IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 14TH JANUARY 2009 / 24TH POUSHA 1930 Crl.Rev.Pet.No. 3082 of 2007() ------------------------------ CRA.51/2005 of ADDL.SESSIONS COURT-II, KOZHIKODE SC.383/2002 of II ADDL.ASSISTANT SESSIONS COURT, KOZHIKODE .................... REVN. PETITIONER(S): APPELLANT/ACCUSED: --------------------------------------- 1. AHAMMEDKUTTY, S/O. ABOOBACKER, KAYANAL HOUSE, KODUVALLY AMSOM, KODUIVANMUZHI DESOM. 2. MUHAMMED, S/O. AHAMMEDKUTTY, 29/98, KAYANGAL HOUSE, KODUVALLY AMSOM. 3. ABOOBACKER, S/O. AHAMMEDKUTTY, 27/98, KAYANGAL HOUSE, KODUVALLY AMSOM. 4. ABDURAHIMAN, S/O. AHAMMEDKUTTY, THAZHEMUYAL VEETTIL HOUSE, KODUVALLY AMSOM, KODUVANMUZHI DESOM, KOZHIKODE. 5. ABDULKHADER, S/O. AHAMMEDKUTTY, KAYANGAL HOUSE, KODUVALLY AMSOM, KODUVANMUZHI DESOM, KOZHIKODE. 6. IBRAHIM, S/O. AHAMMEDKUTTY, KAYANGAL HOUSE, KODUVALLY AMSOM, KODUVANMUZHI DESOM, KOZHIKODE. 7. UMMER, S/O. AYAMMEDKUTTY, 18/98, KODUVALLY AMSOM, KODUVANMUZHI DESOM. 8. ABOOBAKCER, S/O. AYAMMED, MUNDATHODUKAYIL KODUVALLY AMSOM, ERANHIKKOTH, KOZHIKODE. BY ADV. SRI.K.JAGADEESCHANDRAN NAIR SRI.THOMAS JACOB (THIRUVALLA) SRI.N.JAMES KOSHY RESPONDENT(S): RESPONDENTS/COMPLAINANTS: ---------------------------------------- 1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. THE SUB INSPECTOR OF POLICE, KODUVALLY. PUBLIC PROSECUTOR C.M.NAZAR THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 14/1/2009 , ALONG WITH CRRC NO. 1 OF 2007 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. ------------------------------------------ CRL.R.P.NO.3082 OF 2007 and CRL.R.C.NO.1 OF 2007 ------------------------------------------ Dated 14th January 2009 O R D E R Revision petitioners are eight accused in S.C.383/2002 on the file of Assistant Sessions court, Kozhikode. First revision petitioner is the father and revision petitioners 2 to 7 his sons and eighth revision petitioner his son-in-law. Charge against revision petitioners framed by Assistant sessions Judge, Kozhikode was that on 22/12/1998 at about 8.15 p.m all the revision petitioners formed themselves into an unlawful assembly with the common object of causing death of Pws.1 and 2 and in furtherance of the common object revision petitioners armed with deadly weapons like knife, chopper wooden reaper came to the bazar, in front of the building No.K.P.12/192-194 situated on the northern side of the Manipuram-Kunnamangalam road, in jeep No.KL-11-H-1441 and got down and thereafter attacked Pws.1 to 3 and seventh revision petitioner cut PW1 with a chopper CRRP 3082/07 & RC 1/07 2 which was resisted by him and revision petitioners 2 and 3 inflicted injuries on PW1 by hitting with reaper and wooden stick and with the intention to cause death, first revision petitioner inflicted injury on the head of PW1 and revision petitioners, being members of the unlawful assembly inflicted injuries on Pws.2 and 3 also and they thereby committed offences under Sections 143, 147, 148, 323, 324, 326, 307 and 506(ii) read with Section 149 of Indian Penal Code. After hearing them on the question of sentence, revision petitioners were convicted and sentenced by learned Assistant Sessions Judge. Petitioners challenged the conviction and sentence before Sessions court, Kozhikode in Crl.A.51/2005. Learned Additional Sessions Judge on re- appreciation of evidence confirmed the conviction and sentence and dismissed the appeal. It is challenged in the revision. When the reason was admitted finding that in spite of conviction no sentence was awarded for the offence under Section 143 and 148 of Indian Penal Code, Cr.R.C.12/2007 was suo motu taken. 2. Learned counsel appearing for revision petitioners and Public Prosecutor were heard. 3. Argument of the learned counsel is that CRRP 3082/07 & RC 1/07 3 though revision petitioners were concurrently convicted, appreciation of evidence by the courts below was perverse and material contradictions and omission in the evidence of Pws.1 to 3 was not properly appreciated by the courts below. It was pointed out that there was no case for Pws.1 to 3 when PW1 furnished Ext.P1 FI statement or their statements were recorded by the police under Section 161 of Code of Criminal Procedure, as proved by the evidence of PW13, head constable who investigated the case, that either revision petitioners attempted to inflict injury with a chopper or when it was resisted the chopper fell down or that the accused came proclaiming that Pws.1 to 3 are to be killed or that their liver is to be taken out as deposed by them at the time of evidence and this aspect was not properly appreciated. Learned counsel also pointed out that even though PW1 has a case that all the accused came there together in a jeep driven by eight revision petitioner, Pws.2 and 3 did not have such a case when their statements were recorded under Section 161 of Code of Criminal Procedure by PW13 and evidence of Pws.1 to 3 was not corroborated by any independent witness. It was pointed out that Pws.4 and 11 the independent witnesses CRRP 3082/07 & RC 1/07 4 turned hostile to the prosecution and even though PW4 is related to Pws.1 to 3, even PW4 did not support the prosecution case and on the uncorroborated interested version of Pws.1 to 3, courts below should not have accepted the prosecution case. Learned counsel also argued that there is no evidence to prove that injury sustained by PW1 was a grievous hurt and though Ext.X1 case file was relied on by the courts below, it was not proved and the doctor who allegedly treated PW1, evidenced by Ext.X1, was not examined and there is no evidence to prove that injury sustained by PW1 evidenced by Ext.P3 wound certificate was likely to cause death and on the evidence conviction for the offence under Section 307 of Indian Penal Code is not sustainable. Learned counsel also pointed out that evidence of DW1 the doctor with Ext.D6 wound certificate establish that third revision petitioner sustained injuries which are more serious than the injury sustained by Pws.1 to 3 and Ext.D3 refer report submitted after investigation of the counter case in Crime No.255/1998 establish that third revision petitioner also sustained injury in the same incident and therefore, courts below were not justified in finding that third revision petitioner sustained CRRP 3082/07 & RC 1/07 5 injuries in a subsequent incident. Learned counsel argued that when Pws.1 to 3 did not throw any light as to how third revision petitioner sustained injuries and it is proved that third revision petitioner sustained injuries, the only conclusion that could be arrived at is that either Pws.1 to 3 are not disclosing the truth or they were suppressing the truth and if so, their evidence should not have been believed especially, when not corroborated by the independent witnesses. Learned counsel also argued that in such circumstances, conviction is not sustainable and in any case petitioners are entitled to the benefit of doubt. 4. Learned Public Prosecutor submitted that courts below appreciated the evidence in the proper perspective. Evidence of Pws.1 to 3 were mutually corroborated and fact that they sustained injury is proved by the evidence of PW6, the doctor and Ext.P3 to P5 wound certificates and when the evidence was appreciated in the proper perspective, there is no reason to interfere with the conviction and therefore the appeal is only to be dismissed. 5. Ext.P1 F.I.Statement was prepared at 4.30 p.m on 23/12/1998 from Primary Health Centre, Narikkuni CRRP 3082/07 & RC 1/07 6 where PW1 at that time was undergoing treatment. Evidence of PW6 with Ext.P3 wound certificate establish that PW1 sustained injury and was examined by PW6 the doctor at 9.10 p.m and it was disclosed to the doctor that he sustained injury at Eranhikkoth of Koduvalli at about 8.p.m from the hands of revision petitioners. Injuries sustained by PW1 were (1) wound 1x1x1 cm on the occipital region of scalp. (2) Swelling nearly 4x3 cm on the right elbow region of front aspect (3) Multiple small aberration on the left elbow region (4) Multiple small aberration on the dorsal aspect of right foot (5) Multiple small aberration on the front aspect of left leg below the knee and (6) Difficulty in lifting right hand above the shoulder level apart from small aberration on left shoulder. PW6 did not depose that the said injuries are either grievous or likely to cause death. Though Ext.X1 case record disclosing the treatment of PW1 at Medical College Hospital after admission as an inpatient on 9/1/1999 was relied on, neither the doctor who treated PW1 at the hospital was examined nor any other evidence adduced to prove for what purpose PW1 was admitted and treated as seen in Ext.X1. There is no evidence to prove that the CRRP 3082/07 & RC 1/07 7 treatment evidenced by Ext.X1 was consequent to the injury sustained by PW1 in the incident involved in the case. Therefore based on Ext.X1 it is not possible to hold that the injury sustained by PW1 on the occipital region was either grievous or was likely to cause death. Hence Based on Ext.X1 revision petitioner cannot be found guilty of the offence under Section 307 of Indian Penal Code. The intention for revision petitioners to cause death cannot be inferred based on the statement of the accused allegedly made when they alighted from the jeep as spoken to by Pws.1 to 3. Though Pws.1 to 3 deposed from the box that the revision petitioners proclaimed that Pws.1 and 2 are to be killed and their livers are to be taken and thrown out, such an allegation was not made in Ext.P1 FI Statement or the statements of Pws.2 and 3 when their statements are recorded under Section 161 of Code of Criminal Procedure proved by the evidence of PW13, the investigating Officer. It is proved that when their statements were recorded, they did not have such a case. It is clear that their statements from the witness box are result of after thought. Therefore, either for the reasons that revision petitioners had an intention to CRRP 3082/07 & RC 1/07 8 cause death or that the injury sustained by PW1 is likely to cause death, it cannot be found that revision petitioners had an intention to cause death or that there was an attempt to cause death of PWs.1 and 2. Therefore, finding of the courts below that revision petitioners committed the offence under Section 307 of Indian Penal Code is not sustainable. 6. Though courts below discarded the defence case that it was Pws.1 to 3 who were the assailants and third accused sustained injury in the incident holding that injury sustained by third revision petitioner could only be in a subsequent incident, Ext.D3 refer report submitted by PW14 in the counter case based on Ext.D4 FIR registered after recording the statement of third revision petitioner, who was admitted in the hospital by DW1 after preparing Ext.D6 wound certificate establish that third revision petitioner sustained injury in the same incident. Finding that third revision petitioner sustained injury in a subsequent incident or at any other place cannot be accepted in the light of Ext.D3. Therefore, in the light of Ext.D3 refer report, it can only be found that third revision petitioner also sustained injury in the very same incident. In all CRRP 3082/07 & RC 1/07 9 probability third revision petitioner sustained injury evidenced by Ext.D6 wound certificate, proved by the evidence of DW1, from the scene of occurrence and that too in the very same incident. 7. Though fact that third revision petitioner sustained injury was suppressed by Pws.1 to 3, evidence of PW4 the independent witness establish that when PW1 was removed to the hospital after he sustained injury in the incident, PW4 found that Rahmath hotel which was being run by the third revision petitioner was destroyed. According to PW4 it was at about 8.30 p.m. If that be so, the incident whereunder third revision petitioner sustained injury should also have taken place before 8.30 p.m and it probablise the version in Ext.D3 report that third revision petitioner also sustained injury in the same incident. If that be the case, when the evidence of Pws.1 to 3 do not revel how third revision petitioner sustained injury in the incident it is clear that they are suppressing the true genesis of the incident and how it was developed or they are not deposing the truth. Whatever be the reason, in such circumstances evidence of Pws.1 to 3 cannot be swallowed without a pinch of salt. When CRRP 3082/07 & RC 1/07 10 Pws.4 and 11 the independent witnesses, who were examined by the prosecution to prove the incident as alleged did not support the prosecution case, the question is whether on the uncorroborated evidence of Pws.1 to 3 it could be found that revision petitioners were members of an unlawful assembly and they came to the spot in furtherance of common object of the unlawful assembly and that too armed with deadly weapons and thereafter inflicted injuries on Pws.1 to 3. Even though in Ext.P1 FI statement PW1 has no case that seventh revision petitioner with a butcher's knife attempted to inflict injury on PW1, after proclaiming that his liver is to be taken out and thrown on the road and PW1 resisted it and then the knife fell down he has no such case in Ext.P1. According to PW1 at that point third revision petitioner hit him with leg of a Wooden table and then second revision petitioner hit him with a reaper where nails are affixed on his hands. Fact that seventh revision petitioner used a knife and it was resisted and it fell down was not stated in Ext.P1 FI Statement. Pws.2 and 3 in their statement recorded under Section 161 by PW13 also did not disclose such an incident. But when they were examined before the CRRP 3082/07 & RC 1/07 11 court, they deposed as deposed by PW1 like parrots evidently because of previous decisions to depose falsehood. It is clear from the evidence of Pws.1 to 3 that they are not deposing the truth and are suppressing material facts. From the evidence it is clear that third revision petitioner also sustained injury, evidenced by Ext.D6 wound certificate in the same incident. If that be so, the incident could not have been as deposed by Pws.1 to 3 and but it is possible that there was a fight between the two groups consisting of revision petitioners in one group and Pws.1 to 3 in the other group. Though prosecution has a case that revision petitioners came there in a jeep KL- 11/H-1441 based on which theory of unlawful assembly was projected Ext.D5 report submitted by PW14 proves that investigation revealed that jeep KL-11/H-1441 was not involved in the incident. If that be so, the very prosecution case that petitioners came there together in the jeep driven by eighth revision petitioner cannot be true. When all these facts were appreciated in the proper perspective, it is clear that evidence of Pws.1 to 3 without corroboration, cannot be believed and on the evidence it cannot be found that Pws.1 to 3 CRRP 3082/07 & RC 1/07 12 sustained injury in the incident as alleged by the prosecution. If that be so, revision petitioners are entitled to get at least the benefit of reasonable doubt. In such circumstances, conviction of revision petitioners for the offences is not sustainable. Revision is allowed. Conviction of revision petitioners is set aside. Revision petitioners are found not guilty of the offences charged. They are acquitted. Bail bond executed by them stand cancelled. They are set at liberty. In view of the order of acquittal Crl.R.C.1/2007 suo motu taken by this court is dismissed. M.SASIDHARAN NAMBIAR, JUDGE. uj.