IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.BHAVADASAN SATURDAY, THE 23RD MAY 2009 / 2ND JYAISHTA 1931 CRL.A.No. 688 of 2005() ----------------------- SC.37/2002 of II ADDL. SESSIONS COURT, TRIVANDRUM .................... APPELLANT(S)/ACCUSED: ------------------------------------ 1. SREE KUMAR @ THAMPI, AGED 30, S/O.SAHDEVAN PANICKER, VAISHNAVAM HOUSE, PACHALLOOR, IRA PACHALLOOR DESOM, THIRUVALLAM VILLAGE. 2. SAHADEVA PANICKER, AGED 55, S/O.NEELAKANTAPANICKER, VISHNAVAM HOUSE, PACHALLOOR , IRA PACHALLOOR DESOM, THIRUVALLAM VILLAGE. 3. ANIL KUMAR @ ANI, AGED 29, S/O.SAHADEVA PANICKER, VAISHNAVAM HOUSE, IRA, PACHALLOOR, THIRUVALLAM DESOM, THIRUVALLAM VILLAGE. BY ADV. SRI.B.RAMAN PILLAI SRI.R.ANIL SRI.RAJU RADHAKRISHNAN SRI.ANIL K.MOHAMMED SRI.P.VIJAYA BHANU SRI.P.M.RAFIQ RESPONDENT(S)/COMPLAINANT: ----------------------------------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI. S.U. NAZAR. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 3.4.2009, THE COURT ON 23.5.2009 DELIVERED THE FOLLOWING: A.K. BASHEER & P. BHAVADASAN, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Crl. Appeal No. 688 of 2005 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 23rd day of May, 2009. JUDGMENT Bhavadasan, J. What started as an innocuous rebuke, snow balled into a feud, resulting in the death of a merchant and landing three other persons, father and two sons, the male members of a family, being put on trial for the offences punishable under Sections 342, 324 and 302 read with Section 34 of Indian Penal Code. They were found guilty of all the offences. They were therefore convicted and sentenced to suffer imprisonment for life and pay fine of Rs.50,000/- each, in default of payment of which, to suffer rigorous imprisonment for a further period of two years for the offence punishable under Section 302 read with Section 34 IPC. They were also sentenced to suffer rigorous imprisonment for six months for the offence punishable under Section 342 read with Section 34 IPC. No separate sentence was awarded for the offence punishable under Section 324 IPC. The substantive sentences were directed to run concurrently. It was also directed that if the fine amounts were realised, the entire amount shall be given to the Crl.Appeal.688/2005. 2 widow and daughter of the deceased in equal proport8ion under Section 357 (1)(b) of Criminal Procedure Code. 2. The deceased, namely, Mohanan, and the accused were merchants carrying on business in Peroorkada market at Trivandrum. Late Mohanan was engaged in the business of plantains and bananas. The first accused, namely, Sreekumar, was new in that field and he had started his business in plantain and banana about two months ago. On the date of the incident, A1 was seen selling plantains and bananas at a reduced price than the other merchants in the market. This annoyed deceased Mohanan and he questioned the conduct. Exchange of words followed and finally both were infuriated. The prosecution allegation is that the second accused, who is the father of first and third accused beat Mohanan with an iron rod. By that time, the third accused had also arrived at the spot. The second accused is alleged to have beaten the deceased on the left shoulder with the iron rod. Late Mohanan fell down. When he tried to get up, his hands were held by second and third accused and the first accused is alleged to have stabbed Mohanan with M.O.1 knife. The brother of the deceased, namely, Suku came to the aid of the deceased. Two other persons, who were carrying on business in the market, namely, Sasi and Asokan removed the injured to the Crl.Appeal.688/2005. 3 hospital in an autorickshaw. P.W.1 and another person by name Salim went to the Medical College Hospital. When they reached the place, they found that Mohanan was no more. The allegation is that there was a quarrel between the deceased and the first accused regarding the sale of bananas and plantains in the market. P.W.1 laid Ext.P1 first information statement before Peroorkada Police Station. C.W.19 recorded the first information statement furnished by P.W.1 and registered Crime No.100 of 1998 of Peroorkada Police Station for the offences punishable under Sections 342, 324 and 302 read with Section 34 IPC as per Ext.P1(a) FIR. P.W.10, the Circle Inspector of Police took over investigation on 7.5.1998. He went to the medical college hospital and conducted inquest over the body of late Mohanan and prepared Ext.P2 inquest report. Thereafter the body was sent for postmortem. P.W.9, the then Lecturer in Forensic Medicine and Assistant Police Surgeon, Medical College Hospital, Thiruvananthapuram conducted autopsy on the body of Mohanan and prepared Ext.P7 postmortem report. Meanwhile P.W.10 inspected the place of occurrence and prepared Ext.P4 scene mahazar. He seized M.Os. 1 to 6 from the place. He claims to have arrested the accused on 7.5.1998 at 4 p.m. According to him, on the basis of Ext.P5 confession statement said to have been given by Crl.Appeal.688/2005. 4 the first accused, M.O.1 knife was recovered as per Ext.P5 mahazar. He also claims that on the basis of Ext.P6(a) confession statement said to have been given by the second accused, M.O.2 iron rod was recovered as per Ext.P6 recovery mahazar. He filed Ext.P9 report showing the details of the accused. He had the articles seized during investigation sent for forensic examination and obtained Ext.P10 report. He recorded statements of witnesses. Investigation was completed by P.W.8 and final report was filed by him. 3. Judicial First Class Magistrate II, Thiruvananthapuram, before whom, the final report was laid, took cognizance of the offences. On appearance of the accused before the said court, all legal formalities were completed. Learned Magistrate found that the offence was one exclusively triable by a Sessions Court and therefore committed the case to Sessions Court, Thiruvananthapuram under Section 209 Criminal Procedure Code. The Sessions Court made over the case to the II Additional Sessions Court, Thiruvananthapuram for trial and disposal. On appearance of the accused before the said court, after preliminary hearing charge was framed for the offences punishable under Sections 342, 324 and 302 read with Section 34 IPC. When charge was read out to them, the accused pleaded not guilty and Crl.Appeal.688/2005. 5 claimed to be tried. The prosecution therefore had P.Ws. 1 to 10 examined and Exts.P1 to P10 marked. M.Os. 1 to 7 were also got identified and marked. After the closure of the prosecution evidence, the accused were questioned under Section 313 Cr.P.C.. 4. The first accused had stated that he had commenced his business in plantains and bananas about a month prior to the date of the incident. According to him, that was not to the liking of other merchants, who were dealing in the same commodity. He would state that on the date of the incident in the evening a few people, to whom the deceased owed money came to his shop and created problems. At that time, he was selling the commodity at a lower price. That was questioned by the deceased. A1 told the deceased that he would take care of his affairs. That, according to the first accused, annoyed Mohanan, who snatched the knife and slashed it at the first accused. According to the first accused, at that time somebody beat Mohanan and the knife fell from his hand. By that time, electric supply had gone. There was a commotion involving several persons. He would claim that by about 7.30 p.m. on the date of the incident he was called to the police station by the Circle Inspector. Next day he was produced before court. A1 claims that only at that point of time he came to know that he had Crl.Appeal.688/2005. 6 been arrayed as an accused. He says that he had not committed any act, which would constitute an offence and that he is innocent. 5. Second accused said that he was asked to go to the police station on the date of the incident and all the three of them were detained in the station. He claims to be innocent. 6. Accused No.3, in his turn submitted that he too was asked to go to the station and he went there. Later he came to know that he was arrayed as an accused. He too would claim to be innocent. 7. Finding that the accused could not be acquitted under Section 232 Cr.P.C., they were asked to enter on defence by the trial court. They chose to adduce no evidence. On a careful appreciation of the evidence in the case, the court below came to the conclusion that the prosecution had succeeded in establishing the acts alleged to have been committed by the accused and held them guilty of all the offences. Conviction and sentence as already mentioned followed. The said conviction and sentence are assailed in this appeal. Crl.Appeal.688/2005. 7 8. Two main questions arose for consideration in this appeal. They are: (1) Whether the prosecution has succeeded in establishing the acts attributed to the accused? (2) What if any are the offences committed by the accused? 9. Point No.1 : The unfortunate incident occurred on 6.5.1998 at about 7 p.m. at Peroorkada, Thiruvananthapuram. The deceased as well as accused Nos.1 to 3 were business men carrying on business in the same market. The third accused was helping the second accused in the shop run by the second accused. About a month or two before the date of the incident, the first accused had commenced business in plantains and bananas in a shop situate on the opposite side of the shop owned by late Mohanan. It is alleged that the first accused used to sell plantain and bananas at a lower price, thereby affecting the business of other merchants in the market dealing in plantain and banana. They took objection to the conduct of the first accused. On the date of the incident, it is stated that Mohanan took objection to the conduct of the first accused selling banana at a lower price than other merchants in the market. There was exchange of words between the two and the prosecution would allege that after the Crl.Appeal.688/2005. 8 attack by A2 and A3, late Mohanan was stabbed by the first accused. 10. The fact that Mohanan's death was homicidal and was caused as a result of knife injury are facts which are not in dispute at all. P.W.10 had conducted inquest and prepared Ext.P2 inquest report. P.W.9 P.W.9 had conducted autopsy on the body of late Mohanan and prepared Ext.P7 report. Ext.P7 report shows the anti mortem injuries found on the body of late Mohanan. Injury No.1 causes the death of Mohanan. 11. P.W.1 was working with Mohanan in his shop. He says that the incident had occurred on 6.5.1998 at about 7 p.m. The incident, according to him had took place inside the market. On the date of the incident at the relevant time he would depose that the first accused was selling bananas and plantain at a lower price than the other merchants in the market. The deceased is stated to have asked the first accused that if he is selling for a lower price, he would have to do it every day. This, according to P.W.1, invoked abuses from the first accused. According to this witness, when the first accused showered abuses and also referred to the mother of Mohanan, the latter took objection to the said conduct. At that time, according to this witness, the second accused, who is the father of first accused is said to have beaten the deceased on the left shoulder with M.O.2 Crl.Appeal.688/2005. 9 iron rod. Receiving the blow Mohanan fell on his back. When he got up, he was again beaten by the second accused. He again fell down. When he got up, second and third accused are said to have caught hold of both his hands. Even though Mohanan tried to extricate from the hold of A2 and A3, he was unsuccessful in his attempt. At that time, the first accused came with a knife from his shop and stabbed the deceased twice. When P.W.1 got out of the shop, he claims, that, the accused ran away. The incident according to him occurred on the side of the shop run by the deceased. By that time, the brother of the deceased, namely, Suku, arrived at the spot and the injured was removed to Medical College Hospital at Thiruvananthapuram. When the injured reached the hospital, he was pronounced dead. This witness would depose that previously also there had been quarrels between the two regarding the matter. This witness would also say that A2 also runs business in the same market. He identified M.O.1 as the knife used by A1 and M.O.2 as the iron rod used by the second accused. He says that he had gone to Peroorkada Police Station and furnished Ext.P1 first information statement. 12. P.W.2 is another merchant running business in vegetables and fruits in the same market. He says that Mohanan and the accused are Crl.Appeal.688/2005. 10 familiar to him. The incident had occurred on 6.5.1998 by about 7 p.m.. P.W.2 at the relevant time was attending to the business in his shop. Then he claims to have heard a commotion from the rear side of the shop. He went to the place. He then found A2 and A3 holding the hands of the deceased. He further deposed that he saw the first accused coming with a knife and stabbing late Mohanan. He would also depose that at the relevant time A2 had an iron rod with him. By that time Suku, the brother of the deceased had arrived at the spot. P.W.2 claims that he, with the aid of Suku took the injured to the main gate of the market. Thereafter, he along with one Asokan claims to have removed the injured to the hospital. On reaching the Medical College Hospital, doctor had examined Mohanan, and found him dead. He would also depose that the reason for the incident was the quarrel between the deceased and the first accused regarding the price at which plantains and bananas were being sold by the first accused. He too identified M.Os. 1 and 2. 13. P.W.3 runs business in chips in the same market. He too would depose that the incident had occurred on 6.5.1998 by about 7 p.m. inside the market. He used to purchase banana and plantain for his business from one Gopan. On the date of the incident, he was returning after giving Crl.Appeal.688/2005. 11 money due to Gopan. He heard the first accused hurling abuses at the deceased. There was exchange of words between them. He says that at that time he saw the second accused coming to the place with an iron rod. He would depose that the second accused had beaten the deceased on his left shoulder. He was again beaten with an iron rod. Receiving the blows, according to this witness, Mohanan fell down. This witness would also depose that Mohanan tried to get up and run away from the place. At that time he had occasion to see A2 and A3 holding the hands of Mohanan. According to this witness, he had seen Sreekumar, the first accused, stabbing Mohanan with M.O.1 knife. He was taken to the hospital by Sasi and Suku. 14. The other witnesses are not much importance in this case. The lower court chose to believe the oral evidence adduced by P.Ws.1 to 3. The court below had also found corroboration of their testimony from other evidences in the case. 15. Learned counsel appearing for the appellants pointed out that the court below has not critically analyzed the evidence and had acted mechanically. According to the learned counsel, P.W.1 was an employee of the deceased. P.Ws. 2 and 3 are untrustworthy. Learned counsel pointed Crl.Appeal.688/2005. 12 out that it is clear from the records that several other persons were available at the place of the incident, who, are impartial, but they had not been examined. Learned counsel pointed out that a close scrutiny of the evidence will show that the incident had occurred not in the manner alleged by the prosecution and a distorted version had been given before the court. Learned counsel also pointed out that if one properly appreciates the evidence in the case, it can be found that a lot of things have been concealed. It is also pointed out that going by the evidence adduced by the prosecution, it is not possible to come to the conclusion that even assuming that late Mohanan was stabbed by the first accused, the first accused had done the said act in furtherance of the common intention shared by the accused. Learned counsel emphasized that even going by the evidence, the incident had occurred on the spur of a moment and therefore question of applying Section 34 IPC does not arise. At worst, according to the learned counsel, each of the accused would be liable for his individual acts. 16. Learned Public Prosecutor on the other hand contended that the evidence is clear regarding the acts committed by the accused persons. Learned Public Prosecutor pointed out that the court below has critically analyzed the evidence in the case and had come to the right Crl.Appeal.688/2005. 13 conclusion. Merely because some of the witnesses have not been examined is not a ground, according to the learned Public Prosecutor to reject the prosecution case. He pointed out that the defence was unable to show that they were prejudiced by the non-examination of any of the witnesses cited by the prosecution. 17. The fact that the incident had occurred in a market was highlighted by the Public Prosecutor and stressed that all the aspects have been considered by the lower court. According to him, there are no grounds to interfere with the conviction and sentence passed by the court below. 18. As could be noticed, the prosecution relies on the evidence of P.Ws.1 to 3 to prove the incident. P.W.1 is an employee of the deceased. He gives a version of the incident, which gets support from the evidence of P.W.3 also. As far as P.W.2 is concerned, a reading of his entire evidence would create some doubt regarding his testimony. It is true that in the chief examination he speaks about the incident in consonance with the version given by P.Ws.1 and 3. But, in cross examination his attention was drawn to the previous statement. He denied having given the statement marked as Exts.D1 to D4 to the investigating officer. Going by Exts.D1 to D4, it could be seen that he has only hearsay knowledge about the incident. There is no Crl.Appeal.688/2005. 14 reason as to why the investigating officer should have recorded the statements such as Exts.D1 to D4, if actually they were not given by P.W.2. Moreover a reading of the evidence of P.W.2 would also show that he was anxious and enthusiastic to depose against the accused. An evaluation of his evidence would show that his presence at the spot at the time of the incident is doubtful. Going by his previous statement it would appear that he had come to the spot after the incident and had learnt the details of the incident from others. 19. Even assuming that the court could not depend upon the evidence of P.W.2, the evidence of P.Ws. 1 and 3 stand on a different footing. No special reasons are given as to why they should falsely implicate A1 to A3. It is true that going by the evidence of P.Ws.1 to 3 it could be seen that the first accused was a novice in the business of bananas and plantains. Even though the defence case is that the act of the first accused annoyed the other business men in bananas and plantains in the market does not appear to be very correct. Of course, there is evidence to show that there used to be exchange of words between the deceased and the first accused. The father of the first and third accused, namely the second accused, was also conducting a business in the same market. That was Crl.Appeal.688/2005. 15 slightly away from the place of occurrence. As per the evidence, A3 was helping A2 in his business. From the evidence it could be seen that there were a few other persons who had been doing business as the one being carried on by the first accused and the deceased. 20. There can be no doubt regarding the place of occurrence. The place of occurrence is spoken to by P.Ws. 1 to 3. Ext.P4 is the scene mahazar and Ext.P3 is the plan prepared by the Village Officer. It is true that all the shops in the market have not been shown in Ext.P3. However, from both Exts.P3 and P4 it could be seen that the shop of the first accused is situated on the opposite side of the shop of the deceased. To be exact on the northern side of the shop of A1, separated by a passage in between. According to P.W.1, the shop of the first accused is situated about ten feet from the shop owned by the deceased. It is significant to notice that both the shops of A1 as well as that of the deceased have access from three sides. The incident, according to the witnesses, occurred on the southern side of the shop owned by the deceased. P.W.1 has stated that the incident occurred behind the shop of the deceased. The shop of the deceased and the first accused is separated by a pathway, which has a width of six feet. The scene of incident is marked as I in Ext.P3 plan. The investigating officer Crl.Appeal.688/2005. 16 was able to spot blood stains at the place of occurrence. The lower court in its judgment has observed that no argument was in fact advanced by the defence highlighting any significant aspect, which would show that the place of incident is not as shown in Exts.P3 and P4 and as spoken to by the witnesses and investigating officers. 21. According to the defence, the evidence of P.W.1 is open to serious doubt. It has come out in evidence that he is related to the deceased and he is also an employee of the deceased. According to the learned counsel for the appellant, if as a matter of fact P.W.1 was present at the place at the time of the incident, it is inconceivable that he would have remained passive seeing the attack on his employer. If in fact he was present, he would have certainly run to the aid of the deceased. His passive attitude is quite an unnatural conduct and it will not therefore be proper to rely on his evidence. 22. Though the argument taken by the defence may look attractive at the first blush, on a close scrutiny of the evidence, it can be found to be without basis. The evidence of P.Ws. 1, 2 and 3 are clear to the effect that the incident had taken place at the spur of the moment. Nobody had anticipated that such an incident would happen. On a reading of the Crl.Appeal.688/2005. 17 evidence it could be seen that it was usual in the market to hurl abuses and use foul language at each other on various occasions. Everybody took the rebuke by the deceased on the date of the incident in the same manner as was done before. None had the expectation that it would soon turn into an incident as alleged by the prosecution. The evidence is also to the effect that soon after the incident took place, the brother of the deceased reached the place. At the risk of repetition one may notice that even before P.W.1 could respond the incident had occurred. It