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.
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Crl. Appeal Nos. 2207 of 2005,
92 & 169 of 2006.
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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
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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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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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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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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.
Crl.Appeal.2207/2005 & con.cases.
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.
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32
K. BALAKRISHNAN NAIR & P. BHAVADASAN, JJ.
– – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – –
Crl. Appeal Nos. 2207 of 2005,
92 & 169 of 2006.
– – – – – – – – – – – – – – – – – – – – – – – – – – – – –
JUDGMENT
05.01.2010.