IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 25TH MARCH 2009 / 4TH CHAITHRA 1931 CRL.A.No. 594 of 2005() ----------------------- SC.226/2001 OF ADDL. SESSIONS COURT (ADHOC-II), THODUPUZHA. .................... APPELLANT(S)ACCUSED NOS.1 TO 3: ---------------------------------------------------- 1. DEVASSIA, S/O. SEBASTIAN, KURIATHUVEEDU, CHINNARKARA, KONNATHADI VILLAGE. 2. SATHEESH, S/O. DEVASSIA, KURIATHUVEEDU, CHINNARKARA, KONNATHADI VILLAGE. 3. SIBY, S/O. DEVASSIA, KURIATHUVEEDU, CHINNARKARA, KONNATHADI VILLAGE. BY ADV. SRI.P.VIJAYA BHANU SRI.PRASUN.S RESPONDENT(S)/COMPLAINANT: ----------------------------------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI. JAI GEORGE THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 25/03/2009, THE COUR DELIVERED THE FOLLOWING: A.K. BASHEER & P. BHAVADASAN, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Crl. Appeal No. 594 of 2005 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 25th day of March, 2009. JUDGMENT BHAVADASAN, J, A father and two of his sons, one of whom was a juvenile, were prosecuted for the offences punishable under Sections 450, 302, and 307 read with Section 34 of the Indian Penal Code. All of them were found guilty of all the offences. They were therefore convicted. The first and second accused were sentenced to undergo imprisonment for life and to pay a fine of Rs.10,000/- each, in default of payment of which, each of them had to suffer simple imprisonment for one year for the offence punishable under Section 302 IPC. They were also convicted and sentenced to suffer rigorous imprisonment for a period of four years and to pay a fine of Rs.5000/- each, in default of payment of which, each of them had to undergo simple imprisonment for a further period of five months for the offence punishable under Section 450 IPC. They were also convicted and sentenced to undergo rigorous imprisonment for seven years each, and to pay a fine of Rs.5000/- each, in default of payment of which, each of them had to undergo simple imprisonment for a period of five months for the offence punishable Crl.Appeal No.594/2005. 2 under Section 307 IPC. It was also directed that if the fine amounts were realised, it shall be paid over to P.W.3 as compensation. Since the trial court was not competent to pass sentence against the third accused, he was forwarded to the Juvenile Court as per the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2000. The accused have assailed the conviction and sentence. 2. The incident in this case happened on 22.2.1998. The appellants were neighbours of the deceased and P.W.3. It seems that there was a dispute between the two parties regarding the pathway. The pathway ran through the property of the deceased and P.W.3 and they prevented the use of the pathway by the accused persons. 3. The prosecution allegation is that on the date of the incident, the accused persons, armed with deadly weapons entered the house of deceased Raju and P.W.3 and attacked them. Severe injuries were caused to both the deceased and P.W.3. P.W.1, who is an agriculturist and also neighbour of both the parties, heard a loud noise from the road in front of the house of the deceased and he came out of his house. He then found Raju and his wife being attacked by the accused persons using knife and chopper. He would say that both the deceased as well as the injured, P.W.3, were removed to the hospital. As per the prosecution case by the Crl.Appeal No.594/2005. 3 time Raju and P.W.3, his wife reached the hospital, Raju had breathed his last. P.W.1, who had gone along with the injured to the hospital, laid Ext.P1 First Information Statement. Meanwhile, P.W.11 doctor had examined P.W.3 and issued Ext.P5 wound certificate. P.W.12 doctor also attended to P.W.3. Ext.P1 First Information Statement given by P.W.1 from the hospital was recorded by P.W.14 Head Constable, who was attached to Vellathooval Police Station. On the basis of the said First Information Statement P.W.15, Sub Inspector of Police attached to Vellathooval Police Station registered Crime No.61 of 1998 of Vellathooval Police Station for the offences punishable under Sections 450, 302 and 307 read with Section 34 IPC as per Ext.P8 FIR. P.W.15 reported the incident to his superior officers. Investigation was taken over by P.W.18, who was the Sub Inspector of Police, Adimali. He conducted inquest over the body of late Raju and prepared Ext.P4 inquest report. His body was then sent for autopsy. P.W.17, the Forensic Surgeon conducted autopsy over the body of Raju and prepared Ext.P9 postmortem certificate. Meanwhile, P.W.18 had seized M.Os. 7 and 8 found on the body of deceased Raju while conducting inquest. He also seized M.Os. 11 and 12. He then visited the scene of occurrence and prepared Ext.P3 scene mahazar. He recovered M.Os.1 and 2 M.Os. 13 and 14 from the scene of occurrence. He also seized various other Crl.Appeal No.594/2005. 4 things found at the scene of occurrence. He has questioned P.W.3, who was undergoing treatment in Kolencherry Hospital. He arrested the accused persons and recorded statements of witnesses. The records were verified by his successors-in-office and finally charge was laid by P.W.19. Judicial Magistrate of First Class II, Adimaly took cognizance of the offences. On appearance of the accused before the said court, all legal formalities were complied with. Learned Magistrate found that the case is one exclusively triable by a Court of Sessions and therefore committed the case to Sessions Court, Thodupuzha. Sessions Court, Thodupuzha in turn made over the case to Additional Sessions Judge (Adhoc) II, Thodupuzha for trial and disposal. 4. The latter court issued summons to the accused. They entered appearance. After preliminary hearing, charge was framed for the offences punishable under Sections 450, 302 and 307 read with Section 34 IPC. To the charge, the accused pleaded not guilty and claimed to be tried. Prosecution had P.Ws.1 to 19 examined and Exts.P1 to P17 marked. M.Os. 1 to 20 identified and marked. After the closure of the prosecution evidence the accused were questioned under Section 313 of the Criminal Procedure Code. They had denied all the incriminating circumstances against them and maintained that they were innocent. According to A1, while he was Crl.Appeal No.594/2005. 5 returning after work when he reached before the house of P.W.3, deceased Raju took him inside the house and beat him up. Hearing his cries, according to him, the second accused reached the place and he was stabbed by the deceased. P.W.3, according to A1, had attacked A2 with a chopper. A2 would say that on the date of the incident he heard the cry of his father from the side of the road. When he came there with a torch, he found his father being beaten up by Raju and P.W.3. He would say that when he had tried to prevent further attacks on his father, he was stabbed by the deceased and attacked by P.W.3 with a chopper. He would say that for the injuries suffered by him, he had to undergo inpatient treatment for 68 days. Third accused stated that he had reached the spot hearing the wails of A2. He found his brother lying on the road with injuries. He would claim that when he had gone to the hospital to give blood for his brother, the police nabbed him. The trial court finding that the accused could not be acquitted under Section 232 of Criminal Procedure Code, asked them to enter on defence. The accused examined D.Ws. 1 to 3 and had Exts. D1 to D7 marked. On hearing both sides, the trial court took the view that the acts alleged against the accused persons have been established and that they have committed the offences alleged against them. Conviction and sentence as already mentioned followed. The said conviction and sentence are called Crl.Appeal No.594/2005. 6 in question. 5. The questions that arise for consideration are: 1) Whether the court below has erred in coming to the conclusion that the prosecution has succeeded in establishing the acts attributed to the accused? 2) Whether the lower court has erred in concluding that the prosecution has succeeded in establishing the offences alleged against the accused? 5. Points 1 & 2: That Raju is no more is a fact not in dispute. Ext.P4 inquest report prepared by P.W.10 would show the injury suffered by late Raju. Ext.P9, the postmortem certificate prepared by P.W.13, who conducted autopsy on the body of Raju has given the nature of injuries suffered by him due to the acts committed by the accused. The Doctor has concluded that death was due to injuries caused to the victim. 6. It is also a fact, which cannot be disputed that P.W.3, the wife of deceased Raju, namely, Rani too had suffered injuries in the incident. Some of them were severe ones. Her injuries are disclosed in Ext.P5 wound certificate drawn by P.W.11, who had occasion to examine P.W.3. 7. The court below mainly chose to rely on the evidence of P.Ws. 1 to 3 and P.W.4. P.W.8 had spoken about the incidents anterior to Crl.Appeal No.594/2005. 7 the incident in the tea shop run by P.W.8. 8. The main items of evidence against the accused in the case are the testimony of P.Ws. 1 to 3 and 8, and apart from the medical evidence. 9. P.W.1 is the author of Ext.P1 First Information Statement. He is a neighbour of both the parties. He claims to know about the incident. According to him, the incident happened at about 8.15 p.m. on 22.2.1998. He says that he heard a loud noise from near the house of deceased Raju, and so also commotion from the road nearby. When he came out of his house to find out the reason, he found the wife of the first accused sitting on the road and crying aloud. He enquired about the reason. He was told that her son, namely, the second accused, had been stabbed and had been removed to the hospital. According to this witness, at that point of time the first accused came to the place and he had a chopper in his hand, which contained blood. He says that he heard accused No.1 saying to his wife that their son A2 had only suffered a minor injury and he has settled scores with the deceased and P.W.3. Even though A1 called P.W.1 to come near him, he was frightened because A1 was carrying a chopper. According to this witness soon thereafter the first accused threw away the chopper in the direction of the house of the deceased. The witness asserts that A1 had Crl.Appeal No.594/2005. 8 told him that he had settled the scores with him (thereby intending the deceased). P.W.1 then went to the residence of Raju and P.W.3. He found both of them lying in a pool of blood. P.W.3, namely, Rani was still holding her child. He removed the child from the place and handed over the child to P.W.6. He brought a jeep and had Raju and P.W.3 removed to the Government Hospital, Adimali. When they reached the hospital, on examination the doctor proclaimed Raju dead. Seeing the nature of injuries suffered by P.W.3, the doctor advised them to take her to the hospital at Kolencherry. She was removed to the said hospital. This witness would say that Rani, namely, P.W.3 had several injuries on her body. He deposed that when he asked P.W.3 as to what had happened, she replied that A1 and his two sons tried to kill them. He would also depose that earlier in the day at about 6.30 p.m. the first accused picked up a quarrel with late Raju. P.W.1 claims to have gone to the tea shop of P.W.8 and taken tea. Raju was also there. So was also Savio. When they were chatting, the accused came there. He is stated to have slapped Raju. The owner of the tea shop asked them to leave and not to create trouble in the shop. The witness deposed that A1 left the place abusing deceased Raju. According to this witness, by that time, the wife of A1 had come to the shop and persuaded him to leave the place. Crl.Appeal No.594/2005. 9 10. P.W.2 is a neighbour of the parties. He lives on the eastern side of the house of late Raju. He says that the incident occurred on February 22, 1998. According to him all the three accused had together attacked Raju. He deposed that the incident had occurred in the courtyard of the house of the deceased. The witness claims to have been watching TV at the relevant time. He heard loud abuses from the road. He came out and found that A1 was hurling abuses at Raju standing in the front side of the house of Raju. As it is usual for A1 to do so, P.W.2 claims that he went inside his house. A short while soon after he heard noise from the house of Raju. He claims to have concealed himself in the darkness and watched what was transpiring there. He claims that he found A1 holding a chopper and abusing Raju. All of a sudden the first accused rushed towards Raju and inflicted injuries on Raju. He claims that he had seen A2 and A3 hiding nearby. They too rushed towards Raju and attacked him. The second accused stabbed Raju. Frightened, the witness claims that he went back to his house. When he saw that his wife was coming out of the house, he pushed her inside. He says that he happened to see the attack of the accused on both Raju and Rani. While suffering the injuries, according to this witness, P.W.3 was holding her child. He deposed that A3 had a stick and torch with him and he used it to beat both the deceased as well as Rani. Crl.Appeal No.594/2005. 10 He found the deceased and P.W.3 falling down due to the attack by A1 to A3 and so also P.W.3. Then the accused left the place. 11. P.W.3 is the unfortunate wife of late Raju. The accused and victims were neighbours. The incident is stated to have taken place on 22.2.1998 in front of her house. She claims that at the relevant time she and her husband, with their child were sitting in the sit out of the house and chatting. She claims that at about 7.45 p.m. the first accused came near the house and begun to hurl filthy words at them. He left the place thereafter. To their surprise, P.W.3 says that a short while thereafter A1 returned with a chopper in his hand. Fearing trouble form A1, P.W.3 came there and she tried to take her husband inside the house. By that time, A1 had reached near them and he slashed the chopper at Raju. Raju had warded off with his left hand, but had suffered injuries in the process. According to this witness, that was followed by A2 rushing to the scene and he stabbed Raju on his chest. Then the witness would say that A1 mercilessly attacked Raju with the chopper. By that time, the third accused had also came to the place and all the three had attacked her and Raju. She deposed that she suffered injuries on her face, right breast and both the hands. When her husband ran into the courtyard, the accused followed him and continued their attack on Crl.Appeal No.594/2005. 11 him. Soon thereafter the accused left the place. She found her husband lying in a pool of blood. She fell down unconscious. When she regained her consciousness, she found that she was under treatment in a hospital at Kolencherry. She would say that to the query put to her by someone, as to what had happened, she had replied that the accused had attacked her and her husband. She says that the accused were making use of a way running through their property . That was obstructed by P.W.3 and her husband and they had closed that way. That had annoyed the accused and that was the motive for the incident. 12. P.W.4 claims that he knows both the parties and he is also their neighbour. According to him, about 3 to 4 years ago in the night of a particular day he heard noise from near his house and he came out of his house to find the reason. When he came to the road, he found the mother of A2 sitting there and crying aloud. When he asked for the reason, she replied that her son had been attacked and he had been removed to the hospital. He says that then A1 appeared on the scene with a chopper in his hand and he claims to have heard A1 saying to his wife that he had finished off the other persons. He fetched a jeep and removed P.W.3 and the deceased to the hospital. He too accompanied them to the hospital. He claims that on the way he asked Rani what had happened. She replied that Crl.Appeal No.594/2005. 12 the accused had attacked them and had caused injuries to them. 13. P.W.6 is residing on the western side of the house of late Raju. She would say that Raju died due to the injuries suffered by him at the hands of the accused. When she came to the spot, she found Raju lying in a pool of blood in the court yard of his house. She had gone to the place hearing the cries from the road nearby. She also says that she saw the the mother of A2 sitting there and crying. When she asked for the reason, the mother of A2 replied that her son had been attacked by somebody and had been removed to the hospital. She would claim that the first accused appeared on the scene and told his wife that her son had suffered only minor injuries and that he had settled the scores. She would say that the first accused threw away the chopper and he went to his house. She also confirms that P.W.1 had handed over the child of the unfortunate couple to her. 14. P.W.7 is the driver of the jeep, in which late Raju and P.W.3 were taken to the hospital. P.W.8 was conducting a tea shop at Chinnar city. He knows both the parties. He says that at about 5.30 - 6 p.m. on the date of the incident Raju had come to his shop. At that time, the first accused came there and slapped Raju. This witness says that he asked A1 to go away from the tea shop. After going out, he says that A1 came Crl.Appeal No.594/2005. 13 back and again slapped Raju. P.W.8 claims that he forcibly threw A1out of the shop. 15. Rest of the witnesses are not important as far as the issue on hand is concerned, some are the witnesses to the various mahazars and others are official witnesses. 16. The lower court mainly relied on the evidence of P.Ws. 2 and 3 to come to the conclusion that the acts of accused have been established. It is no doubt true that, support was drawn also from the evidence of P.Ws.1 and 4. Of course medical evidence too was taken aid of. 17. Learned counsel appearing for the appellant pointed out that it is very evident from the materials available, that the prosecution has not come out with the true version of the incident. There is overwhelming evidence to show that the incident had not occurred as alleged by the prosecution. According to the learned counsel, the prosecution has presented a distorted version of the incident with the sole intention of implicating the accused. The evidence reveals that the second accused was badly injured in the incident, and he had to undergo hospitalisation for a long time. Prosecution has given no explanation whatsoever for the injuries suffered by the second accused. The prosecution has a duty to do so. Crl.Appeal No.594/2005. 14 Learned counsel also pointed out the counter case initiated at the instance of the second accused might have been referred by the court, but that is not the end of the matter. The fact remains that the second accused had suffered injuries in the incident and that would be clear from the evidence of P.W.3. Even assuming that the version given by the second accused is not acceptable, that does not relieve the prosecution of the burden of presenting a true picture of the incident. Learned counsel also drew attention of this court to the fact that the evidence of P.Ws.1 and 4 clearly show that they had reached the scene after the incident had occurred. Regarding the evidence of P.W.2, according to the learned counsel, it can be seen that same is highly artificial and is not free from doubt. 18. At best, the prosecution has the evidence of P.W.3 alone to support its case and the learned counsel pointed out that she is an interested and related witness and without sufficient corroboration her evidence cannot be accepted. Learned counsel pointed out that it was the first accused, who was initially attacked by Raju and the incident had thus commenced. Drawing attention of this court to the evidence of P.Ws.1 and 4, learned counsel contended that their evidence reveal that when they came out of their house hearing loud noises, they had seen the mother of second accused sitting on the road and wailing. When asked for the reason, she Crl.Appeal No.594/2005. 15 had replied that her son had been stabbed and had been removed to the hospital. These items of evidence, according to learned counsel, cannot be simply ignored. Stress was laid on the fact that going by the prosecution version, the first accused was carrying a chopper and the second accused a knife. The third accused had a torch and stick with him. It is these weapons which were allegedly used by the accused. However, surprisingly according to learned counsel for the appellants two other weapons, namely a chopper and a knife containing blood stains, were also recovered from the scene of incident. No explanation whatsoever is offered regarding these weapons. This would be clear from the evidence of P.W.15. M.Os. 1 and 2 are the weapons said to have been used by the accused. It remains a mystery as to who had used M.Os.13 and 14 weapons. The failure on the part of the prosecution to explain the above facts, puts the prosecution case on a low profile and shows that the prosecution has not come out with the true version of the incident. The origin, development and culmination of the incident remains a mystery. If that is so, the benefit should go to the accused. 19. Countering the above arguments, learned Public Prosecutor points out that there is no substance in the above contentions. The evidence adduced by the prosecution is clear to the effect that it was Crl.Appeal No.594/2005. 16 the accused who had caused injuries to the deceased and P.W.3. Learned counsel emphasised that the incident had taken place in the courtyard of the house of the deceased and the accused had no business to be there. The evidence of P.Ws.1, 2, 4 and 6 clearly show that the injured Raju and P.W.3 were seen lying in pools of blood in the courtyard of their house. It is thus evident that the accused had gone to the house of the victims and attacked them. Learned Public Prosecutor also referred to the declaration made by the first accused, which is narrated by P.Ws.1and 4 about he having caused injuries to two persons. According to