IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN TUESDAY, THE 12TH APRIL 2011 / 22ND CHAITHRA 1933 CRL.A.No. 1040 of 2006() ------------------------ SC.767/2004 OF SESSIONS COURT, THALASSERY .................... APPELLANTS/ACCUSED 1 TO 14 ------------------------------------------------ 1. EDAKKANDI DINESHAN @ PULIPP DINESHAN, S/O. ACHUTHAN, AGED 40 YEARS, TODDY TAPPER, NIJIL NIVAS, DHARMADAM AMSOM MELOOR. 2. PANNIYODAN SIVADASAN @ SIVATTY, S/O. SURENDRAN, AGED 30 YEARS, COOLIE, THANIYIL VEEDU, DHARMADAM AMSOM, MELOOR. 3. EDAKANDI ASHOKAN @ KOKKODAN ASHOKAN, S/O. KUNHIRAMAN, AGED 37 YEARS, COOLIE, THANIYIL VEEDU, DHARMADAM AMSOM, MELOOR. 4. K.V. MAHESH, S/O. SURENDRAN, 24 YEARS, COOLIE, MANAPPURAM HOUSE, DHARMADAM AMSOM, MELOOR. 5. K.V. JITHESH, S/O.SURENDRAN, 24 YEARS, COOLIE, MANAPPURAM HOUSE, DHARMADAM AMSOM, MELOOR. 6. PUTHANPARAMBATH NISHANTH, S/O. KUMARAN, 23 YEARS, COOLIE, VALIYAMUTTATH HOUSE, DHARMADAM AMSOM, MELOOR. 7. UCHUMMAL SATHYAN, S/O. RAGHAVAN, 37 YEARS, COOLIE, IDAMUTTINAKATH HOUSE, PINARAYI AMSOM, PARAPPURAM. 8. NADUKKANDY BIJU, S/O. NANU, 28 YEARS, BUSINESS, VELLIYAMBATH HOUSE, DHARMADAM AMSOM, ANDALLUR. 9. MALAYANANDI SURESH BABU @ ETTUKARAN BABU, S/O. CHATHUKUTTY, 47 YEARS, COOLIE, MANALIL HOUSE, DHARMADAM AMSOM, MELOOR. CRL.A.No. 1040 of 2006 10. PACHAYAN SASI @ ALLI SASI, S/O. KUMARAN, 40 YEARS, COOLIE, MULLOLI HOUSE, DHARMADAM AMSOM, MELOOR. 11. VELLORA PRADEEPAN @ EDUPPI PRADEEPAN, S/O. KRISHNAN, 32 YEARS, COOLIE, VELLORA HOUSE, DHARMADAM AMSOM, MELOOR. 12. BADIYIL RINEEF, S/O.ALI, AGED 24 YEARS, COOLIE, ''NITHASHAS'', DHARMADAM AMSOM, PALAYAD DESOM. 13. NADUKKANDI RAVI, S/O. KUNHAMBOOTTY, 55 YEARS, COOLIE, KARADI HOUSE, DHARMADAM AMSOM, ANDALOOR. 14. CHERUVARI PANNIYODAN SREEDHARAN, S/O. AMBU, AGED 63 YEARS, "SREERAJ", DHARMADAM AMSOM, ANDALLOOR. BY SRI.M.K.DAMODARAN, SENIOR ADVOCATE RESPONDENT/STATE -------------------------------- STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADDL. DIRECTOR GENERAL OF PROSECUTIONS MR.N. SUKUMARAN. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 25/01/2011, ALONG WITH CRRP NO. 1437 OF 2007, THE COURT ON 12/04/2011 DELIVERED THE FOLLOWING: rs PIUS C. KURIAKOSE & N.K.BALAKRISHNAN, JJ. ---------------------------------- Crl.A.No.1040 of 2006 & Crl.R.P.No.1437 of 2007 -------------------------------- Dated this the 12th day of April, 2011 J U D G M E N T N.K.Balakrishnan, J. Out of the 15 accused who faced trial, accused Nos.1 to 14 were found guilty and convicted by the learned Sessions Judge, Thalassery for offences punishable under Sections 143, 147, 506(II) and 302 IPC r/w 149 IPC. Accused Nos.2, 3, 11 and 12 were convicted under Section 148 IPC also. Besides accused No.3 was convicted for the offence under Section 5 of the Explosive Substance Act. They were sentenced to undergo imprisonment for life for the offence punishable under Section 302 IPC r/w 149 IPC. Besides, they were sentenced to undergo imprisonment for various terms for other offences mentioned above. They were also directed to pay Rs.2,00,000/- each as Crl.A.No.1040 of 2006 & Crl.R.P.No.1437 of 2007 -:2:- compensation to the legal heirs of the deceased victims. Accused No.15 was acquitted by the learned Sessions Judge. 2. The gist of the prosecution case can be stated thus :- On 1.3.2002 there was a harthal called by VHP/RSS. At about noon, there was an altercation between members of CPI(M) and RSS people at a place near Kalamandhir in Dharmadom Amsom. In connection with that harthal there were clashes during the daytime between those two factions at Dharmadom and other places. Being afraid of CPI(M) people, 11 persons including the two victims - Sujeesh and Sunil decided to stay during night near a shed situated on the bund/'chira' situated by the side of Meloor river. After midnight, at about 1 AM, while those 11 persons were on the bund, they saw about 15 persons coming from the eastern side and also about another 15 persons coming from the northern side towards the place where the aforesaid 11 persons including PW1 were lying or sitting. Crl.A.No.1040 of 2006 & Crl.R.P.No.1437 of 2007 -:3:- In the moonlight PW1 and others saw those assailants approaching towards them carrying deadly weapons. All of them were alerted, but Sujeesh and Sunil were asleep. Others rushed towards the river while the assembly consisting of the assailants inflicted fatal injuries on Sujeesh and Sunil. After a short while, the assailants left the place. PW1 and others went near the shed where they found Sujeesh writhing having been inflicted with fatal injuries. Sunil was not seen there. The body of Sujeesh was taken by PW1 and others to the road near Kalamandhir where there was a police picket. From there, the body of Sujeesh was removed to the Co-operative Hospital, Thalassery in the police jeep. The doctor (PW3) examined and pronounced Sujeesh dead. The dead body of Sujeesh was thereafter removed to the Govt. Hospital, Thalassery. PW1 - Jithesh who had accompanied the dead body to the Co-operative Hospital and thereafter to Govt. Hospital, Thalassery went to the police station and gave the First Information Crl.A.No.1040 of 2006 & Crl.R.P.No.1437 of 2007 -:4:- Statement (Ext.P1), based on which Ext.P1(a), the First Information Report was registered by PW15, the A.S.I. of Police, Dharmadom Police Station. The investigation was conducted by PW19, the C.I. of Police. After completing the investigation the charge sheet was laid against 15 accused persons. 3. The learned Sessions Judge framed charges against the accused alleging commission of offences under Sections 143, 147, 148, 341, 506(II) and 302 IPC r/w 149 IPC and also under Section 5 of the Explosive Substance Act. The accused pleaded not guilty. 4. PW1 to PW20 were examined and Exts.P1 to P22(e) were marked. Besides, MO1 to MO8(a) were also identified and marked on behalf of the prosecution. 5. When examined under Section 313 Cr.P.C., the accused contended that the prosecution case is a fabricated one and that they were falsely implicated in this case. Two witnesses were examined on their side. Including the Crl.A.No.1040 of 2006 & Crl.R.P.No.1437 of 2007 -:5:- portions of the statements of prosecution witnesses marked as contradictions, Exts.D1 to D13(c) were marked. Exts.X1 and X2, the case diaries in two crimes of Dharmadom Police Station were also got marked on behalf of the defence. 6. Learned Sessions Judge found accused Nos.1 to 14 guilty of the offences and convicted and sentenced them for the various offences as mentioned earlier. The accused were found not guilty of the offence u/s 341 IPC. 7. The accused/appellants contend that the evidence adduced by the prosecution is not credible and that the complicity of the accused was not proved by the prosecution beyond reasonable doubt. The defence put up by the accused was not properly considered by the learned Sessions Judge in its correct perspective. The evidence would show that there was shifting of place of occurrence; the place of occurrence shown in Ext.P13 plan is contradictory to the description given in Ext.P7 scene mahazar and the description of the premises mentioned in Crl.A.No.1040 of 2006 & Crl.R.P.No.1437 of 2007 -:6:- Ext.P3 inquest report. There was no proper identification of the accused as there was no proper light. That the alleged place of occurrence is surrounded by thick mangroves and that the witnesses had jumped into the river and so it was not possible for the witnesses to see the incident were not properly considered by the learned trial Judge. The evidence given by Pws.1, 2 and 4 regarding the identity of the assailants should not have been accepted by the learned Sessions Judge. As there was evidence to show that PW20 the Police Officer was informed of the incident that was sufficient to register a case but they waited till 3AM to register the F.I.R. The First Information Report was lodged only after due deliberation and consultation. The FIR was ante-timed. The delay in FIR reaching the court was not properly explained. Since the police was convinced that Ashraf, who was named in the FIR was not actually involved in the crime, it should have been duly taken note of to doubt the entire prosecution version. It should have been found Crl.A.No.1040 of 2006 & Crl.R.P.No.1437 of 2007 -:7:- that the weapons were planted by the police at certain place and so the recovery of the weapons was not in accordance with Section 27 of the Evidence Act. There is no definite finding by the court below that all the accused formed themselves into an unlawful assembly with a common object. No overt act was alleged against the accused other than accused Nos.1 to 3, 11 and 12 to find them guilty with the aid of Section 149 of IPC. There were material contradictions in the evidence given by the three witnesses who were relied upon by the learned Sessions Judge. Hence the accused/appellants contend that the conviction and sentence passed against them are unsustainable. 8. The learned senior counsel Sri.M.K.Damodharan appearing for the appellants and the learned Addl. Director General of Prosecution were heard. 9. As against the verdict of acquittal passed in favour of A15 (M.Sampath Kumar), a criminal revision – Crl.A.No.1040 of 2006 & Crl.R.P.No.1437 of 2007 -:8:- Cr.R.P.No.1437/2007 has been filed by the father of Sujeesh, one of the victims in this case. The learned counsel Sri.S.Rajeev, appearing for the revision petitioner has argued at length assailing the verdict of acquittal passed against accused No.15. 10. The following points arise for consideration:- (i)What is the cause of death of Sujeesh and Sunil, the victims in this case? (ii)Whether on 2.3.2002 at about 1.00 AM the accused/appellants and about 15 others formed themselves into an unlawful assembly with the common object of causing the death of Sujeesh, Sunil and others who were on the bund situated by the side of Meloor river? (iii)Whether the accused and other persons mentioned above in prosecution of the common object of causing the death of the persons mentioned above committed rioting with deadly weapons like dagger, chopper, Crl.A.No.1040 of 2006 & Crl.R.P.No.1437 of 2007 -:9:- axe, crowbar, iron rods etc. at the time and place mentioned above? (iv)Whether the accused/appellants in prosecution of the common object of the unlawful assembly committed criminal intimidation to the deceased and 9 other persons who were on the bund at the relevant time, by putting them in fear of death? (v)Whether in prosecution of the common object of the unlawful assembly the accused/appellants and others, all or any of them with the intention to cause death, caused the death of Sujeesh and Sunil by inflicting fatal injuries with dagger, chopper, axe (hatchet) etc.? (vi)Whether the accused/appellants along with others in prosecution of the common object of the unlawful assembly used (threw) a steel bomb, an explosive substance? (vii)Whether the conviction and sentence passed against the accused/appellants are unsustainable on any of Crl.A.No.1040 of 2006 & Crl.R.P.No.1437 of 2007 -:10:- the grounds urged by the appellants? (viii)Whether there is any illegality in the verdict of acquittal passed in favour of accused No.15-Sampath Kumar? 11. Point No.(i) :- Ext.P5 is the postmortem certificate issued by PW7 for having conducted postmortem examination at 12.05 PM on 2.3.2002 on the body of Sunil, one of the victims in this case. The following ante-mortem injuries were noted by PW7:- “1. Incised wound of 9 x 5 cms obliquely placed over right lower chest lateral side. Fracture of 9 and 10th ribs and incised wound over supero lateral aspect of liver and pinetrating to thoracic cavity and injuring the posterior surface or ventricular wall 2.5 cm long. 2. Incised wound of 3 x 2 cms vertically placed 3 cms below the right costal margin. Small intestine protruding through the wound extending deeply to peritonel cavity injury the lower border of liver and intestine. 3. Incised wound of 3 x 1.5 x 2.5 cms tranversely placed wound extending downwards over the chest not entered into chest cavity. 4. Loss of tissue on left side of face and middle part of both lips on left side and part of cheek was slashed away Crl.A.No.1040 of 2006 & Crl.R.P.No.1437 of 2007 -:11:- and exposing the tooth and gums. 5. Lacerated wound lower lip on right side. 6. Lacerated injury 6 x 5 cms Ulnar aspect or left wrist and forearm with fractured ends of born seen through the wound. 7. Lacerated injury base of left thumb over the extensor aspect. 8. Incised wound over the thenar eminence just distal to wrist left. 9. Incised wound of 4 x 2 x 2 vertically placed on the midline over lumbar spine. 10. Incised wound of 4 x 2 cms vertically placed over left scapular region 3.5 cms depth directed downwards injuring the muscles. 11. Linear abrasion of 12 cm right upper arm over lateral aspect. Int:Injuries :- Lung : Injury to lower lobe of lung right. Liver : Injury to liver over the superior aspect and interior border. One litre of blood in the pleural, 0.5 litre of blood in the peritoneal cavity.” It was opined by PW7 that the death of Sunil was due to injuries caused to vital organs like liver, lung, heart and shock resulting from loss of blood. It was stated by him that Crl.A.No.1040 of 2006 & Crl.R.P.No.1437 of 2007 -:12:- injuries 1, 2 and 3 are sufficient in the ordinary course of nature to cause death of the victim. When MO1 axe, MO2 chopper and MO3 dagger were shown to the doctor and a single question was put to him, he simply stated that those weapons could cause the injuries. The way in which the question was put to the doctor by the learned prosecutor and the answer given and recorded by the court was critically commented upon by the learned senior counsel appearing for the accused. The nature of the injuries as can be seen from Ext.P5 would leave no doubt that fatal incised injuries could be caused only by stabbing with MO3 dagger or a dagger like MO3 or a knife. It is inconceivable why the learned Prosecutor did not show each of the weapons separately and why specific reference was not made to each of the injuries as to the possibility of those injuries being caused by MO1, MO2 and MO3 separately. The learned counsel for the accused would submit that the learned Sessions Judge had also a duty to see that an expert witness Crl.A.No.1040 of 2006 & Crl.R.P.No.1437 of 2007 -:13:- gives an opinion specifically with reference to each of the weapons referring to each of the injuries (atleast fatal injuries). But that was not done. Since the fatal injuries 1 to 3 are incised wounds of sufficient depth there can be no doubt that those injuries could be caused by stabbing with MO3 dagger or a weapon like MO3. Some of the injuries could be caused by chopper and other injuries could be caused by striking or cutting with axe/hatchet. 12. Ext.P6 is the postmortem certificate pertaining to Sujeesh. PW8, the doctor who conducted the postmortem examination has testified that the following ante-mortem injuries were found on the body of Sujeesh:- “1. An incised oblique wound on right lower chest at flank 4 ½ cm x 2 ½ cm with fracture of 2 ribs (10th and 11th) and injuring infro lateral aspect of right lobe of liver going deep. 2. An incised wound on right side of back below shoulder blade vertically placed 3 ½ cm x 2 cm with fracture of one rib and injuring right lung 2 cm at infero lateral aspect. 3. A incised oblique qound on left side of lower chest 3 cm x 1 ½ cm and injury to spleen 2 cm at lateral aspect. Crl.A.No.1040 of 2006 & Crl.R.P.No.1437 of 2007 -:14:- 4. A lacerated wound on the right side of face 7 cm x 2 cm extending from middle of upper lip near the right eye 2 cm deep. 5. A lacerated wound upper lip on the right side exposing right upper 2 incisor teeth which are partially broken. 6. Abrasion and contusion 2 cm x 1 cm at the right side of ala of nose. 7. A lacerated wound on right cheek 3 cm x 1 cm x ½ cm. 8. An incised wound on lower lip extending from middle of lip to right 2 cm x ½ cm x ½ cm. 9. An abrasion and contusion just above right eye brow 5 cm x ½ cm. 10. Two small abrasions on right fore head just above the previous injury. 11. An abrasion and contusion 2 ½ and ½ cms on scalp 2 ½ cms above the right ear. 12. A lacerated wound 3 cm x ½ cm on scalp 5 cm to the right of wound No.11. 13. A vertical incised wound on occipital area of scalp 7 cm x 2 cm with linear fracture of skull bone. 14. A vertical incised wound 3 cm to the left of wound No.13, 5 cms x 1 ½ cm and deep with fracture of bone. 15. A vertical incised wound 5 cm x 1 cm x 1 cm just to the left of wound No.14. 16. A horizontal incised wound 1 cm to the left of wound No.15 4 cm x 1 cm x 1 cm. Crl.A.No.1040 of 2006 & Crl.R.P.No.1437 of 2007 -:15:- 17. A vertical incised wound 3 cm x 1 cm x ½ cm near wound No.16. 18. An incised wound front of neck on right side near the thyroid cartilage 3 cm x ½ cm x 1 ½ cms. 19. An abrasion and contusion 2 ½ cms below the wound No.18 on right side 4 cms x ½ cm. 20. Two linear contusion and abrasion 2 cms apart in front of neck on right side. 3 cms x ½ cm each just below right ear. 21. An incised wound 3 cm x 2 cm x ½ cm on right shoulder. 22. A horizontal incised wound on right upper arm on back side 2 cm x ½ cm ¼ cm. 23. Contusion and abrasion on right upper arm 2 cm below wound No.22 each about 6 cm horizontally. 24. Horizontal incised wound 1 cm x ½ cm x ½ cm. 5 cm below wound No.23. 25. A lacerated wound back of right elbow joint 8 cm x 4 cms x 2 cms exposing bone. 26. A lacerated wound on right forearm on back 12 cm from elbow joint 8 cms x 5 cms x 2 cms exposing bones. 27. An incised wound 2 cms x 1 ½ cm x ½ cm near wound No.26. 28. Abrasion 2 ½ cms x 1 cm on right forearm on back near the wrist. 29. An incised wound 4 cm x 2 cms x 1cm on the dorsum of right palm. 30. A lacerated wound 1 cm x 1 cm on back near the Crl.A.No.1040 of 2006 & Crl.R.P.No.1437 of 2007 -:16:- right shoulder. 31. A lacerated wound 2 ½ cms x ½ cm on right side on back near wound No.30. 32. A contusion and abrasion 5 cms x ½ cm on right buttock. 33. Contusion and abrasion 12 cms long horizontally near wound No.32. 34. An abrasion and contusion 7 cms long in right thigh on lateral side 5 cms above knee joint. 35. A incised wound 2 ½ cms x 1 cm x ¼ cm on right leg just below knee joint. 36. An incised wound on left little finger on dorsal aspect 3 cms x ½ cm x ½ cm. 37. Abrasion and contusion on left forearm on ventral aspect 7 cms from wrist joint.” It was certified by PW8 that the death of Sujeesh was due to injuries to vital organs like liver, lung, spleen and haemorrhage and shock. It was further stated by him that injury Nos.1, 2 and 3 are fatal in nature. Those injuries are sufficient in the ordinary course of nature to cause the death of the victim. 13. When this witness was examined also the learned Prosecutor showed all the weapons, MO1 to MO3 together Crl.A.No.1040 of 2006 & Crl.R.P.No.1437 of 2007 -:17:- and elicited one answer that the injuries noted in Ext.P6 could be caused by MO1 to MO3. Here also, the learned defence counsel was perfectly justified in commenting upon the way in which question was put by the learned Prosecutor and the way in which answer was given by the expert witness. What has been noted above shows the casual and half-hearted manner, the prosecution was conducted before the trial court, the learned counsel for revision petitioner submits. Some of the injuries were abrasions which could not be caused by stabbing with MO3 dagger or by cutting with chopper. There can be no doubt that all the 37 injuries noted in Ext.P6 could not be caused by stabbing with MO3 dagger. There were lacerated injuries also which could be caused by MO1 axe/hatchet also. The incised injuries 1 to 3 could be caused only by stabbing with a weapon like MO3 dagger. The learned Prosecutor should have asked the doctor by showing each of the weapons as to the injuries that could possibly be caused Crl.A.No.1040 of 2006 & Crl.R.P.No.1437 of 2007 -:18:- by using such weapon. Some of the incised wound could be caused by cutting with axe or chopper also. Based on the evidence given by PW8, we have no hesitation to hold that Sujeesh and Sunil had homicidal death. 14. Point Nos.(ii) to (v) :- It is the definite case of PW1 that after the dead body of Sujeesh was taken to Thalassery Government Hospital he went to Dharmadom Police Station along with CW6 (C.H.Sajith) and gave Ext.P1, F.I.Statement. PW17 was the Head Constable who recorded Ext.P1 statement at 3 AM on 2.3.2002, based on which Ext.P1(a) F.I.R was registered by him as Crime No.53/2002. He has stated that F.I.R was sent to the Magistrate immediately. On the left top corner of Ext.P1, in red ink, it is seen noted as 'express'. But unfortunately the learned Magistrate did not note the time when F.I.R was received by her. At another place the time '3.45 PM' is seen written which is evidently not in the handwriting of the Magistrate. It appears, it was written by the Clerk or Junior Crl.A.No.1040 of 2006 & Crl.R.P.No.1437 of 2007 -:19:- Superintendent of that Court. It is pointed out by the learned Senior counsel for the accused that PW19 the Investigating Officer could not offer any explanation as to the delay in despatching the F.I.R or in the F.I.R. reaching the Court. The learned Magistrate only put the date 2.3.2002. In spite of the directions issued in that behalf the learned Magistrate failed to note the time when this 'express' F.I.R (registered under Section 302 IPC and other sections) was received. Had it been noted by the Magistrate much arguments on that point could have been avoided. 15. It was further submitted by the learned counsel for the defence that it was incumbent upon PW19 to verify when exactly the F.I.R reached the Court or was there any delay in F.I.R reaching the court. The explanation should have been obtained from the police officer who was stated to have despatched it and the officer/constable who carried the F.I.R to the Magistrate. It could have been easily found Crl.A.No.1040 of 2006 & Crl.R.P.No.1437 of 2007 -:20:- out by verifying the despatch register maintained in the police station and the 'passport book' of the police official concerned. But as stated earlier, the investigation was conducted by PW19 in a half hearted manner. He did not even bother to verify when the F.I.R was received in the court. The learned counsel appearing for the revision petitioner Sri.Rajeev submits that investigation was conducted in a most insincere manner evidently to help the accused to the maximum. The learned counsel has pointed out that no attempt was made by PW19 to find who were the other 15 persons in the group of assailants, whose name could not be furnished in Ext.P1 even though it was asserted by all the witnesses that they could identify all the assailants by sight. 16. It is further submitted by the learned counsel for the accused that in Ext.P1(a) - F.I.R, PW17 has made some interpolations. In column No.12 it was