IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI MONDAY, THE 22ND FEBRUARY 2010 / 3RD PHALGUNA 1931 CRL.A.No. 671 of 2005 ----------------------- SC.199/2003 of ADDL.SESSIONS COURT, KOTTAYAM CP.11/2003 of JUDL. MAGISTRATE OF FIRST CLASS court-I, KOTTAYAM .................... APPELLANT: ACCUSED NO.1: --------------------------- CHANDRAN, S/O. CHELLAPPAN, KANJIRAMATTATHIL VEEDU, CHEENIKUZHI BHAGOM, PARAMBUZHA KARA, VIJAYAPURAM VILLAGE. BY ADV. SRI.SURESH BABU THOMAS SRI.P.RAVINDRA BABU RESPONDENT/: COMPLAINANT: --------------------------- STATE OF KERALA, REPRESENTED BY C.I. OF POLICE, PAMPADY, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. By PUBLIC PROSECUTOR MR. K.J. MOHAMMED ANZAR THIS CRIMINAL APPEAL HAVING COME UP FOR HEARING ALONG WITH CRL.A. NO. 78/2006 ON 22/02/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.BASANT & M.C. HARI RANI,JJ ============================== CRL. A. NOS. 671 OF 2005 & 78 OF 2006 ============================ DATED THIS THE 22nd DAY OF FEBRUARY 2010 JUDGMENT Basant,J. These appeals are preferred by the State and the first accused against a common impugned judgment rendered in a prosecution for offences punishable, inter alia, under Section 302 read with Section 149 of the Indian Penal Code. Altogether, there were five accused persons. They faced indictment for offences punishable under Sections 143,147,148,323,324 and 302 read with Section 149 of the Indian Penal Code. Accused 2 to 5 were found not guilty and acquitted. Accused No.1 was found guilty, convicted and sentenced under Section 304 (1) I.P.C.to undergo rigorous imprisonment for a period of five years. 2. The State claims to be aggrieved by the acquittal of all the accused against all charges levelled against them. CRA.NOS.671/05 & 78/06 -2- - Notwithstanding the fact that the first accused has been convicted under Section 304(1)I.P.C., the State prays that all the accused deserved to be convicted for all the offences alleged against them. The State's appeal, Crl.A.No.78/2006, is directed against the acquittal of all the five accused and the conviction of the first accused for the offence under Section 304(1)I.P.C. alone. The first accused in Crl.A.No.671/2005 assails the verdict of guilty, conviction and sentence of rigorous imprisonment for five years imposed on him under Section 304(1)I.P.C. 3. The crux of the charge against the accused persons is that they, at about 5 p.m.on 25-12-2001 in the court yard of a toddy shop, Chetty shop, in Manarcadu village of Ayarkunnam Panchyath, were members of an unlawful assembly with the common object of assaulting PWs.1,2 and the deceased. In prosecution of their common object, they were armed with dangerous weapons. They allegedly inflicted injuries on PWs.1, 2 and the deceased with dangerous weapons like MO.1 (stick) and MO.2(stone). The deceased suffered serious injuries and succumbed to such injuries on the night of 25-12-2001. CRA.NOS.671/05 & 78/06 -3- - 4. The investigation commenced with Ext.P1 F.I.statement lodged by PW1 before PW23, Sub Inspector, on the basis of which Ext.P18 F.I.R.was registered. The investigation was completed and the final report/charge sheet was filed by PW26. A counter case was also registered on the basis of Ext.P26 F.I.S.lodged by accused No.2. Ext.P25 is the F.I.R. registered. Ext.P27 is the final report/charge sheet filed after completing the investigation in the counter case. PW26 had filed such final report in the counter case also. In the said final report in the counter case, allegations were raised against the deceased, PW1 and PW2 that they had caused injuries to accused 2,4 and 5 and had thereby committed offences under Sections 323 and 324 read with Section 34 I.P.C. 5. The case against the five accused persons was committed to the court of Sessions. Accused 1 to 5 denied the charges framed against them and thereupon the prosecution examined PWs.1 to 26 as witnesses. Exts.P1 to P27 were marked as documents. MOs.1 to 18 were also marked. The accused persons in the course of 313 examination took up the stand that CRA.NOS.671/05 & 78/06 -4- - they were absolutely innocent. According to them, there was a free for all in the toddy shop for which they were not responsible and accused 1,2,4 and 5 had suffered injuries. They did not adduce any oral evidence on their side. But Exts.D1 series – case diary contradictions of PW2 were marked. 6. The learned Sessions Judge on an anxious consideration of all the relevant inputs came to the conclusion that the prosecution has not succeeded in proving the charges levelled against all the accused. But, the court however came to the conclusion that the charge against accused No.1 stands established to the extent that he is guilty of the offence punishable under Section 304(1) I.P.C. The court came to the conclusion that accused No.1 was guilty of the alleged overt acts against the deceased which caused his death. But, the court however came to the conclusion that he had exceeded his right of private defence. It is accordingly that conviction was entered under Section 304(1)I.P.C.against the appellant/first accused alone. CRA.NOS.671/05 & 78/06 -5- - 7. The appellant-first accused,in Crl.A.No.671/2005, assails the verdict of guilty, conviction and sentence against him under Section 304(1) I.P.C. whereas the State assails the acquittal of all the accused for the charges levelled against them in Crl.A.No.78/2006. 8. We have been taken through the oral evidence of PWs.1 to 26 and the documentary evidence, Exts.P1 to P27 and Ext.D1 series. 313 statement of the accused have been read over to us in detail. 9. An appellate judgment is essentially a continuation of the judgment of the trial court. It must be read as such. We do not, in these circumstances, venture to re-narrate the evidence relied on by the prosecution and the defence. Suffice it to say that we have been taken through and we have anxiously considered all the pieces of evidence and matters before the court below. 10. Both the prosecution and defence complain that the court below has not applied itself to the questions raised before it properly and seriously. The court below has not attempted to ascertain and enter any specific finding on the genesis of the CRA.NOS.671/05 & 78/06 -6- - dispute. The court below in its judgment has not explained how the first accused is entitled for a right of private defence or the manner he has exceeded such right of private defence. Both the learned Prosecutor as well as the learned counsel for the appellant contend that the impugned judgment of the court below is far from satisfactory. We find merit in that submission. It is unfortunate that the court below has not properly applied itself to the materials before it to ascertain the precise manner in which the incident must have commenced, proceeded and culminated. In a case where allegations and counter allegations are raised and a case and counter case in relation to the same incident are filed by the police, the burden undoubtedly is heavy on the court to ascertain the precise nature of the sequence of events in the incident. In such a case, findings cannot be entered into without properly ascertaining the genesis as also the sequence of incidents. 11. We are undoubtedly dissatisfied with the judgment of the court below. We shall therefore attempt to undertake the exercise which the court below must have resorted to. For this CRA.NOS.671/05 & 78/06 -7- - purpose, we will advert to the evidence, oral and documentary, wherever necessary and shall try to assess and evaluate the case and evidence of the prosecution vis-a-vis the case advanced by the defence. 12. That the deceased suffered injuries described in Ext.P10 postmortem certificate and Ext.P19 wound certificate is beyond controversy. It appears to us that it is easy to readily conclude that the deceased had injuries described in Exts.P19 and P10 and suffered death on account of injury No.3 described in Ext.P10 suffered by him on his head. There are several other injuries found on the person of the deceased. Altogether, there are 32 injuries suffered. Detailed explanation for these injuries is not forthcoming from the prosecution. Injury No.3 itself as stated by PW15 was sufficient in the ordinary course of nature to cause death. It could be caused with MO.1. The other injuries, evidence of PW15 and PW24, indicates could have been suffered by him when stones were thrown at him. 13. The prosecution has a further case that PWs.1 and 2 had also suffered injuries. The injury suffered by PW1 is CRA.NOS.671/05 & 78/06 -8- - described in Ext.P12 issued by PW16. Exts.P20 and P21 are O.P.tickets issued by PW24 in respect of PW1. What is important to note is that Ext.P12 only shows that PW1 had mobility of two teeth, suspected right condylar fracture and pain in the left arm which was fractured earlier and was in plaster cast even before the commencement of the incident. Suspected right condylar fracture was later ruled out after radiological examination. What is important to note that though PW1 claims to have suffered injuries, Ext.P12 wound certificate and the oral evidence of PW16 does not convincingly support that version of the prosecution. 14. The prosecution has a version that PW2 had suffered injuries. Significantly there is not a scintilla of evidence even to remotely suggest that he had actually suffered any injuries. There is no medical evidence whatsoever on this aspect. 15. We have adverted to the injuries on the deceased, PW1 and PW2 as it is the burden of the courts to ascertain how and under what circumstances they had suffered the injuries. That is CRA.NOS.671/05 & 78/06 -9- - the primary duty of the court in this prosecution against the accused persons. 16. We shall briefly narrate the precise case of the prosecution as spoken to by PWs.1 and 2 . The deceased, PW1, PW2, PW7 and one Ganesh were available at the house of PW1. PW1 is the brother of the deceased. They started from their house in two motor cycles to the toddy shop. PW1, PW2 and PW7 travelled in one motor cycle. They reached the toddy shop first. Deceased and the said Ganesh(who has not been examined) came in a scooter and they reached the toddy shop later. Accused 1 and 2 and others were at that point of time available in the toddy shop and they were drinking. They were allegedly singing songs aloud. On this score, a quarrel ensued and PW2 was involved in that quarrel. Father of PW.1 and the deceased, i.e. PW10 came to the toddy shop. Probably seeing his children (PW1 and the deceased) there, he went out of the toddy shop. At that time accused 1 and 2 also went out of the toddy shop. PWs.1 and 2 were available at the toddy shop. Outside the toddy shop, there was a quarrel. PWs.1, 2, the deceased and CRA.NOS.671/05 & 78/06 -10- - PW7 came to the spot where the quarrel was going on. Accused 1 and 4 as also PW10 were involved in the quarrel. PW1 intervened in that quarrel. That quarrel was about accused No.4 causing tar to be fallen on the shirt of PW10. PW1 immediately sent his father,PW10 to his house in PW7's two wheeler. That incident continued. According to PW1, there was unintentional accidental injury suffered by accused 4 on his nose at that time. PWs.1 and 2 wanted to attend on accused 4 and make medical assistance available to him. They, therefore, took accused 4 to a spot. Accused 4 was bleeding through his nose. At this juncture, accused 1,2, 3 and 5 allegedly reached the scene. Accused 1 and 2 were armed with MO.1 stick and MO.2 stone respectively. Accused No.1 attacked PW2. He beat PW2 with MO.1 stick. All the five accused allegedly attacked PW1 initially and the deceased later. At the end of the incident, PW1, PW2, the deceased and accused 2,4 and 5 had injuries on their person. According to the prosecution, it was A1 who beat PW1, PW2 and the deceased with MO.1 stick. A2 had allegedly wielded MO.2 stone to attack PW1 and the deceased. Accused CRA.NOS.671/05 & 78/06 -11- - 3,4 and 5 also had joined accused 1 and 2 in the attack. It is the case of the prosecution that Accused 1 to 5 were members of an unlawful assembly and were acting in prosecution of their common object to attack PWs.1 and 2 and the deceased. 17. We have carefully gone through the charge against the accused and the precise allegations raised against the accused by PW1 in Ext.P1. We have also considered the evidence tendered by PWs.1 and 2 on oath to ascertain the precise nature of the charge which the prosecution wants to raise against accused 1 to 5. 18. In support of this charge, the prosecution wanted to make available to the court the oral evidence of PWs.1 to 5 and PWs.11 and 12. Of this PWs.3,4,5, 11 and 12 did not support the prosecution version at all. The prosecution was left with the oral evidence of PWs.1 and 2 alone. PW2, though he broadly supported the prosecution case, did not support the charges levelled against the second accused. According to him, he did not know the 2nd accused and he did not raise any allegations against him. On the strength of the evidence of PWs.1 and 2, we CRA.NOS.671/05 & 78/06 -12- - have to ascertain whether the injuries on PW1 and the deceased were caused by accused 1 to 5 acting in furtherance of the common object of the unlawful assembly of which they are allegedly members. 19. The learned counsel for the accused contends that the oral evidence of PWs.1 and 2 is not worth on the paper on which it is written. According to the learned counsel, oral evidence of PWs.1 and 2 is totally unacceptable, artificial and improbable. Reliance cannot be placed on such testimony. Ext.P1 F.I.statement was lodged long later at 6 a.m.on 26/12/2001. The F.I.R.was prepared at 8 a.m. and the same reached the court only at 4 p.m. on the same date. Counsel contends that PW1 had ample time to cook and concoct the story to raise false allegations against the accused. PW1 was involved in many crimes admittedly on his own version. His version is inherently unacceptable as his allegations against accused persons in respect of assault on him is not supported at all by the injuries found on his person recorded by PW16 in Ext.P12. His version that PW2 had suffered injuries is not supported by any medical CRA.NOS.671/05 & 78/06 -13- - evidence at all. If his evidence were accepted, PW2 was not available at the scene to witness the latter part of the incident and no reliance can be placed on the evidence of PW2. The evidence of PW1 does not also explain the injuries found on accused 2,4 and 5. We have been taken in detail through Ext.P9 scene mahazar which suggests that a free for all must have taken place at the scene of the crime. Broken bottles and scattered personal belongings were there at the scene. But the oral evidence of PW1 does not at all explain the facts perceived by the investigating officer recorded in Ext.P9. The learned counsel for the accused further points out that if the evidence of PW1 were believed, it clearly and definitely indicates that he was responsible for the first injury suffered by any person in the incident that took place, i.e. the injury suffered by the 4th accused Mohanan. PW1 has attempted to sell the idea to the court that accused 4 suffered the injuries accidentally and unintentionally. The explanation is artificial and it would be idle for any prudent mind to readily swallow that version of PW1. The learned counsel for the accused further points out that PW1 CRA.NOS.671/05 & 78/06 -14- - now wants the court to believe that he and PW2 had taken A4 innocently to the scene of the present crime from where he suffered injury to ensure that he was given medical assistance. The version of PW1 clearly shows that it was not an innocent removal of A4 to render medical assistance to him. But it must have been a clear case of illegal detention of A4 out of malice. The learned counsel further points out that the version of PW1 does not at all explain the other injuries found on the person of the deceased. There is only an attempt to explain the fatal injury on the head suffered by the deceased. The responsibility for that injury is conveniently attributed to A1 by PW1, contends the counsel. 20. The learned counsel argues that all these inadequacies in the evidence of PW1 is repeated in the evidence of PW2. PW2 does not attribute to any overt act to Accused No. 2. Though he stated that he (PW2) suffered injuries, no injuries are found on his person. If the evidence of PW1 were accepted, PW2 could not have witnessed the overt acts of the accused against PW1 and the deceased as he had run away to safety after suffering the CRA.NOS.671/05 & 78/06 -15- - first injury. His version about attack on PW1, which is congruent to the version of PW1, is incongruent to the injury suffered by PW1 as described in Ext.P12. 21. The learned counsel for the accused argues that all these inadequacies in the evidence of PWs.1 and 2 must be considered in the light of the version advanced by the accused, which is convincingly probabilised by the oral evidence of PWs.1 and 2 as also the facts perceived by the investigating officer reported in Ext.P9. According to the accused, an untoward incident had taken place in the toddy shop on that evening. Some people were consuming toddy in the toddy shop. They were singing songs. PW2 and his cohorts got involved in a dispute with persons who were consuming toddy and singing. PWs.1, 2 and the deceased allegedly indulged in culpable and contumacious act. Bottles were broken and they were used as weapons against the others in the toddy shop. A free for all followed and the persons in the toddy shop attacked PW1 and his brother, the deceased, as also PW2. PW2 ran to safety and it is thus that PW1 and the deceased suffered whatever injuries they CRA.NOS.671/05 & 78/06 -16- - suffered. People were throwing stones at the deceased, who indulged in overt acts to restrain him and that is how he had so many injuries described in Ext.P10. The scene mahazar,Ext.P9 affords telltale corroboration and support for this defence version. The learned counsel for the accused, in these circumstances, submits that the court below must have unhesitatingly rejected the evidence of PWs.1 and 2 and must have come to the conclusion that the prosecution evidence does not establish any allegations against any accused. 22. The learned counsel points out that even going by the version of PW1, A1 and A2 had gone out of the toddy shop when the quarrel commenced. PW2 has no case that accused 2 was in any way involved in the incident later. In the incident between PW10 only, accused 1 and 4 were involved admittedly. In these circumstances, accused 2,3 and 5 cannot be said to be in any way involved in the incident, nor can they be said to have shared any common object along with A1 and A4. It can also be seen from the scene mahazar that MO.1 could only have been one of the sticks which were available in the court yard of the CRA.NOS.671/05 & 78/06 -17- - toddy shop. People, who were in the toddy shop had to restrain the deceased and PW1 from indulgence in contumacious acts. They may have picked up those sticks which were available. By any stretch of imagination, it cannot be said that accused 2,3 and 5 shared any intention/ common object with accused 1 and 4. The F.I.statement lodged by A2 (i.e.Ext.P26) clearly suggests that he was not in any way involved in the incident and happened to suffer injuries described in Ext.P13 when he was unnecessarily involved in the incident that had taken place at the toddy shop on that evening. 23. In the sequence of evidence which has been narrated above, we find absolutely no justification in the court accepting the oral evidence of PW1 and /or PW2. The version inherently is not inspiring and does not explain all the circumstances. The credibility of PWs.1 and 2 is itself in doubt. In any view of the matter, we are of the opinion that the case of the prosecution cannot be said to be established by the oral evidence of PWs.1 and 2. 24. The only way to hold the allegation of the prosecution to be proved is to look at the evidence of PWs.1 and 2 regarding CRA.NOS.671/05 & 78/06 -18- - the beatings given to the deceased with MO.1 by Accused No.1. Except by this court, accepting that part of the testimony alone, the conclusions reached by the court below cannot obviously be supported. We are certainly of the opinion that the court below has not considered the questions in the proper perspective and has not adverted to the real questions that arose for consideration. We find merit in the contention of the learned counsel for the accused that the court below was not morally convinced about the acceptability of the case of the prosecution, but erred in meekly accepting the oral evidence of PWs.1 and 2 about the injuries on the head of the deceased alone without giving attention to other broad probabilities, inability of the prosecution to explain the other injuries on the deceased and its total failure to explain the facts perceived by the investigating officer recorded in Ext.P9. 25. We are satisfied that this is an eminently fit case where the benefit of doubt should have been conceded to the accused by the adjudicator refusing to accept and act upon the CRA.NOS.671/05 & 78/06 -19- - oral evidence of PWs.1 and 2 either fully or in any particular part. 26. In the appeal by the State, the State contends that the court below was wrong in assuming that the first accused had a right of private defence without proper analysis and evaluation. The benefit of exceeding such a right of private defence (which does not exist) has been erroneously conceded to the first accused. The crux of the argument of the learned Public prosecutor is that the court having believed the evidence of PWs.1 and 2 in so far as it relates to the overt acts by Accused No.1 against the deceased must have come to the conclusion that his act amounts to the offence punishable under Section 302 I.P.C. and that the other accused must be made liable with the help of Section 149 I.P.C., inasmuch as they were members of an unlawful assembly who were acting in prosecution of their common object. 27. We have already found that reliance cannot be placed on the oral evidence of PWs.1 and 2 to come to any conclusion in favour of the prosecution. We are further of the opinion that CRA.NOS.671/05 & 78/06 -20- - the prosecution has miserably failed in establishing that there was a cord of common object binding accused 1 to 5 to expose them to the charge of they being members of an unlawful assembly and of having allegedly acted in prosecution of the common object of the unlawful assembly. We are, in these circumstances satisfied that the appeal by the first accused, i.e. Crl.A.No.671/2005 is entitled to succeed and Crl.A.No.78/2006 by the State is liable to be dismissed, 28. In the result, A) (i) Crl.A.No.671/2005 is allowed. (ii) The appellant-1st accused is at any rate found entitled to the benefit of doubt. He is consequently found not guilty and acquitted of all the charges levelled against him. (iii)Bail bond executed by the first accused/appellant in Crl.A.No.671/2005 shall stand discharged. He is set at liberty. CRA.NOS.671/05 & 78/06 -21- - B) Crl.A.No.78/2006 is dismissed in the light of the finding in Crl.A.No.671/2005. The