IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 3082 of 2007()
1. AHAMMEDKUTTY, S/O. ABOOBACKER,
... Petitioner
2. MUHAMMED, S/O. AHAMMEDKUTTY,
3. ABOOBACKER, S/O. AHAMMEDKUTTY,
4. ABDURAHIMAN, S/O. AHAMMEDKUTTY,
5. ABDULKHADER, S/O. AHAMMEDKUTTY,
6. IBRAHIM, S/O. AHAMMEDKUTTY,
7. UMMER, S/O. AYAMMEDKUTTY,
8. ABOOBAKCER, S/O. AYAMMED,
Vs
1. STATE OF KERALA,
... Respondent
2. THE SUB INSPECTOR OF POLICE,
For Petitioner :SRI.K.JAGADEESCHANDRAN NAIR
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :14/01/2009
O R D E R
M.SASIDHARAN NAMBIAR,J.
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CRL.R.P.NO.3082 OF 2007
and
CRL.R.C.NO.1 OF 2007
------------------------------------------
Dated 14th January 2009
O R D E R
Revision petitioners are eight accused
in S.C.383/2002 on the file of Assistant Sessions
court, Kozhikode. First revision petitioner is the
father and revision petitioners 2 to 7 his sons and
eighth revision petitioner his son-in-law. Charge
against revision petitioners framed by Assistant
sessions Judge, Kozhikode was that on 22/12/1998 at
about 8.15 p.m all the revision petitioners formed
themselves into an unlawful assembly with the common
object of causing death of Pws.1 and 2 and in
furtherance of the common object revision petitioners
armed with deadly weapons like knife, chopper wooden
reaper came to the bazar, in front of the building
No.K.P.12/192-194 situated on the northern side of the
Manipuram-Kunnamangalam road, in jeep No.KL-11-H-1441
and got down and thereafter attacked Pws.1 to 3 and
seventh revision petitioner cut PW1 with a chopper
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which was resisted by him and revision petitioners 2
and 3 inflicted injuries on PW1 by hitting with reaper
and wooden stick and with the intention to cause death,
first revision petitioner inflicted injury on the head
of PW1 and revision petitioners, being members of the
unlawful assembly inflicted injuries on Pws.2 and 3 also
and they thereby committed offences under Sections 143,
147, 148, 323, 324, 326, 307 and 506(ii) read with
Section 149 of Indian Penal Code. After hearing them on
the question of sentence, revision petitioners were
convicted and sentenced by learned Assistant Sessions
Judge. Petitioners challenged the conviction and
sentence before Sessions court, Kozhikode in
Crl.A.51/2005. Learned Additional Sessions Judge on re-
appreciation of evidence confirmed the conviction and
sentence and dismissed the appeal. It is challenged in
the revision. When the reason was admitted finding that
in spite of conviction no sentence was awarded for the
offence under Section 143 and 148 of Indian Penal Code,
Cr.R.C.12/2007 was suo motu taken.
2. Learned counsel appearing for revision
petitioners and Public Prosecutor were heard.
3. Argument of the learned counsel is that
CRRP 3082/07 & RC 1/07
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though revision petitioners were concurrently convicted,
appreciation of evidence by the courts below was
perverse and material contradictions and omission in
the evidence of Pws.1 to 3 was not properly appreciated
by the courts below. It was pointed out that there was
no case for Pws.1 to 3 when PW1 furnished Ext.P1 FI
statement or their statements were recorded by the
police under Section 161 of Code of Criminal Procedure,
as proved by the evidence of PW13, head constable who
investigated the case, that either revision petitioners
attempted to inflict injury with a chopper or when it
was resisted the chopper fell down or that the accused
came proclaiming that Pws.1 to 3 are to be killed or
that their liver is to be taken out as deposed by them
at the time of evidence and this aspect was not properly
appreciated. Learned counsel also pointed out that even
though PW1 has a case that all the accused came there
together in a jeep driven by eight revision petitioner,
Pws.2 and 3 did not have such a case when their
statements were recorded under Section 161 of Code of
Criminal Procedure by PW13 and evidence of Pws.1 to 3
was not corroborated by any independent witness. It was
pointed out that Pws.4 and 11 the independent witnesses
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turned hostile to the prosecution and even though PW4 is
related to Pws.1 to 3, even PW4 did not support the
prosecution case and on the uncorroborated interested
version of Pws.1 to 3, courts below should not have
accepted the prosecution case. Learned counsel also
argued that there is no evidence to prove that injury
sustained by PW1 was a grievous hurt and though Ext.X1
case file was relied on by the courts below, it was not
proved and the doctor who allegedly treated PW1,
evidenced by Ext.X1, was not examined and there is no
evidence to prove that injury sustained by PW1 evidenced
by Ext.P3 wound certificate was likely to cause death
and on the evidence conviction for the offence under
Section 307 of Indian Penal Code is not sustainable.
Learned counsel also pointed out that evidence of DW1
the doctor with Ext.D6 wound certificate establish that
third revision petitioner sustained injuries which are
more serious than the injury sustained by Pws.1 to 3 and
Ext.D3 refer report submitted after investigation of the
counter case in Crime No.255/1998 establish that third
revision petitioner also sustained injury in the same
incident and therefore, courts below were not justified
in finding that third revision petitioner sustained
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injuries in a subsequent incident. Learned counsel
argued that when Pws.1 to 3 did not throw any light as
to how third revision petitioner sustained injuries and
it is proved that third revision petitioner sustained
injuries, the only conclusion that could be arrived at
is that either Pws.1 to 3 are not disclosing the truth
or they were suppressing the truth and if so, their
evidence should not have been believed especially, when
not corroborated by the independent witnesses. Learned
counsel also argued that in such circumstances,
conviction is not sustainable and in any case
petitioners are entitled to the benefit of doubt.
4. Learned Public Prosecutor submitted that
courts below appreciated the evidence in the proper
perspective. Evidence of Pws.1 to 3 were mutually
corroborated and fact that they sustained injury is
proved by the evidence of PW6, the doctor and Ext.P3 to
P5 wound certificates and when the evidence was
appreciated in the proper perspective, there is no
reason to interfere with the conviction and therefore
the appeal is only to be dismissed.
5. Ext.P1 F.I.Statement was prepared at 4.30 p.m
on 23/12/1998 from Primary Health Centre, Narikkuni
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where PW1 at that time was undergoing treatment.
Evidence of PW6 with Ext.P3 wound certificate establish
that PW1 sustained injury and was examined by PW6 the
doctor at 9.10 p.m and it was disclosed to the doctor
that he sustained injury at Eranhikkoth of Koduvalli at
about 8.p.m from the hands of revision petitioners.
Injuries sustained by PW1 were (1) wound 1x1x1 cm on
the occipital region of scalp. (2) Swelling nearly 4×3
cm on the right elbow region of front aspect (3)
Multiple small aberration on the left elbow region (4)
Multiple small aberration on the dorsal aspect of right
foot (5) Multiple small aberration on the front
aspect of left leg below the knee and (6) Difficulty
in lifting right hand above the shoulder level apart
from small aberration on left shoulder. PW6 did not
depose that the said injuries are either grievous or
likely to cause death. Though Ext.X1 case record
disclosing the treatment of PW1 at Medical College
Hospital after admission as an inpatient on 9/1/1999 was
relied on, neither the doctor who treated PW1 at the
hospital was examined nor any other evidence adduced to
prove for what purpose PW1 was admitted and treated as
seen in Ext.X1. There is no evidence to prove that the
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treatment evidenced by Ext.X1 was consequent to the
injury sustained by PW1 in the incident involved in the
case. Therefore based on Ext.X1 it is not possible to
hold that the injury sustained by PW1 on the occipital
region was either grievous or was likely to cause
death. Hence Based on Ext.X1 revision petitioner cannot
be found guilty of the offence under Section 307 of
Indian Penal Code. The intention for revision
petitioners to cause death cannot be inferred based on
the statement of the accused allegedly made when they
alighted from the jeep as spoken to by Pws.1 to 3.
Though Pws.1 to 3 deposed from the box that the revision
petitioners proclaimed that Pws.1 and 2 are to be
killed and their livers are to be taken and thrown out,
such an allegation was not made in Ext.P1 FI Statement
or the statements of Pws.2 and 3 when their statements
are recorded under Section 161 of Code of Criminal
Procedure proved by the evidence of PW13, the
investigating Officer. It is proved that when their
statements were recorded, they did not have such a case.
It is clear that their statements from the witness box
are result of after thought. Therefore, either for the
reasons that revision petitioners had an intention to
CRRP 3082/07 & RC 1/07
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cause death or that the injury sustained by PW1 is
likely to cause death, it cannot be found that revision
petitioners had an intention to cause death or that
there was an attempt to cause death of PWs.1 and 2.
Therefore, finding of the courts below that revision
petitioners committed the offence under Section 307 of
Indian Penal Code is not sustainable.
6. Though courts below discarded the defence
case that it was Pws.1 to 3 who were the assailants and
third accused sustained injury in the incident holding
that injury sustained by third revision petitioner
could only be in a subsequent incident, Ext.D3 refer
report submitted by PW14 in the counter case based on
Ext.D4 FIR registered after recording the statement of
third revision petitioner, who was admitted in the
hospital by DW1 after preparing Ext.D6 wound certificate
establish that third revision petitioner sustained
injury in the same incident. Finding that third revision
petitioner sustained injury in a subsequent incident or
at any other place cannot be accepted in the light of
Ext.D3. Therefore, in the light of Ext.D3 refer report,
it can only be found that third revision petitioner also
sustained injury in the very same incident. In all
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9
probability third revision petitioner sustained injury
evidenced by Ext.D6 wound certificate, proved by the
evidence of DW1, from the scene of occurrence and that
too in the very same incident.
7. Though fact that third revision petitioner
sustained injury was suppressed by Pws.1 to 3, evidence
of PW4 the independent witness establish that when PW1
was removed to the hospital after he sustained injury in
the incident, PW4 found that Rahmath hotel which was
being run by the third revision petitioner was
destroyed. According to PW4 it was at about 8.30 p.m.
If that be so, the incident whereunder third revision
petitioner sustained injury should also have taken
place before 8.30 p.m and it probablise the version in
Ext.D3 report that third revision petitioner also
sustained injury in the same incident. If that be the
case, when the evidence of Pws.1 to 3 do not revel how
third revision petitioner sustained injury in the
incident it is clear that they are suppressing the true
genesis of the incident and how it was developed
or they are not deposing the truth. Whatever be the
reason, in such circumstances evidence of Pws.1 to 3
cannot be swallowed without a pinch of salt. When
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Pws.4 and 11 the independent witnesses, who were
examined by the prosecution to prove the incident as
alleged did not support the prosecution case, the
question is whether on the uncorroborated evidence of
Pws.1 to 3 it could be found that revision petitioners
were members of an unlawful assembly and they came to
the spot in furtherance of common object of the unlawful
assembly and that too armed with deadly weapons and
thereafter inflicted injuries on Pws.1 to 3. Even though
in Ext.P1 FI statement PW1 has no case that seventh
revision petitioner with a butcher’s knife attempted to
inflict injury on PW1, after proclaiming that his liver
is to be taken out and thrown on the road and PW1
resisted it and then the knife fell down he has no
such case in Ext.P1. According to PW1 at that point
third revision petitioner hit him with leg of a Wooden
table and then second revision petitioner hit him with a
reaper where nails are affixed on his hands. Fact that
seventh revision petitioner used a knife and it was
resisted and it fell down was not stated in Ext.P1 FI
Statement. Pws.2 and 3 in their statement recorded under
Section 161 by PW13 also did not disclose such an
incident. But when they were examined before the
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court, they deposed as deposed by PW1 like parrots
evidently because of previous decisions to depose
falsehood. It is clear from the evidence of Pws.1 to 3
that they are not deposing the truth and are
suppressing material facts. From the evidence it is
clear that third revision petitioner also sustained
injury, evidenced by Ext.D6 wound certificate in the
same incident. If that be so, the incident could not
have been as deposed by Pws.1 to 3 and but it is
possible that there was a fight between the two groups
consisting of revision petitioners in one group and
Pws.1 to 3 in the other group. Though prosecution has a
case that revision petitioners came there in a jeep KL-
11/H-1441 based on which theory of unlawful assembly was
projected Ext.D5 report submitted by PW14 proves that
investigation revealed that jeep KL-11/H-1441 was not
involved in the incident. If that be so, the very
prosecution case that petitioners came there together in
the jeep driven by eighth revision petitioner cannot be
true. When all these facts were appreciated in the
proper perspective, it is clear that evidence of Pws.1
to 3 without corroboration, cannot be believed and on
the evidence it cannot be found that Pws.1 to 3
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sustained injury in the incident as alleged by the
prosecution. If that be so, revision petitioners are
entitled to get at least the benefit of reasonable
doubt. In such circumstances, conviction of revision
petitioners for the offences is not sustainable.
Revision is allowed. Conviction of revision
petitioners is set aside. Revision petitioners are
found not guilty of the offences charged. They are
acquitted. Bail bond executed by them stand cancelled.
They are set at liberty. In view of the order of
acquittal Crl.R.C.1/2007 suo motu taken by this court
is dismissed.
M.SASIDHARAN NAMBIAR,
JUDGE.
uj.