IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE P.BHAVADASAN FRIDAY, THE 29TH JANUARY 2010 / 9TH MAGHA 1931 CRL.A.No. 598 of 2006() ----------------------- SC.809/2004 of SESSIONS COURT, THALASSERY .................... APPELLANT(S): ACCUSED 1 TO 5, 7, 8 & 10. ----------------------------------------------------------- 1. GURUNANAK, S/O. KRISHNAN, POTHONTAVIDA, KATHIRUR AMSOM, PONNIAM, PULLIKODI. 2. K.M.SOORAJ, S/O. RAGHAVAN, MANACHERY VEEDU, KATHIRUR AMSOM, PONNIAM, PULLIKODI. 3. K.IQBAL, S/O. HAMZA, ITTAPURQTH, KATHIRUR AMSOM, PONNIAM, PULLIKODI. 4. K.M.SHEEJAN, S/O. PADMANABHAN, SYMALAYAM, KATHIRUR AMSOM, PONNIYAM, PULLIKODI. 5. KANNOTH PRASANTH, S/O. CHANDRAN, KATHIRUR AMSOM, KATHIRUR DESOM, CHOYYADAM. 6. C.V.MANASAN, S/O. RAGHAVAN, SPOANAM, KATHIRUR AMSOM, KATHIRUR DESOM, CHOYYADAM 7. THAKKALI SHAJI @ KOTTAYI SHAJI, S/O. KULLAN BALAN, `SUBHASREE', KATHIRUR AMSOM, KATHIRUR DESOM, CHOYYADAM. 8. M.SHYJU, S/O. RAJAN, KALATHILE MEETHAL HOUSE, KATHIRUR AMSOM, KATHIRUR DEOSM], CHOYYADAM. BY ADV. SRI.P.VIJAYA BHANU SRI.P.M.RAFIQ RESPONDENT(S): COMPLAINANT. ----------------------------------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM PUBLIC PROSECUTOR SRI. NOBLE MATHEW THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 21/12/2009, ALONG WITH CRRP NO. 3962 OF 2009 THE COURT ON 29/01/2010 DELIVERED THE FOLLOWING: K. BALAKRISHNAN NAIR & P. BHAVADASAN, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Crl. Appeal No. 598 of 2006 & Crl. R.P. No. 3962 of 2009 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 29th day of January, 2010. JUDGMENT Bhavadasan, J, Eleven persons were sought to be prosecuted for the offences punishable under Sections 143, 147, 148, 324, 307, 302, 506(ii), 120B and 201 read with Section 149 of the Indian Penal Code, Sections 3 and 5 of the Explosive Substance Act and Section 27 of the Indian Arms Act. Among them, the sixth accused was found to be juvenile and therefore his case was transferred to the Juvenile Board for disposal. The nineth accused absconded and his case has been split up and refiled as C.P. 110 of 2003. Among the other accused, who faced trial, the eleventh accused was acquitted of all the charges and others were found guilty of the various offences and they were convicted and sentenced for those offences to various terms of imprisonment and fine. Crl.A.598/2006. 2 2. The incident is seen to have taken place on 14.12.2001 at 7.30 p.m. in Vettummal in Anikkampoyil amsom Kadirur desom. P.W.1 had come to attend a Bhajan. He found the deceased Ratheesh, who was his cousin being dragged out by two persons from the staircase situate near the shop of Janardhanan. Ratheesh was thrown on the road. P.W.1 questioned their act. They retaliated by stating that both will be killed and attack followed. Injuries were caused to P.W.1 with sword. He also heard an explosion of a bomb nearby. Ratheesh was mercilessly attacked and several injuries were inflicted on him. P.W.1, who got injured in the incident ran to the house of one Raghavan. He was later taken to the hospital by one Viswanath and Santhosh in a Maruti van. He came to know that his cousin Ratheesh had been removed to the Medical College Hospital at Calicut. Information of the incident was received at Panoor Police Station. P.W.17, the Sub Inspector attached to the said station went to the place of the incident and then to the hospital. He recorded the first information Crl.A.598/2006. 3 statement given by P.W.1. He returned to the station and registered Ext.P1(a) FIR for the offences punishable under Sections 324 and 307 read with Section 34 IPC. Ratheesh, while undergoing treatment at the Medical College Hospital, succumbed to his injuries. P.W.22 took over investigation. He prepared Ext.P5 scene mahazar and recovered M.O.6 series of articles. On coming to know that Ratheesh was no more, he directed P.W.19 to conduct inquest. P.W.19 conducted inquest and prepared Ext.P3 report and M.O.5 series of articles were seized. The body was sent for autopsy. P.W.20 conducted autopsy over the body of Ratheesh and furnished Ext.P12 postmortem certificate. P.W.22 filed Ext.P13 seeking to have the sections altered. He recorded the statements of witnesses. He seized an auto as per Ext.P6 mahazar. Based on Ext.P7(a) confession statement said to have been given by the first accused, he recovered M.Os. 2 and 3 as per Ext.P7 mahazar. As per Ext.P4(a) confession statement said to have been given by the fourth accused, he recovered M.O.4 as per Ext.P4 Crl.A.598/2006. 4 mahazar. As per Ext.P8(a) confession statement said to have been given by the fifth accused, he recovered M.O.1 as per Ext.P8 mahazar. He filed a report before the court showing the details of the accused and had the articles seized during investigation sent for chemical examination. He obtained Ext.P14 FSL report. P.W.23 conducted portion of the investigation and obtained sanction for prosecution. P.W.24, the successor in office to P.Ws. 22 and 23 verified the records, completed the investigation and laid charge before court. 3. Additional Chief Judicial Magistrate, Thalassery, before whom final report was filed took cognizance of the offences. On appearance of the accused before the said court, all legal formalities were complied with. The learned additional CJM found that the offences are exclusively triable by a court of Sessions and accordingly committed the case to Sessions Court, Thalassery. Crl.A.598/2006. 5 4. On receipt of records, the said court issued summons to the accused, who entered appearance. After hearing both sides, charge was framed for the offences punishable under Sections 143, 147, 148, 324, 307, 302, 506(ii) and 120B read with Section 149 IPC, Sections 3 and 5 of the Explosive Substance Act and Section 27 of the Indian Arms Act. To the charge, the accused pleaded not guilty and claimed to be tried. Prosecution therefore had P.Ws. 1 to 24 examined Exts.P1 to P17 marked. M.Os. 1 to 6 (b) were identified and marked. After the close of the prosecution evidence, the accused were questioned under Section 313 of the Criminal Procedure Code. They denied all the incriminating circumstances brought out against them and maintained that they have been falsely implicated in the case. They stated that they had nothing to do with the incident. Finding that the accused could not be acquitted under Section 232 Cr.P.C., they were asked to enter on their defence. Defence examined D.Ws. 1 and 2 and had Exts.D1 to D5 marked. Exts.C1 series and C2(a) and Ext.X1 were Crl.A.598/2006. 6 marked as third party exhibits. On an appreciation of the evidence in the case, the court below came to the conclusion that except the eleventh accused, others were guilty of the offences alleged against them. They were therefore convicted and sentenced for the offences, for which they were found liable. The said conviction and sentence are assailed in this appeal and the revision petition. 5. The question that arises for consideration is whether any interference is called for with the findings of the court below. 6. The prosecution case in brief is that on 14.12.2001 at about 7.30 p.m. at Vettummal in Anikkampoyil amsom, Kadirur desom, the accused persons eleven in number unleashed an attack on late Ratheesh. P.W.11, who was the cousin of Ratheesh, when intervened to save Ratheesh, was also attacked by them. The prosecution allegation is that the assailants were armed with deadly weapons and they had bombs with them. One of them threw a bomb, which exploded. Ratheesh later succumbed to his injuries. That Ratheesh is no more is a fact not in dispute. P.W.1 Crl.A.598/2006. 7 had spoken about the attack on Ratheesh. So also P.Ws.4 and 5. Ext.P3 is the inquest report prepared by P.W.19, which showed the injuries found on the body of late Ratheesh. P.W.18, the doctor initially attended to Ratheesh says that he had given first aid to the patient and directed that he should be taken to Medical College Hospital for better management. P.W.20 is the Forensic Surgeon, who had conducted autopsy over the body of late Ratheesh and furnished Ext.P12 report. The court below has in its judgment extracted the details of the postmortem report. It is unnecessary to repeat the same. It is seen from the report that the Forensic Surgeon noticed as many as 19 ante mortem injuries on the body of Ratheesh. The opinion of the Forensic Surgeon is that death was due to cumulative effect of injury Nos.5, 6, 8 and 11. Injury No.5 was on the back of middle of right forearm. Injury No.6 was on the back side of right elbow. Injury No.8 was on the outer aspect of lower part of right knee and leg, and injury No.11 was a crush injury over the back of loser part of left arm, elbow and forearm. Crl.A.598/2006. 8 The doctor has also opined that the injuries noticed by him could be caused by the weapon shown to him. It is therefore clear that the death of Ratheesh was due to inflicted injuries and a clear case of homcide. 7. The crucial question that now arises for consideration is whether the court below was justified in finding the accused guilty of the offences alleged against them and the court below was justified in coming to the conclusion that the acts attributed to the accused have been established. 8. Ratheesh, the deceased is the son of the brother of P.W.4, who is the father of P.W.1. The incident occurred on 14.12.2001. P.W.1 at the relevant time was a degree student. The incident occurred at about 7.30 p.m. P.W.1 would claim that he was on his way to attend a Bhajan. He reached Vettummal. When he reached the shop of one Janardhanan, he saw the fourth accused pushing the deceased into the road. P.W.1 went to the aid of Ratheesh. P.W.1 would say that the second accused wielded a Crl.A.598/2006. 9 sword and threatened that both would be killed. While warding off the the sword brandished by the second accused, P.W.1 sustained injury on his back. He would say that then the fifth accused attacked with an axe, which resulted an injury on his left hand. According to him, soon thereafter, he heard an explosion. He ran towards the shop of his father. He told his father about the incident. He claimed that while he was running away, when he looked back, he happened to see the first accused beating the deceased with an iron rod and the third accused attacking him with a sword. P.W.1 says that he went to the house of Raghavan. He met C.W.18 there. He was repairing the gate of the house of Raghavan. He told him about the incident. He then fell down. He says that C.W.19 Santhosh and C.W.5 Viswanath took him to the hospital. P.W.1 says that from the Government Hospital, he furnished Ext.P1 first information statement. He would claim that at that time he was very much frightened of the accused persons and therefore he did not disclose the entire details. He identified Crl.A.598/2006. 10 M.Os. 1, 2 and 3. He also stated that all the accused were familiar to him. 9. P.W.2 turned hostile to the prosecution. P.W.3 claimed to have seen the incident. He would say that the incident occurred on 14.12.2001 at about 7.30 p.m. He was on his way to the shop of one Sajith, which is on the northern side of the place of incident. He says that when he reached in front of the ration shop, he happened to see the fourth accused bringing down the deceased from the steps of the staircase nearby. P.W.3 would say that at that time P.W.1 went past him. P.W.3 claims that he heard P.W.1 asking the miscreants as to why they were pulling him down. According to him, at that time, P.W.2, C.W.3 and C.W.4 were present. P.W.3 says that on finding that Ratheesh @ Kuttan was lying on the ground, P.W.1 helped him to get up. At that time, the second accused shouted '...............' (run away) and attacked with a sword causing injury to P.W.1. Soon thereafter he heard a bomb blast. According to P.W.3, P.W.1 ran towards south when Crl.A.598/2006. 11 the fifth accused wielded the axe. A minor injury was caused to P.W.1. P.W.3 says that at that time accused Nos. 2 and 4 caught hold of the deceased and the deceased was taken to the opposite side of the road. The first accused was waiting there with an iron rod. The first accused hit Kuttan on his left arm. Kuttan fell down. P.W.3 would say that the third accused with a sword and accused Nos.1, 2 and 4 with their weapons inflicted wounds on the deceased. He would also say that the deceased told the first accused '......................................................'. He also pleaded as to why the first accused was doing such things to him. By that time, P.W.4 had come down running and approached the deceased. Others also converged at the spot. P.W.3 would claim that the accused persons wielded their weapons and tried to keep the people at bay. P.W.3 would also say that P.W.4 pleaded to the assailants, that Kuttan may not be harmed. By then an autorickshaw had arrived at the place. It took a turn around the Church and the assailants escaped in it. P.W.4 then approached Crl.A.598/2006. 12 Kuttan, who said he had lost one of his hands. Kuttan was removed to the hospital in a trucker. He identified accused Nos.1 and 4 and M.O.4. 10. P.W.4 is the father of P.W.1 and the deceased is his brother's so. He does business in the same area. He would say that on 14.12.1001 while he was attending to his shop, he heard a loud explosion. Immediately thereafter, he saw his son P.W.1 running to him. P.W.1 told him that Kuttan was being attacked by a few people. P.W.4 claims to have gone to the place. He saw three or four persons around the deceased. He asked them to get away. He says he had occasion to see accused Nos.1 and 4 beating Kuttan with an iron rod and the second accused attacking him with a sword. Accused No.5 attacked Kuttan with an axe. He says that Ratheesh twice told '..........................'. He pleaded not to assault Kuttan. Soon the assailants left the place. He went near Kuttan and Kuttan told that he lost one of his hands. C.W.10 was informed as he was in his shop. His eldest son Rijesh, C.W.18 Crl.A.598/2006. 13 Pradeepan, Santhosh etc. removed Ratheesh to hospital. He returned to his shop. He would then say that P.W.1, who was injured in the incident was in the house of Raghavan. He went to the house of Raghavan and saw P.W.1. He noticed that P.W.1 had injuries on him. He along with others removed P.W.1 to hospital. He would say that the cloths worn by him at the relevant time had blood stains on them. 11. P.W.5 claims that he too knows about the incident. On 14.12.2001 at about 7.30 p.m. while he was engaged in the act of repairing the gate of Raghavan, he heard an explosion. He saw P.W.1 running towards the house and told that Kuttan was attacked by a few persons. Hearing the same, P.W.5 came to the road. He saw about five persons going towards Thalassery. One of them had an axe and another had a sword and others had iron pipes. According to him, Kuttan was helped by P.W.5. He claims to have fetched a vehicle and along with Valsan, Majesh, Rijesh etc removed the victim to the hospital. He says that on the way Crl.A.598/2006. 14 Ratheesh told him that he was beaten by Guru and Sheejan, accused Nos.1 and 4. He also stated that since his mother was alone at home, the incident may not be informed to her. The witness stated that the accused were not familiar to him. He identified accused Nos. 1, 2, 4 and 6. Accused No.6 was identified as Prasanth by him, while actually Prasanth is accused No.5. He would also say that the trucker in which Ratheesh was removed to the hospital was attacked by the assailants. The attack was made at him also. P.W.5 would say that Ratheesh was removed to Indira Gandhi Co-operative Hospital. When they reached the hospital, doctor pronounced Ratheesh dead. 12. P.W.6 seems to have seen the incident. He was on his way to the temple. He had come inside the town. On the way he met Rijeesh, the brother of P.W.1. They exchanged courtesies. P.W.6 continued his journey to the temple. He would also say that he had occasion to see P.W.5 attending to the gate of the house of Raghavan. He came to know that the lamp had already lighted in Crl.A.598/2006. 15 the temple and the temple belonged to the family of Raghavan. He says that as he was going along, he happened to see an autorickshaw named 'Garuda' going towards Koothuparamba. Accused No.2 was driving the auto and accused No.3 and others were inside. The auto stopped near Vettummal Ganapathy Temple. Thereafter the auto returned. At about 7.15 p.m. while he was waiting for the bus to Thalassery, he happened to see the same autorickshaw going along the road. It stopped near the house of Dr.Chandran. He would then say that he happened to see accused Nos. 2, 3, 5 and 8 coming out of the autorickshaw. He says that while he was waiting for the bus at Keezhanthimukku, he had occasion to see an Ambulance coming along the road carrying Kuttan. P.W.6 would say that seeing him, the vehicle was stopped and he too got in. He also claims that Ratheesh on the way said that the matter need not be informed to the inmates of the house since his mother was alone in the house. Crl.A.598/2006. 16 13. P.W.18 is the R.M.O attached to the Indira Gandhi Co-operative Hospital at Thalassery. On 14.12.2001 according to him Ratheesh was taken to the casualty ward. First aid was given to Ratheesh. He was thereafter referred to the Speciality Hospital at Ernakulam. But P.W.18 concedes that there was no records to reveal the treatment given to Ratheesh at Indira Gandhi Hospital. However, he say that Ratheesh was sent in the Ambulance belonging to Indira Gandhi Hospital. The lower court sought to believe P.Ws. 1, 3, 4 and 5. The court below drew inspiration from the recovery of the weapon, which according to the court below fall within the ambit of Section 27 of the Indian Evidence Act. 14. According to learned counsel for the appellant, it is unfortunate that the court simply without analysing the evidence accepted whatever the evidence placed before the court. The inherent deficiencies, infirmities and lacunas in the evidence of witnesses, make it difficult and in fact hazardous to simply accept their version and the prosecution case. In the earliest version of Crl.A.598/2006. 17 P.W.1, he implicated only two persons. As days passed, the number of persons increased and finally it stood at 11. Learned counsel pointed out that even assuming that P.W.1 was frightened and did not disclose the names of the assailants, there was no such infirmity as far as P.Ws. 3, 4, 5 and 6 were concerned. A reading of their evidence would show that they were aware of the involvement of the accused persons and they had infact actually seen the infliction of the injuries. None of them disclosed the details to the police officer. In fact the records would show that P.Ws.5 and 6 were present at the time of inquest. Learned counsel pointed out that one of them says that when he told the names of the assailants to the police officers, who had conducted inquest, he was asked to reveal it to the investigating officer. But the evidence of P.W.19, who conducted the inquest as per the direction of P.W.22 shows that even though he ascertained if anyone could give the details of the accused at the time of inquest, none had come forward to do so. The claim of P.Ws.5 and 6 that the victim Crl.A.598/2006. 18 had told them about the attack is unbelievable. Their evidence would indicate that the victim was capable of talking at the relevant time. If as a matter of fact Kuttan had revealed the incident to P.W.5, it was unnecessary for him to repeat it when P.W.6 joined them. If as a matter of fact, 11 persons were actually involved in the incident, one would fail to understand as to why and how P.W.1 confined the number to two. Even those witnesses who claimed to have seen the incident did not implicate all the accused. Learned counsel also pointed out that there is inherent weakness in the prosecution case and the prosecution case is open to serious doubt. 15. Learned Public Prosecutor justified the finding of the court below. According to him, the mere fact that P.W.1 had not disclosed the names of all the assailants is not a ground at all to throw out the prosecution case. P.Ws.1, 3, 4, 5 and 6 had spoken about the incident and their version is consistent and uniform. There is no reason to disbelieve them. No reasons are also Crl.A.598/2006. 19 established as to why they should falsely implicate the accused persons. Therefore, according to the learned Public Prosecutor, the court below was justified in convicting the accused on the basis of the available evidence on record. 16. P.W.1 is one of the crucial witnesses for the prosecution and is the author of Ext.P1. Going by his evidence, he had occasion to see Ratheesh being pulled from the staircase and being taken to the road. The evidence of P.W.1 shows that he intervened and received some blows. According to him, he had a bleeding injury. As per his evidence he rushed to his father and informed him about the incident. He told his father that Ratheesh was being thrashed. What is significant is that P.W.1 at that time does not disclose that he suffered injuries at the hands of the assailants. It is equally surprising to note that P.W.4 did not note the injuries on P.W.1. One may recall that the evidence of P.W.1 is that the injuries suffered by him were severe one and he was bleeding from his injuries. Then again, P.W.1 says that his Crl.A.598/2006. 20 father told him to go to his house. For reasons best known to P.W.1, he does not do so and goes to the house of Raghavan. It is significant to notice that P.W.1 has no case that after he has spoken to his father he had returned to the place of incident. So assuming that P.W.1 is trustworthy, it only shows that he was a victim in the incident and also that he had seen the initial attack on the deceased. In cross-examination, P.W.1 says that he had never revealed the names and number of persons at any point of time except to the investigating officer on 17.12.2001. Ext.P1 statement does not contain many of the details spoken to before court. The omissions, which amount to contradictions, cover more than two pages of the deposition. Most of the crucial facts spoken to by P.W.1 in court do not find a place in Ext.P1 first information statement. Even assuming that he was afraid to disclose the details, he did not have to confine the liability to two persons while giving the first information statement. To the doctor, he said that '..........................................................................'. P.W.1 is categoric Crl.A.598/2006. 21 that all the accused are very familiar to him. If that be so, he could identify the assailants at the time of incident. The fact that he did not identify his assailants as would be disclosed from the evidence already referred to cast suspicion on his evidence. The witness speaks about the active involvement of a person by