IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI MONDAY, THE 14TH JULY 2008 / 23RD ASHADHA 1930 CRL.A.No. 1531 of 2004() ------------------------ SC.595/1997 of ADDL. SESSIONS COURT, FAST TRACK (ADHOC) NO.II, TRIVANDRUM CP.1/1997 of JUDL FIRST CLASS MAGISTRATE'S COURT-III, TRIVANDRUM .................... APPELLANTS: ACCUSED NOS. 1 TO 4 ------------------------------ 1. SOBHANAN, S/O. GOPI, USHA NIVAS, TC.11/486, PANGAPPARA. 2. RAVI S/O. GOPI, HOUSE NO.VI/297, MANVILA HARIJAN COLONY, ATTIPRA VILLAGE. 3. JAYAKUMAR S/O. GOPI, TC.11/645, MELEPUTHUVALPUTHEN VEEDU, PANGAPPARA. 4. KUTTAPPAN, S/O. KOCHAPPY, MANVILA HARIJAN COLONY, VI/289, ATTIPRA VILLAGE. BY ADV. SRI.P.VIJAYA BHANU SRI.P.M.RAFIQ RESPONDENT: COMPLAINANT ----------------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.S.U.NAZAR. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 30/06/2008,ALONG WITH CRA NO. 1546 OF 2004, THE COURT ON 14/07/2008 DELIVERED THE FOLLOWING: K.BALAKRISHNAN NAIR & M.C.HARI RANI, JJ. ----------------------------------------- CRL.APPEAL NOS.1531 & 1546/2004 ----------------------------------------- Dated 14th July, 2008. JUDGMENT Balakrishnan Nair, J. The accused 1 to 7 in S.C.No.595/1997, before the Additional Sessions Court, Fast Track (Adhoc) No.II, Thiruvananthapuram, feeling aggrieved by their conviction and the sentence imposed on them in the said case, have filed the above appeals. 2. The prosecution case in brief is as follows: The deceased Kittu Babu was an accused in a case involving the murder of one Mohanan. The said Kittu Babu was arrested and was in judicial custody for about three months and he was finally released on bail on 12.3.1996. To avenge the death of Mohanan, the accused 1 to 20 formed themselves into an unlawful assembly, armed with deadly weapons like swords, iron rods, wooden sticks and in furtherance of their common object to cause the death of Kittu Babu and others and damage to his house and the household utensils, at about 9 p.m on 13.3.1996 trespassed into the house of Kittu Babu known as Renjini CRL.A.NOS.1531&1546/04 2 Vilasom House and destroyed the roof tiles, doors, windows, electrical fittings, television, household utensils etc. Accused Nos.1 to 10 and 14 to 17 broke open the door leading to the room on the northern side of the eastern verandah of that house. Thereupon, Kittu Babu entered the room on the south-western portion of his house through the kitchen and tried to climb over to the roof. The accused followed him to the said room. Kittu Babu's wife PW1, his two children, his sister, the sister's son and his maternal aunt were in the room. The 1st accused hit on the head of PW3, the younger daughter of the deceased twice using an iron rod. The 3rd accused beat PW1 with an iron rod and caused injury to her left index finger and the 16th accused beat on her back with an iron rod. The 14th accused beat on both her knees with an iron rod. The 1st accused beat CW2, the sister of the deceased with an iron rod and the 10th accused beat her with an wooden stick and thereby caused injury on the left side of her head. The 17th accused beat CW3, the maternal aunt of the deceased, three- four times with an wooden stick. The 9th accused beat PW4 with an wooden stick. Accused Nos.11, 12, 13, 18, 19 and 20 entered the room on the western side of the eastern verandah by breaking open its door and destroyed the household utensils in that room. Accused Nos.11, 12, 13 and 18 beat CW6 with wooden sticks and when he fell down, the 12th accused CRL.A.NOS.1531&1546/04 3 hit at his mouth with an wooden stick and thereby caused loss of four of his teeth. Thereafter, the 2nd accused took PW1, her children, CW2, PW4 and CW3 to the eastern courtyard of the house and wrongfully restrained them near a kennel house there. CW6 was also dragged to the place where the above witnesses were restrained and he was also kept with them. Later, the deceased Kittu Babu was pulled down from the roof of the building by pelting brick pieces. Accused Nos.1 to 6 dragged him to a place in the courtyard of the building, a few feet away from the place where the above said witnesses were made to sit under restraint. Accused Nos.1, 3, 4 and 14 using iron rods, accused Nos.8, 10 and 12 using sticks, accused Nos.2, 5 and 6 using swords and the 7th respondent using a pestle, beat, stabbed , hit and hacked on various parts of his body. Thereafter, the 1st accused snatched a gold chain weighing 5 gms worn by PW1. The 3rd accused snatched a gold chain weighting 4 gms from the neck of CW4 and took away Rs.10,000/- from the bag on the dining table in the northern room of the building. Thus, the accused caused damage to the tune of Rs.25,000/-. Thereafter, the accused caused damage to the electrical bulbs and made their escape. 3. PW1 along with her children, her sister-in-law and the sister-in- law's son went to the nearby mill and on the information given over phone CRL.A.NOS.1531&1546/04 4 by a person in that mill, two police parties came there. One police party took them to the Medical College Hospital. Another police party went to the house of Kittu Babu and took him also to the Medical College Hospital. Kittu Babu, while undergoing treatment in the hospital, breathed his last at 12 O'clock in the midnight of 13.3.1996. The F.I.Statement of PW1 was taken at 6.30 a.m on 14.3.1996 and a crime was registered by the A.S.I of Police, Kazhakkuttom, PW19. PW23, the C.I of Police took over the investigation on 14.3.1996 itself. He prepared the scene mahazar, questioned the witnesses, arrested the accused, recovered the weapons and completed the investigation. PW22, the successor-in-office of PW23 verified the charges and filed the same before the Judicial First Class Magistrate's Court-III, Thiruvananthapuram. The learned Magistrate, as per C.P.1/1997, committed the case for trial by the Sessions Court, Thiruvananthapuram. The Sessions Court made over the file to the Additional Sessions Court, Fast Track (Adhoc) No.II, Thiruvananthapuram for trial. 4. The learned Additional Sessions Judge framed charges against the accused for the offences punishable under Sections, 143, 147, 148, 450, 379, 342. 427, 324, 307 and 302 road with Section 149 of the I.P.C and under Section 27 of the Arms Act. The accused pleaded not guilty to the CRL.A.NOS.1531&1546/04 5 charges. From the side of the prosecution, P.Ws. 1 to 23 were examined. Exts.P1 to P32(b) were marked.. Material Objects 1 to 19 were produced. From the side of the defence, D1 to D5, which were the contradictions in the statements of P.Ws.3 and 4 in their depositions before the court with reference to their statements made to the police under Section 161 of the Cr.P.C., were marked 5. After hearing both sides, the learned Additional Sessions Judge found accused Nos.1 to 7 guilty of the offences punishable under Sections 143, 147, 148, 450, 427 and 302 read with Section 149 of the I.P.C. The 1st accused was also found guilty of the offence punishable under Section 324 of the I.P.C., for having caused injury to PW3 and CW2. Accused Nos.1 to 7 were acquitted of all other charges. Accused Nos.8 to 20 were found not guilty of all the charges levelled against them and they were acquitted. For the offence under Section 302 of the I.P.C., accused Nos.1 to 7 were convicted and sentenced to undergo rigorous imprisonment for life and each of them were sentenced to pay a fine of Rs.50,000/-. For other offences also, for which they were found guilty, they were convicted and sentenced appropriately. The appellants, who are accused 1 to 7, challenge the conviction and sentence imposed on them on various grounds. Accused Nos.1 to 4 have filed Crl.Appeal No.1531/2004 and accused Nos.5 to 7 CRL.A.NOS.1531&1546/04 6 have filed Crl.Appeal No.1546/2004. 6. We heard Mr.P.Vijaya Bhanu, who appeared for the appellants in Crl.Appeal No.1531/2004 and also Mr.V.G.Arun, learned counsel for the appellants in Crl.Appeal No.1546/2004. We also heard Mr.S.U.Nazar, learned Public Prosecutor for the State. According to the learned counsel Mr.P.Vijaya Bhanu, Ext.P1 is not the real First Information Statement in this case. From the evidence of PW23, it is clear that the A.S.I of Police, Kazhakkuttom, who is PW19, reached the scene of occurrence on the night of 13.3.1996 itself. It was he, who took the injured other than the deceased to the Medical College Hospital. While in the police jeep, the injured, including PW1 and her children spoke about the incident to the policemen in that jeep. So, based on that information, an F.I. Statement must have been recorded. But, PW19, says, he was on patrol duty on that day and he came to know of the murder only at 6.30 a.m in the next morning, upon receipt of intimation from the Medical College Hospital. Thereafter, he went to the hospital and recorded the statement of PW1. This version of the PW19 lacks credence, in view of the categoric statement of PW23 that it was PW19, who took the injured to the hospital, it is submitted. So, PW19 has deliberately suppressed the receipt of information regarding the crime on the night of 13.3.1996, it is contended. The learned counsel pointed out CRL.A.NOS.1531&1546/04 7 that the only occurrence witnesses were PW1, PW3 and PW4. Their evidence will not inspire confidence, in view of the contradictions in their versions. The learned counsel also pointed out that according to PW1, PW3 was hit twice on her head. But, the medical evidence shows that PW3 was hit only once. Further, PW1, in her cross-examination, denies even her signature in Ext.P1 F.I.Statement. It is further submitted by the learned counsel that the claim of PW3 that she was hit by an iron rod (MO4), is not supported by any medical evidence. Ext.P3 wound certificate would show that the injury does not exhibit any pattern to show that the same was caused using the iron rod produced in this case. If her head was hit as stated by her, her skull would have been fractured. Regarding the evidence of PW4, it is stated that his presence in the house of the deceased appears to be improbable. He has got a house in the neighbourhood and he is residing there with his mother. Most of the statements made by him before the court were not made before the police. The medical evidence does not corroborate his version that he was beaten by the 9th accused using a “kuruvady” (wooden stick). The learned counsel also pointed out certain other circumstances which may tend to weaken the prosecution case. In Exts.P2 and P3 wound certificates only three persons, namely, accused 1, 2 and 5 are named as the persons who caused the injuries. So, others were CRL.A.NOS.1531&1546/04 8 falsely implicated, while giving the F.I. Statement, submitted the learned counsel. It is also pointed out that the weapons recovered did not contain any blood stain. The clothes worn by the accused at the time of their arrest were also not seized. The learned counsel finally submitted that the grounds for acquitting the accused 8 to 20 are available in the case of the accused 1 to 4 also. Therefore, the learned counsel prayed for allowing the appeal and acquitting the accused. 7. The learned counsel Mr.V.G.Arun, appearing for the appellants in Crl.Appeal No.1546/2004 pointed out that accused 5 to 7 were falsely implicated in this case. Special reference was made to the case of the 7th accused. As evident from the history of wound inflicted on the injured, given in Ext.P3, only accused Nos.1, 2 and 5 were involved. In Ext.P1 F.I.Statement also, the use of pestle by the 7th accused, is not mentioned. The learned counsel also criticised the delay in registering the crime and also conflict in the versions of PW19, the A.S.I of Police and PW23, the C.I of Police, who was the investigating officer. The learned counsel also submitted that accused No.8 onwards were acquitted, disbelieving the prosecution version. The said benefit should be extended to the other accused also, it is contended. Relying on a decision of the Apex Court in Sevi v. State of Tamil Nadu [AIR 1981 SC 1230], the learned counsel CRL.A.NOS.1531&1546/04 9 submitted that non-examination of Sura, CW6, who was injured in the incident, is fatal to the prosecution. So, he also prayed for allowing the appeal. 8. The learned Public Prosecutor, on the other hand, supported the judgment of the court below. He submitted that apart from the F.I. Statement, an additional statement of PW1 was recorded under Section 161 of the Cr.P.C. The learned Public Prosecutor also pointed out that in the F.I.Statement, accused Nos.1 to 7, apart from others, have been named as the persons who trespassed into the house of deceased Kittu Babu on the night of 13.3.1996. The use of pestle by the 7th accused was stated in the statement recorded under Section 161 Cr.P.C., of P.Ws.1 and 3 and they have stated so before the court also. Those statements remain unshattered in the lengthy cross-examination of those witnesses by the defence. The F.I.Statement need not contain the entire summary of the prosecution case. Therefore, the learned Public Prosecutor submitted that the non-mentioning of the use of pestle by the 7th accused in the F.I. Statement will not affect the veracity of the versions given by P.Ws.1 and 3. So, he prayed for dismissal of the appeals. 9. We considered the rival submissions made at the bar. We went through the depositions of the witnesses, perused the documents and CRL.A.NOS.1531&1546/04 10 materials on record. PW1 is the wife of the deceased. She has graphically described the incident, in which her husband was killed. She has spoken to about the overt acts of accused Nos.1 to 7 and the weapons used by them. In the F.I. Statement Ext.P1, she has named accused Nos.1 to 7, who are the appellants in these two appeals. The incident took place at about 9 p.m on the night of 13.3.1996. In the incident her husband was fatally injured. Her younger daughter and her sister-in-law were also injured. The injured were taken to the Medical College Hospital in police jeeps. By 12 O'clock on the midnight of 13.3.1996 her husband died. The F.I. Statement was recorded at about 7 a.m in the next morning. During the night she was attending her injured daughter and sister-in-law. So, the suggestion of the defence that she shielded the real culprits and implicated others falsely, is inherently improbable, in the above factual background and the mental condition of PW1. A close relative of the victim, like the wife, will not normally screen the real culprits and falsely implicate innocent persons. In this case, there was no opportunity or time for embellishment at the instance of others, as alleged by the defence. In her chief-examination, she stood by the F.I. Statement and admitted that she has given the statement. She gave evidence in accordance with the F.I. Statement and her statement recorded under Section 161 Cr.P.C. In the cross-examination, when two documents CRL.A.NOS.1531&1546/04 11 were shown to her and asked whether her signatures were on them, she had denied it. The second document shown was the F.I. Statement. The said denial can only be seen, as the witness falling into a trap set by the defence counsel, especially, when she has already admitted the lodging of Ext.P1 F.I.Statement and its contents earlier, in her chief examination. The denial of her signature in the F.I.Statement in the cross-examination, in the circumstances of the case, will not affect the veracity of her testimony. We notice that the said point has been properly dealt with by the trial court, with which we fully concur. The contention of the defence that there was an earlier F.I. Statement given before the F.I.Statement recorded in the morning of 14.3.1996, is devoid of any merit. One cannot be sure whether PW19 is speaking the truth or PW23 is speaking the truth about the presence of PW19 at the scene of occurrence. PW23 took charge of his office as C.I of Police only in the morning of 14.3.1996. In his deposition, he has stated that the deceased Kittu Babu tried to climb to the roof from the room where Sura (CW6) was sleeping. The said room has only one access and that too, from the verandah on the eastern side. The said version of PW23 is against the prosecution version that the deceased Kittu Babu tried to climb to the roof of the building from the room in the south-western corner. On this aspect, he has corrected himself when his examination CRL.A.NOS.1531&1546/04 12 continued on the next day. So, we are of the view that the contradiction in the statements of PW23 and PW19 is not of much consequence. They were giving evidence before the court, after more than eight years. The incident took place in March, 1996 and the trial commenced in this case only in April, 2004. The claim of the defence that there was another F.I.R and the present F.I.R is subsequently cooked up is plainly untenable. Regarding the incident which happened on the night of 13.3.1996, the F.I.R was registered in the morning of 14.3.1996 and the same reached the court at Thiruvananthapuram from Kazhakkuttom Police Station in the evening of 14.3.1996 itself. So, there is no delay in registering the F.I.R or forwarding the same to the court concerned. 10. Going by the evidence of PW1, we notice that her statements regarding accused Nos. 1 to 7 remain unshaken in the cross-examination by the defence counsel. In her evidence, she has stated that she went to sleep along with her husband by about 9 p.m on 13.3.1996 in the room on the northern side of her residential building. Immediately thereafter, the dogs started barking. Thereupon, her sister-in-law Lalitha came to their room and alerted her husband not to go out. She apprehended that some assailants were approaching the house to attack them. PW1 further says, when the accused attempted to break open the door of their room, they went to the CRL.A.NOS.1531&1546/04 13 bed room in the south-western corner, where her children along with her sister-in-law, the sister-in-law's son and the maternal aunt of her husband were sleeping. The accused broke open the door of that room also. They were beaten by the accused using different weapons. Thereafter, they were taken to the front courtyard of their house near the kennel house and restrained them there. Her husband tried to escape by climbing to the roof and removing the tiles. But, he was brought down and dragged to the front courtyard. The accused brutally beat, stabbed, cut and hit him with various weapons, including a pestle. When her husband became motionless, the accused went away, damaging the lights in the house and also snatching the gold chains worn by her, her daughter and sister-in-law. We find nothing suspicious about the deposition of the said witness. Her version appears to be truthful, even after the cross-examination,in which all possible attacks were made to weaken the veracity of her version. The trial court accepted her evidence as truthful. The appreciation of the evidence made by the court below is legal and proper. No ground has been made out to take a different view by us. 11. PW3 is the younger daughter of PW1. According to her, she has been hit twice on her head, using an iron rod (M.O.4). She also corroborates the various overt acts of the accused, spoken to by PW1. She speaks about CRL.A.NOS.1531&1546/04 14 the brutal attack made by the accused on her father, who was dragged to the courtyard of the building. She corroborates the hit made on his chest using a pestle by the 7th accused, spoken to by PW1. When she deposed about the use of pestle on the chest of her father, she broke down and sobbed. With tears, she stated that her father, who was lying on the floor, was using both his arms to ward off the attacks. Since she was sitting, she could see the same. The above version of PW3 is corroborated by the medical evidence also. The doctor (PW18), who conducted the post-mortem examination, has noticed several injuries on the hands of the deceased. The said witness stated that they were defensive injuries. 12. PW18, the doctor, who conducted the post-mortem examination on the body of the deceased, has also deposed that injury No.45 in front of the chest can be caused as alleged by hitting with a pestle. She has, as stated earlier, also spoken to that injury Nos.5 to 11 and 25 to 27 on the two arms of the deceased are defensive injuries. The defence has tried to attack the version of PW3, by pointing out that according to her, she was hit twice on her head. But, there is only one injury and the said injury does not show the pattern of an injury caused by the iron rod (M.O.4). The defence also points that her skull has not broken. But, PW3 herself has stated that she was beaten using the iron rod only with moderate force. Further, PW18, CRL.A.NOS.1531&1546/04 15 the doctor has spoken to in her deposition that if a person with hair is hit on the head using the iron rod involved in this case (M.O.4), the injury need not necessarily show the pattern, which was there on the said iron rod. PW18 has also deposed that if beaten with such an iron rod, it need not necessarily cause fracture on the head. So, the version of PW3 is supported by medical evidence also. The above views of PW18 remained unshattered in the cross-examination. The version of the incident on the night of 13.3.1996 given by PW3 with tears in her eyes, has to be believed. We find no reason to disbelieve her version. The trial court has also rightly believed her. 13. PW4 has also spoken to about the incident, corroborating the versions of P.Ws.1 and 3. But, as pointed out by the defence, most of his statements are those made for the first time before the court. But, the evidence of P.Ws.1 and 3, supported by medical evidence, is sufficient to sustain the conviction of accused Nos.1 to 7. The medical evidence would show that the death of Kittu Babu is homicidal. Altogether, there were 47 injuries on his body. PW18, the doctor, who conducted the post-mortem examination on the body of the deceased, has given her opinion regarding the cause of death as due to multiple injuries. She has stated that injury Nos.1 to 32 can be caused with a sharp edged weapon like sword. Injury CRL.A.NOS.1531&1546/04 16 Nos. 1 and 2 can be caused by stabbing with a sword. Injury Nos.35, 36, 38, 40, 41, 42, 46 and 47 can be caused by coming into contact with any rough surface or object. Injury No.45 can be caused by beating or hitting with a pestle. Injury Nos.37 and 43 can be caused by an iron rod (M.O.4). Injury Nos.39 and 43 can be caused, if beaten by an wooden stick (kuruvady). PW18 has further deposed that injury No.22 alone is sufficient in the ordinary course to cause death. Injury Nos.4, 18, 19, 20, 24, 25, 26 and 45 individually may cause death and taken together, are sufficient to cause death. So, the medical evidence fully supports the infliction of multiple injuries on the deceased by a group of persons. So, we find no reason to disbelieve the versions of the occurrence witnesses, relying on which, the learned Additional Sessions Judge convicted accused Nos.1 to 7 for the offences punishable under Sections 143, 147, 148, 450, 427 and 302 read with Section 149 of the I.P.C and further convicted the 1st accused for the offence punishable under Section 324 of the I.P.C. 14. The incident took place during night time. Several persons were involved in the