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2019 DIGILAW 431 (KER)

Rajesh v. State Of Kerala

2019-06-07

A.M.SHAFFIQUE, N.ANIL KUMAR

body2019
JUDGMENT : N. Anil Kumar, J. Appellants are accused Nos. 1 to 3 in SC No.53/2011 on the file of the Additional Sessions Court-I, Kalpetta for the offences punishable under Sections 302, 201 r/w 34 of the Indian Penal Code (for short 'IPC'). The appellants challenge the conviction and sentence passed against them for the offences punishable under Section 302 r/w 34 of the IPC. 2. The prosecution case in brief is that deceased Rajan and accused No.4 Sandhya were immediate neighbours and were in love with each other. Accused Nos.1 to 3 are the brothers of accused No.4 Sandhya. Though Rajan approached the family members of Sandhya to give her hand in marriage, the same was not acceded to. While so, on 12.3.2010, at 1.00 a.m. in the night, Sandhya invited the deceased to her bedroom bearing Door No.XIII/387 at Kathavakunnu and while they were inside, the presence of the deceased was noticed by the third accused. He alerted his brothers - A1 Rajesh and A2 Satheesh and on finding the deceased Rajan in the bedroom of their sister and that too in the midnight, accused Nos.1 to 3 assaulted, throttled, fisted and emasculated the deceased resulting in his death. 3. PW1 lodged Ext.P1 First Information Statement before PW26, the SI of Police, Pulpally Police Station on 12.3.2010 at 9.30 a.m. Consequently, PW26 registered Ext.P1(a) FIR. On that day, copy of the FIR was forwarded to CW43, the Circle Inspector of Police, Pulpally. CW43 died pending proceedings. CW43 commenced the investigation on 12.3.2010 itself. CW43 prepared Ext.P3 scene mahazar and Sandhya was subjected to medical examination. As per Ext.P5 seizure mahazar, MOs.1 to 4 clothes alleged to have worn by the aforesaid Sandhya were recovered. By verifying the clothes removed from the dead body of the deceased, he prepared seizure mahazar and forwarded the property list to the court as per Ext.P20. CW43 arrested A1, A2 and A4 on 14.3.2010 as per Exts.P21 to P23. A3 was arrested on 16.3.2010. The accused were produced before the Judicial First Class Magistrate -II, Sulthan Bathery in accordance with law and they were remanded to judicial custody. They were released on bail on 12.5.2010. 4. CW43 arrested A1, A2 and A4 on 14.3.2010 as per Exts.P21 to P23. A3 was arrested on 16.3.2010. The accused were produced before the Judicial First Class Magistrate -II, Sulthan Bathery in accordance with law and they were remanded to judicial custody. They were released on bail on 12.5.2010. 4. CW43, who passed away, pending proceedings conducted the investigation in this case in part and PW19 the Deputy Superintendent of Police completed the investigation and laid the charge-sheet against accused Nos.1 to 4 before the jurisdictional Magistrate where the case was taken on file as CPNo.32/2010. As per order dated 31.1.2011, the learned Magistrate committed the case to the Sessions Court after complying with the usual formalities. The learned Sessions Judge took cognizance of the offence under Section 302, 201 read with Section 34 of IPC and registered the case as S.C.No.53/2011. On 5.3.2011, the learned Sessions judge made over the case to the Additional Sessions Court-I, Kalpetta for trial and disposal in accordance with law. 5. The accused entered appearance before the Sessions Court through a counsel of their choice. After having heard both sides, the learned Sessions Judge framed charges against A1 to A4 for the offences punishable under Section 302 r/w 34 of IPC on 12.12.2012. The charges were read over to which A1 to A4 pleaded not guilty whereupon the prosecution was permitted to adduce evidence in support of their case. 6. During trial, the prosecution examined PWs.1 to 26 and got marked Exts.P1 to P27 and 7 materials objects as MOs.1 to 7. No defence evidence was adduced. 7. After the closure of the prosecution evidence, the accused was questioned under Section 313(1)(b) of Cr.P.C. with regard to the incriminating circumstances appearing against them in the evidence for the prosecution. Their defence is one of total denial. They filed a statement stating that they had not committed any offence on the alleged date of incident. They also stated that accused Nos.1 to 3 had not gone to the hospital on the date of occurrence in the police jeep wherein the deceased Rajan was taken to the hospital. They further stated that the accused had not made any confession to anybody as alleged by the prosecution. 8. The learned Sessions Judge, who conducted the trial, did not deem fit and proper for recording an acquittal under Section 232 of Cr.P.C.. They further stated that the accused had not made any confession to anybody as alleged by the prosecution. 8. The learned Sessions Judge, who conducted the trial, did not deem fit and proper for recording an acquittal under Section 232 of Cr.P.C.. The accused was called upon to enter on his defence and to adduce evidence which they might have in support thereof. However, the accused did not adduce any evidence before the trial court. After conclusion of the trial, the learned Sessions Judge as per judgment dated 3.12.2014 found A1 to A3 guilty of the offence punishable under Section 302 r/w 34 of the IPC and acquitted A4 for the offence punishable under Section 302 r/w 34 of IPC under Section 235(1) of Cr.P.C. A1 to A3 were sentenced to undergo imprisonment for life each and also to pay a fine of Rs.25,000/- each and in default to undergo rigorous imprisonment for one year more each for the offence punishable under Section 302 IPC. Entire fine amount, if realised, was directed to be paid to the mother of the deceased as compensation. Feeling aggrieved by the judgment and order of sentence passed by the Court of Additional Sessions Judge-I, Kalpetta, the appellants are before this Court. 9. We heard Sri.B.Raman Pillai, the learned Senior Counsel appearing for the appellants and Sri.S.U.Nazar, the learned Senior Public Prosecutor, who appears for the State. 10. The following points arise for consideration in this appeal:- 1. Whether the prosecution has succeeded in proving that Rajan died as a result of beating, fisting, throttling, biting and emasculating his testicles in furtherance of their common intention on 12.3.2010 at about 1.00 a.m. in the night at their residence bearing Door No.XIII/387 in Pulpally Panchayath as alleged? 2. Whether the prosecution has succeeded in proving that the appellants intentionally and knowingly caused the death of Rajan by throttling him to death? If so, has he committed the offence of murder punishable under Section 302 of IPC? 3. Whether the appellants 1 to 3 witnessed something lascivious between their sister and the deceased Rajan, immediately after they entered into the room of their sister on 12.3.2010 at about 1.00 a.m. If so, had accused Nos.1 to 3, on witnessing the scene, become irrational, hottempered or hypersensitive such as to loose their mental equanimity warranting to get the benefit of Exception 1 to Section 300 of IPC? 4. 4. Are the conviction entered and sentence imposed against the appellants sustainable? 11. Challenging the appreciation of evidence and findings recorded by the learned trial judge, the learned Senior Counsel Sri.B.Raman Pillai appearing on behalf of the appellants highlighted various legal and factual aspects, which were relied on by the trial court for basing its order of conviction and sentence. The learned counsel mainly contended that the appreciation of facts and circumstances was not properly done in accordance with law. In support of his contention, the learned counsel for the appellants mainly relied on the oral evidence adduced by the prosecution witnesses. 12. On the other hand, Sri.S.U.Nazar, the learned Senior Public Prosecutor appearing on behalf of the State submitted that the allegation of murder is proved based on the cogent and convincing evidence, including medical evidence. 13. Ext.P2 inquest report was prepared by PW22, the Senior Superintendent of Audit Section of Collectorate, Wayanad as directed by the Sub Divisional Magistrate, Wayanad. In Ext.P2 inquest report, in column No.7, PW22 noted grievous injuries on the body of the deceased. Column No.11 in Ext.P2 is pertaining to the apparent cause of death. PW22 noted that the deceased died as a result of forcible assault. 14. PW24 Dr. Thomas Mathew, Professor and Police Surgeon, Department of Forensic Science Medicine, Medical College, Kozhikode conducted autopsy on the body of the deceased and prepared Ext.P17 Postmortem Certificate. PW24 noted the following injuries on the body of the deceased. The ante mortem injuries and other findings recorded in Ext.P17 are the following:- "B. INJURIES (ANTE-MORTEM) (1) Contused abrasion 6x1cm front of both lips at midline and on either sides. Inner aspect of lower lip showed superficial laceration over an area 2x0.3cm corresponding to central incisors and right lateral incisor. (2) Linear abrasion, 5cm long with a gap of 1cm in between on the front and right side of neck oblique, the lower right end, 7cm above inner end of collar bone. (3) Spot abrasion angle of left jaw. (4) Spot abrasion right side of face, 0.5cm outer to alae of nose, right side. (5) Abrasion 2x1cm top of left upper arm, 3cm below tip of shoulder. (6) Multiple abrasions over an area 5x5cm outer aspect of left elbow. (7) Multiple abrasions 4.5x0.5cm inner aspect of right leg, 24cm above heel. (8) Abrasion 1x0.5cm inner aspect of left leg, 15cm above heel. (5) Abrasion 2x1cm top of left upper arm, 3cm below tip of shoulder. (6) Multiple abrasions over an area 5x5cm outer aspect of left elbow. (7) Multiple abrasions 4.5x0.5cm inner aspect of right leg, 24cm above heel. (8) Abrasion 1x0.5cm inner aspect of left leg, 15cm above heel. (9) Linear abrasion 2.5cm long inner aspect of left leg, 10cm above previous injury. (10) Curved abrasion 1.5x0.3cm inner aspect of right knee. (11) Abrasion 2x0.2cm outer aspect of right buttock, 5cm outer to anterior superior iliac spine. (12) Contused abrasion arranged in an arch form, four in number 1.1x0.2cm for the first three with a gap of 0.5cm in between; the fourth one 1.1x0.5cm arranged in the shape of arch seen on front of right half of abdomen, the lower one, 3cm above upper part of umbilicus. Outer to this there was an area of dermal contusion 4cm diameter incorporating four linear abrasions, very faint seen only with magnifying lens almost circular, the outer border of contusion was curved with convexity outward.(?Patterned abrasions of bite mark) 13. Abrasion 1.3x0.3cm back of left wrist joint. 14. Abrasion 1x0.2cm., back of left hand, 1cm above knuckle of index finger. 15. Multiple contused abrasion over an area 12x4cm back and outer aspect of left buttock, 13cm below hip bone. 16. Linear multiple abrasions 15x3cm left shoulder blade,13cm outer to midline and 6cm above tip of shoulder. 17. Linear abrasion, oblique, 8cm by crossing the midline of back of trunk, upper left end 17cm below root of neck and 4cm crossing to the left of midline. 18. Multiple abrasions over an area 10x5cm root of back of penis and scrotal sac. 19. Contusion of scrotal sac 6x3cm. 20. Contusion of temporalis muscle, left side 7x6cm corresponding to that there was scalp contusion 2x1.5cm. 21. Contusion two in number, 2x1.3cm and 1.5x1cm, one below the other 1.5cm apart on Sterno-hyoid muscle left. Contusion 1.3x1cm midline of neck. Contusion two in number 3x1.5cm and 1.5x1cm on the right thyro-hyoid muscle, 1.5cm apart. Posterior pharyngeal wall showed contusion two in number 1.5x1cm and 0.5x0.5cm. The mucosa also showed severe congestion. Inward fracture of right hyoid bone at its junction with body with minimal infiltration. C. OTHER FINDINGS: Skull intact. Brain congested. Mouth and pharynx, Neck and its structures-see injuries. Ribs and chest wall intact. Pleural cavities normal. Diaphragm, Mediastinum & cesophagus were congested. Posterior pharyngeal wall showed contusion two in number 1.5x1cm and 0.5x0.5cm. The mucosa also showed severe congestion. Inward fracture of right hyoid bone at its junction with body with minimal infiltration. C. OTHER FINDINGS: Skull intact. Brain congested. Mouth and pharynx, Neck and its structures-see injuries. Ribs and chest wall intact. Pleural cavities normal. Diaphragm, Mediastinum & cesophagus were congested. Air passage is congested and contained fine froth. Lungs right congested oedematous with multiple petechial haemorrhages, weighed 450 gm. Left 375 gm, congested and oedematous with multiple petechial haemorrhages. Pericardial sac normal. Heart weighed 225gm, walls, valves and chambers of heart normal, coronaries patent. Aorta normal. Abdominal wall-see injuries. Peritoneal cavity normal. Liver 1600gm, congested. Spleen 180 gm, kidneys 150gm each were congested. Pancreas and adrenals congested. Stomach and contents weighed 150gm, contained few skin of grape in a purple red coloured. Mucoid fluid and having a smell of grape, mucosa showed autolytic changes. Intestine and mesentery congested. Urinary bladder empty. Genital organs-see injuries. Spinal column and cord intact. D. Additional facts, if any. Blood and viscera were collected, preserved and sent for chemical analysis. Nail clippings not taken since the nails are closely trimmed. Pu2bic hair and penile swab were taken for semen and vagina epithelial cells respectively. E. OPINION AS TO CAUSE OF DEATH: DIED DUE TO THROTTLING." 15. PW24 further stated that linear abrasion 5 cm long and a gap of 12 cm. in between the front and right side of neck oblique, the lower right eye 7cm above inner of collar bone could be caused as a result of contacting with sharp object. PW24 further opined that multiple abrasion over an area 10X5cm root of back of penis and scrotal sac and contusion of scrotal sac 6x3cm could be caused by application of blunt force. Referring to injury no.21, PW24 opined that the deceased died due to throttling. 16. PW24 stated before the trial court that the deceased died as a result of the injury sustained to his neck. When examined before court, PW24 opined that injury No.21 cited supra could be caused as a result of applying force on the neck of the deceased. Thus, it is clear that Rajan died as a result of throttling on 12.3.2010 at about 1 a.m. 17. PW5 is also closely related to the accused. When examined before court, PW24 opined that injury No.21 cited supra could be caused as a result of applying force on the neck of the deceased. Thus, it is clear that Rajan died as a result of throttling on 12.3.2010 at about 1 a.m. 17. PW5 is also closely related to the accused. According to him, he received information from one of the accused that something untoward took place at their residence and therefore, he was asked to convey the information to the Police. Accordingly, he informed the matter to PW6 Gopinathan. This part of the evidence is confirmed by PW6 Gopinathan stating that PW5 told him immediately after the occurrence that one person was found lying at the residence of the accused in an unconscious state. In accordance with the information received, he informed the matter to the Police over phone. PW11 Anil Kumar is the elder brother of deceased Rajan. PW11 received an information that on 12.3.2010 and around 3a.m. from Vijayalakshmi, the wife of PW12 Balakrishnan, younger brother of the deceased, the Police came to the residence of Gopi and the deadbody of Rajan was at the residence of Gopi. Gopi is the father of A1 to A4. As requested by the informant, he went to the hospital along with his neighbours to see the deadbody of Rajan in the hospital. He also noticed the presence of the first accused in the hospital on that day. PW12 Balakrishnan is the younger brother of deceased Rajan. He was residing separately adjacent to the house where the occurrence took place. Police and PW4 Unnikrishnan came to his house and informed that Rajan passed away at the residence of Gopi. Based on the information, he proceeded along with the Police and PW4 to the residence of Gopi where he could find the naked deadbody of Rajan in the front hall of the house. He also stated that A4 and Rajan were in love and as requested by Rajan, he made an attempt to conduct the marriage. However, the proposal was turned down by the relatives of A4 for the reasons better known to them. On cross-examination, he further stated that before the death of Rajan, another marriage was arranged for Rajan. 18. PW1 is the cousin of deceased Rajan. However, the proposal was turned down by the relatives of A4 for the reasons better known to them. On cross-examination, he further stated that before the death of Rajan, another marriage was arranged for Rajan. 18. PW1 is the cousin of deceased Rajan. He stated that PW4 Kunhikrishnan came and informed that Rajan was seriously ill and laid up at the residence of Gopi on the date of occurrence. He along with his friends went to the residence of Gopi and found Rajan in an unconscious state at the residence of Gopi. As required by the Police, Rajan was taken to the hospital in the Police jeep along with A1 and PW4. According to him, A1 confessed that they had assaulted Rajan. He further added that the relatives of A4 were not in favour of conducting marriage between A4 and deceased Rajan and the occurrence took place as a result of the personal rivalry between the parties. He further stated that he gave Ext.P1 statement to the Police and he was also present along with PW3 at the time of conducting inquest by PW22. 19. PW4 also went to the residence of Gopi on getting information that Rajan was involved in an accident at the residence of Gopi. He went to the residence of Gopi, accompanied the body of the deceased Rajan to the hospital, along with PW1 and others. He stated that A1 was also accompanying them and while so, A1 confessed that they had assaulted the deceased. 20. Another important circumstance involved in the case is the evidence of PW8. He is one of the neighbours of the accused 1 to 4. He stated that three years back at about 3 a.m. on the date of occurrence, Leela, the mother of accused 1 to 4, knocked at his door crying aloud and stated to him that deceased Rajan was lying in her house after receiving blows from her children. 21. PW20, who is the Secretary of Local Authority adduced evidence to show that the house, where the occurrence took place was owned by Leela, who is the mother of accused Nos.1 to 4, on the date of occurrence. Ext.P12 is the ownership certificate issued by PW20. The evidence on record would show that accused Nos.1 and 2 were present in the house owned by Leela when the body of deceased Rajan was taken to the hospital. Ext.P12 is the ownership certificate issued by PW20. The evidence on record would show that accused Nos.1 and 2 were present in the house owned by Leela when the body of deceased Rajan was taken to the hospital. This part of the evidence is clear from the evidence of Pws.1, 4 and 7. Pws.1,4 and 7 had accompanied the deadbody from the residence of Leela to the hospital along with A1. According to the prosecution, the body was taken to the hospital in the police jeep. PW26, the Sub Inspector of Police, Pulpalli Police Station added in the chief examination that the body of the deceased was taken to the hospital by them along with A1 and A2. This is a clear indication that A1 and A2 were present along with the Police, when PWs.1,4 and 7 accompanied the body of the deceased Rajan to the hospital. From the evidence, it is clear that the deadbody of Rajan was found at the residence of Leela, who is the mother of the accused. It is also brought out in evidence that Gopi, the husband of Leela was bedridden on the date of occurrence. 22. PW16 Principal of Government Dental College, Kozhikode was examined to prove the bite mark noted in Ext.P2 inquest report on the right abdomen of the deceased. PW16 stated that an impression was taken and a study model of bite mark was prepared from the Forensic Department of Medical College, Calicut. As part of investigation, accused Nos.1 to 3 were produced before PW16 by the Investigating Officer for comparison of the bite marks seen and preserved from the deadbody of deceased Rajan. On comparison and superimposition of the bite mark with the study model of the suspect, it was found that the bite mark present on the right belly of the deceased is found to be that of lower incisors and left premolars of accused No.1. 23. Immediately after arrest, PW9 examined accused No.4 Sandhya. Ext.P4 would reveal that Sandhya was examined by PW9 on 12.3.2010 at 10.30 p.m. The certificate would further go to show that it was the 4th accused, who had given the history of the case to PW9. 23. Immediately after arrest, PW9 examined accused No.4 Sandhya. Ext.P4 would reveal that Sandhya was examined by PW9 on 12.3.2010 at 10.30 p.m. The certificate would further go to show that it was the 4th accused, who had given the history of the case to PW9. In Ext.P4 certificate, PW9 noted that a person named Rajan came to the house about 1.30 a.m. on 12.3.2010 and while both of them were talking each other, there was an attempt on the part of the deceased to have sexual intercourse with accused No.4 and when she was trying to escape from his clutches, there was a big hue and cry which alerted her brothers, who suddenly came and assaulted Rajan. Rajan died as a result of the assault. It is further stated that about two months back, deceased Rajan made an attempt to have forcible sexual intercourse with A4 in his omni vehicle, which was resisted by her successfully. The statement is an indication of the fact that A4 permitted deceased Rajan to come inside her bedroom at that untimely hour. 24. To prove the relationship between the deceased and A4 Sandhya, prosecution produced call data records which would show that the deceased and A4 had been constantly contacting over mobile phone. PW10 is one of the friends of deceased Rajan and according to him, the Sim card belonging to his father was being used by him initially and subsequently, he gave the same to the deceased. PW13 the father of PW10 confirmed the statement of PW10. His case is that he had given the simcard to PW10 from whom the Sim card was later entrusted with the deceased Rajan. He also stated that 306 are the last three digits of the number in the said Sim card. Ext.P14 is the call data records of mobile phone 9544808306, the mobile number of deceased Rajan. PW13 Soman's telephone number is 9544808306. Ext.P14 call data records would show that Sim card was taken in the name of Soman, 547 Puthanveettil, Sulthan Bathery, Wayanad. PW13 Soman was examined to prove that the said number was taken initially in his name. Ext.P15 mobile number 9544951302 was taken in the name of Sandhya, 841, Karimbanoor, Sulthan Bathery Wayanad, the fourth accused in this case. Ext.P14 call data records would show that Sim card was taken in the name of Soman, 547 Puthanveettil, Sulthan Bathery, Wayanad. PW13 Soman was examined to prove that the said number was taken initially in his name. Ext.P15 mobile number 9544951302 was taken in the name of Sandhya, 841, Karimbanoor, Sulthan Bathery Wayanad, the fourth accused in this case. Exts.P13 to P15 are produced by the Nodal Officer of the Idea Cellular Company certifying that the call data records are true data as defined under Section 2(o) of the Information Technology Act, 2000 fed into the computer and maintained in the Idea Cellular Limited to store and identify the process information satisfying the condition stipulated under Section 65B of the Evidence Act. Ext.P4 would show that Rajan had made telephone calls to A4 on 1.3.2010 on 31 occasions. On 3.3.2010, he had contacted A4 several times. He also made several calls to A4 on 4.3.2010, 5.3.2010 and 6.3.2010 respectively. Corresponding entries are noted in Ext.P15 call data records of accused No.4. PWs.1,4,7 and 12 adduced evidence to show that Rajan and A4 were in love with each other and because the relatives of A4 had raised objection to it, the marriage could not be solemnised. Prosecution produced call data records to substantiate the fact that A4 and deceased Rajan continued their love affair despite objection from the relatives of A4 on the date of occurrence. 25. The trial court came to the conclusion that the direct evidence brought on record contains positive evidence, sequence of events and factual proof linking the accused 1 to 3 with the commission of murder. The trial court mainly relied on the following evidence: 1. The circumstantial evidence brought out unerringly points towards the guilt of the appellants. 2. The extra judicial confession made by accused No.1 to PW1 and accused No.4 to PW9 the Medical Officer proved the involvement of the appellants. 3. The Medical evidence confirms that the deceased Rajan died due to throttling. 4. The motive behind the occurrence has been properly established. 5. It was in the house of the accused, deceased Rajan was found lying in an unconscious stage. 6. Incorrect and false answers given by the appellants during the examination under Section 313 Cr.P.C. is an additional link to prove the prosecution case. 7. 4. The motive behind the occurrence has been properly established. 5. It was in the house of the accused, deceased Rajan was found lying in an unconscious stage. 6. Incorrect and false answers given by the appellants during the examination under Section 313 Cr.P.C. is an additional link to prove the prosecution case. 7. Bite mark found on the body of the deceased is found to be one that of the accused No.1. 8. Call data records and evidence of PWs.1,4,7 and 12 proved the motive to commit the crime. 9. Statement given to PW9 by A4 is a circumstance to show that on 12.3.2010 at about 1.30 a.m., A4 permitted deceased Rajan to access her bedroom. 10. According to the prosecution case, A1 and A2 accompanied the Police party and other persons when the body of the deceased was taken to the hospital. 26. Per contra, the learned Senior counsel for the appellants relied upon the following points and contended that the prosecution has not proved the offences alleged against the accused beyond doubt. 1. There are no eye witnesses to the occurrence. 2. The incident allegedly took place at the residence of the accused. 3. There were other persons other than the accused at the residence of Leela on the date of occurrence. 4. Parents of the accused were admittedly present at the residence on the date of occurrence and they were not cited as witnesses or as accused by the prosecution. 5. Extra judicial confession is a weak piece of evidence and it cannot be acted upon to hold that the occurrence took place as alleged by the prosecution. 6. Evidence does not show that A1 to A3 actually participated to commit the crime . 7. No ligature material or rope was recovered to prove throttling. 8. Medical evidence does not show the involvement of more than one accused. 9. Bite mark is not a reliable piece of evidence to connect the accused with the crime. 10. The prosecution failed to prove as to who inflicted injury found on the neck of the deceased. 11. No reliable evidence was adduced to show that the accused were actually residing in the house in question. 12. 9. Bite mark is not a reliable piece of evidence to connect the accused with the crime. 10. The prosecution failed to prove as to who inflicted injury found on the neck of the deceased. 11. No reliable evidence was adduced to show that the accused were actually residing in the house in question. 12. Burden to prove the guilt of the accused beyond reasonable doubt is on the prosecution and it is only when this burden is discharged that the accused could prove any fact within his special knowledge under Section 106 of the Evidence Act to establish that he was not guilty. 27. As indicated earlier, the deceased suffered a homicidal death in the house owned by Leela, who is none other than the mother of accused nos.1 to 4. It is brought out from the evidence of the witnesses that the appellants 1 and 2 were present at the time and date of occurrence. Bite marks are used for identification of the accused because the alignment of teeth differs from one individual with the other. Tracing can be made from positive cast of bite impression linking the cutting edges of the teeth. In Ext.P17 postmortem report, PW24 noted the bite impression found on the body of the deceased. On the request of the investigating officer, PW16 Dr.V.Ipe Varghese, Principal, Government Dental College, Kozhikode compared and ascertained the dental cast taken from the accused with that of the deceased and found that the bite mark on the right abdomen of the deceased and the impression, which was taken as study model of bite mark prepared, it was found that bite mark present on the right belly of the deceased is that of the lower incisors and left premolars of accused No.1. The contention that the identification mark of the accused is absent in the report is not sufficient to hold that the report is unreliable. Evidence tendered by PW16 and Ext.P6 would irresistibly lead to the inference that the bite mark found on the belly of the deceased is that of A1. 28. It has come out in evidence that the deceased Rajan was found at the residence of the accused without clothes on his body. The witnesses on their arrival to the residence of the accused immediately after the occurrence had occasion to see the naked deadbody of the deceased. 28. It has come out in evidence that the deceased Rajan was found at the residence of the accused without clothes on his body. The witnesses on their arrival to the residence of the accused immediately after the occurrence had occasion to see the naked deadbody of the deceased. Ext.P2 inquest report would probabilise the above fact. Immediately after arrest, A4 gave a statement to the doctor as to the cause of injury sustained to the deceased. She stated that she permitted the deceased to access her house about 1.30 a.m. on 12.3.2010 and they were talking each other in the midnight. Her further version was that the deceased Rajan made an attempt to take sexual advances on her which was resisted by her after making a hue and cry which alerted her brothers, who suddenly came and assaulted Rajan resulting in his death. Exts.P14 and P15 call data records would inter alia show that the deceased Rajan and A4 Sandhya continued close contact over mobile phone prior to the date of occurrence. Under the circumstances, it is very difficult to believe that fourth accused, who was aged 26, as on the date of occurrence invited the deceased to her bedroom for a serious, but casual talk as alleged by her. 29. PW8 Sundaran had no enmity towards the accused to testify falsehood before the court below. PW8 clearly stated that nearly three years ago from his date of examination, around 3a.m. in the night, Leela, the mother of accused persons, knocked at his door. When PW8 opened the door, he saw the mother of the accused crying before him and told him that the deceased Rajan was lying unconscious at her residence having sustained blows from her children. Although he rushed to the scene of occurrence, the deceased Rajan was already taken to the hospital. This is another circumstance to show that the children of Leela assaulted the deceased on the date of occurrence. 30. Yet another circumstance is that PWs.1,4,7 and 12 adduced evidence to show that deceased Rajan and A4 were deeply in love with each other and accused 1 to 3 were against the proposal. Hence, the marriage could not be solemnised. Still, the relationship continued, which could be evident from Exts.P14 and P15 call data records. 31. 30. Yet another circumstance is that PWs.1,4,7 and 12 adduced evidence to show that deceased Rajan and A4 were deeply in love with each other and accused 1 to 3 were against the proposal. Hence, the marriage could not be solemnised. Still, the relationship continued, which could be evident from Exts.P14 and P15 call data records. 31. The trial court found that the motive, place and time of the murder of the deceased, presence of A1 and A2 at the residence of Leela at the time of occurrence, conduct of A1 and A2 accompanying the body of the deceased to the hospital and nature of injuries found upon the person of the deceased are all sufficient evidences to prove the offence under Section 302 r/w 34 IPC. The evidence adduced in this case would show that A1 and A2 were present at the time of occurrence at the residence of Leela. No reliable evidence was adduced by the prosecution to prove the presence of A3 at the time of occurrence. His presence was not established. The place of occurrence was at the bedroom of A4. Her statement recorded by PW9 Dr.Muhammed would indicate that the accused 1 and 2 were present in her bedroom when the occurrence took place. From the very nature of the evidences let in and apart from the presence of the inmates of the house, there could be no eye witness in this case and the prosecution had therefore necessarily to rely on circumstantial evidence only. 32. Once it is proved by the prosecution that the appellants 1 and 2 were present at the time of occurrence and deceased Rajan suffered a homicidal death, the burden was heavy on the part of the appellants 1 and 2 to show how the deceased Rajan suffered a homicidal death. S.106 of the Evidence Act requires a person having special knowledge of the fact to explain the same as laid down by the Apex Court in C.S.D. Swamy v. The State [ AIR 1960 SC 7 ], P.N. Krishna Lal and others v. Govt. of Kerala and another [1995 Supp (2) SCC 187], Sidharatha Vashisht @ Manu Sharma v. State (NCT of Delhi) [ AIR 2010 SC 2352 ] and State of Rajasthan v. Parthu [ (2007)12 SCC 754 ]. of Kerala and another [1995 Supp (2) SCC 187], Sidharatha Vashisht @ Manu Sharma v. State (NCT of Delhi) [ AIR 2010 SC 2352 ] and State of Rajasthan v. Parthu [ (2007)12 SCC 754 ]. In the case at hand, the appellants 1 and 2 were present at the residence of Leela at the time of occurrence. Under the circumstance, it was for them to explain as to how so many injuries found on the body of the deceased were caused. Although A4 gave an explanation to PW9 Dr.Muhammed, who examined her immediately after her arrest, the entire statement could not be acted upon as it contained colourable versions regarding the occurrence. After inviting the deceased to her bedroom at an untimely hour, it is difficult to believe that she had objected to the act of the deceased when the deceased made an attempt to make sexual advances towards her. However, the fact that the deceased was present inside her bedroom on the date of occurrence is a relevant circumstance. 33. In cases where only circumstantial evidence is available, at the outset one normally starts looking for the motive and opportunity to commit the crime. If the evidence shows that the accused had strong motive to have the opportunity of committing the crime and the proved circumstances on record considered along with the explanation, if any, of the accused exclude the reasonable possibility of anyone also being the real culprit, then the chain of evidence can be considered to be complete as to show that within all reasonable probability the crime must have committed by the appellants 1 and 2. These circumstances were, in our opinion, as rightly held by the trial court to be inconsistent with the innocence of the appellants and incapable of any other hypothesis other than the guilt of the appellants. 34. Learned Senior counsel Sri.B.Raman Pillai contended that the parents of the appellants were also present in the house where the dead body was found. According to him, they were not cited as witnesses or as accused. According to the learned counsel, since other persons were present at the occurrence place, a different hypothesis is also possible. 34. Learned Senior counsel Sri.B.Raman Pillai contended that the parents of the appellants were also present in the house where the dead body was found. According to him, they were not cited as witnesses or as accused. According to the learned counsel, since other persons were present at the occurrence place, a different hypothesis is also possible. Whether or not the parents of the appellants were guilty along with the appellants need not be considered because the evidence tendered would show that the mother of the appellants openly confessed to PW8 Sundaram that her children assaulted the deceased at the time of occurrence immediately after the occurrence. Her husband was seriously laid up due to illness on the date of occurrence. We are of the view that the appellants' culpability on the facts and circumstances of the case is unaffected by the non-examination of the parents before the trial court. The learned counsel further contends that extra judicial confession alleged to have been made by the first accused before him immediately after the occurrence confessing that they had assaulted the deceased is unreliable. We agree with the learned counsel that the extra judicial confession as such is a weak piece of evidence which alone cannot be the basis for conviction. In the case on hand, it is true that the evidence tendered by PW1 by way of an omission in his statement does not lend assurance for the other evidence to support the statement given by PW1. We also agree with the learned Senior Counsel that the trial court went wrong in relying on extra judicial confession of A1 to PW1. However, this itself is not a ground to discard other credible evidence adduced in this case. 35. The contention next raised is that the appellants have no intention to cause death as there can be little doubt that the appellants, who are none other than the brothers of A4, had witnessed something lascivious between their sister and the deceased. No doubt, their mind would have become suddenly provoked by witnessing such scenes. True, any ordinary man with ordinary bunch of thoughts and emotions would be under grave and sudden provocation at such a scene. No doubt, their mind would have become suddenly provoked by witnessing such scenes. True, any ordinary man with ordinary bunch of thoughts and emotions would be under grave and sudden provocation at such a scene. Going through the entire evidence adduced by the prosecution including the cross-examination of prosecution witnesses, it is clear that the deceased Rajan and A4 were together on the bedroom of A4 during the midnight on the date of occurrence. If the evidence deserves consideration, it is necessary to analyse as to whether benefit of Exception I to Section 300 of the Indian Penal Code can be extended to the appellants 1 and 2. The burden of proving such an exception is certainly on the accused. However, merely because the appellants failed to take such a contention during their examination under Section 313 of Cr.P.C., the same itself is not sufficient to deny them the benefit of the Exception provided the evidence and materials on record unerringly point out the existence of circumstances leading to the said Exception. PW24, the Doctor who conducted the post-mortem stated before court that except injury No.21, all other injuries are not fatal injuries. In this connection, we refer to the evidence of PW16 the Principal of Government Dental College, Kozhikode before the court that bite mark found on the right abdomen of the deceased is similar to the dental cast of the first accused. This is an indication that the deceased Rajan made every attempt to resist the assault on him on the date of occurrence. When there was resistance on the part of the deceased, it was quite natural on the part of the accused to exert force on the deceased to overpower him. It is a fact that two brothers of A4 jointly assaulted the deceased on the date of occurrence. The fact that the appellants 1 and 2 accompanied the body of the deceased to the hospital is an indication that the accused did not leave the place immediately after the occurrence. It is a fact that the appellants 1 and 2 did not use any weapon to attack the deceased, though the weapon would have been collected from the home where the occurrence took place. Further, the conduct of the deceased on the fateful night indicate that he managed to enter into the bedroom of A4 with her consent. It is a fact that the appellants 1 and 2 did not use any weapon to attack the deceased, though the weapon would have been collected from the home where the occurrence took place. Further, the conduct of the deceased on the fateful night indicate that he managed to enter into the bedroom of A4 with her consent. However, the very entry of the deceased into the bedroom of A4 was noticed by the appellants 1 and 2, and on seeing the deceased with A4 in her bedroom in the midnight, they became violent and assaulted the deceased all over his body. The sudden reaction of the appellants 1 and 2 is undoubtedly that of general feelings of ordinary human beings. Seeing the sister presumably in a compromising position with a man of her choice and that too if the man is not acceptable to the brothers, the natural reaction is to manhandle him. Under the circumstances, it is not reasonable to expect from the brothers to counsel or advise the man not to repeat such kinds of acts in future though the act itself is an offence under the Indian Penal Code. 36. Some what identical points were considered by the Supreme Court in State of U.P. v. Lakhmi [ (1998) 4 SCC 336 ]. In the said case, the husband was found guilty by the Sessions Court, but the High Court found him not guilty and acquitted him. The husband in the said case inflicted blows with a spade on the head of the wife, her skull-walls smashed and died on the spot. During evidence, it was brought out that his wife and PW2 in that case were together on the bed during the early hours of the date of occurrence and the accused had occasion to see the act inside the bedroom. In the said case, the Supreme Court held as follows:- "20. The above features positively suggest that the accused would have seen something lascivious between his wife and PW2 just when he entered in the house from the field. 21. There can be little doubt that if the accused had witnessed any such scene, his mind would have become suddenly deranged. It is not necessary that a husband should have been hot-tempered or hypersensitive to lose his equanimity by witnessing such scenes. 21. There can be little doubt that if the accused had witnessed any such scene, his mind would have become suddenly deranged. It is not necessary that a husband should have been hot-tempered or hypersensitive to lose his equanimity by witnessing such scenes. Any ordinary man with normal senses or even sangfroid would be outraged at such a scene. 22. We are therefore inclined to afford to the respondent-accused benefit of Exception I to section 300 IPC. As the corollary, we find the respondent guilty only under S.304 (Part I) IPC." 37. On a careful consideration of the entire facts and circumstances of the case, we are of the view that the legal principle laid down in Lakhmi's case (supra) is applicable in this case as well. Merely because the appellants 1 and 2 had inflicted more injuries on the body of the deceased, the situation would not have been different. We are of the view that we are not justified some how in finding out some way of treating the offence under S.302 IPC. For brothers, there can be no graver and shocking provocation than to find their only unmarried sister in a compromising position with a person they cannot accept. The shock which the appellants 1 and 2 have received on finding their sister in a compromising position with the deceased made them irrational. It must have certainly resulted in a sudden and temporary loss of their self control. In this case, no weapon was used to assault the deceased. By throttling, they might have the knowledge that it was likely to cause death, but they did not have the intention to do so. When they did the act, they did not actually contemplate that grievous bodily harm was likely to result. We are of the view that A1 and A2, as reasonable men, had not contemplated either of the above consequences. In our opinion, the facts and circumstances in this case inter alia would reveal that the case of murder punishable under S.302 IPC is not made out and the appellants 1 and 2 committed the offence punishable under S.304 Part II of IPC only. The third appellant is liable to be acquitted for the offence punishable under Section 302 read with 34 of IPC for the reasons cited supra. 38. The third appellant is liable to be acquitted for the offence punishable under Section 302 read with 34 of IPC for the reasons cited supra. 38. In the result, we allow this appeal in part and set aside the judgment of the Sessions Court. But, in alteration of the conviction passed by the Sessions Court, we convict them under Section 304 Part II of IPC. 39. A1 and A2 were arrested by the Police on 14.3.2010 during investigation. A3 was arrested on 16.3.2010. They were in judicial custody until they were enlarged on bail on 12.5.2010. A1 to A3 were convicted and sentenced to undergo imprisonment for life and also to pay a fine of Rs.25,000/- each and in default to undergo rigorous imprisonment for one year each for the offence punishable under Section 302 IPC read with 34 of IPC on 3.12.2014 and since then they have been undergoing sentence. For the reasons stated supra, the presence of A3 was not established at the time of occurrence. Hence A3 is found not guilty for the offence under Section 302 r/w 34 of IPC and he is acquitted for the said offence. 40. Considering the totality of the facts and circumstances of the case and the genesis of the occurrence as well as the fact that the appellants underwent sentence for nearly five years, this Court is of the view that the ends of justice would be served if the sentence imposed to the appellants 1 and 2 is confined to the period already undergone by them. The appellants 1 and 2 are sentenced to the period already undergone by them for the offence punishable under Section 304 Part II of IPC. The fine amount awarded by the court below stands set aside. The appellants 1 to 3 are set at liberty forthwith, if not wanted in connection with any other case. 41. The appeal is partly allowed to the extent mentioned above.