IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 4TH FEBRUARY 2009 / 15TH MAGHA 1930 CRL.A.NO. 474 OF 2005() ---------------------------------- SC.1082/2000 OF ADDL. SESSIONS COURT (ADHOC), TRIVANDRUM CP.22/2000 OF JUDL. MAGISTRATE OF FIRST CLASS COURT-I, NEYYATTINKARA .................... APPELLANT(S): ACCUSED 1,5 & 6 ----------------------------------------------- 1. SHINE C/O. CHANDRAN, VALIYAVILA PUTHEN VEEDU, THOZHUKKAL, NEYYATTINKARA 2. ANIL KUMAR S/O. NESAMONY, MAVUVILA PUTHEN VEEDU, PERUMPAZHUTHOOR. 3. VINU, S/O. SUNNY, S.R.COTTAGE, BHASKAR ROAD, THOZHUKKAL. BY ADV. SRI.PIRAPPANCODE V.SREEDHARAN NAIR SRI.PIRAPPANCODE V.S.SUDHIR RESPONDENT(S): COMPLAINANT ---------------------------------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, OFFICE OF THE ADVOCATE GENERAL, HIGH COURT F KERALA, HIGH COURT BUILDINGS, ERNAKULAM, (CIRCLE INSPECTOR OF POLICE, NEYYATTINKARA) BY PUBLIC PROSECUTOR SHRI S.U. NAZAR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 19/01/2009 ALONG WITH CRL. APPEAL NO.515 AND CRL. APPEAL NO.1058 OF 2005, THE COURT ON 04/02/2009 DELIVERED THE FOLLOWING: A.K. BASHEER & THOMAS P.JOSEPH, JJ. = = = = = = = = = = = = = = = = = = = = = = = = = = CRL. APPEAL No.474 of 2005, CRL. APPEAL No.515 of 2005 AND CRL. APPEAL No.1058 of 2005 = = = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 4th day of February, 2009 J U D G M E N T ---------------------- Thomas P.Joseph, J. Accused, eight in number faced trial for the offences punishable under Secs.143, 147, 148, 341, 324, and Sec.302 read with Sec.149 of the Indian Penal Code (for short, “Code”) on a charge that on 2.5.1998 at about 7.15 p.m. on the Neyyattinkara-Kattakada road at Thozhukkal Junction they formed an unlawful assembly and in prosecution of their common object to cause the death of Surendra Kumar @ Giri (hereinafter referred as “the deceased”), wrongfully restrained him and P.Ws.1 and 2, voluntarily caused hurt to them and the deceased succumbed to the injuries. Learned Additional Sessions Judge found the accused guilty of the offences charged against them, convicted and sentenced them to undergo imprisonment for life under Sec.302 of the Code and imprisonment for various periods and payment of fine for the other offences (except for Sec.148 of the Code for which no separate sentence was awarded). That conviction and sentence are under challenge. CRL. APPEAL Nos.474, 515 & 1058 of 2005 -: 2 :- Accused 1, 5 and 6 filed Crl.Appeal No.474 of 2005, accused 2 to 4 filed Crl. Appeal No.515 of 2005 and accused 7 and 8 filed Crl.Appeal No.1058 of 2005. Learned counsel submitted that the first appellant in Crl.Appeal No.515 of 2005 (accused No.2) died after filing of the appeal. None of the near relatives of accused No.2 has come forward seeking leave to continue the appeal to the extent it concerned accused No.2. Hence that appeal to the extent it concerned the first appellant/accused No.2 stands abated. 2. We heard learned counsel, Shri Pirappancode V.Sreedharan Nair, Shri V.N. Achutha Kurup and Shri R.T. Pradeep who appeared for the accused and the learned Public Prosecutor, Shri Jai George. It is contended by the learned counsel that charge framed by the learned Additional Sessions Judge is defective and that vitiated the trial. Further contention is that prosecution has not proved the alleged motive and the case against accused beyond reasonable doubt. Learned Public Prosecutor supported the conviction and sentence. 3. According to the prosecution accused Nos.1 to 8 are DYFI activists and the deceased is a BJP activist. The BJP activists led by the deceased had taken up a campaign in the locality against sale of illicit arrack and put up boards and pasted posters at Thozhukkal Junction as part of it. Accused No.2 is the owner of Silpi sounds at CRL. APPEAL Nos.474, 515 & 1058 of 2005 -: 3 :- Thozhukkal Junction. Accused No.2 removed one of those boards and set up his serial lights (illumination sets) while illuminating the Chapel and nearby places in connection with the celebration in the church. Deceased who was annoyed by that conduct of accused No.2 destroyed some serial lights. On 1.5.1998 accused No.2 threatened to avenge the deceased for that. On 2.5.1998 at about 7.15 p.m. accused Nos.1 to 8 armed with weapons formed unlawful assembly at the place of occurrence. P.Ws.1, 2 and the deceased came to Thozhukkal junction to take tea from Beena restaurant near the place of occurrence. Accused Nos.4 and 5 called the deceased as they wanted to talk to him. The deceased followed by P.Ws.1 and 2 went towards the accused. Accused surrounded P.Ws.1, 2 and the deceased. Accused No.2 challenged the deceased that he dared to destroy the serial lights and exhorted accused No.1 to do away with the deceased. Accused No.1 assaulted the deceased with M.O.1 and inflicted injuries. P.W.1 tried to intervene. Accused No.1 assaulted P.W.1 also with M.O.1 and inflicted injuries. P.Ws.1, 2 and the deceased ran towards south. Accused No.1 followed them and assaulted P.W.2 on the back of his neck with M.O.1. P.Ws.1, 2 and the deceased were taken to the Government Hospital, Neyyattinkara. P.W.6, Assistant Surgeon, Government Hospital, Neyyattinkara proved CRL. APPEAL Nos.474, 515 & 1058 of 2005 -: 4 :- Ext.P2, wound certificate concerning P.W.1. P.W.6 examined P.W.1 in that hospital on 2.6.1998 at about 7.40 p.m. P.W.1 had incised wounds on the front of left shoulder and lateral aspect of right scapula. Since the condition of the deceased was serious, they were referred to the Medical College Hospital, Thiruvananthapuram where the deceased was declared dead. P.W.12 conducted inquest on the body of the deceased. Exhibit P7 is the report. 4. P.W.7, Assistant Professor, Department of Forensic Medicine, conducted the postmortem examination and issued Ext.P3. Exhibit P3 refers to the antemortem injuries which includes four incised wounds. P.W.7 was of the opinion that injury No.1 in Ext.P7 was sufficient in the ordinary course to cause the death. That, P.W.1 and deceased suffered injuries as stated in Exts.P2 and P7 on 2.5.1998 and that the latter succumbed to the injuries are proved by the prosecution and not disputed before us. On the question whether P.W.2 suffered injuries in the same transaction, it is contended that there is no evidence to prove that. We will advert to that a little later. 5. P.Ws.1 to 4 are the witnesses examined by prosecution to prove the incident. P.Ws.2 and 3 are direct brothers. According to P.Ws.1 to 3, on 2.5.1998 they, along with deceased and one Anil Kumar were at work at the residence of one Ravindran Nair. After the CRL. APPEAL Nos.474, 515 & 1058 of 2005 -: 5 :- work was over on the evening they washed themselves. P.W.3 and Anil Kumar proceeded to Thozhukkal junction to take tea. P.W.3 deposed that himself and Anil Kumar had tea from Beena restaurant and were standing in front of that restaurant. P.Ws.1 to 3 claimed that at about 7.15 p.m. P.Ws.1 and 2 and the deceased came to the Junction, according to P.Ws.1 and 2, to take tea from Beena restaurant. When P.Ws.1, 2 and the deceased reached near the scene of occurrence, accused Nos.1 to 8 were standing near Silpi Sounds belonging to accused No.2. Accused Nos.4 and 5 called the deceased as they wanted to talk to him. The deceased, followed by P.Ws.1 and 2 went towards the accused. The accused surrounded P.Ws.1, 2 and the deceased. Accused No.2 challenged the deceased that he dared to destroy the serial lights and exhorted accused No.1 to do away with the deceased. Accused No.1 assaulted the deceased on the left side of his neck with M.O.1 P.W.1 intervened. Accused No.1 assaulted P.W.1 on his left shoulder and right scapula with M.O.1. Both suffered injuries. Scared, P.Ws.1, 2 and the deceased ran towards south along the road. Accused No.1 went behind them and assaulted P.W.2 on the back of neck with M.O.1. P.Ws.1 and 2 claimed that they got into the Chembaravthivila road (running eastwards towards south of the place of occurrence) and looked back for the deceased. P.W.3 claimed CRL. APPEAL Nos.474, 515 & 1058 of 2005 -: 6 :- that then also he was standing in front of Beena restaurant. P.W.3 deposed that accused No.1 who followed P.Ws.1, 2 and the deceased again assaulted the deceased with M.O.1. P.Ws.1 to 3 saw the deceased collapsing on the road. P.W.3 and C.W.4 (D.W.1) who came there took P.Ws.1, 2 and the deceased to the Government Hospital, Neyyattinkara and then to the Medical College Hospital, Thiruvananthapuram where the deceased was declared dead. P.W1 deposed that while undergoing treatment at that hospital, he gave first information (Ext.P1) at 10.30 p.m (C.W.28 recorded Ext.P1 and registered the case). Exhibit P1(a) is the FIR. The signature of C.W.28 in Exts.P1 and P1(a) was proved through P.W12 as C.W.28 was not alive. P.Ws.1 to 3 identified M.O.1 as the weapon with which accused No.1 inflicted injuries on P.Ws.1, 2 and the deceased. P.W.1 claimed that when the accused surrounded them, he saw weapons with all the accused. P.Ws.1 to 3 claimed that there was light at the place of occurrence from the burning street lights and electric bulbs in the nearby shops. 6. P.W.4 is a resident of Thozhukkal area and claimed to have been to that junction on the evening of 2.5.1998 to purchase articles. At about 7.15 p.m. he was standing in front of the shop of Chandran CRL. APPEAL Nos.474, 515 & 1058 of 2005 -: 7 :- (almost opposite to the place of occurrence on the western side of the road). P.W.4 found accused Nos.1 to 5, 7 and 8 on the opposite side (of the shop of Chandran) in front of Silpi Sounds belonging to accused No.2. By about 7.15 p.m. P.Ws.1, 2 and the deceased came in front of Beena restaurant. Accused Nos.4 and 5 came forward and called the deceased as they had something to tell him. When the deceased and P.Ws.1 and 2 went to them, the said (accused) persons surrounded them. Accused No.1 had M.O.1 with him. Accused No.2 was carrying a short stick. Accused Nos.4 and 5 carried punch blocks (an instrument for hitting that could be kept in the hand). Accused No.2 challenged the deceased that he dared to destroy serial lights and exhorted to do away with the deceased. Accused No.1 assaulted the deceased and P.W.1 with M.O.1. P.Ws.1, 2 and the deceased took to their heels. Accused No.1 went behind them and assaulted P.W.2 on the back of his neck with M.O.1. Deceased collapsed in front of the shop towards south of Ramakrishna Stores. P.Ws.1 and 2 ran towards Chembarathivila road and after chasing them, accused returned to the Junction. Accused Nos.4 and 5 threw away the punch blocks and the accused dispersed towards different directions. P.W.4 claimed that there was sufficient light at the time of the incident. According to P.W.4, he listened to the accused persons (when they were standing CRL. APPEAL Nos.474, 515 & 1058 of 2005 -: 8 :- near Silpi Sounds belonging to accused No.2) as they were carrying weapons. 7. P.W.5 is the father of the deceased. He deposed that on 2.5.1998 at about 5.00 p.m. accused Nos.1, 2 and 6 came to his house and enquired about the deceased. To his query about the purpose, they told him that they wanted the deceased in connection with the purpose of church. P.W.5 told them that the deceased had gone for work on the morning. P.W.5 claimed that the said persons had come in search of the deceased previously also and hence when they enquired about the deceased on 2.5.1998, he felt nothing unusual about that. P.W.5 learnt about the death of the deceased on 2.5.1998 at about 10.00 p.m. 8. P.W.10 is a local leader of the BJP. He had been to Thozhukkal junction on 2.5.1998 at about 7.00 p.m. and met accused No.4 who informed him about the deceased (who is a BJP activist) destroying the serial lights in front of the Chapel. P.W.10 told accused No.4 that as the BJP had no involvement in that matter, accused No.4 could get damages from the person concerned. While P.W.10 was going along Chembarathivila road he met the deceased, informed the latter about his meeting of accused No.4, advised the deceased to settle the issue and walked away. Later, he learnt about the incident CRL. APPEAL Nos.474, 515 & 1058 of 2005 -: 9 :- and death of the deceased. P.W.10 is also an attester in Ext.P7, the inquest report prepared by P.W.12. The witness identified M.Os.2 to 4, clothes seized from the dead body at the time of inquest. 9. In Ext.P2, wound certificate concerning P.W.1, history and alleged cause of injury stated is “due to a person assaulting with sword (Akkathy) at Thozhukkal junction on 2.5.1998 at 7.20 p.m.”. P.W6, Assistant Surgeon who examined P.W.1 and issued Ext.P2 stated that the incised wounds mentioned in Ext.P2 could be caused with a weapon like M.O.1. P.W.7, Assistant Professor who conducted the postmortem examination on the body of deceased and issued Ext.P3 opined that injury No.1 (incised wound) mentioned in Ext.P3 can be caused with a weapon like M.O.1. Injury Nos.2 to 4 (also incised wounds) can be caused by coming into contact with sharp edged portion of M.O.1. Injury Nos.5 to 7 (abrasions) could be caused while falling on the ground. Injury No.8 is a healing wound, 0.5x0.5 cm on the inner aspect of left wrist of the deceased, covered by yellowish red crust. 10. Exhibit P8 is the mahazar for scene of occurrence prepared by P.W.12. P.W.11 is an attester in Ext.P8 (P.W.11 is the brother of P.Ws.2 and 3). As per Ext.P8, P.W.3 pointed out the place of occurrence to P.W.12. Exhibit P5 is the sketch of the place of CRL. APPEAL Nos.474, 515 & 1058 of 2005 -: 10 :- occurrence prepared by P.W.8, Village Officer. As per Exts.P5 and P8, place of occurrence is the eastern margin of Neyyattinkara- Kattakada road, in front of the closed shop of one Yesudas which is on the southern side of Silpi Sounds belonging to accused No.2 and on the northern side of Beena restaurant belonging to one Moni. P.W.12 found dry blood stains on the road portion about 22.90 metres south of the scene of occurrence. He collected soil stained with blood and not stained with blood from that place. From towards a little south of the place where blood stains were seen, Chembarathivila by-lane goes towards east. Exhibits P5 and P8 show two electric posts towards north and south of the place of occurrence on the western road margin, 16.00 metres and 11.40 metres, respectively away from the place of occurrence. The western side of the road comes within Municipal area while the eastern area comes within Panchayat area. 11. P.W.13, Circle Inspector deposed that he arrested accused Nos.1 and 6 to 8 on 18.5.1998 and on the information given by accused No.1, recovered the same day M.O.1 which was kept in a growth of grass in a paddy field. Exhibit P6 is the mahazar for the recovery. Exhibit P6(a) is the relevant portion of the information allegedly given by accused No.1 and which led to the alleged recovery. P.W.13 seized M.Os.5 and 6 (clothes produced by accused No.1) as per CRL. APPEAL Nos.474, 515 & 1058 of 2005 -: 11 :- Ext.P13. P.W.9 is an attester in Ext.P6 and supported the prosecution. He is an Ex-serviceman and claimed to be residing about 50 metres away from Thozhukkal junction. P.W.9 deposed that he found accused No.1 producing M.O.1 from the above said place before P.W.13. P.W.13 claimed to have arrested accused No.2 on 5.5.1998 and searched his house on 5.5.1998 but weapon could not be recovered. He arrested accused Nos.5 to 8 and searched their houses on 6.5.1998 for weapons but with the same result. M.Os.7 and 8 are the clothes produced by accused No.6 and seized as per Ext.P14. M.Os.9 and 10 are the clothes produced by accused No.7, seized as per Ext.P15. M.Os.11 and 12 are the clothes produced by accused No.8, seized as per Ext.P16. 12. When questioned under Section 313 of the Code of Criminal Procedure (for short, “Cr.P.C.”) accused claimed that the church authorities had hired serial lights from Silpi Sounds (run by the accused No.2) for illuminating the Chapel and other places in connection with the celebration. Accused No.1 is an employee of accused No.2. Deceased belonged to the BJP. Deceased and others destroyed the serial lights. There was a quarrel over that between the deceased and others and the church authorities on 1.5.1998. Deceased sustained injuries on 2.5.1998. Deceased and others had CRL. APPEAL Nos.474, 515 & 1058 of 2005 -: 12 :- altercation with people belonging to the Abkari lobby. Accused claimed that they have nothing to do with the incident. 13. Accused examined C.Ws.4 and 8 as D.Ws.1 and 2, respectively. D.W.1 (C.W.4) is running a furniture shop towards north- west of the scene of occurrence on the western side of the road. D.W.2 (C.W.8) claimed that he was standing in front of the shop of one Bhaskaran Nair at Thozhukkal Junction. According to D.Ws.1 and 2, incident occurred after 7.00 p.m. D.W1 deposed that the deceased and P.W.1 were standing in front of Beena restaurant belonging to Moni. D.W.2 stated that the deceased and P.W.1 were standing in front of Ramakrishna Stores. While so, a person wearing black pant and white shirt went there carrying a knife and assaulted the deceased and P.W.1. The deceased and P.W.1 took to their heels. The assailant chased and assaulted them again with that knife. The deceased collapsed on the road. D.W.2 claimed that the assailant got on to the pillion of a Scooter and escaped. D.W.1 deposed that the assailant ran away along the road. D.W.1 took P.W.1 and the deceased to the hospital. D.W.1 claimed that P.W.1 and the deceased had destroyed the serial lights put up by the church authorities as the board put up by them was removed. D.W.1 claimed that there was load shedding in the Panchayat area (i.e. towards eastern side of the road) between CRL. APPEAL Nos.474, 515 & 1058 of 2005 -: 13 :- 7.00 p.m. and 8.00 p.m. on 2.5.1998. There was current supply in the Municipal area (i.e. on the western side of the road where electric posts are situated). D.W.2 claimed that he saw the incident in the light of burning petromax in the nearby shop. 14. We shall consider the contention that the court charge is defective and vitiated the trial. We have gone through the court charge. The place of occurrence is not mentioned in the court charge. So also, accused No.1 who is alleged to have inflicted injuries on the deceased and P.Ws.1 and 2 is not separately charged with the offences punishable under Secs.324 and 302 of the Code. Instead, accused Nos.1 to 8 are charged together for the offences punishable under Secs.143, 147, 148, 324 and Sec.302 read with Sec.149 of the Code. According to the learned counsel, it is mandatory under Sec.212 Cr.P.C. that place of occurrence is stated in the court charge. It is argued that the omissions are material and vitiated the trial. 15. The purpose of framing charge is to tell the accused as precisely and concisely as possible of the matter with which he is charged. The charge must convey to the accused what the prosecution intends to prove against him and what he is required to defend. As per Sec.212 Cr.P.C., the charge must set out all material CRL. APPEAL Nos.474, 515 & 1058 of 2005 -: 14 :- particulars including as to the time, place and person and the provisions of law that are alleged to be contravened. But it is not as if every error, omission or irregularity in the court charge would vitiate the trial. The Cr.P.C. is a procedural law. Procedural law is designed to facilitate justice and cannot frustrate the ends of justice as held by this Court in Raghava Nadar Reghu v. State (1988(1) KLT 156) and the Apex Court in Kammari Brahmaiah v. Public Prosecutor (AIR 1999 SC 775). 16. Section 215 Cr.P.C. states as under: “Effect of errors:- No error in stating either the offence or the particulars required to be stated in the charge, and no omission to state the offence or those particulars, shall be regarded at any stage of the case as material, unless the accused was in fact misled by such error or omission, and it has occasioned a failure of justice”. Section 464 Cr.P.C. states as under: “Effect of omission to frame, or CRL. APPEAL Nos.474, 515 & 1058 of 2005 -: 15 :- absence of, or error in, charge.- (1) 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. (2) If the Court of appeal, confirmation or revision is of opinion that a failure of justice has in fact been occasioned, it may- (a) in the case of an omission to frame a charge, order that a charge be framed and that the trial be recommenced from the point immediately after the framing of the charge. (b) in the case of an error, omission or irregularity in the charge, direct a new trial to be had upon a charge framed in whatever manner it thinks fit: Provided that if the Court is of opinion that the facts of the case are such that no valid charge could be preferred against the accused in respect of the facts proved, it shall quash the conviction”. CRL. APPEAL Nos.474, 515 & 1058 of 2005 -: 16 :- Section 465 states as under: “Finding or sentence when reversible by reason of error, omission or irregularity:- (1) Subject to the provisions hereinabove contained, no finding sentence or order passed by a Court of competent jurisdiction shall be reversed or altered by a Court of appeal, confirmation or revision on account of any error, omission or irregularity in the complaint, summons, warrant, proclamation, order, judgment or other proceedings before or during trial or in any inquiry or other proceedings under this Code, or any error, or irregularity in any sanction for the prosecution unless in the opinion of that Court, a failure of justice has in fact been occasioned thereby”. Reading Secs.215, 464 and 465 Cr.P.C together, it leaves us in no doubt that an error, omission or irregularity in the charge cannot vitiate the trial nor can the findings of the trial court be reversed for that reason unless the error, omission or irregularity is such that it prejudiced the accused or occasioned a failure of justice. The court has to consider whether the accused was mislead by the error, CRL. APPEAL Nos.474, 515 & 1058 of 2005 -: 17 :- omission or irregularity in the charge and it denied a fair trial to him. The decisions of the Apex Court in Willie (Willaim) Slaney v. State of Madhya Pradesh (AIR 1956 SC 116), Kammari Brahmaiah v. Public Prosecutor (referred supra) and State of Andhra Pradesh v. Thakkidiram Reddy and Others (1998 Crl.L.J. 4035) support that view. 17. In this case, so far as the place of occurrence is concerned, Exts.P5 and P8 (sketch and mahazar for scene of occurrence) copies of which were given to the accused well in advance of commencement of the trial specifically stated where according to the prosecution the incident had occurred. It is with the above information that the accused who were defended by lawyers went to trial. There is no case that the accused were unaware