IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR TUESDAY, THE 1ST DECEMBER 2009 / 10TH AGRAHAYANA 1931 CRL.A.No. 1427 of 2003() ------------------------ SC.284/1999 of ADDL. SESSIONS COURT (ADHOC-2), THRISSUR .................... APPELLANT(S): ACCUSED1,2,4,5,6,10 & 12 --------------------------------------------------------------------- 1. RAJU @ KADIYAN RAJU, S/O. MATHEW, THEKKANATH HOUSE, FATHIMA NAGAR, THRISSUR VILLAGE, THRISSUR TALUK. 2. BAIJU @ BAIJU ANNAN S/O. VARGHESE, CHEERAN HOUSE, SHANTHI NAGAR, NADATHARA VILLAGE, THRISSUR TALUK. 3. RATHI @ RATHEESH S/O. KARUNAKARAN, VELLARAMKUNNU HOUSE, NADATHARA DESOM, NADATHARA VILLAGE, THRISSUR TALUK 4. SUDHI S/O. BALAN, VALIYAPARAMBIL HOUSE, ANCHERY PALLAN KOLONY DESOM, NADATHARA VILLAGE, THRISSUR 5. BAIJU @ THATHA BAIJU S/O. KUTTAN, PONGANAMMOOLA HOUSE, POLOOKKARA DESOM, NADATHARA VILLAGE, THRISSUR TALUK. 6. SHAJU S/O. BABY, ATHIPPARAMBIL HOUSE, KACHERY MICHA BHOOMY, NADATHARA VILLAGE, THRISSUR 7. JAISON @ VELLA JAISON S/O. KOCHAPPAN, PULIKKAN HOUSE, NELLIKKUNNU DESOM, DINHAR ROAD, OLLUKKARA VILLAGE, THRISSUR TALUK. BY ADV. SRI.P.G.SURESH 2 RESPONDENT(S): COMPLAINANT -------------------------- STATE OF KERAL, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM PUBLIC PROSECUTOR SRI. JAYASOORYA BHARATHAN THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 01/12/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V. RAMKUMAR, J. = = = = = = = = = = = = = Crl.Appeal.No.1427 of 2003 = = = = = = = = = = = = = = Dated this the 1 st day of December, 2009 JUDGMENT In this appeal filed under Section 374(2) Cr.P.C, accused Nos.1,2,4 to 6,10 and 12 in S.C. No.284 of 1999 on the file of the Addl. Sessions Judge Fast Track-II(Adhoc), Thrissur, challenge the conviction entered and the sentence passed against them for offences punishable under Sections 143, 148, 323, 324, 325 and 307 read with 149 IPC. THE PROSECUTION CASE 2. The case of the prosecution can be summarised as follows:- On the Thiruonam day in the year 1997, CW5 (Ajayan) and CW7 (Sadanandhan) along with A3 (Baijulal) (who died pending trial) were playing cards to make excessive profit out of that. In the dispute arising out of the said game, A1 to A14 formed themselves into an unlawful assembly the common Crl.Appeal.No.1427 of 2003 2 object of which was to take revenge against CW5 and others. Accordingly, A1 to A14 at about 6.30 pm on 16.09.1997 in front of the residential house of Chandran (CW4) father of CW5,CW7,PW1(Vijeendran) and bearing building No.VI/24 of Nadathara Panchayat in Polukara armed with deadly weapons such as swords, criminally trespassed into the courtyard of the said house and A1 uttering to kill PW1, dealt a blow on the right side of his head, cutting his right ear with MO1 sword, A2 cut wounded PW1 on the middle of his head with MO2 sword in the course of which CW3(Ajitha) the wife of PW1 also sustained an injury on her nose and A3 kicked CW4(Chandran) on his right leg and pushed him to the ground on account of which CW4 sustained a fracture to the bone of his right leg and the other accused persons kicked and fisted CW5(Ajayan) and PW8(Ajish) a neighbour. The accused persons have thus committed offences punishable under Sections 143, 147, 148, 447,324, 326 and 307 read with 149 IPC. Crl.Appeal.No.1427 of 2003 3 3. The 3rd accused Baijulal died before trial. He was murdered by somebody. Accused Nos.1,2 and 4 to 14 alone stood trial before the court below. THE TRIAL 4. On the accused pleading not guilty to the charge framed against them by the court below for the aforementioned offences, the prosecution was permitted to adduce evidence in support of its case. The prosecution altogether examined 14 witnesses as P.Ws 1 to 14 and got marked 12 documents as Exts. P1 to P12 and 5 material objects as MOs. 1 to 5. 5. After the close of the prosecution evidence, the accused were questioned under Sec. 313 (1)(b) Cr.P.C. with regard to the incriminating circumstances appearing against them in the evidence for the prosecution. They denied those circumstances and maintained their Crl.Appeal.No.1427 of 2003 4 innocence. A1 had the following to submit before the court:- Accused persons are all BJP workers. The prosecution witnesses are members of DYFI. The witnesses have political animosity against the accused persons. Radhakrishnan, Circle Inspector of Police (CW6) has personal animosity towards the 1st accused. One day the Police had taken him into custody from the premises of the Sessions Court. His father had filed a petition before the High Court against the Police. In that case the Police had tendered unconditional apology. At that time a threat was made that he would be falsely implicated in a case. The present case was foisted out of the said enmity and political hostility. He is innocent. The other accused persons also alleged that they were falsely implicated in this case out of political vendetta. 6. Since this was not a case of no evidence for the prosecution, the court below did not record an order of acquittal of the accused under Section 232 Cr.P.C. When Crl.Appeal.No.1427 of 2003 5 the accused were called upon to enter on their defence the accused produced Ext.D2 certified copy of the order dated 12.11.1997 of this Court in Crl.R.P.No.852 of 1997 as per which the Circle Inspector of Police, Town East Police Station, Thrissur tendered unconditional apology for the arrest of the 1st accused herein. 7. The learned Sessions Judge, after trial, as per judgment dated 21.07.2003 acquitted accused Nos.7, 8, 9, 11, 13 and 14 but convicted accused Nos.1, 2, 4 to 6 and 10 to 12 (appellants herein) for the aforementioned offences. For the conviction under Sections 143,148,323,324,325 and 307 IPC, each of the appellants was sentenced to rigorous imprisonment for 1 month, 1 year, 6 months, one year, 2 years and 3 years respectively, in addition to a fine of Rs.10,000/- each for the conviction under Section 307 read with 149 IPC. On default to pay the fine each of the defaulting accused was directed to undergo rigorous imprisonment for one year. From out of the fine amount a Crl.Appeal.No.1427 of 2003 6 sum of Rs.7,500/- each was directed to be paid to PW1 as compensation under Section 357(1)(b) Cr.P.C. It is the said judgment which is assailed in this appeal. 8. I heard Advocate Sri.P.G.Suresh, the learned counsel appearing for the appellants as well as the learned Public Prosecutor. 9. The only point which arises for consideration in this appeal is as to whether the conviction entered and the sentence passed against the appellants are sustainable or not ? The Point:- THE PROSECUTION WITNESSES 10. P.W.1 (CW2) (Vichitran) is one of the injured persons in the occurrence. He is not the 1st informant in the case. 11. P.W.2 (CW10) Sudhakaran is an independent eye witness. He is a resident of Polurkara and a friend of PW1. According to him he came to the house of PW1 as the Crl.Appeal.No.1427 of 2003 7 latter was going to Mysore that night. He claims to have seen the occurrence from the paramba situated to the south of PW1's house. 12. PW3(CW1) Thankamani is the mother of PW1. She is the 1st informant in this case. Ext.P1 is the First Information Statement given by her to PW11 the Sub Inspector of Ollur Police Station, at about 7.30 p.m on 16.9.1997 from her residence. 13. PW4 (CW12)(Anthony) is a witness to Ext.P2 scene mahazar prepared by the Investigating Officer. He turned hostile to the prosecution. 14. PW5 (CW14) (Gopalan) is a witness to Ext.P2 Seizure Mahazar. He has proved the recovery of MO3 from the scene of occurrence. 15. PW6 (Dr.Rafeeque of Medical College Hospital, Thrissur) proved Ext.P3 Wound Certificate of PW1 who was examined by him at 7.45 p.m on 17.9.1997. the alleged cause stated to the Doctor was the following:- Crl.Appeal.No.1427 of 2003 8 കണല “ റയ ന ആള വടല വന വവട “ The following are the injuries noted by PW6. “Incised wound extending from right Zygotic region involving right pinna extending up to neck 15 cm below mastoid. Wound is one inch deep. 7 cm cut on scalp mid line. 3 to 5 cm lacerated wound on temporal region.” 16. PW7 (Dr.Shibu Abraham, Lecturer in Ortho, Medical College Hospital, Thrissur) proved Ext.P4 Wound Certificate of Chandran (CW4) husband of PW3. The said doctor examined CW4 at 8.30 p.m on 16.9.97 with the complaint that he was assaulted by many people. The injury noted was a fracture of 2nd metatarsal of right feet. PW7 also proved Ext.P5 Wound Certificate pertaining to CW5 (Ajayan) who is one of the brothers of PW1. The doctor who had examined CW5 was Dr.Koshy George(CW24) was not available and his handwriting and signature were familiar to PW7. CW5 was examined by Dr.Koshy George at 8 p.m on 16.9.97 and the history stated was alleged assault at Crl.Appeal.No.1427 of 2003 9 about 7.15 p.m on 16.9.1997. 17. PW8 (CW6) Ajish is another injured witness. He is also a resident of Polukara and was allegedly visiting PW1 who was going to Mysore that night. He was allegedly returning from underneath the Banyan tree where they used to play the game of playing cards. 18. PW9 (CW15) (Sathyajith) was an attestor to Ext.P6 seizure mahazar dated 18.9.1997 as per which MO1 sword and MO1(a) sheath were recovered by PW11 at 5.15 p.m consequent on the confession made by A1. 19. PW10(Baiju)(CW16) was cited to prove the recovery of MO5 blood-stained shirt of A8 as per Ext.P8 Mahazar prepared by PW11. However, this witness turned hostile to the prosecution. 20. PW11(Chakunni) is the Sub Inspector of Police, Ollur Police Station. He recorded Ext.P5 First Information Statement of PW3 from her house at 7.30 pm on 16.9.1997 and also took into custody MO3 sword which was lying at Crl.Appeal.No.1427 of 2003 10 the scene of occurrence. It was this officer who recovered MO1 sword and MO1(a) sheath as per Ext.P6 Mahazar pursuant to the confession of A1. 21. PW12 (M.R.Maniyan) (CW27) was the Circle Inspector of Police who questioned A2 and on the strength of his confession recovered MO2 sword as per Ext.P11 search list. He had sent Ext.P11 search memorandum prior to the search of the house of A2. 22. PW13 Baby (CW18) was a witness to Ext.P11 search list prepared for the recovery of MO2 sword from A2. He turned hostile to the prosecution. 23. PW14(Joby)(CW17) was a witness to Ext.P11 search list. He also turned hostile to the prosecution. EYE WITNESSES' ACCOUNT 24. Out of 14 witnesses examined by the prosecution, PWs 1 to 3 and 8 are the occurrence witnesses of whom PWs 1 and 8 are the injured. The testimony of PW1 who was the main target of attack and who sustained the graver Crl.Appeal.No.1427 of 2003 11 injuries is to the following effect:- He is a goldsmith by avocation. He belongs to Polukkara. About five months prior to the occurrence, he and his wife Ajitha (CW3) had gone to Mysore for treating their deaf and dumb daughter. They came home to the native place in connection with onam. The occurrence took place on 16.09.1997 which was the third onam day. The time of occurrence was about 6.30 p.m. In their house at Polukkara, his father Chandran (CW4), mother Thankamony (PW3) and brothers Sadanandan (CW7), Ajayan (CW5), himself, his younger brother Vinod are the inmates. Besides them, the wives of his two elder brothers are also residing in that house. PW1, his elder brother Ajayan (CW5) and neighbour Ajeesh (PW8) were engaged in pleasantries in the front varandah of their house. He was supposed to return to Mysore in the bus starting at 9.30 in the night. His parents were standing in the front courtyard. Their house is facing west. At that time, about 10 or 11 assailants Crl.Appeal.No.1427 of 2003 12 from west came running to their house. They were in a belligerent mood. As soon as they came, Byju Lal (A2) kicked his father Chandran (CW4) on his right leg and his father fell down. Byju Lal is now no more since he was murdered by somebody. As soon as his father fell down, PW1 and others went to the rescue of their father. At that time, A1 to A4 took out this swords which they had hidden under their shirts. He knows all those four accused persons. Seeing the weapons, he got frightened and ran towards the back side of the house through the southern portion of the house. The four persons who are armed with swords(A1to A4), chased him. Immediately behind him was A1 Raju. While running for his life, A1 cut him with MO1 sword on his right ear resulting in a portion of the pinna shearing from its position and dangling. From the back side of the house, he ran eastwards. After jumping over the water channel, he fell into the yam cultivation( കര വര ). At that time, A4, A3 and others fisted and kicked him. Crl.Appeal.No.1427 of 2003 13 (witness identified A5, A6 and A8 also) His mother (PW3) and sister Latha (CW8) came to his rescue. At that time, the assailants withdrew from the scene. He was carried to the front portion of the house and made to see there. His wife also came to console him and attended on him. At that time, suddenly A2 emerged there with a sword and cut him on the head twice. One of the blows struck the nose of his wife who sustained an injury to her nose. The sword wielded by A3 was lying on the ground. All the assailants then ran towards the west. Thereafter, PW8 and PW1's brother Ajayan (CW5) came there. The leg of PW8 was seen injured. There was an abrasion on the leg of CW5 as well. His father was complaining of pain at the ankle. Somebody took them to the hospital. A1 had cut him on the right ear by shouting that he will kill him. Sometime prior to the occurrence, there was some quarrel among his brother Ajayan (CW5), (PW8) and few others who were playing cards. The occurrence took place pursuant to the said Crl.Appeal.No.1427 of 2003 14 incident. He had given a statement to the police. MO1 was the sword along with its sheath wielded by A1. MO2 was the sword used by A2. The bigger sword which was lying on the ground at the rescue of crime was MO3. Altogether five persons including him were injured in the occurrence. It is not correct to say that the occurrence took place at 7.15 p.m. or that darkness had set in from 5.30 onwards. All the five injured persons were taken to the hospital together. He might have told the doctor that identifiable persons came to his house and cut him. He cannot remember what he is told the doctor since his mental condition at that time was very precarious. It was not even sure whether he would survive or not. The majority of improvements on the rear side of his house are coconut trees. The distance of the yam cultivation would be around 150 metres from the house. The accused persons used to come to Polukkara even before. They came to his house only on the date of occurrence. He does not know what Crl.Appeal.No.1427 of 2003 15 happened at the place where cards were played. He does not know the persons with whom Ajayan and PW8 picked up quarrels. The first cut was received by him while he was running towards northern direction by the side of his house. After running northwards, he ran towards the east. It was at a point on the eastern side of the house that he received the first cut on the right ear. The second cut was received by him from the front portion on the western side of the house. He does not know whether himself and his family members are sympathisers of Marxist party. He also does not know whether there used to be clashes between the Marxist and the R.S.S people in that locality since he was in Mysore. He does not know as to how his brother Ajayan and neighbour PW8 sustained injuries. He has not shown the assailants to the police nor had the police shown them to him. He had told the doctor that identifiable persons had done this to him. All the four accused persons were wielding swords. He had told the police that A1 to A4 had Crl.Appeal.No.1427 of 2003 16 chased him and it was while running that he was cut on his ear from behind. When his mother and sister came, the assailants had withdrawn. Thereafter, when he was carried to the western side of the house, the assailants re-appeared there and it was while his wife was attending on him that he was cut again with MO2 sword which had struck his wife's nose as well. He sustained two cut injuries on his head. It is only for the past one year that he is a member of the Marxist party. He does not know whether the accused are B.J.P - R.S.S people. Even when the swords were shown to him by the police, there was blood marks on them. It is not correct to say that it was dark at the time of occurrence. It is also not correct to say that he was giving the names of persons as dictated to him by the party people out of political enmity. 25. P.W.2 (Sudhakaran) who is also a goldsmith by avocation is a resident of Polookara. He is a friend of P.W.1 for the past 21 years. The main part of his Crl.Appeal.No.1427 of 2003 17 testimony is as follows:- The occurrence took place on the third onam day. When he reached P.W.1's house between 6 and 6.30 p.m. the assailants had collected there armed with weapons and so he did not go near them. Then he saw Ajayan (CW5), Sadanandan (CW7) and Ajeesh (P.W.8) running and P.W.1 also running behind them. A1, A2 and A4 who were armed with weapons chased them shouting that they will kill him. Then A1 cut P.W.1 on his right ear and the ear lobe was cut and a piece was dangling. P.W.1 ran and fell in the yam cultivation. A1, A2 and A4 fisted P.W.1 who was lying in the yam cultivation. P.W.1 was carried to the front courtyard by his mother and sister. His wife came and sat beside him. By that time A2 suddenly emerged with a sword in his hand Crl.Appeal.No.1427 of 2003 18 and cut P.W.1. In that blow the sword struck the nose of P.W.1's wife causing an injury. By the time people gathered there the assailants made good their escape. Sadanandan (C.W.7), Ajesh (PW8) and Vadakkan Sathyan were the persons who came there. There was an injury on the leg of P.W.8 and PW8 told him that it was sustained with the sword of A3. PW2 also identified A12, A6 and A5 also among the assailants. When he went to the house of P.W.1 on that day besides the inmates of the house, there were 5 to 8 persons. He is a Marxist sympathiser for the past 20 years. He was present when P.W.3 the mother of P.W.1 gave statement to the police. After the occurrence he hired a car and took the injured persons to the hospital, He spent the whole night in the hospital. P.W.1's brother Ajayan (CW5) , Crl.Appeal.No.1427 of 2003 19 Ajitha and Ajeesh (P.W.8) were taken to the hospital. Chandran, the father of P.w.1 was not taken to the hospital. All the four injured persons were examined by the doctor. He was present when P.w.1 was examined by the doctor. P.W.1 was in his senses and was able to speak. P.W.1 also told the doctor about the injuries. The house situated to the south of P.W.1's house is that of one Pappan Sankaran . He does not know whether the said Sankaran was at home at that time. He had got into the paramba of the said Sankaran. There are trees like coconut, areacanut, jack fruit etc, in that paramba. It is possible to see the occurrence from the house also. He had remained in that paramba for 10 minutes. At that time, neither P.W.1 nor his family members had seen him. Besides the house of Sankaran, there are Crl.Appeal.No.1427 of 2003 20 several houses in that locality. The house of P.W.1 is facing west. It was a forceful cut. The assailants chased PW1 for about 200 metres. His wife and sister had run behind the assailants. It was seeing the sword that they got scared and ran. C.W.7 and others were running along the side of the house. After P.W.1 was brought the assailants came back. The parents of P.W.1 were on the western side of the house at the beginning of occurrence. Ajayan and P.W.8 had run along with Sadanandan. It was not dark at the time of occurrence. It is only by 7.15 that it would become dark. It was the Sub Inspector who recorded the statement of the mother of P.W.1. He does not know whether P.W.1 was the Marxist worker. He is a friend of P.W.1 for the past 21 years. He is not telling falsehood in Crl.Appeal.No.1427 of 2003 21 view of his friendship with P.W.1. 26. P.W.3 (Thakamani) is the mother of P.W.1. She is the first informant as well. At the time of her examination of 20-12-2003 she was aged 62 years. Her deposition is to the following effect:- She is a resident of Polookkara. The occurrence took place at 6.30 p.m. on the 3rd Onam day. Herself and her husband (Chandran - CW4) were standing on the front courtyard. Her sons Sadanandan (CW7), Vichithran (P.W.1), Ajayan (CW5) and her neighbour Ajeesh (P.W.8) were talking in the front veranda. While so, some persons came from the west armed with sticks and swords. There were about 10-14 assailants. Byjulal kicked her husband on his leg and he fell down. Byjulal is now no more. When she cried aloud her sons came to the courtyard. At Crl.Appeal.No.1427 of 2003 22 that time Byjulal (A3), Rethi (A4), etc, took out their swords. Two more persons took out the swords hidden inside their shirt. Seeing this, her sons got frightened and they started running. The four assailants chased them. She and her daughter also went behind them in a frightened mood. When she reached there her son P.W.1 was lying in the yam cultivation situated near the water channel and about 5 or 8 persons were kicking and beating him. They include A6, A2, A4 and A1. She does not remember others as she was in a perplexed mood. When she and others raised a hue and cry the assailants withdrew from the scene. She and her daughter carried P.W.1 to the foot steps on the western side of the house and made him sit there. By that time P.W.1's wife Ajitha also came to his Crl.Appeal.No.1427 of 2003 23 rescue. Suddenly three or four assailants who had withdrawn earlier emerged there. A2 cut P.W.1 on the head. His wife sustained an injury on her nose. She does not know as to what happened thereafter. The assailants went towards the west. P.W.1's right ear was dangling. The Police came and she uttered something. Ext.P1 is that statement. She does not know as to what all matters were stated to the police. She was not knowing whether her son was alive and what happened to her husband. She was completely put out. It is not correct to say that the statement given to the police was in accordance with the advice given by the local Marxist leaders. No party men had come there. She does not remember whether she had seen A3 alone taking out the sword from inside his shirt. The occurrence Crl.Appeal.No.1427 of 2003 24 was from the yam cultivation. P.W.1 was at the extreme rear. All others had run together. She herself and her