IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN TUESDAY, THE 12TH JULY 2011 / 21ST ASHADHA 1933 CRL.A.No. 1 of 2007() -------------------------- SC.16/2005 of ADDL.SESSIONS COURT, THODUPUZHA CP.40/2004 of JUDL. MAGISTRATE OF FIRST CLASS COURT, KATTAPPANA .................... APPELLANT(S): ACCUSED NO.1,3 & 4. -------------------------------------------- 1. SIVADAS, AGED 44, S/O.RANGANATHAN, MAMANAL HOUSE, THANKAMONI VILLAGE, AMALAGIRI KARA. 2. REJI, AGED 39, S/O.THANKAPPAN, KAPPACKAL HOUSE, THANKAMANI VILLAGE, AMALAGIRI KARA. 3. SYAMALA, AGED 44, D/O.PRABHAKARAN, MAMANAL HOUSE,THANKAMANI VILLAGE, AMALAGIRI KARA. BY ADVS. SRI.B.RAMAN PILLAI SRI.R.ANIL SRI.RAJU RADHAKRISHNAN SRI.ANIL K.MOHAMMED SRI.DELVIN JACOB MATHEWS RESPONDENT(S): COMPLAINANT. --------------------------------------- STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI. S.U.NAZAR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 06/06/2011, ALONG WITH CRA NO.73 OF 2007 THE COURT ON 12/07/2011 DELIVERED THE FOLLOWING: svs PIUS. C. KURIAKOSE & N.K.BALAKRISHNAN, JJ. ---------------------------------------- Crl.A Nos.1 & 73 of 2007 --------------------------------------- Dated this 12th day of July, 2011 JUDGMENT N.K.BALAKRISHNAN, J. Accused Nos.1, 3 and 4 in Sessions Case No.16 of 2005 of Additional Sessions Judge, Thodupuzha, are the appellants in Crl.Appeal. No.1 of 2007. The second accused in that case is the appellant in Crl.Appeal No.73 of 2007. The appellants were convicted by the learned Sessions Judge for offences punishable under Sections 302 and 324 read with 34 IPC and were sentenced to imprisonment for life for the offence under Section 302 r/w 34 IPC and to undergo rigorous imprisonment for one year for the offence under Section 324 read with 34 IPC. Further, they were also sentenced to pay Rs.20,000/- as fine, in default of payment of which they were sentenced to undergo rigorous imprisonment for 6 months each. These appeals are directed against the said conviction and sentence. 2. Deceased Sreedharan, who was then aged 77 years is the father of PW2, Salimkumar. It is alleged that the jeep belonging to PW2 was used for carrying the arrack belonging to the first accused Crl.A.Nos.1 & 73 of 2007 -: 2 :- Sivadas. While so, the jeep was seized by the police. PW2 was also arrayed as accused in that Abkari case. First accused was asked to get release of the jeep from the police station or to purchase another vehicle and to give it to PW2. Accused No.1 did not heed to that demand. On 13/5/2003 at about 6 P.M there was altercation between deceased Sreedharan and his family members on the one side and the accused and his men on the other side. Somebody intervened and the parties were sent back. On the same day at about 8.30-9.P.M PW2 Salim Kumar while returning from the police station saw all the 4 accused persons standing at Amalagiri. Near to that place his father Sreedharan was also standing. When PW2 asked his father why he was standing there all the 4 accused started abusing him. Accused Nos.2 and 4 pelted stones at his father. Accused No.1 struck on the head of deceased Sreedharan with a sword like object (which was later identified as an iron plate-MO2) and inflicted fatal injury. Accused No.3 beat PW2 with a coffee stick (MO1) and caused hurt to him. PW1 who was the President of the Service Co- operative Bank, Thankamony, on getting information reached the place of incident. He accompanied the injured to Medical Trust Hospital, Nedumkandom. Sreedharan was examined by the doctor. The doctor Crl.A.Nos.1 & 73 of 2007 -: 3 :- directed the injured Sreedharan to be removed to the Medical College Hospital, Kottayam. But the injured Sreedharan was removed from Medical Trust Hospital, Nedumkandom, only at 7 A.M on the next day. While Sreedharan was being taken to Medical College Hospital, he was found to be not breathing and so PW2 and others took Sreedharan to St.Johns Hospital, Kattappana. The doctor examined and pronounced Sreedharan dead. On 14.5.2003 PW1 got information that Sreedharan succumbed to the injuries while being transported to Medical College Hospital, Kottayam. He went to Kattappana Police Station and lodged Ext.P1 first information statement, based on which PW14 the Additional Sub Inspector, Kattappana, Police Station registered the FIR, Ext.P25. PW12, the Circle Inspector of Kattappana Police Station took over the investigation, prepared Ext.P5 the inquest report and thereafter went to the place of incident and prepared Ext.P6 scene mahazar. After completing the investigation, PW13 laid the charge sheet against the accused. 3. All the accused pleaded not guilty. PW1 to PW14 were examined and Exhibits P1 to P25 were marked. MO1 to MO6 were identified and marked. Crl.A.Nos.1 & 73 of 2007 -: 4 :- 4. When the accused were questioned under Section 313 Cr.P.C, they contended that the prosecution version is untrue. They further contended that deceased Sreedharan and his son, PW2, Sreedharan's wife Thankamma, PW2's wife Indira and their children Santhosh and Anoop and Madhu the younger brother of Sreedharan and Prakash the brother in law of PW2, came together to the road near the house of the accused carrying stones, chopper, sticks etc. and they started pelting stones at the accused and also started abusing them. On hearing the hue and cry accused No.1 and 4 came out from their houses to the road. The incident took place near the house of Ramankutty, CW4. When they were attacked by PW1, PW2 and others accused Nos.1, 2 and 4 sustained injuries and accused Nos.1 and 2 were treated at District Hospital, Idukki on the very same day. As there was no power supply there was no light at all at the place of incident. 5. DWs.1 to 5 were examined on the side of the defence. Including the portions of the case diary statement of PW3 marked as contradictions, six documents were marked on the side of the defence as Exts.D1 to D6. 6. The learned Sessions Judge after analysing the evidence did Crl.A.Nos.1 & 73 of 2007 -: 5 :- not accept the defence case that there was a group clash or that because of absence of light deceased Sreedharan happened to sustain some injuries to which he later succumbed. Accepting the prosecution version that accused in furtherance of their common intention attacked Sreedharan and his son PW2 and that because of the fatal blow inflicted by accused No.1 on the head of Sreedharan he died, the accused were found guilty of the offence punishable under Section 302 read with 34 IPC. Since it was also found that in furtherance of the common intention PW2 was beaten by A3 using a coffee stick, all the accused were held guilty of the offence punishable under Section 324 read with 34 IPC. The accused were thus convicted and sentenced as mentioned earlier. 7. Sri.B.Raman Pillai learned counsel appearing for accused Nos.1, 3 and 4 and Sri.C.M.Tomy appearing for accused No.2 and also the learned Public Prosecutor Sri.S.U.Nazar were heard in detail. 8. Following points arise for consideration:- i. Whether the first accused in furtherance of the common intention of all the accused inflicted fatal blow on the head of deceased Sreedharan with MO2? ii. Whether Sreedharan as mentioned above died due to the injury so sustained on his head? Crl.A.Nos.1 & 73 of 2007 -: 6 :- iii. Whether A2 voluntarily caused hurt to PW2 by beating with a coffee stick? iv. Whether accused numbers 2 and 4 pelted stones and caused hurt to deceased Sreedharan? v. Whether the conviction and sentence passed against the accused are unsustainable on any of the grounds urged by the accused/appellants? 9. Points 1 and 2: PW7 was the doctor working in Medical Trust Hospital, Nedumkandom. It was stated by him that deceased Sreedharan, who was brought there by PW2 with a history of assault was examined by him at 10.35 P.M on 13.5.2003. Ext.P7 is the wound certificate issued by him. The following 5 injuries were found on the body of Sreedharan as noted by him in Ext.P7:- “1. A 2cm x 1cm irregular laceration over right front temporal region of scalp. 2. A 8.5 cm x 0.5 cm incised wound on the midline in fronto temporal region over scalp 10cm above the mid point between two eyebrows. Fracture of temporal bone of left side felt. 3. A 1cm x 1cm abrasion over the face below right eye. 4. A 0.75 cm x 0.5 cm abrasion over the bridge of nose. 5. A 0.5 cm x 0.5 cm abrasion over right ankle of nose.” 10. It was further stated by him, that when x-ray of skull was taken it showed fracture of temporal parts of left side and, therefore, the Crl.A.Nos.1 & 73 of 2007 -: 7 :- injured was referred to Medical College Hospital, Kottayam for neuro surgical management. It was stated by him that injury No.1 in Ext.P7 could be caused by beating with MO2 which is now described as iron plate. The learned counsel for the accused relied very much on the evidence given by PW7 to canvass for the position that the prosecution case must fall to the ground since it was stated by PW7 that injury No.2 cannot be caused by striking with MO2. Over much importance can not be given to the evidence of PW7 regarding the cause of death of Sreedharan. It is true that when PW7 examined deceased Sreedharan, the injuries were fresh but the postmortem was conducted by an expert. Since the evidence given by that expert witness is found to be more acceptable, the defence cannot bank up the evidence given by PW7 to contend that the prosecution case is unacceptable. PW11 was the Police Surgeon, Medical College Hospital, Kottayam and Professor of Forensic Medicine, who conducted the postmortem examination on the body of Sreedharan on 14.5.2003. In Ext.P12 the postmortem certificate issued by him the following antemortem injuries were noted by him:- “1. Sutured lacerated wound 3 cm long, bone deep, horizontal, on right side of head. 8cm above ear. Crl.A.Nos.1 & 73 of 2007 -: 8 :- 2. Abrasion 5 x 4 cm. on right side of forehead, 2cm outer to midline and just above eyebrow. 3. Sutured lacerated wound, 8.5 cm long, bone deep, sagittally placed, on the front and top of head, the front end being, 2 cm to right of midline and 9 cm above eyebrow. The scalp around showed contusion over an area 25 x 11x1cm. The skull bone underneath showed depressed communicated fracture over an area 7.5 x 7.5 cm, involving frontal and right parietal bone which extended as fissured fractures to right temporal bone, left parietal and temporal bones and also to floors of left middle cranial fossa and pituitary fossa. Extradural blood clot 10x8x0.5 cm, over left parietal region, Subdural and subarachnoid bleeding on both sides of brain. Intracerebral bleeding over left temporal lobe of brain. Gyri of brain flattened and sulci narrowed. 4. Lacerated wound 2 x 0.8 cm skin deep, on right side of face, 0.5 cm below eye. 5. Abrasion, 4.5 x 0.5 cm on bridge of nose. 6. Abrasion, 1x 1cm, on back of right thumb, 2cm above its tip.” 11. It was testified by PW11 that the death of Sreedharan was caused due to the head injury noted as injury No.3. It was further sworn by him that injury No.3 could be caused by beating with MO2. He further stated that the other injuries found on the body of Sreedharan could be caused by beating with MO1 or MO2. It was further stated by Crl.A.Nos.1 & 73 of 2007 -: 9 :- PW11 that incised looking lacerated wounds are possible to be caused on the head with MO2. It was contended by the defence that there was chance for misjudging lacerated wound as incised wound but it was stated by PW11 that if the wounds are not examined thoroughly, chances may be there. It was contended by the defence that since PW7 alone had occasion to see the wounds in its original position, the evidence given by PW7 should be preferred to. But PW11 is an expert. He has given explanation regarding the types of injuries and as to the possibility of causing injury No.3, (the detailed description of which has been given earlier) by striking on the head with MO2. Hence it can be undoubtedly held that the fatal injury (injury No.3) noted in Ext.P12 was caused by striking on the head of deceased with MO2. So many questions were put by the defence regarding the possibility of such an injury being caused in some other manner and by using some other weapon. Such hypothetical suggestions or possibilities can have no relevance since the crucial question is whether by striking at a bony part- skull with MO2, injury No.3 as noted in Ext.P12 can be caused. The evidence given by PW11 on that point is clear, cogent and convincing. It admits of no doubt that death of Sreedharan was caused because of the Crl.A.Nos.1 & 73 of 2007 -: 10 :- fatal blow given on his head with MO2. MO2 has a length of 65 cms. and width of 4.5 cms. and a thickness of half a centimetre. MO2 was brought to the court and it was examined to verify and ascertain whether MO2 was just like a sword so as to appreciate the contention raised by the prosecution that since the incident took place at night, it was likely to be mistaken as a sword. The edges of MO2 are not so sharp as a sword but there could be no difficulty to hold that the nature and weight of MO2 is such that it could certainly produce injury No.3 noted in Ext.P12 and as such we have no hesitation to accept the evidence given by PW11 that the fatal injury No.3 was caused by beating with MO2. 12. The evidence was given by PW7 after examining MO2 in court also. MO2 is just like a sword and so it was likely to be mistaken as sword especially when it was seen during night. Therefore, the argument advanced by the defence that the prosecution had no consistent case as to whether the weapon used by accused No.1 was a sword or an iron plate and on that ground itself the prosecution version has to be disbelieved is untenable. We hold that deceased Sreedharan had a homicidal death. We further confirm the finding of the learned Sessions Judge that the fatal injury was inflicted on the head of Sreedharan by striking on his head Crl.A.Nos.1 & 73 of 2007 -: 11 :- with MO2. 13. Ext.P1 is the First information statement given by PW1. He is the President of the Service Co-operative Bank, Thankamoni. He is stated to be a local leader of a political party. His evidence would show that on getting information that deceased Sreedtharan had sustained injury, he rushed to the place of incident at Thankamoni on the night of 13.5.2003. He accompanied the injured to Medical Trust Hospital, Nedumkandam, where injured Sreedharan was admitted and thereafter, he returned home. On 14.5.2003 he was informed that Sreedharan succumbed to the injuries when he was being taken to Medical College Hospital, Kottayam. Accordingly, he went to Kattappana police station and gave Ext.P1 the first information statement. 14. The learned counsel for the accused would submit that Ext.P1 was actually ante-timed. It is seen that in the FIR portion, in the relevant column, the time of recording of the First Information Statement was originally written as 10.15 am. That was subsequently corrected as 10.30 am. In the body of the F.I.Statement, the time of recording of the F.I.Statement is noted as 10.30 am. It is also seen that Ext.P5 inquest report was prepared from St.John's Hospital, Kattappana on 14/05/2003 Crl.A.Nos.1 & 73 of 2007 -: 12 :- at 10.30 am. Genuine doubt may arise as to how, if the F.I.Statement was recorded by the Additional Sub Inspector of Police at Kattappana Police Station at 10.30 am, the C.I of Police (PW12) could start preparing the inquest report, based on Crime No.204 of 2003 of Kattappana Police Station, at 10.30 am. The prosecution would contend that the time noted by PW 14 as 10.30 am, may be a mistake. But the defence would contend that the benefit of that mistake must certainly go to the accused, as it would probabilise their case. In this connection, it is also submitted by the learned counsel for the accused that though the FIR was shown to have been registered on 14/5/2003 at 10.30 am, it reached the Court of Judicial First Class Magistrate, Kattappana only at 11 am on 15/5/2003. No doubt, only because of the inconsistency pointed out above, the whole prosecution case cannot be brushed aside. But, at the same, that also may have to be taken into account while considering the evidence as a whole. 15. Exts.P2 and P3 are the two portions marked as contradictions in the evidence given by PW1. PW1 is not an eye witness to the occurrence. The statement given by PW1, as contained in Ext.P1, is to the effect that when he reached the place of incident and asked injured Crl.A.Nos.1 & 73 of 2007 -: 13 :- Sreedharan, he told that he was hacked on his head by accused No.1. Regarding the motive also, in Ext.P1, it was stated that accused No.1 was having business in sale of illicit liquor and since, PW2 had given information regarding the same to the Police, accused No.1 had grouse against PW2 and his father. PW1 has denied to have given such statements. Hence he was cross examined by the learned Prosecutor after getting permission of the Court. A similar statement was given by him to the police when questioned under Section 161 of Cr.P.C, That was also denied by him. Hence those contradictions were marked by the prosecution as Exts.P2 and P3. 16. The learned public prosecutor would submit that even otherwise those portions of the statement can carry no conviction or probative force since those portions have to be treated as hearsay information. The evidence of PW1 that he reached the place of incident in the night and then he saw Sreedharan with bleeding injuries on his head and thereafter, he was taken to Medical Trust Hospital, Nedungandam in a jeep, cannot be disputed at all. 17. Since he is not a eye witness to the occurrence, his statement as to how the incident happened may not be of any relevance. PW2, the Crl.A.Nos.1 & 73 of 2007 -: 14 :- son of the deceased has given evidence to the effect that, when he was returning from the police station and reached near the place of incident, he saw his father, near the side of the road and he also saw the four accused present somewhere near that place. When PW2 was asked the deceased, why he was standing there, the accused started abusing him and also started pelting stones at him. He was definite and categoric in his statement that the first accused struck on the head of deceased Sreedharan with MO2. As stated earlier, in the earlier portions of the statement given by the witnesses, the said weapon was described as sword stick. Since, the weapon appeared to be as described in paragraph (11), it was mistaken as a sword and so the discrepancy in the name of the weapon will not in any way affect the case of the prosecution. 18. According to PW2, he was beaten by third accused with MO1 coffee stick and thus he sustained injuries. While accused Nos.1 and 2 pelted stones at the deceased, he (PW2) also sustained injuries due to pelting of stones. According to him, there was light emanating from the bulb situated on the outer side of the house of Ramankutty (CW4), whose house is only about 10 metres away from the place of the incident. Besides, it was also stated that there was burning mercury Crl.A.Nos.1 & 73 of 2007 -: 15 :- lamp a few metres away from the place of incident and so there was sufficient light to identify the assailants. The defence would contend that for about one week prior to the date of incident and also on the date of the incident, there was no power supply and so it was completely dark. Ext.P6 scene mahazar shows the presence of the electric bulb on the outer wall of the house of CW4. It also states about the street light- mercury lamp existing a few metres away from the place of incident. Therefore, there could be no doubt regarding the presence of light, the prosecution contends. There is slight discrepancy as to when deceased Sreedharan fell down. At one place it was stated that first accused, at first beat on the head of the deceased with MO2 and then he fell down, but at another place, it was stated that when he sustained injuries due to pelting of stones, he fell down and it was in that posture, he was beaten at his head by the first accused with MO2. The evidence was given by the witness after about three years of the incident. Witnesses cannot be expected to possess such photographic memory to reproduce the events in the same sequence as if a video tape is replayed on the mental screen of the witnesses. The power of observation, retention and reproduction may vary from person to person. Such discrepancies are quite natural. Crl.A.Nos.1 & 73 of 2007 -: 16 :- The question is whether the evidence given by PW2 that his father was beaten by the first accused with MO2 infuses confidence in the mind of the Court. PW3, another eye witness to the occurrence supported the evidence given by PW2 in all material particulars. 19. It was contended by the defence that PW3 is a henchman or person working under PW2 and his father and so because of the loyalty, PW3 spoke in favour of the prosecution. The contention that PW3 is highly interested and is partisan and so his version is a prejudiced one, is not worthy of acceptance. It is further contended by the defence that the version given by PW3 is contradictory to the evidence given by PW2. As per Ext.P6 scene mahazar, the place of incident is the mud road portion of Amalagiri-Thankamoni Panchayat road. The main tar road is known as Thopramkudi-Ezhukumvayal road. Amalagiri-Thankamoni Panchayat road proceeds towards west from the main road mentioned above. Ext.P11 is the sketch prepared by the Village Officer. As per Ext.P6 scene mahazar, the place of incident is about 10 metres to the west of the main tar road. PW2 has stated that the incident took place on the main tar road. PW3 has stated that when deceased Sreedharan sustained injuries, he was about 10 feet away from the main road. Even Crl.A.Nos.1 & 73 of 2007 -: 17 :- according to the defence, there was mutual pelting of stones. Therefore, it can certainly be inferred that all those persons were not standing at a particular spot. They were moving hither and thither so that one cannot precisely say the exact spot where deceased was at the time when he received the blow with MO2. It would appear that the place of incident was marked by the Investigating Officer as the spot about 10 metres to the west of the main tar road, since that particular spot appeared to be a pool of blood. The evidence would show that deceased Sreedharan was lying there, after he received the fatal blow on his head. The evidence would also show that PW1 is an illiterate person. The incident took place at night. Amalagiri-Thankamoni Panchayat road starts from the main road- Thopramkudi-Ezhukumvayal. The place of incident is almost a junction. There is evidence to show that there was pelting of stones. Persons engaged in the incident would change their position during the attack. So much so, the slight inconsistency in the place of incident cannot be projected out of proportion to contend that the whole prosecution