High Court Kerala High Court

Chandran vs State Of Kerala on 22 February, 2010

Kerala High Court
Chandran vs State Of Kerala on 22 February, 2010
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

CRL.A.No. 671 of 2005()


1. CHANDRAN, S/O. CHELLAPPAN,
                      ...  Petitioner

                        Vs



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

                For Petitioner  :SRI.SURESH BABU THOMAS

                For Respondent  : No Appearance

The Hon'ble MR. Justice R.BASANT
The Hon'ble MRS. Justice M.C.HARI RANI

 Dated :22/02/2010

 O R D E R
             R.BASANT & M.C. HARI RANI,JJ

        ==============================

          CRL. A. NOS. 671 OF 2005 & 78 OF 2006

         ============================

     DATED THIS THE 22nd DAY OF FEBRUARY 2010

                         JUDGMENT

Basant,J.

These appeals are preferred by the State and the first

accused against a common impugned judgment rendered in a

prosecution for offences punishable, inter alia, under Section

302 read with Section 149 of the Indian Penal Code. Altogether,

there were five accused persons. They faced indictment for

offences punishable under Sections 143,147,148,323,324 and

302 read with Section 149 of the Indian Penal Code. Accused 2

to 5 were found not guilty and acquitted. Accused No.1 was

found guilty, convicted and sentenced under Section 304 (1)

I.P.C.to undergo rigorous imprisonment for a period of five

years.

2. The State claims to be aggrieved by the acquittal of all

the accused against all charges levelled against them.

CRA.NOS.671/05 & 78/06 -2-

Notwithstanding the fact that the first accused has been

convicted under Section 304(1)I.P.C., the State prays that all the

accused deserved to be convicted for all the offences alleged

against them. The State’s appeal, Crl.A.No.78/2006, is directed

against the acquittal of all the five accused and the conviction of

the first accused for the offence under Section 304(1)I.P.C.

alone. The first accused in Crl.A.No.671/2005 assails the verdict

of guilty, conviction and sentence of rigorous imprisonment for

five years imposed on him under Section 304(1)I.P.C.

3. The crux of the charge against the accused persons is

that they, at about 5 p.m.on 25-12-2001 in the court yard of a

toddy shop, Chetty shop, in Manarcadu village of Ayarkunnam

Panchyath, were members of an unlawful assembly with the

common object of assaulting PWs.1,2 and the deceased. In

prosecution of their common object, they were armed with

dangerous weapons. They allegedly inflicted injuries on PWs.1,

2 and the deceased with dangerous weapons like MO.1 (stick)

and MO.2(stone). The deceased suffered serious injuries and

succumbed to such injuries on the night of 25-12-2001.

CRA.NOS.671/05 & 78/06 -3-

4. The investigation commenced with Ext.P1 F.I.statement

lodged by PW1 before PW23, Sub Inspector, on the basis of

which Ext.P18 F.I.R.was registered. The investigation was

completed and the final report/charge sheet was filed by PW26.

A counter case was also registered on the basis of Ext.P26

F.I.S.lodged by accused No.2. Ext.P25 is the F.I.R. registered.

Ext.P27 is the final report/charge sheet filed after completing

the investigation in the counter case. PW26 had filed such final

report in the counter case also. In the said final report in the

counter case, allegations were raised against the deceased, PW1

and PW2 that they had caused injuries to accused 2,4 and 5 and

had thereby committed offences under Sections 323 and 324

read with Section 34 I.P.C.

5. The case against the five accused persons was committed

to the court of Sessions. Accused 1 to 5 denied the charges

framed against them and thereupon the prosecution examined

PWs.1 to 26 as witnesses. Exts.P1 to P27 were marked as

documents. MOs.1 to 18 were also marked. The accused

persons in the course of 313 examination took up the stand that

CRA.NOS.671/05 & 78/06 -4-

they were absolutely innocent. According to them, there was a

free for all in the toddy shop for which they were not responsible

and accused 1,2,4 and 5 had suffered injuries. They did not

adduce any oral evidence on their side. But Exts.D1 series –

case diary contradictions of PW2 were marked.

6. The learned Sessions Judge on an anxious consideration

of all the relevant inputs came to the conclusion that the

prosecution has not succeeded in proving the charges levelled

against all the accused. But, the court however came to the

conclusion that the charge against accused No.1 stands

established to the extent that he is guilty of the offence

punishable under Section 304(1) I.P.C. The court came to the

conclusion that accused No.1 was guilty of the alleged overt acts

against the deceased which caused his death. But, the court

however came to the conclusion that he had exceeded his right

of private defence. It is accordingly that conviction was entered

under Section 304(1)I.P.C.against the appellant/first accused

alone.

CRA.NOS.671/05 & 78/06 -5-

7. The appellant-first accused,in Crl.A.No.671/2005, assails

the verdict of guilty, conviction and sentence against him under

Section 304(1) I.P.C. whereas the State assails the acquittal of

all the accused for the charges levelled against them in

Crl.A.No.78/2006.

8. We have been taken through the oral evidence of PWs.1

to 26 and the documentary evidence, Exts.P1 to P27 and Ext.D1

series. 313 statement of the accused have been read over to us

in detail.

9. An appellate judgment is essentially a continuation of the

judgment of the trial court. It must be read as such. We do not,

in these circumstances, venture to re-narrate the evidence relied

on by the prosecution and the defence. Suffice it to say that we

have been taken through and we have anxiously considered all

the pieces of evidence and matters before the court below.

10. Both the prosecution and defence complain that the

court below has not applied itself to the questions raised before

it properly and seriously. The court below has not attempted to

ascertain and enter any specific finding on the genesis of the

CRA.NOS.671/05 & 78/06 -6-

dispute. The court below in its judgment has not explained how

the first accused is entitled for a right of private defence or the

manner he has exceeded such right of private defence. Both the

learned Prosecutor as well as the learned counsel for the

appellant contend that the impugned judgment of the court

below is far from satisfactory. We find merit in that submission.

It is unfortunate that the court below has not properly applied

itself to the materials before it to ascertain the precise manner in

which the incident must have commenced, proceeded and

culminated. In a case where allegations and counter allegations

are raised and a case and counter case in relation to the same

incident are filed by the police, the burden undoubtedly is heavy

on the court to ascertain the precise nature of the sequence of

events in the incident. In such a case, findings cannot be

entered into without properly ascertaining the genesis as also

the sequence of incidents.

11. We are undoubtedly dissatisfied with the judgment of

the court below. We shall therefore attempt to undertake the

exercise which the court below must have resorted to. For this

CRA.NOS.671/05 & 78/06 -7-

purpose, we will advert to the evidence, oral and documentary,

wherever necessary and shall try to assess and evaluate the

case and evidence of the prosecution vis-a-vis the case advanced

by the defence.

12. That the deceased suffered injuries described in

Ext.P10 postmortem certificate and Ext.P19 wound certificate is

beyond controversy. It appears to us that it is easy to readily

conclude that the deceased had injuries described in Exts.P19

and P10 and suffered death on account of injury No.3 described

in Ext.P10 suffered by him on his head. There are several other

injuries found on the person of the deceased. Altogether, there

are 32 injuries suffered. Detailed explanation for these injuries

is not forthcoming from the prosecution. Injury No.3 itself as

stated by PW15 was sufficient in the ordinary course of nature to

cause death. It could be caused with MO.1. The other injuries,

evidence of PW15 and PW24, indicates could have been suffered

by him when stones were thrown at him.

13. The prosecution has a further case that PWs.1 and 2

had also suffered injuries. The injury suffered by PW1 is

CRA.NOS.671/05 & 78/06 -8-

described in Ext.P12 issued by PW16. Exts.P20 and P21 are

O.P.tickets issued by PW24 in respect of PW1. What is important

to note is that Ext.P12 only shows that PW1 had mobility of two

teeth, suspected right condylar fracture and pain in the left arm

which was fractured earlier and was in plaster cast even before

the commencement of the incident. Suspected right condylar

fracture was later ruled out after radiological examination. What

is important to note that though PW1 claims to have suffered

injuries, Ext.P12 wound certificate and the oral evidence of

PW16 does not convincingly support that version of the

prosecution.

14. The prosecution has a version that PW2 had suffered

injuries. Significantly there is not a scintilla of evidence even to

remotely suggest that he had actually suffered any injuries.

There is no medical evidence whatsoever on this aspect.

15. We have adverted to the injuries on the deceased, PW1

and PW2 as it is the burden of the courts to ascertain how and

under what circumstances they had suffered the injuries. That is

CRA.NOS.671/05 & 78/06 -9-

the primary duty of the court in this prosecution against the

accused persons.

16. We shall briefly narrate the precise case of the

prosecution as spoken to by PWs.1 and 2 . The deceased, PW1,

PW2, PW7 and one Ganesh were available at the house of PW1.

PW1 is the brother of the deceased. They started from their

house in two motor cycles to the toddy shop. PW1, PW2 and

PW7 travelled in one motor cycle. They reached the toddy shop

first. Deceased and the said Ganesh(who has not been examined)

came in a scooter and they reached the toddy shop later.

Accused 1 and 2 and others were at that point of time available

in the toddy shop and they were drinking. They were allegedly

singing songs aloud. On this score, a quarrel ensued and PW2

was involved in that quarrel. Father of PW.1 and the deceased,

i.e. PW10 came to the toddy shop. Probably seeing his children

(PW1 and the deceased) there, he went out of the toddy shop. At

that time accused 1 and 2 also went out of the toddy shop.

PWs.1 and 2 were available at the toddy shop. Outside the

toddy shop, there was a quarrel. PWs.1, 2, the deceased and

CRA.NOS.671/05 & 78/06 -10-

PW7 came to the spot where the quarrel was going on. Accused

1 and 4 as also PW10 were involved in the quarrel. PW1

intervened in that quarrel. That quarrel was about accused

No.4 causing tar to be fallen on the shirt of PW10. PW1

immediately sent his father,PW10 to his house in PW7’s two

wheeler. That incident continued. According to PW1, there was

unintentional accidental injury suffered by accused 4 on his nose

at that time. PWs.1 and 2 wanted to attend on accused 4 and

make medical assistance available to him. They, therefore, took

accused 4 to a spot. Accused 4 was bleeding through his nose.

At this juncture, accused 1,2, 3 and 5 allegedly reached the

scene. Accused 1 and 2 were armed with MO.1 stick and MO.2

stone respectively. Accused No.1 attacked PW2. He beat PW2

with MO.1 stick. All the five accused allegedly attacked PW1

initially and the deceased later. At the end of the incident, PW1,

PW2, the deceased and accused 2,4 and 5 had injuries on their

person. According to the prosecution, it was A1 who beat PW1,

PW2 and the deceased with MO.1 stick. A2 had allegedly

wielded MO.2 stone to attack PW1 and the deceased. Accused

CRA.NOS.671/05 & 78/06 -11-

3,4 and 5 also had joined accused 1 and 2 in the attack. It is the

case of the prosecution that Accused 1 to 5 were members of an

unlawful assembly and were acting in prosecution of their

common object to attack PWs.1 and 2 and the deceased.

17. We have carefully gone through the charge against the

accused and the precise allegations raised against the accused

by PW1 in Ext.P1. We have also considered the evidence

tendered by PWs.1 and 2 on oath to ascertain the precise nature

of the charge which the prosecution wants to raise against

accused 1 to 5.

18. In support of this charge, the prosecution wanted to

make available to the court the oral evidence of PWs.1 to 5 and

PWs.11 and 12. Of this PWs.3,4,5, 11 and 12 did not support the

prosecution version at all. The prosecution was left with the

oral evidence of PWs.1 and 2 alone. PW2, though he broadly

supported the prosecution case, did not support the charges

levelled against the second accused. According to him, he did

not know the 2nd accused and he did not raise any allegations

against him. On the strength of the evidence of PWs.1 and 2, we

CRA.NOS.671/05 & 78/06 -12-

have to ascertain whether the injuries on PW1 and the deceased

were caused by accused 1 to 5 acting in furtherance of the

common object of the unlawful assembly of which they are

allegedly members.

19. The learned counsel for the accused contends that the

oral evidence of PWs.1 and 2 is not worth on the paper on which

it is written. According to the learned counsel, oral evidence of

PWs.1 and 2 is totally unacceptable, artificial and improbable.

Reliance cannot be placed on such testimony. Ext.P1

F.I.statement was lodged long later at 6 a.m.on 26/12/2001. The

F.I.R.was prepared at 8 a.m. and the same reached the court

only at 4 p.m. on the same date. Counsel contends that PW1

had ample time to cook and concoct the story to raise false

allegations against the accused. PW1 was involved in many

crimes admittedly on his own version. His version is inherently

unacceptable as his allegations against accused persons in

respect of assault on him is not supported at all by the injuries

found on his person recorded by PW16 in Ext.P12. His version

that PW2 had suffered injuries is not supported by any medical

CRA.NOS.671/05 & 78/06 -13-

evidence at all. If his evidence were accepted, PW2 was not

available at the scene to witness the latter part of the incident

and no reliance can be placed on the evidence of PW2. The

evidence of PW1 does not also explain the injuries found on

accused 2,4 and 5. We have been taken in detail through Ext.P9

scene mahazar which suggests that a free for all must have taken

place at the scene of the crime. Broken bottles and scattered

personal belongings were there at the scene. But the oral

evidence of PW1 does not at all explain the facts perceived by

the investigating officer recorded in Ext.P9. The learned counsel

for the accused further points out that if the evidence of PW1

were believed, it clearly and definitely indicates that he was

responsible for the first injury suffered by any person in the

incident that took place, i.e. the injury suffered by the 4th

accused Mohanan. PW1 has attempted to sell the idea to the

court that accused 4 suffered the injuries accidentally and

unintentionally. The explanation is artificial and it would be idle

for any prudent mind to readily swallow that version of PW1.

The learned counsel for the accused further points out that PW1

CRA.NOS.671/05 & 78/06 -14-

now wants the court to believe that he and PW2 had taken A4

innocently to the scene of the present crime from where he

suffered injury to ensure that he was given medical assistance.

The version of PW1 clearly shows that it was not an innocent

removal of A4 to render medical assistance to him. But it must

have been a clear case of illegal detention of A4 out of malice.

The learned counsel further points out that the version of PW1

does not at all explain the other injuries found on the person of

the deceased. There is only an attempt to explain the fatal

injury on the head suffered by the deceased. The responsibility

for that injury is conveniently attributed to A1 by PW1,

contends the counsel.

20. The learned counsel argues that all these inadequacies

in the evidence of PW1 is repeated in the evidence of PW2. PW2

does not attribute to any overt act to Accused No. 2. Though he

stated that he (PW2) suffered injuries, no injuries are found on

his person. If the evidence of PW1 were accepted, PW2 could

not have witnessed the overt acts of the accused against PW1

and the deceased as he had run away to safety after suffering the

CRA.NOS.671/05 & 78/06 -15-

first injury. His version about attack on PW1, which is

congruent to the version of PW1, is incongruent to the injury

suffered by PW1 as described in Ext.P12.

21. The learned counsel for the accused argues that all

these inadequacies in the evidence of PWs.1 and 2 must be

considered in the light of the version advanced by the accused,

which is convincingly probabilised by the oral evidence of PWs.1

and 2 as also the facts perceived by the investigating officer

reported in Ext.P9. According to the accused, an untoward

incident had taken place in the toddy shop on that evening.

Some people were consuming toddy in the toddy shop. They

were singing songs. PW2 and his cohorts got involved in a

dispute with persons who were consuming toddy and singing.

PWs.1, 2 and the deceased allegedly indulged in culpable and

contumacious act. Bottles were broken and they were used as

weapons against the others in the toddy shop. A free for all

followed and the persons in the toddy shop attacked PW1 and his

brother, the deceased, as also PW2. PW2 ran to safety and it is

thus that PW1 and the deceased suffered whatever injuries they

CRA.NOS.671/05 & 78/06 -16-

suffered. People were throwing stones at the deceased, who

indulged in overt acts to restrain him and that is how he had so

many injuries described in Ext.P10. The scene mahazar,Ext.P9

affords telltale corroboration and support for this defence

version. The learned counsel for the accused, in these

circumstances, submits that the court below must have

unhesitatingly rejected the evidence of PWs.1 and 2 and must

have come to the conclusion that the prosecution evidence does

not establish any allegations against any accused.

22. The learned counsel points out that even going by the

version of PW1, A1 and A2 had gone out of the toddy shop when

the quarrel commenced. PW2 has no case that accused 2 was in

any way involved in the incident later. In the incident between

PW10 only, accused 1 and 4 were involved admittedly. In these

circumstances, accused 2,3 and 5 cannot be said to be in any

way involved in the incident, nor can they be said to have

shared any common object along with A1 and A4. It can also be

seen from the scene mahazar that MO.1 could only have been

one of the sticks which were available in the court yard of the

CRA.NOS.671/05 & 78/06 -17-

toddy shop. People, who were in the toddy shop had to restrain

the deceased and PW1 from indulgence in contumacious acts.

They may have picked up those sticks which were available.

By any stretch of imagination, it cannot be said that accused 2,3

and 5 shared any intention/ common object with accused 1 and

4. The F.I.statement lodged by A2 (i.e.Ext.P26) clearly suggests

that he was not in any way involved in the incident and happened

to suffer injuries described in Ext.P13 when he was

unnecessarily involved in the incident that had taken place at

the toddy shop on that evening.

23. In the sequence of evidence which has been narrated

above, we find absolutely no justification in the court accepting

the oral evidence of PW1 and /or PW2. The version inherently

is not inspiring and does not explain all the circumstances. The

credibility of PWs.1 and 2 is itself in doubt. In any view of the

matter, we are of the opinion that the case of the prosecution

cannot be said to be established by the oral evidence of PWs.1

and 2.

24. The only way to hold the allegation of the prosecution

to be proved is to look at the evidence of PWs.1 and 2 regarding

CRA.NOS.671/05 & 78/06 -18-

the beatings given to the deceased with MO.1 by Accused No.1.

Except by this court, accepting that part of the testimony alone,

the conclusions reached by the court below cannot obviously be

supported. We are certainly of the opinion that the court below

has not considered the questions in the proper perspective and

has not adverted to the real questions that arose for

consideration. We find merit in the contention of the learned

counsel for the accused that the court below was not morally

convinced about the acceptability of the case of the prosecution,

but erred in meekly accepting the oral evidence of PWs.1 and 2

about the injuries on the head of the deceased alone without

giving attention to other broad probabilities, inability of the

prosecution to explain the other injuries on the deceased and its

total failure to explain the facts perceived by the investigating

officer recorded in Ext.P9.

25. We are satisfied that this is an eminently fit case

where the benefit of doubt should have been conceded to the

accused by the adjudicator refusing to accept and act upon the

CRA.NOS.671/05 & 78/06 -19-

oral evidence of PWs.1 and 2 either fully or in any particular

part.

26. In the appeal by the State, the State contends that the

court below was wrong in assuming that the first accused had a

right of private defence without proper analysis and evaluation.

The benefit of exceeding such a right of private defence (which

does not exist) has been erroneously conceded to the first

accused. The crux of the argument of the learned Public

prosecutor is that the court having believed the evidence of

PWs.1 and 2 in so far as it relates to the overt acts by Accused

No.1 against the deceased must have come to the conclusion

that his act amounts to the offence punishable under Section

302 I.P.C. and that the other accused must be made liable with

the help of Section 149 I.P.C., inasmuch as they were members

of an unlawful assembly who were acting in prosecution of their

common object.

27. We have already found that reliance cannot be placed

on the oral evidence of PWs.1 and 2 to come to any conclusion

in favour of the prosecution. We are further of the opinion that

CRA.NOS.671/05 & 78/06 -20-

the prosecution has miserably failed in establishing that there

was a cord of common object binding accused 1 to 5 to expose

them to the charge of they being members of an unlawful

assembly and of having allegedly acted in prosecution of the

common object of the unlawful assembly. We are, in these

circumstances satisfied that the appeal by the first accused, i.e.

Crl.A.No.671/2005 is entitled to succeed and Crl.A.No.78/2006

by the State is liable to be dismissed,

28. In the result,

A) (i) Crl.A.No.671/2005 is allowed.

(ii) The appellant-1st accused is at any rate

found entitled to the benefit of doubt. He is

consequently found not guilty and acquitted of

all the charges levelled against him.

(iii)Bail bond executed by the first

accused/appellant in Crl.A.No.671/2005 shall

stand discharged. He is set at liberty.

CRA.NOS.671/05 & 78/06 -21-

B) Crl.A.No.78/2006 is dismissed in the light of the

finding in Crl.A.No.671/2005. The acquittal of all

accused are upheld.

R. BASANT, JUDGE

M.C. HARI RANI,JUDGE

ks.