IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI FRIDAY, THE 30TH MAY 2008 / 9TH JYAISHTA 1930 CRL.A.No. 1247 of 2004(B) ------------------------- SC.174/1998 of V ADDL.SESSIONS COURT, ERNAKULAM .................... APPELLANT: COMPLAINANT ---------------------- STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SHRI S.U.NAZAR RESPONDENTS: ACCUSED ---------------------------- 1. ABDUL RAHIM, S/O.MAKKAR, POOKKADASSERY VEEDU, PERUMATTOMKARA, VELLOORKUNNAM VILLAGE. 2. ALI, S/O.IBRAHIM, MAKKADA VEEDU, VALLOMKARA, CHELAMATTOM VILLAGE, PERUMBAVOOR. 3. NOUSHAD, S/O.PAREETH, YOLATHU VEEDU, NEAR HARIJAN COLONY, IRAPURAMKARA, IRAPURAM VILLAGE. 4. ABDUL JABBAR, S/O.SYED MUHAMMED, KALAPPATHU VEEDU, MANGAPPETTY BHAGOM, PALLIPPURAMKARA, MARAMBILLI VILLAGE. 5. KABEER, S/O.MUHAMMED, KALEYIKKAPARAMBIL VEEDU, THANDEKKATTUKARA, PERUMBAVOOR, VENGOLA VILLAGE. 6. MUHAMMED, S/O.IBRAHIM, KALLAI VEEDU, (MUKKADA VEEDU), MARETTIVHUVADU BHAGOM, VENGOLAKARA, ARAKKAPPADY VILLAGE. CRL.A.1247/04 2 7. ABOOBACKER, S/O.IBRAHIM, CHITTEETTU VEEDU, VELAMBRAMKARA, MARAMBILLY VILLAGE. 8. ABDUL NASAR, S/O.MOIDU, KALAYITHODI VEEDU, PANGARAPPILLY KARA, PANGARAPPILLY VILLAGE, CHELAKKARA PANCHAYATH, THRISSUR DIST. 9. SIDHIQUE, S/O PAREETH, KONNANKUDY VEEDU, ALLAPRAKARA, VENGOLA VILLAGE. 10.ARIF, S/O ASHARAFF, JASMINA MANZIL, VELLAPPILLY LANE, KOTTAYAM KARA, KOTTAYAM VILLAGE. 11.BASHEER, S/O KOCHUMUHAMMED, MALOYAN VEEDU, RAYONPURAMKARA, OKKAL VILLAGE. 12.KABEER, S/O SYED MUHAMMED, KUDILINKAL VEEDU, KUDIKKAL BHAGOM, PALLIPURAM KARA, MARAMBILLI VILLAGE. 13.BASHEER, S/O PAREETHKUNJU, KAROTHUKUDIYIL VEEDU, MUDICKAL BHAGOM, PALLIPPURAMKARA, MARAMBILLI VILLAGE. BY ADV.SHRI B.RAMAN PILLAI SRI.GEORGE PHILIP SRI.R.ANIL & SRI.RAJU RADHAKRISHNAN FOR R1 SRI.GRASHIOUS KURIAKOSE FOR R2&8,9,11 SRI.A.MOHAMMED & SRI.M.SAJJAD FOR R3 TO R7 SRI.P.K.MUHAMMED FOR R1DD0,12,13 THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON ON 30/05/2008 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.BALAKRISHNAN NAIR & M.C.HARI RANI JJ. ----------------------------------------------------- Crl.Appeal No.1247 OF 2004 ----------------------------------------------------- DATED THIS THE 30th DAY OF MAY, 2008 J U D G M E N T Balakrishnan Nair, J. The State has come up in appeal feeling aggrieved by the acquittal of the accused in S.C.No.174/98. The case of the prosecution is as follows: 2. The first accused is a native of Perumattom. He is a spiritual leader of the Muslims who has established a movement called 'Spiritual Movement'. Majority of the members of the Jama- ath Mosque at Perumattom are opposed to the teachings of the first accused. They thought the teachings of the first accused were against the basic tenets of Islam. Because of the above difference of opinion, the first accused has not been given membership in the Jama-ath. Undaunted by the non co-operation of the members of the Jama-ath, first respondent continued with his activities including philanthropic activities. During the Ramzan period, he distributed rice and money to poor members of the community, especially those residing in the one lakh housing scheme. But under the persuasion of several members of the Jama-ath including PW1 and the Crl.A.No.1247/04 -2- deceased Mr.Mujeeb, the recipients of the rice and money returned the same to the 1st accused. So the said accused was harbouring ill will towards the persons behind the campaign against him. So, he arranged the other accused who were his disciples to attack persons whom he thought were behind the incident of returning the rice and money distributed by him. On 26.1.1996 at 12 noon the faithful were assembled at Perumattom Jama-ath Mosque for offering prayers. It was a Friday during Ramzan month. When PW1 reached the Mosque, accused 2 to 13 were standing there. Accused 3 and 5 asked PW1 why he returned the rice and money given by the first accused. PW1 replied that he does not require the benevolence of the 1st accused. In the quarrel which followed, the 5th accused stabbed PW1 on his face, just below the left eye. There was profuse bleeding. The deceased Mujeeb came running to help PW1. The 5th accused thereupon stabbed on the chest of Mujeeb who fell down. Accused 3 and 4 repeatedly stabbed PW1, whereupon he also fell down. One Nazeer, CW1 tried to shield PW2. He also suffered injury from the blow using the handle of a spade. The injured were taken to the hospital, where Mujeeb was declared dead. 3. A crime was registered on the basis of the information Crl.A.No.1247/04 -3- lodged by CW1 to the Sub Inspector of Police, Muvattupuzha. Another crime was also registered as counter case based on the infliction of injuries on the accused in this case by the witnesses in this case and others. The investigation of the crimes was taken over from the local police by the Crime Branch. PW31 who is the Circle Inspector of Police completed the investigation and laid the charges against the accused in this case for the offences punishable under sections 143, 147, 148, 120B, 324 and 302 IPC read with sections 109 and 149 IPC. 4. The learned Sessions Judge framed charges against the accused under the above said sections. They pleaded not guilty to the charges. From the side of the prosecution PWs 1 to 32 were examined and Exhibits P1 to P34 were marked. Exhibits D1 to D26 were marked as defence exhibits. Mos 1 to 14 were also produced. The accused after the closure of the prosecution evidence were questioned under Section 313 Cr.P.C. on the incriminating circumstances appearing against them in the evidence tendered by the prosecution. The accused stated before the Court that they went to the Jama-ath Mosque for offering prayers, but they were prevented from entering the Mosque. The accused pleaded with the persons who were attached to the Jama-ath Committee to allow them to offer prayers. But PW1 and Crl.A.No.1247/04 -4- others attacked them and in that pandemonium deceased Mujeeb and PW1 sustained injuries from the weapons wielded by their own men. Accused disowned their involvement in the occurrence and they pointed out that they sustained serious injuries at the hands of the assailants including PW1. 5. The accused did not examine any witness from their side. The learned Sessions Judge after hearing both sides acquitted the accused disbelieving the case of the prosecution. Hence this appeal. 6. We heard Shri S.U.Nazar the learned Public Prosecutor for the State, and also M/s, A.Mohammed, B.Raman Pillai, P.K.Mohammed and Mr.Grashious Kuriakose for the respondents. The learned Public Prosecutor submitted that the finding of the the learned Sessions Judge that the offence under Section 120B IPC has not been proved against the first respondent in this case is untenable. According to him, the first accused was harbouring ill will towards the deceased, PW1 and others, for returning the rice and money distributed by him to the poor people of the community in connection with the Ramzan festival. The first respondent has also threatened the witnesses for the same. The accused who attacked the deceased and the witnesses were the disciples of the first accused and therefore it can be safely presumed Crl.A.No.1247/04 -5- that the attack took place at the instance of the first accused and therefore the charge of conspiracy stood proved against him, it is submitted. 7. Secondly, the learned Public Prosecutor contended that the learned Sessions Judge disbelieved the versions of PWs 1 and 2 for the reason that there was considerable delay in recording their statement under Section 161 Cr.P.C. by the Investigating Officer. But the learned Public Prosecutor pointed out that these witnesses are the persons injured in the incident. They are not strangers inducted to give evidence against the accused. Therefore the delay in recording their statement was of no consequence. The learned Public Prosecutor also pointed out that the learned Sessions Judge acquitted the accused relying on the circumstance that the prosecution could not explain the injury found on the accused. The learned Public Prosecutor submitted that there was a counter case against the witnesses in this case for having attacked and injured the accused in this case. Both the cases were tried simultaneously and judgments were rendered one after another in those cases. So, the prosecution has not suppressed anything. The factum of injury suffered by the accused and its reasons were placed before the court in the form of the counter case. Crl.A.No.1247/04 -6- 8. The learned Public Prosecutor pointed out that the finding of the prosecution that PW1 could not have seen anything after he sustained injuries in his left eye as he could not open both the eyes because of the pain is incorrect. The learned Public Prosecutor vehemently contended that the said finding of the learned Sessions Judge is untenable. Since he was in the middle of a clash it is only natural that PW1 opened his right eye and watched what was happening around him. A person at dagger point would definitely open his eyes and watch what is going around him. The learned Public Prosecutor also submitted that PWs 1 to 3 have spoken consistently that the 5th respondent has stabbed PW1 and the deceased. There was no reason to disbelieve their versions. There is evidence to show that accused 2, 3, 5, 6 and 10 were involved in the crime. 9. Going by the evidence on record, the learned Prosecutor submitted that this is a pre-eminently fit case where this Court should invoke its appellate power and set aside the acquittal, find the accused guilty and award appropriate sentences to them. 10. The incident arises out of difference of opinion among the members of a community concerning the activities of the first accused who is the first respondent in this appeal. Obviously, the witnesses for Crl.A.No.1247/04 -7- the prosecution were interested. It is only natural that in such circumstances, only interested witnesses will be available. Normally, the courts will scrutinise the evidence of interested witnesses carefully. As found by the learned Sessions Judge, there is considerable delay in recording the statement of the witnesses. In such circumstances also, the courts will be very cautious in accepting evidence of such witnesses. So, the view taken by the learned Sessions Judge can be described as a plausible view on the evidence before him. Apart from that, we notice a very serious lacuna in the prosecution case. The case of the prosecution is that the disciples of the first accused were strangers who came from different places to carry out the attack on the witnesses and the deceased. But we notice that in the statements of the witnesses before the police and before the court, they named the accused. Going by the prosecution case, the witnesses have no previous acquaintance with the accused. As stated earlier, they are strangers brought from outside. Then it remains unexplained how the witnesses named the 5th accused and other accused against whom overt acts are attributed. The said circumstance raises serious doubts about the credibility of the prosecution witnesses. It lends credence to the defence version that they were framed in this case because of the Crl.A.No.1247/04 -8- dispute in the Jama-ath concerning the activities of the first accused. The above circumstances persuade us to take the view that the prosecution has failed to prove the case against the accused beyond reasonable doubt. We are not sure whether the accused have committed the offences or they were falsely implicated by putting their names in the mouth of the witnesses who were total strangers to the accused. In the result, the appeal fails and it is accordingly dismissed. K.BALAKRISHNAN NAIR,JUDGE. M.C.HARI RANI, JUDGE. dsn