IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI WEDNESDAY, THE 15TH OCTOBER 2008 / 23RD ASWINA 1930 CRL.A.No. 297 of 2005() ----------------------- SC.87/1997 of ADDL. SESSIONS COURT, ALAPPUZHA .................... APPELLANT(S)/ ACCUSED 1 & 5: ---------------------- 1. OUSEPH @ KUTTAN, PANACKKALPURAYIDATHIL, MARARIKULAM SOUTH PANCHAYATH, WARD XIII, AMBALAPPUZHA TALUK, ALAPPUZHA DISTRICT. 2. ZEETUS, MAVELITHAYYIL VEEDU, MARARIKULAM SOUTH PANCHAYATH, WARD XIII, AMBALAPPUZHA TALUK, ALAPPUZHA DISTRICT. BY ADV. SRI.M.SUNILKUMAR RESPONDENT/COMPLAINANT-STATE: ---------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR, SRI.JAI GEORGE. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 15/10/2008, ALONG WITH CRA NO. 298 OF 2005, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.BALAKRISHNAN NAIR & M.C.HARI RANI, JJ. ----------------------------------------- CRL.APPEAL NOS. 297 & 298/2005 ----------------------------------------- Dated 15th October, 2008. JUDGMENT Balakrishnan Nair, J. The accused 1 and 5 in S.C.No.87/97 of the Court of Additional Sessions Judge, Alappuzha are the appellants in Criminal Appeal No.297/2005. The accused 2 to 4 in the very same Sessions Case are the appellants in Criminal Appeal No.298/2005. Since both the appeals are directed against the very same judgment, they are heard and disposed of by this common judgment. 2. The case of the prosecution in brief is as follows: The accused 1 to 5 along with 20 other accused were charge-sheeted by the Circle Inspector of Police, Alappuzha, for the offences punishable under Sections 143, 144, 148, 302, 307 and 324 read with Section 149 of the I.P.C. According to the prosecution, the accused formed themselves into an unlawful assembly with a common object to Crl.A.No.297 & 298/2005 2 murder Baiju and PW2. To achieve the above common object, the members of that unlawful assembly armed with deadly weapons attacked Baiju and PW2 at about 3.30 p.m. on 17.1.1994. The place of occurrence was the courtyard of house No.504 known as Vavakkadu house in Ward No.XIII of Mararikulam South Panchayat in Pathirappally Village. The accused were harbouring previous enmity towards Baiju, PW2 and others, for their role in obstructing a 'Ganamela' which was held in May, 1993 in Amalotbhava Kurisupura at Omanappuzha, which is a place near Alappuzha beach. On 17.1.1994 at about 3.30 p.m. when the deceased and PW2 came for tapping coconut trees in the property of Joseph Kocheekkaran, which is situated on the north of Vavakkadu house, the accused surrounded them from all the four sides and attacked them using sickle, chopper, iron rod, iron pipe, sticks, cycle chain etc. Mr.Baiju was hit on the head by the 1st accused using a glyricidia stick. Thereupon, he fell down and he was attacked by the other accused using the deadly weapons in their hands. PW2 tried to rescue him by waving his knife used for tapping coconut trees. But, he was attacked by the mob and he Crl.A.No.297 & 298/2005 3 took refuge in the near-by house. That house was belonging to PW3 Selin. Though, Selin attempted to prevent the attack, the accused stormed into the house and brutally attacked PW3 also. Under the belief that both were dead, the mob went away. 3. The people of the locality, who came running to the scene, took Baiju and PW2 to the Medical College Hospital, Alappuzha, where Baiju was declared dead. But, PW2 survived the attack. Ext.P1 F.I. Statement was lodged by PW1 Alphonsa. It was recorded by PW22, Additional Sub Inspector of Police, Alappuzha North Police Station, who registered Crime No. 26/94. The investigation was taken over by PW23, Circle Inspector of Police. PW23 conducted the inquest, questioned the witnesses and completed major part of the investigation. PW24, the successor-in-office of PW23, verified the investigation and filed the charge before the Judicial First Class Magistrate's Court-I, Alappuzha. Since there was some defect in the charge, it was returned. It was verified and re-presented by PW25, who was the Circle Inspector of Police at the relevant time. The learned Magistrate committed the case for trial by the Sessions Court. Crl.A.No.297 & 298/2005 4 The learned Sessions Judge made over the case to the Additional Sessions Judge, Alappuzha. 4. The accused pleaded not guilty to the charges framed against them. From the side of the prosecution P.Ws. 1 to 25 were examined and Exts.P1 to P70 were marked. Material objects, M.Os.1 to 24 were also produced and marked. From the side of the defence, Ext.D1, which is a portion of the statement of PW4 made under Section 161 of the Cr.P.C. was also marked. The learned Additional Sessions Judge, after hearing both sides, found accused 1 to 5 guilty of the offences under Sections 143, 144 and 148 of the I.P.C. They were also found guilty under Sections 324, 307, and 302 of the I.P.C., read with Section 149 of the I.P.C. They were convicted for the offences under the above Sections. They were sentenced to undergo imprisonment for life and to pay a fine of Rs.25,000/- each for the offence under Section 302 read with 149 of the I.P.C, and in default to pay the fine, to suffer simple imprisonment for one year each. They were also sentenced to undergo rigorous imprisonment for 10 years for the offence under Section 307 read with Section 149 of the I.P.C., 2 months rigorous Crl.A.No.297 & 298/2005 5 imprisonment for the offence under Section 324 read with Section 149 of the I.P.C, 2 months rigorous imprisonment for the offence under Section 143 and one year's rigorous imprisonment each for the offence under Sections 144 and 148 of the I.P.C. It was also ordered that the terms of imprisonment for the offences under Sections 307, 324, 143, 144 and 148 of the I.P.C. shall run concurrently with the imprisonment for life awarded under Section 302 read with Section 149 of the I.P.C. It was further ordered to grant set off under Section 428 of the Cr.P.C., in respect of the period of detention suffered by them as under-trial prisoners, subject to the provisions contained under Section 433A of the Cr.P.C. 5. The aggrieved appellants/accused have preferred these appeals on various grounds. The learned counsel for the appellants M/s.Sunil Kumar and R.Bindu Sasthamangalam submitted that only PWs 2, 4, 5 and 8 supported the prosecution. All other witnesses were hostile. The trial court only believed the version of PW2 and based on the evidence of the said witness, the appellants were convicted. The appellants would point out that a close reading of the evidence of PW2 Crl.A.No.297 & 298/2005 6 would show that he is a tutored witness and his version lacks credence. They pointed out that the version given by PW2 regarding the occurrence is improbable. Before the court, PW2 submitted that he knows only accused 1 to 5. Though, he is familiar with A6 and A7, he does not know their names. It was also stated that he has seen A11, A14, A15, A18, A19, A20 and A23, but he does not know their names. But, going by his statement under Section 161 of the Cr.P.C., he has named all the 24 persons before the police. The same is proved through the investigating officer. Going by the version of PW2, all the accused, after inflicting a few injuries on Baiju chased PW2 and entered the house where he sought shelter. The above version of PW2 does not tally with the medical evidence regarding the injury on the body of the deceased. The room where PW2 tried to hide himself is a small room, which cannot contain all the 24 accused. Further, the scene mahazar would show that everything in that room remained undisturbed, notwithstanding the entry of so many persons for attacking PW2. It is also pointed out that the versions of PWs.4 and 5, who supported the prosecution, did not corroborate the evidence of Crl.A.No.297 & 298/2005 7 PW2. The learned counsel for the appellants pointed out that PW4 has stated before the police that all the 24 accused entered the building to attack PW2. But, while in the box, he retracted from that. That will be evident from Ext.D1, it is submitted. While in the box, he stated that 10 to 12 persons entered the room, chasing PW2. The learned counsel also pointed out that PW4, who was standing in the neighbouring property, could not have witnessed the attack made on Baiju, the deceased. PW5, before the police, named 23 accused persons. But, while in the box, he stated that he knew only A2 and A3. He did not know the names of others. PW5 has also stated that all the accused chased PW2. So, the learned Additional Sessions Judge has rightly disbelieved PWs.4 and 5, it is submitted. PW8 is the brother of PW2. He was also disbelieved by the learned Additional Sessions Judge. The learned counsel also brought to our notice certain other circumstances in favour of the appellants. In the house of PW3, no blood was detected on the floor. The case of the prosecution is that PW2 was lying flat on the floor and he was attacked several times by the accused using deadly weapons. As a result, he Crl.A.No.297 & 298/2005 8 sustained 14 injuries, of which 12 are incised injuries. If that be so, PW2 must have bleeded profusely and blood must have been detected on the floor of the house. Another circumstance canvassed by the appellants for impeaching the credibility of the prosecution case is regarding the recording of the F.I. Statement. PW1, who sustained injury on her middle finger, index finger and little finger of her left hand, met the Doctor for medical treatment on 18-1-1994 at 9.40 a.m. only. The Assistant Sub Inspector of Police, who recorded the F.I. Statement, noted that the fingers of PW1 were bandaged. So, according to the learned counsel, her F.I.Statement might have been recorded after her treatment in the morning of 18-1-1994. The records were manipulated to appear that it was recorded on the previous day. The appellants also pointed out that the identification of the accused for the first time in court cannot be relied on. Further, at the time of trial, the learned Additional Sessions Judge insisted that all the accused should stand in the dock according to their rank, i.e. A1 should stand first and A25 should stand last. Further, the accused were asked to enter the dock one by one, on calling their respective names. Crl.A.No.297 & 298/2005 9 Therefore, the witnesses got a chance to identify them. For this reason also, the identification of the accused by the witnesses lacks credibility, it is submitted. The learned counsel also submitted that almost all the injuries were caused to the leg of Baiju and not on any vital parts. So, there was no common intention to kill him. The learned counsel pointed out that each accused should be convicted only for the overt act done by him. In this case, A5 only attacked PW2 and not the deceased and therefore, his conviction under Section 302 is not justified. There was no intention to murder Baiju and PW2. If that be so, the vital parts of the deceased and PW2 would have been targeted using the deadly weapons. So, even assuming the case of the prosecution is correct, the offence under the first part of Section 304 of the Indian Penal Code alone is proved, it is submitted. 6. In answer, the learned Public Prosecutor made the following submissions: He submitted that the first information statement was recorded on the very same day. A woman in a village, upon sustaining injury, would immediately bandage her fingers. She would not have awaited till she reached the hospital on the next day. The Doctor Crl.A.No.297 & 298/2005 10 must have examined the injury after removing the bandage put by her. Therefore, the claim of the defence that the F.I. Statement must have been recorded on the next day and the records were manipulated to appear it as one recorded on 17-4-1994, is plainly untenable. PW2 has stated that 10 - 12 persons entered the room. He was attacked by several persons using deadly weapons. Therefore, he cannot be expected to remember all the details accurately. The same cannot be a ground to disbelieve his version. All the accused joined together and surrounded the deceased and PW2. There was a common object harboured by the members of the unlawful assembly to murder them. Therefore, overt act of every individual member of the unlawful assembly is not necessary to sustain the conviction. The learned Public Prosecutor also submitted that the criticism made by the trial court against the evidence of PWs.4 and 5 is unjustified. The crime was committed in broad day light. The presence of the accused have been spoken to by PW2 and other witnesses. Even the hostile witnesses have spoken about the presence of a group of persons, who attacked the deceased and PW2. Therefore, the learned Public Prosecutor prayed Crl.A.No.297 & 298/2005 11 for dismissing the appeals. 7. Before dealing with the rival contentions, we will refer to the evidence on record, including the depositions of the witnesses. PW1 is a house wife. She admits that she suffered injury on 17-1-1994. She has given Ext.P1 F.I. statement before the police. Hearing a hue and cry, she went to the scene. The incident happened in front of the house of her sister-in-law, Selin, who is PW3. When she went there, she heard a hue and cry and also saw beating of some persons. She did not know the persons involved. There were weapons in the hands of many persons. But, she does not say which were the weapons and who were carrying them. She rushed to the scene, asking them to forbear from doing anything. In that incident, she suffered injury on three fingers of her left hand. Though PW1 admitted, giving the F.I. statement and spoke about the incident in general terms, she was declared hostile, as she failed to identify the accused. 8. PW2 is a toddy tapper. He was a friend of Baiju, the deceased. They were attached to T.S.No.40 of Ambalapuzha Taluk. The toddy shop is on the north eastern side of Omanapuzha Church. Crl.A.No.297 & 298/2005 12 He along with Baiju went for tapping coconut trees on the fateful day. He stated that he does not know the names of A6 and A7. He has seen A11, A14, A15, A18, A19 and A20, A22 and A23, but he does not know their names. He knew all other accused. The incident took place at 3.30 p.m. on 17-1-1994. The scene of occurrence was the house belonging to Benchappan (Benjamin -PW6), Bavakattil, Chettikkad. On 17-1-1994 at about 3 p.m., he along with Baiju started for toddy tapping. They travelled in bicycles. The bicycles were placed by the side of the road, going to the Beach and they walked to the south. When they reached in front of the house of Benchappan, all the accused came and surrounded them. A1 was carrying a wooden stick. A2 was having a sickle (used by coconut climbers). A3 was also carrying a sickle. A4, A5, A8, A10, A14 and A25 were respectively carrying sword stick, iron pipes, wooden stick and chopper. The other accused were carrying sticks, iron rods etc. A1 hit on the head of Baiju using a stick. Baiju fell down on the floor. A2 cut on the right leg of Baiju, 3- 4 times. A3 cut on the left leg of Baiju using a sickle, 4-5 times. Again the said accused cut at the ankle of Baiju. A4, using a sword- Crl.A.No.297 & 298/2005 13 stick cut on the ankle of Baiju. Seeing this, PW2 came forward to save him. Thereupon, the second accused, using a sickle, cut on the right hand elbow and forearm. The third accused, using a sickle, cut on his right hand. Those cuts hit above the elbow and also on his palm. PW2 felt that they were going to kill him. So, he unsheathed the tapping knife and waved it at them. Three or four persons were injured. Thereupon, the 5th accused using an iron pipe, hit on the right forearm of PW2. The tapper’s knife fell from his hand. On realising that he is going to be killed, PW2 rushed into the house of Benchappan. Benchappan’s wife covered him using a mat. The accused rushed into the room through the doors and removed the mat. He was struck on his left hand. A25 cut on his left hand. Others cut and also struck on his head and back. Fearing that he would be killed, he lay down without any motion like a dead man. PW1 came and tried to prevent the attack. She suffered cut injury on her fingers from the sickle used by the second accused. PWs.1 and 3 cried aloud. People came rushing to the scene. Then the accused said he (PW2) is dead and went away. The people assembled there only thereafter. The son of PW1 called an Crl.A.No.297 & 298/2005 14 autorickshaw and they were taken to the Medical College Hospital. PW2 was taken to the operation theatre. Later, he came to know that Baiju was already dead. He was in the hospital for 26 - 28 days. He continued his treatment in his house for 3 ½ months. Baiju’s younger brother Gandhi and his friends went for watching a Ganamela in Amalobhavamatha Kurisupalli, Omanapuzha. Gandhi and his friends danced when the last song was sung. There was a clash between the organizers and Gandhi. It was on 31-5-1993. Next day Gandhi and his family members attacked A3 and A4. Cut injuries were inflicted on them. A crime was registered in connection with the said incident. Baiju, PW2, Gandhi, the brother of Baiju, his father Chellappan and Thyagarajan, the brother of PW2 were accused in that case. On 16-1- 1994 one Mr.Sabu, who was coming after seeing a film was beaten. He did not know Sabu. Alleging that Baiju and PW2 have beaten Sabu and to take revenge, they were attacked on the fateful day. The witness identified MO1 mat used by PW3 to cover him. MO2 sickle was used by A2. MO3 sickle was used by A3. MO4 sword-stick was used by A4. MO5 stick was used by A10. MO6 stick was used by Crl.A.No.297 & 298/2005 15 A25. MO7 sheath of the tapper’s knife was used by PW2. MO8 sheath of the tapper’s knife was used by Baiju. MO9, the wooden stick was used by A15. MO10 wooden stick was used by A1. MO11 iron pipe was used by A5. MO12, iron stick was used by A14. MO13 iron stick was used by A12. He also identified Mos.14, 15 and 16, which were the iron pipes and iron sticks used by some of the assailants. He also identified MO17. It was a wooden stick in the hands of A1. PW2 corrected that MO10 was not the wooden stick used by A1. It was so stated by mistake. He further identified MO17 and MO17(a). It was a wooden stick, which broke into two pieces. They were marked as MOs.17 and 17(a) respectively. He also identified MO18, a stick which was in the hands of one of the accused. He also identified the blood-stained brick, MO19, recovered from the house of Benchappan. He identified MO20 tapper's knife used by him, MO21, tapper's knife used by Baiju and MO22 cycle chain used by A25. In the cross- examination by the defence, the witness stated as follows: The toddy shop was run by his elder brother Mohandas. Some of the coconut trees tapped by him were on the northern side of the scene of Crl.A.No.297 & 298/2005 16 occurrence. Two of them belong to Chellappan and Joseph. They were near the scene of occurrence. PW2 used to go for tapping along with Baiju. The witness is residing on the eastern side of the toddy shop. The trees have to be tapped at 9 a.m., 3 p.m. and 7 p.m. If the work started at 9 a.m., it would be over by 11 a.m. The coconut trees are at a distance of about 3 - 4 kilometres from his house. On that day, the tapping work was started at noon. They came after tapping one coconut tree. At noon normally, toddy will not be removed. So, they did not carry any pot for taking toddy. The police questioned him 2 or 3 times. He did not remember when he was questioned. There was only one case in which he and Baiju were the accused. Gandhi was an accused in one more case. It was a murder case, which took place in Pattukulam temple. The attack from the accused was unexpected. The time taken to attack Baiju was less than eight minutes. PW2 was all along trying to prevent the attack. The witness was attacked after the attack on Baiju. When he tried to prevent the attack on Baiju, he was beaten from behind using a wooden stick. He does not remember who had beaten him. He does not know the size of Crl.A.No.297 & 298/2005 17 the room into which he entered. Some of the accused also entered the room. About 10 to 12 persons might have entered the room. He did not see the same properly. On being beaten, Baiju fell down and at that time no one was attacking PW2. Baiju was surrounded and attacked. He does not remember the time when he was attacked. He was exhausted. 2 or 3 persons took him to the hospital. He cannot say who took him to the hospital. Axe was not used to attack him. The attack was sudden. It took some time. He does not know how many minutes were taken. The known persons were named before the police. Since six years were already over, the witness stated that he does not remember the names told by him. To a specific question as to how many were named by him, he said that he named eleven persons. He was asked whether he had noted any peculiarities to identify the weapons. He stated that he saw the same in the hands of the accused. He has not stated any particular marks to identify them. He told the police that A25 attacked him while he was in the house of PW3, using a chopper. He told the police about the same. He told the police that A10 and A25 attacked him, while he was in the house of PW3. All of Crl.A.No.297 & 298/2005 18 them attacked. He does not remember whether the accused entered the room from two sides. He has told the police about the entry of A10 and A25 into the room. He has not stated before the police as to who removed the mat. Another question was put to him as to whether Baiju was attacked again, after attacking him. He said that he was inside the room. There were houses on both sides blocking the view. They were taken to the hospital in two autorickshaws. He told the police about the weapons carried by some of the accused. He gave the house names of some of the accused. He remembers that he has told the police about the house names of A3 and A14. The defence pointed out that the witness has not stated the house names of any of the accused before the police. In reply, PW2 said that he was questioned 2/3 times by the police. PW2 further added, he cried stating that he may not be killed. When Baiju was attacked, he tried to prevent the same. He does not remember whether he has told the police that he was also injured when Baiju was being attacked. PW2 was injured after Baiju sustained injuries. While A2 cut him, some persons were beating him. He did not watch the beating. He was watching the Crl.A.No.297 & 298/2005 19 infliction of cut injuries. He has named before the police those accused whom