IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE P.BHAVADASAN THURSDAY, THE 3RD DECEMBER 2009 / 12TH AGRAHAYANA 1931 CRL.A.No. 1516 of 2005() ------------------------ SC.202/2001 of SESSIONS COURT, KOZHIKOE .................... APPELLANT(S): ACCUSED NO.4: -------------------------------------------- MANI, PADINJAREKATHU VEEDU, BEYPORE AMSOM, MARAD DESOM, KOZHIKODE. BY ADV. SRI.N.BHASKARAN NAIR SRI.K.B.SAJEESH SRI.P.GOPINATH SRI.C.S.SUNIL SMT.C.G.PREETHA SRI.M.PRAVEESH RESPONDENT(S): COMPLAINANT: ---------------------------------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI. NOBLE MATHEW. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 04/11/2009, THE COURT ON 03.12.2009 DELIVERED THE FOLLOWING: K. BALAKRISHNAN NAIR & P. BHAVADASAN, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Crl. Appeal No. 1516 of 2005 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 3rd day of December, 2009. JUDGMENT Bhavadasan, J, Five persons were sought to be prosecuted for the offences punishable under Sections 143, 147, 148, 307 and 302 read with Section 149 Indian Penal Code. The second accused died during the pendency of the case before the trial court and hence the charge as against him stood abated. Accused Nos.1, 3 and 5 were acquitted of all the charges. The fourth accused was found guilty of the offences punishable under Sections 143, 147, 148, 302 and 307 read with Section 149 of IPC and convicted and sentenced to suffer rigorous imprisonment for six months for the offence punishable under Sections 143 IPC, rigorous imprisonment for two years for the offence punishable under Section 147 IPC, rigorous imprisonment for three years for the offence punishable under Section 148 IPC, imprisonment for life for the offence punishable under Section Crl.Appeal. 1516/2005. 2 302 IPC and rigorous imprisonment for ten years for the offence punishable under Section 307 IPC. He was also directed to pay an amount of Rs.1,00,000/- (Rupees One Lakh) as compensation to the legal representatives of the deceased within twelve months from the date of the order, in default of payment of which, he has to suffer simple imprisonment for a further period of three years. 2. The incident took place on 12.4.1999 at about 11.30 a.m. P.W.1 is residing with his family near the Marad Beach. He is a casual labourer. On the date of the incident, at about 11.a.m. he was on his way to buy provisions from a nearby shop. When he was about to reach his home on return, he heard a loud noise and he found a person lying on the road with injuries. The injured man called him for aid. However, the family members of P.W.1, who were watching the incident, dissuaded P.W.1 from going near the injured. P.W.1 informed the police control room. Thereafter, he went near the injured. By that time police had arrived. Unfortunately the man was dead by then. Another person was also Crl.Appeal. 1516/2005. 3 seen lying a little further away injured in the incident. P.W.1 gave First Information Statement. It was recorded by P.W.19, who registered crime as per Ext.P21 First Information Report as Crime No.45 of 1999. Investigation was taken over by P.W.21. He reached the place and made necessary arrangements for sending the injured to the hospital. He prepared Ext.P23 inquest report. He seized the clothes found on the body of the deceased at the time of inquest and also other materials found at the place of incident. Since the place of occurrence was described in the inquest report, he did not prepare a separate scene mahazar. The body was sent for autopsy. P.W.10 attached to the Medical College, Kozhikode conducted autopsy over the body of the deceased and prepared Ext.P11 report. The report shows that Sujeesh, the victim died as a result of the injury suffered by him on his neck. P.W.21 recorded the statements of witnesses. Subsequent investigation was done by P.W.22. He had the accused arrested. Based on the confession statement given by the first accused, M.O.1 and M.O.1(a) weapons Crl.Appeal. 1516/2005. 4 were seized as per Ext.P17 mahazar. Confession statement given by the third accused was to the effect that he had thrown the weapon into a sea. Based on the confession statement said to have been given by the fourth accused M.O.2 was recovered as per Ext.P29 mahazar. The investigation was completed and final report was laid. 3. JFCM-V, Kozhikode before whom final report was laid took cognizance of the offences. On appearance of the accused before the said court, all legal formalities were complied with. The learned Magistrate, on going through the records, found that the case is exclusively triable by a court of Sessions and accordingly committed the case to Sessions Court, Kozhikode. 4. The said court, on receipt of records, issued summons to the accused and they entered appearance. After hearing both sides, charge was framed for the offences punishable under Sections 143, 147, 148, 307 and 302 read with Section 149 IPC. To the charge, the accused pleaded not guilty and claimed to Crl.Appeal. 1516/2005. 5 be tried. Prosecution therefore had P.Ws. 1 to 22 examined Exts.P1 to P36 marked. M.Os. 1 to 19 were identified and marked. On the close of the prosecution evidence, the accused was questioned under Section 313 of the Criminal Procedure Code. They denied all the incriminating circumstances brought out against them and maintained that they were innocent. On finding that the accused could not be acquitted under Section 232 of Cr.P.C., they were directed to enter on their defence. They had examined D.Ws. 1 to 3 and Exts. D1 to D25 marked. Ext.C1 is the third party exhibit. On an appreciation of the evidence in the case, the court below came to the conclusion that the prosecution has not succeeded in establishing the guilt against accused Nos.1, 3 and 5 and hence they were acquitted. But the fourth accused was found guilty and he was therefore convicted and sentenced as already mentioned. The said conviction and sentence are assailed in this appeal. Crl.Appeal. 1516/2005. 6 5. The fact that Sajeesh died as a result of the injury suffered by him in the incident and also that P.W.3, Suresan was injured, are facts not in much dispute. Ext.P12, which is the wound certificate relating to P.W.3 shows the injuries suffered by him. Ext.P23, the inquest report and Ext.P11, the postmortem certificate show the injuries suffered by Sajeesh and also the fact that he died a a result of the injury sustained by him. It is also evident from the testimony of P.W.10 that Sajeesh died as a result of the injury suffered by him on his neck and the injuries which caused the death are injury Nos. 3 and 4. The doctor has also stated that these injuries are fatal in nature and are sufficient in the ordinary course to cause death. It is therefore clear that the death of Sajeesh was caused by the injuries suffered by him and it is a case of homicide. 6. The main question that arises for consideration is whether the court below was justified in coming to the conclusion that the fourth accused, namely, the appellant herein was one of Crl.Appeal. 1516/2005. 7 the members of the unlawful assembly, which caused the injuries to Sajeesh and P.W.3 and which resulted in the death of Sajeesh. 7. The prosecution based its case on the testimony of P.Ws. 3 to 9 to prove the incident. It also relied on the recovery based on the confession statement said to have been made by the respective accused. Unfortunately for the prosecution, P.Ws. 4 to 9 turned hostile and betrayed the prosecution. Their evidence is therefore of no help to the prosecution. The result is that the prosecution case is based solely on the evidence of P.W.3. 8. The evidence of P.W.3 shows that he and the deceased were active members of CPI(M) political party. They had gone to the house of one Peethambaran, another loyalist of the party to attend a marriage. When they reached the house of Peethambaran, they came to know that the marriage party had already left the house. In order to attend the marriage, they went in search of a vehicle. They came near the shop of P.W.9. In order to drink a soda, the deceased went near the shop of P.W.9. P.W.2, Crl.Appeal. 1516/2005. 8 who was in the shop at the relevant time gave him a soda. Then accused Nos.3 and 4 are said to have reached the place. Following them accused Nos. 1, 2 and 5 reached there. Accused No.2 snatched the soda bottle from the deceased, broke it and stabbed the deceased with the same on his neck. Even though the first attack was warded off, the subsequent attacks caused injuries to the deceased. Others attacked him with swords and the fifth accused is said to have beaten him with an iron rod. The deceased fell on the road. P.W.3 was also not spared. He also suffered injuries and he too collapsed. Even though he tried to escape, he was not fortunate enough to do so. When people began to gather at the scene, the accused are said to have made good their escape. None came to the rescue of the injured. After some time, police reached the place. By that time, Sajeesh had died at the spot and police removed P.W.3, the injured, to the hospital. P.W.3 categorically stated before court that the five persons who attacked him belonged to BJP. They were familiar to him, even though he Crl.Appeal. 1516/2005. 9 did not know their names. He identified the weapons used by the assailants. 9. The court below also relied on the evidence relating to the recovery of M.O.2 on the basis of the confession statement said to have been given by the fourth accused. It is at once to be noticed that the recovery based on the alleged confession statement of first accused was disbelieved. 10. Learned counsel appearing for the appellant raised two points for consideration. They are i) there was no proper identification parade conducted and the identification by P.W.3 of accused No.4 cannot be accepted, and ii) even assuming that the fourth accused had caused any injuries, Sections 143, 147, 148 and 149 of IPC cannot be taken aid of, and he can at best be made liable for his individual acts. 11. As already noticed, the prosecution case now rests on the solitary evidence of P.W.3. He has stated that he and his companion were attacked with sharp edged weapons and iron rods. Crl.Appeal. 1516/2005. 10 The swords, which were alleged to have been recovered were marked as M.Os. 1 and 2. The medical evidence shows that the injuries suffered by the deceased as well as P.W.3 could be caused by the weapons like M.O.1 series and M.O.2. It is true that the wound certificate is slightly confusing, in that injuries were not properly described. But P.W.11 has stated the reasons and has given convincing evidence to show that the injuries could have been caused by the weapons shown to him. 12. The court below then considered issue of identification of the assailants. It appears that P.W.3 had identified accused Nos.1 and 3 to 5 before court. P.W.2, the other staunch witness for the prosecution failed to identify any of the accused persons and did not speak much about the incident also. The main attack is regarding the faulty identification of the accused during investigation. The contention which was taken was that the accused were strangers to P.W.3 also and his identification before court cannot therefore be accepted. It is also Crl.Appeal. 1516/2005. 11 contended before the court below that the identification alleged to have been conducted by the investigating agency is not acceptable. 13. The court below chose to accept the contention regarding the identification during investigation and it was held that it was not properly done. However, the court below rightly held that, that by itself is not a ground to reject the identification made before court. As noticed by the court below, it is not the law that unless the identification parade is conducted at the investigation stage, the identification of the accused before the court cannot be accepted. It is well settled that it is the identification before court that forms substantive evidence. The identification during investigation is only to ensure that the investigating agency is proceeding in the right direction. Well, it may be that a proper identification parade done during investigation stage may support the identification in court. But to say that unless there is an identification parade conducted during investigtion, the identification before court in all cases cannot be Crl.Appeal. 1516/2005. 12 accepted, may not be correct in law. 14. Learned counsel appearing for the appellant pointed out that the earlier version of P.W.3 does not indicate that the accused were familiar to him. The court below has considered this aspect in detail and has come to the conclusion that in the facts and circumstances of the case and also in the light of the evidence adduced before court, the identification of the accused before court can be safely accepted. At the same time, the court below was of the view that to base a finding solely on the basis of that identification would be hazardous and the court had to look for corroborative evidence. The court below mainly relied on the recovery said to have been made on the basis of the confession statement alleged to have been given by the respective accused persons as corroborative evidence. 15. The evidence shows that P.W.3 was not aware of the names of the accused. But he was able to identify the accused in court. The court below has given cogent reasons as to why it Crl.Appeal. 1516/2005. 13 has accepted the identification by P.W.3 of the accused in court. No legal or factual infirmities are established to hold that the said finding is incorrect. 16. As far as the first accused was concerned, the prosecution sought to prove the recovery of M.O.1 and M.O.1(a) on the basis of the information said to have been furnished by the first accused. M.O.1 and M.O.1(a) are alleged to have been recovered from the wedge of the cudjan screen on the western side of the shop of P.W.9. The prosecution examined P.Ws. 15 and 16 to prove the recovery. But the court below on an analysis of the evidence has come to the conclusion that the evidence adduced by the prosecution regarding the recovery of M.Os. 1 and 1(a) cannot be accepted for various reasons. As far as the fourth accused was concerned, it is found that the relevant portion of the confession statement was marked as Ext.P19(a), M.O.2 is alleged to have been recovered as per Ext.P19 mahazar and the evidence of recovery was given by P.Ws. 17 and 22. Crl.Appeal. 1516/2005. 14 17. Fortunately for the prosecution, P.W.17, an independent witness for the recovery of M.O.2 weapon supported the prosecution. As per his evidence, it is seen that he along with the attestor to Ext.P19 were returning after taking their meals to their work place. They happened to see a police jeep coming along and enthusiasm carried them to the place where the police jeep was stopped. They happened to see the police bringing out the fourth accused from the jeep and he pointed out the place to the police personnel. He also speaks about the police man taking a weapon from under the grass. P.W.22, the investigating officer, speaks about the recovery of M.O.2. Fortunately for the prosecution, the chemical analysis report shows that M.O.2 contained human blood belonging to O group, which compared well with the blood stains found on M.O.3, the pant which P.W.3 was wearing at the relevant time. 18. Learned counsel appearing for the appellant Crl.Appeal. 1516/2005. 15 pointed out that the court below was not justified in taking aid of Section 27 of the Indian Evidence Act in support of the recovery of M.O.2. It was pointed out that Ext.P19(a) the relevant portion of the confession statement does not disclose the authorship of concealment and therefore the alleged confession statement cannot fall under Section 27 of the Indian Evidence Act. It is pointed out that true the court had extracted an answer from P.W.22 regarding this aspect. According to learned counsel since the averment under Section 27 did not contain authorship of concealment, the testimony of P.W.22 in that regard before court is of no value. If that be so, the court below was not justified in taking those items of evidence against the accused. According to learned counsel, like in the case of other accused, accused Nos. 1, 3 and 5, he is entitled to the benefit of doubt and can claim acquittal on that basis. 19. We are afraid that we cannot accept the above contention. It is true that unless the confession statement which Crl.Appeal. 1516/2005. 16 led to the recovery contained the authorship of concealment, it may not fall within the ambit of Section 27 of the Indian Evidence Act. But it is not the law that unless it is stated in the mahazar, which evidences the recovery, it cannot be said that the authorship of concealment is not revealed. It is by now well settled that the court by virtue of Section 165 of the Indian Evidence Act can ask the investigating officer regarding the authorship of concealment and if the witness gives an answer in the right direction, that can be accepted. Even though the disclosure statement may not as such contained authorship of concealment, in the light of the fact, a court, conscious about its duty during trial if it chooses to get an answer from the investigating officer, it cannot be said that the court has erred in any manner. In fact it shows that the court was actively participating in the trial and was keenly following the same and it is the duty of the court to do so, which is well recognised in law. 20. Even assuming that the contention of the learned Crl.Appeal. 1516/2005. 17 counsel for the appellant is accepted, and that the statement which led to the recovery cannot be brought under Section 27 of the Act, the fact that the weapon was recovered at the instance of the accused constitute a conduct relevant under Section 8 of the Indian Evidence Act and will form a corroborative piece of evidence. May be that it is not as strong as an evidence under Section 27 of the Act, but nevertheless it is a piece of evidence which goes against the accused. Viewed from that angle also it cannot be said that the court was unjustified in taking the aid of a clinching item of evidence against the appellant. We shall not forget that M.O.2 weapon, which was recovered at the instance of the fourth accused contained human blood of O group, which matched with the blood group of P.W.3. The contention based on identification and authorship of concealment will therefore have to fail. 21. What now remains is the contention regarding he offences said to have been committed by the fourth accused. One may first refer to the finding of the court below in this regard. It is Crl.Appeal. 1516/2005. 18 established from the evidence on record that Sajeesh died as a result of the injury suffered by him and P.W.3 had suffered injuries at the hands of the assailants. As already noticed, the court below was disinclined to hold that the prosecution has succeeded in establishing the guilt against accused Nos.1, 3 and 5 for reasons already made mention of. The evidence of P.W.3 shows that the fourth accused, who was found guilty by the court below had infact inflicted injuries on P.W.3 as well as on the deceased. The question would be whether the court can take the aid of Section 149 to fasten vicarious liability on accused No.4. 22. The court below observed that, even though it was slow to accept the evidence of P.W.3 , there is convincing evidence of an assembly of five persons including accused Nos.2 and 4 armed with deadly weapons, had attacked P.W.3 and the deceased on the relevant day. The court below goes on to say that the deceased Pushparajan, accused No.2, and accused No.4 came to the scene of occurrence with deadly weapons, and they all Crl.Appeal. 1516/2005. 19 assaulted P.W.3 and the deceased in front of the shop of P.W.9. Even though P.W.3 ran to escape, he was followed and assaulted by the assailants. The court below was therefore persuaded to hold that Section 149 is attracted. 23. The question is whether the above view is correct. It needs to be noticed that the prosecution has no case that except the five named accused persons, any other person had any role in the incident. It is important to notice that the second accused died even before the trial had started and he has not faced trial at all. The charge against him stood abated also. It cannot be said that he was a member of the unlawful assembly for the simple reason that he has not faced trial at all. To hold that he is a member of the unlawful assembly would be indicting him without trial, which may not be proper in law. The court below had chosen to hold that the evidence regarding the involvement of accused Nos.1, 3, and 5 is not sufficient, and the court acquitted them of all the charges. That leaves accused No.4 alone in the field. Crl.Appeal. 1516/2005. 20 24. A close reading of the records produced by the prosecution and the evidence of P.W.3 and other prosecution witnesses does not indicate that anybody other than the five persons named in the charge was actually involved in the incident. True the records reveal that initially the prosecution had a case that there were seven persons. But when the final charge was filed before court, the number was confined to five and those five persons had been clearly identified. P.W.3, no where in his evidence has stated that, apart from the five named persons, any other person was involved. P.W.22 has also no such case. It is in this context one has to consider the finding of the court below regarding the vicarious liability cast on accused No.4. The court below has taken aid of Section 149 IPC. The question is whether that is proper. It will be first useful to read the Section. It reads as follows: “149. Every member of unlawful assembly guilty of offence committed in prosecution of common object.- If an offence is committed by any member of an Crl.Appeal. 1516/2005. 21 unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence.” The essential ingredients are: 1) Commission of offence by a member of the unlawful assembly, and 2) Such offence must have been in prosecution of the common object of that assembly or must be such as the members of that assembly knew to be likely to be committed. An important ingredient is that the number of members constituting the unlawful assembly must be five or more. When the prosecution has tried to establish the case against five assailants put forward in the charge, and when some of them are acquitted, whether Section 149 IPC will have any application? Crl.Appeal. 1516/2005. 22 25. It has been held that even though the number of the convicted persons is