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