IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN WEDNESDAY, THE 15TH SEPTEMBER 2010 / 24TH BHADRA 1932 Death Sentence Ref..No. 3 of 2008() ------------------------------------------------- SC.564/2007 of SESSIONS COURT, THRISSUR .................... COMPLAINANT (S): -------------------------- STATE OF KERALA. BY PUBLIC PROSECUTOR SRI.S.U.NAZAR RESPONDENT(S): --------------------------- SHIJIL , S/O. SUBRAMANIAN, KOZHIPARAMBIL HOUSE, KOORIKUZHI DESOM, KAIPAMANGALAM VILLAGE THRISSUR DISTRICT. BY ADVS. SRI.P.VIJAYA BHANU SRI.P.P.HARRIS THIS DEATH SENTENCE REFERENCE HAVING BEEN FINALLY HEARD ON 15/09/2010, ALONG WITH CRA NO.1412 OF 2008 & CRA NO. 899 OF 2010 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: tss “ CR” PIUS C.KURIAKOSE & P.S.GOPINATHAN, JJ. = = = = = = = = = = = = = = = D.S.R.No.3 of 2008 & Crl.Appeal No.1412 of 2008 & Crl.Appeal No.899 of 2010 = = = = = = = = = = = = = = = Dated this the 15th day of September, 2010. COMMON JUDGMENT Gopinathan, J. The Sessions Judge, Thrissur in SC.No.564/2007 on his file convicted the appellants in these Criminal Appeals for offence under Section 143, 147, 148, 341 and 302 r/w.149 IPC. The appellant in Crl.Appeal No.1412/2008, who is the first accused as per the charge sheet, was sentenced to be hanged by the neck till he is dead for offence under Sec.302 of the Indian Penal Code r/w. Sec.149 IPC. He is further sentenced to rigorous imprisonment for six months and a fine of Rs.10,000/- with usual default clause for offence under Sec.143 IPC. For offence under Sec.148 IPC he was DSR.No.3/08 & Crl.Appeal Nos.1412/08 & 899/10. -: 2 :- sentenced to rigorous imprisonment for three years and a fine of Rs.50,000/- with default sentence. For offence under Sec.341 r/w. 149 IPC he is sentenced to simple imprisonment for one month. For offence under Sec.147 IPC, no separate sentence was awarded. Assailing the conviction and sentence appeal was preferred. 2. The sentence against the appellant in Crl.Appeal No.1412/2008 being death; it was referred to this Court under Sec.366 of the Code of Crl.Procedure for confirmation. Accordingly, Death Sentence Reference was registered. 3. The appellant in Crl.Appeal No.899/2010, who is the third accused in the charge sheet, was sentenced to rigorous imprisonment for life and a fine of rupees two lakhs for offence under Sec.302 r/w.149 IPC. For offence under Sec.143, 148 and 341 IPC, identical sentences as awarded to the other appellant were also awarded. No separate sentence was awarded for offence under Sec.147 IPC. 4. The appellant in Crl.Appeal No.899/2010 didn’t DSR.No.3/08 & Crl.Appeal Nos.1412/08 & 899/10. -: 3 :- care to prefer any appeal. When the Death Sentence Reference and the First Appeal came up for hearing, it was enquired from this Court as to whether he is preferring any appeal assailing the conviction and sentence. It is, thereafter, the other appeal was preferred with petition to condone delay. The delay was condoned and the appeal was taken to file. 5. Hereinafter, unless otherwise required, the parties are referred as appellants 1 and 2. Appellants 1 and 2 were prosecuted by the Circle Inspector of Police, Valappad Police Station, who was examined as Pw18, alleging offence under Sec.143, 147, 148, 341, 324, 326 and 302 r/w.102 IPC. 6. The prosecution case in brief is as follows: The appellants and other four accused persons were engaged in various criminal activities. Deceased Shine and others constituted an Action Committee and had made representation before the authorities against the appellants and other accused. Being got angry for constituting an DSR.No.3/08 & Crl.Appeal Nos.1412/08 & 899/10. -: 4 :- Action Committee and representing to the authorities, the appellants and other accused were nursing a grudge against deceased Shine. On 27.3.2007 there was festival in Sree Bhadrakali Hanuman Swami Temple at Koorikuzhi desom, Kaippamangalam village. The temple belongs to Kozhiparambil family of which Pw1, Shine, the appellants and others are members. Deceased Shine was the oracle (.......................) of the main deity of the temple. Pw3 is the oracle of Muthappan komaram. After certain rituals of the temple in connection with the festival, for the next ritual, Pw4 was putting kalom (drawing with different coloured organic powders). Deceased Shine, who was sitting near the Santhimadom outside the Chuttambalam, was dozing. Pw1 was standing outside the compound wall of the temple, which according to Pw1, is upto the chest level and was watching the putting of kalom. Pw2, a sweeper was also sitting at the verandah of the Santhimadom. Pw3 and 5 were assisting Pw4 in putting kalom. By about 11.40 pm. DSR.No.3/08 & Crl.Appeal Nos.1412/08 & 899/10. -: 5 :- the appellants along with others who were mentioned in the charge sheet as accused Nos.2, 4, 5 and 6 formed themselves into an unlawful assembly. The second appellant and accused 2 and 4 were armed with swords, deadly weapons; and the 6th accused was armed with a chopper which is also a deadly weapon and being members of the unlawful assembly and armed with deadly weapons, in furtherance of their common object to commit murder of Shine, they rushed to the temple compound. No sooner they entered the compound, than the first appellant uttered, kill him. Seeing the assailants rushing with deadly weapons and shouting to kill, Shine ran inside the Chuttambalam. The appellants chased him. Shine fell down in front of the Hanuman temple. The second appellant, accused 2, 4 and 6 chopped Shine with swords and chopper (MOs.2 to 5). Some how or other, Shine got up and tried to enter the sanctum santorum. But he was pulled down by the first appellant and the 5th accused. The 5th accused thereupon DSR.No.3/08 & Crl.Appeal Nos.1412/08 & 899/10. -: 6 :- took the udaval (the scythe of Devi) which was kept on a nearby stand and was armed. The 5th accused along with accused 2, 4 and 6 again inflicted cut injuries on Shine. Shine again got up and ran but, he fell down on the north- eastern corner of the temple. Thereupon the first appellant got the udaval from the 5th accused and he also with the other accused inflicted injuries. There was mass cry. The first appellant threw the udaval in the temple compound and all the assailants took to their heels. Pw5 and others soon brought an ambulance driven by Pw12 and the injured was rushed to the National Hospital at Kodungalloor where Pw9 was the Casualty Medical Officer. After examining the injured, Pw9 declared that the injured was brought dead at the hospital at 12.20 am. Pw9 sent Ext.P5 intimation to the local police station. One Sunil, who is cited as the first witness in the charge sheet and alleged to be the occurrence witness, rushed to Pw14, the Sub Inspector of Police, Mathilakam and narrated Ext.P8 First Information DSR.No.3/08 & Crl.Appeal Nos.1412/08 & 899/10. -: 7 :- Statement at 1.00 am. Pw14 recorded Ext.P8 and registered a case as Crime No.214/2007 by Ext.P8(a) FIR for offence under Sec.143, 147, 148, 324, 302 and 149 IPC. Express message was conveyed to Pw16, the then Circle Inspector of Police, Valappad Police Station. He took over the investigation. In the meantime, Pw14 made arrangements for guarding the scene of occurrence. Pw16 proceeded to the hospital on the next day at 9.00 am. and prepared Ext.P1 inquest report wherein Pw5 is an attester. An underwear, two dothis and a mat which were marked as MOs.11, 12 and 13 were seized at the time of inquest. After sending the dead body for postmortem examination, Pw16 rushed to the spot of occurrence and prepared Ext.P2 scene mahazar at 1.30 pm. Pw6 is an attester to Ext.P2. From the spot of occurrence, the udaval which was marked as MO1 was seized. Pw16 also seized a coconut, two mobile phones, blood stained soil, sample soil, a mat and a piece of red silk which were identified as MOs.8, 6, 7, 14, 15, 16 and 17 from DSR.No.3/08 & Crl.Appeal Nos.1412/08 & 899/10. -: 8 :- the spot. In Ext.P8 there was mention about only five accused (A1 to A5). On 28.3.2007, Pw16 filed Exts.P9 and P10 reports for incorporating Sec.148 and 321 IPC and reporting the address of all the six accused persons. At 5.15 am. on 1.4.2007, the first appellant was arrested from Nattika beach for which Ext.P12 series arrest memo and inspection memo were prepared. The first appellant was produced before the Court along with the remand report after getting him identified by the witnesses. 7. On 7.4.2007 at 5.00 am. the second appellant was arrested from a shed at Munambam fishing harbour for which Exts.P.12 and 13 arrest memo and inspection memo were prepared. He interrogated the second appellant. Shirt and dothi worn by the second appellant, which were identified as MOs.9 and 10, were seized on the strength of Ext.P4 seizure mahazar wherein Pw7 is an attester. During the interrogation, the second appellant stated that he had buried the chopper and swords at Companykkadavu beach DSR.No.3/08 & Crl.Appeal Nos.1412/08 & 899/10. -: 9 :- and in the event he was taken there, he would take it and hand over to Pw16. In pursuance to that statement, Pw16, accompanied by the second appellant went to the beach from where the second appellant digged out the chopper and three swords, which were identified as MOs.2 to 5 and handed over to Pw16. MOs.2 to 5 were seized after preparing Ext.P4 seizure mahazar wherein Pw8 is an attester. Ext.P4(a) is the statement of the second appellant leading to the recovery of MOs.2 to 5. The second appellant was produced before the Court along with a remand report. He then filed a forwarding note for sending material objects for chemical examination. While so, Pw16 was transferred and Pw17 was holding charge for a short period. Pw17 continued the investigation. Pw17 was subsequently succeeded by Pw18 who completed the investigation and laid the charge sheet before the Judl.Magistrate of the First Class, Kodungalloor. 8. In the charge sheet (final report against the DSR.No.3/08 & Crl.Appeal Nos.1412/08 & 899/10. -: 10 :- appellants) it is mentioned that the other four accused were absconding and that since they had to be got identified by the witnesses, final report was not filed against them. The learned Magistrate took cognizance as CP.No.52/2007. On finding that the offences alleged are triable by Court of Session, after completing the requisite procedures, by order dated 27.5.2007 the case was committed to the trial court. 9. The appellants were in custody ever since their apprehension. Production warrant was issued and they were produced before the trial court. They were defended by lawyers engaged by them. After hearing the prosecution and the appellants, charge for offence under Sec.143, 147, 148, 341, 342 and 302 r/w.149 IPC was framed. When read over and explained, the appellants pleaded not guilty. Hence they were sent for trial. On the side of the prosecution, Pws.1 to 18 were examined and Exts.P1 to P17 were marked. 18 materials objects were identified and marked as MOs.1 to 18. After closing the evidence for the DSR.No.3/08 & Crl.Appeal Nos.1412/08 & 899/10. -: 11 :- prosecution, the appellants were questioned under Sec.313 of the Crl.PC. The first appellant denied the incriminating evidence and further stated that he was apprehended by Pw13 on 28.3.2007 and was brutally assaulted. Thereafter, the arrest was recorded on 1.4.2007 and that the case was foisted against him by the relatives of the accused in SC.No.649/2006 in which his brother was murdered and that the witnesses examined had given false statement out of that enmity. He had volunteered to undergo Narco Analysis test, Brain Mapping test and Polygraph test. He also requested to subject Pws.1, 2 and 5 to the above tests for which he had filed two separate petitions. Further he had stated that Pws.1, 2 and 5 had not at all witnessed the incident which led to the death of Shine. 10. The second appellant, though denied the incriminating evidence, volunteered and narrated a story almost identical to the prosecution case except the involvement of the first appellant and the 4th accused. Upon DSR.No.3/08 & Crl.Appeal Nos.1412/08 & 899/10. -: 12 :- hearing the prosecution and the accused and on convincing that the appellants are not liable to be acquitted under Sec.232 of the Crl.PC., the appellants were called upon to enter their defence. On behalf of the first appellant one witness was examined as Dw1 who claims to have witnessed the incident which led to the death of Shine. He had given evidence in support of the statement given by the second appellant under Sec.313 of the Crl.PC. The learned Sessions Judge, after considering the evidence on record and hearing either side, arrived at a conclusion of guilt. Accordingly, the appellants were convicted and sentenced as above. 11. The first informant who put the law in motion was reported abroad and hence his examination was dispensed with. The first information statement was marked in evidence through Pw14 who recorded the same. Pws.1, 2, 3, 4 and 5 are the witnesses relied upon by the prosecution to prove the occurrence. The fact that Shine had a homicidal death is not disputed. According to the first appellant, he DSR.No.3/08 & Crl.Appeal Nos.1412/08 & 899/10. -: 13 :- was not involved in the occurrence that led to the death of Shine. As we mentioned earlier, though the occurrence witnesses were aggressively cross-examined by the second appellant and he denied the incriminating evidence given by Pws.2 to 5, he had given statement even admitting his involvement in the occurrence leading to the death of Shine. 12. Pw1 had deposed that he, who is a fisherman belongs to Kozhipparambil family which owns Sree Bhadrakali Hanuman Swami Temple and that deceased Shine was the oracle of the temple and that on 27.3.2007 the temple festival was going on and that inside the temple compound, Pw4 had been putting the kalom and he was watching the same by standing outside the temple wall. In between 11.30 pm. and 12.00 on that day the appellants along with Ganapathy, Sumesh, Kannan and Anish, (accused 2, 4, 5 and 6) came running to the temple compound. Ganapathy, Sumesh and the second appellant were armed with swords. Anish was armed with a chopper. While DSR.No.3/08 & Crl.Appeal Nos.1412/08 & 899/10. -: 14 :- entering the temple premises, the first appellant was uttering 'cut him and murder' ( .. .. .. ... .. .. ... ... .. .. ... .... ... ... ). Seeing the assailants running, Pw1 followed them. The deceased was found running to the temple compound and fell down before the Hanuman temple. Appellants and other accused ran behind the deceased. The second appellant along with accused 2, 4 and 6 inflicted cut injuries on Shine with MOs.2 to 5. Shine, some how or other, got up and attempted to enter the sanctum santorum. But, he was pulled down at his leg by the first appellant and the 5th accused together. The 5th accused took MO1 udaval kept in the temple premises on a stand and cut at Shine. The other accused, except the first appellant also inflicted repeated cut injuries. Shine again got up and ran away. But he fell down at the north-eastern corner of the temple. By the time the first appellant got MO1 udaval from the 5th accused and inflicted cut injuries stating that, 'it was not to cut in the manner as done and he would show how to cut' DSR.No.3/08 & Crl.Appeal Nos.1412/08 & 899/10. -: 15 :- ( .. .. ... .. .. .. .. .. .. .. .. ... ... ... .. .. .. .. .... ... .. .. .. .. .. .. .. .. .. .. .. .. .. .. ). The other accused also inflicted cut injuries. Seeing the incident, though Pw3 attempted to turn away the assailants, Pw3 was intimidated on sword tip by the first appellant. The ladies and others in the temple compound cried aloud. By the time the first appellant threw MO1 in the compound and all the accused took to their heels. 13. It was also deposed that the first appellant is the son of his father's brother and that the appellants and others were on enmical terms with deceased Shine, who was a member of the Action Committee and had complained before the local police and to the Members of the Legislative Assembly against the appellants and others. It was also deposed that there were number of tube lights fitted in connection with the festival and so there was sufficient light to see the incident. 14. Pw2 would depose that she was the sweeper in the temple and that after 11 O'Clock in the night on 27.3.2007, DSR.No.3/08 & Crl.Appeal Nos.1412/08 & 899/10. -: 16 :- she was sitting on the veranda of the Santhimadom face to face with deceased Shine who was napping and that the appellants along with other accused rushed to the temple compound armed with MOs.2 to 5. No sooner they entered the compound, than the first appellant uttered to murder. The 2nd appellant thereupon inflicted a cut injury on the left shoulder of Shine. Shine ran into the Chuttambalam and fell down in front of the Hanuman Temple. The appellants and other accused thereupon repeatedly inflicted injuries with MOs.2 to 5. Shine got up and ran away, but fell near Nagathara which is on the north eastern side of the temple. The first appellant and the 5th accused inflicted injuries with MO1 and that while the 5th accused chopping on Shine, the first appellant got MO1 from the 5th accused and chopped on Shine. The 2nd appellant inflicted injuries with MO3. It is further deposed that the appellants and others were engaged in criminal activities against which an Action Committee, of which deceased Shine was the President, was constituted DSR.No.3/08 & Crl.Appeal Nos.1412/08 & 899/10. -: 17 :- and that due to that enmity, Shine was attacked and done to death. She had also deposed that since it was festival day there were number of tube lights. 15. Pw3 would depose that deceased Shine was the principal oracle and Pw1 was the oracle of Muthappan Temple and that by about 11.00 pm. on 27.3.2007 he was sitting on the western side of the Thidappally and was napping. Hearing the hue and cry he woke up. He then saw the appellants and the other accused chasing Shine. Shine fell down in front of the Hanuman Temple. The 2nd appellant, 2nd, 4th and 6th accused chopped Shine with swords. Shine attempted to enter sanctum sanctorum. When Pw3 attempted to rescue he was intimidated by waving swords against him. He took to his heels and escaped. Later he understood that Shine succumbed to the injuries. He had also deposed that being festival time, there were number of tube lights. Pw4 would depose that between 11.30 pm and 12.00 on 27.3.2007, while he putting kalom for the next ritual, he heard hue and cry and found DSR.No.3/08 & Crl.Appeal Nos.1412/08 & 899/10. -: 18 :- that five to six persons were chasing deceased Shine, who fell down before the Hanuman Temple. From there he was inflicted cut injuries by three or four persons. Seeing it, Pw4 ran away. According to him, it appears that the appellants were among the assailants. But, he was not sure. 16. Pw5 had given evidence almost corroborating with the evidence adduced by Pw1. He had identified the assailants as well as the weapons. He had further deposed that Shine was immediately rushed to the Modern Hospital, Kodungallur where the doctors declared him dead and that he was present when Ext.P1 inquest report, wherein he was an attester, was prepared was prepared by Pw16. 17. Pw16 had also deposed that he had prepared Ext.P1 inquest report. A reading of Ext.P1 would show that deceased Shine had a number of ante-mortem injuries. Pw9 had deposed that at 12.20 am on 17.3.2007 deceased Shine was brought dead to the hospital with injuries alleged to have been caused by persons who could be identified by DSR.No.3/08 & Crl.Appeal Nos.1412/08 & 899/10. -: 19 :- sight and he gave Ext.P5 intimation. Ext.P5 would corroborate with the evidence of Pw5. 18, PW10 would depose that she was working as Lecturer in Forensic Medicine at Medical College Hospital, Trichur and on 28/03/07 she conducted Postmortem Examination on the body of Shine and noted the following Ante-mortem injuries:- 1. Incised wound 5.5 x 0.5 x 0.3 cm. oblique on left side of back of head, lower inner end 4 cm. above occipital protuberance at midline, raising a flap 5 x 3 cm. reflectable on the left side. Skul bone underneath was intact. 2. Incised wound 6.5x5x2 cm. oblique on back of right arm lower inner 6 cm. above elbow, underneath bone was found cut measuring 1.5 x 0.2x0.5 cm. 3. Superficial incised wound 11x0.3 cm. oblique on outer aspect of right side of abdomen, upper front end 14 cm. outer to midline and touching the costal margin. 4. Incised wound 7.5x2x1 cm. oblique on front and outer aspect of right thigh with tailing of 4 cm. at upper end, lower outer end 6.5 cm. above knee. 5. Incised wound 9x2x4 cm. oblique on right buttock, upper outer end 13 cm. below hip bone. DSR.No.3/08 & Crl.Appeal Nos.1412/08 & 899/10. -: 20 :- 6. Incised wound 21x2x1 cm., curved on right side of back of chest, upper inner end 1.5 cm. outer to midline and 2.5 cm. below root of neck, with concavity towards left. 7. Incised wound 9x4x3 cm. slightly oblique across back of right thigh, just above knee. 8. Incised wound 11x7x4.5 cm., slightly oblique across back of right knee, right end 2 cm. lower than the left end. It had transected the muscles, Blood vessels (popliteal artery and veins), nerves and lower end of thigh bone (condyles of femur) for its full thickness. 9. Incised wound 11x4.5x3 cm. oblique on back of right leg, 6.5 cm. below injury No.8. 10. Incised wound 7x2x2 cm. oblique on back of right leg, lower outer end 3.5 cm. above ankle (lateral malleolus). 11. Incised wound 6x2x1.5 cm. oblique on outer aspect of right leg, upper outer end 8 cm. above ankle (later malleolus). 12. Incised wound 8.5x2x0.5 cm. slightly oblique on top of right foot with inner end at the base of middle toe. 13. Incised wound 3x1x0.2 cm. oblique on inner aspect of left foot, 4 cm. below ankle (medical malleolus). 14. Incised wound 3x2x0.5 cm. placed from front to back on outer aspect of left foot 4 cm. DSR.No.3/08 & Crl.Appeal Nos.1412/08 & 899/10. -: 21 :- below ankle. 15. Incised would 11x3.5x1 cm. oblique on top and back aspect of left shoulder, lower inner end 2 cm. outer to midline at root of neck. 16. Incised wound 13x8x5 cm. placed from front to back on outer end of left shoulder with front lower end at anterior axillary fold 14.5 cm. outer to midline, the muscles underneath found cleanly cut, and neck of humerus for its full thickness. 17. Vertical linear abrasion 10x0.2 cm. on outer aspect of right thigh, upper end 12 cm. below hip bone. 18. Linear abrasion 8x0.2 cm. oblique on outer aspect of right buttock upper back end 1.5 cm. below hip bone. 19. Linear abrasion 7x0.2 cm. oblique on outer aspect of right thigh, upper end 3 cm. below injury No.18. 20. Linear abrasion 10x0.2 cm. oblique on outer and front aspect of right thigh, upper end 8 cm. below injury No.19. 21. Linear abrasion 5x0.2 cm. oblique, parallel and 1.5 cm. below injury No.20. 22. Linear abrasion 9x0.2 cm. oblique on upper part of right buttock, upper outer end 3 cm. below hip bone. 23. Linear abrasion 17x0.2 cm. oblique on DSR.No.3/08 & Crl.Appeal Nos.1412/08 & 899/10. -: 22 :- lower part of back of trunk, lower inner end 9.5 cm. above sacrum at midline. 24. Linear abrasion 4x0.2 cm. transverse