IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL.A.No. 1437 of 2003()
1. KUNHIRAMAN, S/O. KANARA KURUP,
... Petitioner
2. SREEDHARAN, S/O. KRISHNA KURUP,
3. CHINNAN, S/O. KANARA KURUP,
4. PREMAN @ PREMARAJAN, S/O. KANARA KURUP
5. RAJEEVAN, S/O. POKKAN, AGED 28 YEARS,
6. BABU, S/O. KANARAN, AGED 30 YEARS,
7. BALAKRISHNAN, S/O. KUNHIRAMAN, AGED
8. BALAN, S/O. KELAPPAN NAMBIAR,
9. KUNHIRAMAN, S/O. KANNAN,
10. BABU, S/O. CHOYI (LATE),
11. CHANDRAN, S/O. KRISHNAKURUP,
12. MANI, S/O. KANARAN, AGED 29 YEARS,
Vs
1. STATE OF KERALA, REPRESENTED BY
... Respondent
For Petitioner :SRI.P.S.SREEDHARAN PILLAI
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice V.K.MOHANAN
Dated :31/03/2010
O R D E R
V.K.MOHANAN,J.
------------------------------
Crl.Appeal No.1437 of 2003
-----------------------------------------------------
Dated this the 31st day of March, 2010
JUDGMENT
The appellants, 12 in numbers, preferred the above appeal
challenging their convictions and sentence vide Judgment dated
26.07.2003 in S.C.No.9/2001 of Court of Additional District and
Sessions Judge Fast Track (ADHOC-II), Kozhikode for the offences
under Sections 143,147,148, 324, 307, r/w Section 149 I.P.C.
2. The prosecution case is that at about 7.30 PM on 6.02.1997
the accused, 12 in numbers, formed themselves into an unlawful
assembly armed with weapons like chopper, stick etc., in the public
road on the south-west to the unnumbered concrete building of
Nhallora Sreedharan on the eastern side of the Ambalakulangara-
Vattakkandippara road in Nittoor desom of Vadayam Amsom, with
the common object to commit riot and to commit murder of PW1
Asokan due to political enmity and to achieve the object committed
rioting and the first accused cut PW1 with chopper on his hand and
hit behind the left ear when PW1 was proceeding to his house and
thus caused injuries on his hand and hit behind the ear and in the
meantime, A12 beat PW1 with a stick on his leg and thus tried to kill
Crl.Appeal No.1437 of 2003 2
PW1 and thereby the accused have committed the offences
punishable under Sections 143,147,148, 324,307 r/w Section 149 of
I.P.C. On the basis of the above allegation Crime No.46/1997 was
registered in the Kuttiadi Police Station for the above offence against
the accused. After completing the investigation, a report was filed
before the Judicial Magistrate of First Class, Nadhapuram
whereupon committal proceedings were instituted and by order dated
01.01.2001 the learned Magistrate committed the case to the
Sessions Court. The case was received in the Sessions Court
and instituted S.C.No.9/2001 and subsequently made over the
same to the Court of Assistance Session Court, Vadakara and while
the matter was pending there, the case was withdrawn by the
Sessions Court and transferred to the trial court for disposal.
3. On appearance of the accused, hearing the prosecution as
well as the defence, a formal charge was framed under Section
143,147,148, 324, 307 r/w Section 149 of I.P.C and the same was
read over and explained to the accused and they denied the charge
and pleaded not guilty. Thereupon the prosecution adduced its
evidence which consists of oral testimonies of PWs. 1 to 12 and the
documentary evidence such as Ext.P1 to P11. Material objects
MOs.1 and 2 were identified and marked. No evidence either oral or
Crl.Appeal No.1437 of 2003 3
documentary was adduced by the defence. The incriminating
circumstances and evidence which emerged during the prosecution
evidence were put to the accused and they denied the same and
they took a stand of total denial and according to them they were
implicated in the crime due to political vengeance. On the basis of
the materials and evidence on record and the rival pleadings, the
trial court formulated two points for its consideration and finally found
that the accused are guilty of the charges framed against them.
Consequently, the accused Nos.1 to 12 are found guilty of the
offences punishable under Sections 143, 147,148, 324, 307, r/w 149
of I.P.C and they are accordingly convicted and sentenced to
undergo rigorous imprisonment for 3 months, each for the offence
punishable under Section 143 IPC, rigorous imprisonment for 6
months each for the offence punishable under Section 147 IPC,
rigorous imprisonment for 1 year each for the offence punishable
under Section 148 IPC, rigorous imprisonment for 2 years each for
the offence punishable under Section 324 IPC and rigorous
imprisonment for 3 years and to pay a fine of Rs.10,000/- and in
default of payment of fine to undergo rigorous imprisonment for 1
year each for the offence punishable under Section 307 r/w 149 IPC.
If the fine amount is realised pay a sum of Rs.24,000/- as
Crl.Appeal No.1437 of 2003 4
compensation to PW1 under Section 357(1) Cr.P.C. Sent the
accused to Central Prison Kannur to undergo the sentence. Set off
the remand period from the total sentence. The accused need to
undergo the substantive sentence awarded under Section
143,147,148, 324, 307 r/w 149 IPC. concurrently. It is the above
conviction and sentence challenged in this appeal.
4. According to the prosecution due to political animosity PW1
was attacked at about 7.30 p.m on 06.02.1997 when PW1 was going
to his house after his work. It is the specific case of the prosecution
that the accused who were awaiting in front of the shop of Nhallora
Sreedharan and on seeing PW1 they came near to PW1 from the
shop, shouting to kill him and thus attacked PW1. When PW1 tried
to escape from the seen, the accused surrounded him and first
accused cut him with a chopper on his hand and the 12th accused
beat him with stick on his leg. Thereupon PW1 pleaded for mercy
and fell on the ground. According to the prosecution in the meantime
the first accused cut him with a chopper on his neck and it hit on the
back side of the left year and caused an injury. On hearing the hue
and cry of PW1, PW2 and others reached to the seen of incident
with torch and then the accused escaped from the seen of
occurrence. It is the further case of the prosecution that immediately
Crl.Appeal No.1437 of 2003 5
thereafter PW1 was resting on the varandha of ration shop and
within 10 minutes PW3, the brother of PW1, reached at the spot
removed PW1 firstly to the Government Hospital, Kuttiady and from
there to Medical College Hospital, Kozhikode for treatment. PW12,
the Doctor attached to the Medical College Hospital attended him on
06.02.1997 itself and after examining the injured he was admitted as
an inpatient in the hospital. Pursuant to the intimation received from
the Medical College Hospital PW8-the Head Constable attached to
the Kuttiady Police Station went to the Medical College Hospital and
recorded Ext.P1 FI statement of PW1 on the basis of which PW8
registered Ext.P5 FIR for the above offences. Thus PW11, the then
Circle Inspector of Police, Kuttiady took up the investigation and he
proceeded to the seen of occurrence and prepared Ext.P2 scene
mahazar. PW4 is an attester of Ext.P2 scene mahazar. PW9
questioned certain witnesses and recorded their statement and
seized the dress with bloodstain of PW1 as produced by PW3. Thus
he prepared Ext.P3, seizure mahazar of MO1 shirt and MO2 dhoty,
of which PW6 is an attester. PW10 the successor of PW9
questioned PW12 and obtained Ext.P11 wound certificate of PW1.
Ext.P4, is the sketch of the place of occurrence, prepared by PW7
Village Assistant of Kuttiady Village Office. PW11 is the successor in
Crl.Appeal No.1437 of 2003 6
office of PW10 who completed the investigation and laid the charge
before the court. On the basis of the above materials and the
evidence, the trial court found that the accused are guilty of all the
charges levelled repelling the contentions raised by the defence
during the trial.
5. I have heard Mr.Sreedharan Pillai, learned counsel
appearing for the appellant and also the learned Public Prosecutor. I
have also perused the materials and evidence of record.
6. The learned counsel for the appellant vehemently argued
that the prosecution has miserably failed to establish the identity of
the real offenders. It is the contention of the learned counsel that
even according to the prosecution there was no street light and
sufficient light and therefore it is for the prosecution to establish the
identity of the accused, especially, when the incident was allegedly
taken place at about 7.30 p.m. It is also the case of the learned
counsel that there is inordinate delay in reaching the FIR in the
court. It is pointed out that even though according to the prosecution
the incident was at 7.30 p.m on 06.02.1997. PW8 recorded Ext.P1
FI statement in the afternoon of the next day. According to the
learned counsel there is no proper explanation for such delay. The
learned counsel submitted that even in the FI statement the overt act
Crl.Appeal No.1437 of 2003 7
alleged by PW1 is only against A1 and A12, other accused were
implicated due to political animosity. The learned counsel further
pointed out that even though the prosecution had a specific case
that injuries are inflicted by using chopper and stick, no such
material objects were recovered by the prosecution and the same in
a fundamental defect against the prosecution. The learned counsel
submitted that the name of A7 and A11 are incorporated in the FIR
due to sheer political animosity especially when names of A7 and
A11 were not seen in Ext.P11 wound certificate which recorded at
the date of the incident itself. It is also pointed out by the learned
counsel that even in Ext.P10 case sheet only the names of A1, A2,
A3 and A12 were mentioned, but as a result of an afterthought, 8
more persons were included in Ext.P11 and thus in Ext.P5 FIR the
number of accused is shown as 12. According to the learned
counsel the creation of artificial evidence is obvious by bringing PW2
to the place of incident. The learned counsel pointed out that no
other witness has any claim that PW2 was found near or about the
place of occurrence at any point of time. The learned counsel
pointed out that the non-examination of the shop owner Sreedharan,
is fatal to the prosecution. According to the prosecution the incident
was taken place in front of the shop of the said Sreedharan and the
Crl.Appeal No.1437 of 2003 8
prosecution witnesses claimed with identity of the accused on the
basis of light from the shop of said Sreedharan. It is also pointed
out that there was no attempt to obtain any materials or documents
from the Kuttiady General Hospital, where, PW1 was allegedly
taken firstly for treatment. Finally the learned counsel submitted that
the variation in the number of accused responsible for the assault,
allegedly contained in Ext.P11 wound certificate and Ext.P10 case
sheet, would show the falsity of the prosecution case and said
variations are not properly explained by the prosecution. Thus
according to the learned counsel the trial court has miserably failed
to appreciate the contradiction and inconsistency that occurred in
the case of the prosecution and the insufficiency of evidence to
connect the accused with the crime. Hence according to the learned
counsel the appellants are entitled to get a clear acquittal.
7. On the other hand, the learned Public Prosecutor submitted
that the evidence of PW1 alone is sufficient to connect the accused
with the incident. Learned Public Prosecutor pointed out that even
according to PW1 he had acquaintance with the accused from years
together and according to PW1 he was surrounded by the accused
and attacked. So there is no mistake in identity as disclosed from
the evidence of PW1. The learned Public Prosecutor invited my
Crl.Appeal No.1437 of 2003 9
attention to Ext.P11 wound certificate, which is the document
prepared immediately after the incident and such document contain
all the names of the assailants. According to him there is no
recording in Ext.P1 FI statement of PW1 by PW8 and thus the
prosecution has succeeded in collecting the necessary evidence and
materials and the same were produced before the court. Thus
according to the learned Public Prosecutor, the trial court, after
considering the materials and evidence on its right perspective, the
accused are found guilty of all the charges levelled against them and
no interference is warranted.
8. I have carefully considered the arguments advanced by the
learned counsel for the appellants as well as the learned Public
Prosecutor and also perused the evidence and materials on record.
9. PW1 is the injured in this case, and when he was examined
he had deposed categorically about the incident. There is no
substantial variations from his Ext.P1 FI statement. PW1 deposed
before the court that he is the brother of PW3, who is an active
worker of CPI(M) and when PW1 was coming to his house he was
intercepted and attacked by the accused after surrounding him. Even
in Ext.P1 FI statement he had narrated the entire incident and
mentioned overt act of A1 and A12. The names of A1, A2, A5, A12
Crl.Appeal No.1437 of 2003 10
are certainly found a place in Ext.P10 case sheet and also in
Ext.P11 wound certificate. Ext.P10 case sheet document and
Ext.P11 wound certificate are the contemporaneous document
prepared immediately after the incident that taken place at 7.30 p.m
on 06.02.97. In this document the names of A1, A2, A3 and A12 are
specifically stated and it is true as pointed out by the learned
counsel for the appellant that the name of A7 and A11 mentioned in
the FIR do not find a place in Ext.P10 and Ext.P11. It is also relevant
to note that as indicated earlier Ext.P10 and Ext.P11 are
contemporaneous documents prepared on the date of the incident,
that too immediately after the incident Ext.P5 FIR was drawn on the
next day evening that was after recording Ext.P1 FI statement at
about 2.30 p.m on 07.02.1997. Therefore, the contention of the
counsel, that in the meanwhile, after deliberations with others PW1
had deliberately implicated the name A7 and A11, cannot be repelled
as baseless. If actually A7 and A11 were involved in the incident,
certainly the names of those accused should have been found a
place in Ext.P10 and P11. It is also relevant to note that in Ext.P10
only the names of A1, A2, A3 and A12 were given but when PW1
given the names of accused in Ext.P11, the number of accused
involved in the incident increased from more than 12 persons and the
Crl.Appeal No.1437 of 2003 11
names of one Rajan and Vijayan were given. But when the FI
statement was given, those names were deleted and names of A7
and A11 were included. Therefore, the implication of accused
numbers A4, A5, A6, A7, A8, A9, A10, and A11 can be seen only as
a result of deliberation and especially when there is no overt act are
alleged against those accused. Therefore, according to me the
above accused are entitled to get the benefit of doubt. With respect
to A1, A2, A3 and A12 as their names are found in Ext.P10 and
Ext.P11 and in Ext.P1 FI statement specific overt act are alleged
against them and those allegations further substantiated through the
evidence of PW1 the injured.
10. It is true the prosecution has also relied upon the evidence
of PW2 to connect the accused with the incident.
Going by the deposition of PW2 it can be seen that he has no
claim that he arrived at the spot before the starting of the incident.
He had categorically stated that he came to the place of occurrence
after the incident and on hearing the cry of the injured. Therefore,
the prosecution is no way benefited in examining PW2 to establish
the incident. It is also relevant to note that from the deposition of
PW2 nothing discernible that he had witnessed either the incident or
the overt act alleged by the prosecution. Thus from the above
Crl.Appeal No.1437 of 2003 12
discussion it can be seen that the only evidence that is available on
record in support of the prosecution case with respect to the
incident is that of the injured, namely PW1. I have already
considered the evidence of PW1 and the resultant conclusion is that
the prosecution has succeeded, only in establishing the case against
A1, A2, A3, and A12 and there is no acceptable and cogent evidence
against the other accused. In the absence of any concrete evidence
against the accused namely A4, A5, A6, A7, A8, A9, A10 and A11,
the only conclusion that can be arrived is that the prosecution has
miserably failed to establish the case against those accused and
consequently they are entitled to get an acquittal. In the light of the
above discussion, and the materials referred above, I am of the view
that the conviction recorded by the trial court with respect to A1, A2,
A3, and A12 are liable to be confirmed and I do so.
11. The learned counsel for the appellant submitted that, the
incident was taken place during the year 1997 and now 13 years are
over and now the accused, A1 to A3 and 12, are now at the age
between 35 to 50 and therefore a lenient view may be taken. It is
also pointed out by the learned counsel that the alleged injury
sustained by PW1 are not so serious and therefore the matter can
be disposed of by ordering compensation to the injured, in lieu of
Crl.Appeal No.1437 of 2003 13
sentence of imprisonment, whereas the learned Public Prosecutor
counsel pointed out that the main injury was inflicted on the back side
of the left ear from which it can be gathered the intention of the
assailants. Having regard to the facts and circumstances of the
case, I am of the view that some modifications can be made with
respect to the sentence imposed against A1, A2, A3, and A12.
In the result, this appeal is partly allowed, acquitting accused
Nos.A4, A5, A6, A7, A8, A9, A10 and A11 of all the charges levelled
against them. In the light of the acquittal recorded by this court in
favour of the above accused, the remaining accused are only 4 in
Nos. and hence Section 149 is not applicable against A1, A2, A3 and
A12 but at the same time Section 34 IPC is attracted against them
as they have shared the common intention. Accordingly A1, A2, A3
and A12 their conviction under Section 324,307 r/w Section 34 of
I.P.C instead of Section 149, are confirmed and accordingly each of
them are sentenced to undergo rigorous imprisonment for one year
under Section 324 of IPC and each of them are further sentenced to
undergo rigorous imprisonment for two years and to pay a fine of
Rs.20,000/- and in default of payment of fine amount to undergo
rigorous imprisonment for one year each, for the offence under
Section 307 I.P.C. If the fine amount is realised the entire amount
Crl.Appeal No.1437 of 2003 14
shall be paid as compensation to PW1 under Section 357(1) of
Cr.P.C. As accused numbers A4, A5, A6, A7, A8, A10 and A11 are
acquitted of all the charges levelled against them, the bail bond if any
executed by them shall stand cancelled and they are set at liberty.
In the case of accused No.1,2,3, and 12 the bail bond stands
cancelled and they are directed to appear before the trial court on
30.4.2010 for receiving the sentence. If any failure on the part of
appellant in appearing before the court below as directed above the
court below is free to take coercive steps to procure the presence of
accused and to execute the sentence.
Criminal Appeal is allowed partly.
V.K.MOHANAN,JUDGE.
mns