IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 15TH JANUARY 2009 / 25TH POUSHA, 1930 CRL.REV.PET.NO. 1119 OF 2001(A) -------------------------------------------- (AGAINST CRL. APPEAL NO.269 OF 2000, ADDITIONAL SESSIONS COURT, ALAPPUZHA AGAINST S.C. NO.103 OF 1997, ASSISTANT SESSIONS COURT, CHERTHALA) REVN. PETITIONER(S) - APPELLANTS 1 TO 4 & 6 TO 12 & - ACCUSED 1 TO 4 AND 6 TO 12: -------------------------------------------------------------------------- 1. MONY, S/O. KOCHITYATHI, PEEDIKAVELI VEEDU, WARD 10, MUHAMMA PANCHAYAT. 2. VASUDEVAN, DO. DO. DO. (DIED) 3. SANTHOSH, DO. DO. DO. 4. SABU, S/O. MONY, IRUKKAMVELI VEEDU, DO. DO. 5. HARIDAS, S/O.APPU, PARVATHY NILAYAM WARD IV MUHAMMA PANCHAYAT (DIED). 6. SANTHOSH @ POTTI SANTHOSH, S/O.DEVAKI PADATHUCHIRA VEEDU, WARD VII MUHAMMA PANCHAYAT. 7. MOHANDAS, S/O.PADMANABHAN, IRUKKAMVELI VEEDU, WARD 10, MUHAMMA, PANCHAYAT. 8. BAIJU, S/O.MONY, ITTANVELI VEEDU, DO. DO. 9. PRADEEPAN @ PATTARU KUTTAN, S/O.ANANDAN CHALAVELI VEEDU, WARD VI, MUHAMM PANCHAYAT. 10. SUSEELAN, S/O.THANKAPPAN, PALACKAL VELI VEEDU, WARD VI, MUHAMM PANCHAYAT. 11. RAJESH, S/O. RAJAPPAN, IRUKKANVELI VEEDU, WARD 10 MUHAMMA PANCHAYAT. BY ADV. SRI.KALLADA K.SUKUMARAN BY ADV. SMT. K. VIJAYAMMA RESPONDENT(S) COMPLAINANT: ----------------------------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SMT. PUSHPALATHA M.K. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 12.12.2008, THE COURT ON 15/01/2009, PASSED THE FOLLOWING: THOMAS P.JOSEPH, J. = = = = = = = = = = = = = = = = = = = = = = = = CRL.R.P. No. 1119 of 2001 = = = = = = = = = = = = = == = = = = = = = = = = = Dated this the 15th day of January, 2009 O R D E R ------------- Revision Petitioners-Accused Nos.1 to 4 and 6 to 12 stand concurrently found guilty of offences punishable under Sections 143, 147, 148, 447, 324, 326 and 307 read with 149 of the Indian Penal Code (for short, “the Code”) and sentenced to undergo imprisonment for various periods. They, along with Accused Nos.5 and 13 to 16 faced trial for the said offences in the court of learned Assistant Sessions Judge, Cherthala in SC No.103 of 1997. All the 16 accused were found guilty, convicted and sentenced to undergo imprisonment for various periods. In the appeal, conviction and sentence on accused Nos.5 and 13 to 16 were set aside and they were acquitted. Conviction and sentence on revision petitioners (accused Nos.1 to 4 and 6 to 12) were confirmed. 2. Heard both sides. Perused the records. 3. Charge is that on 17.5.1995 at or about 10.00 p.m. accused Nos.1 to 16 with the common object of causing death of P.W.2, formed into an unlawful assembly, trespassed into the courtyard of house No.IV/28 where P.Ws.1 and 2 and others were residing at the relevant time, committed rioting armed with deadly weapons like axe, CRL. R.P. No.1119 of 2001 -: 2 :- sword-sticks, iron rods, voluntarily caused hurt to P.W.1 with dangerous weapons, grievous hurt to P.W.2 and attempted to cause death of the latter. P.W.1 is stated to have given the first information to P.W.12 at Medical College Hospital, Alappuzha on 17.5.1995 at or by about 11.00 p.m. P.W.12 registered case at about 12.15 a.m. on 18.5.1995 (wrongly stated in the FIR as 17.5.1995). After investigation, final report was laid against accused Nos.1 to 16 for offences stated above which resulted in conviction and sentence as above stated. 4. At the time of hearing, learned counsel submitted that second and fifth revision petitioners (accused Nos.2 and 6) expired and filed memo to that effect with death certificates. None of the legal representatives of the deceased have come forward to continue with the revision petition. But the rule of abatement under Section 394 of the Code of Criminal Procedure (for short, “the Cr.P.C.”) is not applicable to proceedings in revision. Hence the legality, regularity and propriety of the findings against the deceased is to be considered in this revision. It is contended by learned counsel that conviction of revision petitioners cannot be sustained. According to learned counsel court charge framed against the accused is defective, the first version regarding the incident is suppressed, there is no evidence to show CRL. R.P. No.1119 of 2001 -: 3 :- that P.Ws.1 and 2 suffered injuries as alleged, place of occurrence is not as propounded by the prosecution, instead, alleged incident occurred on the road in front of the house of P.Ws.1 and 2, involvement of the accused in the alleged incident is not proved beyond reasonable doubt, charge under Section 307 of the Code is not proved and at any rate, conviction for offences under Sections 143, 147 and 148 with the aid of Section 149 of the Code is unsustainable. According to the learned Public Prosecutor, none of the contentions raised can be sustained and prosecution has proved the case against these accused beyond reasonable doubt. 5. I shall consider the contentions raised by the learned counsel: (i) Whether court charge is defective? 6. Learned Assistant Sessions Judge framed charge against the accused on 21.5.1998 for offences punishable under Sections 143, 147, 148, 447, 324, 326 and 307 read with 149 of the Code. Learned counsel contends that court charge does not mention about the alleged unlawful assembly involving the accused, alleged place of incident is not specified in the court charge and that at any rate charge under Section 307 of the Code is defective. It is also contended by the counsel that the date of occurrence given in the court charge is CRL. R.P. No.1119 of 2001 -: 4 :- wrong. Counsel placed reliance on Suraj Pal v. State of U.P. (AIR 1955 SC 419) and Balakrishnan v. State (1957 KLT 1230). In Suraj Pal's case the Honourable Supreme Court held that there was no direct and individual charges against the accused for the specific offences under Sections 307 and 302, of the Code and that absence of specific charge was a very serious lacuna in the proceedings and had materially prejudiced the accused. It was found that conviction under Sections 307 and 302 of the Code could not be maintained against those accused. Further finding is that charge against a person as a member of an unlawful assembly in respect of an offence committed by one or other of the members of that assembly in prosecution of its common object is a substantially different one from a charge against any individual for an offence directly committed by him while being a member of such unlawful assembly. In Balakrishnan's case this Court pointed out the purpose of charge as to inform the accused person as precisely and concisely possible of the matter which he is charged. It was held that framing of the charge is vital to a criminal trial and it is a matter on which the trial Judge has to bestow more attention. In that case charge against each accused was found to be “a long rambling CRL. R.P. No.1119 of 2001 -: 5 :- document cluttered of irrelevant detail telling him not merely what he himself but also what the other accused persons did in the course of transaction. But at the same time failing to tell him and it is here that the objection lies - of the matters making out the offences with which he was eventually convicted”. It is true that in the court charge framed in this case, in the first paragraph the month of the incident is not stated. Instead it is stated that accused formed unlawful assembly “on 17th day of ..... 1995 at 10 O'clock in the night”. But it is seen that in all the subsequent paragraphs (except 7th paragraph) the date and time of incident is given as “17th May 1995 at 10 O'clock in the night”. In the 7th paragraph the date is stated as “15th day of May 1995 at about 10 O'clock in the night”. 7. So far as the individual acts as well as the acts of members of the unlawful assembly is concerned, it is seen that individual acts of each accused has been specifically adverted to in the court charge. In the last, but one paragraph it is stated that accused were members of the unlawful assembly and in prosecution of the common object of that assembly, namely, to kill P.W.2, “one of the members caused offence punishable under Sec. 447, 324, 326 and 307 of the IPC which they knew to be likely to be committed in prosecution of the common object of the said assembly and you are CRL. R.P. No.1119 of 2001 -: 6 :- thereby under Sec. 149 of the IPC guilty of causing the said offence and the offence punishable under Sec. 447, 324, 326 and 307 of the IPC”. The very same charge is attributed to all the accused. 8. True, there is non-mention of the month of the offence in the first paragraph and day of the incident is given as 15th instead 17th in the 7th paragraph of the court charge. Place of occurrence is stated as courtyard of building No.IV/228 of Muhamma Panchayat. But after the words 'owned and possessed', the name of the person who owned and possessed that building is omitted. In the last, but one paragraph of the court charge after referring to the common object of unlawful assembly on 17.5.1995 at about 10 O'clock in the night, instead of stating “one of the members caused offence punishable under Sec.447, 324, 326 and 307 of the IPC” it should have been stated as “members of the unlawful assembly”. Question is whether the above mistakes or omissions in the court charge have prejudiced the accused. Place of occurrence according to the prosecution is the courtyard on the northern side of building No.IV/228 belonging to and in the possession of P.W.1. Mahazar for scene of occurrence and the sketch prepared by the Village Officer mentioned the exact place of occurrence, namely, portion of the courtyard 7.50 metres north eastern corner of the house of P.W.1 which is 6 metres south east of CRL. R.P. No.1119 of 2001 -: 7 :- the boundary fence (on the northern boundary of the compound). In all the documents and even in the court charge (except of course in the 7th paragraph), day of incident is stated as '17.5.1995'. On going through the court charge it is seen that individual acts have been attributed to each of the accused and they are also charged by virtue of Section 149 of the Code for the acts of members of the unlawful assembly. In the above circumstances it does not appear to me that the so-called mistake or omission in the court charge in any way prejudiced the defence set up by the accused. Accused went to that fully aware of the charges against them. It is difficult to think that when the court charge mentioned the place of occurrence as the courtyard of house No.IV/228, accused were mislead because the exact spot was not precisely mentioned as stated in the mahazar or sketch. Nor it is possible to say that the accused though that incident stated in paragraph 7 of the court charge occurred not on 17.5.1995, but on 15.5.1995. 9. In Krishnan v. Kunhambu Nair & Others (1984 KLT 580) it was held that defect in the court charge has no consequence if no prejudice is caused to the accused and if he had fair trial. In State of Karnataka v. Bhojappa CRL. R.P. No.1119 of 2001 -: 8 :- Hanamanthappa (1994 Cri. L.J. 1543) the view taken is that mistake in the weapon used as stated in the court charge cannot be said to have prejudiced the accused when he had gone for trial fully knowing about the weapon alleged to be used by him. In Araj Sk. v. State of West Bengal (2001 Cri. L.J. (Cal.) 416) it is held that a wrong date of occurrence mentioned in the court charge cannot be said to have prejudiced the accused and vitiated the trial. The Honourable Supreme Court in Ramkishan v. State of Rajasthan (1997) 7 SCC 518) and Kammari Brahmaiah v. Publice Prosecutor (1999 Cri. L.J. 1134) held that omission to incorporate Section of the Code in the court charge or even an omission to frame charge itself, if it has not prejudiced the accused is not fatal. To crown all these, Section 464 of the Cr.P.C. states that no finding, sentence, or order by a Court of competent jurisdiction shall be deemed invalid merely on the ground that no charge was framed or on the ground of any error, omission or irregularity in the charge including any misjoinder of charge unless in the opinion of the Court of appeal confirmation or revision, a failure of justice has in fact been occasioned thereby. Accused had not at any relevant time pointed out the mistake or omission in the court charge before the trial Judge. CRL. R.P. No.1119 of 2001 -: 9 :- Mistake or omission referred by learned counsel is not shown to have prejudiced the defence set up by the accused. As such the contention that court charge is defective and therefore trial is vitiated, is untenable. (ii) Whether first version regarding the alleged incident is suppressed by prosecution? 10. According to the prosecution Exhibit P1 is the first information regarding the alleged incident given by P.W.1 on 17.5.1995 at or about 11.00 p.m. Going by the version of P.Ws.1 and 12 and Exhibit P1, that statement was recorded at Medical College Hospital, Alappuzha at a time when P.W.2 had been taken into the theatre for operation and P.W.1 was waiting outside. According to P.W.12, he got information over telephone from a person at Mannancherry that a person was stabbed and has been taken to the Medical College Hospital. He proceeded to that hospital where, he found P.W.1 at the above mentioned place and recorded her statement. Returning to the police station he registered the case. Exhibit P1(a) is the FIR. Case was registered at 12.15 on 17.5.1995 (it should have been stated as 18.5.1995). Exhibit P1 and P1(a) reached the magistrate concerned only on 19.5.1995 at 10.30 a.m. P.Ws.4 and 6 are brothers of the injured. According to P.Ws.1 , 4 and 6, CRL. R.P. No.1119 of 2001 -: 10 :- P.Ws.4 and 6 had been to the police station on the same night after P.W.2 was admitted in the Medical College Hospital. It is the version of P.W.4 that at the police station, himself and P.W.6 told Sub Inspector Thankachan that their brother was taken to the hospital and their signatures were taken in some paper. Learned counsel would argue that if that be so, that should have been the first information regarding the alleged incident but that has been suppressed as that was not favourable to the prosecution. Counsel contended that the delay in Exhibits P1 and P1(a) reaching the court concerned as above stated is fatal to the prosecution. Counsel placed reliance on the decision in Swaran Singh v. State (1981 Cri. L.J. 364). 11. It is true that P.Ws.1, 4 and 6 stated that P.Ws.4 and 6 had gone to the police station on that night after P.Ws.4 and 6 returned from the hospital. It is also trued that P.Ws.4 and 6 stated about telling the Sub Inspector about their brother being admitted in the hospital and according to P.W.4 their signatures were taken in some paper. But evidence of P.W.12 would show that on the night of the incident, Sub Inspector (P.W.13 - Thankachan ) was on leave. That was brought out in cross-examination of P.W.12 and that statement of P.W.12 was not further pursued on behalf of the CRL. R.P. No.1119 of 2001 -: 11 :- accused. They did not also dare to question P.W.13 who is stated to have obtained the signature of P.W.4 and 6. Thus there is nothing on record to show that either P.W.13 was present at the police station on the night of the incident or that he had recorded the statement of P.W.4. It has come out in evidence that P.W.4 and others were involved in a case for alleged assault on one Joshi on 16.5.1995. P.Ws.4 and 6 had been to the police station on the night of 17.5.1995 only after they returned from the hospital after admitting P.W.2. In the meantime, P.W.12 had recorded the statement of P.W.1. 12. Yet another argument is that even as per the version of P.W13, it was on getting information about P.W.2 sustaining injury that P.W.12 had been to the hospital. According to the counsel, if that be so, even before Exhibit P1, information must have reached the police station concerning the incident. But P.W.12 was specific that he had no information about the incident when he went to the Medical College Hospital. Instead he got telephonic information about another person sustaining stab injury at another place and accordingly he went to the Medical College Hospital where he learned about this incident, saw P.W.1 and recorded her statement. What P.W.13 stated in chief examination cannot be understood as meaning that P.W.12 had got information about this incident on the night and CRL. R.P. No.1119 of 2001 -: 12 :- thereon, P.W.12 went to the Medical College Hospital. P.W13 was only narrating what had happened at the police station and stated that P.W.12 had been to the hospital. There is no evidence to show that any information other than Exhibit P1 was received or recorded by P.W.12 or by any other police officer concerning the incident on the night of 17.5.1995. It is true that Exhibits P1 and P1(a) reached the magistrate concerned only on 19.5.1995 at about 10.30 a.m. But it is not as if every delay in despatching the FIR would turn out to be fatal. That would depend upon the facts and circumstances of the case. Exhibit P1 was recorded immediately after the incident in the circumstances stated above and nothing is brought out to suspect the genuineness of Exhibit P1. Immediately on returning from the hospital, P.W.12 registered the case. In the circumstances mere delay in Exhibits P1 and P1(a) reaching the magistrate cannot be stated to be fatal. The view taken in Antony v. State of Kerala (1993 (2) KLT SN 30, case No.31) supports that view. (iii) Whether P.Ws.1 and 2 sustained injuries on the relevant day and time as alleged by the prosecution? 13. P.W.5 examined P.W.2 on 17.5.1995 at about 11.55 p.m. at Medical College Hospital, Alappuzha and issued Exhibit P2. Evidence of P.W.5 and Exhibit P2 show that P.W.2 suffered as many as 12 CRL. R.P. No.1119 of 2001 -: 13 :- incised wounds and a few fractures. According to P.Ws.1, 2, 4 and 6, a few teeth of P.W.2 also were affected by the injury and it fell down at the place of incident. Though P.Ws.1, 2, 4 and 6 asserted so, P.W.5 stated that he had not noted any loss of teeth in Exhibit P2 though there was incised wound on the face extending from the angle of mouth, right side, across the nose upto the lower eyelid left side with injury to nasal cartilage and lower lip and extending upto the nasal and oral cavity. In the light of that evidence of P.W.5 I have to say that the version of P.Ws.1, 2, 4 and 6 regarding loss of teeth for P.W.2 is not supported by the medical evidence. Nor did the Investigating officer seize any teeth allegedly fallen at the place of occurrence. Therefore that version of P.Ws.1, 2, 4 and 6 cannot be accepted. 14. More serious challenge is on the version of P.W.1, mother of P.W.2 that she also suffered injuries in the course of the incident. P.W.9 examined her at Medical College Hospital, Alappuzha on 18.5.1995 at 11.00 a.m. and issued Exhibit P4. She had a curved incised wound on the right deltoid portion extending to the dorsal aspect of scapula and linear abrasion on the left clavicle. According to learned counsel if P.W1 had been to the Medical College Hospital along with P.W.2 on the night of 17.5.1995 such an injury would have CRL. R.P. No.1119 of 2001 -: 14 :- been reported in the hospital at that time in which case she would have been examined by the doctor without delay. Counsel contends that going by the evidence of P.W.9 and Exhibit P4, it was a bleeding fresh injury which indicated that it was created only on 18.5.1995. 15. Argument is certainly attractive and requires closer scrutiny. I have already stated that P.W.12 had recorded the statement of P.W.1 at Medical College Hospital, Alappuzha on 17.5.1995 at 11.00 p.m. In Exhibit P1, P.W.1 stated that she was assaulted with sword stick. P.W.12 found blood oozing from the right arm muscle of P.W.1 (on 17.5.1995 at 11.00 p.m.) This is noted in Exhibit P1 itself. It is the version of P.W.12 that apart from that injury, he did not notice any other injury on P.W.1, nor did he explore that matter. It was suggested to P.W.9 in re-examination that if the bandage is removed, there is possibility of bleeding. In Exhibit P4, P.W.9 stated that injury was fresh and bleeding. It is not clear whether P.W.1 was given any bandage for her injury. It is the version of P.W.1 that though she was present in the Medical College Hospital at the time P.W.2 was subjected to operation, she did not go for admission in the hospital for her own injury, returned to the house and was admitted in the hospital only on 18.5.1995. While considering that version of P.W.1, one has to go through Exhibit P2, wound CRL. R.P. No.1119 of 2001 -: 15 :- certificate of P.W.2. It revealed that he sustained 12 incised wounds and several fractures. Going by the evidence of P.W.5, it must have taken about 1½ to 2 hours for performing the operation on P.W.2. At a time when P.W.2 sustained serious injuries and, was subjected to operation it is possible that P.W.1, mother was not very much concerned about the injury she suffered and after she found P.W.2 safe the next day, got admitted in the hospital for the injuries suffered by her. It is then argued that a sword stick cannot cause a curved injury as stated in Exhibit P.W1 issued by P.W.9. P.W.9 stated that a sickle can cause that injury. But that dies not mean that no other weapon could cause that injury. It depends on the nature of the weapon including its flexibility. Unfortunately, the Investigating Officer could not or did not arrest the accused or seize the weapons. Hence, I am unable to conclude that a curved incised would could not have been caused with a sword stick. In the facts and circumstances of the case I do not find anything unnatural in that, particularly as P.W.12 had noted in Exhibit P1 that P.W.1 had suffered injury and blood was oozing. There is no reason to think that the said injury was subsequently created on P.W.1. (iv) Whether place of occurrence is shifted? 16. According to the learned counsel, incident in which P.W.2 CRL. R.P. No.1119 of 2001 -: 16 :- sustained injury occurred not on the courtyard of P.Ws.1 and 2 but on the side of the road in front of the compound away from the house of P.Ws.1 and 2. Counsel placed reliance on the evidence of D.W.1. It is also contended by the counsel that nobody had witnessed the incident and it was only to suit the version of P.Ws.1 to 4 and 6 that place of occurrence was shifted to the courtyard. 17. In Exhibit P3, the scene of occurrence is stated as the courtyard of the house of P.Ws.1 and 2 and the exact spot is stated to be 7.50 metres north of north eastern corner of the house. Further north, abutting the compound is