High Court Kerala High Court

Ahammed Kannu vs State Of Kerala on 5 January, 2010

Kerala High Court
Ahammed Kannu vs State Of Kerala on 5 January, 2010
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

CRL.A.No. 2207 of 2005()


1. AHAMMED KANNU, S/O.ABDUL REHMAN,
                      ...  Petitioner
2. SHARAFUDEEN, S/O.MOYDEEN KANNU,
3. ABDULMAJEED, S/O.PEERU MUHAMMED,

                        Vs



1. STATE OF KERALA, REPRESENTED BY THE
                       ...       Respondent

                For Petitioner  :SRI.SUMAN CHAKRAVARTHY

                For Respondent  : No Appearance

The Hon'ble MR. Justice K.BALAKRISHNAN NAIR
The Hon'ble MR. Justice P.BHAVADASAN

 Dated :05/01/2010

 O R D E R
            K. BALAKRISHNAN NAIR & P. BHAVADASAN, JJ.
               - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
                        Crl. Appeal Nos. 2207 of 2005,
                                 92 & 169 of 2006.
                  - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
                  Dated this the 5th day of January, 2010.

                                      JUDGMENT

Bhavadasan, J,

These three appeals arise out of the judgment in

SC.948 of 2001 of the Court of Additional District and

Sessions Judge (Fast Track-1), Thiruvananthapuram.

2. Six persons were sought to be prosecuted for the

offences punishable under Sections 143, 147 and 302 read with

Section 149 of the Indian Penal Code. Among them, the sixth

accused absconded and the case against him was split up. The

others stood trial. The first and the fifth accused were found

guilty of the offences punishable under Section 302 read with

Section 34 IPC. Accused Nos.1 to 5 were acquitted of the

charges under Sections 143 and 147 IPC and accused Nos.2 to

4 were also acquitted of the charges under Section 302 read

with Section 149 IPC but were found guilty of the offence

punishable under Section 323 read with Section 34 IPC. The

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first and fifth accused were convicted for the offence punishable

under Section 302 read with Section 34 IPC and sentenced to

undergo imprisonment for life and to pay a fine of Rs.25,000/-, in

default of which they have to suffer rigorous imprisonment for

three years each. Accused Nos. 2, 3 and 4 were sentenced to

undergo rigorous imprisonment for one year each and to pay a fine

of Rs.1000/- each and in default, each of them had to suffer

rigorous imprisonment for three months for the offence

punishable under Section 323 read with Section 34 IPC. It is also

ordered that if the fine amounts were realised, a sum of Rs.50,000/-

shall be paid to the legal heirs of Jalaludeen as compensation

under Section 357(1)(b) Cr.P.C. Accused Nos. 2 to 4 have

preferred Crl.Appeal No.2207 of 2005, first accused has filed

Crl.Appeal No.92 of 2006 and the fifth accused has filed

Crl.Appeal No.169 of 2006.

3. The incident in this case occurred on 25.6.1998 at

about 7 p.m.. The deceased, namely, Jalaludeen was the Secretary

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of the Vizhinjam Jama-ath at the relevant time. The accused were

members of the said Jama-ath. On the date of the incident, there

was a General Body Meeting of the members of Jama-ath. In the

meeting held on the date of the incident, the accounts of the

committee was being read out, when someone shouted that it was

not audible. That sparked of a commotion in the hall. According

to the prosecution, at that time accused Nos.1 and 2 shouted from

behind that since it was the Secretary and the President, who had

given information to the police regarding the persons who caught

fish from the sea by using explosives, they should be taught a

lesson. Thereafter it was a free for all in the hall. Prosecution said

that Jalaludeen, the Secretary of the then Committee, was chased

by the accused persons. Jalaludeen ran to the flat concrete roof of

the building. He was beaten up by the accused persons and

thereafter it is alleged that accused Nos. 1 and 5 caught hold of his

limbs and threw him down from the roof of the building.

Jalaludeen suffered injuries in the fall and he succumbed to his

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injuries on 10.7.1998 at about 4.10 p.m.. In the meanwhile, getting

information about the incident, police reached Medical College

Hospital, Thiruvananthapuram, where Jalaludeen was undergoing

treatment, on 26.6.1998 at about 8.30 a.m. Police found that

Jalaludeen was not in a position to talk and therefore recorded the

first information statement, namely, Ext.P1 furnished by P.W.1.

When Jalaludeen was taken to the Medical College Hospital, he

was attended to by P.W.20 and Ext.P14 is his case sheet. P.W.19

had also attended to Jalaludeen while he was undergoing treatment

in the Medical College Hospital. First Information Statement

given by P.W.1 was recorded by P.W.26, the Sub Inspector of

Police, Vizhinjam Police Station. He prepared the body note of

Jalaludeen, namely Ext.P1(a) and thereafter on the basis of Ext.P1,

he registered the Crime as per Ext.P1(b) FIR. Investigation was

taken over by P.W.27. He went to the place of occurrence and

prepared Ext.P15 scene mahazar. Inquest was done by P.W.27 and

thereafter Ext.P7 inquest report was drawn up. The body was sent

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for autopsy. P.W.18, the Forensic Surgeon attached to the Medical

College Hospital conducted autopsy and furnished Ext.P12 report.

The chemical analysis report obtained by P.W.18 is marked as

Ext.P13. P.W.27 recorded the statements of witnesses and had the

accused arrested. On getting information that Jalaludeen is no

more, he filed Ext.P20 report seeking to have Section 302 IPC

incorporated. It appears that the investigation was handed over to

the Crime Branch and C.W.46 had conducted further investigation.

Unfortunately, C.W.46 was no more at the time of trial. P.W.27

had deposed that C.W.46 has recorded the statement of other

witnesses also. He had obtained the necessary documents and

ultimately he laid the charge before court.

4. JFCM-II, Neyyattinkara, before whom final report

was laid, took cognizance of the offence. On summons, the

accused entered appearance before the said court. On appearance

of the accused before the said court all legal formalities were

complied with. The learned Magistrate found that the offence was

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one exclusively triable by a court of Sessions and accordingly

committed the case to Sessions Court, Thiruvananthapuram under

Section 209 Cr.P.C.. The said court made over the case to Second

Additional Sessions Court, Thiruvananthapuram for trial and

disposal. In the said court, only accused Nos.1 to 5 entered

appearance and since accused No.6 was absconding, the case

against him was split up and included in the LPR. Subsequently

the case was made over to the Additional District and Sessions

Court (Fast Track-I), Thiruvananthapuram for trial and disposal.

5. That court, on receipt of records, issued summons to

the accused, who entered appearance. After hearing both sides,

charges were framed for the offences punishable under Sections

143, 147 and 302 read with Section 149 IPC. To the charge, the

accused pleaded not guilty and claimed to be tried. Prosecution

therefore had P.Ws. 1 to 27 examined Exts.P1 to P22 marked.

M.Os. 1 to 2 were identified and marked on the side of the

prosecution. After the close of the prosecution evidence, the

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accused were questioned under Section 313 of the Criminal

Procedure Code. All of them maintained that they were innocent

and have been falsely implicated. Finding that the accused could

not be acquitted under Section 232 Cr.P.C., they were asked to

enter on their defence. The accused had got Exts.D1 to D10

marked. No other evidence was adduced by the defence. On an

appreciation of the evidence in the case, the court below found the

first and fifth accused guilty of the offence of murder, while

accused Nos.2, 3 and 4 were guilty of the offence of causing hurt

to the victim. Accordingly, the conviction and sentence, as already

mentioned, followed.

6. The question that arises for consideration is whether

any interference is called for with the finding of the court below.

7. The prosecution case in brief is that on 25.6.1998 in

the evening, while the Committee meeting of the Jama-ath was

going on, a pandemonium broke out and taking advantage of the

situation, according to the prosecution, the accused persons chased

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the Secretary of the Jama-ath, namely, Jalaludeen to the concrete

roof of the building and thereafter they beat him up. Then it is

further alleged that accused Nos.1 and 5 caught hold of his arms

and legs and threw him down from the terrace. The injuries

sustained in the fall resulted in the death of Jalaludeen on a later

date.

8. It is seen that the Court below had placed

considerable reliance on the evidence of P.W.2. The court below

has also noticed that P.W.1, the author of Ext.P1, at the time of

evidence had not fully supported the prosecution case. Even

though P.Ws.3, 4, 13, 17 and 22 were also examined to prove the

incident, unfortunately for the prosecution, they too did not fully

support the prosecution case. However, corroboration is available

in patches from their evidence. Motive is also attributed to the act

committed by the accused persons. The accused believed that it

was the President, P.W.2 and late Jalaludeen who had disclosed the

names of the persons, who were engaged in illegal fishing in the

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sea, to the police. The prosecution would say that taking

advantage of the chaos that occurred in the hall, the act was

committed by the accused persons. Then again, there is yet

another motive suggested for the first accused to nurse grudge

against Jalaludeen, the Secretary. P.W.15 had married late

Jalaludeen. Her evidence would show that in fact the first accused

had taken a fancy for her and he wanted to marry her. But she was

not amenable.

9. As already noticed, the court below found the

evidence of P.W.2, supported by the evidence of P.Ws.3, 4, 13, 17

and 22, sufficient to establish the prosecution case.

10. Learned counsel appearing for the appellants

severely criticised the finding of the court below. According to

the learned counsel, the court below has not applied its mind to the

evidence adduced in the case and has acted in a mechanical

manner. On a close reading of the evidence, according to the

learned counsel, it can be seen that Ext.P1 would not have been the

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first information statement as claimed by the prosecution. In fact

the evidence of P.W.2 and P.W.17 could clearly reveal that the

police was informed about the incident on the date of incident

itself, that is on 25.6.1998 and the evidence of P.W.17 is to the

effect that the police had come to the place and taken a statement.

If that be so, Ext.P1 cannot be treated as the first information

statement. It is also pointed out that the origin and development of

the incident is in serious doubt. Drawing attention of this court to

the evidence in the case, it was pointed out that the chaos erupted

when someone shouted that they could not hear the Secretary

reading the accounts of the Jama-ath Committee. That sparked of

the incident in the hall and thereafter, according to the learned

counsel, if the evidence is closely read, it can be seen that it was a

free for all affair. Even assuming that the first and fifth accused

had made exhortions against the Secretary and the President, that

by itself is not a ground to hold against the accused persons. There

is nothing to indicate that the chaos in the meeting was a deliberate

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creation of the accused persons with the ill-motive of doing away

with the Secretary, namely, Jalaludeen. Prosecution is bound to

establish as to what exactly had transpired at the spot and to show

that the accused persons had acted in a manner uncalled for. The

evidence on record, according to the learned counsel, shows that

the Secretary was chased by a number of people and he had ran to

the roof. May be that the accused also followed him along with

others. It is possible that the Secretary could have slipped and had

fallen from the terrace There is absolutely no evidence to show as

to what exactly had transpired at the spot and placing of implicit

reliance on the evidence of P.W.2 may not be justified considering

the fact that there is possibility of manipulation and false

implication. Learned counsel appearing for the appellant in

Crl.Appeal No.92 of 2006 pointed out that it is rather unbelievable

that an issue of the nature, that had erupted on the date of the

incident in a sensitive area, would not have come to the notice of

the police, especially when the police station was only one

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kilometre away from the place where the meeting was conducted.

Learned counsel also stressed the fact that no wound certificate had

been produced by the prosecution and that creates further suspicion

in the matter. Claim of P.W.26 that police came to know about the

incident only on getting intimation from the hospital on the next

day cannot be true in the light of the evidence furnished by P.W.2

and P.W.17. This shows that the prosecution had a lot to hide.

Finally, the counsel appearing for the appellants in Crl. Appeal

Nos.92 and 169 of 2006, namely accused Nos.1 and 5 pointed out

that even assuming that all what prosecution says are true, still it is

impossible and inconceivable that Section 300 would be attracted

to the facts of the case.

11. In reply, learned Public Prosecutor pointed out that

even though the above arguments may look attractive at the first

blush, on a close scrutiny, it can be seen that they do not have

much substance at all. The fact that the accused persons had not

come armed with deadly weapons, and that they have no intention

Crl.Appeal.2207/2005 & con.cases.

13

to create trouble in the meeting is not by itself enough to exculpate

the accused. At any rate, according to learned Public Prosecutor,

they had taken undue advantage of the situation and had done a

gruesome act. They had a reason to have a grudge against the

Secretary and President. Even assuming that there was a chaos

followed by free for all in the meeting, there was no reason for

the accused persons to chase the Secretary or to follow him to the

roof. They did not leave him there. They unleashed a merciless

attack on him by beating, kicking and fisting him. When he had

fallen on the floor of the terrace, accused Nos. 1 and 5 held his

limbs and threw him down. There was no justification for them to

do so. The evidence of P.W.2 is very clear in this regard. Even

though the prosecution may not derive complete support from the

evidence of P.Ws. 3, 4, 13, 17 and 22, it can be seen that to a large

extent their evidence too support the version given by P.W.2. It is

also stressed that there was no reason for P.W.2 to falsely implicate

the accused persons. On the other hand, the belief of accused

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Nos.1 and 5 that it was the Secretary and the President, who are

responsible for disclosing the names of those persons, who had

engaged in illegal fishing, to the police, had resulted in the

incident. Learned Public Prosecutor went on to point out that the

court below, after considering the evidence in detail, had arrived at

a proper conclusion. No grounds are made out to interfere with the

said finding.

12. The fact that the then Secretary late Jalaludeen

suffered injuries consequent on the fall from the roof and that he

succumbed to his injuries on a later date are matters which cannot

be disputed. Ext.P14 is the case sheet maintained in the Medical

College Hospital, Thiruvananthapuram, where Jalaludeen had

undergone treatment. It shows that Jalaludeen expired on

10.7.1998. Ext.P12 is the postmortem certificate issued by

P.W.18, who is the Forensic Surgeon attached to the Medical

College, Thiruvananthapuram. The said document shows the

injuries found on the body of the victim. The cause of death is

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stated to be due to head injury. The Forensic Surgeon had opined

that the injury which caused the death of the victim could be

sustained in a fall from the roof of a building. It is pointed out by

her that injury Nos.1 and 2 noticed in Ext.P12, with its internal

effects are sufficient in the ordinary course of nature to cause

death. This shows that death was not due to natural causes.

13. The next question is whether as alleged by the

prosecution accused Nos.1 and 5 are responsible for causing the

fatal injuries to Jalaludeen. As already noticed, the main evidence

on which prosecution placed reliance is the testimony of P.W.2.

He was then the Jama-ath President of the Vizhinjam Jama-ath and

the deceased was the Secretary. He would depose that on

25.6.1998 a General Body Meeting of the Jama-ath was convened

at about 7 p.m. at the Vizhinjam Madrassa Hall. After the meeting

had commenced and while the Secretary was reading out the

income and expenditure statement, someone shouted from behind

that his speech was not audible. At that time, the first and second

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accused, who were standing outside the hall shouted that the

President and Secretary, who were responsible for disclosing the

names of those persons, who had done illegal fishing from the sea

by using explosives should not be allowed to live. They along

with others came rushing at him and the deceased. Even though a

few others tried to prevent them, they did not succeed. P.W.2

would say that in order to protect them from attack, Abdul Khader,

Abdul Karim and Sainudeen and a few others took P.W.2,

Secretary and others to the roof of the building. But the accused

followed them. They caught hold of the Secretary and the fourth

accused is said to have fisted Jalaludeen from behind. The third

accused kicked him. The first accused is said to have stamped him

on his chest. Then what P.W.2 would say is that the first accused

caught hold of the hands of the deceased and the fifth accused held

his legs. They lifted him shouting that the Secretary, who

disclosed the names of the persons, who had done illegal fishing

from the sea, to the police, should not remain alive, threw him

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down from the roof. P.W.2 would say that then he found the

miscreants turning towards him and out of fear, he took to his

heels. He would also depose that the first accused had a grudge

towards Jalaludeen, for, the latter having married a lady for whom

the first accused had a fancy. Quite often there used to be

exchange of words between them in relation to the said matter.

14. P.W.1 is the author of Ext.P1 first information

statement. His evidence shows that he runs a tea shop near the

Mosque. He was a member of the Jama-ath Committee. He would

depose that at the relevant time P.W.2 was the President and the

deceased Jalaludeen was its Secretary. On 25.6.1998 the General

Body Meeting of the Jama-ath Committee was convened and the

meeting commenced by about 7 p.m.. There were about 300

participants. At the time of disclosing the income and expenditure

statement of the Jama-ath Committee, there was a complaint that it

was not audible and that sparked of a commotion in the hall. He

too would depose that at that time three or four persons removed

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the President and the Secretary to the roof of the building. P.W.1

says that thereafter there was free for all in the hall. According to

him, thereafter a few persons had rushed to the roof of the building

and he heard one of them shouting that “he is standing here” and

he saw somebody kicking the Secretary. But he was unable to

identify the person in court. He would depose that he saw the

deceased falling from the roof of the building. According to him,

the signature found on Ext.P1 belongs to him, but the statement

was infact given by P.W.2. He would say that after the statement

was recorded by the police officer concerned, since P.W.2 had

gone along with Adv. Sri.Gopalakrishnan to see the injured, he

signed on the document. It could thus be seen that he has betrayed

the prosecution at the later stage.

15. P.W.3 was also examined to prove the incident. He

also would say that he had also gone to attend the General Body

Meeting of the Jama-ath Committee. He too speaks about the

incident which occurred at the time of presentation of the income

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and expenditure statement and says that a few persons had taken

the Secretary and the President to the roof. He would depose that

since there was a lot of scuffle and pandemonium in the hall, some

of the participants felt that it was safe to remove the President and

the Secretary from the place. He would also depose that he saw

some persons going to the roof of the building. According to him,

he would suspect that they were going to harm the President and

the Secretary, therefore he went away from the place. He denied of

having seen the incident.

16. P.W.4 is also a participant of the meeting. He

would say that when he reached the hall, he found that there was

utter chaos in the hall. No sooner than he reached the place, he

found a person falling from the roof of the Madrassa. He says that

he found five or six persons running away from the roof to the rear

portion of the building. Then he soon came to know the person,

who fell down from the terrace is none other than Jalaludeen. He

would depose that when he looked up seeing the fall of Jalaludeen,

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he could recognise accused Nos. 1 and 2. He however refused to

support the prosecution case regarding the identity of persons and

he denied of having seen any of the accused there.

17. P.W.13 is yet another person, who runs a business

nearby the Madrassa Complex. He denied having seen the incident

as such. He would depose that hearing the noise when he rushed to

the place, he found Jalaludeen lying on the floor of the building.

he also saw Sudheer and another person taking Jalaludeen to

hospital. He also deposed that soon after the incident he saw

accused Nos.1 to 6 rushing away from the place. He identified all

of them in court.

18. P.W.15 is the lady, whom, the first accused wanted

to marry and who, later became the wife of the deceased. She

would depose that her marriage to Jalaludeen was not taken well

by the first accused.

19. The next witness is P.W.17. He would depose that

on 25.6.1998 he had gone to the Madrassa to attend the General

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Body Meeting. According to him, the meeting commenced at 7

p.m. and the agenda contained the election to the new Managing

Committee. The agenda also required the income and expenditure

account to be read out to the General Body. A short while after

the meeting had commenced, the President asked the Secretary to

present the income and expenditure account. When the Secretary

began to do so, someone shouted that it was not audible. That was

followed by scuffle. He would depose that he heard somebody

shouting from outside that the President and Secretary, who were

responsible for disclosing the names of persons, who had done

illegal fishing using explosives, should not be allowed to remain

alive. When he looked around, he saw that the person who said

that was none other than the first accused. Finding that the things

were not going well, according to this witness, he came out of the

hall and went near the gate of the Madrassa. Even though he was

examined to prove the incident, he refused to oblige the

prosecution. He however would depose that he saw someone

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falling from the roof of the building and soon he realised that it

was Jalaludeen. He would depose that he is definite that somebody

had pushed Jalaludeen from the roof. His evidence also disclosed

that there was some enmity between the first accused and

Jalaludeen, the deceased, with reference to the marriage of P.W.15.

20. P.W.22 is yet another person, who had attended the

meeting on the date of the incident. He was engaged in social

work. He is a member of the Jama-ath. He reached the venue at

about 7 p.m.. He would say that the President invited the Secretary

to read out the income and expenditure account. He too deposed

that the agenda contained election to the new Managing

Committee. While the Secretary was presenting the income and

expenditure account, someone shouted from behind that it was not

audible and demanded the Secretary to speak aloud. This was

followed by exchange of words. This witness too would say that

accused Nos.1 and 2, who were standing outside the hall shouted

that the President and the Secretary are the persons, who had

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disclosed to police the names of persons, who used explosives to

catch fish and that they should not be left alive. He also deposed

that he heard them shouting that they should be done away with.

When they reached towards the President and Secretary, a few

people tried to prevent them. Finding it difficult to do so, a few

others removed the President and Secretary to the roof of the

building. He would depose that the accused along with others

rushed towards the roof of the building. A short while thereafter,

he heard a loud cry. When he came out, he found the deceased

lying on the floor in a pool of blood. He identified accused Nos.1

to 4 in court.

21. The above items of evidence would show the

culpability of the accused. It is not as if there is dearth of

evidence in the case. It is true that P.W.1 has disowned the first

information statement and has infact gone to the extent of saying

that its real author was P.W.2. P.Ws. 3, 4, 13, 17 and 22 have also

not fully supported the prosecution case. For the reasons best

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known to them they chose to resile from the earlier statement. But

however the fact remains that the evidence of these witnesses

show that there was a meeting held on the date of the incident and

there was a commotion in the meeting. It is also evident that there

was an exhortation from the side of the first and second accused to

harm the President and Secretary since they believed that it was

they who had disclosed the names of persons, who had done

illegal fishing using explosives to the police. At any rate, the

evidence is clear to the effect that further incidents took place as a

consequence of this exhortation.

22. It is true that there is some want of evidence to

show what exactly had transpired inside the hall after

pandemonium broke out. It is difficult to accept the case of the

appellants that, that should go in their favour and that it is difficult

to hold that the accused had no role to play in the incident. The

contention that somebody else could have done that act or it could

be an accidental fall cannot be accepted in the light of the evidence

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25

available in this case. The evidence of P.W.2 is clear to the effect

that it was the accused, who had followed them to the terrace and

had infact manhandled the Secretary. The fact that the accused had

followed the President and Secretary to the roof is seen spoken to

by the other witnesses also. P.W.2 has also spoken about the overt

acts committed by the accused. True that it is not for the appellants

to show how the incident had occurred. But the fact that the

witnesses have spoken to about their presence and also about their

involvement cannot be easily ignored. At any rate, there is

considerable evidence to show that though the President and the

Secretary were removed to the roof of the building by a few

persons to protect them, the accused followed them. The conduct

of the accused hurrying away from the place together strengthens

the case of the prosecution regarding their involvement.

23. Much was said about the inaction on the part of the

investigating officer in not taking the statement of late Jalaludeen

while he was in the hospital. But here, learned counsel for the

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26

appellants omits to note that the evidence is to the effect that after

sustaining the head injury, Jalaludeen was not in a position to

speak. There is nothing to indicate that he had talked to anyone

after he had sustained the injuries, and there is no suggestion to the

Doctor that Jalaludeen could talk. There is nothing to indicate that

he was mentally and physically fit to speak. True, the doctor

would say that Jalaludeen was conscious. That is different from

saying that he was capable of giving a statement. Probably with

much difficulty he could speak. But the mere fact that the

statement of Jalaludeen was not taken by itself is not a ground to

suspect the prosecution version of the incident. At any rate, even

assuming that the accused were not the perpetrators of the chaos in

the hall, accused Nos.1 and 2 had made their intention clear by the

exhortation made by them from outside the hall, which is spoken to

by the witnesses. There is considerable evidence in this regard.

There is also convincing evidence to hold that after the President

and the Secretary were removed to the roof, they had followed

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27

them. There is no reason to disbelieve P.W.2, when he says that

they had assaulted Jalaludeen. There is no convincing reason

given by the defence to show that P.W.2 had any reason to falsely

implicate them.

24. Much was said about the absence of mention of

any blood in the place of the incident in the scene mahazar. The

evidence would show that there was bleeding as soon as Jalaludeen

hit the ground. The evidence also discloses that there was rain on

that day. Probably the blood would have been washed away.

Merely because there was no mention of blood in the scene

mahazar is not by itself is a ground to reject the prosecution case.

25. Therefore, though the prosecution does not get

complete support from the evidence of P.W.2, there are patches in

the evidence of P.Ws. 3, 4, 13, 17 and 22 to corroborate the

evidence given by P.W.2. One fails to understand as to why all

these person should speak against the accused persons.

Crl.Appeal.2207/2005 & con.cases.

28

26. The court below has analysed the acts of each of

the persons and found that the acts attributed to accused Nos.2 and

4 is that they had fisted Jalaludeen on his back and accused No.3

had stamped him. Thereafter the court below found that the first

accused caught hold of the hands of the victim and accused No.5

had caught hold of his legs with the support given by the

absconding accused, namely accused No.6, they threw him down.

The court below seems to be fully justified, going by the evidence

on record, to come to the conclusion that accused Nos.2, 3 and 4

had no intention to cause death of Jalaludeen. Probably their

intention was to teach him a lesson for being unkind to the

members of the community, who indulged in illegal fishing. There

is nothing to show that there is common intention to cause the

death of Jalaludeen. Therefore the court below found that as far as

accused Nos. 2, 3 and 4 are concerned, they are guilty of only

causing hurt to Jalaludeen.

Crl.Appeal.2207/2005 & con.cases.

29

27. However, the court below was of the view that the

position of accused Nos.1 and 5 was quite different. From the

sequence of events, according to learned counsel, the intention to

cause the death of Jalaludeen can be gathered from the conduct of

accused Nos.1 and 5. The court below reached the above

conclusion on the basis of the evidence, which indicated that while

Jalaludeen was lying on the floor receiving blows from the accused

persons, the first accused is said to have put his leg on the chest of

Jalaludeen and uttered that he should be done away with.

28. It is difficult to accept the finding of the court

below that accused Nos.1 and 5 had shared a common intention to

do away with Jalaludeen. It must be remembered that they had

gone to the place unarmed. Probably they had an intention to

create trouble in the meeting and also to humiliate the Secretary

and the President. It also needs to be remembered that there are

some doubts regarding the origin and development of the incident.

Whatever that be, the evidence is to the effect that the accused had

Crl.Appeal.2207/2005 & con.cases.

30

followed the President and Secretary to the roof and did the

objectionable acts. Considering the height of the building and also

the manner in which the act was done by the accused, namely

accused Nos.1 and 5, it is rather difficult to believe that they had

an intention to cause the death of Jalaludeen. On consideration of

the materials before the court, it is difficult to bring the act of

accused Nos.1 and 5 within the ambit of the fourth clause of

Section 300 IPC. However, the act of throwing down a person

from the terrace cannot be taken lightly. Considering the height of

the building and also the nature of the act committed by the

persons, namely, accused Nos.1 and 5, it follows that they should

be credited with the knowledge that their act is such that it would

likely to cause death. If that be so, their act falls within Part II of

Section 304 IPC.

In the result, these appeals are disposed of as follows:

i) The conviction and sentence of accused No.2, 3 and

4 are confirmed.

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31

ii) The conviction and sentence of accused Nos.1 and 5

for the offences punishable under Section 302 read with Section 34

IPC are set aside and instead they are found guilty of the offence

punishable under Part II of Section 304 IPC.

iii) Accused Nos.1 and 5 are therefore sentenced to

suffer rigorous imprisonment for a period of eight years and to pay

a fine of Rs.30,000/- each, in default of which, each of them shall

suffer rigorous imprisonment for a further period of two years. If

the fine amount is realised, a sum of Rs.55, 000/- shall be paid to

the legal heirs of late Jalaludeen a per Section 357(1)(b) of Cr.P.C.

Set off as per law will be allowed.

K. Balakrishnan Nair,
Judge

P. Bhavadasan,
Judge

sb.

Crl.Appeal.2207/2005 & con.cases.

32

K. BALAKRISHNAN NAIR & P. BHAVADASAN, JJ.

– – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – –

Crl. Appeal Nos. 2207 of 2005,
92 & 169 of 2006.

– – – – – – – – – – – – – – – – – – – – – – – – – – – – –

JUDGMENT

05.01.2010.