IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE P.BHAVADASAN TUESDAY, THE 5TH JANUARY 2010 / 15TH POUSHA 1931 CRL.A.No. 2207 of 2005() ------------------------ SC.948/2001 of ADDL. SESSIONS COURT (FAST TRACK-I), TRIVANDRUM CP.406/2000 of JUDL. MAGISTRATE OF FIRST CLASS COURT-II, ATTINGAL .................... APPELLANT(S): ACCUSED 2 TO 4. ------------------------------------------------ 1. AHAMMED KANNU, S/O.ABDUL REHMAN, LAKSHAM VEEDU, MUNDAPLAVILA, VIZHINJAM VILLAGE. 2. SHARAFUDEEN, S/O.MOYDEEN KANNU, SHA & SHA MANZIL, MELATHIL, AMBALKULAM, VIZHINJAM VILLAGE. 3. ABDULMAJEED, S/O.PEERU MUHAMMED, PULIVILA PUTHEN VEEDU, PULLOORKONAM, VIZHINJAM VILLAGE. BY ADV. SRI.SUMAN CHAKRAVARTHY SRI.K.A.JOSEPH RAJESH RESPONDENT(S): COMPLAINANT. ----------------------------------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI. NOBLE MATHEW. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 02/12/2009, ALONG WITH CRA NO. 92 OF 2006 CRA NO.169 OF 2006 THE COURT ON 05/01/2010 DELIVERED THE FOLLOWING: K. BALAKRISHNAN NAIR & P. BHAVADASAN, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Crl. Appeal Nos. 2207 of 2005, 92 & 169 of 2006. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 5th day of January, 2010. JUDGMENT Bhavadasan, J, These three appeals arise out of the judgment in SC.948 of 2001 of the Court of Additional District and Sessions Judge (Fast Track-1), Thiruvananthapuram. 2. Six persons were sought to be prosecuted for the offences punishable under Sections 143, 147 and 302 read with Section 149 of the Indian Penal Code. Among them, the sixth accused absconded and the case against him was split up. The others stood trial. The first and the fifth accused were found guilty of the offences punishable under Section 302 read with Section 34 IPC. Accused Nos.1 to 5 were acquitted of the charges under Sections 143 and 147 IPC and accused Nos.2 to 4 were also acquitted of the charges under Section 302 read with Section 149 IPC but were found guilty of the offence punishable under Section 323 read with Section 34 IPC. The Crl.Appeal.2207/2005 & con.cases. 2 first and fifth accused were convicted for the offence punishable under Section 302 read with Section 34 IPC and sentenced to undergo imprisonment for life and to pay a fine of Rs.25,000/-, in default of which they have to suffer rigorous imprisonment for three years each. Accused Nos. 2, 3 and 4 were sentenced to undergo rigorous imprisonment for one year each and to pay a fine of Rs.1000/- each and in default, each of them had to suffer rigorous imprisonment for three months for the offence punishable under Section 323 read with Section 34 IPC. It is also ordered that if the fine amounts were realised, a sum of Rs.50,000/- shall be paid to the legal heirs of Jalaludeen as compensation under Section 357(1)(b) Cr.P.C. Accused Nos. 2 to 4 have preferred Crl.Appeal No.2207 of 2005, first accused has filed Crl.Appeal No.92 of 2006 and the fifth accused has filed Crl.Appeal No.169 of 2006. 3. The incident in this case occurred on 25.6.1998 at about 7 p.m.. The deceased, namely, Jalaludeen was the Secretary Crl.Appeal.2207/2005 & con.cases. 3 of the Vizhinjam Jama-ath at the relevant time. The accused were members of the said Jama-ath. On the date of the incident, there was a General Body Meeting of the members of Jama-ath. In the meeting held on the date of the incident, the accounts of the committee was being read out, when someone shouted that it was not audible. That sparked of a commotion in the hall. According to the prosecution, at that time accused Nos.1 and 2 shouted from behind that since it was the Secretary and the President, who had given information to the police regarding the persons who caught fish from the sea by using explosives, they should be taught a lesson. Thereafter it was a free for all in the hall. Prosecution said that Jalaludeen, the Secretary of the then Committee, was chased by the accused persons. Jalaludeen ran to the flat concrete roof of the building. He was beaten up by the accused persons and thereafter it is alleged that accused Nos. 1 and 5 caught hold of his limbs and threw him down from the roof of the building. Jalaludeen suffered injuries in the fall and he succumbed to his Crl.Appeal.2207/2005 & con.cases. 4 injuries on 10.7.1998 at about 4.10 p.m.. In the meanwhile, getting information about the incident, police reached Medical College Hospital, Thiruvananthapuram, where Jalaludeen was undergoing treatment, on 26.6.1998 at about 8.30 a.m. Police found that Jalaludeen was not in a position to talk and therefore recorded the first information statement, namely, Ext.P1 furnished by P.W.1. When Jalaludeen was taken to the Medical College Hospital, he was attended to by P.W.20 and Ext.P14 is his case sheet. P.W.19 had also attended to Jalaludeen while he was undergoing treatment in the Medical College Hospital. First Information Statement given by P.W.1 was recorded by P.W.26, the Sub Inspector of Police, Vizhinjam Police Station. He prepared the body note of Jalaludeen, namely Ext.P1(a) and thereafter on the basis of Ext.P1, he registered the Crime as per Ext.P1(b) FIR. Investigation was taken over by P.W.27. He went to the place of occurrence and prepared Ext.P15 scene mahazar. Inquest was done by P.W.27 and thereafter Ext.P7 inquest report was drawn up. The body was sent Crl.Appeal.2207/2005 & con.cases. 5 for autopsy. P.W.18, the Forensic Surgeon attached to the Medical College Hospital conducted autopsy and furnished Ext.P12 report. The chemical analysis report obtained by P.W.18 is marked as Ext.P13. P.W.27 recorded the statements of witnesses and had the accused arrested. On getting information that Jalaludeen is no more, he filed Ext.P20 report seeking to have Section 302 IPC incorporated. It appears that the investigation was handed over to the Crime Branch and C.W.46 had conducted further investigation. Unfortunately, C.W.46 was no more at the time of trial. P.W.27 had deposed that C.W.46 has recorded the statement of other witnesses also. He had obtained the necessary documents and ultimately he laid the charge before court. 4. JFCM-II, Neyyattinkara, before whom final report was laid, took cognizance of the offence. On summons, the accused entered appearance before the said court. On appearance of the accused before the said court all legal formalities were complied with. The learned Magistrate found that the offence was Crl.Appeal.2207/2005 & con.cases. 6 one exclusively triable by a court of Sessions and accordingly committed the case to Sessions Court, Thiruvananthapuram under Section 209 Cr.P.C.. The said court made over the case to Second Additional Sessions Court, Thiruvananthapuram for trial and disposal. In the said court, only accused Nos.1 to 5 entered appearance and since accused No.6 was absconding, the case against him was split up and included in the LPR. Subsequently the case was made over to the Additional District and Sessions Court (Fast Track-I), Thiruvananthapuram for trial and disposal. 5. That court, on receipt of records, issued summons to the accused, who entered appearance. After hearing both sides, charges were framed for the offences punishable under Sections 143, 147 and 302 read with Section 149 IPC. To the charge, the accused pleaded not guilty and claimed to be tried. Prosecution therefore had P.Ws. 1 to 27 examined Exts.P1 to P22 marked. M.Os. 1 to 2 were identified and marked on the side of the prosecution. After the close of the prosecution evidence, the Crl.Appeal.2207/2005 & con.cases. 7 accused were questioned under Section 313 of the Criminal Procedure Code. All of them maintained that they were innocent and have been falsely implicated. Finding that the accused could not be acquitted under Section 232 Cr.P.C., they were asked to enter on their defence. The accused had got Exts.D1 to D10 marked. No other evidence was adduced by the defence. On an appreciation of the evidence in the case, the court below found the first and fifth accused guilty of the offence of murder, while accused Nos.2, 3 and 4 were guilty of the offence of causing hurt to the victim. Accordingly, the conviction and sentence, as already mentioned, followed. 6. The question that arises for consideration is whether any interference is called for with the finding of the court below. 7. The prosecution case in brief is that on 25.6.1998 in the evening, while the Committee meeting of the Jama-ath was going on, a pandemonium broke out and taking advantage of the situation, according to the prosecution, the accused persons chased Crl.Appeal.2207/2005 & con.cases. 8 the Secretary of the Jama-ath, namely, Jalaludeen to the concrete roof of the building and thereafter they beat him up. Then it is further alleged that accused Nos.1 and 5 caught hold of his arms and legs and threw him down from the terrace. The injuries sustained in the fall resulted in the death of Jalaludeen on a later date. 8. It is seen that the Court below had placed considerable reliance on the evidence of P.W.2. The court below has also noticed that P.W.1, the author of Ext.P1, at the time of evidence had not fully supported the prosecution case. Even though P.Ws.3, 4, 13, 17 and 22 were also examined to prove the incident, unfortunately for the prosecution, they too did not fully support the prosecution case. However, corroboration is available in patches from their evidence. Motive is also attributed to the act committed by the accused persons. The accused believed that it was the President, P.W.2 and late Jalaludeen who had disclosed the names of the persons, who were engaged in illegal fishing in the Crl.Appeal.2207/2005 & con.cases. 9 sea, to the police. The prosecution would say that taking advantage of the chaos that occurred in the hall, the act was committed by the accused persons. Then again, there is yet another motive suggested for the first accused to nurse grudge against Jalaludeen, the Secretary. P.W.15 had married late Jalaludeen. Her evidence would show that in fact the first accused had taken a fancy for her and he wanted to marry her. But she was not amenable. 9. As already noticed, the court below found the evidence of P.W.2, supported by the evidence of P.Ws.3, 4, 13, 17 and 22, sufficient to establish the prosecution case. 10. Learned counsel appearing for the appellants severely criticised the finding of the court below. According to the learned counsel, the court below has not applied its mind to the evidence adduced in the case and has acted in a mechanical manner. On a close reading of the evidence, according to the learned counsel, it can be seen that Ext.P1 would not have been the Crl.Appeal.2207/2005 & con.cases. 10 first information statement as claimed by the prosecution. In fact the evidence of P.W.2 and P.W.17 could clearly reveal that the police was informed about the incident on the date of incident itself, that is on 25.6.1998 and the evidence of P.W.17 is to the effect that the police had come to the place and taken a statement. If that be so, Ext.P1 cannot be treated as the first information statement. It is also pointed out that the origin and development of the incident is in serious doubt. Drawing attention of this court to the evidence in the case, it was pointed out that the chaos erupted when someone shouted that they could not hear the Secretary reading the accounts of the Jama-ath Committee. That sparked of the incident in the hall and thereafter, according to the learned counsel, if the evidence is closely read, it can be seen that it was a free for all affair. Even assuming that the first and fifth accused had made exhortions against the Secretary and the President, that by itself is not a ground to hold against the accused persons. There is nothing to indicate that the chaos in the meeting was a deliberate Crl.Appeal.2207/2005 & con.cases. 11 creation of the accused persons with the ill-motive of doing away with the Secretary, namely, Jalaludeen. Prosecution is bound to establish as to what exactly had transpired at the spot and to show that the accused persons had acted in a manner uncalled for. The evidence on record, according to the learned counsel, shows that the Secretary was chased by a number of people and he had ran to the roof. May be that the accused also followed him along with others. It is possible that the Secretary could have slipped and had fallen from the terrace There is absolutely no evidence to show as to what exactly had transpired at the spot and placing of implicit reliance on the evidence of P.W.2 may not be justified considering the fact that there is possibility of manipulation and false implication. Learned counsel appearing for the appellant in Crl.Appeal No.92 of 2006 pointed out that it is rather unbelievable that an issue of the nature, that had erupted on the date of the incident in a sensitive area, would not have come to the notice of the police, especially when the police station was only one Crl.Appeal.2207/2005 & con.cases. 12 kilometre away from the place where the meeting was conducted. Learned counsel also stressed the fact that no wound certificate had been produced by the prosecution and that creates further suspicion in the matter. Claim of P.W.26 that police came to know about the incident only on getting intimation from the hospital on the next day cannot be true in the light of the evidence furnished by P.W.2 and P.W.17. This shows that the prosecution had a lot to hide. Finally, the counsel appearing for the appellants in Crl. Appeal Nos.92 and 169 of 2006, namely accused Nos.1 and 5 pointed out that even assuming that all what prosecution says are true, still it is impossible and inconceivable that Section 300 would be attracted to the facts of the case. 11. In reply, learned Public Prosecutor pointed out that even though the above arguments may look attractive at the first blush, on a close scrutiny, it can be seen that they do not have much substance at all. The fact that the accused persons had not come armed with deadly weapons, and that they have no intention Crl.Appeal.2207/2005 & con.cases. 13 to create trouble in the meeting is not by itself enough to exculpate the accused. At any rate, according to learned Public Prosecutor, they had taken undue advantage of the situation and had done a gruesome act. They had a reason to have a grudge against the Secretary and President. Even assuming that there was a chaos followed by free for all in the meeting, there was no reason for the accused persons to chase the Secretary or to follow him to the roof. They did not leave him there. They unleashed a merciless attack on him by beating, kicking and fisting him. When he had fallen on the floor of the terrace, accused Nos. 1 and 5 held his limbs and threw him down. There was no justification for them to do so. The evidence of P.W.2 is very clear in this regard. Even though the prosecution may not derive complete support from the evidence of P.Ws. 3, 4, 13, 17 and 22, it can be seen that to a large extent their evidence too support the version given by P.W.2. It is also stressed that there was no reason for P.W.2 to falsely implicate the accused persons. On the other hand, the belief of accused Crl.Appeal.2207/2005 & con.cases. 14 Nos.1 and 5 that it was the Secretary and the President, who are responsible for disclosing the names of those persons, who had engaged in illegal fishing, to the police, had resulted in the incident. Learned Public Prosecutor went on to point out that the court below, after considering the evidence in detail, had arrived at a proper conclusion. No grounds are made out to interfere with the said finding. 12. The fact that the then Secretary late Jalaludeen suffered injuries consequent on the fall from the roof and that he succumbed to his injuries on a later date are matters which cannot be disputed. Ext.P14 is the case sheet maintained in the Medical College Hospital, Thiruvananthapuram, where Jalaludeen had undergone treatment. It shows that Jalaludeen expired on 10.7.1998. Ext.P12 is the postmortem certificate issued by P.W.18, who is the Forensic Surgeon attached to the Medical College, Thiruvananthapuram. The said document shows the injuries found on the body of the victim. The cause of death is Crl.Appeal.2207/2005 & con.cases. 15 stated to be due to head injury. The Forensic Surgeon had opined that the injury which caused the death of the victim could be sustained in a fall from the roof of a building. It is pointed out by her that injury Nos.1 and 2 noticed in Ext.P12, with its internal effects are sufficient in the ordinary course of nature to cause death. This shows that death was not due to natural causes. 13. The next question is whether as alleged by the prosecution accused Nos.1 and 5 are responsible for causing the fatal injuries to Jalaludeen. As already noticed, the main evidence on which prosecution placed reliance is the testimony of P.W.2. He was then the Jama-ath President of the Vizhinjam Jama-ath and the deceased was the Secretary. He would depose that on 25.6.1998 a General Body Meeting of the Jama-ath was convened at about 7 p.m. at the Vizhinjam Madrassa Hall. After the meeting had commenced and while the Secretary was reading out the income and expenditure statement, someone shouted from behind that his speech was not audible. At that time, the first and second Crl.Appeal.2207/2005 & con.cases. 16 accused, who were standing outside the hall shouted that the President and Secretary, who were responsible for disclosing the names of those persons, who had done illegal fishing from the sea by using explosives should not be allowed to live. They along with others came rushing at him and the deceased. Even though a few others tried to prevent them, they did not succeed. P.W.2 would say that in order to protect them from attack, Abdul Khader, Abdul Karim and Sainudeen and a few others took P.W.2, Secretary and others to the roof of the building. But the accused followed them. They caught hold of the Secretary and the fourth accused is said to have fisted Jalaludeen from behind. The third accused kicked him. The first accused is said to have stamped him on his chest. Then what P.W.2 would say is that the first accused caught hold of the hands of the deceased and the fifth accused held his legs. They lifted him shouting that the Secretary, who disclosed the names of the persons, who had done illegal fishing from the sea, to the police, should not remain alive, threw him Crl.Appeal.2207/2005 & con.cases. 17 down from the roof. P.W.2 would say that then he found the miscreants turning towards him and out of fear, he took to his heels. He would also depose that the first accused had a grudge towards Jalaludeen, for, the latter having married a lady for whom the first accused had a fancy. Quite often there used to be exchange of words between them in relation to the said matter. 14. P.W.1 is the author of Ext.P1 first information statement. His evidence shows that he runs a tea shop near the Mosque. He was a member of the Jama-ath Committee. He would depose that at the relevant time P.W.2 was the President and the deceased Jalaludeen was its Secretary. On 25.6.1998 the General Body Meeting of the Jama-ath Committee was convened and the meeting commenced by about 7 p.m.. There were about 300 participants. At the time of disclosing the income and expenditure statement of the Jama-ath Committee, there was a complaint that it was not audible and that sparked of a commotion in the hall. He too would depose that at that time three or four persons removed Crl.Appeal.2207/2005 & con.cases. 18 the President and the Secretary to the roof of the building. P.W.1 says that thereafter there was free for all in the hall. According to him, thereafter a few persons had rushed to the roof of the building and he heard one of them shouting that “he is standing here” and he saw somebody kicking the Secretary. But he was unable to identify the person in court. He would depose that he saw the deceased falling from the roof of the building. According to him, the signature found on Ext.P1 belongs to him, but the statement was infact given by P.W.2. He would say that after the statement was recorded by the police officer concerned, since P.W.2 had gone along with Adv. Sri.Gopalakrishnan to see the injured, he signed on the document. It could thus be seen that he has betrayed the prosecution at the later stage. 15. P.W.3 was also examined to prove the incident. He also would say that he had also gone to attend the General Body Meeting of the Jama-ath Committee. He too speaks about the incident which occurred at the time of presentation of the income Crl.Appeal.2207/2005 & con.cases. 19 and expenditure statement and says that a few persons had taken the Secretary and the President to the roof. He would depose that since there was a lot of scuffle and pandemonium in the hall, some of the participants felt that it was safe to remove the President and the Secretary from the place. He would also depose that he saw some persons going to the roof of the building. According to him, he would suspect that they were going to harm the President and the Secretary, therefore he went away from the place. He denied of having seen the incident. 16. P.W.4 is also a participant of the meeting. He would say that when he reached the hall, he found that there was utter chaos in the hall. No sooner than he reached the place, he found a person falling from the roof of the Madrassa. He says that he found five or six persons running away from the roof to the rear portion of the building. Then he soon came to know the person, who fell down from the terrace is none other than Jalaludeen. He would depose that when he looked up seeing the fall of Jalaludeen, Crl.Appeal.2207/2005 & con.cases. 20 he could recognise accused Nos. 1 and 2. He however refused to support the prosecution case regarding the identity of persons and he denied of having seen any of the accused there. 17. P.W.13 is yet another person, who runs a business nearby the Madrassa Complex. He denied having seen the incident as such. He would depose that hearing the noise when he rushed to the place, he found Jalaludeen lying on the floor of the building. he also saw Sudheer and another person taking Jalaludeen to hospital. He also deposed that soon after the incident he saw accused Nos.1 to 6 rushing away from the place. He identified all of them in court. 18. P.W.15 is the lady, whom, the first accused wanted to marry and who, later became the wife of the deceased. She would depose that her marriage to Jalaludeen was not taken well by the first accused. 19. The next witness is P.W.17. He would depose that on 25.6.1998 he had gone to the Madrassa to attend the General Crl.Appeal.2207/2005 & con.cases. 21 Body Meeting. According to him, the meeting commenced at 7 p.m. and the agenda contained the election to the new Managing Committee. The agenda also required the income and expenditure account to be read out to the General Body. A short while after the meeting had commenced, the President asked the Secretary to present the income and expenditure account.