IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 18TH NOVEMBER 2009 / 27TH KARTHIKA 1931 CRL.A.No. 90 of 2006() ---------------------- SC.240/1999 of ADDL.SESSIONS COURT, KOTTAYAM .................... APPELLANTS: ACCUSED NOS.1 & 2: -------------------------------- 1. SURESH, S/O. DAMODARAN, HOUSE NO.19, SACHIVOTHAMAPURAM COLONY, KURICHY KARA, DO. VILLAGE. 2. SAJIKUTTAN @ SAJI, S/O. KRISHNANKUTTY, HOUSE NO.12, SACHIVOTHAMAPURAM COLONY, KURICHY KARA, DO. VILLAGE. BY ADV. SRI.SURESH BABU THOMAS SRI.P.RAVINDRA BABU SRI.M.P.MADHAVANKUTTY RESPONDENT: COMPLAINANT: --------------------------- CIRCLE INSPECTOR OF POLICE, VAKATHANAM POLICE STATION, KOTTAYAM, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. GP MR.NOBLE MATHEW THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 18/11/2009, ALONG WITH CR.A. NO.91 OF 2006, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.BALAKRISHNAN NAIR & P.BHAVADASAN, JJ. ------------------------------------------------------------------ Cr. A. Nos.90 & 91 of 2006-A ------------------------------------------------------------------ Dated 18th November 2009 Judgment Balakrishnan Nair, J. Accused Nos.1 and 2 in Sessions Case No.240/99 on the file of the Court of Additional Sessions Court, Kottayam, have preferred Criminal Appeal No.90/06 and accused Nos.3 to 5 in the said case have preferred Criminal Appeal No.91/96. The learned Sessions Judge, by the Judgment under appeal, has found accused Nos.1 and 2, guilty of the offence punishable under S.302 read with S.149 IPC. The said accused, along with A3 to A5, were found guilty for the offences punishable under S.143, 147, 148, 323, 324 and 341 read with S.149 IPC. Based on the above finding, A1 and A2 were sentenced to imprisonment for life for the offence punishable under S.302 read with S.149 IPC. A1 to A5 were sentenced to undergo rigorous imprisonment for two years for the offences punishable under S.324 read with S.149 IPC. They were also sentenced to undergo rigorous imprisonment for one year for the offence punishable under S.323 read with S.149 IPC and simple imprisonment for one month for the offence punishable under S.341 Cr.A.Nos.90 & 91 of 2006 2 IPC read with S.149. A1 to A5 were also sentenced to undergo rigorous imprisonment for two years for the offence punishable under S.148 read with S.149 IPC. The sentences were to run concurrently. Set off as per law was also ordered to be granted. 2. The case of the Prosecution, in brief, is as follows : On 19.1.1996, PW1 and his brother, Sudhakaran went to see the film “Sphatikam”, exhibited in Pushpa Theatre, Ithithanam, in Kurichy panchayat in Changanacherry. There were no vacant chairs for them to sit and therefore, the theatre employees accommodated them along with others in a bench, additionally placed. When they sat on the bench, the same obstructed the vision of those, who were sitting behind in the chairs. They included the accused. The said dispute led to exchange of words and thereupon, the theatre employees intervened and made appropriate modification to the seating facility provided to PW1 and his brother, so that it may not obstruct the vision of those sitting behind, including the accused. At about 8.30 pm, during interval, when PW1 and his brother went to the urinal, they were followed by the accused. They were encircled by the accused and thereby, they were wrongfully restrained by the accused. A4 asked them whether they have grown up to challenge Cr.A.Nos.90 & 91 of 2006 3 them and he slapped on the face of PW1. A1 and A2 took out daggers and stabbed PW1 and his brother Sudhakaran several times. They fell down. When the friends of the injured cried aloud, the assailants left and the people assembled there took them to the Government Hospital, Changanacherry. From there, they were referred to the Medical College Hospital, Kottayam. Sudhakaran succumbed to his injuries at 10.15 pm. on the same day. Owing to timely treatment, PW1 survived. PW20 Sub Inspector of Police, Chingavanam, on getting information about the incident, went to the Medical College Hospital and recorded the statement of PW1 by 9 am. on 20.01.1996. Ext.P1 is the F.I. statement and Ext.P1(a) is the F.I.R. registered based on Ext.P1. PW21, the Circle Inspector of Police took over the investigation. He conducted the inquest and prepared Ext.P2 inquest report and also arranged for conduct of autopsy of the deadbody by the doctor concerned. He prepared Ext.P3 scene mahazar. PW21 questioned the witnesses and based on the confession statements of A1 and A2, MO2 and MO1, which were the daggers used by A1 and A2 respectively, were recovered. He also recovered the dress worn by A1, A2, A4 and A5. He almost completed the investigation. PW22 Circle Inspector of Police verified Cr.A.Nos.90 & 91 of 2006 4 the investigation and filed the final report before the Judicial First Class Magistrate's Court, Changanacherry. The case, being exclusively triable by a Court of Sessions, the learned Magistrate committed the case for trial by the learned Sessions Judge, Kottayam, which, in turn was made over to the Additional Sessions judge, Kottayam for trial and disposal. 3. The accused pleaded not guilty to the charge framed against them. The Prosecution, to prove its case, examined PWs 1 to 22 and marked Exts.P1 to P30. Material Objects MOs 1 to 12 were also identified and marked. From the side of the defence, DW1 Sub Inspector of Police, Chingavanam was examined and Exts.D1 and D2 were marked. As Court exhibits, Exts.X1 to X1(b) were marked. The Trial Court, after hearing both sides and also taking into account the answers given by the accused under S.313 Cr.P.C., found them guilty and sentenced them as mentioned earlier. Feeling aggrieved by the conviction and sentence, the appellants have preferred these Criminal Appeals. 4. The learned counsel for the appellants took us through the depositions of the witnesses and the documents produced in this case. He pointed out that though information regarding the crime Cr.A.Nos.90 & 91 of 2006 5 was received in the Police Station by about 1 am on 20.01.1996, the crime was registered only at 9 am and the copy of the F.I.R. was sent to the Magistrate only by 9 pm. in the night. According to the learned counsel for the appellants, the Investigating Officer almost completed the investigation and to suit the facts so discovered, an F.I.R. has been registered. It is inherently improbable that PW1, who had sustained very serious stab injuries, could have given such a detailed statement as Ext.P1. The learned counsel for the appellants also submitted that there was no common object for the gathering of the accused and therefore, even assuming the versions of the witnesses are taken to be true, the accused can be punished only for their individual overt acts. Their conviction under S.149 IPC is unsustainable. The conviction of accused A3 to A5 under S.148 is also unsustainable as they did not carry any deadly weapon with them. Apart from the above legal contentions, the learned counsel also submitted that the identification of the accused by the witnesses while in the box, cannot be relied on to convict them. The accused and the witnesses are persons residing in distant places and the claim of previous acquaintance is a false claim. It is inherently improbable that the witnesses were able to identify the accused from Cr.A.Nos.90 & 91 of 2006 6 a group of persons, who assembled there. So, the naming of the accused and their identification done, while in the box cannot be relied on and therefore, the appellants are entitled to get the benefit of doubt, it is submitted. 5. We heard the learned Public Prosecutor, who supported the findings of the Court below. In this case, we notice that PWs 1 and 2 have fully supported the case of the Prosecution. PW1, in his deposition, has stated that he, along with his younger brother, went to the theatre at 6.10 pm. on 19.1.1996 to see the film “Sphatikam”. They took the ticket for reserved class. By the time they reached, there were no vacant sets for them. So, the theatre employees made arrangement for seating them by putting a bench in front of the reserved class. Their presence in the front, caused obstruction to the vision of the accused, who were sitting behind. When the film show started, they shouted at PW1 and others sitting in the bench, asking them to lower their heads. PW1 replied that he was also watching the film, after taking ticket for the same. The said reaction led to exchange of words and the employees of the theatre came and made some modification to the seating arrangement of PW1 and others and thus, the grievance of the accused was redressed. At Cr.A.Nos.90 & 91 of 2006 7 8.30 pm., PW1 and his brother went out to the urinal. Immediately, A1 to A6 surrounded them. A4 threateningly asked them whether they have grown up to challenge them and told them that they would be finished. Stating this, A4 slapped on the left cheek of PW1. Suddenly, A2 took out a dagger and stabbed PW1. PW1 tried to ward off the attack and tried to snatch the dagger from the hands of A2 and in that attempt, minor injuries were caused to A2 also. But, A2 repeatedly stabbed him on his neck and left shoulder. He fell down. While so, A3, A4, A5 and A6 kicked him. In the meantime, A1 stabbed his younger brother Sudhakaran on the back of his head and thereafter, on his chest. A2 also stabbed his brother several times. Thereupon, he fell down. The other accused kicked Sudhakaran also. While so, Suji and Santhosh, who knew PW1 cried out for help. Thereupon, the accused ran away, carrying the daggers used by them. People, who assembled there, took them to the Changanacherry Taluk Hospital, from where, they were referred to the Medical College Hospital, Kottayam. Though, PW1 was extensively cross examined, he stood his ground. PW2, who was an independent witness present in the scene of occurrence, substantially supported the above version of PW1. He correctly Cr.A.Nos.90 & 91 of 2006 8 identified A1 , A3 and A4, but failed to identify A2 or rather, wrongly identified A7 as A2. The above version of the witnesses is fully supported by the medical evidence on record. 6. PW17 was the doctor, who examined PW1 at Changanacherry Taluk Hospital and issued Ext.P17 wound certificate. The said certificate would show four incised wounds. He also deposed that the injuries could be caused as alleged, i.e., by stabbing by dagger. PW18 is the doctor of the Medical College,Kottayam, who treated PW1. He has issued Ext.P19 wound certificate. Exts.P23 and P24 proved through PW18 concerning the treatment of PW1 would fully support the case of PW1 regarding the injuries. PW16 was the doctor, who conducted postmortem examination and issued Ext.P16 postmortem certificate. He has noticed the following antemortem injuries in the said certificate : “1. Sutured incised penetrating wound, 3 cms. long, obliquely placed on the front of chest, the inner lower end being 5 cm, below the left nipple, in the 5'O clock position. The wound entered the chest cavity and was directed downwards and to the right to puncture the lower lobe or left lung. Total minimum depth of the wound was 8 cms. 2. Sutured incised penetrating wound, 3.2 cm. long, oblique. on the back of chest, the upper inner end being 7.5 cms. to the left of midline and 2.5 cm. below the angle of scapula. The wound Cr.A.Nos.90 & 91 of 2006 9 entered the chest cavity and was directed forwards, downwards and to the left to puncture the lower lobe of left lung. Total minimum depth was 6 cms. 3. Sutured incised penetrating wound 2.3 cm. long oblique, on the back of trunk, the inner lower end being 14 cms. to the left of midline and 10 cm. above the prominence of hip. The wound entered the abdominal cavity and terminated there without injuring any organs. It was directed forwards, downwards and to the left for a minimum depth of 4 cms. 4. Sutured incised stab wound, 3 cm. long, obliquely placed on the left side of neck and shoulder, the back lower end being 3 cm. to the left of midline in the root of neck. The wound was confined to the muscle plans only for a depth of 4.5 cm. (All the 4 injuries described above had clean cut ends) 5. Sutured incised wound 8.5 cm long oblique on the right side of back of head, the lower outer end being 6 cm. behind the ear (muscle deep). 6. Abrasion 1.5x1 cm. on the front of left knee.” In the opinion given in the postmortem certificate, PW16 has stated that the death was caused due to penetrating injuries sustained to the chest. While in the box, he deposed that Injury Nos.1 and 2 were fatal injuries and were sufficient in the ordinary course, to cause death. Injury No.3 is also likely to cause death and Injury No.4, though not fatal, was dangerous to life. So, the medical evidence on record lends credence to the version of the incident given by PWs 1 and 2. Going by the deposition of PW16 and the postmortem Cr.A.Nos.90 & 91 of 2006 10 certificate, it is clear that the death of Sudhakaran was a homicide. The evidence of other doctors would show that PW1 suffered injuries on stabbing with weapons like MO1 and MO2. 7. The next point to be considered is whether it was the accused, who inflicted the injuries and whether their identification by the witnesses lacks credence. PW1 has stated that he has prior acquaintance with all the accused and he knew them as persons hailing from Sachivothamapuram Colony. As noticed earlier, he withstood the extensive cross examination by the defence and nothing has been brought out to discredit the above statement made by the said witness. To a certain extent, PW2 also, who is an independent witness, corroborates his version. Therefore, we find no reason to disbelieve the said witnesses. 8. There may be some delay in forwarding the F.I.R. to the Court. It took about 12 hours to reach the Magistrate. It is true, the learned counsel for the appellants made certain suggestions regarding the effect of the delay. But, we are of the view that there is nothing on record to support the said submissions. Owing to the carelessness of the Investigating Officer or the Police Constable deputed by him, there may be some delay in delivering the F.I.R. to Cr.A.Nos.90 & 91 of 2006 11 the Court. On that ground, the Prosecution case cannot be thrown out. Of course, if prejudice is shown to have been caused to the accused, it may be a ground to be considered. But, in this case, no prejudice whatsoever has been caused by the delay in forwarding the F.I.R. 9. In the result, we accept the case of the Prosecution regarding the involvement of the accused 1 to 5 in the incident. The Trial Court has convicted only Accused 1 and 2 for the offence under S.302 IPC. We think, the said view taken by the Trial Court is correct. There is nothing on record to show that the accused had the common object of murdering the deceased or inflicting serious injuries on PW1. From the materials on record, it is clear that the common intention of all the accused was to threaten and manhandle PW1 and the deceased, for their belligerence. The invocation of S.149 to convict A1 and A2 for the offence punishable under S.302 IPC is not justified or not necessary. Both of them have stabbed the deceased and therefore, even without the help of S.34 IPC, they can be convicted for the offence punishable under S.302 IPC. So, we uphold the conviction and sentence of A1 and A2 i.e., the appellants in Crl.A.No.90/06, for the offence punishable under S.302 IPC. The Cr.A.Nos.90 & 91 of 2006 12 conviction and sentence of A1 and A2 under S.148 is also sustained. A4 has slapped on the face of PW1 and therefore, he is liable to be punished under S.323 IPC. So, his conviction under S.323 IPC is upheld. But we think that the sentence of three months' rigorous imprisonment will meet the requirement of justice and it is ordered that the sentence of A4 for the offence punishable under S.323 IPC is reduced to three months rigorous imprisonment. A1 to A5 are also guilty of the offences punishable under S.143, 147 and 341 read with S.149 IPC. For the offences under S.143, 147 and 341, they are sentenced to pay a fine of Rs.2,000/-. Rs.2,000/- and Rs.500/- respectively. In default, they shall undergo imprisonment for three months, three months and ten days respectively. Substantive sentences shall run concurrently and the appellants shall be entitled to get set off as per law for the detention suffered by them during the pre-trial period. The bail bonds of A3 to A5 are cancelled and they are given one month's time to appear before the Trial Court to pay the fine and suffer the balance period of imprisonment, if any, after set off as per law. Cr.A.Nos.90 & 91 of 2006 13 Cr. A. No.90/06 is dismissed and Cr. A. No.91/06 is disposed of as above. K.BALAKRISHNAN NAIR, JUDGE P.BHAVADASAN, JUDGE sta Cr.A.Nos.90 & 91 of 2006 14