IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN FRIDAY, THE 7TH MARCH 2008 / 17TH PHALGUNA 1929 CRL.A.No.1253 of 2004 (C) ------------------------------ SC.23/2002 of ADDL. SESSIONS COURT (ADHOC), THODUPUZHA .................... APPELLANT: ACCUSED: --------------------------- SASI, AGED 36, S/O. KOCHUKUNJU, PUTHENPURACKAL HOUSE, KOOMBANPARA KARA, KARUNAPURAM VILLAGE. BY ADV. SRI.C.K.VIDYASAGAR SRI.P.CHANDY JOSEPH RESPONDENT: COMPLAINANT: ----------------------------------- STATE OF KERALA, REPRESENTED BY THE CIRCLE INSPECTOR OF POLICE, KATTAPPANA, THROUGH PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.T.J.AMBOOKAN THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 07/03/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P.BALACHANDRAN, J. ------------------------------------------------ Crl. Appeal No.1253 of 2004 ------------------------------------------------ Dated this the 7th day of March, 2008 JUDGMENT The appellant is the second accused in Crime No.53/95 of Kattappana Police Station registered for offence under Sections 143, 147, 148, 324 and 307 IPC read with Section 149 thereof. After due investigation in the case, final report was laid by the investigating officer before the Judicial First Class Magistrate's Court, Kattappana. After complying with all legal formalities, the learned Magistrate committed the case to the Sessions Division, Thodupuzha vide Committal Proceedings No.3/97 as against all accused except the appellant/second accused as he was absconding. The case against the absconding appellant/second accused was transferred to the register of long pending cases as L.P.19/97. After appearance of the appellant before the Magistrate, the case Crl. Appeal No.1253 of 2004 -2- against him was refiled as Committal Proceedings No.69/01 and vide proceedings therein the case against the appellant/A2 was committed to the Sessions Division, Thodupuzha where the case was registered as S.C.23/02. 2. It is submitted that the trial as against all other accused was over and accused Nos.3 to 6 in the crime were already acquitted and A1 alone is convicted in that case. 3. On appearance of the appellant in the court below, he engaged his own lawyer to defend the case on his behalf. Thereafter, preliminary arguments were heard; charge was framed against the appellant for offence under Sections 143, 147, 148, 307 and 324 IPC read with Section 149 thereof; was read over and explained to him and he was questioned. Thereupon, he generally denied all incriminating circumstances appearing in evidence against him and maintained that he is innocent. Consequently, a trial of the case was Crl. Appeal No.1253 of 2004 -3- conducted by the court below. 4. The charge against the appellant is that on account of previous animosity towards PWs.1 and 2, he along with the accused in Committal Proceedings No.5/96 formed themselves into an unlawful assembly at about 9.15 p.m on 06/02/95 and in prosecution of the common object of the unlawful assembly to cause hurt and to commit murder of PWs.1 and 2, they committed rioting armed with leathal weapons such as Malappuram knife, iron bar etc. and at the road margin of Kuttikanam-Kattappana road in front of stationery shop of Thampi of Pulikkodu veedu, in Door No.500 of Ward No.1 of Kattappana Panchayath, the first accused with a Malappuram knife stabbed on the right side rib portion of PW2 causing grievous hurt to him and when PW1 intervened A1 with the same knife stabbed him at the portion adjacent to his umbilicus; that the first accused thereupon, made utterance to do away with them Crl. Appeal No.1253 of 2004 -4- and the appellant/A2 with a Malappuram knife stabbed on the ribs of PW1 and thereby the appellant along with the other accused in C.P.5/96 aforesaid rendered himself liable to punishment for offence under Sections 143, 147, 148, 324 and 307 IPC read with Section 149 thereof. 5. To bring home the guilt in the appellant/accused prosecution examined PWs.1 to 16; got marked Exts.P1 to P14 and got identified MOs.1 and 2. On the prosecution closing their evidence, the appellant was questioned by the court below under Section 313 Cr.P.C. Thereupon, he generally denied all incriminating circumstances appearing in evidence against him and maintained that he is innocent. According to him, he had not accompanied A1 Jose and he does not know Jose and that there is no other case against him within the territorial limits of Kattappana Police Station. However, he did not adduce any Crl. Appeal No.1253 of 2004 -5- evidence in defence. 6. The court below considered the case in the light of the evidence adduced as aforesaid; found that the appellant has committed offence punishable under Sections 143, 147, 148, 324 and 307 IPC read with Section 149 thereof; convicted him thereunder; heard him on the question of sentence and sentenced him to undergo rigorous imprisonment for a term of two years under Section 148 IPC; to rigorous imprisonment for a term of five years and to pay a fine of Rs.5,000/- and in default to undergo simple imprisonment for a further term of three months for offence under Section 307 IPC with benefit of concurrency and right of set off and with no separate sentence awarded for offence under Sections 143, 147 and 324 IPC. It is aggrieved by the said conviction and sentence so passed, that the second accused has preferred this appeal. Crl. Appeal No.1253 of 2004 -6- 7. Heard arguments of counsel for the appellant and the Public Prosecutor. 8. It is vehemently contended before me by the learned counsel for the appellant that there is no convincing evidence in the case adduced by the prosecution to bring home the guilt in the appellant and that the conviction entered into by the court below as against the appellant is not based on legal evidence; and that the appellant deserves acquittal at least on benefit of doubt. He has taken me through the entire evidence in the case to canvass for the contention so advanced. 9. PWs.1 to 4 are the occurrence witnesses in the case. PW1 has proved Ext.P1 as the attested copy of the F.I.statement given by him at the St.Johns Hospital, Kattappana where he was under treatment as an inpatient pursuant to the injury sustained by him in the occurrence. He has stated that he knows the appellant and that the occurrence Crl. Appeal No.1253 of 2004 -7- occurred at about 9.15 p.m. on 06/02/95 in front of the shop of Thampi. According to him, about an year back, he was President of the High Range Independent Motor Workers Association; that on the date of the occurrence, he came over to the front side of the stationery shop of Thampi on his motor bike bearing registration No.KL6-1770 from Ashoka Junction with PW2 as pillion rider; that the motor bike was stopped there for them to go over to the Union office and then, the appellant and five other accused came towards them and asking as to whether complaint would be sent against them, A1 forcibly drew PW2/ Babu from the pillion seat of his motor bike holding by the color of his shirt and stabbed him with a Malappuram knife; that when he got down from the motor bike and intervened, A1 stabbed him also with the said Malappuram knife and he sustained injury near his umbilicus; that A1 thereupon, exhorted the Crl. Appeal No.1253 of 2004 -8- appellant to do away with him and then the appellant stabbed him on his right side and Avarachan took him and PW2 in his car to the hospital. According to PW1, A1 Jose; the appellant and others had trespassed into the Union office and caused trouble there and in connection with that, complaint had been sent to the Chief Minister and it is on account of that animosity that A1 along with the other accused has inflicted injuries on PW1 and on himself. 10. It is contended by the counsel for the appellant that there is no identification made of the appellant in the course of investigation and no test identification parade is also conducted and therefore, identification of the appellant both by PW1 and PW2 is improper. 11. It is worthy to note that the appellant was an absconding accused and he had taken anticipatory bail and thereafter only, Crl. Appeal No.1253 of 2004 -9- he surrendered before court and he was not available at the stage of investigation in the case. Having absconded, it does not lie in the mouth of the appellant to contend that no test identification parade is conducted. However, it has been brought out in cross examination that PW1 knows the appellant even before the occurrence and had seen him; that the appellant was also present along with A1 to create trouble in the Union office and that he has seen the appellant in court as also outside several times even after the occurrence. Nothing has been brought out in cross examination of PW1 to disbelieve his testimony. 12. PW2 has corroborated the testimony of PW1 on all material aspects. According to him, the genesis of the occurrence was by A1 Jose catching hold of the handle of the motor bike of PW1 on which he was pillion rider. According to him, A1 forcibly drew him from Crl. Appeal No.1253 of 2004 -10- the pillion seat of the motor bike and stabbed him on his abdomen and then PW1 interfered and A1 thereupon, stabbed him also and exhorted the appellant to do away with them and thereupon, the appellant stabbed PW1 and Avarachan who came there in car took them to the hospital. According to PW2, he was not aware of the name of the appellant but he knows the appellant as he was always seen in company of A1/Jose. Both PWs.1 and 2 had deposed that there was light at the scene of occurrence and that is not assailed in cross examination. According to PW2, he was only a member of the Union then. He further, stated that after the incident also, he has seen the appellant at Kattappana though he does not know his residence. PW2 has also denied the suggestion that he was giving evidence against the appellant on mistaken identity and has emphatically denied the suggestion that the appellant was not involved in the incident. Crl. Appeal No.1253 of 2004 -11- Nothing has been brought out in cross examination of PW2 as well to render his testimony unreliable or to show that he is giving false evidence. 13. The evidence tendered by PWs.1 and 2 is corroborated also by PW3 an occurrence witness. He has also deposed to the infliction of injuries by A1 on PW1 and PW2 and of the appellant having inflicted injury on PW1. According to PW3, all the assailants took to their heels in the same direction. PW3 also knows the appellant he having seen the appellant in Kattappana town though he has got no acquaintance with him. 14. PW4 is a taxi driver and it was in his car that the injured were taken to the hospital. He has also deposed that along with A1, there were five others also among the assailants though he is not able to say as to whether the appellant was also among them. Crl. Appeal No.1253 of 2004 -12- 15. PW5 has proved Ext.P2 as the copy of complaint given by him before the D.G.P. Against A1. PW8 has proved Ext.P5 mahazar prepared in relation to the register maintained at Kavitha lodge which would show that A1 Jose was residing in the said lodge at the relevant time. He is also attestor to Ext.P6 mahazar whereunder Ext.P3 bill of Seenai Hotel is taken into banthavasth. Ext.P3 bill is in relation to the food consumed by A1 and others from Seenai Hotel, Kattappana. PW9 and PW10 have respectively identified MO1 and MO2 shirts as the shirts that were worn respectively by PW1 and PW2 which were produced before the police by them in the course of investigation in the case. PW7 is the attestor to Ext.P4 mahazar of the scene of occurrence. PW11 has proved Exts.P7 and P8 mahazars whereunder MO1 and MO2 shirts were taken into banthavasth by the police he having been attestor both in Exts.P7 and P8. PW13 is Crl. Appeal No.1253 of 2004 -13- the village officer who has prepared Ext.P2 plan of the scene of occurrence. PW14 is the head constable who registered the crime drawing up Ext.P11 FIR on the basis of the F.I.statement given by PW1 and PW15 is the investigating officer in the case. 16. PW16 is the Doctor who has recorded Ext.P13 wound certificate in relation to PW2 and Ext.P14 wound certificate in relation to PW1 at the St.Johns Hospital, Kattappana where PWs.1 and 2 were taken for treatment after sustaining the injury. According to PW16, the injury sustained to PW2 which has caused internal injury as well is an injury which is sufficient in the ordinary course of nature to cause death and injury numbers 1 and 2 caused to PW1 which also has resulted in infliction of injuries to the internal organs are injuries which are sufficient separately and independently to cause death in the ordinary course of nature. Absolutely nothing is Crl. Appeal No.1253 of 2004 -14- brought out in cross examination of PW16 to show that the injuries inflicted were not sufficient in the ordinary course of nature to cause death. 17. Thus, on the evidence of PWs.1 to 3 and PW4, the occurrence alleged by the prosecution stands established and the injuries inflicted are also evidenced on the testimony of PW16 the Doctor as being injuries sufficient in the ordinary course of nature to cause death. 18. It is vehemently contended before me by the counsel for the appellant that the appellant is not a person who is residing in that locality and that the witnesses might have mistook him as they had found the appellant in company of A1 earlier. I am unable to agree with the arguments so advanced. The argument is advanced for the reason that in the F.I.statement, PW1 had given the name of only A1 and five others who Crl. Appeal No.1253 of 2004 -15- could be identified at sight. That is no ground to hold that the appellant was a person who could be identified only at sight and that for want of test identification parade, the identification of the appellant is not liable to be accepted as proper. It has to be remembered that both PWs.1 and 2 are injured in the case and they are aware of the persons who inflicted injuries on them. There is absolutely no reason for them to implicate the appellant in the commission of the crime if at all he was not the one who inflicted injuries along with A1 on the body of PW1, giving room for the real culprit to escape. There is also no animosity shown to exist for PWs.1 and 2 against the appellant so as to implicate him in his grave crime if at all he was not the one who accompanied A1 and inflicted injuries along with A1 on the body of PW1. Thus, the evidence in the case established beyond reasonable doubts that the appellant inflicted Crl. Appeal No.1253 of 2004 -16- injuries on the body of PW1; that the injury was being so inflicted in an attempt to commit murder of PW1 and that the injuries inflicted on the body of PW1 were sufficient in the ordinary course of nature to cause death. In the circumstances, the appellant is guilty of offence punishable under Sections 143, 147, 148, 324 and 307 IPC read with Section 149 thereof as has been held rightly by the court below. The conviction of the appellant for those offences in the circumstances, has only to be confirmed. 19. It is finally contended before me by the counsel for the appellant that the sentence awarded to the appellant is excessive and that therefore, reduction be granted in the sentence of imprisonment awarded to the appellant. Considering the nature of injuries inflicted on PW1 which PW16 has testified, are injuries sufficient in the ordinary course of nature to cause death and having found that Crl. Appeal No.1253 of 2004 -17- the attempt was to commit murder of PW1 and PW2, I am not of the view that any leniency deserves to be extended to the appellant. The request to grant leniency by reducing the term of imprisonment is hence turned down. The result is that the appeal is devoid of merit and is only to be dismissed. 20. In the result, I dismiss this Criminal Appeal. K.P.BALACHANDRAN, JUDGE kns/-