IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 28TH OCTOBER 2009 / 6TH KARTHIKA 1931 CRL.A.No. 616 of 2009() ----------------------- SC. 172/04 CLUBBED WITH SC.1047/2008 of ADDL.SESSIONS COURT FAST TRACK-III, THIRUVANANTHAPURAM CP.54/2002 of JUDL. MAGISTRATE OF FIRST CLASS COURT-I, ATTINGAL .................... APPELLANT(S)/ACCUSED NOS.3, 4, 5, 6,7, 8, 10 & 11: ----------------------------------------------------------------------- 1. SURESH, S/O.KOTHAYAN @ ASOKAN, THYYILAKAM VEEDU, PARUMKUZHY DESOM, AZHOOR VILLAGE. 2. SAJEEV @ KOCHUMON, S/O. ASOKAN, THYYILAKAM VEEDU, PARUMKUZHY DESOM, AZHOOR VILLAGE. 3. SAJI @ ADUTHOMA, S/O.SASI, VAYALTHITTA VEEDU, PARUMKUZHY DESOM, AZHOOR VILLAGE. 4. BIJU @ NANDAN, S/O.RAJENDRAN, VAYALTHITTA VEEDU, MUNDAKKAL MURI, VEYILOOR VILLAGE. 5. SABAREENATH, S/O.THULASEEDHARAN, VISAKHIL, PARUMKUZHY DESOM, AZHOOR VILLAGE. 6. SUNILLAL @ AJITH, S/O.SUDEVAN, THYVILAKAM VEEDU, PARUMKUZHY DESOM, AZHOOR VILLAGE. 7. AMBADI, S/O.GOVINDAN, THOPPIL VEEDU, KOVILNADA, PARUMKUZHY DESOM, AZHOOR VILLAGE. 8. ANILKUMAR, S/O.ARJUNAN CHETTIYAR, PIONDOTTUVILE VEEDU, PARUMKUZHY DESOM, AZHOOR VILLAGE. BY ADV. SRI.P.VIJAYA BHANU SRI.M.REVIKRISHNAN RESPONDENT(S): COMPLAINANT ----------------------------------------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI. NOBLE MATHEW. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 01/10/2009, ALONG WITH CRA NO. 1101 OF 2009 CRA NO. 2012 OF 2009, THE COURT ON 28/10/2009 DELIVERED THE FOLLOWING: K. BALAKRISHNAN NAIR & P. BHAVADASAN, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Crl. Appeal Nos. 616, 1101 & 2012 of 2009 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 28th day of October, 2009. JUDGMENT Bhavadasan, J, Sixteen persons were accused of having committed offences punishable under Sections 143, 147, 148, 324, 326, 201 and 302 read with Section 149 Indian Penal Code. The case against accused Nos. 1, 2, 4 to 8, 10, 12, 13, 15 and 16 was committed initially. Thereafter the case against accused Nos. 3 and 14 was committed. Later accused No.14 absconded. The case against accused Nos. 9 and 11 is yet to be committed as they are not available. At the time of pronouncing the judgment, the first accused absconded. Accused Nos. 1 to 8, 12, 13, 15 and 16 were found guilty of various offences. Accused Nos. 2 to 8, 12, 13, 15 and 16 were therefore convicted and sentenced for those offences. However, as far as accused No.16 is concerned, it was found Crl.Appeals.616, 1101 & 2012/09. 2 that he was juvenile as on the date of commission of the offence and therefore his case was made over to the Juvenile Court for appropriate proceedings. 2. Crl.Appeal No. 616 of 2009 has been preferred by accused Nos. 3 to 8, 12 and 13. Crl.Appeal No. 1101 of 2009 has been filed by accused No.15. Crl.Appeal No.2012 of 2009 has been filed by accused No.2. During the pendency of the appeal accused Nos. 4, 6, 8 and 13 filed Crl.M.Application No. 3199 of 2009 in Crl.Appeal No.616 of 2009 pointing out that they were juveniles at the time of commission of the offences. Crl.M.Application No.5788 of 2009 was filed in Crl.Appeal No. 1101 of 2009 by accused No.15 pointing out that he too was a juvenile at the time of commission of the offences. Since such a controversy arose for consideration, it was felt that the appeals should be disposed of at an early date and therefore the appeals were taken up for hearing. Crl.Appeals.616, 1101 & 2012/09. 3 3. The incident occurred on 22.4.1997 at about 7.45 p.m.. P.W.1, his brother-in-law Satheesan and P.W.2 were chatting near the Nalumukku Junction. At that time, the accused persons numbering about 18 to 20 armed with deadly weapons came towards them. Some of them exhorted “kill him”. Frightened, P.W.1 ran to the nearby ration shop. P.W.2 ran towards another shop. Even though Satheesan, the deceased, tried to escape, initially he was unable to do so. However, he managed to sneak out and run away. He was chased by the assailants. He ran towards a place called Chilambu. Later, when P.Ws. 1 and 2 returned, they came to know that Satheesan was injured and lying nearby. P.Ws.1 and 2 went near him. P.W.1 along with few others took Satheesan to the Medical College Hospital at Trivandrum. He was admitted there. He succumbed to his injuries. On receiving information about the incident on 24.2.1997, P.W.54, the Assistant Sub Inspector of Police, Chirayinkeezh police station recorded Crl.Appeals.616, 1101 & 2012/09. 4 Ext.P1, the statement furnished by P.W.1, and on that basis registered crime as per Ext.P1(a) First Information Report. Crime No.36 of 1987 was registered for the offences punishable under Sections 143, 147, 148 and 302 read with Section 149 IPC. Initial investigation was conducted by P.W.56. He proceeded to the Medical College Hospital and conducted inquest over the body of Satheesan and prepared Ext.P45 report. Thereafter the body was sent for autopsy. P.W.49 conducted autopsy over the body of the deceased and prepared Ext.P48 postmortem certificate. Meanwhile, P.W.56 went to the place of incident and prepared Ext.P12 scene mahazar. He had collected several materials found at the place of the incident. He filed Ext.P53 report showing the details of the accused. The investigation was taken over by P.W.58, who succeeded P.W.56. He recorded the statements of witnesses. Accused Nos. 1, 2, 3, 5, 7, 9 and 10 were arrested on 9.5.1997. On the basis of the confession statement said to have Crl.Appeals.616, 1101 & 2012/09. 5 been given by the first accused, ie., Ext.P20(a), M.O. 1 sword was recovered as per Ext.P20 mahazar. As per Ext.P22(a) confession said to have been made by the second accused, M.O.9 was recovered. As per Ext.56(a) confession statement said to have been given by the second accused, M.O.11 cudgel was recovered. As per Ext.P17(a) confession statement said to have been given by fifth accused, M.O.3 chopper was recovered as per Ext.P17 mahazar. As per Ext.P57(a) confession statement said to have been given by accused No.9, M.O.2 was recovered as per Ext.P57 mahazar. As per Ext.P58(a) confession statement said to have been given by the tenth accused, M.O.10 was recovered as per Ext.P58 mahazar. Later on 18.5.1997, accused Nos. 13, 15 and 16 were arrested. On the basis of Ext.P25(a) confession statement said to have been given by accused No.13. M.O.12 was recovered as per Ext.P25 mahazar. The clothes of the accused were also recovered. As per Ext.P27(a) confession statement said to have Crl.Appeals.616, 1101 & 2012/09. 6 been given by accused No.15, M.O.12 cudgel was seized as per Ext.P27 mahazar. Ext.P60 is the mahazar prepared by him for having seized the clothes said to have been worn by the accused at the relevant time. The seized items were got identified by the witnesses and necessary reports were filed before court. Even though an attempt was made to search out the chopped palm of the deceased, the investigating officer was unsuccessful in doing so. The seized articles were sent for chemical analysis through court. It is seen that subsequent investigation was done by C.B.C.I.D. Investigation was taken over by P.W.60 on 21.1.1998. He filed Ext. P68 report seeking to have the Sections of the Indian Penal Code altered. He completed the investigation, verified the records and laid charge before court. 4. JFCM-I, Attingal, before whom final report was laid, took cognizance of the offence. On appearance of the accused before the said court, all legal formalities were complied with. Crl.Appeals.616, 1101 & 2012/09. 7 Since the offences were exclusively triable by a court of Sessions, the available accused were committed to Sessions Court, Thiruvananthapuram. The said court made over the case to Additional Sessions Judge, Fast Track-III, Thiruvananthapuram for trial and disposal. The latter court on receipt of records, issued summons and had the accused appear before the said court. On appearance of accused Nos. 1 to 8, 10, 12, 13, 15 and 16, after hearing both sides, charges were framed for the offences punishable under Sections 143, 147, 148, 201 and 302 read with Section 149 IPC. To the charge, the accused pleaded not guilty. Later the case against accused No.3 was also committed and charge was framed against him also. He too pleaded not guilty. The case against the third accused and the other accused were clubbed together and were tried jointly. During the pendency of the trial, the 10th accused died and the charge against him stood abated. Crl.Appeals.616, 1101 & 2012/09. 8 5. In order to prove the case against the accused, the prosecution had P.Ws. 1 to 60 examined and Exts. P1 to P70 marked. M.Os. 1 to 27 were identified and marked. After the close of the prosecution evidence, the accused were questioned under Section 313 of the Criminal Procedure Code. They denied all the incriminating circumstances and maintained that they were innocent. Finding that the accused could not be acquitted under Section 232 Code of Civil Procedure, they were asked to enter on defence. They had D.W.1 examined and Exts.D1 to D3 marked. On an appreciation of the evidence in the case, the court below found that the offences have been established against accused Nos.1 to 8, 12, 13, 15 and 16. As already stated, the first accused absconded after the conviction and others were sentenced to suffer various terms of imprisonment except accused No.16. Accused No.16 was directed to be produced before the Juvenile Board. The said conviction and sentence are assailed in these appeals. Crl.Appeals.616, 1101 & 2012/09. 9 6. The question that arises for consideration is whether any interference is called for with the conviction and sentence passed by the court below. 7. The medical evidence clearly indicates that death of Satheesan was homicidal. P.Ws. 55 and 49 are the doctors examined on behalf of the prosecution. Ext.P52 is the wound certificate. P.W.49 is the Forensic Surgeon, who conducted autopsy on the body of the deceased and furnished Ext.P48 report. The Forensic Surgeon noticed as many as 34 ante-mortem injuries on the body of the deceased. According to this witness, the injuries found on the body of the deceased could be caused by using weapons like M.O.1 sword, M.Os. 2 and 3 choppers and M.O.4 knife. According to her, injury Nos. 1 and 2 mentioned by her in the report either independently or in combination are sufficient to cause death. In fact there is no dispute regarding this aspect. Crl.Appeals.616, 1101 & 2012/09. 10 8. The main issue that arises for consideration is whether the prosecution has been able to establish that it was the appellants who had caused the injuries to late Satheesan, which resulted in his death. 9. One of the main witnesses for the prosecution is P.W.1. He would depose that the incident had occurred on 22.4.1997 at about 7.45 p.m.. He along with the deceased and P.W.2 were chatting at Nalumukku Junction. They found a group of persons coming from the Edanjimoola side. They had weapons with them. He identified accused Nos. 1, 2, 3, 5, 6, and 7 as some among them. Realising that they were coming to attack them, P.W.1 ran towards his ration shop. His unfortunate brother-in-law ran towards Chilambu area. P.W.2 ran towards the shop of one Ashokan. The group of persons who had come along chased Satheesan, the deceased. P.W.1 would say that he took refuge in a house near to his shop. Later he saw the group of persons going Crl.Appeals.616, 1101 & 2012/09. 11 towards Edanjimoola. P.W.1 says that when he came out of the house and moved towards Chilambu area, he found a few persons gathered at a spot. Seeing P.W.1, one of them told him that Satheesan was attacked and he was lying on the road bleeding. When he reached the place, he found Satheesan lying there motionless. His left palm was seen chopped off. P.W. 1 says that he along with P.W.2 and others removed Satheesan to Medical College Hospital. A short while thereafter, they were informed that Satheesan is no more. He laid Ext.P1 first information statement on the same morning. He has stated before court that the first accused had a sword with him and the second accused a chopper. Accused No.5 had a chopper with him and so also the sixth accused. Accused No.3 had a knife with him. All others had weapons with them like cudgels etc. He says that the death of Satheesan was caused due to the attack by these persons. He would also depose that earlier there were unpleasant incident on Crl.Appeals.616, 1101 & 2012/09. 12 22.2.1997 also. He had complained in the police station at Chirayinkeezh. The police had come and arrested accused Nos. 5 and 6. Thereafter on 27.2.1997, when P.W.1 was going to park his lorry, he was attacked by them. He again complained to the police. During the festival in Palakkal Prasannagiri temple an incident occurred, in which accused Nos. 1 and 3 were involved. These were the main reasons why probably the group had attacked Satheesan. He identified M.O.1 as the sword used by the first accused. He also identified M.Os.2 and 3. 10. P.W.2 is Thankappan, who at the relevant time was chatting with late Satheesan and P.W.1. He says that the incident occurred on 22.4.1997 at about 7.45 p.m. While they were talking, they found a few people coming from Edanjimoola side with weapons. They came near them and exhorted “..............................” (you chope him to death). Frightened, P.W.2 would say that, he ran into the shop of one Ashokan. P.W.1 ran towards his ration Crl.Appeals.616, 1101 & 2012/09. 13 shop and Satheesan to Chilambu side. The group of persons, who had come armed with weapons chased Satheesan. A short while thereafter the group of persons returned. He he identified accused Nos.1, 5 and 6 and then gave an omnibus statement that the others in the group might have been there. Finding a group of people on the road, he says that he along with P.W.1 went towards that side. They found Satheesan lying on the road with bleeding injuries. His left palm was found chopped off. They fetched the vehicle of one Hassan Kutty and removed the injured to the Medical College Hospital. At about 9 p.m. on the same day, Satheesan left for the heavenly abode. He would depose that the first accused had a sword with him and few others had choppers with them. In fact he would say that all of them were armed. He says that he had come to know that there were few cases between P.W.1 and the accused persons a few months ago. He identified M.O.1 as one of the weapons used by the accused. However, he identified M.O.2 as Crl.Appeals.616, 1101 & 2012/09. 14 the chopper used by the fifth accused. 11. P.W.3 is a casual labourer. At the relevant time, he was running a pan shop at Nalumukku Junction. He was examined to prove the incident. He opens his shop by 4 in the morning and closes at 8 in the night. In fact the shop belongs to somebody else and he was working there. He would say that the incident occurred at 7.30 p.m.. On the said day, at the relevant time he found a person running along the side of his shop. He was found being chased by a few others. There is a house on the opposite side of his shop. About 4 to 5 meters away from his shop the person who had come initially fell on the road. Then he says that sensing trouble, he closed his shop. A short while thereafter a person named Sudheer took some water from his shop and gave it to Satheesan and he learnt that Satheesan had been removed to the hospital. He denied having seen anything more than that and he denied that he had seen the accused or the deceased at the place of Crl.Appeals.616, 1101 & 2012/09. 15 incident. According to him, the group, who chased the deceased consists of about 8 to 10 persons. In fact the prosecution does not get much help from his evidence. 12. P.W.4 was a person, who had come to the shop of P.W.3, to purchase some articles. He says that he heard a commotion from behind and sensing trouble, he returned to his house. He denied having seen anything at that place. 13. P.W.5 went on to say that at about 8 p.m. he saw a few persons running towards the house of Jameela while he was returning from Nalumukku. He would say that he saw P.W.10 giving some water to the injured. He was gracious enough to say that he along with P.W.1 had removed the deceased to the hospital and P.W.1 is his uncle. 14. P.W.6, who was running a fancy shop at Nalumukku junction denied anything to do with the incident. He claimed that on the date of the incident, he had closed his shop Crl.Appeals.616, 1101 & 2012/09. 16 early and he had not seen anything or what had happened thereafter. 15. P.W.7 runs a Bakery at Nalumukku Junction. P.W.8 conducts a stationery shop. All of them denied of having direct knowledge about the incident. Surprising enough P.W.10 Sudheer, who according to the earlier witness was seen giving water to Satheesan had denied having done that. P.Ws.11 and 12 did not support the prosecution at all. P.W.13 conducts a vegetable shop at Nalumukku Junction and P.W.15 a stationery shop. P.W.15 claims that he closed his shop at 7.30 p.m. and P.W.13 denied having seen the incident. He is gracious enough to say that he came to know about the incident on the next day. The evidence of P.W.14 is in no way different. P.Ws. 12 and 16 were examined to prove that they had occasion to see the accused walking with the chopped left palm of Satheesan. They did not support the prosecution at the time of evidence. P.Ws. 18 and 24, who are Crl.Appeals.616, 1101 & 2012/09. 17 cited to prove the various recoveries betrayed the prosecution. So also P.Ws.35 and 36. P.W.38, who was cited to prove the assembling of assailants and their preparation to attack, pleaded ignorance about any such thing. P.W.39, who was cited to prove that he had seen the accused throwing away the chopped palm in a lake denied of having seen any such thing. 16. Apart from the above evidences, the other important items of evidence are the evidences of the investigating officers. The main evidence in this regard is furnished by P.W.58. He speaks about the various recoveries made by him. True, some of the recoveries were made by him based on the confession statement said to have been given by the accused persons. The details regarding the recovery of weapons are given in paragraph 52 of the lower court judgment and it is unnecessary to repeat them. The Forensic evidence will be dealt with later. Crl.Appeals.616, 1101 & 2012/09. 18 17. It could thus be seen that the court below was greatly impressed by the evidence of P.Ws. 1, 2, 5 and 58 taken along with the recoveries said to have been effected by P.W.58 based on the confession statements alleged to have been given by the respective accused persons, the learned counsel for the appellants submits. 18. Learned counsel appearing for the appellants pointed out that the court below is not justified in placing implicit faith on the above evidence and drawing a conclusion based on those items of evidences. In fact there is very little evidence against the accused persons and the finding of the court below is not justified either in law or on facts. The court below omitted to note that going by the forensic evidence, some of the weapons seized contained fowl's blood and that is sufficient to create suspicion about the prosecution case. A few of the accused, according to the learned counsel, have been found guilty merely Crl.Appeals.616, 1101 & 2012/09. 19 based on the recovery evidence furnished by P.W.58. Learned counsel pointed out that even assuming the recovery to be true, that could never be treated as substantive evidence. In fact the identification of the accused is confined to the evidence of P.Ws. 1 and 2 and they had identified only a very few people. It is surprising to note, according to the learned counsel, that the court below has relied on the omnibus statement given by P.Ws. 1 and 2 to rope in a few of the accused. The contention relating to some of the accused with reference to the juvenility has already been referred to. That will be dealt with later. 19. The learned Public Prosecutor on the other hand pointed out that the court below has considered the evidence in detail and has come to the conclusion that there is convincing evidence against a few of the accused. The evidence of P.Ws. 1 and 2 is sufficient to show the involvement of few of the accused and taken along with the recoveries said to have been effected by Crl.Appeals.616, 1101 & 2012/09. 20 P.W.58 based on the alleged confession statement said to have been given by the respective accused are sufficient to hold the culpability of the accused. Learned Public Prosecutor drew the attention of this court that the court below has chosen to hold guilty only those of the accused, whose roles were established by the evidence in the case and therefore there are no grounds made out to interfere with the conviction and sentence passed by the court below. 20. As rightly pointed out by the defence counsel, the evidence available is very meagre. P.W.1 has identified accused Nos. 1, 2, 3 and 5 to 7. He speaks about the weapons carried by them. H identified M.O.1 as the weapon carried by the first accused. M.O.4 as the knife used by the third accused. P.W.2 identified accused Nos. 1, 5 and 6. In fact his evidence is that he knows them very well and as regards others, he makes a very vague statement that all of them might have been present at the Crl.Appeals.616, 1101 & 2012/09. 21 place of the incident. He would say that he found first accused carrying a sword and accused Nos. 5 and 6 had choppers with them. 21. The evidence of P.Ws. 1 and 2 do not show that they had actually seen the incident. Their evidence only show that seeing the group of persons coming armed with weapons, P.W.1 took shelter in a nearby house and P.W.2 in his shop. They however say about having seen the deceased Satheesan going towards Chilambu side and the accused following him. A short while thereafter, they found the accused returning. They soon learnt that Satheesan was seen lying on the road with bleeding injuries. The evidence of these witnesses in this regard stand unimpeached. Of course there are some minor contradictions and inconsistencies in their evidence. But that is not of much consequence. From their evidence one can easily conclude that the injuries were inflicted on Satheesan by the group of people who Crl.Appeals.616, 1101 & 2012/09. 22 had chased him. The court below was therefore perfectly justified in coming to the conclusion that the death of Satheesan was caused due to the injuries inflicted by the accused, who constituted an unlawful group. 22. The next question that arises for consideration is who are the persons who can be said to have been the members of that unlawful group. One may recollect here that P.W.1 had identified accused Nos. 1, 2, 3 and 5 to 7. P.W.2 had identified accused Nos. 1 and 5 to 6. So those are the only persons, against whom there is direct evidence. Weapons had been recovered at the instance of accused Nos.1, 2, 3, 5, 8, 13 and 15 based on their respective alleged confession statements. As