JUDGMENT : Johnson John, J. The third, second and first accused respectively in S.C. No. 341 of 2016 on the file of the Additional Sessions Judge-III, Mavelikkara filed the above appeals challenging the conviction and sentence imposed on them for the offences under Sections 341, 326 and 302 r/w Section 34 IPC as per the impugned judgment dated 26.05.2017. 2. The prosecution case is that at about 6 p.m., on 18.02.2016, the first and third accused came to the petrol pump of the deceased Muraleedharan Nair in a motorcycle and quarrelled with the staff for asking them to wait in the queue and on hearing noise, PW1, who is the cousin brother of the deceased, came out from the office of the petrol pump and saw accused Nos. 1 and 3 leaving the petrol pump by uttering obscene words. PW3, the elder brother of the deceased and the Manager of the petrol pump was also there and he informed the first and third accused persons that petrol will be filled only in accordance with the queue and that petrol can be filled in the vehicle of the accused persons only after filling the vehicle of the lady who came there first and then the accused persons uttered obscene words against PW3 and by the time PW1 and the deceased came out of the office, the first and third accused left the place. 3. Subsequently, PW1 had gone out to meet his friend and then the first accused again came to the petrol pump alone by walking and questioned PW3 and other employees for not filling petrol in his bike when he came earlier and uttered obscene words against PW3 and other employees in the petrol pump. When the deceased came out of the office and enquired the matter, the first accused addressed him in obscene words, and when the deceased informed the first accused that he is the owner of the petrol pump and that he will call the police, if the accused makes any problem there, the first accused retorted that when the deceased come out, he will show the deceased as to who Boncho is and by saying so, the first accused went out from the petrol pump. 4. Subsequently, at about 7 p.m., the second accused came to the petrol pump and purchased petrol worth Rs. 4. Subsequently, at about 7 p.m., the second accused came to the petrol pump and purchased petrol worth Rs. 50/- in a bottle and at that time, the second accused asked PW3 as to whether Murali is the owner of the petrol pump and as to whether he is there in the office. When PW3 informed the second accused that the deceased is there in the office, the second accused left the place by saying that they will see him outside. 5. Thereafter, at about 7.30 p.m., the deceased went out of the petrol pump in the motorcycle ridden by PW1 to see Adv. Venugopal and when they reached near the house of Adv. Venugopal, the second accused came there in MO1 bike and blocked the bike of PW1 and by that time, accused Nos. 1 and 3 came there in MO2 bike and stopped their bike behind the bike of PW1 on its left side. The second accused had exhorted the other accused to kill the deceased and thereupon, the first accused beat on the right side of the head of the deceased with MO3 iron pipe and the deceased fell down and subsequently, succumbed to his injuries while undergoing treatment at Indo American Hospital, Vaikom on 25.02.2016 and the accused persons are thereby, alleged to have committed the aforesaid offences. 6. On the basis of Exhibit P1, First Information Statement of PW1, Exhibit P15 FIR was registered by PW22, Sub Inspector of Police, Chengannur, on 19.02.2016 and thereafter, PW21, the then Circle Inspector of Police, Chengannur, completed the investigation and filed the final report before the Judicial First Class Magistrate Court-I, Chengannur. After committal and appearance of the accused persons before the trial court, charge was framed for the offences under Sections 341 326 and 302 r/w Section 34 IPC and when the charge was read over and explained to them, they pleaded not guilty. Thereafter, the prosecution examined PWs 1 to 21 and marked Exhibits P1 to P30 and MOs 1 to 7 to prove the charge. Since it is found that the accused are not entitled for an acquittal under Section 232 Cr.P.C., they were called upon to enter on their defence. From the side of the defence, DWs 1 to 3 were examined and Exhibits D1 and D2 were marked. 7. Since it is found that the accused are not entitled for an acquittal under Section 232 Cr.P.C., they were called upon to enter on their defence. From the side of the defence, DWs 1 to 3 were examined and Exhibits D1 and D2 were marked. 7. After hearing both sides and considering the oral and documentary evidence on record, the learned Additional Sessions Judge, by the impugned judgment dated 26.05.2017, convicted and sentenced the accused persons to undergo imprisonment for life and to pay a fine of Rs.25,000/- each for the offence under Section 302 of IPC and in default of payment of fine, to undergo rigorous imprisonment for one year; to undergo rigorous imprisonment for three years and to pay a fine of Rs.10,000/- each for the offence under Section 326 IPC and in default of payment of fine, to undergo imprisonment for a further period of six months; and to undergo imprisonment for one month each for the offence under Section 341 of IPC. Sentences were directed to run concurrently. Out of the fine amount, if realized, an amount of Rs.75,000/- was directed to be paid to CW11 under Section 357(1)(b) of Cr.P.C. 8. Heard the learned counsel appearing for the appellants and the learned Public Prosecutor and perused the records. 9. The point that arises for consideration in these appeals is whether the conviction and sentence passed against the accused persons are legally sustainable. 10. The main contentions of the appellants are that the material witnesses who supported the prosecution case are the relatives of the deceased Muraleedharan Nair and there is no satisfactory evidence to show that the accused persons are previously known to them and therefore, in the absence of a test identification parade, their evidence regarding the identity of the accused persons cannot be relied upon. It is argued that the alleged occurrence was on 18.02.2016 and the victim died only on 25.02.2016 and during the intervening period, he was examined by doctors in 3 different hospitals and the victim has not stated the name of the assailants to the said doctors, and that there are serious contradictions, omissions and inconsistencies in the evidence of the material witnesses and therefore, the appellants are entitled for the benefit of reasonable doubt. 11. 11. But, the learned Public Prosecutor argued that PWs 2 and 6, who supported the prosecution case, are not the relatives of the deceased Muraleedharan Nair and even though PWs 1 and 3 are the relatives of the deceased, it is in evidence that they were in the petrol pump of the deceased prior to the occurrence and they also witnessed the previous incidents in the petrol pump, wherein the accused persons quarrelled with the employees of the petrol pump for not filling petrol in their motorcycle out of turn and therefore, their evidence regarding the occurrence and the previous incidents in the petrol pump are natural and reliable. It is also argued that when the accused persons are previously known to the prosecution witnesses, there is no necessity to conduct any test identification parade and the absence of test identification parade in such a situation cannot be accepted as a ground to discard the testimony of the eyewitnesses relating to the identity of the accused persons before the court. 12. For a proper appreciation of the rival contentions, it is necessary to analyse the evidence of the material witnesses and the relevant records. PW1 is the son of the younger brother of the deceased and he deposed that the deceased was working as a project manager in a construction company in Karnataka and that the deceased was the owner of Renu Auto Fuels at Meleppady junction. His evidence shows that the wife of the deceased is the licencee of the said petrol pump and that PW3, the elder brother of the deceased, is the Manager of the said petrol pump. PW1 stated that on 18.02.2016, at about 6 p.m. he reached the petrol pump and while he was talking to PW3, the deceased also came there and while PW1 and the deceased were talking inside the office, they heard a noise from the petrol outlet and when they came out of the office, they saw accused Nos. 1 and 3 uttering obscene words and going out of the pump in a motorbike. 13. According to PW1, on enquiry, they came to know from the staff of the petrol pump that the reason for the quarrel was that the staff refused to fill petrol in the bike of the first accused, Anoop Kumar @ Boncho, out of turn and therefore, the witness returned to the office. 13. According to PW1, on enquiry, they came to know from the staff of the petrol pump that the reason for the quarrel was that the staff refused to fill petrol in the bike of the first accused, Anoop Kumar @ Boncho, out of turn and therefore, the witness returned to the office. PW1 stated that at about 7 p.m., he went out of the office and subsequently came back to the office of the petrol pump, and while they were talking inside the office, PW3 informed him that the second accused, Rajeev, a native of Poomarachal, came there and purchased petrol for Rs. 50/- in a bottle and enquired to PW3 as to whether Murali is the owner of the said petrol pump and whether he is available there and when PW3 informed the accused that Murali is there in the office, the second accused told PW3 that they will see him outside the petrol pump. 14. According to PW1, immediately he came out of the office and called the second accused. But, even though the second accused turned back and looked at the witness, he left the place without saying anything to the witness. Thereafter, the deceased travelled in his motorbike as a pillion rider towards the house of Adv. Venugopal and when they reached near the house of Adv. Venugopal, the second accused came there in motorcycle bearing reg. No. KL- 30A-763 and stopped the bike in front of the bike of PW1 blocking their way and when the deceased alighted from the motorbike by asking what is the matter, the first and third accused came there from behind in another motorbike and stopped their bike on the left side of the bike of PW1 and at that time, the second accused had exhorted the other accused to beat and kill and then the first accused beat on the right side of the head of the deceased behind the ear with an iron pipe and due to the impact of the forceful beat, the deceased fell on the ground and in the fall, the left side of the head of the deceased hit on the ground. 15. According to PW1, by the time he kept the bike on the stand and alighted from the bike, people gathered there and at that time, the accused persons left the place in their bike towards the southern side. 15. According to PW1, by the time he kept the bike on the stand and alighted from the bike, people gathered there and at that time, the accused persons left the place in their bike towards the southern side. The evidence of PW1 shows that subsequently, PW3 also came there and they took the victim in an autorickshaw to Century Hospital, Mulakuzha and on the advice of the doctor to take the victim to a hospital with Neurosurgery facility, they took the victim to Pushpagiri Medical College Hospital, Thiruvalla and subsequently to Indo American Hospital, Vaikom. PW1 stated that on the next day of occurrence, at about 11.30 a.m., while he was in the Pushpagiri Medical College Hospital, Thiruvalla an ASI from Chengannur Police Station recorded his statement and the witness identified his signature in Exhibit P1 First Information Statement. 16. The evidence of PW1 shows that when the condition of the victim became serious, they shifted him to Indo American Hospital, Vaikom and thereafter, the witness returned to his house on 20.02.2016 and at about 10 a.m., the Circle Inspector reached the place of occurrence and recorded the statement of the witness. PW1 would say that while he was in Vaikom Hospital, PW3 informed him that on the date of occurrence, when the witness went out of the petrol pump, the first accused reached the petrol pump again and there occurred a verbal altercation between the first accused and the deceased and then the first accused left the place after threatening the deceased. PW1 would say that when he was questioned by the Circle Inspector on 20.02.2016, he also stated about this information which he received from PW3. 17. According to PW1, the second accused was arrested on 21.02.2016 and he identified the second accused and his motorbike to the police and he also produced the dress of the deceased and his shirt and motorbike before the police. PW1 stated that on the date of the death of the deceased, the police arrested the first and third accused persons and at that time, he identified the accused persons, their bike and the iron pipe used by them for beating the deceased. PW1 identified accused Nos. 1 to 3 before the court and also MO1 motorcycle bearing registration No.KL 30A-763, in which the second accused came to the place of occurrence and MO2 Yamaha FZ-S motorcycle used by accused Nos. PW1 identified accused Nos. 1 to 3 before the court and also MO1 motorcycle bearing registration No.KL 30A-763, in which the second accused came to the place of occurrence and MO2 Yamaha FZ-S motorcycle used by accused Nos. 1 and 3 to reach the place of occurrence. PW1 also identified MO3 iron pipe used by the first accused to beat the deceased, before the court. 18. PW3 is the elder brother of the deceased and the Manager of the petrol pump. His evidence shows that he witnessed the 3 incidents that occurred in the petrol pump prior to the assault against the deceased on 18.02.2016. His evidence shows that at about 6 p.m., on 18.02.2016, while PW1 and the deceased were in the office of the pump, the first and third accused came to the petrol pump in a motorbike ridden by the first accused and the witness also saw the said accused persons uttering obscene words against an employee in the petrol pump and on enquiry, he learned that the accused persons uttered obscene words for the reason that the staff informed the accused persons that they will not fill petrol out of turn and that petrol will be filled only in accordance with the queue and then PW3 also informed accused Nos. 1 and 3 that after giving petrol to the lady who came there first, petrol can be filled in the vehicle of the accused persons and at that time, the accused persons uttered obscene words against the witness and on hearing the same, PW1 and the deceased came out of the office and at that time, accused Nos. 1 and 3 left the petrol pump in their bike. 1 and 3 left the petrol pump in their bike. PW3 deposed that subsequently, PW1 went out of the pump and thereafter, the first accused again came to the pump and questioned PW3 and another staff as to why they failed to fill petrol in his vehicle when he came there previously and even though the witness attempted to pacify the accused, he again uttered obscene words and on hearing the same, the deceased came out of the office and attempted to pacify the first accused and then the first accused uttered obscene words against the deceased and also questioned as to who he is and when the deceased told the accused that he is the owner of the pump, and if the accused is creating problems, he will call the police. Then the first accused challenged the deceased by saying thus: 19. According to PW3, by saying so, the first accused went out of the petrol pump and at that time, the deceased told PW3 not to disclose the said incident to PW1. The evidence of PW3 shows that PW1 returned to the office after some time and at about 7 p.m., the second accused came to the petrol pump and purchased petrol in a bottle for Rs.50/- and at that time, the second accused enquired as to whether Murali is still the owner of the petrol pump and as to whether he is available there and when the witness informed the second accused that Murail is available in the office, he left the place by saying that they will see him outside. PW3 deposed that at about 7.30 p.m., the deceased went out of the petrol pump to meet Adv. Venu in the motorcycle ridden by PW1. According to PW3, the house of Adv. Venu is situated 150 meters south of the petrol pump and at about 7.45 p.m., a person who came running informed the witness that the deceased was beaten with an iron pipe and he was lying on the road and then PW3 rushed to that place and saw the deceased lying in the lap of PW1 with bleeding from lips and ear. 20. PW2 deposed that on 18.02.2016, at about 7.30 p.m., while he was returning from Kanikkamandapam junction and reached near the gate of the house of Adv. 20. PW2 deposed that on 18.02.2016, at about 7.30 p.m., while he was returning from Kanikkamandapam junction and reached near the gate of the house of Adv. Venugopal, he saw one motorbike which came from the northern side turning towards the western side of the road and immediately another motorbike blocking the motorbike in which PW1 and the deceased were travelling. PW2 stated that the second accused was riding the other motorbike which blocked the bike of PW1 and the deceased. PW2 stated that when the deceased alighted from the bike by asking the second accused about the reason for blocking the vehicle, another motorcycle in which two persons were travelling was stopped behind the motorcycle of PW1 and then the second accused had exhorted the said persons to beat and kill the deceased and thereupon, the pillion rider of the bike which stopped on the left side of the motorbike of PW1 alighted from the motorbike with an iron pipe in his hand and beat on the right side of the head of Murali and then Murali fell down to his left side. 21. The evidence of PW2 shows that immediately he reached the spot and on seeing others coming to the place of occurrence, the accused persons left the place in their motorbike towards the southern side. PW2 also identified all the accused persons and MOs 1 and 2 motorbikes and MO3 iron pipe before the court. In cross examination, PW2 stated that the second accused was previously known to him. However, he admitted that only subsequently, he came to know the name and address of the second accused. 22. PW5 deposed that at about 7.30 p.m., on 18.02.2016, when he reached Meleppady junction, he saw two youngsters standing near a motorbike and he identified the said persons as the first and third accused in this case. According to PW5, the first accused was holding an iron pipe in his hand and when the third accused started the bike, the first accused sat on the pillion seat and their motorbike was ridden towards the southern side and the witness also stated the registration number of the said bike as KL-30 C 59. PW5 identified the said motorbike as MO2 and the iron pipe which he saw in the hands of the first accused as MO3. 23. PW5 identified the said motorbike as MO2 and the iron pipe which he saw in the hands of the first accused as MO3. 23. PW6 deposed that she was conducting a tea shop near the petrol pump of the deceased and now the tea shop is not functioning and therefore, she used to prepare tea in her house and supply the same in the petrol pump. PW6 deposed that on 18.02.2016, at about 6.45 p.m., when he was entering the petrol pump for supplying tea, she saw the first accused coming out of the petrol pump in an angry mood and by saying that he is a big pump owner and he will not quarrel with anybody hereafter. PW6 deposed that she enquired the matter to a staff in the petrol pump and then she was told that there is nothing serious. PW6 identified the first accused before the court. 24. The learned counsel for the appellants invited our attention to Exhibit P1, First Information Statement of PW1, to point out that PW1 has not stated in Exhibit P1 that the first accused came to the petrol pump again and quarrelled with PW3 and the deceased for not filling petrol in his motorbike or he threatened the deceased at that time. But, the evidence of PWs 1 and 3 before the court clearly shows that PW1 was not aware about the second incident in which the first accused returned to the petrol pump and quarrelled with PW3 and the deceased and that PW1 came to know about the said incident from PW3 only after giving Exhibit P1 First Information Statement to the police. 25. The evidence of PWs 1 and 3 further shows that the deceased has also made a request to PW3 not to disclose about the second incident to PW1 and it was in that circumstance, PW3 has not informed PW1 about the same. It can be seen from the evidence of PW3 that the deceased attempted to pacify the first accused when the first accused uttered obscene words and quarrelled with PW3 and other staff in the petrol pump. It can be seen from the evidence of PW3 that the deceased attempted to pacify the first accused when the first accused uttered obscene words and quarrelled with PW3 and other staff in the petrol pump. In this case, even though PWs 1 and 3 were extensively cross examined, nothing material is brought out to discredit their evidence regarding the involvement of the accused persons and previous incidents that occurred in the petrol pump in connection with not filling petrol in the motorbike of the first accused overlooking priority. 26. Even though PWs 1 and 3 are relatives of the deceased, there is no reliable material to indicate that there is any reason for them to falsely depose against the accused persons. Further, the evidence of PWs 1 and 3 is also supported by the evidence of PW2, an independent witness examined from the side of the prosecution. The evidence of PW2 shows that he is an ex-serviceman and a former KSRTC driver and that in the evening, he used to go to Kanikkamandapam junction and on the date of occurrence, he was returning from Kanikkamandapam junction and he witnessed the occurrence when he reached the southern side of the gate of the house of Adv. Venugopal. 27. PW2 was also extensively cross examined and nothing material was brought out to disbelieve the evidence of PW2 regarding the occurrence. PW2 has categorically deposed that he witnessed the occurrence in the light from the gate of the house of Adv. Venugopal and also in the street light. The evidence of PW5, who saw accused Nos. 1 and 3 at Meleppady junction also supports the evidence of PWs 1 to 3. PW5 saw accused Nos. 1 and 3 at about 7.30 p.m., on 18.02.2016 and at that time, the first accused was holding MO3, iron pipe, in his hand and he also saw the first accused travelling as a pillion rider in MO2 motorbike ridden by accused No.3 in a suspicious circumstance. 28. PW7 was the doctor who examined the deceased Muraleedharan Nair at Century Hospital, Chengannur, at about 8.10 p.m., on 18.02.2016 and issued Exhibit P4 certificate. 28. PW7 was the doctor who examined the deceased Muraleedharan Nair at Century Hospital, Chengannur, at about 8.10 p.m., on 18.02.2016 and issued Exhibit P4 certificate. The evidence of PW7 and Exhibit P4 shows that the patient was conscious and the alleged cause of injury was assault by two people who came by bike, hit over his head by a weapon at Kanikkamandapam junction around 8 p.m. PW7 noticed bleeding from right ear, penetrating wound 4x1 cm on the left side of the face 2 inch below the lower lip. 29. According to PW7, bleeding from the right ear indicated serious internal head injury and therefore, he advised to take the patient to a hospital where a Neurosurgeon is available. The evidence of PW7 shows that the patient was available in his hospital only for 5-6 minutes and therefore, he has not made any detailed investigation. 30. PW9 was the doctor who examined the deceased Muraleedharan Nair in Pushpagiri Medical College Hospital, Thiruvalla at 8.40 p.m. on 18.02.2016. According to PW9, the patient has substantial bleeding from his right ear and he also noticed a large wound ending near the chin. PW9 cannot say whether the patient was conscious. The wound certificate issued by PW9 is marked as Exhibit P6. In Exhibit P6, the alleged cause of injury is recorded as ‘allegedly assaulted by an unknown person with a metal rod’. 31. PW8 was the Medical Officer in the Department of Forensic Medicine, Government Medical College Hospital, Kottayam who conducted the postmortem on the body of the deceased Muraleedharan Nair on 25.02.2016 and issued Exhibit P5 postmortem certificate. The evidence of PW8 and Exhibit P5 shows the following ante-mortem injuries: 1. Sutured lacerated wound 1 x 0.5 x 0.3 cm vertical on inner aspect of lower lip on left side 1 cm outer to midline. 2. Sutured lacerated wound 2 x 0.3 x 0.3 cm horizontal on left side of chin 1.8 cm outer to midline, just below lower lip. 3. Abrasion 2 x 0.3 cm vertical on left pinna 1 cm above its lower pole. 4. Contusion 12 x 6 x 0.5 cm obliquely placed on right side of face and adjoining part of ear and neck, its upper inner end just infront of tragus of ear. 5. 3. Abrasion 2 x 0.3 cm vertical on left pinna 1 cm above its lower pole. 4. Contusion 12 x 6 x 0.5 cm obliquely placed on right side of face and adjoining part of ear and neck, its upper inner end just infront of tragus of ear. 5. Contusion 11 x 4.5 x 0.5 cm obliquely placed on left side of neck and ear; its upper inner end on back of pinna and lower outer end 7 cm outer to midline and 2 cm above root of neck. 6. Contusion of scalp 6 x 4 cm full thickness vertically placed on right side of back of head its upper end just outer to midline and 1 cm below occipital prominence. Skull bone underneath showed a fissured fracture 5 cm long vertical involving right side of occiput bone below its prominence. Base of skull showed fissured fracture 7 cm long involving both sides of middle cranial fossae across pituitary fossa. Subdural haematoma 10 x 6 x 1 cm at base seen involving both frontal lobes. Brain (1368 gm) showed multiple areas of contusion with softening involving tip and undersurface of both frontal lobes, (8 x 7 x 1.5 cm); tip and base of left temporal lobe (5 x 4 x 1 cm) outer aspect of right tempero parietal lobes and (7 x 5 x 0.5 cm) and involving back aspects of both cerebellum (5 x 3 x 0.5 cm). Flattening of gyri and narrowing of sulci present. Thin film of subarachnoid haemorrhage seen involving both cerbral hemispheres and cerebellum. 7. Contusion 12 x 7 x 1 cm horizontal on front of left arm 12 cm below top of shoulder. 8. Abrasion 2 x 1 cm horizontal on back of left forearm 2 cm below elbow.” PW8 deposed that the death was due to head injury and that injury No.6 is fatal. PW8 also stated that injuries 4 and 6 could be caused in the case of a single infliction with a weapon like MO3 and that injury Nos. 1, 2, 3, 5, 7 and 8 could be caused due to an unexpected fall after sustaining injury Nos. 4 and 6. PW8 also stated that injury Nos. PW8 also stated that injuries 4 and 6 could be caused in the case of a single infliction with a weapon like MO3 and that injury Nos. 1, 2, 3, 5, 7 and 8 could be caused due to an unexpected fall after sustaining injury Nos. 4 and 6. PW8 also stated that injury Nos. 4 and 6 would cause fracture of occipital bone and after sustaining such a fracture, if the victim falls on the left side and if any portion of his head comes into contact with the tarred portion of the road forcefully, fissured fracture on the base of the skull could be caused. 32. The appellants raised a contention that the victim has not mentioned the name of any of the accused persons to the doctors who examined him in 3 different hospitals. But, considering the nature of the serious injuries sustained by the victim, and the absence of clear evidence regarding the identity of the person who stated the alleged history to the doctor at the time of examination of the patient, we find that on the basis of the alleged history in Exhibits P4 and P6, it is not possible to suspect the trustworthiness of the evidence of PWs 1 to 3, 5 and 6 regarding the identity and involvement of the accused persons. 33. It is argued that the alleged occurrence was at about 7. 30 p.m. on 18.02.2016 and that Exhibit P1, First Information Statement, was recorded only on 19.02.2016 and therefore, there is delay in lodging the First Information Statement and registration of the First Information Report in this case. PW18, the then Grade ASI Of Chengannur Police Station, deposed that on 19.02.2016, he reached Kottayam Medical College Hospital as per the direction of the Sub Inspector to record the statement of the victim in this case and on enquiry, it is learnt that the victim is not admitted there and that he is taken to Pushpagiri Hospital, Thiruvalla from Century Hospital, Chengannur and accordingly, PW18 reached Pushpagiri Hospital, Thiruvalla and when he came to know that the victim is admitted in an unconscious state in the Neurosurgery ICU of that hospital, he recorded the statement of PW1 who was there as bystander of the patient. According to PW18, he also recorded the body note of the victim with the permission of the duty doctor. According to PW18, he also recorded the body note of the victim with the permission of the duty doctor. The First Information Statement of PW1 recorded by PW18 is marked as Exhibit P1 and the body note of the victim as Exhibit P1(a). 34. PW20 was the Sub Inspector of Chengannur Police Station, who registered Exhibit P15 FIR on the basis of Exhibit P1 First Information Statement on 19.02.2016. In this case, it is in evidence that after the occurrence, the victim was taken to Century Hospital, Mulakuzha and from there, the doctor advised to take the patient to a Neurosurgeon at Medical College Hospital, Kottayam and that subsequently, the victim was taken to Pushpagiri Medical College Hospital, Thiruvalla and admitted in the Neurosurgery Department. From the evidence of PW9, the doctor who treated the victim at Medical College Hospital, Thiruvalla, it can be seen that PW9 cannot say whether the patient was conscious at the time of examination. In cross examination, when a specific question was put to PW1 as to whether the victim was conscious, when they reached Century Hospital, the witness answered that the victim was crying aloud at that time and probably, he may be conscious at that time. 35. Considering the sequence of events after the occurrence in which the victim was first taken to Century Hospital, Mulakuzha and subsequently to Pushpagiri Medical College Hospital, Thiruvalla and the evidence of PW18, Grade ASI who went to Medical College Hospital, Kottayam on 19.02.2016 and subsequently reached Pushpagiri Medical College Hospital, Thiruvalla and recorded Exhibit P1 statement of PW1 at about 12 noon on 19.02.20016, we find that there is no unexplained delay in lodging the First Information Statement and registration of the FIR. 36. It is argued that the accused persons are not previously known to PWs 1 to 3, 5 and 6 and in the absence of a test identification parade, the testimony of PWs 1 to 3, 5 and 6 relating to the identity of the accused persons for the first time in court cannot be relied upon. But, the learned Public Prosecutor pointed out that there are 3 previous incidents in which the accused persons reached the petrol pump of the deceased on the very same day prior to the occurrence and therefore, PWs 1 and 3 had occasion to see the accused persons prior to the occurrence. 37. But, the learned Public Prosecutor pointed out that there are 3 previous incidents in which the accused persons reached the petrol pump of the deceased on the very same day prior to the occurrence and therefore, PWs 1 and 3 had occasion to see the accused persons prior to the occurrence. 37. Further, the evidence of PW2 in cross examination clearly shows that he witnessed the occurrence in close proximity and there was sufficient light at the place of occurrence for him to see the accused persons. PW2 categorically deposed before the court that there was light from the gate of the house of Adv. Venugopal and further street light was also there. The evidence of PW2 in cross examination also shows that he had seen the second accused before, even though his name and address were not known to him. 38. It is well settled that the object of a test identification parade is to test and ascertain the trustworthiness of the evidence regarding the identification of the accused and that if the testimony of the eyewitnesses relating to the identity of the accused inspires confidence in the mind of the court, the absence of test identification parade by itself will not affect the evidentiary value of the testimony of the eyewitnesses before the court. 39. In Dana Yadav. v. State of Bihar [ (2002) 7 SCC 295 ], the Honourable Supreme Court held that when the accused are previously known to the prosecution witnesses, no test identification parade is called for and it would be a waste of time to conduct a test identification parade in such a case. In the said case, it was also held that previous identification in a test identification parade is a check valve to the evidence of identification in a court of an accused by a witness and it is only a rule of prudence and not law. 40. In Rameshwar Singh v. State of Jammu and Kashmir [ (1971) 2 SCC 715 ], It was observed by the Honourable Supreme Court that the identification during a police investigation is not substantive evidence in law and it can only be used for corroborating or contradicting the evidence of the witnesses before the court regarding the identity of the accused persons. 41. 41. In view of the 3 previous incidents involving the accused persons in the petrol pump of the deceased on the same day prior to the occurrence and also the close proximity in which PWs 1 and 2 witnessed the occurrence, we find that the evidence of the material witnesses regarding the identity of the accused persons and their involvement is reliable and trustworthy. 42. The then Circle Inspector of Chengannur Police Station is examined as PW21. He deposed that he took charge of the investigation of this case on 20.02.2016 and after recording the statement of PW1, he prepared Exhibit P8 scene mahazar. According to PW21, he arrested the second accused on 20.02.2016 at about 9 p.m. and also seized MO1, motorcycle, and MO7, mobile phone, as per Exhibit P9 mahazar. Exhibit P17 is a report regarding the name and address of the second accused. According to PW21, he arrested the 3rd accused on 25.02.2016 from Laha in Perinadu Village. The arrest memo, inspection memo and the custody memo of the third accused are marked as Exhibit P18 series. 43. PW21 arrested the first accused on 25.02.2016 and the arrest memo, inspection memo and custody memo of the first accused are marked as Exhibit P19 series. He also seized MO1 motorbike of the first accused as per Exhibit P20 mahazar. The evidence of PW21 shows that when he got information about the death of Muraleedharan Nair, he proceeded to Indo American hospital, Vaikom and prepared Exhibit P3 inquest report. According to PW21, on the basis of the disclosure statement of the first accused that he kept the pipe in a place near Providence College and that he will point out the said place and pipe, if he is taken to that place, the witness, as led by the accused, reached Poomarachal on the side of Achira- Ala road which is on the eastern side of Chengannur Providence College and from the shrubs on the northern side of the said road, the first accused took out MO3 iron pipe and the same was seized as per Exhibit P10 seizure mahazar. The relevant portion of the confession statement of the first accused is marked as Exhibit P10(a). 44. The relevant portion of the confession statement of the first accused is marked as Exhibit P10(a). 44. PW21 deposed that as per Exhibit P23 forwarding note, MOs 3 to 6 were forwarded to the Forensic Science Laboratory for scientific examination and the report dated 02.12.2016 from the Forensic Science Laboratory in this regard is marked as Exhibit P25. As per Exhibit P25 report, blood was detected on all items. Item No.1 referred in the report is MO3 iron pipe and items 2, 3 and 4 are MOs 4, 5 and 6. MOs 4 and 5 are the dress of the deceased and MO6 is the shirt of PW1. From Exhibit P25 report, it can be seen that blood was detected on all these items and that the blood detected in items 2 to 4 contained human blood belonging to Group A and that the blood in item No.1 was insufficient for determining the origin. 45. In cross examination, PW21 would say that the witnesses in Exhibit P10 are residing within 3 kms. from the place of recovery. But, it is not known to PW21 whether the first witness in Exhibit P10 is a relative of the deceased. In cross examination, PW21 admitted that Exhibit P29 property list for producing MO3 iron pipe before the court is undated and the same reached the court only on 08.03.2016. According to PW21, the reason for the delay in producing the same before the court is that the same was required in connection with the investigation of the case. PW21 denied the suggestion that the first accused has not given any disclosure statement as per Exhibit P10(a). 46. In another part of cross examination, PW21 stated that the CCTV camera in the petrol pump was not functioning and even though he conducted an investigation regarding the source of MO3 pipe, he was unable to find out the place from where the accused persons obtained MO3 pipe. He also stated that the deceased sustained the injuries between 7.30 and 7.45 p.m., on 18.02.2016. According to PW21, he has not conducted any investigation regarding the financial transactions of the deceased. In answer to a question regarding the call details of the accused persons, PW21 answered that since there is other evidence in this case, he has not produced the call records before the court. 47. The appellant/second accused filed Crl. According to PW21, he has not conducted any investigation regarding the financial transactions of the deceased. In answer to a question regarding the call details of the accused persons, PW21 answered that since there is other evidence in this case, he has not produced the call records before the court. 47. The appellant/second accused filed Crl. M.A. No. 1 of 2024 in Crl. Appeal No. 608 of 2017 to receive the true copy of Crl. M.C. No. 7140 of 2016 and the true copy of the order of this Court in the said petition as additional evidence. A perusal of the order dated 02.12.2016 in Crl. M.C. No. 7140 of 2016 shows that the said petition was filed under Section 482 Cr.P.C seeking further investigation in this case, inter alia contending that the Investigating Officer has not taken steps to obtain the footage from the security camera placed in the house of Adv. Venu and this Court dismissed the petition on the ground that there is no valid and good reason to direct further investigation with the observation that all legal and tenable contentions can be raised by the petitioner at the appropriate stage. 48. On a careful consideration of the facts and circumstances of the case, we find that the copy of the petition in Crl. M.C. No. 7140 of 2016 and the copy of the order dated 02.12.2016 of this Court in the said petition are not relevant for the just decision of the appeal on merits and hence, the said documents cannot be received as additional evidence under Section 391 Cr.P.C. and therefore, Crl. M.A. No. 1 of 2024 in Crl. Appeal No. 608 of 2017 is dismissed. 49. The learned counsel for the appellant/third accused argued that no overt act is alleged against the third accused and there is no reliable material to arrive at a conclusion that the third accused shared a common intention with accused Nos. 1 and 3. But, the learned Public Prosecutor pointed out that in the first incident that occurred in the petrol pump in connection with filling of petrol in the motorbike of accused Nos. 1 and 3, both of them uttered obscene words and the evidence of PW5 shows that at about 7.30 p.m., on 18.02.2016, he saw accused Nos. 1 and 3. But, the learned Public Prosecutor pointed out that in the first incident that occurred in the petrol pump in connection with filling of petrol in the motorbike of accused Nos. 1 and 3, both of them uttered obscene words and the evidence of PW5 shows that at about 7.30 p.m., on 18.02.2016, he saw accused Nos. 1 and 3 at Meleppady junction and subsequently, the first accused travelling as a pillion rider in the motorcycle ridden by accused No.3 holding MO3, iron pipe, in his hand. In this case, the evidence of PWs 1 and 2 would clearly show that the third accused stopped the motorbike behind the motorbike of PW1 on its left side immediately after the second accused blocked the motorcycle of PW1 by stopping his motorbike in front of the motorbike of PW1. 50. It is well settled that common intention refers to a preexisting agreement between two or more individuals to commit a crime and therefore, the prior understanding and agreement between the accused persons can only be inferred from the actions and statements of the accused and considering the role of the third accused in taking the first accused who was armed with MO3 iron pipe to the place of occurrence and stopping the motorbike behind the motorbike of PW1 and his presence and involvement in the previous incident that occurred in the petrol pump, we find that there is clear evidence to prove the mutual agreement and understanding between accused Nos. 1 to 3 in committing the crime and therefore, we find no merit in the contention of the appellant/third accused in this regard. 51. The evidence of PWs 1 to 3, 5 and 6 regarding the identity of the accused persons and their involvement in the crime is supported by medical evidence and also the recovery of MO3 iron pipe on the basis of the disclosure statement of the first accused and the presence of blood in MO3 pipe as per Exhibit P25 FSL report. 52. DW1 was the Divisional Engineer of BSNL Chengannur. He deposed that the call details sought for in the summons could not be produced as the same is not available in their system. He stated that the call details will be available only for one year and the system is programmed in that way. 53. 52. DW1 was the Divisional Engineer of BSNL Chengannur. He deposed that the call details sought for in the summons could not be produced as the same is not available in their system. He stated that the call details will be available only for one year and the system is programmed in that way. 53. DW2 deposed that he is conducting Ethen Catering Service and that the deceased and his petrol pump are known to him. According to DW2, on the date of occurrence, at about 9.30 p.m., he received a phone call from the petrol pump asking him to reach the petrol pump and accordingly, he reached the petrol pump at about 10 p.m. and from the people gathered there, he came to know about the assault on the deceased. DW2 stated that he saw the CCTV visuals from the office of the petrol pump and in the visuals, he saw a quarrel and push and pull between two persons and when he was asked as to whether he can identify the said persons, he replied that the visuals are not clear. According to DW2, the persons in the petrol pump sought his presence there to identify whether the persons seen in the visuals are employees of his establishment. According to DW2, when the persons in the petrol pump sought for the names and telephone numbers of some of his employees, he telephoned the second accused and directed him to bring the phone book and accordingly, at about 10.30 p.m., the second accused reached the petrol pump with the book and he handed over the same to the persons in the petrol pump. 54. DW3 was the Nodal Officer of Idea Cellular Ltd., who deposed that the call details of the mobile No. 8156821337 as on 18.02.2016 is not available in his office. He also stated that they used to retain the call details only for one year. 55. The learned counsel for the appellant/second accused argued that the evidence of DW2 would show that the second accused reached the petrol pump of the deceased with the phone book at about 10.30 p.m. on the date of occurrence as directed by DW2 and if in fact he had any involvement in the crime, he would never have reached the petrol pump of the deceased. In cross examination DW2 stated that the second accused is not his employee and that the second accused is the employee of his brother Bijoy. DW2 admitted that the second accused is also involved in crime No. 317 of 2016 of Chengannur Police Station. 56. In another part of the cross examination, DW2 admitted that he cannot say where accused No.2 was in between 6 p.m. to 8 p.m. on the date of occurrence. Even though, DW2 deposed in chief examination that he was asked to reach the petrol pump to identify whether the persons seen in the CCTV visuals are his employees or not, he himself admitted that the visuals were not clear and he could not identify the two persons seen in the visuals. But, his evidence in cross examination is that the second accused is not his employee and that he is the employee of his brother Bijoy. Further, his evidence in cross examination shows that the second accused herein and his brother Bijoy are involved in Crime No. 317 of 2016 of Chengannur Police Station and in that circumstance, we find force in the argument of the learned Public Prosecutor that DW2 is attempting to help the second accused and therefore his evidence that the second accused reached the petrol pump at 10.30 p.m. with the phone book, is not at all reliable. 57. It is argued on behalf of the appellants that there are serious contradictions and omissions in the evidence of PWs 1 to 3, 5 and 6 and it is pointed out that in cross examination, PW1 denied that he stated to the police that the deceased fell backward to the tar road and the said portion is marked as Exhibit D1. 58. According to PW1, when the accused beat the deceased, the deceased fell on the ground and in the fall, the left side of the head of the deceased caused to hit the ground. Another contradiction pointed out is the evidence of PW6 in cross examination that she has not made a statement to the police as per Exhibit D2. 58. According to PW1, when the accused beat the deceased, the deceased fell on the ground and in the fall, the left side of the head of the deceased caused to hit the ground. Another contradiction pointed out is the evidence of PW6 in cross examination that she has not made a statement to the police as per Exhibit D2. Exhibit D2 shows that PW6 told the police that there used to be talks and quarrels in the pump occasionally and therefore, she has not given much importance to the incident in which she saw the first accused going out of the petrol pump in an angry mood by saying that he is a big pump owner and he will not quarrel with anybody hereafter. 59. In Dasu and others, Appellant v. State of Maharashtra, Respondent (1985 Crl.L.J.1933), it was held that:- “In order to see whether there is a contradiction by omission it is necessary to find out whether the two statements cannot stand together. It is also necessary to see whether the statement which the witness has made in the witness-box should have been made by him while reporting the matter soon after the incident. If the two statements made by the witness cannot stand together and the statements in the court is such that the witness would necessarily have made at the time of his earlier statement, then alone omission thereof can be considered to be a contradiction.” 60. In State of Uttar Pradesh vs. M.K. Anthony [AIR 1983 SC 48], the Honourable Supreme Court held that minor discrepancies on trivial matters not touching the core of the case, hypertechnical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter, would not ordinarily permit rejection of the evidence as a whole. 61. On a careful consideration of Exhibits D1 and D2 and the entire evidence of PWs 1 and 6 before the court, and the facts and circumstances of the case, we find that Exhibits D1 and D2 cannot be considered as material contradictions touching the core of the case. 61. On a careful consideration of Exhibits D1 and D2 and the entire evidence of PWs 1 and 6 before the court, and the facts and circumstances of the case, we find that Exhibits D1 and D2 cannot be considered as material contradictions touching the core of the case. It is well settled that normal discrepancies in evidence are those which are due to normal errors of observations and normal errors of memory due to lapse of time and such discrepancies and errors will always be there, however honest and truthful a witness may be. 62. Another contention of the appellants is that even as per the prosecution case, the first accused beat the deceased only once, and considering the nature of the injuries, the injured could have been saved if he was immediately taken to the hospital and provided proper treatment and it is also argued that it cannot be held that the accused persons committed the act with the intention of causing death or with the intention of causing bodily injury sufficient in the ordinary course of nature to cause death. 63. It cannot be disputed that the distinction between a bodily injury likely to cause death and a bodily injury sufficient in the ordinary course of nature to cause death is one of the degree of probability of death resulting from the intended bodily injury. It is true that in order to attract clause thirdly of Section 300 IPC, it is to be proved that death will be the most probable result of the injury, having regard to the ordinary course of nature and a mere possibility is not sufficient. The evidence of PW8 and Exhibit P5 postmortem certificate shows that the death was due to head injury and that injury No.6 is fatal. The evidence of PW8 further shows that injuries 4 and 6 could be caused in the case of a single infliction with a weapon like MO3 and that injury Nos. 1, 2, 3, 5, 7 and 8 could be caused due to an unexpected fall after sustaining injury Nos. 4 and 6. 64. In State of Andhra Pradesh v. Rayavarpu Punnayya [ AIR 1977 SC 45 ] it was held as follows:- “When the Court is confronted with the question whether the offence is “murder” or “culpable homicide not amounting to murder”, the problem is to be approached in three stages. 4 and 6. 64. In State of Andhra Pradesh v. Rayavarpu Punnayya [ AIR 1977 SC 45 ] it was held as follows:- “When the Court is confronted with the question whether the offence is “murder” or “culpable homicide not amounting to murder”, the problem is to be approached in three stages. The question to be considered at first stage is whether the accused has done an act by doing which he has caused the death of another person. Proof of such causal connection between the act of the accused and the death leads to the 2nd stage for consideration whether that act of the accused amounts to “culpable homicide” as defined in section 299. If the answer of this question is prima facie found in the affirmative the stage is reached for considering the operation of section 300, I.P.C. This is the stage at which the Court should determine whether the acts proved by the prosecution bring the case within the ambit of any of the four clauses of the definition of “murder” contained in section 300. If the answer to this question is in the negative the offence would be culpable homicide not amounting to murder punishable under the first or the 2nd part of section 304, depending respectively on whether the 2nd or the 3rd clause of section 299 is applicable. If the question is found to be positive, but comes within any of the exceptions enumerated in section 300, the offence would still be culpable homicide not amounting to murder punishable under the first part of section 304. But sometimes the facts are so intertwined and the 2nd and 3rd stages are so telescoped into each other that it may not be convenient to give a separate treatment to the matters involved in the 2nd and the 3rd stages.” 65. It is well settled that even when the life of the victim could have been saved by giving proper treatment, the case would attract clause thirdly to Section 300 of IPC, if the medical evidence clearly indicates that the injuries sustained by the deceased was sufficient to cause death in the ordinary course of nature. The second part of Section 299 IPC shows that if death is caused by doing an act with the intention of causing such bodily injury as is likely to cause death, the offence of culpable homicide is committed. The second part of Section 299 IPC shows that if death is caused by doing an act with the intention of causing such bodily injury as is likely to cause death, the offence of culpable homicide is committed. The third clause of Section 300 IPC shows that if the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, the offence is murder. The intention to cause death is not an essential requirement of the second part of Section 299 IPC and only the intention of causing bodily injury coupled with the offender's knowledge of the likelihood of such injury causing the death of a particular victim is sufficient to attract the offence of culpable homicide. 66. A perusal of clause thirdly of Section 300 IPC shows that culpable homicide is murder, if the act by which the death is caused is done with the intention of causing bodily injury sufficient in the ordinary course of nature to cause death. The intention of the accused persons can only be inferred from the proved circumstances. Therefore, considering the nature of MO3 iron pipe used by the first accused to beat the deceased and the fact that the accused beat the deceased on the right side of the head behind the ear and the evidence of PW8 and Exhibit P5 post mortem certificate regarding the nature of the antemortem injuries sustained by the deceased as well as the utterance of the second accused to kill the deceased at the time of occurrence, we find that the prosecution has succeeded in proving that the act committed by the accused persons will come under clause thirdly of Section 300 IPC and therefore, we find that the trial court rightly convicted the accused persons for the offences under Sections 341 and 302 r/w Section 34 of IPC. 67. As per the impugned judgment, the trial court also sentenced the accused persons to undergo rigorous imprisonment for 3 years and to pay a fine of Rs.10,000/- each for the offence under Section 326 IPC. 67. As per the impugned judgment, the trial court also sentenced the accused persons to undergo rigorous imprisonment for 3 years and to pay a fine of Rs.10,000/- each for the offence under Section 326 IPC. But, in view of Section 71 of IPC, which provides that where an offence is made up of parts, each of which constitutes an offence, the offender should not be punished for more than one offence, unless expressly provided and that when an offence falls within two or more separate definitions of offences or when several acts, of which one or more than one would, by itself or themselves, constitute an offence, constitute, when combined, a different offence, the offender shall not be punished with a more severe punishment than the court which tries him could award for any one of such offences, we find that conviction and sentence for offences punishable under Sections 302 and 326 of IPC together will be double conviction and sentencing for the same acts committed against the same person and therefore, the trial court is not justified in imposing separate conviction and sentence for the offence under Section 326 IPC, when the accused are already convicted and sentenced for the offence under Section 302 IPC. 68. Therefore, while confirming the conviction and sentence imposed against the appellants/accused for the offences under Sections 341 and 302 r/w Section 34 of IPC, the conviction and sentence passed against the appellants/accused persons for the offence under Section 326 IPC is set aside. In the result, these appeals are partly allowed as above. Interlocutory applications, if any, pending shall stand closed.