M.C. Ali & Anr vs State Of Kerala

2. Initially 13 persons including the six appellants had been charge-sheeted in Kumbla Police Station, Crime No.22/1994 for offences punishable under Sections 143, 148, 324, 307 and 302 of the IPC read with Section 149 of the IPC. Upon trial, the six appellants had been convicted under Sections 143, 147, 148, 307 and 302 read with Section 149 of the IPC and sentenced to life imprisonment together with various other periods of imprisonment under different sections. The sentences were directed to run concurrently. Accused Nos. 7 to 13 were found not guilty and acquitted of all the charges. The convicted accused filed Criminal Appeal No.391/96 before the High Court of Kerala. At the same time, the acquittal of accused Nos.7 to 13 was challenged through revision by K. Hussain (PW2) the son of Moosa Haji, PW5 (the injured witness), through Criminal Revision Petition No.1115/96. Through a common judgment, the High Court was pleased to accept the appeal filed by the convicts and their convictions as well as their sentences were set aside. The case was remanded to the Trial Court for fresh disposal after complying with the provisions under Section 233 of the Criminal Procedure Code. Criminal Revision Petition No.1115/96 against acquittal of accused Nos.7 to 13 was dismissed.

5. Against the conviction and sentence, accused Nos.1 and 4, namely, K. M. Iddinkunhi and Andan, have filed Criminal Appeal No.434/2002, accused Nos. 2 and 3, namely, M.C. Ali and Andunhi have filed Criminal Appeal No.499/2002 and accused Nos.5 and 6, namely, B.K. Bayan Kunhi and K.B. Abbas have filed Criminal Appeal Nos.500-501/2002.

7. It is claimed by the prosecution that Moosa Haji, (PW5), his family and some of his close relatives are believers of Shemsia Thareequat sect in the Muslim community. They are the worshippers of Sun and followers of Sai Baba. They are not accepted by a large section of the Muslim community. Therefore, the local Jumaath had unleashed "a sort of an overt and covert attack on PW5 and other followers of Thareequat movement." This had created fights between the two groups of the locality which caused friction in the relationships, activities and life which ended up in a number of disputes including criminal cases. The majority in the Muslim community of the area had ex-communicated PW5 and other followers of Thareequat movement. It is further alleged by the prosecution that some of the religious scholars had even called upon the members of the Muslim community to annihilate the followers of the Thareequat movement on the belief that such actions would bring the reward from the Almighty. Such type of social boycotting had put PW5 and other followers in a situation of not even getting employees to work in the agricultural fields and also for other work. This had compelled 4 them to bring the workers from other areas. PW1, Chandrasekhara, was thus brought by PW5 from Ubradka, Mittur, Karnataka State and deceased Faizal from Manjeri. Because of the threat of other people of the Jumaath both PW1 and deceased Faizal were residing in the house of PW5. PW1 Chandrasekhara belonged to Scheduled Caste.

8. On 30.1.1994, PW5 Moosa Haji and his son PW2 Hussain returned at about 8 p.m. to their home. They came to know that the child of CW9, Mammunhi Haji, the brother of PW5, had met with an accident and suffered some injuries. On receipt of this information, PW5 asked PW2 to go to the house of CW9 and enquire about the details. Because of the tension prevailing in the locality between the two groups of Muslim community, PW5 asked PW1 and the deceased Faizal to accompany PW2 to the house of CW9. Thus all the three proceeded to the house of CW9, at about 9.15 p.m. There were two ways to reach the house of CW9 from the house of PW5. Both were through the paddy fields, one on the higher level and the other on the lower level. They had proceeded along the path way leading through the higher level. When they reached the Thrikkandam paddy field of one Kunhamu Haji, they proceeded westwards to reach the house of CW9. The paddy field was free of paddy as the harvest was over. They walked through the bund of the fields. All three of them had torches in their hands. While thus proceeding, they found a group of 5 about 15 persons standing on the north-western end of the paddy field. While they were proceeding westwards the group of 15 moved towards eastwards along the same bund. The group also had torches in their hands and they had flashed the torches on PW5, 1, 2 and Faizal who also flashed back their torches. In this light PW1 identified A1 to A6 as he knew them by name. A7 to A13 were also present in the group whom PW1 could identify, but did not know their names at that time. PW2 knew A1 to A13.

11. PW7, the then Sub-Inspector, Kumbla Police Station, received information at 9:50 pm on 30.1.1994 over telephone that some incident had taken place at Ujar Ulwar village resulting in the death of one person. The informant did not disclose his identity. PW7 entered 7 this information in general diary (Ex. P9). He then proceeded to the place of occurrence with whatever force he had in the police station.

12. On reaching the place of occurrence, after making inquiries near the local mosque, he was able to trace out the house of PW5, who was inside the house. He (PW5) narrated what had happened to the Sub-Inspector and took the police party along the pathway to the house of his brother, CW9. At the house of CW9, they saw PW2 who had sustained injuries. At that time they learnt that Faizal had been murdered. The Sub-Inspector (PW7) immediately made arrangements to take PW2 and PW5 to the hospital in the police jeep.

13. First Information Statement was taken from PW1 by PW7 in the house of CW9. Since Police jeep was sent with PW2 and PW5 to the hospital, he sent a constable to Kumbla Police Station. The Head Constable (PW8) on general diary charge (GD charge) duty, registered the FIR at 00.30 hours on 31.1.1994. On that day morning itself it was sent to the Magistrate and the Magistrate signed it on the same day at 3.30 p.m. According to the prosecution, Circle Inspector, Kumbla Police Station (PW9) who was at Kasargod on law and order duty in connection with the meeting of the Muslim League, received wireless information that two groups had clashed at Ujar Ulwar village. He, therefore, rushed to the village with police party where he met PW7. Both of them made arrangement for maintaining law and 8 order. They also posted guards at the scene of occurrence during the night. The injured witnesses PW2 and PW5, who were traveling in the police jeep, reached Bayikatta. From there they got into the car of their relative as the jeep had to be returned to the Sub-Inspector PW7. At that stage, PW5 remembered that he had forgotten to take any money. They, therefore, went to the house of one Mohan Kamath, a friend of PW5, who also accompanied them to the City Hospital Research and Diagnostic Centre at Mangalore.

14. When the first accused was questioned, he made a confessional statement to PW9 about the place of concealment of MO1, weapon of offence. A1, after recording the statement, took PW9 to the ditch with thick grass on the eastern side of the paddy fields where the occurrence took place. He took out knife (MO1) from the place where it had been concealed. This was duly sealed by PW9 under Ex.P8 seizure mahazar on 3.2.1994. The seizure mahazar is attested by PW6. The accused were produced before the Magistrate Court and remanded in custody. The MO1 was then forwarded for chemical examination. The report of the chemical analysis Ex.P21 shows there was human blood on MO2 series, the sticks. There was no blood on MO1, 6 and 9.

16. Dead body of Faizal was sent for post mortem and PW3 received the post mortem certificate (Ex.P3) from the then doctor of Community Health Centre, Kasargod. The post mortem certificate was marked by consent of both sides under Section 294 of the 10 Criminal Procedure Code. In the First Information Statement (Ex.P1), PW1 Chandrasekhara had stated the names of accused 1 to 6. He also stated that there were 7 more accused whose names were not known to him but he could identify them on sight. PW2, according to the prosecution, was under general anesthesia for suturing of the wounds and, therefore, could not be questioned immediately. However, he was questioned by PW9 on 3.2.1994 in the City Hospital. Thereafter PW9 filed report (array of accused) P.16 in Court on 3.2.1994 including the names of accused 7 to 12. PW5 was questioned by the investigating officer, PW9. On 4.2.1994 on the basis of his statement name of 13th accused was added. Accused Nos. 1 and 3 to 6 surrendered before the investigating officer in his office on 3.2.1994. They were duly arrested. Accused Nos.A8 to 12 were arrested between 29.4.1994 and 30.4.1994.

17. At the same time, A2 to A7 also claim to have suffered some injuries on the night of 30.1.1994. They went to Unity Health Complex at Mangalore on 31.1.1994, where they were admitted and treated as in-patient. Exs. P23 and P24 are the treatment particulars whereas Exbs.P25 and P26 are the case sheets respectively of the accused. PW10 and DW1 had treated them during this period. They were discharged on 23.3.1994 on which date PW9 arrested them. A13 was absconding but later appeared before the Magistrate Court. 11

18. While at the Unity Health Complex, a statement was given by M.C. Ali (A2), which was recorded by the Kadari Police Station as the First Information Statement (Ex.P22). In this he claimed that on 30.1.1994, he and his neighbour Abdul Rahiman were returning from Kasargod at 9.30 p.m. after attending a Muslim League meeting. When they reached a place called Trikkandam through Kunjamu Haji's field at 10.15 p.m., they found Mammunhi Haji's son Hussain, his brother Abdul Khader, Moosa Haji, his son Hussain, his brother- in-law Jamal Bayikkatta coming from the opposite direction. The complainant also stated that these people had enmity with them and thus they blocked them and told "we will not leave anybody". Mammunhi Haji's son and Jamal inflicted injuries on his left hand shoulder and armpit. When Abdul Rahiman came to block, Moosa Haji and his son inflicted injuries on his right hand and the wounds started bleeding. At that time complainant fell down and he was beaten up on his right leg and left side of the head with a stick and as a result of which he became unconscious. He has also stated in his complaint that there was a case pending regarding the issue of a mosque between him and the accused and thus the accused had caused injuries to them with sword-like knife, sticks, etc. On the basis of the aforesaid statement, Crime No. 67/94, transfer FIR (Ex.P11) for offences under Sections 143, 147, 148, 324, 341, 506 12 read with 149 IPC was registered. The same was later on transferred to Kumbla Police Station, where PW8 registered it as Ex.P12 of Kumbla Police Station. PW9 also conducted the investigation of FIR (Ex.P12). On completion of the investigation charges were filed against five accused persons including PW2 and PW5.

19. On committal this case was numbered as SC No.66/95 against the 13 accused. The case against 5 accused, registered on the basis of FIR Ex.P12, was numbered as SC 111/95. The trial of both the cases was taken up simultaneously one after the other and judgment in both the sessions cases was pronounced on the same day. We have noticed above that after trial accused 1 to 6 were convicted in SC No.66/95.

23. As noticed earlier, he was admitted on 31.1.94 and discharged on 7.2.94. The injury No.4 was grievous while the other injuries were simple. The doctor also noticed that the history was of alleged assault by known persons at Ulwar, Kumbla at 10.15 pm on 30.1.1994. PW5, who was examined by doctor PW3 at 1.25 am on 31.1.1994, was also issued wound certificate Ex.P5. As per Ex.P5 statement following injuries were suffered by PW5:

25. As noticed earlier, the post mortem report has been accepted by both the sides, according to which Faizal died due to hemorrhage and 16 shock suffered by him because of the injuries on the major vessels of neck. While discussing points No.2 and 3, the Trial Court notices that PW1 is a native of Mittur, in State of Karnataka and has been living in the house of PW5 as a worker under him for the last about 10 years. He had gone with PW2, and the deceased Faizal to the house of CW9 at about 9.15 pm on 30.1.1994. It is alleged by the prosecution that the occurrence took place, whilst they were enroute to the house of CW9. PW1 has supported the prosecution version. It was he who gave Ex.P1 FIS to PW7 on the basis of which crime against A1 to A6 was registered at Kumbla Police Station. The Trial Court then notices the sequence of events as narrated earlier. Prosecution mainly relied on the evidence of PW1, 2 and 5 in support of its version.

27. The Trial Court further notices that the local Muslim community who are in majority have a long standing enmity with PW5, his family and other close relatives. The religious scholars had even called upon their followers to do away with the believers of Shemsia Thareequat sect of the Muslim community. Their life and movement had been made impossible in the locality. The majority of the Muslim community was encouraged to disrupt the life of the family of PW5 and his relatives. They had been boycotted and were not allowed to socialize with the local Jumaath. The Trial Court also notices the prosecution version that on 30.1.1994 at about 8 pm, PW5 and his son PW2 returned to the house. They were informed that CW9, brother of PW5, who was residing at some distance from the house of PW5 had telephoned to inform that his son had sustained some injuries because of a fall. Therefore PW5 had asked PW1 deceased Faizal to go along with PW2 to the house of CW9. PW1 and Faizal had been asked to go along with PW2 due to the peculiar situation existing in the locality against PW5 and his family. At about 9.15 P.M. they proceeded to the house of CW9 Mammunhi Haji.

52. In our opinion, taking into consideration the entire facts and circumstances of the case, it would not be possible to agree with the High Court that the findings recorded by the Trial Court were perverse or that only one conclusion consistent with the guilt of the accused was possible. We are of the opinion that the two views being reasonably possible the High Court ought not to have interfered with the verdict of acquittal recorded by the Trial Court. Consequently, we allow the appeal and set aside the judgment of the High Court. Criminal Appeal No.434 of 2002 and Criminal Appeal Nos. 500-501 of 2002:-