IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI WEDNESDAY, THE 28TH SEPTEMBER 2011 / 6TH ASWINA 1933 CRL.A.No. 2467 of 2006() ------------------------ SC.201/2002 of ADDL. SESSIONS COURT (ADHOC-I), THALASSERY CP.45/2001 of JUDL.MAGISTRATE OF FIRST CLASS COURT-II, KANNUR .................... APPELLANT(S): ACCUSED NOS.2 TO 5 & 7, 9, 12: -------------------------------------------- 1. SAJINEESH @ SAJU, AGED 27 YEARS, S/O.DOLY, CONTONMENT, BURNASSERY, KANNUR TALUK, KANNUR DISTRICT. 2. ROY ROBERT, AGED 26 YEARS, S/O.ROBERT ANTONY, BURNASSERY, KANNUR TALUK, KANNUR DISTRICT. 3. SURFRAS @ RINKU, AGED 23 YEARS, S/O.ASAF AMMENA, BURNASSERY, KANNUR TALUK, KANNUR DISTRICT. 4. RAJESH ROBERT, AGED 22 YEARS, S/O.ROBERT, BURNASSERY, KANNUR TALUK, KANNUR DISTRICT. 5. NAVEEN MANOJ, AGED 29 YEARS, S/O.SREENIVASAN, BURNASSERY, KANNUR TALUK, KANNUR DISTRICT. 6. SOLAMAN SHAJI, AGED 28 YEARS, S/O.MUHAMMADKNHI, BURNASSERY, KANNUR TALUK, KANNUR DISTRICT. 7. AJAYA WILLIAM @ ANJU, AGED 25 YEARS, S/O.WILLIAM, BURNASSERY, KANNUR TALUK, KANNUR DISTRICT. BY ADV. SRI.P.VIJAYA BHANU SRI.M.REVIKRISHNAN RESPONDENT(S): COMPLAINANT: --------------------------- STATE-SHO KANNUR, CITY POLICE STATION, REP.BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI. C.S. HRITHWIK THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 28/09/2011 ALONG WITH CRL. APPEAL 12 OF 2007, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V. RAMKUMAR & P.Q. BARKATH ALI, JJ. ....................................... Crl. A. Nos. 2467 of 2006 & 12 of 2007 ........................................ Dated:28th September, 2011 JUDGMENT Ramkumar J. In these appeals filed under Section 374(2) Cr.P.C. the appellants who were accused Nos. 1 to 5, 7,9 and 12 in Sessions Case No. 201 of 2002 on the file of the Addl. Sessions Court, Thalassery, challenge the conviction entered and the sentence passed against them for offences punishable under Sections 143,147,148, 326 and 302 read with Sec. 149 I.P.C. The appellant in Crl.Appeal No.12/2007 is the 1st accused and the appellants in Crl.Appeal No.2467/2006 are accused Nos.2 to 5,7,9 and 12. Among the appellants, A1 alone was convicted for murder punishable under Sec. 302 I.P.C. Altogether 15 accused persons stood trial before the court below. Out of them A6, A8,A10,A11 and A13 to 15 were acquitted of all the offences. PROSECUTION CASE 2. The case of the prosecution can be summarised as follows:- On 26.12.1999, at 7.40 pm on the R.C.Church road Crl. A. Nos. 2467 of 2006 & 12 of 2007 -:2:- running east-west at Barnassery in Kannur-1 village, the 15 accused persons formed themselves into an unlawful assembly and committed rioting armed with deadly weapons like dagger, choppers, hockey sticks etc. and in prosecution of the common object of the said assembly A1(Joy Devaraj) stabbed Bobby aged 22 years on the left side of his chest with MO3 dagger, A2 and A3 (Sajinesh @ Saju and Roy Robert) beat and poked Bobby with hockey sticks and others fisted and kicked Bobby for and on behalf of A1 to A3. The motive for the occurrence was a quarrel between PW5 (Bennet Ignatius) and A4 (Surfras @ Rinku) in the night of 24.12.1999 under the influence of drink and at that time deceased Bobby who was in the company had supported PW5. The accused have thereby committed offences punishable under Sections 143,147,148,324 and 302 read with 149 IPC. THE TRIAL 3. On the accused persons 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.W.s 1 to 14 and got marked 13 documents as Exts.P1 to P13 and 5 material objects as MOs.1 to 5. 4. After the close of the prosecution evidence, the accused were questioned under Sec. 313 (1)(b) Cr.P.C. with regard to the Crl. A. Nos. 2467 of 2006 & 12 of 2007 -:3:- incriminating circumstances appearing against them in the evidence for the prosecution. They denied those circumstances and maintained their innocence. The 1st accused had the following to submit before the Court:- The street light was not burning at the place of occurrence in the night of 26.12.1999. At about 7.30 pm, a few persons came along the place of occurrence after their days's work. Thinking that he was also among them, PW5, deceased Bobby and their gang attacked them and it was in the course of that attack that Bobby got killed. On the next day morning PW1 and others went to the Police Station and a false case was foisted against him after influencing the Police. He was actually arrested from his house. The 2nd accused stated as follows:- This was a false case foisted by PWs1.to 5 under the pretext of the faction fight in the church. He was taken into custody from his house in the evening of 27th. At that time PWs.1 and 5 were in the Police Station. The 3rd accused had the following to submit before court:- He was not at the place of occurrence at that time. A false complaint was foisted against him on account of the dispute in the church. He was arrested in the evening. Crl. A. Nos. 2467 of 2006 & 12 of 2007 -:4:- The 4th accused had the following to submit before court:- He had a love affair with the younger sister of PW1's wife. He was falsely implicated in the case on account of the enmity arising from the said love affair. He was arrested from his house. The 9th accused submitted that he was not present at the place of occurrence and that he was also falsely implicated in the case in the name of the dispute in the church. Thereafter he was taken into custody from his house in the evening of 27th. The 12th accused also submitted that he was not present at the place of occurrence and that this was a false case foisted under the pretext of the dispute in the church and that he was taken into custody when he reported for work. 5. Since this was not a case of “no evidence” for the prosecution within the meaning of Section 232 Cr.P.C, the learned Sessions Judge did not record an order of acquittal of the accused persons at that stage. The accused were, therefore, called upon to enter on their defence and to adduce any evidence which they might have in support thereof. They examined 5 witnesses as DWs. 1 to 5 and got marked Exts.D1 to D12 series. 6. The learned Additional Sessions Judge, after trial, as per judgment dated 13.12.2006 acquitted accused Nos.6,8,10,11 and 13 to 15 of all the offences , but convicted A1 of offences punishable under Sections 143,147,148 and 302 IPC. Accused Crl. A. Nos. 2467 of 2006 & 12 of 2007 -:5:- Nos.2 to 5, 7,9 and 12 were convicted of offences punishable under Sections 143,147,148 and 326 read with 149 IPC. For the conviction under Section 143 IPC, each of the appellants was sentenced to rigorous imprisonment for six months. For the conviction under Section 148 IPC each of the appellants was sentenced to rigorous imprisonment for three years. No separate sentence was awarded to any of the appellants for the conviction under Section 147 IPC. For his conviction under Section 302 IPC, A1 was sentenced to imprisonment for life and to pay a fine of Rs. 25,000/-(Rupees twenty five thousand only) and on default to pay the fine to suffer rigorous imprisonment for two years. For the conviction under Section 326 IPC A2 to A5,A7, A9 and A12 were each sentenced to rigorous imprisonment for four years and to pay a fine of Rs.10,000/- (Rupees ten thousand only) and on default to pay the fine, to undergo rigorous imprisonment for one year. The substantive sentences were directed to run concurrently. The entire fine amount, as and when realised, was directed to be paid as compensation to the legal heirs of deceased Bobby. It is the said judgment which is assailed in these appeals by the aforementioned/accused persons. THESE APPEALS 7. We heard Senior Adv. Sri.P.Vijayabhanu, the learned counsel appearing for the appellants and Adv. Sri.M.S.Breeze, the learned Public Prosecutor. 8. The only point, which arises for consideration in these Crl. A. Nos. 2467 of 2006 & 12 of 2007 -:6:- appeals, is as to whether the conviction entered and the sentence passed against the appellants are sustainable or not. THE POINT:- WITNESSES FOR THE PROSECUTION 9. A) PW1 (Dikson Jerry) is an occurrence witness who is also the first informant. He proved Ext.P1 F.I.S. and MOs.1 to 3. He also showed the place of occurrence to the Investigating Officer. B) PW2 (K.T.Varghese) and PW3 (K.R.Rainold Suresh) are also occurrence witnesses but PW3 had only seen the initial part of the occurrence. C) PW4 (T.M.Ranjith @ Babu) was cited by the prosecution to prove the occurrence. However, he turned hostile to the prosecution. D) PW5 (Bennett Ignaias K.R.) who is the friend of the deceased as well as PW1, deposed about a previous incident in the night of 24-12-1999 between himself and A4, constituting the motive for the occurrence. E) PW6 (Jerry Mariyadas) is the father of PW1 and his brother Shaji (CW5). He was an attester to Ext.P3 scene mahazar. F) PW7 (Dr.A.V.Abdulla) who was the Asst. Surgeon, District Hospital, Kannur proved Ext.P4 death intimation dated 26-12- Crl. A. Nos. 2467 of 2006 & 12 of 2007 -:7:- 1999 given by the Kannur Town Police after the dead body of Boby was brought dead to the District Hospital. Ext.D10 wound certificate pertaining to Boby was also proved through him by the defence. G) PW8 (Dr.P.Dinesh) who was the Assistant Surgeon, District Hospital, Kannur conducted autopsy of the dead body of Boby on 27-12-1999 at 1.30 p.m. and issued Ext.P5 postmortem certificate. He noted 4 incised injuries, 3 contused abrasions and 2 linear parallel contusions on the body of Boby. His opinion as to cause death was hemorrhage due to the incised wound on the apex of heart. H) PW9 (K.Rajagopalan) was the Special Village Officer of Kannur- I Village who proved Ext.P6 scene plan. I) PW10 (Shinai) is an attester to Ext.P7 recovery mahazar dated 28-12-1999 pertaining to MO2 series of hockey sticks and MO3 knife, pursuant to Ext.P11 confession made by the first accused. J) PW11 (Babu Alachintavida) is the Scientific Assistant attached to the District Police Office, Kannur. He had collected bloodstained earth and control sample of earth from the place of occurrence. K) PW12 (M.V.Kunhanandan) was the Sub Inspector of Police, Kannur City Police Station. He recorded Ext.P1 F.I.S. of PW1 from the Police Aid Post inside the District Hospital, Kannur at 9 p.m. on 26-12-1999. Later he registered Ext.P1 (a) F.I.R. Crl. A. Nos. 2467 of 2006 & 12 of 2007 -:8:- L) PW13 (M.Damodaran) was the Circle Inspector of Police who conducted the major part of the investigation. On 27-12-1999 between 9 a.m. and 11 a.m. he held inquest over the dead body of deceased Boby and prepared Ext.P2 inquest report to which PW1 is an attester. MO4 shirt and MO5 pants of the deceased were seized under Ext.P2 at 11.30 a.m. on 27-12-1999. He inspected the place of occurrence and prepared Ext.P3 scene mahazar under which he seized MOI series of chapels of the deceased. He had also seized bloodstained earth and a control sample of earth made available to him by PW11. On 28-12-1999 he filed Ext.P8 report for adding names of all the 15 accused. On the same day at 12.30 p.m. he arrested all the 15 accused persons from the banks of the river at Kattakkulam. Ext.P9 series and Ext.P10 series are the arrest memos and inspection memos respectively pertaining to the accused persons. On 28-12-1999 at 5 p.m., pursuant to Ext.P11 confession statement made by A1, PW13 recovered MO2 series of hockey sticks and MO3 dagger from a drain by the side of a public road behind St. Thomas Orthodox Syrian Church, Barnassery near the entrance of the Military quarters under Ext.P7 recovery mahazar to which PW10 is an attester. PW13 submitted the original of Ext.P12 forwarding note for sending the material objects to the Chemical Examiner for detection of blood, if any, on them. Thereafter, PW13 gave a requisition to the Village Officer, Kannur-I Village for getting a scene plan. M) PW14 (K.V.Balakrishnan) was the Circle Inspector of Police who succeeded PW13. He laid the final report before the committal court. Ext.P13 certificate of chemical analysts was Crl. A. Nos. 2467 of 2006 & 12 of 2007 -:9:- marked through him. As per the said certificate human blood of Group A was found on item Nos. 1, 3 and 4 which are bloodstained earth taken from the place of occurrence. MO3 dagger which was recovered under Ext.P7 mahazar and MO4 shirt of the deceased seized under Ext.P2 inquest report. DEFENCE WITNESSES 10. A) DW1 (Dr. A.D. Asha Rani) who was the Assistant Surgeon, District Hospital, Kannur proved Ext.D9 wound certificate of PW5 after examining him at 8.40 pm. on 26-12- 1999. PW5 had three abrasions allegedly inflicted by 30 persons who could be identified by sight and the time of occurrence was stated to be 7.45 p.m. at Barnassery Volca Electronics Industries. B) DW2 (Sajiv Kumar) was a Hawildar in the Cantonment Area. He deposed that all the 24 hours there will be a sentry duty at all the three entrances, except at the DSC road gates where there is no sentry duty. C) DW3 (Nithil Nirmal) was a photographer attached to Minerva Studio. He took Ext.D11 and D12 photographs of the entry and the passage in the year 2006 on the request of the third accused. Ext.D11(a) and D12(a) are the negatives. D) DW4 (Chandrakumar @ Umesha) claims to have seen CWs. 2 and 5 at 7.45 p.m. on 26-12-1999. According to him, he saw CW2 taking Boby to the hospital but did not see PW1 or PW2 accompanying CW2. Crl. A. Nos. 2467 of 2006 & 12 of 2007 -:10:- E) DW5 (Sanath Bose) claims to have seen the deceased, CW2 and CW5 talking with each other at 7.30 p.m. about 50 metres away from the spot where the dead body was subsequently found. JUDICIAL EVALUATION 11. After a careful re-appraisal of the oral and documentary evidence in the case and after hearing both sides, we are of the view that while the conviction entered and the sentence passed against A1 do not call for any interference , the conviction entered and the sentence passed against A3 to A5 and A9 are unsustainable and the conviction entered and the sentence passed against A2, A7 and A12 need alteration in the manner to be indicated in the course of this Judgment. PLACE OF OCCURRENCE 12. The place of occurrence is the R.C. Church road running east-west . The said road joins the Barnassery main road on the east. At the point where the R.C. Church road joins the Barnassery main road there is a culvert shown as 12 in Ext.P6 scene plan. The Barnassery main road which runs north-south joins the Mission Shop Road running east-west on the north and joins the Barnassery Road running east-west on the south. The point where the Barnassery Main Road joins the Barnassery Road on the south is popularly known as J.S. Junction. There is a row of houses both on the northern and southern sides of the R.C. Crl. A. Nos. 2467 of 2006 & 12 of 2007 -:11:- Church Road . The exact scene of occurrence is the middle of the R.C. Church road in between the house of Solemn Shaji (which is also the house of M.P. Muhammed Kunhi) on the north and shown as No. 2 in Ext.P6 scene plan and the house of Christian Pushparaj on the south and shown as No. 6 in Ext.P6 scene plan . The house of P.W.1 (Dixson Jerry) and his brother Shaji (CW5) is on the eastern side of the Barnassery main road some distance away to the north of the point at which the R.C. Church road joins the Barnassery main road. The said house is shown as 18 in Ext.P6 scene plan. THE EVIDENCE OF PW1 (DIXON JERRY) 13. P.W.1 works as a pharmaceutical representative. At about 7.40 p.m. on 26-12-1999 P.W.1, CW2 (Byju) and P.W.2 (Varghese) were talking on the road in front of the house of P.W.1. At that time Renjith (P.W.4) came on his scooter from the north. P.W.4 stopped the scooter near the culvert from where the R.C. Church road proceeds westwards. Deceased Bobby, P.W.3 and Shaji (CW5 - the brother of P.W.1) were talking at the culvert . P.W.4 also joined them. While so, all the accused persons armed with deadly weapons such as dagger, choppers, hockey sticks etc. were seen running towards the culvert from the J.S. Junction on the south. P.W.1 and others were then talking at the R.C. Road - Barnassery Main Road junction. A1 was having MO3 dagger and A3, A4 and A9 were having choppers and A2 and A12 were having MO2 series of hockey sticks. The rest of the accused were wielding sticks. On seeing them P.W.3 and C.W.5 ran away and took asylum Crl. A. Nos. 2467 of 2006 & 12 of 2007 -:12:- in the house of P.W.1 and CW5 (shown as 18 in Ext.P6 scene plan) . Bobby suddenly got on to the pillion seat of the scooter of P.W.4 with a view to escape from there. Soon after the scooter was started its engine suddenly stopped . At that time A1 caught hold of Bobby and dragged him down. Bobby who stood up was stabbed on the left side of his chest by A1 with MO3 dagger. A3,A4 & A9 cut Bobby on the head and legs with the choppers in their hands . The others beat him with hockey sticks and sticks. Bobby fell on the ground . In the meanwhile, Renjith escaped from there on his Scooter . The assailants ran towards north in front of the house (shown as 18 in Ext.P6 scene plan) of P.W.1. P.W.1 and P.W.2 and Byju (CW2) took Bobby to the District Hospital, Kannur in an autorickshaw which came along that way. The doctor after examining Bobby pronounced him dead. The police constable on duty in the police aid post inside the District Hospital had called the Sub Inspector to whom P.W.1 gave Ext.P1 F.I. statement. P.W.1 saw the occurrence in the street light as well as in the light emanating from the nearby houses as also the light provided by the Christmas stars. Deceased Bobby and others were members of the group which was against the sale of liquor in that area. The accused were engaged in illicit sale of liquor in that area. There was a quarrel between P.W.5 (Bennet Ignatious) and A4 in the night of 24-12-1999 with regard to the above issue and during the said quarrel Bobby had supported P.W.5 . This was the motive for the attack on Bobby. Crl. A. Nos. 2467 of 2006 & 12 of 2007 -:13:- 14. P.W.2 Varghese also substantially corroborate the version of P.W.1 by saying that A1 stabbed the deceased with the dagger, A3,A4 and A9 cut the deceased with choppers and A2 and A12 beat him with hockey sticks. He further stated that among the others A7 alone beat the deceased. 15. P.W.3 Reynold Suresh who saw only the beginning of the occurrence to see the assailants armed with weapons coming from the southern side towards the culvert stated that A1 was wielding a dagger and A3, A4 and A9 were having choppers in their hands. Before noticing other details he along with CW5 (Shaji the brother of P.W.1) ran into the house of P.W.1 out of fear. 16. The accused persons were engaged in the illicit sale of liquor at Barnassery and the deceased Bobby and his friends were against such activities of the accused. Going by the testimony of P.W.5 (Bennet Ignatious) there was a quarrel between him and A4 at 11.30 p.m. on 24-12-1999 inside the shop by name Volca Electronic Industries at Barnassery and at that time deceased Bobby had sided P.W.5 and A4 had then threatened Bobby. Thereafter, at 7.30 p.m. just before the present occurrence, the accused persons had attacked P.W5 from Convent Road, Barnassery, as revealed by Ext.D9 wound certificate proved through P.W.7 doctor. It was thereafter that the present occurrence took place at 7.40 p.m. on the R.C. Church Road at Barnassery. P.W.1 has credibly stated both about the motive as well as the Crl. A. Nos. 2467 of 2006 & 12 of 2007 -:14:- subsequent occurrence. Eventhough initially himself, CW2 and P.W.2 were talking from the vicinity of the house of P.W.1 (shown as 18 in Ext.P6 scene plan), P.W.1 has definitely stated that by the time the assailants came there, himself and others were talking at the road junction. The culvert (shown as 12 in Ext.P6 scene plan) is at the junction from where a person standing there can see the occurrence taking place on the R.C. Church road proceeding towards west from the said junction. Hence, we are not inclined to accept the defence contention that it was not possible for P.W.1 to see the occurrence from the vicinity of his house where he was talking with CW2 and P.W.2. P.W.1 has definitely stated that the rest of the accused persons (i.e. other than A1, A2, A3,A4,A9 and A12) were having sticks and Aw and A12 were having hockey sticks and A1 was having a dagger. According to P.W.1, when Bobby attempted to leave the place by sitting on the pillion seat of the scooter driven by P.W.4, the engine of the scooter suddenly stopped and at that time A1 pulled Bobby down and stabbed him with MO3 knife. Injury No. 1 noted by P.W.8 (Autopsy Surgeon) in Ext.P5 postmortem certificate is an incised wound 4cm x 1 cm. in the 5th left intercoastal space laterally and downwards 6 cm. below the nipple and 13 cm lateral to the mid line of chest and the said injury had pierced inter coastal muscles into the thoracic cavity cutting the pleura and piercing inferior lobe of the left lung and cutting the anterio lateral aspect of pericardium and cutting the apex of the heart. Eventhough the name of P.W.2 does not figure in Ext.P1 F.I. statement given by P.W.1, from that alone we are not Crl. A. Nos. 2467 of 2006 & 12 of 2007 -:15:- inclined to accept the defence contention that P.W.2 is a planted witness. However, P.W.2 said that A2 and A12 beat the deceased with hockey sticks and among the rest of the accused persons A7 alone beat the deceased. The testimony of P.Ws 1 and 2 to the effect that A3, A4 and A9 cut the deceased with chopper was an improvement made for the first time while they were in the witness box. Both of them did not have such a version when questioned by the police. No chopper also has been recovered or produced before Court. P.W.3 also did not have a case when questioned by the police that A3, A4 and A9 were holding choppers in their hands. Hence, that part of the testimony of PWs 1 to 3 to the effect that A3, A4 and A9 were wielding choppers is nothing but an exaggeration or an improvement made after nearly 7 years of the occurrence. Both P.Ws 1 and 2 have credibly stated that A2 and A12 were holding hockey sticks in their hands and both of them beat the deceased with the hockey sticks which were produced as MO2 series . Those hockey sticks and MO3 dagger were recovered under Ext.P7 recovery mahazar pursuant to Ext.P11 confession made by A1. With regard to the rest of the accused persons, P.W.2 was categoric that A7 alone beat the deceased. If so, A3 to A5 against whom no overt acts have been attributed and who standon the same footing as those accused persons who were acquitted by the trial Court, cannot