IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN FRIDAY, THE 10TH JUNE 2011 / 20TH JYAISHTA 1933 CRL.A.No. 20 of 2007() --------------------------------- SC.358/2006 OF ADDITIONAL SESSIONS COURT/ SPECIAL COURT FOR NDPS CASES, THODUPUZHA .................... APPELLANT/3RD ACCUSED ----------------------------------------- UDAYAN, S/O.THANKAPPAN, SREEVILASAM HOUSE, SANYASIODA BHAGAM, BALAGRAM KARA, PAMPADUMPARA VILLAGE. BY ADV. SRI.P.K.RAMKUMAR RESPONDENTS/COMPLAINANT ---------------------------------------------- STATE OF KERALA, REP. BY C.I. OF POLICE, NEDUMKANDAM, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR MR.C.M. NAZAR. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 11/04/2011, ALONG WITH CRA NO. 149 OF 2007 AND CONNECTED CASES, THE COURT ON 10/06/2011 DELIVERED THE FOLLOWING: rs CRL.A.No. 20 of 2007 ORDER ON CRL.MA. NO.47/2007 IN CRA NO.20/2007 DISMISSED 10/06/2011. SD/- PIUS C.KURIAKOSE, JUDGE SD/- N.K.BALAKRISHNAN, JUDGE //TRUE COPY// P.S. TO JUDGE rs PIUS C.KURIAKOSE & N.K.BALAKRISHNAN, JJ. ---------------------------------------------------- Crl.A.Nos.20, 149, 299 & 417 of 2007 ---------------------------------------------------- Dated this the 10th day of June, 2011 Judgment Balakrishnan, J. Crl.A.No.20 of 2007 is the appeal filed by the third accused in Sessions Case No.358 of 2006 of the Additional Sessions Judge, Thodupuzha. Accused Nos.1 and 4 in that case are the appellants in Crl.A.No.149 of 2007. The 5th accused in that case is the appellant in Crl.A.No.299 of 2007. The second accused is the appellant in Crl.A.No.417 of 2007. The appellants were convicted for offences punishable under Sections143, 144, 147, 148 and 302 read with 149 I.P.C and they were sentenced to undergo R.I for three months each for the offence punishable under Section 143 I.P.C, R.I for 6 months each under Section 144 I.P.C, R.I for 6 months each under Section 147 I.P.C, R.I for one year each under Section 148 I.P.C and rigorous imprisonment for life and to pay fine of Rs.10,000/- each in default to undergo simple imprisonment for three months each under Section 302 I.P.C. Besides A5 was convicted for the offence under Section 506 (ii) read with 149 I.P.C also and was sentenced to undergo R.I for Crl.A.20/07 etc. 2 two years. These appeals are directed against the said conviction and sentence as indicated above. 2. Sreekandan Nair, the victim in this case who was a lorry driver was a resident of Thiruvananthapuram District. He was staying in a rented house which belonged to the mother-in-law of the first accused on a monthly rent of Rs.500/-. The said house is situated within the limits of Cumbammettu Police Station in Idukki District. Sreekandan Nair was stated to have defaulted payment of rent. The first accused demanded Sreekandan Nair to vacate the house. He did not heed to it. Thus Sreekandan Nair and accused No.1 were on inimical terms. There was an earlier incident in which A1 was stated to have caused injuries to deceased Sreekandan Nair. There was a counter case also. A1 wanted to get rid of Sreekandan Nair. On 8.7.2004 at about 6.30 P.M., Sreekandan Nair reached the public road at a place called 'Ammavankada' with his lorry for loading mangoes. P.W.1 and others were loading bags of mangoes. While Sreekandan Nair was standing outside the lorry near the driver's seat, all the accused reached there in an autorickshaw. All the accused got Crl.A.20/07 etc. 3 down. The autorickshaw left the place. Thereafter, A1 struck on the head of Sreekandan Nair with the blunt portion of a chopper. Accused Nos.2, 3 and 5 beat with the sticks of coffee plant at several places on the body of Sreekandan Nair. Sreekandan Nair was in fact beaten to pulp by the accused. Accused No.5 attempted to hit Sreekandan Nair with the sword, but the sword happened to strike at the coffee stick of another accused and so no injury with that sword happened to be inflicted on him. Though P.W.1 and C.W.6 tried to intervene, accused No.5 intimidated them by brandishing the sword and since they were put to fear of death, they could not intervene. Thereafter, the accused threw the body of Sreekandan Nair into a pit and left the scene. P.W.1 and C.W.6 thereafter rushed to the shop of one Saly. A few persons reached the place. A jeep was brought to that place in which Sreekandan Nair was at first taken to Arppana hospital and thereafter to the Medical College Hospital, Kottayam. Though P.W.1 and C.W.6 accompanied Sreekandan Nair upto Arppana hospital, they did not go to the Medical College Hospital. Later, Sreekandan Nair succumbed to the multiple Crl.A.20/07 etc. 4 injuries sustained in the incident at the wee hours of 9.7.2004. P.W.1 on getting information went to Cumbumettu Police Station and lodged the First Information Statement at 3.15 A.M on 9.7.2004 based on which P.W.21, the Sub Inspector of Police registered the F.I.R. P.W.22, the Circle Inspector of Police conducted investigation. P.W.23 continued the investigation and laid the charge sheet against the accused. The prosecution alleged that the accused five in number had formed themselves into an unlawful assembly armed with deadly weapons and caused the murder of Sreekandan Nair mentioned above. 3. When charges were framed against the accused, they pleaded not guilty. P.W.1 to P.W.24 were examined and Exts.P1 to P32 were marked. M.O.1 to M.O.18 were also identified and marked. No evidence was adduced on the side of the defence. Ext.D1, the relevant portion of the F.I.Statement was marked as contradiction. 4. After hearing both sides, the learned Sessions Judge, Thodupuzha found the accused/appellants guilty, convicted and sentenced as mentioned earlier. Crl.A.20/07 etc. 5 5. The appellants would contend that the prosecution has suppressed vital evidence in the case and has only cited interested and partisan witnesses to prove the prosecution case. Their evidence is mutually contradictory and is thus unbelievable. Binu, the driver of the autorickshaw in which the five accused persons were stated to have reached the place was not examined by the prosecution. Though one accused was stated to have been carrying a sword and another accused a chopper, no injury was caused with those weapons and as such the court below was not justified in holding that the accused are guilty of the offence under Section 302 I.P.C. There are contradictions regarding the sticks or 'pathal' stated to have been used by the accused for beating the deceased. The evidence regarding the recovery of the dresses alleged to have been worn by the accused at the time of incident is also suspicious. The fact that P.W.1 did not accompany the deceased to Medical College Hospital should have been considered by the court below to hold that Ext.P1-First Information Statement-was not given by P.W.1 at the time mentioned therein. Thus, the appellants contend that the Crl.A.20/07 etc. 6 conviction and sentence passed against them are liable to be set aside. 6. Heard the learned counsel appearing for all the appellants and the learned Public Prosecutor. The following points arise for consideration: 1. What was the cause of death of Sreekandan Nair, the deceased in this case? 2. Whether the prosecution could prove the motive alleged? 3. Whether the accused/appellants formed themselves into an unlawful assembly with the common object of causing the death of Sreekandan Nair? 4. Whether the accused in prosecution of the common object of unlawful assembly, with the intention of causing death or with the intention of causing such bodily injuries likely to cause the death of Sreekandan Nair, inflicted injuries to Sreekandan Nair and caused his death? 5. Whether A5 caused criminal intimidation to P.W.1 and C.W.6 brandishing a sword and put them in fear of instant death? 6. Whether the conviction and sentence passed against the Crl.A.20/07 etc. 7 accused/appellants are unsustainable on any of the grounds urged by them? 7. Deceased Sreekandan Nair was at first seen by P.W.15, the doctor working at Arppana Hospital, Thookkupalam at 7.45 P.M on 8.7.2004. Ext.P14 is the wound certificate issued by him. At the time of examination, the patient was conscious. He had noted certain injuries in Ext.P14. Since there was a detailed examination by P.W.16, the Lecturer and Assistant Police Surgeon of Medical College Hospital, Kottayam, it is not necessary to deal with the injuries noted by P.W.15 in Ext.P14. P.W.16, the doctor who conducted post-mortem on the body of Sreekandan Nair has proved Ext.P15 post-mortem certificate. Including the two surgical wounds, altogether 22 injuries were noted by P.W.16. The following are those ante-mortem injuries noted by P.W.16: 1. Sutured incised wound 8 cm long, muscle deep on the right eyebrow, its inner end 1 cm outer, to the root of nose. 2. Abrasion 1.5 x 1 cm on the outer end of upper eye lid. 3. Abrasion 1.5 x 1 cm on the right side of face 1.5 cm outer to Crl.A.20/07 etc. 8 angle of eye lid. The scalp, skull, dura and brain appeared normal. 4. Contusion 16 x 13 cm muscle deep on the outer aspect of right arm its upper extent 15 below top of shoulder. 5. Closed fracture of lower end of right forearm bones with dislocation at wrist joint. 6. Contusion 9 x 6 cm, muscle deep on the front of right fore-arm 4 cm below elbow. 7. Contusion 8 x 4 cm, muscle deep on the back of left elbow. The upper arm and fore arm bones at the elbow joint were fractured and fragmented. 8. Incised wound 2 x 0.5 cm bone deep on the back of left arm 3.5 cm above elbow. 9. Incised wound 1 x 0.5 cm long, muscle deep on the back of left ring finger 4 cm below its root. 10. Incised penetrating wound 2.5 x 0.5 cm on the left side of front chest entering the chest cavity, at the fourth intercostal space, its front end 17 cm outer to midline and 18 cm below outer end of collarbone (surgical thoracostomy wound). Crl.A.20/07 etc. 9 11. Incised penetrating would 2.5 x 0.5 cm on the right side of front of chest entering chest cavity at the inter costal space its front inner end 18 cm out to midline and 20 cm below out end of collar bone (surgical thoracostomy wound). 12. Contusion 16 x 1.5 cm oblique on the right side of front of abdomen, its upper extent 16 cm outer to midline and 5.5 cm below costal margin. 13. Abrasion 3 x 0.2 cm on the right side of back of chest 4 cm outer to midline and 16 cm below root of neck. 14. Abrasion 3 x 0.5 cm and 5 x 0.5 cm, 4.2 cm apart one below the other on the back of trunk, the lower one 21 cm above the natal cleft. 15. Fracture of 10th and 11th ribs on right side at its back aspect. The back aspect of lower lobe of right lungs showed contusion 4 x 3 x 1 cm. 16. Contusion 15 x 2 cm, muscle deep obliquely placed on the outer aspect of right thigh 13 cm below prominence of hip bone. 17. Contusion 15 x 4 cm oblique on the outer aspect of right thigh 11 cm below above injury No.16. Crl.A.20/07 etc. 10 18. Lacerated wound 4 x 2 cm, bone deep on the front of right leg 9 cm below knee. 19. Lacerated wound 4 x 2 cm, bone deep on the front of right leg 15 cm below knee, through which fragment of tibia bone was seen protruding. The both bones of leg showed comminuted fracture. The muscles and blood vessels were lacerated. 20. Lacerated would 2.5 cm x 1 cm, bone deep 1 cm below the above injury No.19. 21. Lacerated wound 4.5 x 2 cm bone deep on the front of left leg 10 cm below knee. The muscles and soft tissues were crushed. 22. Multiple small abrasion over an area 2.5 x 1 cm on the front of left leg 5.5 below above injury No.21. Injury Nos.10 and 11 are the surgical wounds. It was testified by P.W.16 that the death of Sreekandan Nair was due to multiple injuries sustained. It was further stated by him that injury Nos.1, 8 and 9 could be caused by M.O.1 series, the coffee sticks and the blunt portion of M.O.3 chopper. It was also stated by him that injury Nos.1, 8 and 9, the incised injuries could be caused in the Crl.A.20/07 etc. 11 scuffle when M.O.3 chopper happened to hit the body of the deceased. So many questions were put to P.W.16 by the learned counsel appearing for the accused to suggest that the injuries noted by him in Ext.P15 could not have been caused by beating with the coffee sticks or with the blunt portion of M.O.3 chopper. Similarly, questions were also put as to the possibility of causing three incised injuries found on the body of Sreekandan Nair. 8. It was stated by P.Ws.1 and 3 that A1 had struck on the head of Sreekandan Nair with the blunt portion of M.O.3 chopper. If A1 had struck with blunt portion of the chopper with sufficient force, it could have fatal injuries, but, no such fatal injury could be noted by P.W.16. Except injury No.1, no other injury was found to have been caused on the head or fore head or back of head of the deceased. Injury No.1 was a sutured incised wound 8 cm long, muscle deep on the right eyebrow, its inner end 1 cm outer to the root of nose. It is important to note that five accused persons had attacked an unarmed man and so which portion of the weapon caused the injury and on which portion of the body of the deceased the blows did actually fall Crl.A.20/07 etc. 12 cannot be so precisely stated by the witnesses. It is a case where other three accused persons were also seen beating deceased with coffee sticks on several parts of the body. It was also stated that when deceased fell down and was lying in a prone position, his head was pulled up by his hair and pushed down to the ground several times and then with the blunt portion of M.O.3, blows were given on the back of deceased Sreekandan Nair. According to P.Ws.1 and 2, Sreekandan Nair was actually beaten to pulp by incessantly and indiscriminately beating with the coffee sticks by the accused mentioned above. The number of injuries found on the body of Sreekandan Nair support the evidence given by P.Ws.1 and 2 regarding the same. 9. It is seen that the learned Public Prosecutor did not ask P.W.16 as to which of the injuries was sufficient in the ordinary course of nature to cause the death of the victim. Anyway, that will not come to the rescue of the defence since during the cross examination, it was stated by P.W.16 that injury Nos.15 and 19 were sufficient to cause the death of the victim and that all other injuries were collectively sufficient to cause the death of victim. Crl.A.20/07 etc. 13 Injury No.19 was a lacerated wound through which fragment of tibia bone was seen protruding. Both bones of leg showed comminuted fracture. The muscles and blood vessels were also lacerated. It was contended by the defence that the injuries noted by P.W.16 did not reconcile with the act of causing injuries deposed to by P.Ws.1 and 3 and as such according to the defence, the whole prosecution case is unreliable. There is no such inconsistency in the evidence given by P.W.16 which would run counter to the evidence given by P.Ws.1 and 3. It is pertinent to note that it is a case where one person was attacked by five accused persons. Three of them were using three different types of coffee sticks. A1 used the blunt portion of a chopper. Therefore, court cannot expect that much accuracy or precision as to which all were the injuries caused by each of the accused or by each of the weapons. The injuries noted by P.W.16, in fact, corroborate the evidence given by P.Ws.1 and 3. In the light of the evidence given by P.W.16, it can be undoubtedly found that the death of Sreekandan Nair was due to the multiple injuries he had sustained in the incident as alleged by the prosecution. It is Crl.A.20/07 etc. 14 thus proved to be a case of homicide. 10. It has come out in evidence that deceased Sreekandan Nair was residing in a house as a tenant under the mother-in-law of accused No.1. It was stated that A1 and deceased Sreekandan Nair were on inimical terms since the latter did not agree to vacate the building he was occupying. It has also come out in evidence that there was an earlier incident in respect of which crime No.129 of 2004 was registered by Nedumkandam police against A1 for offence under Section 324 I.P.C where the allegation was that A1 caused injury to deceased Sreekandan Nair. Ext.P18 is the F.I.R. There was a counter case registered as crime No.130/04 of Nedumkandam Police Station against Sreekandan Nair and another for offences under Sections 324 and 341 r/w 34 I.P.C as evidenced by Ext.P19. Exts.P20 and P21 are respectively the charge sheets filed in those two crimes. Since the prosecution relies upon the ocular testimonies of P.Ws.1 to 3 to sustain the conviction, even if the motive alleged by the prosecution is not proved to the hilt, still the prosecution can succeed. The prosecution could prove that there was Crl.A.20/07 etc. 15 sufficient motive for A1 to brutally attack or to cause the death of deceased Sreekandan Nair. 11. The evidence given by P.Ws.1 and 3 would show that when the mini lorry was parked on the road at a place called 'Ammavankada' and while P.W.6 and others were loading mangoes, all the five accused persons reached there in an autorickshaw driven by one Binu. When all the accused got down, the autorickshaw left the place. It was contended by the defence that Binu, the autorickshaw driver was not examined by the prosecution and so it was fatal. That argument is totally devoid of any merit. The evidence would show that the autorickshaw left the scene immediately and there was no case for the prosecution witnesses or even for the defence that Binu, the autorickshaw driver had actually seen the incident. That apart, the evidence given by P.Ws.1 and 3 that the accused reached there in the autorickshaw mentioned above was not effectively challenged so as to affect the credibility of that version. So, there was no necessity to examine Binu, the driver of the autorickshaw. Therefore, the contention to the contrary advanced by the Crl.A.20/07 etc. 16 defence must fall to the ground. 12. The evidence given by P.Ws.1 and 3 would show that after the accused got down from the autorickshaw, A1 at first struck on the head of Sreekandan Nair with the blunt portion of the chopper which was identified by P.Ws.1 and 3 as M.O.3. It was stated that accused Nos.2 to 4 then beat Sreekandan Nair continuously and indiscriminately with coffee sticks which were identified as M.O.1 series. There is also evidence to show that when the deceased fell down and was lying in a prone position, he was beaten indiscriminately on his back causing fracture of ribs. It was stated that A1 inflicted injuries on the deceased with the blunt portion of M.O.3 chopper. The fact that two ribs of Sreekandan Nair were fractured, as noted in Ext.P15 reconciles with the statements of the eye witnesses as mentioned above. It could also be seen that the upper and fore arm bones were also fractured and fragmented due to the blows sustained by Sreekandan Nair at the hands of the accused. There was comminuted fracture of both bones of leg also. The muscles and soft tissues were crushed by the accused. The nature of injuries Crl.A.20/07 etc. 17 noted by P.W.16 would show that the accused had beaten deceased black and blue and mercilessly fractured and fragmented his hands, legs and ribs. 13. The evidence given by P.Ws.1 and 3 was attacked by the defence contending that P.W.1 is the cleaner of the lorry driven by the accused and P.W.3 is an employee of one Saly who was on inimical terms with the accused. The court below has after scanning the evidence properly accepted the evidence given by P.Ws.1 and 3. The slight inconsistencies or variations in their evidence with the statements contained in Ext.P1 or the statements given to the police cannot in any be a reason to hold that P.Ws.1 and 3 did not see the incident. In fact, no material contradiction was marked or proved by the defence. Since five persons attacked the deceased, it will not be possible for the witnesses to observe so meticulosly the sequence of events and retain and reproduce the same in court in the same sequence after about two years of the incident. On a reappraisal of evidence given by P.Ws.1 and 3, we could find no material contradiction so as to hold that their evidence is unworthy of Crl.A.20/07 etc. 18 credence. The fact that P.Ws.1 and 3 were the labourers engaged in loading mangoes is no reason to say that they are interested or partisan witnesses. As the incident took place on the road and near the lorry while they were loading mangoes and since the incident took place in their immediate presence, they are the most natural witnesses to speak about the incident. It was testified by them that they tried to intervene and prevent the accused from further attacking the deceased. But A5 by brandishing M.O.2 sword threatened that they would be done away with if they intervened and so being afraid of the dire consequence, they did not intervene. Therefore, there was no unusual or unnatural conduct on the part of those witnesses to cast any suspicion. 14. P.W.2 when examined in chief stated that he did not see the incident, but when he was cross-examined by the learned Public Prosecutor after seeking permission of the court, admitted that he had given statement to the police with regard to the incident. When P.W.2 was confronted with the statement given by him to the police, he admitted having given such a statement Crl.A.20/07 etc. 19 to the police which is to the effect that he saw the accused inflicting injuries on the deceased. Relevant portion of the 162 statement can be used only to prove the contradiction. When the statement is admitted as true, then there remains no contradiction to be marked. It cannot be used for corroboration. When the witness admitted having given such a statement, there is no contradiction to be marked. Therefore, the contention raised by the defence that the contradictions should have been marked by the prosecution is bereft of any merit. When the witness admitted having given such a statement, there was no necessity of marking the relevant portion of the statement. It is true that the learned Public Prosecutor did not specifically ask whether the facts relating to those statements as deposed by him are true. But when he was cross examined by the learned counsel for the accused, it was specifically stated by him that what was stated by him to the police was the true statement and that it was because he was afraid of the accused he at first deposed in court that he did not see the incident. That would prove that P.W.2 did actually witness the incident. The statement given by P.W.2 fully Crl.A.20/07 etc. 20 corroborates the evidence given by P.Ws.1 and 3. The fact that the witness was declared hostile at the instance of the Public Prosecutor and the witness was allowed to be cross-examined is no justification to reject the entire evidence given by him. It may be true that the court cannot base a conviction relying solely on the evidence given by such a witness but his evidence can certainly be used to corroborate the statements given by P.Ws.1 and 3. A reading of the evidence given