW2 engaged PW4 Sundaran Nair and in his autorickshaw took the injured accompanied by PW1 to the hospital. They first reached N.S.S. Medical Mission Hospital, Pandalam. The doctor, finding the serious injury, advised them to take him to Medical College Hospital. The injured was taken in an ambulance to the Medical College Hospital. PW2 went to fetch an autorickshaw. PW2 engaged PW4 Sundaran Nair and in his autorickshaw took the injured accompanied by PW1 to the hospital. They first reached N.S.S. Medical Mission Hospital, Pandalam. The doctor, finding the serious injury, advised them to take him to Medical College Hospital. The injured was taken in an ambulance to the Medical College Hospital. By the time the vehicle reached Chengannur, Georgekutty became unconscious and therefore, the ambulance was taken to the nearby Century Hospital. PW11 Dr.Abraham Cheriyan examined Georgekutty and prepared Ext.P7 wound certificate at 1.45 a.m. on 15.3.2003. Georgekutty breathed his last at 2.30 a.m.. PW1 reached the police station at 9 a.m. and furnished Ext.P1 F.I. Statement which was recorded by PW10, the Sub Inspector. He prepared Ext.P1(a) F.I.R. and registered the crime and informed PW13, the Circle Inspector who took over the investigation. PW13 reached the hospital and prepared Ext.P2 inquest report. PW13 furnished the necessary requisition for conducting postmortem examination. PW6 Dr.Amit Rawath conducted the autopsy and prepared Ext.P5 postmortem certificate. PW13 reached the scene of occurrence and prepared Ext.P3 scene mahazar and seized MO1 granite stone from the scene of occurrence allegedly used by the accused for inflicting the injury on the deceased. PW13 arrested the accused on 17.3.2003 at 10.45 a.m.. After completing the investigation charge was laid before judicial First Class Magistrate, Mavelikkara, who committed the accused to Sessions Court, Alappuzha. The learned Sessions Judge made over the case for trial to Additional Sessions Court, Mavelikkara. The accused were defended by a counsel of their choice. 3. When charge for the offence under Section 302 read with Section 34 IPC was framed and read over, the accused pleaded not guilty. Prosecution examined 13 witnesses and marked 13 exhibits and identified four material objects. After closing the prosecution evidence the accused were questioned under Section 313 Cr.P.C.. When the incriminating evidence were put to the accused, they denied the incriminating evidence and additionally contended that they are innocent and there was no enmity with the deceased at any point of time. The learned Additional Sessions Judge though called the accused to enter on their defence and adduce evidence, finding that it is not a case for acquittal under Section 232 Cr.P.C., the accused did not adduce any evidence. 4. The learned Additional Sessions Judge though called the accused to enter on their defence and adduce evidence, finding that it is not a case for acquittal under Section 232 Cr.P.C., the accused did not adduce any evidence. 4. Learned Additional Sessions Judge on appreciation of evidence found that the prosecution case as against the first accused is not believable or trustworthy and therefore acquitted him. Relying on the evidence of PWs 1 and 2, the widow and the son of the deceased, it was found that the second accused inflicted the injury on the right hand of deceased Georgekutty, by throwing MO1 granite stone. Relying on the evidence of PW6, the doctor, with Ext.P5 postmortem certificate it was found that the said injury caused the death and the second accused with the intention to cause the death of Georgekutty threw the stone and inflicted the injury and caused the death. It was found that clause secondly and thirdly of Section 300 IPC are attracted and therefore, the offence committed is punishable under Section 302 IPC. Appellant was convicted for the offence under Section 302 IPC and sentenced as stated earlier. Though in the operative portion of the judgment it was shown that the conviction is under Section 302 read with Section 34 IPC, the finding on point No.1 was that appellant committed the offence under Section 302 IPC. 5. Learned counsel appearing for the appellant vehemently argued that when the prosecution case is that second accused threw the stone as directed by the first accused and it was not believed by the learned Additional Sessions Judge, on the same evidence of PWs 1 and 2 it should not have been found that the second accused threw the stone and inflicted the injury. The learned counsel argued that the evidence of PWs 1 and 2 as well as Ext.P1 F.I. Statement furnished by PW1 show that the only overt act alleged against the second accused is throwing MO1 granite stone at Georgekutty, which landed on his right hand between the wrist and the elbow and prosecution has no case that the accused inflicted any other injury on Georgekutty or that Georgekutty sustained any injury in that incident. The learned counsel pointed out that Ext.P5 postmortem certificate with the evidence of PW6 establish that in addition to the injury sustained on the right elbow joint, which is described as injury No.1, Georgekutty sustained a lacerated wound which is described as injury No.3 and that injury was on the inner aspect of the left elbow 4cms. above the elbow joint and the evidence of PW1 or PW2 do not reveal how the said injury was caused. The learned counsel argued that even though PW1 deposed that after sustaining the injury Georgekutty was taken in an autorickshaw to N.S.S. Mission Hospital, Pandalam and first aid and drip were given, there was no case that the wound was sutured and when Ext.P5 postmortem certificate establish that in addition to the injury sustained on the right elbow joint and an abrasion on the anterior aspect of left shin below the left knee, Georgekutty sustained a lacerated wound and the medical records from N.S.S. Mission Hospital were not produced and the material records were intentionally suppressed. It was argued that it is thus clear that the incident did not occur as deposed by PWs 1 and 2 and the true genesis and the origin of the incident was suppressed and therefore, the evidence of PWs 1 and 2 as to how Georgekutty sustained the injury cannot be believed. Reliance was placed on the Division Bench decision of this Court in Viswambharan v. State (1974 KHC 27). The learned counsel also pointed out that Ext.P7 wound certificate with the evidence of PW11 establish that even when the injured was examined by the doctor, when the injured was brought to the hospital by PWs 1 and 2, it was not disclosed to the doctor that the injured sustained the injury when a granite stone was thrown at him and what was disclosed was that the alleged cause was an assault and if the evidence of PWs 1 and 2 is true and they had witnessed the appellant throwing a stone at the deceased and inflicting the injury, they would not disclose that the injury was the result of an assault and instead of would have stated that the injury was sustained when a granite stone was thrown at Georgekutty. Learned counsel therefore, argued that the conviction is not sustainable. Learned counsel therefore, argued that the conviction is not sustainable. Learned counsel also argued that in any case, the conviction for the offence under Section 302 IPC is not sustainable as the injury which caused the death could not have been inflicted with an intention to cause death and it cannot be believed that the appellant could aim at the exact part of the body, to inflict that particular injury and that too on that night and therefore, an offence under Section 300 is not attracted and hence the conviction is unsustainable. 6. Learned Public Prosecutor submitted that there is no reason to disbelieve the evidence of PWs 1 and 2 who are natural witnesses. It was argued that when PWs 1 and 2 alone were present, apart from the deceased and the accused, at about 11.30 p.m. on that night when the incident occurred and nobody else could have witnessed the incident and being natural witnesses, their evidence is to be believed. It was argued that the evidence of PWs 1 and 2 with Ext.P1 F.I. Statement show that before the second incident, when the accused were walking along the canal road and making unnecessary noise the deceased approached them and requested them not to make any sound as it would cause obstruction to his son, who is studying inside the house, and as it was not liked by the accused, there was scuffle and as a result the injured had fallen and therefore, the other two injuries described in Ext.P5 would have been caused in that fall and therefore, for the non-explanation of the two injuries it cannot be found that deceased Georgekutty did not sustain the injury when the appellant threw the stone at him. It is argued that the evidence of PW11, the doctor, with Ext.P7 wound certificate would establish that the injury sustained on the right elbow joint was caused by coming into contact with the sharp portion of MO1 granite stone and it corroborates the evidence of PWs 1 and 2 and the learned Additional Sessions Judge rightly found that death of Georgekutty was caused by the said injury. Learned Public Prosecutor argued that the evidence of PW6 with Ext.P5 establish that, that injury is sufficient in the ordinary course of nature to cause death and in such circumstances, conviction of the appellant for the offence under Section 302 IPC is perfectly legal and there is no reason to interfere with the conviction. 7. The fact that PW1, her son PW2 who was then studying in SSLC and Georgekutty, the husband of PW1, were residing in the house situated to the east of K.I.P canal road is not disputed. Ext.P3 scene mahazar and Ext.P6 scene plan show that the house of the deceased, was lesser than 11.16 metres to the east of eastern end of K.I.P canal. The fact that PW2 was studying on that night was not challenged at the time of recording the evidence. The prosecution case is that as PW2 was studying on that night, when the two accused made sound which caused obstruction to his study, deceased Georgekutty approached the accused and asked them not to make noise and it was not liked by the accused and there was a scuffle and the accused proceeded towards south and later came back, while the deceased was completing his bath near the well, which is situated to the north-west of the residential house. It is the prosecution case that the two accused came along the canal road and stood opposite to the house of the deceased and enquired where the deceased was. It is alleged that when the deceased moved to the courtyard and stood 1.65 metres to the western corner of the house, which was 1.45 metres to the south west of the well, first accused directed the second accused to throw a granite stone at Georgekutty and the second accused threw MO1 stone which hit below the right elbow joint and caused a bleeding injury. The evidence of PW4, the autorickshaw driver, with that of PWs 1 and 2 establish that deceased Georgekutty, who sustained a bleeding injury below the right elbow joint was taken in the autorickshaw fetched by PW2 to N.S.S. Mission Hospital, Pandalam and after giving first aid finding his condition serious, PWs 1 and 2 were advised to take the injured to Medical College Hospital, Kottayam and the injured was being taken in the ambulance to Kottayam. It is the case that while the ambulance reached Chengannur, Georgekutty fell unconscious and therefore, he was taken to Century Hospital from where PW11 examined him and prepared Ext.P7 wound certificate. The evidence of PW11 with Ext.P7 wound certificate establish that the injured was unconscious, grasping and in shock and PW11 prepared Ext.P7 wound certificate, recording a deep incised wound about 8 cm x 3cm over the right cubital fossa exposing muscles and vessels. Georgekutty died in the casualty at 2.30a.m. The evidence of PW6 with Ext.P5 postmortem certificate establish that PW6 noted the following ante-mortem injuries:- "1. Gapping lacerated wound 8 x 4.5 x 2cm seen on the front of the right elbow joint. The wound was muscle deep with visible lacerated muscles. Blood vessels were found ruptured. Bone not exposed. 2. Abrasion 1 x 0.5 cm on the anterior aspect of left shin 16 cm below the left knee. 3. Sutured lacerated wound 2 x .5cm seen on the inner aspect of the left elbow. 4cms above the elbow joint." The evidence of PW6 corroborated by Ext.P5 establish that death of Georgekutty was caused by the shock and bleeding as a result of the injury sustained on the front of the right elbow joint. It was not challenged. It is conclusively proved that death of Georgekutty was caused by the shock and bleeding resulting from the injury sustained on the front of his right elbow joint. The evidence of PW11 further establish that, that injury is sufficient in the ordinary course of nature to cause death. 8. The question is how the deceased Georgekutty sustained the injury. The learned Additional Sessions Judge did not accept the prosecution case that second accused threw the stone and inflicted the injury, in furtherance of his common intention with the first accused. On appreciating the evidence of PWs 1 and 2, who alone gave evidence as to how the deceased sustained the injury, it was found that first accused is not involved in the incident and he was acquitted. The learned Additional Sessions Judge accepted the evidence of PWs 1 and 2 and found that Georgekutty sustained the injury when MO1 granite stone was thrown at him and the granite stone hit on the right elbow joint which caused the injury resulting the bleeding and shock. The learned Additional Sessions Judge accepted the evidence of PWs 1 and 2 and found that Georgekutty sustained the injury when MO1 granite stone was thrown at him and the granite stone hit on the right elbow joint which caused the injury resulting the bleeding and shock. The question is how far that finding is sustainable and whether the evidence of PWs 1 and 2 is believable. 9. True, the fact that PW1 is the widow and PW2 is the son of the deceased is not a ground to disbelieve their evidence or to view their evidence with suspicion. When they are natural witnesses, their relationship with the deceased is not a ground to disbelieve them or to view their evidence with suspicion. When the alleged incident occurred at 11.30 p.m. on the night, and when prosecution case is that nobody else was present apart from the inmates of the house and the presence of PWs 1 and 2 in that house on that night was not disputed, PWs 1 and 2 are definitely natural witnesses. But, that does not mean that if they suppressed material facts or did not reveal the true facts, their evidence is to be swallowed on the ground that they are natural witnesses. The question is whether the evidence of PWs1 and 2 is trustworthy and reliable. 10. The evidence of PW1 is corroborated by the evidence of PW2 on material aspects. But, that is also not a ground to believe them, if there is inherent improbability in their evidence. If PWs 1 and 2 are to be believed, when the appellant along with the first accused was walking along the canal road on that night making noise, Georgekutty who was sitting near PW2, who was studying in his room, came out of the house and requested the accused not to make any sound as it is causing obstruction to his son's study. It is their evidence that then it was not liked by the accused, the accused pushed Georgekutty and Georgekutty had fallen and he stood up and pushed the accused and by that time PWs 1 and 2 took Gerogekutty to inside the house. There is no case either for PW1 or PW2 that deceased Georgekutty sustained any injury, much less a lacerated wound on the elbow joint at that time. There is no case either for PW1 or PW2 that deceased Georgekutty sustained any injury, much less a lacerated wound on the elbow joint at that time. There is no case that when PWs 1 and 2 took the injured to the house after the first incident, they found any injury on the body of the deceased Georgekutty. It is the evidence of PWs 1 and 2 and also the prosecution case that after some time, before taking food, Georgekutty had gone to the well to take bath and by the time Georgekutty finished his bath, the accused came along the canal road and stood in front of his house and called the deceased. It is their evidence that Georgekutty then moved towards the courtyard from near the well and then the first accused asked the appellant to threw the granite stone and the appellant threw MO1 granite stone at Georgekutty. It is the evidence of PWs 1 and 2 that the granite stone landed on the right hand near the elbow and caused a bleeding injury and as a result of the injury, Georgekutty sat on the floor and PWs 1 and 2 took him inside the house. If that evidence of PWs 1 and 2 is believed, the only injury which was inflicted on the deceased on that night was the injury he sustained on his right elbow joint. It is the first injury noted in Ext.P5 postmortem certificate and the sole injury noted in Ext.P7 wound certificate. The evidence of PWs 1 and 2 therefore rule out the possibility of any other injury sustained by the deceased, if their version is trustworthy and they have disclosed the true genesis and origin of the incident. Ext.P5 with the evidence of PW6 conclusively establish that deceased Georgekutty sustained a lacerated wound 2 x .5cm. on the inner aspect of the left elbow 4cms. above the elbow joint and at the time of autopsy that injury was found sutured. There is no case for either PW1 or PW2 that the said sutured lacerated injury was sustained by the deceased earlier to 14.3.2003 or even on 14.3.2003 before Georgekutty sustained the injury on his right elbow joint. above the elbow joint and at the time of autopsy that injury was found sutured. There is no case for either PW1 or PW2 that the said sutured lacerated injury was sustained by the deceased earlier to 14.3.2003 or even on 14.3.2003 before Georgekutty sustained the injury on his right elbow joint. In such circumstances, it can only be found that the version of PWs 1 and 2 as to how the incident occurred and how Georgekutty sustained the injury, which caused his death is not the true version of the incident. Though the evidence of PWs1 and 2 show that before the injured was taken to Century Hospital, Chengannur he was taken to N.S.S. Medical Mission Hospital, Pandalam from where first aid was given and even drip was administered, prosecution did not make available the records of the treatment given to Georgekutty at Medical Mission Hospital, Pandalam. True PW13, the Circle Inspector, deposed that no records were available, but, if first aid was given and the lacerated wound sustained on the inner aspect of the left elbow was sutured from that hospital, there should necessarily be some record in the hospital and in such circumstances the evidence of PW13 that there was no record available cannot be believed. When there is no case for PW1 or PW2 or even for the prosecution that the lacerated wound was sutured, at any other place before PW11 examined the injured, it is clear that the investigating agency suppressed the true genesis of the incident. 11. At this juncture, it is necessary to appreciate the alleged cause of injury recorded in Ex.P7 wound certificate by PW11 as proved by him. Ext.P7 shows that the injured was unconscious when PW11 the doctor examined him at 1.45 a.m. Ext.P7 establishes that the injured was brought to the hospital by PW1, the wife and PW2, the son, as deposed by them. The alleged cause of injury recorded in Ext.P7 could therefore be disclosed either by PW1 or by PW2 as the injured was unconscious. If PWs 1 and 2 had witnessed the incident and found the second accused throwing MO1 at Georgekutty and inflicting the injury, in the ordinary human conduct, they would have disclosed to the doctor that Georgekutty sustained the injury when the second accused threw stone at Georgekutty. Instead what was recorded by PW11 in Ext.P7 is assault. If PWs 1 and 2 had witnessed the incident and found the second accused throwing MO1 at Georgekutty and inflicting the injury, in the ordinary human conduct, they would have disclosed to the doctor that Georgekutty sustained the injury when the second accused threw stone at Georgekutty. Instead what was recorded by PW11 in Ext.P7 is assault. The evidence of PW11 shows, as against the alleged assault recorded in Ext.P7, what was disclosed to him was that two or three persons, inflicted injuries on Georgekutty. If the stone was thrown by the second accused and the first accused was also with him, and it was witnessed by PWs 1 and 2, they are not expected to disclose that those injuries were caused by "alleged assault" or "by two or three persons". That also casts doubt regarding the incident. It is also to be borne in mind that what was claimed by PWs 1 and 2 was that they identified the accused and witnessed the incident in the light available in the house. The evidence of PW1 is that light was available from the two bulbs, one on the northern wall and the other on the western wall. Ext.P1 F.I. Statement shows that what was disclosed by PW1 to PW10, the Sub Inspector who recorded the F.I. Statement, was that she had witnessed the incident, from the light available from the electric bulb on the front side of the house. The evidence establish that the house was facing west. Therefore, it is clear that when Ext.P1 F.I. Statement was given PW1 had no case that any light was available from the northern wall. Though PW9, the Village Officer, who prepared Ext.P6 scene plan had marked an electric light on the western wall of the house, Ext.P3 scene mahazar prepared by PW13, the Investigating Officer, does not reveal the existence of an electric bulb on the western wall. True, the evidence of PW1 that there was electric light available on the western wall of the residential house was not seen challenged in cross examination. The question is even if there was a light on the western wall which is situated 11.16 mts. To the east of the eastern end of the canal, whether PWs 1 and 2 who were standing on the courtyard, could have sufficient light not only to identify the accused but even the granite stone. The question is even if there was a light on the western wall which is situated 11.16 mts. To the east of the eastern end of the canal, whether PWs 1 and 2 who were standing on the courtyard, could have sufficient light not only to identify the accused but even the granite stone. On the evidence we find it not safe to rely that claim of PWs 1 and 2, especially with regard to the identity of MO1 granite stone. The fact that blood was found on the granite stone cannot be a conclusive test to hold that it was the said MO1 granite stone which caused the injury as the evidence establish that Georgekutty sustained a bleeding injury on the wrist and blood was oozing out, at the scene of occurrence as well as on the way to the house and even on all the rooms of the house. If that be so, any granite stone present at the scene of occurrence or on the way to the house, would be blood stained and because of the presence of blood in MO1 one cannot fix the identify of the granite stone. 12. When the entire evidence is appreciated in the proper perspective and the learned Additional Sessions Judge did not accept the evidence of PWs 1 and 2 that the first accused was present along with the second accused and the first accused directed the second accused to threw the stone at Georgekutty and second accused threw the stone as directed by first accused at Georgekutty, it is not at all safe to repose absolute faith on the evidence of PWs 1 and 2 as to how Georgekutty sustained the injuries. It is more so when, there would not have been a lacerated injury on his left elbow if the version of PWs 1 and 2 is true. As stated earlier, if the evidence of PWs 1 and 2 is to be believed there could only be one injury, the injury on the right elbow joint, even if it is taken that due to an earlier scuffle an abrasion was caused on the left knee. It is more so, especially when there is no case that after sustaining the injury on the right elbow joint Georgekutty had not fallen on the ground. It is more so, especially when there is no case that after sustaining the injury on the right elbow joint Georgekutty had not fallen on the ground. Though learned Public Prosecutor made a futile attempt to explain that the lacerated wound could have been sustained in the earlier scuffle and fall, when neither PW1 nor PW2 nor the prosecution has a case that, that injury was sustained in the scuffle, the said explanation cannot be accepted. If that be so, it cannot be said that Georgekutty sustained the injury on his right elbow joint, in the manner spoken to by PWs 1 and 2 and alleged by the prosecution. If that be so, it cannot be found based on the evidence of PWs 1 and 2, that the appellant inflicted the injury on the right elbow joint, which caused the death of Georgekutty. The other injuries, even according to PWs 1 and 2, were not inflicted by the appellant. If that be so, the conviction of the appellant, for the offence under Section 302 IPC cannot be sustained. Even if the prosecution case is accepted and the injury was inflicted by the second accused by throwing the granite stone, we cannot agree with the finding of the learned Additional Sessions Judge that an offence under Section 302 IPC is attracted as the only injury allegedly inflicted was an injury on the right elbow joint that too, by throwing a granite stone from a distance of more than 11 metres and it cannot be said that there was an intention on the part of the appellant to cause the death. Even though that injury was sufficient in the ordinary course of nature to cause death, it cannot be said that the appellant knew that even if he had thrown a stone at Georgekutty it would land on that particular part of the elbow joint and thereby there would be a rupture of the blood vessel causing a bleeding injury. Therefore, clause thirdly of Section 300 IPC cannot be attracted. Though learned Additional Sessions Judge found that clause secondly of Section 300 IPC would apply, clause secondly would not apply. But, in view of the finding that based on the evidence of PWs 1 and 2 it cannot be found that the appellant inflicted the injury sustained on the right elbow of Georgekutty, which caused his death, the conviction cannot be sustained. But, in view of the finding that based on the evidence of PWs 1 and 2 it cannot be found that the appellant inflicted the injury sustained on the right elbow of Georgekutty, which caused his death, the conviction cannot be sustained. The appeal is allowed. Conviction of the appellant for the offence under Section 302 IPC is set aside. The appellant is found not guilty of the charge and is acquitted. As the appellant is enlarged on bail, the bail bond executed by him stands cancelled and he is set at liberty.