IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI THURSDAY, THE 25TH MARCH 2010 / 4TH CHAITHRA 1932 CRL.A.No. 2176 of 2005 ------------------------ SC.1316/2003 of I ADDL. SESSIONS COURT, KOLLAM CP.67/2000 of JUDL.MAGISTRATE OF FIRST CLASS, SASTHAMCOTTA .................... APPELLANTS: ACCUSED 1. 2 3 AND 5 ---------------------------------- 1. DEVARAJAN @ KUNJUMON, S/O.RAGHAVAN, ANU BHAVANAM, PADINJATTUM MURI, SOORANADU VADAKKU VILLAGE. 2. ANIL KUMAR, S/O.JALADHARAN, ANIL BHAVANAM @ THARAYIL PUTHEN VEEDU, PADINJATTUM MURI, SOORANADU VADAKKU VILLAGE. 3. CHANDRAMATHY, D/O.BHARATHY, DO.DO. 4. SREEKUMAR @ PODIYAN, S/O.JALADHARAN, ANIL BHAVANAM @ THARAYIL PUTHEN VEEDU, PADINJATTUM MURI, SOORANADU VADAKKU VILLAGE. BY ADV. SMT.SANGEETHA LAKSHMANA RESPONDENT: COMPLAINANT -------------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR MR. K.J. MOHAMMED ANZAR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 25/3/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.BASANT & M.C. HARI RANI,JJ ============================== CRL. A. NO. 2176 OF 2005 ============================ DATED THIS THE 25TH DAY OF MARCH 2010 JUDGMENT Basant,J. i)Did the court below err in accepting the oral evidence of PWs. 1 to 6 about the alleged incident ? ii) Did the court below err in coming to the conclusion that the common object of the alleged unlawful assembly was to commit murder of PW1 and the deceased ? iii)Was the court below justified in not conceding accused 1 to 3 and 5 (or any one of them) the benefit of doubt? The learned counsel for the appellants Ms.Sangeetha Lakshmana assails the impugned verdict of guilty, conviction and sentence imposed by the court below under the impugned CRA 2176/2005 -2- judgment against the appellants on the above grounds. 2. The appellants have been found guilty, convicted and sentenced under Sections 143, 147,148, 323,324,307 and 302 read with Section 149 of the Indian Penal Code to undergo imprisonment for a period of three months, for one year, two years, one year, two years, five years and imprisonment for life respectively for the said offences. In addition, the appellants have been sentenced to pay a fine of Rs.5,000/- each for the offences punishable under Sections 307 and 302 I.P.C. Default sentences have also been imposed. 3. The prosecution alleged that accused 1 to 5, close relatives, were members of an unlawful assembly armed with dangerous weapons at 7.30 p.m. on 20/12/1998 at the scene of occurrence near the house of the deceased. Each of them carried dangerous weapons, Mos.1 to 5. They entertained common animus against the deceased and PW.1. PW2 (daughter of PW1 and his deceased wife) had got married to CRA 2176/2005 -3- PW4, who is the brother of accused 1 and 3. This marriage was allegedly not approved by accused 1 and 3 (brother and sister) and their children. Accused No.4 is the son of accused No.1 whereas accused 2 and 5 are the sons of Accused No.3. According to the prosecution, there was some incident in the morning and on account of the animosity arising from such incident between Accused No.3 and the deceased also, all the accused armed with dangerous weapons indulged in acts of violence against deceased Ammini and her husband, PW1 Sadasivan. Accused No.1 using MO.1 chopper allegedly inflicted injuries on the head of the deceased and PW1. The other accused used MOs.2 to 5, different types of iron rods, to inflict injuries on the deceased and PW1. The accused persons dragged the deceased and PW1 then to a paddy field which was filled with water. They were left there. They were subjected to assault there also. People of the locality came to the scene. The accused took to their heels. PW1 suffered CRA 2176/2005 -4- serious injuries whereas deceased Ammini, his wife, succumbed to her injuries. 4. On the basis of Ext.P1 F.I. statement lodged by PW1 before PW13 at 11.30 p.m. on 20/12/1998 when PW1 was undergoing treatment at the hospital , Ext.P1(a) F.I.R. was registered by PW13 at the police station at 2 a.m. on 21/12/1998. That F.I.R. reached the court at 11.20 a.m. on 21/12/1998. Investigation commenced on the basis of Ext.P1 (a)F.I.R. Investigation was completed and final report was filed by PW15. The learned Magistrate, after observing the statutory formalities, committed the case to the Court of Session. Before the Court of Session, out of the five accused, only four faced indictment. Case against the 4th accused, a juvenile, was filed before the Juvenile Justice Board. All the four appellants/accused denied the offences alleged against them and there upon the prosecution was directed to adduce evidence in support of its case. CRA 2176/2005 -5- 5. The prosecution examined PWs.1 to 15 and proved Exts.P1 to P15. MOs. 1 to 18 were also marked. PWs.1 to 6 are alleged witnesses, who have either seen the occurrence or had reached the occurrence immediately after the occurrence. PWs.7 and 10 are Medical Officers. PWs. 8, 9 and 11 are the attestors to documents prepared by the investigating officer. PW.12 had prepared the site plan. PWs.13 to 15 are police officials, who had roles to play in the investigation of the crime. 6. Accused, in the course of cross examination of prosecution witnesses and in the course of 313 examination, took up a defence of total denial. Accused No.3 alleged that there was an incident on that evening and she was attacked by PW1 and the deceased. She had allegedly suffered injuries. The local public had collected on coming to know of the overt acts against the third accused. It is her case that PW1 and the deceased may/must have suffered injuries at the CRA 2176/2005 -6- hands of the irate crowd, who did not approve of the conduct of PW1 and the deceased. In support of this theory advanced by the third accused, DWs.1 and 2 were examined and Exts.D1 and D2 were marked on the side of the accused. DW1 is the Doctor, who examined the third accused, 25 days after the date of the alleged incident, i.e.20/12/1998. Ext.D1 is the wound certificate issued by DW1 when she was examined long later after she was released on bail. Ext.D1 is dated 14/1/1999. DW2 claims to be a witness who had reached the scene of the crime after the occurrence. She had not witnessed the occurrence. 7. The learned Sessions Judge, on an anxious consideration of all the relevant inputs, came to the conclusion that the prosecution has succeeded in proving all the offences alleged against the appellants/accused. Accordingly, the learned Sessions Judge proceeded to pass the impugned verdict of guilty, conviction and sentence. CRA 2176/2005 -7- 8. Before us, Ms.Sangeetha Lakshmana, learned counsel for the appellants and Sri.Mohammed Anzar, learned Public Prosecutor have advanced their arguments. The learned counsel for the appellants assails the impugned verdict of guilty, conviction and sentence on the grounds referred to in paragraph 1 of this judgment. 9. The prosecution relied on the following pieces of evidence/circumstance to drive home the case of the prosecution. 1)The motive 2)The oral evidence of PWs.1 to 6 about the incident proper. 3) The support for the oral evidence of PWs.1 to 6 from a)Ext.P1 F.I.statement b)Medical evidence c)Recovery of Mos.1 to 5 10. The learned counsel for the appellants contends that CRA 2176/2005 -8- these pieces of evidence/circumstances are totally unreliable and should not have been accepted and acted upon. At any rate, the learned counsel for the appellants argues that the benefit of doubt must have been conceded to the appellants/accused. 11. We shall now proceed to consider the contentions raised. At the outset, we must mention that an appellate judgment is and has to be read in continuation of the judgment of the trial court. The court below has adverted in detail to all the oral and documentary evidence as also the other matters which were available before court including 313 statements of the accused. We have been taken in detail through the oral evidence of PWs.1 to 15 and DWs.1 and 2. We have been taken through Exts.P1 to P15 and Exts.D1 and D2. In these circumstances, we reckon that it is unnecessary to re-narrate all pieces of oral and documentary evidences and other matters in detail in this appellate judgment. Suffice it to CRA 2176/2005 -9- say that we have rendered our anxious considerations to all materials available and this judgment continues from where the trial court judgment is closed. 12. The first piece of evidence relied on by the prosecution is the evidence about the motive. PW4 is the brother of accused Nos.1 and 3. PW4 had got married to PW2, the daughter of PW1 and the deceased. This was not an arranged marriage. PW2 and PW4 wanted to get married. They had the support of the parents of PW2, i.e.PW1 and the deceased. After marriage, PW4 was obliged to shift his residence to the house of his wife/parents-in-law as he was not welcome at his parental house. This had infuriated accused 1 and 3, who are brother and sister of PW4. The other accused are the children of accused 1 and 3. They also entertained animosity against PW1 and the deceased on this score. We have the evidence of PWs.1 to 6 on this aspect. We find no reason whatsoever not to believe the case of the prosecution CRA 2176/2005 -10- and evidence of these witnesses about the strained relationship between PW1 and the deceased on the one hand and the accused on the other. In addition to the oral evidence of these witnesses, the prosecution has also produced before court Ext.P2, which is the complaint lodged by PW1 before the local Paurasamithi in which he had ired a grievance that accused 1 and 3 as also some others were tormenting PW1 and the deceased on account of animosity arising from the marriage between PWs. 2 and 4, which was solemnised with the approval/blessings of the Paurasamithi. We find no reason not to accept and act upon Ext.P2, which confirms this strain in the relationship between the accused on the one hand and the deceased and PW1 on the other. 13. In addition to this evidence about the prior motive, which was there for a long period of time after the marriage between PWs.2 and 4 took place, we have further evidence from PWs.2,3 and 6 about an incident which happened earlier CRA 2176/2005 -11- on that morning. The evidence of PWs.2 and 6, can of course, be said to be interested. PW3 is a neighbour. The evidence of Pws.2, 3 and 6 clearly shows that on that morning also, there was some exchange of words wherein the third accused allegedly threatened and intimidated deceased and PW2. Bone of contention, going by the evidence, was the marriage between PWs.2 and 4 which was not approved by the accused persons. The said marriage had allegedly taken place on 14/9/1998. 14. We are satisfied from the totality of the circumstances referred above that the prosecution evidence about the strain and animus which the accused entertained against PW1 and the deceased, has been proved satisfactorily. The prosecution, we agree with the court below, has succeeded in establishing the alleged motive entertained by the accused against the deceased and PW1. 15. The evidence of PWs.1 to 6 is then relied upon by the CRA 2176/2005 -12- prosecution. PW4 is not an eye witness in the strict sense. According to the prosecution, PW1, the deceased and PW2 had gone to a local temple and had come back to their house. PW6 could not go to the temple on account of personal reasons on that date. PWs.1, 2 and the deceased had allegedly returned from the temple. PW4 continued to remain in the temple in connection with some pooja that was being offered by PW4 on that date. After PW1, PW2 and the deceased reached their house, some one called the name of PW1 and PW1 on hearing the same got out of his house and proceeded to the place from where he heard the call. The call was given by accused No.1. Accused Nos. 2 to 5 were allegedly waiting along with accused No.1 armed with dangerous weapons near the scene of the crime. When PW1 reached the scene of the crime, accused No.1 allegedly inflicted multiple injuries on the head of PW1 with MO.1 and PW1 fell on the ground. The other accused inflicted injuries CRA 2176/2005 -13- on him with MOs.2 to 5, dangerous iron rods, which they had in their possession. PW1 cried aloud. His cry attracted the attention of the deceased, PW2 and PW6 who were available at the house of PW1. It also attracted the attention of PWs.3 and 5 who have their house close to the place of occurrence as can be ascertained from Ext.P9 plan prepared by PW12 on the basis of Ext.P10 scene mahazar prepared by PW14. PW3 had allegedly seen accused 1 to 3 and 5 near the scene of the occurrence even prior to the incident. She was afraid and she and her husband, who was also available in the house, did not go to the scene of occurrence. On hearing the cries, the deceased, PW2, PW6 and PW5 came to the scene of occurrence. PW1 was lying with the injuries. On seeing the deceased, accused No.1 allegedly inflicted injuries on her head also with MO.1. The other accused also beat the deceased with Mos.2 to 5. She was dragged from that spot to a paddy field filled with water. She was beaten and kicked at CRA 2176/2005 -14- that venue also. PW1, after suffering the initial attack, was found moving at the place where he had fallen. This invited the ire of the accused persons. Some of them continued to beat him with dangerous iron rods, which they carried. He was also dragged to the place where the deceased was dragged to. Hearing their cries, people assembled and then the accused went away from the scene of the crime. 16. The evidence of PW1, PW2,PW3, PW5 and PW6 are relied on by the prosecution to drive home the details of what had occurred at the scene of occurrence. PW4 had come to the scene only later when he received information while at the temple from some others about the incident that had taken place at the scene of the crime. Police were available in the locality in connection with the festival at the temple. It appears, information was passed to the local police station and police personnel from the local police station came to the scene of the crime in a jeep on receipt of such information. CRA 2176/2005 -15- The injured and PW1 were removed from the police jeep to PW7, doctor. There the deceased was pronounced dead. PW1 was examined by PW7. He issued Ext.P3 wound certificate. In Ext.P3 wound certificate, the injuries suffered by PW1 are recorded in detail. The alleged cause is also recorded by PW7 in Ext.P3 wound certificate. The alleged cause is recorded by PW7 as “cut and beaten with some weapons”. Ext.P3 wound certificate is seen issued at 9.35 p.m. on 20/12/1998. PW7 had referred PW1 to a higher centre for treatment and it is there that at 11.30 p.m. PW13 recorded Ext.P1 F.I. statement of PW1. 17. In Ext.P1 F.I. statement recorded at 11.30 a.m. on the basis of which Ext.P1(a) F.I.R. was recorded at 2 a.m. on 20/12/1998 which F.I.R. reached the court at 11.20 a.m., we get a fairly exhaustive narration of what had happened at the place of occurrence from the mouth of PW1. This earliest version in Ext.P1 does inherently, intrinsically and on broad CRA 2176/2005 -16- probabilities inspire the confidence of the court. We have such an exhaustive narration of the incident that had taken place in Ext.P1. 18. PW1 had suffered the injuries. To that extent, his presence at the scene of the crime and the probability of his having witnessed the incident emerges convincingly. PWs.2 and 6 are the daughters of PW1 and the deceased. They have their house close to the scene of occurrence. They had come rushing to the scene of occurrence along with the deceased, on hearing cries of PW1. Inherently and on broad probabilities, we find no reason to doubt or suspect the version of PW2 Bini and PW6 Bindu. There is a contention that PW2 must, in all probabilities, have been available with her husband PW4 at the temple where some religious rites had to be performed by PW4. Therefore, PW2 is unlikely to have come to the scene of the crime, urges the counsel. We find no merit in this contention. PWs.2 and 6, we find, are CRA 2176/2005 -17- most natural witnesses who must have been present at the scene of the crime. Even Ext.P1 reveals that PW2 had gone along with PW1 and the deceased to the temple and had returned along with them. Slippers of PW6 were found available at the scene of the crime and that also convincingly supports the oral evidence of PW6 of her presence at the scene. Except that, PW1 happens to be the injured and PWs.2 and 6 happens to be the daughters of the injured PW1 and the deceased, no other circumstances are pressed into service to assail the evidence of PWs. 1,2 and 6. We find, the evidence of PWs.2 and 6 to be inherently inspiring and we find no reason not to concur with the conclusion of the court below that PWs.1, 2 and 6 are the natural witnesses, whose presence at the scene of the crime is explained satisfactorily. 19. The prosecution further relied on the evidence of PW3 and PW5,as stated earlier, they are persons having their residence close to the place of occurrence. This can be CRA 2176/2005 -18- ascertained from Ext.P10 scene mahazar and Ext.P9 plan. Though, it is contended that, PW5 has an axe to grind against the accused and it was he who actually took initiative and offered support for the relationship between PWs2 and 4, we find absolutely nothing inherently and on broad probabilities to approach the evidence of PW5 with any amount of doubt, distrust or suspicion. PW3's evidence impresses us as very natural. She initially had seen the accused persons at the scene with weapons. She was afraid to go near the scene of the crime initially. She chose to remain indoors. But she heard the cries and perceived the incident after she heard the cries and the commotion from the scene of the crime. PW4's evidence offers only broad support for the evidence of PWs.1 to 3, 5 and 6. On coming to know of the incident, he rushed to the scene of the crime and there he perceived the events after he reached the scene of the crime. PW1 and the deceased with injuries were lying at the scene of the crime. It CRA 2176/2005 -19- was he who arranged to take them to the hospital of PW7. 20. The court below did not find anything unacceptable in the evidence of PWs.1 to 6. We have detailed discussion of all nuances in the appreciation of evidence undertaken by the lower court reflected in the judgment. 21. The learned counsel for the appellants has pressed into service various circumstances to assail the oral evidence of the eye witnesses. Counsel argues that in Ext.P1, it was not specifically stated that the blunt side of MO.1 was used by accused No.1 to attack PW1 and the deceased. Now such an allegation is pressed into service in the course of evidence on oath only to explain the absence of cut injuries on the head of the deceased and PW1. In short, the counsel argues that witnesses are not truthful witnesses, but are persons who are prepared to transform their version to suit the requirements of the prosecution. Counsel hence argues that the oral evidence of these eye witnesses must be approached with CRA 2176/2005 -20- considerable amount of suspicion and reservation. The counsel reminds the court that even admittedly there was animosity between the rival groups. 22. We have rendered our anxious consideration to this contention. In order to satisfy ourselves we called for the material objects. We have carefully examined MO.1. It is true that MO.1 has two edges, one of which can be stated to be sharper than the other. By no stretch of imagination, can it be called a sharp edge. It remains a blunt edge, though of the two edges one can be said to be the sharper one. We are unable, in these circumstances, to come to the conclusion that the statement of PW1 that the blunt edge of MO.1 had hit the head of PW1 and the deceased can in any way persuade the court to approach the testimony of the eye witnesses with any amount of doubt or distrust. Even if it were stated by the witnesses that the injuries were caused with that relatively sharper edge of MO.1, we feel that it may not have been CRA 2176/2005 -21- possible to argue that the lacerated injuries found on the skull could not have been caused by that relatively sharper edge of the weapon. We do not, in these circumstances, perceive any sinister significance in the statement of witnesses that the blunt edge was used for the infliction of the injuries on the head of the deceased and PW1. 23. Learned counsel for the appellants argues that the version of the witnesses who have tendered ocular evidence must be considered in the wake of inadequacy of evidence on the light available to facilitate identification of the accused by the witnesses. It is the case of the prosecution witnesses that light available from the lamp post afforded sufficient light to facilitate identification. We have gone through the scene mahazar and scene plan. We do find lamp post described/marked in the scene mahazar and scene plan. It is, of course, true that the investigating officer has not specifically verified whether the bulbs were available in the CRA 2176/2005 -22- lamp post and whether they were burning. In the mahazar, there is no detailed narration of the availability of bulbs and verification on the part of the investigating officer as to whether actual source of light was available on that lamp post. The court below had adverted to this aspect. The possibility of light being available is indicated convincingly by the description in the scene mahazar as also in the scene plan prepared on the basis of the scene mahazar. The evidence of the ocular witnesses show that they were able to see the incident and sufficient light was available to facilitate such ocular perception by them. Even the version of the accused, when it comes to the specific defence advanced by accused No.3, does not at all suggest absence of light to facilitate ocular perception. We do not, in these circumstances, find any substance in the argument that the ocular testimony of witnesses must be discarded for the reason that sufficient light may not have been there. CRA 2176/2005 -23- 24. Learned counsel for the appellants then argues that Ext.P3 certificate issued by PW7 knocks the bottom out of the version of the ocular witnesses. PW1 and the deceased were taken to the hospital. PW7, Doctor had examined PW1. The alleged cause was narrated to PW7. There is no specific statement that it was the accused persons, who inflicted the injuries on PW1. Learned counsel for the appellants relies on the further fact that the nature of the weapons is not also described in Ext.P3 wound certificate. We have already extracted the precise statement of the alleged cause recorded by PW7. It is true that the names of the assailants have not been given to the Doctor. It is true that specific details of the weapons used have not also been given to the Doctor. But one has to be realistically cognizant of the state of mind of the victim/injured at that time. Deceased, the wife of PW1, had