IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN FRIDAY, THE 2ND FEBRUARY 2007 / 13TH MAGHA 1928 CRL.A.No. 101 of 2004 ------------------------------------ SC.300/1999 of ADDL.SESSIONS COURT (ADHOC), ALAPPUZHA .................... APPELLANTS/ACCUSED: 1. SANTHOSH KUMAR @ KOCHU, KANKALITHARAYIL, BHARANIKAVU, NORTH MURI, KATTANAM VILLAGE. 2. SURESH KUMAR @ SURESH, POLAKUZHIYIL, BHARANIVAKU NORTH MURI, KATTANAM VILLAGE. 3. VIJAYAKUMAR @ VIJAYAN, ASWATHI BHAVANATHIL, THEKKEKARA MURI, THEKKEKARA VILLAGE BY ADV. SRI.M.NARAYANA PRASAD SRI.R.KRISHNA RAJ SRI.A.SHANAVAS KHAN SRI.P.R.HARIKUMAR SMT.G.PRATHISHYA RESPONDENT/COMPLAINANT: CIRCLE INSPECTTOR OF POLICE, HARIPAD, REP. BY PUBLIC PROSECUTOR, HIGH COURT. BY PUBLIC PROSECUTOR SRI.K.C.SANTHOSH KUMAR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 02/02/2007, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.B. Koshy & K.P.Balachandran, JJ. ------------------------------------ Crl.A.No. 101 Of 2004 ------------------------------------ JUDGMENT Balachandran, J. Appellants 1 to 3 were Accused Nos.1 to 3 in S.C.No.300/99 on the file of the Additional Sessions Court, Fast Track (Adhoc-I), Alappuzha. They stood indicted for offences under Sections 449, 302, 307 and 324 IPC read with Section 34 thereof, inter alia, on the allegation that at about 11.45 p.m. on 24.12.1998 they committed house trespass into the house in the residential occupation of late Ramachandran as also PWs 2, 3 and 6, namely, “Sunil Bhavanam”, Thamallackal, Kumarapuram Village, Karthikappally Taluk with the intention of committing murder of the said Ramachandran; that the first appellant stabbed Ramachandran with a knife on his chest and abdomen, causing penetrating fatal injuries; that the second CRA 101/04 2 appellant inflicted a cut injury on the left side of forehead of Ramachandran with a chopper; that the second and third appellants together inflicted several cut injuries on different parts of the body of Ramachandran with the choppers held by them; that on the intervention of PWs 2 and 3, the second appellant inflicted cut injuries to PW3 Anil Kumar with the same chopper on the left side of his chin and left side of his chest; the third appellant inflicted cut injury on the vertex of PW2 Ajesh Kumar with the chopper held by him; that PWs 2 and 3 rushed Ramachandran to the Government Hospital, Haripad in an autorickshaw, where the duty doctor attended on him and thereafter he was referred to the Medical College Hospital, Alappuzha, where PW8, Dr.Anil Kumar, Asst. Professor of Surgery, examined him and performed operation, but, the said Ramachandran succumbed to the injuries inflicted on him, at about 7 a.m. on 25.12.1998 in the operation theatre at the Medical College Hospital, Alappuzha. CRA 101/04 3 2. On being informed of the occurrence, PW1, the eldest son of the deceased came over to the hospital and gathered information from PWs 2, 3 and 6, who were present at the hospital and later, on the death of his father, he went over to the Haripad Police Station and gave Exhibit P1 F.I. Statement on the basis of which the crime was registered by PW27, drawing up Exhibit P29 FIR in that behalf at 9 a.m. on 25.12.1998. PW31, the C.I. of Police conducted investigation in the case and on completion of the investigation, he submitted final report, charge sheeting the accused for offences as aforesaid. 3. The case was committed to the Sessions Court by the Judicial First Class Magistrate-I, Haripad, after complying with all legal formalities, vide C.P.No.143/99. The learned Additional Sessions Judge, who tried the case, found the appellants not guilty of the offence under Section 307 IPC and acquitted them of that offence, but found them guilty of the offences under Sections 302, 324 and CRA 101/04 4 449 IPC read with Section 34 thereof; convicted them thereunder and sentenced them to undergo imprisonment for life and to pay a fine of Rupees ten thousand each under Section 302 IPC and in default to undergo rigorous imprisonment for a further period of one year each; to undergo rigorous imprisonment for seven years and to pay a fine of Rupees five thousand each under Section 449 IPC and in default to undergo rigorous imprisonment for a further term of six months each and to undergo rigorous imprisonment for one year each under Section 324 IPC. It was also directed that the substantive sentences of imprisonment shall run concurrently, Hence, this appeal by the aggrieved accused. 4. The witnesses to the occurrence are PWs 2, 3 and 6, who are the children and wife of the deceased. F.I. Statement has been given by PW1, the eldest son of the deceased, based on the information he gathered from PWs 2 and 3, who are his younger brothers and PW6, their mother. In CRA 101/04 5 Exhibit P1 F.I. Statement, the details of the accused furnished is as follows: It is contended before us by the learned counsel for the appellants that the description of A1 is not sufficient to pin point A1 as the accused; that further the occurrence witnesses are all close relatives of the deceased, whose evidence requires close scrutiny; that the identification of the accused is not proper in as much as there is no test identification parade conducted and the identification for the first time in court, after about five years of the occurrence, is not sufficient or acceptable as proper identification; that though the crime is seen to have been registered at 9 a.m. on 25.12.1998, it reached the court only at 10 a.m. on 28.12.1998 and it is suggestive that the crime was registered not on 25.12.1998, but, only later, after making attempt at identification of the accused; that PW31, in CRA 101/04 6 Exhibit P27 scene mahazar has not mentioned anything regarding the existence of light in the room of occurrence; that there is no proper blood grouping conducted and that the Surgeon and the postmortem doctor differs regarding the nature of the injuries found on the body of the deceased; that the recovery of MOs 5 to 7 weapons allegedly on the information furnished by the second accused does not bind the accused, as there is no authorship of concealment in the information so furnished and that in any event the evidence adduced by the prosecution has only cast a suspicion that the accused might have committed the offence and that suspicion, however, strong cannot take the place of proof and cannot be the basis of conviction. 5. Exhibit P1 F.I. statement is recorded by PW27, the S.I. of Police at 9 a.m. on 25.12.1998 and crime is registered on the basis thereof, drawing up Exhibit P29 FIR. It is on the basis of the dated initial of the learned Magistrate on CRA 101/04 7 Exhibit P29 FIR that it is vehemently contended before us by the learned counsel for the appellants that the date of receipt of FIR in court is 28.12.1998 and therefore, there is long delay of about three days for the FIR being submitted before court. The learned Sessions Judge has, on the basis of the dated seals affixed in the F.I. Statement, which shows the date as 26.12.1998, held that the FIR has reached the court on 26.12.1998, though the learned Magistrate has initialed it only on 28.12.1998. Even assuming that there is delay as is contended by the counsel for the appellants, we see no merit in the contention advanced, for the reason that Exhibit P24 inquest report is prepared at 11 a.m. on 25.12.1998 by PW31, the Investigating Officer and Exhibit P27 scene mahazar is prepared by him at 3 p.m. on 25.12.1998. These aspects show that the crime was actually registered at 9 a.m. on 25.12.1998 as is shown in Exhibits P1 and P29. When there is evidence to show that the crime was actually registered at the time and date shown in CRA 101/04 8 the FIR, there is no reason to think that there is any foul play by reason of the FIR reaching court belatedly. In this connection, we refer to the decision of the Apex Court in Sunil Kumar v. State of Rajasthan (2005 AIR SCW 589). 6. The contention that there was no light in the room, where the occurrence has taken place, is advanced on the basis of Exhibit P27 scene mahazar, wherein the Investigating Officer has not mentioned of any light fixed in the room of occurrence. All the same, in Exhibit P27 scene mahazar itself, towards the concluding portion, PW31 has stated that there is light and fan in all the rooms. To lend assurance to the said statement is the oral evidence of PWs 2, 3 and 6. According to all the witnesses, on hearing ringing of the calling bell and on beating on the door, they switched on the lights both in the room, which is the scene of occurrence and in front of that room. Existence of light so lighted in the room, wherein the CRA 101/04 9 occurrence has taken place as also in front of the said room has not been properly assailed in the testimony of PWs 2, 3 and 6. Further, the convincing testimonies of PWs 2, 3 and 6 does not give any room for suspicion that there was light in the room, where the occurrence has taken place. Hence, the contention that there was absence of light in the scene of occurrence is devoid of merit. 7. The contention advanced on behalf of the appellants that identification of the accused by PWs 2, 3 and 6 for the first time in court was not proper identification has been accepted by the court below. It is true, generally, that when the witnesses have no prior acquaintance with the accused, it is not sufficient that they identify the accused for the first time before court and that a test identification parade is necessary to establish that the witnesses have not gone wrong in identifying the assailants. CRA 101/04 10 8. In the instant case, PWs 2, 3 and 6 are natural and probable witnesses in respect of the occurrence that had taken place in their residence and are having no interest to implicate anyone, who is innocent and to see that the real culprit escapes punishment. It cannot be believed that PWs 2, 3 and 6, who were witnessing the heinous crime, standing very close to the accused and the deceased, would not have formed an impression of the identifying features of each of the accused. 9. The Apex Court has held in George v. State of Kerala (1998 Crl.LJ 2034) as follows: “Law is well settled that identification of an accused in Court is the substantive evidence of the person identifying and his earlier identification in a T.I. parade corroborates the same. In other words, want of evidence of earlier identification in a T.I. parade does not affect the admissibility of the evidence of identification in Court.” CRA 101/04 11 In Kanta Prasad v. Delhi Administration (AIR 1958 SC 350), the Apex Court held as follows: “It would no doubt have been prudent to hold a test identification parade with respect to witnesses, who did not know the accused before the occurrence, but failure to hold such a parade would not make inadmissible the evidence of identification in Court.” The Apex Court has observed in Jadunath Singh v. State of U.P. (AIR 1971 SC 363) that absence of test identification parade is not necessarily fatal. In Ronny alias Ronald James Alwaris, etc., v. State of Maharashtra (AIR 1998 SC 1251), the Apex Court has observed as follows: “If a witness has known an accused earlier in such circumstances which lend assurance to identification by him in court and if there is no inherent improbability or inconsistency, there is CRA 101/04 12 no reason why his statement in court about the identification of accused should not be relied upon as any other acceptable but uncorroborated testimony.” In Malkhansingh v. State of Madhya Pradesh (AIR 2003 SC 2669), the Apex Court, in paragraph 16 of the judgment, observed as follows: “It is well settled that the substantive evidence is the evidence of identification in Court and the test identification parade provides corroboration to the identification of the witness in Court, if required. However, what weight must be attached to the evidence of identification in Court, which is not preceded by a test identification parade, is a matter for the Courts of fact to examine. In the instant case, the Courts below have concurrently found the evidence of the prosecutrix to be reliable and, therefore, there was no need for the corroboration of her evidence in Court as she was found to be implicitly reliable. We find no error in the reasoning of the Courts below. CRA 101/04 13 From the facts of the case, it is quite apparent that the prosecutrix did not even know the appellants and did not make any effort to falsely implicate them by naming them at any stage. The crime was perpetrated in broad day light. The prosecutrix had sufficient opportunity to observe the features of the appellants who raped her one after the other. Before the rape was committed, she was threatened and intimidated by the appellants. After the rape was committed, she was again threatened and intimidated by them. All this must have taken time. This is not a case where the identifying witness had only a fleeting glimpse of the appellants on a dark night. She also had a reason to remember their faces as they had committed a heinous offence and put her to shame. She had, therefore, abundant opportunity to notice their features. In fact on account of her traumatic and tragic experience, the faces of the appellants must have got imprinted in her memory and there was no chance of her making a mistake about their identity.” CRA 101/04 14 10. In the instant case also, it is not that the occurrence witnesses were having only fleeting glimpse of the appellants. They were witnessing the appellants committing the heinous crime against the deceased, who is the father of PWs 2 and 3 and husband of PW6. No one having such close relationship with the victim can forget the faces of the assailants, especially when they have witnessed the dreadful acts committed by them for about 6-7 minutes, standing close by. They were so close to the accused and the deceased that PWs 2 and 3 have even sustained injuries at the hands of the assailants and had abundant opportunity to notice their features. Further, identification of the first accused as Kurathikkattukaran Santhosh has to be understood as a proper identification for the reason that unless the occurrence witnesses know him with the aforesaid identity, it cannot be so mentioned to PW1 and PW1 would not have made mention of the said Santhosh as Kurathikkattukaran Santhosh. There is no question also put to PWs 2, CRA 101/04 15 3 and 6 disputing the identity of the first accused as not being the person referred to as Kurathikkattukaran Santhosh. 11. The contention that occurrence witnesses are interested witnesses, being close relatives of the deceased, is absolutely devoid of any merit as in relation to an occurrence that takes place within the house, only the close relatives of the victim, who are the other occupants of the house can become the witnesses and the Apex Court has repeatedly held in various decisions that existence of close relationship between the witnesses and the deceased is no reason to disbelieve their testimony and it is only that close scrutiny has to be made of their evidence in cases, where circumstances so demand. In the instance case, we have no doubt that PWs 2 and 3, who are the sons of the deceased and PW6, the widow of the deceased, would not give false evidence implicating any innocent person, thereby giving an opportunity to the real culprit to escape. In this connection, we refer to the CRA 101/04 16 decisions of the Apex Court in Dalip Singh v. State of Punjab (AIR 1953 SC 364) and Israr v. State of U.P. (2004 AIR SCW 6916). 12. Now, coming to the question of appreciation of evidence, we will first deal with the ocular testimonies of PWs 2, 3 and 6, who are the occurrence witnesses. 13. PW2, the son of the deceased, has given evidence that himself along with his deceased father, his mother (PW6) and his elder brother Anilkumar (PW3) and Rajamma, the niece of his deceased father, were residing together at Sunil Bhavanam at Thamallakkal at the time of the occurrence. His eldest brother (PW1) was residing one and a half kilometres west from that house. All the same, PW1 was conducting a music centre adjacent to their house under the name and style “Geetham Audios”. As usual, on 24.12.1998, by about 10 p.m., the occupants of Sunil Bhavanam had their supper and they went to bed. By about 11.45 hours CRA 101/04 17 that night he woke up hearing the calling bell ringing. There was also beating on the door of the front room, wherein his father was sleeping. He also heard the deceased responding as to who it is. Himself and PW3, who were sleeping in the northern room of the front room, wherein his deceased father was sleeping, came over to the front room and switched on the lights both in the front room and outside. His father opened the upper half of the twin door, which opens towards outside. Immediately, Santhosh (A1) jumped over the lower half of the door and entered into the front room and following him the other two accused, who were accompanying him, also entered into the room jumping over the lower half portion of the front door. According to him, the first accused declared that all of them will be done away with in case the amount due to him is not paid and inflicted a stab injury on the abdomen of his father, the deceased with a knife. Then the second accused inflicted a cut on the head of the deceased with a chopper and CRA 101/04 18 the third accused Vijayakumar inflicted several cuts on the body of the deceased with a chopper. In the meanwhile, the first accused inflicted several stab injuries alternatively on the abdomen and chest of the deceased. Thereupon, PW3 intervened and tried to obstruct them and then the second accused inflicted cuts on the chin and chest of PW3 and the third accused inflicted cut on the head of PW2 with the chopper. He identified MO5 as the knife used by the first accused to inflict stab injuries on the body of the deceased and MOs 6 and 7 as the choppers used by the second and third accused for causing cut injuries. After thus inflicting injuries, all accused jumped over the half door and took to heels along with the weapons. Himself and PW3 followed them upto the road and then they saw the accused proceeding getting on to an YEZDI motorcycle. On hearing the alarm raised by himself, PW3 and PW6 as also Rajamma, who witnessed the occurrence, his neighbours Rajan and Ramachandran (PWs 19 and 20) came running; they got CRA 101/04 19 down an autorickshaw from the Narakathara Junction and himself and PW3 took the deceased in the said autorickshaw to the Government Hospital, Haripad, where the doctor, after giving first aid, instructed them to take the deceased to the Medical College Hospital, Alappuzha and accordingly, himself along with PWs 3 and 6 took the deceased to the Medical College Hospital, Alappuzha. At the Medical College Hospital, the deceased was immediately subjected to surgery. But, by 7 a.m. on the next day he succumbed to the injuries. PWs 2 and 3 were also admitted in the Medical College Hospital, Alappuzha. At about 2.00 hours in the night, PW2 informed of the matter over telephone to PW1. 14. PW2 has further deposed that in the morning on the date of occurrence, the first accused, along with Kavilparambil Chandran, had come over to their house and again at about 1.30 hours at noon, the first accused, along with the second accused, came over to their house and enquired the whereabouts of CRA 101/04 20 their father to CW14 Soman; that the first and second accused had quarrel with CW14 Soman in relation to some cash transaction and the first accused gave a blow to CW14; that he enquired Soman as to what is the matter and then Soman told him that the deceased and Kavilparambil Chandran owed some money to the first accused. PW2 further deposed that the first and second accused were then coming over on an YEZDI motorcycle. He also added that in the morning also the first accused was coming over to their house on an YESDI motorcycle. He does not remember the registration number of the said motorcycle, but, he has deposed to its colour as being black. According to PW2, he has identified the accused at the police station. He has also identified that MOs 8 and 9 were respectively the shirt and lungi worn by the first accused, MOS 10 and 11 were respectively the shirt and lungi worn by the second accused and that MOs 12 and 13 were respectively the shirt and lungi worn by the third accused. He has further identified MOs 1 and 2 CRA 101/04 21 respectively as the Kaily and the towel worn by the deceased at the time of occurrence. He has also stated that while inflicting cut injuries on the deceased, the accused also sustained injuries mutually. He has also categorically stated that within the room and outside there having been light, the accused could be seen. He has stated in cross-examination that himself and PW3 were also examined by the doctor at the Government Hospital, Haripad and also at the Medical College Hospital, Alappuzha. 15. In cross-examination, it has been brought out that the second and third accused trespassed into the house jumping over the half door, only after infliction of the first stab injury by the first accused and that being stunned by the acts of the accused in inflicting injuries on their father, himself and PW3 could not do anything by way of defence and that altogether the occurrence took place in about 5-6 minutes. To the specific suggestive question in cross-examination that light CRA 101/04 22 was not being used in the room of the deceased, PW2 has stated that in all the rooms in their house light is being used. He has also stated that none of the accused had used sword stick ( ). PW2 has also stated that he could observe the dress worn by each of the accused, though he did not make any particular attempt to observe their dress. In cross-examination he has also stated that himself and PW3 went over upto the National Highway, which is about fifty feet from their residence to ascertain as to how the accused came over there. He has asserted that the accused did not sustain any injury either from the deceased or from himself or from PW3, but that they sustained injuries while the deceased attempted to avert the attack and the cuts aimed at the deceased accidentally fell on the other accused and thus, by mutual infliction all the accused sustained injuries. 16. PW3 is the brother of PW2. His evidence is consistent with the testimony given by PW2 and he has corroborated PW2 in all material aspects as CRA 101/04 23 regards the occurrence. He has stated that the first accused was having some financial transaction with the deceased and that the first accused, along with another, had come over to their house both in the morning and at noon. According to him, the person, who was then accompanying the first accused, appears to the second accused. He has also corroborated PW2 when he says that the lights in the room of the deceased and outside were lighted and it was thereafter that the deceased opened the upper portion of the door of the front room, which opens towards