IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN WEDNESDAY, THE 31ST MARCH 2010 / 10TH CHAITHRA 1932 CRL.A.No. 1437 of 2003() --------------------------------- SC.9/2001 OF ADDL. DISTRICT & SESSIONS JUDGE, FAST TRACK (AD HOC-II), KOZHIKODE. .................... APPELLANTS/ ACCUSED 1 TO 12: ------------------------------------------------- 1. KUNHIRAMAN, S/O. KANARA KURUP, AGED 39 YEARS, VILANGOTHIL HOUSE, VADAYAM AMSOM, NITTOOR DESOM. 2. SREEDHARAN, S/O. KRISHNA KURUP, AGED 43 YEARS, KIZHAKKEVILANGOTHIL HOUSE,VADAYAM AMSOM, NITTOOR DESOM, 3. CHINNAN, S/O. KANARA KURUP, AGED 37 YEARS, THEKKULLATHIL HOUSE, VADAYAM AMSOM, NITTOOR DESOM. 4. PREMAN @ PREMARAJAN, S/O. KANARA KURUP AGED 30 YEARS, THESKKULLATHIL HOUSE, VADAYAM AMSOM, NITTOOR DESOM. 5. RAJEEVAN, S/O. POKKAN, AGED 28 YEARS, THARAVATTATH HOUSE, VADAYAM AMSOM, NITTOOR DESOM. 6. BABU, S/O. KANARAN, AGED 30 YEARS, THEKKEVILANGOHIL HOUSE, VADAYAM AMSOM, NITTOOR DESOM. 7. BALAKRISHNAN, S/O. KUNHIRAMAN, AGED 33 YEARS, THEKKULLATHIL HOUSE, VADAYAM AMSOM, NITTOOR DESOM. 8. BALAN, S/O. KELAPPAN NAMBIAR, ELIKUNNUNMAL HOUSE, VADAYAM AMSOM, NITTOOR DESOM. 9. KUNHIRAMAN, S/O. KANNAN, KOONAMVALLICHALIL HOUSE, VADAYAM AMSOM, NITTOOR DESOM. 10. BABU, S/O. CHOYI (LATE), KUNIYIL HOUSE, VADAYAM AMSOM, NITTOOR DESOM. CRL.A.No. 1437 of 2003 11. CHANDRAN, S/O. KRISHNAKURUP, AGED 22 YEARS, NHALLORAMMAL HOUSE, VADAYAM AMSOM, NITTOOR DESOM. 12. MANI, S/O. KANARAN, AGED 29 YEARS, VADAKKE VILANGOTHIL HOUSE, VADAYAM AMSOM, NITTOOR DESOM. BY ADV. SRI.P.S.SREEDHARAN PILLAI SRI.C.S.SUNIL RESPONDENT/COMPLAINANT/STATE: ------------------------------------------------------------ STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. SRI. C.S.HRITHIK, PUBLIC PROSECUTOR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 31/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.K.MOHANAN,J. ------------------------------ Crl.Appeal No.1437 of 2003 ----------------------------------------------------- Dated this the 31st day of March, 2010 JUDGMENT The appellants, 12 in numbers, preferred the above appeal challenging their convictions and sentence vide Judgment dated 26.07.2003 in S.C.No.9/2001 of Court of Additional District and Sessions Judge Fast Track (ADHOC-II), Kozhikode for the offences under Sections 143,147,148, 324, 307, r/w Section 149 I.P.C. 2. The prosecution case is that at about 7.30 PM on 6.02.1997 the accused, 12 in numbers, formed themselves into an unlawful assembly armed with weapons like chopper, stick etc., in the public road on the south-west to the unnumbered concrete building of Nhallora Sreedharan on the eastern side of the Ambalakulangara- Vattakkandippara road in Nittoor desom of Vadayam Amsom, with the common object to commit riot and to commit murder of PW1 Asokan due to political enmity and to achieve the object committed rioting and the first accused cut PW1 with chopper on his hand and hit behind the left ear when PW1 was proceeding to his house and thus caused injuries on his hand and hit behind the ear and in the meantime, A12 beat PW1 with a stick on his leg and thus tried to kill Crl.Appeal No.1437 of 2003 2 PW1 and thereby the accused have committed the offences punishable under Sections 143,147,148, 324,307 r/w Section 149 of I.P.C. On the basis of the above allegation Crime No.46/1997 was registered in the Kuttiadi Police Station for the above offence against the accused. After completing the investigation, a report was filed before the Judicial Magistrate of First Class, Nadhapuram whereupon committal proceedings were instituted and by order dated 01.01.2001 the learned Magistrate committed the case to the Sessions Court. The case was received in the Sessions Court and instituted S.C.No.9/2001 and subsequently made over the same to the Court of Assistance Session Court, Vadakara and while the matter was pending there, the case was withdrawn by the Sessions Court and transferred to the trial court for disposal. 3. On appearance of the accused, hearing the prosecution as well as the defence, a formal charge was framed under Section 143,147,148, 324, 307 r/w Section 149 of I.P.C and the same was read over and explained to the accused and they denied the charge and pleaded not guilty. Thereupon the prosecution adduced its evidence which consists of oral testimonies of PWs. 1 to 12 and the documentary evidence such as Ext.P1 to P11. Material objects MOs.1 and 2 were identified and marked. No evidence either oral or Crl.Appeal No.1437 of 2003 3 documentary was adduced by the defence. The incriminating circumstances and evidence which emerged during the prosecution evidence were put to the accused and they denied the same and they took a stand of total denial and according to them they were implicated in the crime due to political vengeance. On the basis of the materials and evidence on record and the rival pleadings, the trial court formulated two points for its consideration and finally found that the accused are guilty of the charges framed against them. Consequently, the accused Nos.1 to 12 are found guilty of the offences punishable under Sections 143, 147,148, 324, 307, r/w 149 of I.P.C and they are accordingly convicted and sentenced to undergo rigorous imprisonment for 3 months, each for the offence punishable under Section 143 IPC, rigorous imprisonment for 6 months each for the offence punishable under Section 147 IPC, rigorous imprisonment for 1 year each for the offence punishable under Section 148 IPC, rigorous imprisonment for 2 years each for the offence punishable under Section 324 IPC and rigorous imprisonment for 3 years and to pay a fine of Rs.10,000/- and in default of payment of fine to undergo rigorous imprisonment for 1 year each for the offence punishable under Section 307 r/w 149 IPC. If the fine amount is realised pay a sum of Rs.24,000/- as Crl.Appeal No.1437 of 2003 4 compensation to PW1 under Section 357(1) Cr.P.C. Sent the accused to Central Prison Kannur to undergo the sentence. Set off the remand period from the total sentence. The accused need to undergo the substantive sentence awarded under Section 143,147,148, 324, 307 r/w 149 IPC. concurrently. It is the above conviction and sentence challenged in this appeal. 4. According to the prosecution due to political animosity PW1 was attacked at about 7.30 p.m on 06.02.1997 when PW1 was going to his house after his work. It is the specific case of the prosecution that the accused who were awaiting in front of the shop of Nhallora Sreedharan and on seeing PW1 they came near to PW1 from the shop, shouting to kill him and thus attacked PW1. When PW1 tried to escape from the seen, the accused surrounded him and first accused cut him with a chopper on his hand and the 12th accused beat him with stick on his leg. Thereupon PW1 pleaded for mercy and fell on the ground. According to the prosecution in the meantime the first accused cut him with a chopper on his neck and it hit on the back side of the left year and caused an injury. On hearing the hue and cry of PW1, PW2 and others reached to the seen of incident with torch and then the accused escaped from the seen of occurrence. It is the further case of the prosecution that immediately Crl.Appeal No.1437 of 2003 5 thereafter PW1 was resting on the varandha of ration shop and within 10 minutes PW3, the brother of PW1, reached at the spot removed PW1 firstly to the Government Hospital, Kuttiady and from there to Medical College Hospital, Kozhikode for treatment. PW12, the Doctor attached to the Medical College Hospital attended him on 06.02.1997 itself and after examining the injured he was admitted as an inpatient in the hospital. Pursuant to the intimation received from the Medical College Hospital PW8-the Head Constable attached to the Kuttiady Police Station went to the Medical College Hospital and recorded Ext.P1 FI statement of PW1 on the basis of which PW8 registered Ext.P5 FIR for the above offences. Thus PW11, the then Circle Inspector of Police, Kuttiady took up the investigation and he proceeded to the seen of occurrence and prepared Ext.P2 scene mahazar. PW4 is an attester of Ext.P2 scene mahazar. PW9 questioned certain witnesses and recorded their statement and seized the dress with bloodstain of PW1 as produced by PW3. Thus he prepared Ext.P3, seizure mahazar of MO1 shirt and MO2 dhoty, of which PW6 is an attester. PW10 the successor of PW9 questioned PW12 and obtained Ext.P11 wound certificate of PW1. Ext.P4, is the sketch of the place of occurrence, prepared by PW7 Village Assistant of Kuttiady Village Office. PW11 is the successor in Crl.Appeal No.1437 of 2003 6 office of PW10 who completed the investigation and laid the charge before the court. On the basis of the above materials and the evidence, the trial court found that the accused are guilty of all the charges levelled repelling the contentions raised by the defence during the trial. 5. I have heard Mr.Sreedharan Pillai, learned counsel appearing for the appellant and also the learned Public Prosecutor. I have also perused the materials and evidence of record. 6. The learned counsel for the appellant vehemently argued that the prosecution has miserably failed to establish the identity of the real offenders. It is the contention of the learned counsel that even according to the prosecution there was no street light and sufficient light and therefore it is for the prosecution to establish the identity of the accused, especially, when the incident was allegedly taken place at about 7.30 p.m. It is also the case of the learned counsel that there is inordinate delay in reaching the FIR in the court. It is pointed out that even though according to the prosecution the incident was at 7.30 p.m on 06.02.1997. PW8 recorded Ext.P1 FI statement in the afternoon of the next day. According to the learned counsel there is no proper explanation for such delay. The learned counsel submitted that even in the FI statement the overt act Crl.Appeal No.1437 of 2003 7 alleged by PW1 is only against A1 and A12, other accused were implicated due to political animosity. The learned counsel further pointed out that even though the prosecution had a specific case that injuries are inflicted by using chopper and stick, no such material objects were recovered by the prosecution and the same in a fundamental defect against the prosecution. The learned counsel submitted that the name of A7 and A11 are incorporated in the FIR due to sheer political animosity especially when names of A7 and A11 were not seen in Ext.P11 wound certificate which recorded at the date of the incident itself. It is also pointed out by the learned counsel that even in Ext.P10 case sheet only the names of A1, A2, A3 and A12 were mentioned, but as a result of an afterthought, 8 more persons were included in Ext.P11 and thus in Ext.P5 FIR the number of accused is shown as 12. According to the learned counsel the creation of artificial evidence is obvious by bringing PW2 to the place of incident. The learned counsel pointed out that no other witness has any claim that PW2 was found near or about the place of occurrence at any point of time. The learned counsel pointed out that the non-examination of the shop owner Sreedharan, is fatal to the prosecution. According to the prosecution the incident was taken place in front of the shop of the said Sreedharan and the Crl.Appeal No.1437 of 2003 8 prosecution witnesses claimed with identity of the accused on the basis of light from the shop of said Sreedharan. It is also pointed out that there was no attempt to obtain any materials or documents from the Kuttiady General Hospital, where, PW1 was allegedly taken firstly for treatment. Finally the learned counsel submitted that the variation in the number of accused responsible for the assault, allegedly contained in Ext.P11 wound certificate and Ext.P10 case sheet, would show the falsity of the prosecution case and said variations are not properly explained by the prosecution. Thus according to the learned counsel the trial court has miserably failed to appreciate the contradiction and inconsistency that occurred in the case of the prosecution and the insufficiency of evidence to connect the accused with the crime. Hence according to the learned counsel the appellants are entitled to get a clear acquittal. 7. On the other hand, the learned Public Prosecutor submitted that the evidence of PW1 alone is sufficient to connect the accused with the incident. Learned Public Prosecutor pointed out that even according to PW1 he had acquaintance with the accused from years together and according to PW1 he was surrounded by the accused and attacked. So there is no mistake in identity as disclosed from the evidence of PW1. The learned Public Prosecutor invited my Crl.Appeal No.1437 of 2003 9 attention to Ext.P11 wound certificate, which is the document prepared immediately after the incident and such document contain all the names of the assailants. According to him there is no recording in Ext.P1 FI statement of PW1 by PW8 and thus the prosecution has succeeded in collecting the necessary evidence and materials and the same were produced before the court. Thus according to the learned Public Prosecutor, the trial court, after considering the materials and evidence on its right perspective, the accused are found guilty of all the charges levelled against them and no interference is warranted. 8. I have carefully considered the arguments advanced by the learned counsel for the appellants as well as the learned Public Prosecutor and also perused the evidence and materials on record. 9. PW1 is the injured in this case, and when he was examined he had deposed categorically about the incident. There is no substantial variations from his Ext.P1 FI statement. PW1 deposed before the court that he is the brother of PW3, who is an active worker of CPI(M) and when PW1 was coming to his house he was intercepted and attacked by the accused after surrounding him. Even in Ext.P1 FI statement he had narrated the entire incident and mentioned overt act of A1 and A12. The names of A1, A2, A5, A12 Crl.Appeal No.1437 of 2003 10 are certainly found a place in Ext.P10 case sheet and also in Ext.P11 wound certificate. Ext.P10 case sheet document and Ext.P11 wound certificate are the contemporaneous document prepared immediately after the incident that taken place at 7.30 p.m on 06.02.97. In this document the names of A1, A2, A3 and A12 are specifically stated and it is true as pointed out by the learned counsel for the appellant that the name of A7 and A11 mentioned in the FIR do not find a place in Ext.P10 and Ext.P11. It is also relevant to note that as indicated earlier Ext.P10 and Ext.P11 are contemporaneous documents prepared on the date of the incident, that too immediately after the incident Ext.P5 FIR was drawn on the next day evening that was after recording Ext.P1 FI statement at about 2.30 p.m on 07.02.1997. Therefore, the contention of the counsel, that in the meanwhile, after deliberations with others PW1 had deliberately implicated the name A7 and A11, cannot be repelled as baseless. If actually A7 and A11 were involved in the incident, certainly the names of those accused should have been found a place in Ext.P10 and P11. It is also relevant to note that in Ext.P10 only the names of A1, A2, A3 and A12 were given but when PW1 given the names of accused in Ext.P11, the number of accused involved in the incident increased from more than 12 persons and the Crl.Appeal No.1437 of 2003 11 names of one Rajan and Vijayan were given. But when the FI statement was given, those names were deleted and names of A7 and A11 were included. Therefore, the implication of accused numbers A4, A5, A6, A7, A8, A9, A10, and A11 can be seen only as a result of deliberation and especially when there is no overt act are alleged against those accused. Therefore, according to me the above accused are entitled to get the benefit of doubt. With respect to A1, A2, A3 and A12 as their names are found in Ext.P10 and Ext.P11 and in Ext.P1 FI statement specific overt act are alleged against them and those allegations further substantiated through the evidence of PW1 the injured. 10. It is true the prosecution has also relied upon the evidence of PW2 to connect the accused with the incident. Going by the deposition of PW2 it can be seen that he has no claim that he arrived at the spot before the starting of the incident. He had categorically stated that he came to the place of occurrence after the incident and on hearing the cry of the injured. Therefore, the prosecution is no way benefited in examining PW2 to establish the incident. It is also relevant to note that from the deposition of PW2 nothing discernible that he had witnessed either the incident or the overt act alleged by the prosecution. Thus from the above Crl.Appeal No.1437 of 2003 12 discussion it can be seen that the only evidence that is available on record in support of the prosecution case with respect to the incident is that of the injured, namely PW1. I have already considered the evidence of PW1 and the resultant conclusion is that the prosecution has succeeded, only in establishing the case against A1, A2, A3, and A12 and there is no acceptable and cogent evidence against the other accused. In the absence of any concrete evidence against the accused namely A4, A5, A6, A7, A8, A9, A10 and A11, the only conclusion that can be arrived is that the prosecution has miserably failed to establish the case against those accused and consequently they are entitled to get an acquittal. In the light of the above discussion, and the materials referred above, I am of the view that the conviction recorded by the trial court with respect to A1, A2, A3, and A12 are liable to be confirmed and I do so. 11. The learned counsel for the appellant submitted that, the incident was taken place during the year 1997 and now 13 years are over and now the accused, A1 to A3 and 12, are now at the age between 35 to 50 and therefore a lenient view may be taken. It is also pointed out by the learned counsel that the alleged injury sustained by PW1 are not so serious and therefore the matter can be disposed of by ordering compensation to the injured, in lieu of Crl.Appeal No.1437 of 2003 13 sentence of imprisonment, whereas the learned Public Prosecutor counsel pointed out that the main injury was inflicted on the back side of the left ear from which it can be gathered the intention of the assailants. Having regard to the facts and circumstances of the case, I am of the view that some modifications can be made with respect to the sentence imposed against A1, A2, A3, and A12. In the result, this appeal is partly allowed, acquitting accused Nos.A4, A5, A6, A7, A8, A9, A10 and A11 of all the charges levelled against them. In the light of the acquittal recorded by this court in favour of the above accused, the remaining accused are only 4 in Nos. and hence Section 149 is not applicable against A1, A2, A3 and A12 but at the same time Section 34 IPC is attracted against them as they have shared the common intention. Accordingly A1, A2, A3 and A12 their conviction under Section 324,307 r/w Section 34 of I.P.C instead of Section 149, are confirmed and accordingly each of them are sentenced to undergo rigorous imprisonment for one year under Section 324 of IPC and each of them are further sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rs.20,000/- and in default of payment of fine amount to undergo rigorous imprisonment for one year each, for the offence under Section 307 I.P.C. If the fine amount is realised the entire amount Crl.Appeal No.1437 of 2003 14 shall be paid as compensation to PW1 under Section 357(1) of Cr.P.C. As accused numbers A4, A5, A6, A7, A8, A10 and A11 are acquitted of all the charges levelled against them, the bail bond if any executed by them shall stand cancelled and they are set at liberty. In the case of accused No.1,2,3, and 12 the bail bond stands cancelled and they are directed to appear before the trial court on 30.4.2010 for receiving the sentence. If any failure on the part of appellant in appearing before the court below as directed above the court below is free to take coercive steps to procure the presence of accused and to execute the sentence. Criminal Appeal is allowed partly. V.K.MOHANAN,JUDGE. mns