IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN WEDNESDAY, THE 30TH SEPTEMBER, 2009/8TH ASWINA 1931. CRL.A.No. 658 of 2005() ----------------------- SC.467/2001 of ADDL. SESSIONS COURT, THRISSUR .................... APPELLANT(S): ACCUSED NOS.3,5,7,9 & 11:- ------------------------------------------------------------- 1. CHINCHU @ CHANDRAKUMAR, AGED 28 YEARS, S/O. MUNDANVEETTIL VELAYUDHAN, NAMBIKADAVU DESOM, THALIKULAM VILLAGE. 2. GIREESH AGED 23, S/O. NEDUMPARAMBIL KUMARAN, NAMBIKADAVU DESOM, THALIKULAM VILLAGE. 3. SAJEEV AGED 23, S/O. NAMBARAMBATH BHASKARAN, NAMBIKADAVU DESOM, THALIKULAM VILLAGE. 4. SAJEEVAN @ RAJEEVAN, AGED 20 S/O. NAMBIKARIATTUVEETTIL MADHAVAN, NAMBIKADAVU DESOM, THALIKULAM VILLAGE. 5. RAJU @ MISSILE RAJU, AGED 25 S/O. NAMBIPPARICHU VEETTIL SUKUMARAN, PALLAM DESOM, NATTIKA VILLAGE. BY ADV. SRI.P.VIJAYA BHANU SRI.PRASUN.S RESPONDENT: COMPLAINANT:- -------------------------------------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.NOBLE MATHEW. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 20/08/2009, THE COURT ON 30/09/20-09 DELIVERED THE FOLLOWING: K.BALAKRISHNAN NAIR & P.S.GOPINATHAN, JJ. == = = = = = = = = = = = = = = Criminal Appeal No.658 of 2005. = = = == = = = = = = = = = = = Dated this the 30th day of September, 2009. J U D G M E N T Gopinathan, J. The appellants are accused Nos.3, 5, 7, 9 and 11 in SC.No.467/2001 on the file of the First Additional Sessions Judge, Thrissur. The Circle Inspector of Police, Valappad prosecuted the appellants along with 16 others for offences under Sections 143, 147, 148, 324, 307 and 302 r/w.149 IPC. Of the 21 accused, 18th accused could not be apprehended. During the trial accused Nos.15 and 17 absconded. The remaining accused faced trial. The case against the absconding accused is split up. On conclusion of the trial the appellants were found guilty for the above said offences and convicted. Accused Nos.1, 2, 4, 6, 8, 10, 12, 13, 14, 16, 19, 20 and 21 were acquitted. The appellants were sentenced to imprisonment for life under Sec.302 IPC. They were also sentenced to rigorous imprisonment for two years under Sec.148 and 324 IPC. No separate sentence was awarded for offence under Sec.143, 147, 324 and 307 IPC. Crl.Appeal No.658 of 2005. -: 2 :- Sentences were ordered to run concurrently. Assailing the above conviction and sentence this appeal was preferred. We are told that as against the acquittal of the other accused no appeal was preferred. 2. The prosecution case in brief is that, Pws.1 to 7, 10, deceased Ravi and one Prasad were members of the Democratic Youth Federation of India (DYFI). The accused were either members of the BJP or RSS and both parties were on bitter terms due to political enmity. On 5.2.1998 by about 7.30 pm. Pws.1 to 7, 10, deceased Ravi and Prasad had a torch procession in connection with the election propaganda of V.V.Raghavan who was a candidate proposed by the Left Democratic Front (LDF). After procession some of them remained near the shop of one Usman for pasting wall posters. Pw3 Hochimin along with Pw4 Shanil had been to his house for supper. Before supper, Seena, a girl in the neighbour-hood conveyed a message to Pw3 that there was likelihood of RSS activists attacking the houses of Pw3, Pw1 Soman and Pw4 Shanil. He conveyed the message to Pw4. They decided not to remain in the house. Hence they returned to the shop of Usman. Pws.1, 2 and 5 were there. The information was conveyed to Pws.1, 2, 5 and other members in their group and Crl.Appeal No.658 of 2005. -: 3 :- they decided to remain in the property of one Therambil Viswambaran, which is on the eastern side of the house of Pw3. 3. By about 11.30 pm., according to the prosecution, all the 21 accused formed themselves into an unlawful assembly and were armed with deadly weapons like sword, iron pipe, stick, knife, iron blocks, etc., and in furtherance of their common object committed rioting after entering the property of Therambil Viswambaran and the 3rd accused hit on the head of deceased Ravi with a sword and the 15th accused hit on the head with an iron pipe. The 11th accused hit Pw2 Kishore at his head with an iron rod and the 5th accused hit at his thigh with a sword. Deceased Ravi, owing to the assault fell down into a thodu. Pw2 who also fell down into anther thodu. He climbed out of the thodu, took to his heels and reached at the shop of Usman where the other members in the group took shelter. Pw2 was taken to the Elite Mission Hospital, Thrissur. From there he was referred to the Medical College Hospital, Thrissur. 4. Pw16, the father of Pw3, at about 11.30 pm. heard the utterance, 'murder', from the property on the eastern side. He took a torch and proceeded. His wife prevented. So, he didn't proceed then. After some time, when the noise ceased, he Crl.Appeal No.658 of 2005. -: 4 :- proceeded to the property along with his dog. The dog sniffed here and there and rushed to the thodu on the southern side of the property. He followed the dog. Deceased Ravi was found lying prone unconscious. He lifted Ravi and made him lie a little more towards the bank of the thodu and proceeded to the shop of Usman where there were 4 or 5 persons, of whom he identified Pw5. Pw16 soon enquired about Pw3. Pw5 told that Pw3 had taken Pw2 to the hospital. Pw16 informed Pw5 and others that Ravi was lying unconscious in the thodu. They then went to Ravi and lifted him. By the time a tempo van reached there and Ravi was taken to the hospital. 5. On the way to the hospital, it is alleged that the autorickshaw carrying Pw2 was found going ahead. They intercepted the autorickshaw, PW2 was also taken in the vehicle in which Ravi was being carried and by about 1.15 am. on the next day they reached at the Medical College Hospital, Thrissur. Ravi was declared brought dead. Pw2 was admitted in the hospital. Pw1 returned home and narrated the incident to the members of his family. Then, though he started to the police station, family members prevented him. Later, at 9 am. he went to the Vatanappilly police station and gave Ext.P1 first Crl.Appeal No.658 of 2005. -: 5 :- information statement before the Sub Inspector (SI) of Police, Vatanappilly. As per Ext.P1, the information was seen given at 7 am. Pw32, the then SI of police, Vatanappilly recorded Ext.P1 and registered a case as Crime No.48/98, by Ext.P20 First Information Report against (i) Kuttamon, (2) Unnikrishnan and 20 others, who could be identified by sight, for offences under Sections 143, 147, 148, 324, 307 and 302 r/w.149 IPC. 6. Pw38, the then Circle Inspector of Police took over the investigation. He proceeded to the hospital and prepared Ext.P15 inquest report. Then he proceeded to the spot of occurrence and prepared Ext.P3 scene mahazar. He then filed Ext.P25 report arraying 17 persons as accused. He proceeded with investigation and after completing the investigation, charge sheet was laid before the Judicial Magistrate of the First Class, Chavakkad against 21 accused. The learned Magistrate having found that the offences alleged were exclusively triable by a court of Sessions, after complying the mandatory procedures, by order dated 30.6.2001 in CP.61/00 committed the case to the Court of Sessions, Thrissur from where the case was made over to the First Additional Sessions Judge. The learned Addl.Sessions Judge after hearing both sides framed charge for the above said Crl.Appeal No.658 of 2005. -: 6 :- offence, to which the appellants and others pleaded not guilty. Consequently, the accused were sent for trial, as we mentioned earlier. 7. On the side of the prosecution, Pws.1 to 38 were examined. Ext.P1 to P42 and MOs.1 to 28 were marked. Plea of the accused is false implication. During the course of cross- examination of the prosecution witnesses, the contradictions in the case diary statements of Pws.2, 3, 4, 6, 7, 15 and 16 were marked as Exts.D1, 2 and 5 to 24. Exts.D3 and D4 are copies of Final Report in ST.No.502/2002 and CC.No.120/2002 on the file of the Judicial Magistrate of the First Class, Chavakkad. Responding to the call for defence evidence, DWs.1 to 5 were examined and Exts.X1 to X5 marked. 8. Though it was alleged that the appellants and other 16 accused formed themselves into an unlawful assembly and armed with deadly weapons, attacked Pws.1 to 7, 10, deceased Ravi and Prasad, it is brought out in evidence that only Pw2 and Ravi were injured. None others sustained any bodily injury. 9. Pw1 had deposed that on 5.2.1998 they had a torch procession as part of the election propaganda of V.V.Raghavan Crl.Appeal No.658 of 2005. -: 7 :- and after the procession some of them remained near the shop of Usman for pasting wall posters. Pw3 went home. A little later Pw3 returned and informed that BJP supporters had planned to attack his house. So, all in the procession group including Pw3 went to the property of Therambil Viswambaran just on the eastern side of the house of Pw3 and remained there. By about 11.30 pm. they heard the sound of swords. Pw1 immediately lighted the torch, which he was carrying and found a group of people proceeding to them with swords. He identified Unnikrishnan and Kuttamon, both were armed with swords. Pw1 got scared and took to his heels and had shelter at the shop of Usman. While so, Pw2, with injuries, was taken by Pw5 to the shop. They fetched an autorickshaw and Pw2 was taken to the Elite Mission Hospital, Thrissur by Pws.5 and 6. Then Pw16 reached there and reported that Ravi was lying unconscious near the thodu. Pw1 along with Pws.3, 10 and Prasad went to the thodu and found Ravi lying unconscious in the thodu with injuries at the back of the head and nose. Ravi was lifted and rushed to the Medical College Hospital, Thrissur in a Tata Sumo vehicle. On the way they saw the autorickshaw carrying Pw2. The autorickshaw was intercepted and Pw2 was also taken into Crl.Appeal No.658 of 2005. -: 8 :- the Tata Sumo vehicle and rushed to the Medical College Hospital, Thrissur. At 1.15 am. on the next day they reached at the Medical College Hospital. The doctor after examining Ravi declared him dead. Pw2 was admitted in the hospital, Pw1 returned home and informed the matter to the family members. When he was to proceed to the police station the family members prevented him and on the next day at 9.00 am. he went to the Vatanappilly police station and gave Ext.P1 first information statement which was identified by him. In the box Pw1 had identified accused 5, 6 and 17. Though he named Unnikrishnan and Kuttamon in Ext.P1 he had deposed that he could not identify them from among the accused persons. He had also identified two swords which were marked as MOs.1 and 2. 10. Pw2 had deposed that on 5.2.1998 there was torch procession in which ten persons mentioned earlier were present. After the procession, some of them remained there for pasting wall posters. Pw3 and 4 went to the house of Pw3 for taking supper. A little later, they returned and informed that BJP activists had a plan to attack their house and suggested that they should not go to their house and they decided to remain in the property of Therambil Viswambaran. By about 11.30 pm. they Crl.Appeal No.658 of 2005. -: 9 :- heard the sound of iron rods. Deceased Ravi alarmed that, 'they are coming'. Soon Pw1 lighted the torch. In the torch light he identified accused Nos.5, 9 and 11 who were standing on the eastern side. Some others were on the western side at a distance of ten feet. Seeing these persons coming, himself and others stood up and moved a little towards east. Then the 11th accused inflicted a blow at the back of his head with an iron rod. Somebody uttered to murder. When turned back he was intercepted by the 5th accused who hacked him twice at his left thigh with a sword. He fell down into a thodu on his right side. No sooner he fell down into the thodu than the 9th and 11th accused inflicted blows at his both shoulders and head with iron rods. Some how or other, he climbed out of the thodu and ran to the house of Vallissery Anil where Pw5 was present. He was accompanied to the main road by Pw5. From there he was rushed to the Elite Mission Hospital, Thrissur by Pw3 and Pw4. From there he was taken to the Medical College Hospital, Thrissur. On the way, the autorickshaw in which he was taken to the hospital was intercepted by Tata Sumo vehicle in which Ravi was being carried. He was also taken to that vehicle and rushed to the Medical College Hospital, Thrissur where he had Crl.Appeal No.658 of 2005. -: 10 :- undergone treatment. It was further deposed that later he came to know that Ravi had succumbed to the injuries and that the attack was due to political enmity. He had further identified MO3 as the sword by which he was inflicted injuries by the 5th accused. The iron rods used by accused 5 and 11 were identified and marked as MOs.4 and 5. He had also deposed that while he rushing out of the scene, his lungi fell down. The lungi was identified as MO6. The evidence of Pw38, the investigating officer is to the effect that MO6 was seized while he preparing scene mahazar which was marked as Ext.P3. 11. Pw35 had deposed that he was working as Deputy Police Surgeon at Medical College Hospital, Thrissur on 6.2.1998 and on that day at 2.00 pm. he conducted autopsy on the body of Ravi, aged 30 and that Ext.P22 is the post-mortem certificate. Following are the ante-mortem injuries noted: 1.Laceration with contused margin vertically placed on the right side of top of head 3.8 x 5 cm. The front end was 7.5 cm above the outer end of eye brow. The wound was muscle deep only. The skull bones underneath were intact. The brain showed a thin layer of subdural and subarachanoid haemorrhage on both sides. The base of the skull was intact but the anterior cranial fossae showed light blue colouration due to infiltration of blood underneath. Crl.Appeal No.658 of 2005. -: 11 :- 2.Irregular laceration with contused margin 3.5 x 8 cm on the middle of under surface of nose and right side of upper lip. The horizontal limb of laceration was merging with the middle of the vertical limb. The central incisor tooth of right side of upper jaw and the right upper canine tooth were partly broken (broken pieces missing) and the right upper lateral incisor tooth dislocated and pushed backwards. The inner aspect of the upper lip mainly on the right side showed split laceration. The nasal cartilage was separated from the nasal bones. The upper jaw bone (maxilla) was fractured at the middle with contusion of soft tissues around. 3.Abrasion vertical 7.5 x 1 cm on the back of right forearm 12 cm below the elbow. The arm bones were intact. 4.Abrasion vertical 6 x 8 cm on the back of left forearm 2.5 cm above the wrist. The forearm bones were intact. 5.Abrasion 1 x .6 cm on the middle of back of right middle finger. The bones underneath were intact. 6.Abrasion 0.8 x 6 cm on the back of right little finger 3 cm below the root. 7.Multiple abrasions over an area of 5 x 3.5 cm on the front of left knee joint. 8.Abrasion 4.5 x 1 cm on the front of left thigh 6 cm above the knee. 9.Abrasion 3.7 x 3.5 cm on the back of right lower leg 4.5 cm above the ankle. The leg bones were intact. 10.Abrasion 4 x 1.7 cm on the top of left shoulder. 11.Contused abrasion 6.5 x 4.3 cm on the outer and Crl.Appeal No.658 of 2005. -: 12 :- back aspect of right upper arm 8 cm below the shoulder. It was further deposed that the deceased died of injuries sustained to head and face and that injuries No.1 and 2 are sufficient to cause death in the ordinary course of nature and that injury No.1 could be caused if struck with an iron pipe like MO8 and injury No.2 could be caused if hacked with a weapon like MO9 and injuries No.3 to 11 could be caused if he falls on a rough and hard surface and also could be caused with a weapon like MO10. In cross-examination Pw35 deposed that injuries No.3 to11 could also be caused while the injured person was being transported from the site to the hospital. 12. Pw34 had deposed that while he was working as Lecturer in Surgery at Medical College Hospital, Thrissur, on 6.2.1998 he examined Pw2 and issued Ext.P21 wound certificate and that Pw2 had the following injuries: 1.Lacerated wound, lateral aspect of left thigh, muscle deep, app.12 x 5 cms. 2.Lacerated wound 8 x 4 cm above the first wound. 3.Laceration 2 x 1 cm on the left fontal scalp. 4.Stellate laceration 5 x 3 cms. on the occipital scalp. It was further deposed that injuries No.1 and 2 could be caused, Crl.Appeal No.658 of 2005. -: 13 :- if hacked with a sword like MO3 and injury Nos.3 and 4 could be caused if beaten with an iron pipe like MO4. 13. The evidence of Pw1 coupled with Ext.P1 would show that late Ravi, with injuries, was taken to the Medical College Hospital, Thrissur along with Pw2. Pw2 also had given evidence that Pw2 and late Ravi were taken to the Medical College Hospital. Pw1 had also deposed that the doctor on duty in the casualty, after examining Ravi declared that he was dead. Pw2 was admitted in the hospital. That much evidence of Pw1 was corroborated by Ext.P1 also. The factum of death of Ravi and the injuries sustained to Pw2 were not in dispute. But the defence is that Ravi and Pw1 might have sustained injuries at the hands of someone-else and not at the hands of the appellants. Ext.P16 inquest report prepared by Pw38 also supported the evidence of Pw1 that Ravi died. 14. The cause of death deposed by Pw35 and certified in Ext.P22 is also not in dispute. The evidence of Pw35 would show that injuries No.1 and 2 found on the body of Ravi are sufficient in the ordinary course of nature to cause death. The possibility of causing injuries No.1 and 2 with iron pipe, sword like MOs.8 and 9 was also proved by the testimony of Pw35. Injuries No.3 Crl.Appeal No.658 of 2005. -: 14 :- to 11 were minor in nature. There is no evidence as to how exactly those injuries were caused. According to Pw35, those injuries could be caused with an iron rod like MO10 or the body coming into contact on rough and hard surface or while transporting from the site to hospital. However, since those injuries were not fatal in nature, even if the prosecution could not adduce evidence as to how exactly those injuries were caused, it is not much significant. On a considered view, in our opinion, the evidence of Pw35 supported by Ext.P22 is believable to come to a conclusion that the death of Ravi is one of homicide and not at all a natural death. 15. The evidence of Pw34 coupled with Ext.P21 would show that Pw2 was brought to the Medical College Hospital with injuries as deposed by Pw1. The evidence of Pw2 also would show that he sustained injuries due to an assault and was taken to the Medical College Hospital. That much extent of the evidence of Pw2 coupled with the evidence of Pw34 and Ext.P21 are reliable and we safely conclude that Pw2 also had sustained injuries which we mentioned earlier. 16. The question then to be decided is as to whether late Ravi and Pw2 sustained injuries as alleged by the prosecution. Crl.Appeal No.658 of 2005. -: 15 :- In the event the question can be answered affirmatively, the conviction under challenge is sustainable. A careful reading of the evidence on record would show that the available evidence can be segregated into two. One that relating to the injuries sustained to Ravi and the other relating to the injuries sustained to Pw2. Though it is alleged that 21 persons came armed with deadly weapons, only 4 were alleged as assailants. It is the specific case that the 3rd and 15th accused assaulted Ravi and Pw2 was assaulted by 5th and 11th accused. Though the other 17 accused were also alleged to be armed, there is no allegation of any overt act. It is also crucial to note that Pws.3 and 7 speak only about the injury to Ravi and Pws.4 to 6 and 10 speak only about the injury to Pw2. From the evidence of Pw1 which we mentioned earlier, Pw1 had not witnessed the alleged assault. Though Pw1 was in the company of the others to defend the anticipated attack on Pws.1, 3 and 4, seeing the assailant Pw1 who alone had a torch in his hands took to his heels. Pw16 had seen Ravi lying unconscious with injuries. So, the evidence of Pws.3, 7 and 16 can be analysed regarding the assault to deceased Ravi and the evidence of Pws.2 & 4 to 6 can be analysed regarding the injuries sustained to Pw2. Crl.Appeal No.658 of 2005. -: 16 :- 17. Pw3 had deposed that in 1998 he was working as Manager of a finance firm and that he is a member of the Communist Party of India (Marxist) [CPI(M)], Pws.1, 2, 4, 5, 6, 7 and others were also members and that at about 7.30 pm on 5.2.1998 there was a torch procession as part of the election propaganda and in the procession, Pws.1 to 7, 10, deceased Ravi and Prasad were participants. The procession was over by about 8.30 pm. He went home along with Pw4 Shanil for supper. A little later, Seena, a girl in the neighbour-hood told him that she heard from RSS workers that there was plan for attacking the house of Pws.1, 3 and 4. He conveyed the message to Pw4 and both of them rushed to the shop of Usman where Pws.1, 2 and 5 were remaining after the procession. The other members also returned and the message was communicated to all of them and they decided to remain away from the house and took shelter at the property of Therambil Viswambaran which is just 100 metres towards east from his house. Pws.1 and 3 lay over palm leaves. Others sat on palm leaves. Pw3 got asleep. By the time he heard the sound of Ravi telling that somebody was coming. Pw1 lighted the torch and they found accused 1 to 3 proceeding with swords. Accused 7 and 15 were proceeding with iron rodes. Crl.Appeal No.658 of 2005. -: 17 :- There were 21 persons, all armed with deadly weapons. Then the 2nd accused shouted to murder. The 15th accused uttering 'om kali' inflicted a blow at the head of Ravi with an iron pipe, which was identified and marked as MO8. Himself and Ravi ran towards south. He crossed the thodu on the southern side. No sooner, Pw3 crossed the thodu, he heard the sound of Ravi falling to the thodu. Turning back, he saw the 3rd accused hacking Ravi with a sword at his face. Pw3 ran towards east. He also saw a few persons beating Ravi, but he could not identify them. Pw3 went to the house of one Jayamama and telephoned to