IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN THURSDAY, THE 25TH JUNE 2009 / 4TH ASHADHA 1931 CRL.A.No. 697 of 2005 ------------------------------------ SC.1563/2001 of ADDL. SESSIONS COURT (FAST TRACK COURT I), TRIVANDRUM .................... APPELLANTS/ACCUSED 2 TO 4 : -------------------------------------------------- 1. SUNDARAN, S/O.JOSEPH, MELEPUTHEN VEEDU, THERAKKOTTU, PURAVOORKONAM, KARAKULAM VILLAGE. 2. RAJAN, S/O.JOSEPH, MELEPUTHEN VEEDU, THERAKKOTTU, PURAVOORKONAM, KARAKULAM VILLAGE. 3. KUNJUMON @ KUNJU, S/O.THANKAPPAN @ JOSEPH, LEENA BHAVAN, CHITTALAMAKOD, PURAVOORKONAM, KARAKULAM VILLAGE. BY ADV. SRI.R.BINDU (SASTHAMANGALAM) RESPONDENT / COMPLAINANT -------------------------------------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.S.V.NAZAR THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 25/06/2009 ALONG WITH CRL.A.937/05, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: A.K.BASHEER & P.S.GOPINATHAN, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Crl.A.No.697 OF 2005 & Crl.A.No.937 of 2005 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 25th day of June, 2009 JUDGMENT Basheer, J: Appellants in these two appeals, five in number, were tried for the offence punishable under Sections 307 and 302 read with Section 34 IPC pursuant to the charge sheet laid by Vattappara Police in Thiruvananthapuram district. 2. The gravamen of the charge against the appellants was that they had, in furtherance of their common intention, committed murder of one Stephenson @ Maniyan because of some property dispute between accused No.1 and the deceased and that they had also attempted to commit murder of PW2 in the course of the said transaction. 3. The trial court, after evaluating the oral and documentary evidence adduced by the prosecution, found accused No.1 guilty under Sections 302 and 324 IPC. Accordingly, he was convicted and sentenced to undergo imprisonment for life and to pay a fine of Rs.25,000/- for the offences punishable under Section 302 IPC. In default of payment of fine, he was directed to undergo rigorous imprisonment for a further period of three years. Accused No.1 was further convicted and sentenced under Section 324 IPC to undergo rigorous imprisonment for two years and to pay a fine of Rs.3,000/- with a default sentence of rigorous imprisonment for six months. Criminal Appeal No.937/05 has been preferred by accused No.1 challenging the above order of conviction and sentence passed against him. Crl.A.No.697/05 & Crl.A.No.937/05 :: 2 :: 4. Accused Nos.2 to 4 were found not guilty of the offences punishable under Sections 302 and 307 IPC. However, they were found guilty under Section 323 read with Section 34 IPC and they were convicted and sentenced to undergo rigorous imprisonment for three years each and under Section 324 read with Section 34 IPC they were convicted and sentenced to undergo rigorous imprisonment for two years each and to pay a fine of Rs.3,000/- each with a default sentence of rigorous imprisonment for six months each. Crl.A.No.697/05 is at the instance of these three accused (Accused 2 to 4). 5. The prosecution case may be briefly noticed. 6. Appellants who are admittedly close relatives (Accused No.4 is the elder brother of accused No.1) and deceased Stephenson were on inimical terms in connection with a dispute over a pathway which was allegedly being used by the deceased and his neighbouring property owners. According to the prosecution, there were several altercations and police complaints between the accused and their supporters on one side and deceased Stephenson and his supporters on the other. 7. Prosecution alleged that the four accused in furtherance of their common intention to commit murder of Stephenson waited for him on May 11, 1999 at Kallayam junction where he used to come every evening by bus after his office work. At about 9.30 p.m. deceased Stephenson alighted from a bus at the junction. PW2, a close relative of the deceased was standing on Crl.A.No.697/05 & Crl.A.No.937/05 :: 3 :: the roadside at the junction along with PW1, PW6 and PW9. When the accused saw deceased Stephenson, they allegedly murmured something and followed the deceased. PW1, 2, 4 and 6 smelled a rat. They went behind the deceased and the accused. When the deceased reached near the milk society, a few meters away from the junction, accused No.1 allegedly got in front of the deceased and asked him whether he would point out his residence to the police. When the deceased allegedly retorted asking the accused what would happen if he did so, accused No.1 took out M.O.1 knife from his waist underneath his shirt and stabbed at the lower abdominal region of the deceased. Thereafter, a series of stabs were inflicted by accused No.1 all over the body of the deceased. Accused 2 to 4 shouted encouraging accused No.1 to finish off the deceased. PW2 tried to intervene and prevent the assault. At that time, accused 2 to 4 allegedly exhorted accused No.1 to finish off PW2 also. Accused No.2 allegedly hit deceased Stephenson on the chest with a wooden piece. Accused No.3 hit the deceased with M.O.10 torch in his hand and accused No.4 hit the deceased with his fist in the lower abdominal region. Accused No.1 stabbed PW2 on his neck which was thwarted by him. In the process, he sustained an injury on the upper part of his left hand. Yet again, accused No.1 tried to stab PW2 with M.O.1 knife on his neck which was warded off by the latter and it fell on his shoulder. Stephenson and PW2 were taken to the Medical College Hospital, Thiruvananthapuram immediately. But by the time, they Crl.A.No.697/05 & Crl.A.No.937/05 :: 4 :: reached the hospital, Stephenson had succumbed to the injuries. PW2 was examined by PW3 and admitted in the hospital and treated as an inpatient. PW1 gave Ext.P1, First Information Statement before the police at 12'O clock in the night before PW22, Sub Inspector of Police. Ext.P1(a) First Information Report was registered by the same officer. PW23, Circle Inspector of Police, conducted investigation of the case and PW24 laid charge sheet before the court. 8. PW1 to PW24 were examined and Exts.P1 to P24 and M.O.1 to M.O.20 were marked on the side of the prosecution. Exts.D1 to D9, the contradictions in the statement of the witnesses were marked on the side of the defence. 9. As mentioned earlier, the court below found the appellants guilty and convicted and sentenced them holding that the prosecution had succeeded in proving the respective charges against them. 10. Sri.Vijayabhanu, learned counsel for the appellants in Crl.A.937/05, submits that the court below has committed serious illegality in placing reliance on the evidence of PW1, 2, 6 and 9 to hold the appellant guilty of the offences under Sections 324 and 302 IPC. He points out that the falsity of the prosecution case is apparent on the face of Ext.P1, First Information Statement itself. PW1, who had given Ext.P1 before the police, had a totally different version when he stepped into the witness box. This witness had gone even to the extent of saying that he had willfully given a Crl.A.No.697/05 & Crl.A.No.937/05 :: 5 :: different version before the police in Ext.P1. But according to this witness he had given the correct version before the police at a later stage on the strength of the assurance given by the investigating officer that he would not be implicated in the case. It is further pointed out by the learned counsel that the evidence of PW2, who was admittedly a very close relative of the deceased, ought to have been totally disbelieved by the court in as much as it was patently partisan. As far as the evidence of PW6 and 9 is concerned, learned counsel would submit that they were planted at the alleged scene of occurrence by the prosecution. In short, it is contended by the learned counsel that the court below ought to have given the benefit of doubt to the appellant, especially, in view of the materials brought on record suggesting that there was a scuffle and free-for-all at the scene of occurrence in which the deceased might have sustained the fatal injury. 11. Sri.Bindu, learned counsel for the appellants in Crl.A.697/05 would contend that these three appellants were implicated in the case only because they were related to accused No.1. Even assuming accused No.1 and deceased were on inimical terms and the deceased succumbed to the injuries which he sustained in an unfortunate incident, the appellants who had nothing to do either with the property dispute or any other transaction between accused No.1 and the deceased, ought not to have been convicted for the offences alleged against them, especially, in the absence of any satisfactory evidence. Crl.A.No.697/05 & Crl.A.No.937/05 :: 6 :: 12. Before we deal with the oral testimony of PW1, 2, 6 and 9, who are the prime witnesses on the side of the prosecution, it may be relevant and pertinent to take a quick look at the defence taken by accused No.1 in the case as discernible from the suggestions made to the witnesses in the course of cross examination and also from his statement made under Section 313 of the Code of Criminal Procedure. The defence case appears to be that the incident was the immediate fall out of the aggressive gesture made by the deceased towards accused No.1. To be a little more specific, the case of the defence is that when accused No.1 was walking behind the deceased at the place where the occurrence did take place, the deceased suddenly turned back and asked accused No.1 whether he would point out his residence to the police. While asking this question, the deceased caught hold of accused No.1. We do not propose to refer to the statement given by accused No.1 under Section 313 of the Code at length since we are aware that no conviction can be based on such statement. But the sum and substance of the defence taken by the accused as discernible from the questions put in the course of the cross examination and the statement given under Section 313 of the Code appears to be that an altercation followed immediately when the deceased caught hold of accused No.1 who tried to extricate himself from the grasp of the deceased. Suddenly accused No.1 felt some hard object on the waist of the deceased. He pulled it out. It was a knife. According to the accused, he got scared and in his attempt to Crl.A.No.697/05 & Crl.A.No.937/05 :: 7 :: extricate himself from the grip of the deceased, something happened and he saw the deceased falling down to the ground. 13. We have referred to the above aspect only to highlight the fact that accused No.1 did not have a case that he was not at all involved in any altercation with the deceased at the relevant point of time at the alleged scene of occurrence. He also did not have a case that M.O.1 knife was not the weapon which was involved in the crime. He also did not have a case that the deceased did not die of the injuries sustained in the course of the scuffle or altercation between him and the deceased. 14. The only question that may have to be considered is whether the alleged incident was a fall out of the act of aggression shown by the deceased. The other question may be whether deceased himself was carrying M.O.1 as alleged by accused No.1, as against the case of the prosecution that accused No.1 carried the said weapon with him and committed the murder in a pre-meditated fashion along with other accused. 15. PW1 deposed before court that he was standing on the road side at the junction after finishing his day's work (he is an autorikshaw driver). He stated that he saw the deceased alighting from a bus at the junction as usual at about 9.30 p.m. Deceased Stephenson walked along the road towards his residence. PW1 saw the four accused standing in a corner at the junction. They said something to Stephenson in an aggressive tone. Stephenson walked on and reached in front of the milk society. At that time, Crl.A.No.697/05 & Crl.A.No.937/05 :: 8 :: accused No.1 went after Stephenson. Seeing this, PW1 and 2 also followed. When they reached near the milk society, they saw accused No.1 asking Stephenson whether he would point out his residence to the police. Stephenson retorted and asked if he did so what he (accused No.1)would do. At that time, accused No.1 took out a knife from his waist and stabbed at Stephenson below the abdomen. Stephenson cried out. PW2 jumped in and told accused No.1 not to stab Stephenson. He caught hold of accused No.1. Accused Nos.2 to 4 came running and told him to finish off PW2. Accused No.2 hit Stephenson with a wooden reaper. Accused No.1 stabbed Stephenson again in the lower abdominal region and just above that. Stephenson was also stabbed under the right armpit of the right shoulder and again below the abdominal region, left side of the buttock, etc. According to this witness, accused No.1 stabbed at the deceased several times in quick succession. Accused No.1 also stabbed at the neck of PW2 who warded it off with his right hand which fell on the left shoulder. Accused No.2 inflicted a second stab just below the right shoulder of PW2. Accused No.3 hit Stephenson on his forehead with a torch. Accused No.4 beat Stephenson and PW2 with his hand and fist. This witness further stated that he saw the incident in the light available from the electric bulb burning in front of the Society building and also the church. There is specific reference to two tube lights in front of the church and also in the residence of one Sasi. He identified M.O.1 knife which was used by Crl.A.No.697/05 & Crl.A.No.937/05 :: 9 :: accused No.1. He also identified the dress and chappels worn not only by the deceased but also by all the assailants. Similarly, he also identified M.O.9 wooden reaper and M.O.10 torch. He also spoke about the property dispute between accused No.1 and the deceased and the resultant animosity between them in connection with that dispute. He identified his signature in Ext.P1 statement given before PW22, Sub Inspector. We will deal with the oral testimony of this witness with specific reference to Ext.P1, F.I.Statement a little later. 16. PW2, as we have already mentioned, was also allegedly assaulted by the accused in the course of the incident. This witness also stated that he was standing on the road side at the junction when the deceased alighted from the bus. He saw the deceased heading towards his residence. The four accused were standing near that road. They said something looking at the deceased. PW2 stated that he suspected something was wrong. He and PW1 went behind the deceased. Accused No.1 came behind them. When they reached in front of the milk society, accused No.1 walked past them and got in front of Stephenson. He caught hold of the shirt of Stephenson and asked him whether he would point out his residence to the police. Stephenson replied by asking the accused what would he do, if he pointed out his (accused No.1) residence to the police. At that time, accused No.1 took out the knife from underneath his shirt and stabbed at the vital part below the abdomen. Stephenson cried aloud. Accused No.1 stabbed Crl.A.No.697/05 & Crl.A.No.937/05 :: 10 :: Stephenson repeatedly. PW1 got scared and moved a little away. PW2 tried to intervene. At that time, the other accused came running and encircled them. They exhorted accused No.1 not to let off the deceased and encouraged him to stab. Accused No.1 stabbed at the neck of PW2 which he warded off with his hand. According to PW2, if he had not done so, the stab would have landed on his neck and he would have died. He sustained an injury on his wrist. Accused No.1 stabbed PW2 again which was also warded off and the stab fell on his left shoulder resulting in a deep wound. Accused No.2 hit Stephenson with a wooden reaper. Accused No.3 hit Stephenson with a torch. It broke into two pieces. Accused No.4 fisted at the lower abdomen of the deceased. He also hit him and kicked him. By the time, some people gathered there. Then the accused ran away. Somebody put a bandage on the wound. He and Stephenson were taken to the medical College Hospital in a car. He was admitted in the hospital. A little later, somebody told him that Stephenson had passed away. 17. PW6 and 9 who were examined by the prosecution as the other two occurrence witnesses, spoke almost in identical terms as had been done by PW1 and 2. 18. In the nature of the defence set up by the accused before the trial court and also in the light of the arguments advanced by the learned counsel for the appellants before us, it may not be necessary to refer to or to deal with the evidence of the remaining witnesses at length. Though it was Crl.A.No.697/05 & Crl.A.No.937/05 :: 11 :: vaguely contended that the witnesses could not have seen the incident because of non-availability of sufficient light in that area, it is born out from the evidence on record that the electric bulb was burning in front of the milk society. Apart from that in the church situated just opposite the milk society building, two tube lights were burning. Over and above this, there was street light also, as spoken to by the witnesses. PW10, who was a member of the milk society, had spoken about the availability of light in the society building. PW11, the brother of PW2, deposed that he had gone to the Medical College Hospital immediately after the incident to attend to his brother. PW13, who was working as an Assistant Executive Engineer in the Electricity Board, deposed before the court that he had heard about the seizure of M.O.1 knife from the residential compound belonging to his wife. PW13 was an attester to Ext.P7 scene mahazar. PW14 was a witness to Ext.P8 inquest. PW15 was an attestor to Exts.P9 and P10 mahazars under which two petitions allegedly submitted by the local residents in connection with the property dispute were seized. P10 mahazar was prepared in connection with seizure of the shirt worn by PW2. PW16 was the black smith, who made M.O.1 knife as per order given by one Babu (PW17). PW17 admitted that M.O.1 knife belonged to him. According to this witness, deceased Stephenson and PW2 had borrowed knife from him. He disowned his statement before the police to the effect that it was accused No.1 who had borrowed the knife from him. This statement given by him before the Crl.A.No.697/05 & Crl.A.No.937/05 :: 12 :: police was marked as Ext.P11. This witness was declared hostile. Certain other portions of his statement which were contradictory to what he deposed before the court were also marked in the case as Ext.P12. PW18 was an attester to Ext.P13 seizure mahazar under which M.O.1 knife was recovered from the residential compound of the wife of PW12. But this witness turned hostile to the prosecution. He stated that he did not see the alleged recovery. But he admitted his signature in Ext.P13. PW19 conducted autopsy on the body of the victim and issued Ext.P14 post- mortem certificate. Ext.P15 report of the chemical examiner was also proved through this witness. 19. The injuries (antemortem) noted by the doctor in Ext.P14 certificate are extracted hereunder, since they assume importance in the facts and circumstances of this case: “Injuries (Antemortem): 1. Abrasion, 2 x 0.5 cm, on the middle of forehead, 8 cm above root of nose. 2. Abrasion, 1.5 x 0.5 cm, on right side of front of neck, 8 cm outer to midline and 8 cm below ear. 3. Abrasion, 3 x 1 cm, on the front of middle of chest 2 cm below top of sternum. 4. Linear abrasion, 3 cm long, oblique, on the right side of front of chest, 2cm outer to nipple. 5. Multiple small abrasions over an area, 8 x 7 cm, on the left side of front of abdomen, just outer to midline and 4 cm below costal margin. Crl.A.No.697/05 & Crl.A.No.937/05 :: 13 :: 6. Incised wound 7 x 2 x 3.5 cm, vertical on the right side of front of abdomen, upper end being 13 cm outer to midline and just below costal margin. 7. Incised wound 1..5 x 0.5 x 0.3 cm, oblique, on the right side of lower abdomen, 3 cm in front of anterior superior iliac spine. 8. Incised wound, 6 x 2 x 1 cm, horizontal, on the back of right wrist. 9. Incised wound 4 x 2 x 2 cm, horizontal, on the front fold of right thigh, 10 cm outer to midline. 10. Curved incised wound, 13 x 4 cm, over public region (for a depth of 3 cm) and over inner aspect of upper part of right thigh (for a depth of 7 cm). The femoral vessels underneath severed. 11. Incised wound, 4 x 1 x 3 cm, oblique, on the right side of back of trunk, upper inner end, 12cm outer to midline and 12 cm below top of shoulder. 12. Incised wound, 2 x 0.5 x 1.5cm, horizontal, on the left side of back of trunk, 10 cm outer to midline and 23 cm below top of shoulder.” 20. According to PW19, death of the victim was due to injuries sustained to the right thigh (injury No.10). To a specific question put to this witness in the course of his examination, the doctor stated that injury No.4 could have been caused due to a forceful hit with M.O.9, if the tip of the said weapon came into contact with the body. To another question this witness stated that the rough surface of M.O.10 torch could have caused injury No.1, if its rough surface came into contact with that part of the body. He further stated that injury No.2 could have been caused by a fall face down. More importantly, this witness in his chief examination had categorically stated that injury No.1 could have been caused by hitting with bottom of a Crl.A.No.697/05 & Crl.A.No.937/05 :: 14 :: torch and injury No.4 could have been caused by hitting with M.O.9 (wooden reaper). 21. PW20 was examined apparently to speak about the fact that accused No.2 had gone for work to the residence of PW12. This witness was declared hostile. PW21, Head Constable, deposed that Ext.P17 petition submitted by one Maniyan, S/o Kesavan against deceased Stephenson was enquired into by him. He filed Ext.P17(a) report after conducting enquiry. PW22 recorded Ext.P1 First Information Statement given by PW1. He registered Ext.P1(a) First Information Report. He also spoke about certain other steps taken at the initial stage of investigation. PW23 conducted investigation of the case. He spoke about the process of investigation. The contradictions in the statement of the witnesses were marked through this witness. PW24 laid charge sheet before the court after completing the investigation. 22. We have already indicated about the nature of the defence taken up by the accused, particularly accused No.1. Of course, accused Nos.2 to 4 had raised a specific defence before the court below that they were not at all involved in the case. At the risk of repetition, we may state again that accused No.1 had admitted his presence at the scene and also his involvement in the incident, though it was not, according to him, in the manner as alleged