IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL.A.No. 658 of 2005()
1. CHINCHU @ CHANDRAKUMAR, AGED 28 YEARS,
... Petitioner
2. GIREESH AGED 23,
3. SAJEEV AGED 23,
4. SAJEEVAN @ RAJEEVAN, AGED 20
5. RAJU @ MISSILE RAJU, AGED 25
Vs
1. STATE OF KERALA, REPRESENTED BY
... Respondent
For Petitioner :SRI.P.VIJAYA BHANU
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice K.BALAKRISHNAN NAIR
The Hon'ble MR. Justice P.S.GOPINATHAN
Dated :30/09/2009
O R D E R
K.BALAKRISHNAN NAIR & P.S.GOPINATHAN, JJ.
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Criminal Appeal No.658 of 2005.
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Dated this the 30th day of September, 2009.
J U D G M E N T
Gopinathan, J.
The appellants are accused Nos.3, 5, 7, 9 and 11 in
SC.No.467/2001 on the file of the First Additional Sessions
Judge, Thrissur. The Circle Inspector of Police, Valappad
prosecuted the appellants along with 16 others for offences
under Sections 143, 147, 148, 324, 307 and 302 r/w.149 IPC. Of
the 21 accused, 18th accused could not be apprehended. During
the trial accused Nos.15 and 17 absconded. The remaining
accused faced trial. The case against the absconding accused is
split up. On conclusion of the trial the appellants were found
guilty for the above said offences and convicted. Accused Nos.1,
2, 4, 6, 8, 10, 12, 13, 14, 16, 19, 20 and 21 were acquitted. The
appellants were sentenced to imprisonment for life under
Sec.302 IPC. They were also sentenced to rigorous imprisonment
for two years under Sec.148 and 324 IPC. No separate sentence
was awarded for offence under Sec.143, 147, 324 and 307 IPC.
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Sentences were ordered to run concurrently. Assailing the
above conviction and sentence this appeal was preferred. We
are told that as against the acquittal of the other accused no
appeal was preferred.
2. The prosecution case in brief is that, Pws.1 to 7, 10,
deceased Ravi and one Prasad were members of the Democratic
Youth Federation of India (DYFI). The accused were either
members of the BJP or RSS and both parties were on bitter
terms due to political enmity. On 5.2.1998 by about 7.30 pm.
Pws.1 to 7, 10, deceased Ravi and Prasad had a torch procession
in connection with the election propaganda of V.V.Raghavan who
was a candidate proposed by the Left Democratic Front (LDF).
After procession some of them remained near the shop of one
Usman for pasting wall posters. Pw3 Hochimin along with Pw4
Shanil had been to his house for supper. Before supper, Seena, a
girl in the neighbour-hood conveyed a message to Pw3 that there
was likelihood of RSS activists attacking the houses of Pw3, Pw1
Soman and Pw4 Shanil. He conveyed the message to Pw4. They
decided not to remain in the house. Hence they returned to the
shop of Usman. Pws.1, 2 and 5 were there. The information was
conveyed to Pws.1, 2, 5 and other members in their group and
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they decided to remain in the property of one Therambil
Viswambaran, which is on the eastern side of the house of Pw3.
3. By about 11.30 pm., according to the prosecution, all
the 21 accused formed themselves into an unlawful assembly and
were armed with deadly weapons like sword, iron pipe, stick,
knife, iron blocks, etc., and in furtherance of their common
object committed rioting after entering the property of
Therambil Viswambaran and the 3rd accused hit on the head of
deceased Ravi with a sword and the 15th accused hit on the head
with an iron pipe. The 11th accused hit Pw2 Kishore at his head
with an iron rod and the 5th accused hit at his thigh with a sword.
Deceased Ravi, owing to the assault fell down into a thodu. Pw2
who also fell down into anther thodu. He climbed out of the
thodu, took to his heels and reached at the shop of Usman where
the other members in the group took shelter. Pw2 was taken to
the Elite Mission Hospital, Thrissur. From there he was referred
to the Medical College Hospital, Thrissur.
4. Pw16, the father of Pw3, at about 11.30 pm. heard the
utterance, ‘murder’, from the property on the eastern side. He
took a torch and proceeded. His wife prevented. So, he didn’t
proceed then. After some time, when the noise ceased, he
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proceeded to the property along with his dog. The dog sniffed
here and there and rushed to the thodu on the southern side of
the property. He followed the dog. Deceased Ravi was found
lying prone unconscious. He lifted Ravi and made him lie a little
more towards the bank of the thodu and proceeded to the shop
of Usman where there were 4 or 5 persons, of whom he
identified Pw5. Pw16 soon enquired about Pw3. Pw5 told that
Pw3 had taken Pw2 to the hospital. Pw16 informed Pw5 and
others that Ravi was lying unconscious in the thodu. They then
went to Ravi and lifted him. By the time a tempo van reached
there and Ravi was taken to the hospital.
5. On the way to the hospital, it is alleged that the
autorickshaw carrying Pw2 was found going ahead. They
intercepted the autorickshaw, PW2 was also taken in the vehicle
in which Ravi was being carried and by about 1.15 am. on the
next day they reached at the Medical College Hospital, Thrissur.
Ravi was declared brought dead. Pw2 was admitted in the
hospital. Pw1 returned home and narrated the incident to the
members of his family. Then, though he started to the police
station, family members prevented him. Later, at 9 am. he went
to the Vatanappilly police station and gave Ext.P1 first
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information statement before the Sub Inspector (SI) of Police,
Vatanappilly. As per Ext.P1, the information was seen given at 7
am. Pw32, the then SI of police, Vatanappilly recorded Ext.P1
and registered a case as Crime No.48/98, by Ext.P20 First
Information Report against (i) Kuttamon, (2) Unnikrishnan and
20 others, who could be identified by sight, for offences under
Sections 143, 147, 148, 324, 307 and 302 r/w.149 IPC.
6. Pw38, the then Circle Inspector of Police took over
the investigation. He proceeded to the hospital and prepared
Ext.P15 inquest report. Then he proceeded to the spot of
occurrence and prepared Ext.P3 scene mahazar. He then filed
Ext.P25 report arraying 17 persons as accused. He proceeded
with investigation and after completing the investigation, charge
sheet was laid before the Judicial Magistrate of the First Class,
Chavakkad against 21 accused. The learned Magistrate having
found that the offences alleged were exclusively triable by a
court of Sessions, after complying the mandatory procedures, by
order dated 30.6.2001 in CP.61/00 committed the case to the
Court of Sessions, Thrissur from where the case was made over
to the First Additional Sessions Judge. The learned Addl.Sessions
Judge after hearing both sides framed charge for the above said
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offence, to which the appellants and others pleaded not guilty.
Consequently, the accused were sent for trial, as we mentioned
earlier.
7. On the side of the prosecution, Pws.1 to 38 were
examined. Ext.P1 to P42 and MOs.1 to 28 were marked. Plea of
the accused is false implication. During the course of cross-
examination of the prosecution witnesses, the contradictions in
the case diary statements of Pws.2, 3, 4, 6, 7, 15 and 16 were
marked as Exts.D1, 2 and 5 to 24. Exts.D3 and D4 are copies of
Final Report in ST.No.502/2002 and CC.No.120/2002 on the file
of the Judicial Magistrate of the First Class, Chavakkad.
Responding to the call for defence evidence, DWs.1 to 5 were
examined and Exts.X1 to X5 marked.
8. Though it was alleged that the appellants and other
16 accused formed themselves into an unlawful assembly and
armed with deadly weapons, attacked Pws.1 to 7, 10, deceased
Ravi and Prasad, it is brought out in evidence that only Pw2
and Ravi were injured. None others sustained any bodily
injury.
9. Pw1 had deposed that on 5.2.1998 they had a torch
procession as part of the election propaganda of V.V.Raghavan
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and after the procession some of them remained near the shop of
Usman for pasting wall posters. Pw3 went home. A little later
Pw3 returned and informed that BJP supporters had planned to
attack his house. So, all in the procession group including Pw3
went to the property of Therambil Viswambaran just on the
eastern side of the house of Pw3 and remained there. By about
11.30 pm. they heard the sound of swords. Pw1 immediately
lighted the torch, which he was carrying and found a group of
people proceeding to them with swords. He identified
Unnikrishnan and Kuttamon, both were armed with swords.
Pw1 got scared and took to his heels and had shelter at the shop
of Usman. While so, Pw2, with injuries, was taken by Pw5 to the
shop. They fetched an autorickshaw and Pw2 was taken to the
Elite Mission Hospital, Thrissur by Pws.5 and 6. Then Pw16
reached there and reported that Ravi was lying unconscious near
the thodu. Pw1 along with Pws.3, 10 and Prasad went to the
thodu and found Ravi lying unconscious in the thodu with
injuries at the back of the head and nose. Ravi was lifted and
rushed to the Medical College Hospital, Thrissur in a Tata Sumo
vehicle. On the way they saw the autorickshaw carrying Pw2.
The autorickshaw was intercepted and Pw2 was also taken into
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the Tata Sumo vehicle and rushed to the Medical College
Hospital, Thrissur. At 1.15 am. on the next day they reached at
the Medical College Hospital. The doctor after examining Ravi
declared him dead. Pw2 was admitted in the hospital, Pw1
returned home and informed the matter to the family members.
When he was to proceed to the police station the family members
prevented him and on the next day at 9.00 am. he went to the
Vatanappilly police station and gave Ext.P1 first information
statement which was identified by him. In the box Pw1 had
identified accused 5, 6 and 17. Though he named Unnikrishnan
and Kuttamon in Ext.P1 he had deposed that he could not
identify them from among the accused persons. He had also
identified two swords which were marked as MOs.1 and 2.
10. Pw2 had deposed that on 5.2.1998 there was torch
procession in which ten persons mentioned earlier were present.
After the procession, some of them remained there for pasting
wall posters. Pw3 and 4 went to the house of Pw3 for taking
supper. A little later, they returned and informed that BJP
activists had a plan to attack their house and suggested that they
should not go to their house and they decided to remain in the
property of Therambil Viswambaran. By about 11.30 pm. they
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heard the sound of iron rods. Deceased Ravi alarmed that, ‘they
are coming’. Soon Pw1 lighted the torch. In the torch light he
identified accused Nos.5, 9 and 11 who were standing on the
eastern side. Some others were on the western side at a
distance of ten feet. Seeing these persons coming, himself and
others stood up and moved a little towards east. Then the 11th
accused inflicted a blow at the back of his head with an iron rod.
Somebody uttered to murder. When turned back he was
intercepted by the 5th accused who hacked him twice at his left
thigh with a sword. He fell down into a thodu on his right side.
No sooner he fell down into the thodu than the 9th and 11th
accused inflicted blows at his both shoulders and head with iron
rods. Some how or other, he climbed out of the thodu and ran to
the house of Vallissery Anil where Pw5 was present. He was
accompanied to the main road by Pw5. From there he was
rushed to the Elite Mission Hospital, Thrissur by Pw3 and Pw4.
From there he was taken to the Medical College Hospital,
Thrissur. On the way, the autorickshaw in which he was taken to
the hospital was intercepted by Tata Sumo vehicle in which Ravi
was being carried. He was also taken to that vehicle and rushed
to the Medical College Hospital, Thrissur where he had
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undergone treatment. It was further deposed that later he came
to know that Ravi had succumbed to the injuries and that the
attack was due to political enmity. He had further identified
MO3 as the sword by which he was inflicted injuries by the 5th
accused. The iron rods used by accused 5 and 11 were identified
and marked as MOs.4 and 5. He had also deposed that while he
rushing out of the scene, his lungi fell down. The lungi was
identified as MO6. The evidence of Pw38, the investigating
officer is to the effect that MO6 was seized while he preparing
scene mahazar which was marked as Ext.P3.
11. Pw35 had deposed that he was working as Deputy
Police Surgeon at Medical College Hospital, Thrissur on
6.2.1998 and on that day at 2.00 pm. he conducted autopsy on
the body of Ravi, aged 30 and that Ext.P22 is the post-mortem
certificate. Following are the ante-mortem injuries noted:
1.Laceration with contused margin vertically placed
on the right side of top of head 3.8 x 5 cm. The
front end was 7.5 cm above the outer end of eye
brow. The wound was muscle deep only. The skull
bones underneath were intact. The brain showed a
thin layer of subdural and subarachanoid
haemorrhage on both sides. The base of the skull
was intact but the anterior cranial fossae showed
light blue colouration due to infiltration of blood
underneath.
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2.Irregular laceration with contused margin 3.5 x 8
cm on the middle of under surface of nose and
right side of upper lip. The horizontal limb of
laceration was merging with the middle of the
vertical limb. The central incisor tooth of right side
of upper jaw and the right upper canine tooth were
partly broken (broken pieces missing) and the right
upper lateral incisor tooth dislocated and pushed
backwards. The inner aspect of the upper lip
mainly on the right side showed split laceration.
The nasal cartilage was separated from the nasal
bones. The upper jaw bone (maxilla) was fractured
at the middle with contusion of soft tissues around.
3.Abrasion vertical 7.5 x 1 cm on the back of right
forearm 12 cm below the elbow. The arm bones
were intact.
4.Abrasion vertical 6 x 8 cm on the back of left
forearm 2.5 cm above the wrist. The forearm
bones were intact.
5.Abrasion 1 x .6 cm on the middle of back of right
middle finger. The bones underneath were intact.
6.Abrasion 0.8 x 6 cm on the back of right little
finger 3 cm below the root.
7.Multiple abrasions over an area of 5 x 3.5 cm on
the front of left knee joint.
8.Abrasion 4.5 x 1 cm on the front of left thigh 6 cm
above the knee.
9.Abrasion 3.7 x 3.5 cm on the back of right lower
leg 4.5 cm above the ankle. The leg bones were
intact.
10.Abrasion 4 x 1.7 cm on the top of left shoulder.
11.Contused abrasion 6.5 x 4.3 cm on the outer and
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back aspect of right upper arm 8 cm below the
shoulder.
It was further deposed that the deceased died of injuries
sustained to head and face and that injuries No.1 and 2 are
sufficient to cause death in the ordinary course of nature and
that injury No.1 could be caused if struck with an iron pipe like
MO8 and injury No.2 could be caused if hacked with a weapon
like MO9 and injuries No.3 to 11 could be caused if he falls on a
rough and hard surface and also could be caused with a weapon
like MO10. In cross-examination Pw35 deposed that injuries
No.3 to11 could also be caused while the injured person was
being transported from the site to the hospital.
12. Pw34 had deposed that while he was working as
Lecturer in Surgery at Medical College Hospital, Thrissur, on
6.2.1998 he examined Pw2 and issued Ext.P21 wound certificate
and that Pw2 had the following injuries:
1.Lacerated wound, lateral aspect of left thigh, muscle
deep, app.12 x 5 cms.
2.Lacerated wound 8 x 4 cm above the first wound.
3.Laceration 2 x 1 cm on the left fontal scalp.
4.Stellate laceration 5 x 3 cms. on the occipital scalp.
It was further deposed that injuries No.1 and 2 could be caused,
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if hacked with a sword like MO3 and injury Nos.3 and 4 could be
caused if beaten with an iron pipe like MO4.
13. The evidence of Pw1 coupled with Ext.P1 would show
that late Ravi, with injuries, was taken to the Medical College
Hospital, Thrissur along with Pw2. Pw2 also had given evidence
that Pw2 and late Ravi were taken to the Medical College
Hospital. Pw1 had also deposed that the doctor on duty in the
casualty, after examining Ravi declared that he was dead. Pw2
was admitted in the hospital. That much evidence of Pw1 was
corroborated by Ext.P1 also. The factum of death of Ravi and the
injuries sustained to Pw2 were not in dispute. But the defence is
that Ravi and Pw1 might have sustained injuries at the hands of
someone-else and not at the hands of the appellants. Ext.P16
inquest report prepared by Pw38 also supported the evidence of
Pw1 that Ravi died.
14. The cause of death deposed by Pw35 and certified in
Ext.P22 is also not in dispute. The evidence of Pw35 would show
that injuries No.1 and 2 found on the body of Ravi are sufficient
in the ordinary course of nature to cause death. The possibility
of causing injuries No.1 and 2 with iron pipe, sword like MOs.8
and 9 was also proved by the testimony of Pw35. Injuries No.3
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to 11 were minor in nature. There is no evidence as to how
exactly those injuries were caused. According to Pw35, those
injuries could be caused with an iron rod like MO10 or the body
coming into contact on rough and hard surface or while
transporting from the site to hospital. However, since those
injuries were not fatal in nature, even if the prosecution could
not adduce evidence as to how exactly those injuries were
caused, it is not much significant. On a considered view, in our
opinion, the evidence of Pw35 supported by Ext.P22 is believable
to come to a conclusion that the death of Ravi is one of homicide
and not at all a natural death.
15. The evidence of Pw34 coupled with Ext.P21 would
show that Pw2 was brought to the Medical College Hospital with
injuries as deposed by Pw1. The evidence of Pw2 also would
show that he sustained injuries due to an assault and was taken
to the Medical College Hospital. That much extent of the
evidence of Pw2 coupled with the evidence of Pw34 and Ext.P21
are reliable and we safely conclude that Pw2 also had sustained
injuries which we mentioned earlier.
16. The question then to be decided is as to whether late
Ravi and Pw2 sustained injuries as alleged by the prosecution.
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In the event the question can be answered affirmatively, the
conviction under challenge is sustainable. A careful reading of
the evidence on record would show that the available evidence
can be segregated into two. One that relating to the injuries
sustained to Ravi and the other relating to the injuries sustained
to Pw2. Though it is alleged that 21 persons came armed with
deadly weapons, only 4 were alleged as assailants. It is the
specific case that the 3rd and 15th accused assaulted Ravi and
Pw2 was assaulted by 5th and 11th accused. Though the other 17
accused were also alleged to be armed, there is no allegation of
any overt act. It is also crucial to note that Pws.3 and 7 speak
only about the injury to Ravi and Pws.4 to 6 and 10 speak only
about the injury to Pw2. From the evidence of Pw1 which we
mentioned earlier, Pw1 had not witnessed the alleged assault.
Though Pw1 was in the company of the others to defend the
anticipated attack on Pws.1, 3 and 4, seeing the assailant Pw1
who alone had a torch in his hands took to his heels. Pw16 had
seen Ravi lying unconscious with injuries. So, the evidence of
Pws.3, 7 and 16 can be analysed regarding the assault to
deceased Ravi and the evidence of Pws.2 & 4 to 6 can be
analysed regarding the injuries sustained to Pw2.
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17. Pw3 had deposed that in 1998 he was working as
Manager of a finance firm and that he is a member of the
Communist Party of India (Marxist) [CPI(M)], Pws.1, 2, 4, 5, 6, 7
and others were also members and that at about 7.30 pm on
5.2.1998 there was a torch procession as part of the election
propaganda and in the procession, Pws.1 to 7, 10, deceased Ravi
and Prasad were participants. The procession was over by about
8.30 pm. He went home along with Pw4 Shanil for supper. A
little later, Seena, a girl in the neighbour-hood told him that she
heard from RSS workers that there was plan for attacking the
house of Pws.1, 3 and 4. He conveyed the message to Pw4 and
both of them rushed to the shop of Usman where Pws.1, 2 and 5
were remaining after the procession. The other members also
returned and the message was communicated to all of them and
they decided to remain away from the house and took shelter at
the property of Therambil Viswambaran which is just 100 metres
towards east from his house. Pws.1 and 3 lay over palm leaves.
Others sat on palm leaves. Pw3 got asleep. By the time he
heard the sound of Ravi telling that somebody was coming. Pw1
lighted the torch and they found accused 1 to 3 proceeding with
swords. Accused 7 and 15 were proceeding with iron rodes.
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There were 21 persons, all armed with deadly weapons. Then
the 2nd accused shouted to murder. The 15th accused uttering
‘om kali’ inflicted a blow at the head of Ravi with an iron pipe,
which was identified and marked as MO8. Himself and Ravi ran
towards south. He crossed the thodu on the southern side. No
sooner, Pw3 crossed the thodu, he heard the sound of Ravi
falling to the thodu. Turning back, he saw the 3rd accused
hacking Ravi with a sword at his face. Pw3 ran towards east. He
also saw a few persons beating Ravi, but he could not identify
them. Pw3 went to the house of one Jayamama and telephoned
to T.L.Santhosh to fetch vehicle. When he came out of the house
of Jayamama he saw Pws.4 and 5 carrying Pw2, who was having
injuries at his head and leg. Pw4 fetched an autorickshaw and
Pw2 was taken to Elite Mission Hospital, Thrissur by Pws.3 and
4. Pw2 was bandaged at Elite Mission Hospital. From there he
was taken to the Medical College Hospital, Thrissur. On the
way, they were intercepted by a Tata Sumo vehicle in which Ravi
was carried by Pw5, Prasad and Pw1. Pw2 was also taken into
Tata Sumo. They reached at the Medical College Hospital by
about 1.15 am on the next day. Pw2 was admitted in the
hospital. Ravi was declared dead by the doctor after examining
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him. Pw3 identified accused 1, 2, 5, 7, 9, 11 and 21. He also
identified MOs.1, 8, 9 and 10.
18. Pw7 would depose that, the torch procession was over
by 8.30 pm on 5.2.1998. There were ten persons in the
procession. After the procession Pws.3 and 4 went to the house
of Pw3. Later they returned stating that there was likelihood of
attack by BJP activists. So, they decided to remain away from
their houses. Accordingly all of them went to the property of
Therambil Viswambaran which is adjacent to the house of Pw3.
While they remaining so, about 20 persons reached there.
Deceased Ravi stated that they had reached. All in the group
stood up. There was good moon light. Pw1 lighted the torch and
they identified accused Nos.1, 3, 7, 15, 17 and 18. They were
uttering ‘om kali’. Seeing them attempting to assault with
swords he ran towards south and hid behind a coconut tree.
Then he saw Ravi attempting to climb out of the thodu. By the
time the 3rd accused hacked Ravi with a sword. Ravi was
uttering that he was Ravi, don’t hack, (.. .. .. .. . .. .. .. .. .. .. .. .. .. ..
.. .. .. .. .. .. ). Accused Nos.2, 7, 15, 17 and 18 rounded Ravi and
he could not see as to what happened. The 7th accused threw the
iron rod which was identified and marked as MO10. The
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assailants then returned. Pw7 went to the house of Vallissery
Anil and reported that Ravi was attacked by BJP activists. He
along with Vallissery Anil came to the road. Then it was found
that Pw2 was being taken to the hospital by Pws.3 and 4. By the
time Pw16 reached there and reported that Ravi was beaten (by
the assailants) and lying (at the scene). He along with Pws.1, 5
and Prasad went to Ravi and lifted him to the hospital in a Tata
Sumo vehicle. Ravi was declared dead at the Medical College
Hospital. He had further deposed that at Karthika theatre, there
was some problem with Pw3 and Ravi on one side and the 11th
accused and his brother on other side and that there was yet
another problem at Eranaezhathu pooram where the 5th accused
was on one side and Pws.4 and 5 on the other side. In addition
to that, there was political enmity and that the attack was with
intention to murder Pws.2 and 3.
19. Pw16 had deposed that by about 11.30 pm. on a day,
about 6 – 6= years back, he heard the uttering ‘murder’ from
the eastern side of his house. Pw16 took the torch and
proceeded. But he was prevented by his wife. After sometime
the sound ceased. He proceeded towards east to the property of
Viswambaran along with the dog. He lighted torch in and
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around and found no person, but there was a sword, some iron
rods and wooden sticks thrown around. The dog ran towards
south. He followed the dog and found that in a thodu on the
southern side Ravi was found lying unconscious with his head on
the bank. He lifted and laid him a little more to the bank and
then proceeded to the shop of Usman where there were 4 or 5
persons. Among them he identified Pw5 and asked where his
son (Pw3) was. Pw5 told that Pw3 had gone to the hospital.
Then Pw16 told that Ravi was lying in the thodu. They
proceeded to the spot where Ravi was lying. Ravi was lifted out
of thodu. After some time a vehicle came there, which according
to him was a tempo and since he could not witness any more he
returned home and on the next day he came to know that Ravi
was dead.
20. The summary of the evidence of Pw3 & 7 is to the
effect that Ravi was hurt. Seeing that Ravi was being hurt, Pw3
and 7 took to their heels. Later Pw16 came to the spot and
found that Ravi was lying unconscious in the thodu. Ravi was
lifted to hospital, but dead. Though the evidence of these
witnesses prima facie impresses a case of assault and murder, a
critical analysis of the evidence of these witness would show that
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their evidence is not credible. The evidence of Pw3 would show
that the so called intention of attack was informed to him by a
girl by name Seena. In cross-examination Pw3 had deposed that
the girl is the daughter of Chinnatti Velayudhan. It is from this
girl, the event starts. She came to the house, called out Pw3 to
the western courtyard and confidentially conveyed the message
that there was likelihood of RSS people attacking the house of
Pw1, 3 and 4. But that girl is not a witness. It is crucial to note
that this information was not conveyed to Pw16, who is the
father of Pw3. Neither it was conveyed to the mother nor
informed to the police or other authorities. But Pw3 informed to
his friends and they themselves decided to go out of the house
and to sit in the property on the eastern side, that too without
any preparation for defence. If the evidence of Pw3 is believed,
assailants had no intension to have any physical attack but to
attack the house. Neither there was any intension to attack Pw2
nor deceased Ravi. The alleged target was the house of Pws.1, 3
and 4. But that didn’t happen. Neither Pws.1, 3 and 4 were
assaulted.
21. The evidence of the witnesses coupled with Ext.P3,
the scene mahazar and the evidence of Pw38, the investigating
Crl.Appeal No.658 of 2005.
-: 22 :-
officer, would show that the property where Pw3 and his friends
took shelter was just on the eastern side of the house of Pw3. On
the southern and eastern side of that property there are thodus.
In the normal course, it is not easy to escape towards south or
east because of the thodu. The evidence on record itself would
show that Ravi fell into the thodu on the southern side and Pw3
fell into the thodu on the eastern side. If the information
conveyed to Pw3 by the girl was true, in the normal course, the
assailants would have first gone to the house of Pw3. But it was
not seen so. The evidence of Pws.1 to 7, 10, 16 coupled with
Ext.P3 would show that none in the party were armed with any
weapon, except Pw1 was having a torch. That story itself is not
believable. In the normal course of human conduct, since those
persons were apprehending assault they should have carried
something, at least for their defence. So also, they should have
taken shelter in place from where they could escape in the event
of attack and not to surrender unarmed in a place circled by
thodu on two sides. Though Pw1 had a torch, the prosecution
did not care to seize that torch. The evidence of Pws.1 to 7 and
10 is to the effect that they identified the assailants in the light
of the torch. Of course, some of the witnesses had deposed that
Crl.Appeal No.658 of 2005.
-: 23 :-
there was good moon light. What is the position of the moon on
that day has not come out in evidence. Form the evidence it
appears that it was a coconut garden. In the normal course,
there would have been shade of the palm leaves and it is very
difficult to identify the assailants unless they are so previously
well acquainted. The evidence on record would show that none
of the witness has got a case that the assailants were so closely
acquainted with or that those persons could be identified in
night by their gait or sound. So the identification in the moon
light is not convincing. So also, the story that a group of 21
assailants who are not so familiar were identified in the torch
light, that too while assault and Pw1, the torch bearer got scared
and running to escape from the scene is also not believable.
22. The evidence of Dw2, the then Sub Inspector of
Police, Vatanappally Police Station coupled with Ext.X2 would
show that Pw3 is a rowdy as per the station records and the
photograph of Pw3 was affixed in the police station and that Pw3
was involved in several criminal cases since 1996. Of course,
Pw3 had not admitted that he is a rowdy. But he had admitted
that at the time of examination he was an accused in three
criminal cases. We find no reason to disbelieve DW2 and
Crl.Appeal No.658 of 2005.
-: 24 :-
conclude that Pw3 is a rowdy. If such a person apprehends some
attack and remaining out side the house with ten persons
together, in the normal course there would have been at least
some sticks for defence though not for attack. So, the evidence
that they were unarmed and waiting for assailants that too in a
property covered by thodu or two sides is not believable.
23. Pw3 and 7, who said to have witnessed the attack
against Ravi, neither cared to counter attack nor to defend the
victim. So also, Pws.1, 4, 5 & 6 didn’t care to defend; nor to have
any counter attack. According to Pw1, seeing the assailants
rushing, he took to his heels with the torch bearing others in the
darkness. So also Pws3 to 6 and 7 escaped from the scene. The
evidence of Pw38 would show that at the time of preparation of
scene mahazar he had found three iron sticks which were
identified and marked as MOs.10, 11 and 25, one sword which
was marked as MO9, an iron block which was marked as MO17
and the cover of a knife which was marked as MO18, wooden
stick which was marked as MO9. All these materials objects
were lying at the spot and that he had seized the same while
preparing Ext.P3 scene mahazar. The further evidence of Pw38
is that he arrested accused 5, 8, 9, 10 and 17 and on the basis of
Crl.Appeal No.658 of 2005.
-: 25 :-
their confession statement MO9 sword, MOs.5, 26 and 27 GI
pipes were seized on the strength of the confession statement.
In the normal course since there was no counter attack from the
side of the victim or the persons around the victim, that too at
midnight, it is very difficult to believe that some of the assailants
left the weapon at the spot so as to have it seized by the
investigating officer. A reading of Ext.P3 would show that but
for the weapons and MO6 lungi, there is nothing significant.
24. If the prosecution story is believed, at the property
where Pw2 was assaulted and Ravi assaulted to death, there
were 31 persons (including witnesses and victims) of whom 21
were armed with deadly weapons. Pw2 and deceased Ravi fell
down to the thodu because of the assault. Ext.P3 mahazar didn’t
narrate anything regarding the foot prints nor there any mention
regarding the thodu where Ravi and Pw2 fell into. It is brought
out in cross examination of Pw38 that there was water in the
thodu. It appears it is low lying area, though not marshy. In the
normal course, there would be mud and water in the cloth of the
victims. According to Pw2, MO6 lungi that he was wearing fell
down while he was being lifted by Pw5 and others. If the
evidence of Pw38 and Ext.P3 are given reliance MO6 was seized
Crl.Appeal No.658 of 2005.
-: 26 :-
by Pw38 at the time of preparation of scene mahazar. But there
is no mention that the lungi was wet with mud or water. As
regards the cloth of the deceased there is no mention that it was
either wet with mud or water. Ext.P16 inquest report didn’t
mention that the cloth on the body of the deceased was wet with
mud or water. If the evidence of Pw16 is believed, there is every
chance for mud on the body and cloth of the deceased. Even the
wound should have been contaminated with mud. Regarding
that also there is no mention in the inquest report. In the post-
mortem certificate also there is no mention. If the evidence of
Pw16 is believed, deceased Ravi might have been lying
unconscious in the thodu at least for a few minutes. At least the
injuries on the lower limb should have been contaminated with
mud. The absence of mud and water on the cloth of the
deceased or mud in the injuries stares at the evidence of Pw16.
25. We had earlier mentioned that Pw3 had an
information that the house of himself, Pw1 and Pw4 would be
attacked. It is crucial to note that neither their house nor the
persons were attacked, but the attack was against Pw2 and
deceased Ravi. If the evidence of Pw7 is believed, when the 3rd
accused hacking Ravi with sword, Ravi was telling that ‘should
Crl.Appeal No.658 of 2005.
-: 27 :-
not hack, he was Ravi’. If that version is true, the attack against
Ravi was either without identifying the victim because it was
darkness or if there was some moon light, Ravi might have been
attacked by a person known to Ravi and who had no enmity.
Such a conclusion is justified because Ravi was telling to the
assailants that not to hack, he was Ravi. If the evidence of Pw7
is believed, after the 3rd accused hacking Ravi, accused 2, 7, 15
and 17 rounded Ravi. If the allegation of the prosecution is true,
all of them were armed with deadly weapons. Pw7 avoided
further by stating that he could not see anything after those
persons circling the deceased. If that is so, there was only one
victim and five or six assailants armed with deadly weapons and
the victim couldn’t even defend. If all five or six persons attack
one unarmed person, there would have been much more severe
injuries. But no such injuries. It is also pertinent to note that
Pw7 had deposed that the 7th accused threw away the iron rod
towards south and that iron rod was identified by Pw7 and
marked as MO10. MO10 was seized by Pw38 while preparing
Ext.P3. The nature of injury found on the body of Ravi would
show that there is no likelihood of these persons hacked or
beating with swords or GI pipes like MO10. We don’t forget that
Crl.Appeal No.658 of 2005.
-: 28 :-
Pw35 had deposed about the likelihood of causing the injuries
with the weapons produced. But the crucial aspect is the
manner of inflicting injuries. If it was in the way as deposed by
Pw7, the injuries might have been more severe. So also, the
absence of foot prints in the thodu looms large. To beat a person
lying in a thodu assailants had to get down to the thodu. If 5 or 6
persons getting down to a thodu having mud and water and
assaulting an unarmed person lying in the thodu, definitely there
would have been foot prints and speaking marks in the thodu
and its banks. The absence of such markings in Ext.P3, in fact,
persuades us to disbelieve the witness.
26. We had earlier mentioned that Pw3 had deposed that
he had witnessed the assault on Ravi. According to Pw3, there
were 23 persons who were identified in the torch light. Accused
1 to 3 were armed with swords. Accused 7 and 15 were armed
with iron pipes. The iron pipe used by the 5th accused to beat
Ravi at his head is identified and marked as MO8. The sword
used by the 2nd accused and 3rd accused were identified and
marked as MOs.2 and 9. According to Pw3, other than the above
mentioned persons, few other persons also hit or beat Ravi but
he could not identify those persons. Having got scared he
Crl.Appeal No.658 of 2005.
-: 29 :-
rushed to the house of Jayamama and telephoned to
T.L.Santhosh to fetch a vehicle. Pw3 had admitted in cross-
examination that he had not narrated the incident to Jayamama.
In the normal course, if a person going to the house of a lady at
midnight for calling a vehicle, he would have disclosed the
purpose. The evidence of Pw3 that he didn’t inform the reason
or purpose for telephoning to Jayamama would show that what
he deposed before the court is not correct. It is also crucial to
note that Pws.3 and 7 had rushed to the shop of Usman after
they have seen Ravi being hurt. According to Pws.3 and 7, Pw5
and others were there and Pw2 was brought with injuries by
Pws.4 and 5. But Pws.4 and 5 has no case that they or any other
person at the shop of Usman were told by Pws.3 or 7 about the
hurt caused to Ravi. If the evidence on record is relied, Pws.3
and 7 had been keeping silence till Pw16 came there. That
conduct of Pws.3 and 7 is not at all believable.
27. According to Pw16, when he enquired about Pw3, it
was told by Pw5 that Pw3 had gone to the hospital with Pw2. If
that is true Pw3 had gone to the hospital with Pw2 who was
injured. In the normal course, Pw3 would have intimated Pws.4
and 5 that Ravi was also hurt and that he also had to be lifted to
Crl.Appeal No.658 of 2005.
-: 30 :-
the hospital. The failure of Pw3 and 7 to disclose the injuries
sustained to Ravi would show that they might not have seen Ravi
being hurt. They appear to be planted witnesses.
28. We had earlier mentioned that Pw3 is a rowdy of the
Vatanappilly police station. The mere fact that he was a rowdy is
not at all a reason to disbelieve him. Irrespective of the criminal
background of Pw3, his evidence is to be analysed
independently. We find that a reading of the cross-examination
of Pw38 regarding the statement given by Pw3 would be
relevant. Pw38 would depose that when Pw3 was questioned he
had not mentioned about the name and address of the 9th
accused. So also he had not mentioned about the name of the 5th
and 21st accused, Pw3 had not mentioned the presence of the
11th accused. He had also not mentioned about the presence of
the first accused or about the sword with the first accused. Pw3
had deposed that the 3rd accused is known to him for about 19
years and accused Nos.2, 7 and 15 were known to him for about
four years. But Pw38 had deposed that Pw3 had not given such
statement. So also Pw3 who had identified the sword in the
hands of the 2nd accused had not been identified at the time of
investigation. Pw38 had also admitted that while Pw3 being
Crl.Appeal No.658 of 2005.
-: 31 :-
questioned he had not mentioned that the assault was because of
the political enmity. But in the box he had mentioned so.
Having due regard to the evidence of Pw38, we find that Pw3 is
not a dependable witness.
29. In Ext.P1 first information statement Pw1 had
mentioned about one Kuttamon and Unnikrishnan. But in the
box Pw1 had admit that he couldn’t identify them. Though he
had deposed that the first and second accused were armed with
weapons at the spot, he had to admit that he could not identify
them in the box. But he had identified accused Nos.5 and 17.
Though he could not mention the name of the 6th accused and
identified the 6th accused at the time of evidence, he had not
mentioned about the 6th accused while giving Ext.P1. According
to Pw38, during the course of investigation the name and
address of 17 persons were disclosed. It is to that effect Ext.P25
report was filed. In Ext.P25 report, the name and address of the
persons mentioned in Ext.P1 was changed. Though the name of
the fathers of some of the accused in Ext.P25 is mentioned, there
is no mention regarding their address. The name of four persons
comes only along with charge sheet.
30. The evidence of Pws.1 to 7 and 10 would show that in
Crl.Appeal No.658 of 2005.
-: 32 :-
fact, the accused persons were not so familiar to them to identify
them in the moon light or in the flashes of torch. It is very
crucial to note that the investigating officer had not conducted
any test identification parade. It is true that test identification
parade is not at all mandatory if there are other materials to
identify the assailants. Here in this case, the evidence of the
occurrence witnesses would show that none of them were
familiar with the addresses of the assailants. There was an
attempt by the defence to bring out in evidence by examining.
Dws.3 and 4, the Secretary of the Local Body and the Tahsildar
were examined and produced the voters list to bring on record
that there are so many persons in the locality with identical
name and address. Of course, the availability of persons with
identical name in the locality is not at all a reason to find against
the prosecution in the event there is sufficient evidence to
identify the assailants. But when there are more persons with
identical names and the assailants being not familiar, the proper
course open to the prosecution is to have the identity first
established by conducting test identification parade. But for the
best reason known to the investigating officer, there was no such
attempt.
Crl.Appeal No.658 of 2005.
-: 33 :-
31. The injury found on the body of deceased Ravi in fact,
didn’t tally with the ocular witnesses. Having due regard to the
nature of the injuries 3 to 11, we find that those abrasions might
be sustained while lifting the deceased to the hospital. In the
normal course, if beaten with iron rodes like MO8, there would
be contusion and when beaten at the limbs with iron pipes there
is chance even for fractures. If the evidence of Pws.3 and 7 is
believed, Ravi was attacked by a group of people without any
defence. He was even beaten while he fell unconscious in the
thodu. But no such injuries are seen on the body of Ravi. In
fact, there is conflict between the medical evidence and ocular
evidence. The reason for the occurrence witnesses and the
victim gathered at the spot of occurrence at the midnight is the
information given by Seena that Pw1, 3 and 4 would be attacked
by RSS activists. Curiously Pws.1, 3 and 4 were not attacked. If
Seena was examined, it would have been sometimes revealed out
as to who were the assailants. Since Seena was not made a
witness, even the reason stated by the witnesses having
assaulted at the alleged spot of occurrence at the midst of night
itself is very suspicious. As stated earlier, the story that the
witnesses were unarmed is also not believable. Coupled with
Crl.Appeal No.658 of 2005.
-: 34 :-
that, it is even doubtful whether the incident occurred at the
spot stated in Ext.P1.
32. In the above circumstance and the nature of evidence
on record being as we stated earlier, we find that the evidence of
Pws.3 and 7 regarding the assault on Ravi is not believable.
They appear to be planted witness. It is even doubtful whether
the incident was occurred at the spot as mentioned by the
prosecution.
33. We had earlier mentioned that Pws.4, 5, 6 and 10 had
claimed to have witnessed assault against Pw2. It is crucial to
note that in Ext.P21 wound certificate relating to Pw2 the time of
assault was shown as 10.45 pm. In the box, Pw2 had mentioned
that the assault was at 11.00 am. But, according to all other
witnesses, namely, Pw1, 3, 4, 5, 6, 7, 10 and 16, the time of
occurrence was at 11.30 pm. If the entry in Ext.P21 is given due
regard, Pw2 have sustained injury 45 minutes prior to the
incident alleged in this case. If that is so, the entire prosecution
story regarding assault on Pw2 is to be disbelieved. There are
also other circumstances to suspect that Pw2 might have
sustained injury earlier. If Pw3 is believed after he telephoned
from the house of Jayamama to Santhosh to fetch a vehicle,
Crl.Appeal No.658 of 2005.
-: 35 :-
presumably with intent to lift Ravi to the hospital, he saw Pws.4
and 5 taking Pw2 from the spot to the shop of Usman and from
there Pw2 was taken to the hospital in an autorickshaw. In the
normal course of human conduct especially at midnight when
vehicles are not easily available and if Pw3 was aware that Ravi
was hurt in the same place both persons should have been taken
to the hospital together. It is true that there may be a possibility
for first lifting Pw2 without waiting for lifting Ravi. However,
Ravi and Pw2 were taken to the Medical College Hospital in the
same vehicle. According to the prosecution evidence, Pw2 was
first taken to the Elite Mission Hospital then to the Medical
College Hospital. Curiously, no evidence from the Elite Mission
Hospital, where Pw2 was first taken, was brought out in
evidence.
34. The very case of Pw2, which we had discussed in
para.10 is that seeing the mob of assailant he moved towards
east. Then the 11th accused inflicted a blow at the back of his
head with an iron rod. Pw2 turned back. By the time the 5th
accused hacked twice at his left thigh with a sword. Then he fell
into the thodu. Immediately 9th and 11th accused inflicted blows
at his both shoulders with iron rods. The injury found on the
Crl.Appeal No.658 of 2005.
-: 36 :-
body of Pw2 as revealed out in Ext.P21 wound certificate and
deposed by Pw34 is stated in para.8. If the evidence of Pw34
and Ext.P21 is given reliance there were only four injuries. Of
the above, two of them were minor in nature. Conspicuously
there is no injury on the shoulder of Pw2 despite he was beaten
by 9th and 11th accused at his both shoulders. So, the medical
evidence did not tally with the assault as deposed by Pw2.
35. We had earlier mentioned that Pw2 was alleged to
have been first taken to Elite Mission Hospital, Thrissur. For the
best reason known to the prosecution, neither any wound
certificate from the Elite Mission Hospital, was produced nor the
Medical Officer who attended him was examined. The non
examination of the Doctor who attended the Elite Mission
Hospital, and the non production of the wound certificate from
that hospital is very suspicious. In Ext.P21, Pw34 had noted the
time of assault at 10.45 pm. If any reliance is given to the time
of assault noted in Ext.P21, no doubt, one can arrive an
inference that the said injury might have been sustained in some
manner other than what is alleged by the prosecution because
the very case of the prosecution is that the alleged assault in this
case is at 11.30 pm.
Crl.Appeal No.658 of 2005.
-: 37 :-
36. We had earlier referred about MO6 lungi said to have
been worn by Pw2 at the time of occurrence. It is the very case
of Pw2 that because of the assault, he fell into the thodu. Pw38
had admitted that there was water in the thodu. In the normal
course MO6 would have been got wet and stained with mud.
There would have been mud on the body of Pw2 also. But
neither on MO6 nor on the body of Pw2 there was any mud nor
MO6 was wet with water. Such being the evidence of Pw2, we
are unable to believe Pw2 also.
37. The evidence of Pws.4, 5, 6 & 10 is regarding the
injuries sustained to Pw2. Since we disbelieved Pw2 regarding
the injuries sustained to him, we find that we need not waste
time for discussing the evidence of Pws.4, 5, 6 & 10 especially in
the light of our conclusion regarding the evidence of Pws.3 and 7
relating to grave part of the crime. On going through the
evidence of Pws.4 to 6 and 10 we find that they are also planted
witnesses.
38. According to the prosecution, accused 9 and 11 were
injured in the incident alleged. Exts.P17 and P16 respectively
are the wound certificate obtained by the investigating officer
after sending accused 9 and 11 to the doctor after their arrest.
Crl.Appeal No.658 of 2005.
-: 38 :-
There is no explanation in the charge sheet as to how accused 9
and 11 sustained injuries. If the evidence of Pws.1 to 7 and 10
are believed, none of the victim or the witnesses were armed
with any weapon and there was no counter attack even for the
sake of defence. Whereas Pw2 and deceased Ravi had been
suffering the assault without any defence. There was no fight for
any weapon. So, there is little likelihood of having accused
Nos.9 and 11 sustained injury out of the incident alleged in this
case. In that view of the matter, the non-explanation of the
injury found on accused Nos.9 and 11 also would cast serious
doubt on the prosecution story.
39. To sum up, on a careful analysis of evidence on
record, though there is some sound and fury in the evidence of
prosecution, there is little convincing material to connect the
appellants with the offence alleged. The story of the prosecution
regarding the manner in which the offence was committed, place
and time of occurrence is not at all convincing. It appears that
Pw2 and deceased Ravi had sustained injury in some manner
other than that was narrated by the witnesses. There is wide
cloud in the evidence. Even the place of occurrence alleged by
he prosecution is not free from suspicious. Therefore, we find
Crl.Appeal No.658 of 2005.
-: 39 :-
that the prosecution had not succeeded to establish the guilt
alleged against the appellants beyond the shadow of reasonable
doubt. We find that the conviction and sentence under challenge
are not legally sustainable. Hence it is liable to be set aside.
In the result, the appeal is allowed. While setting aside the
conviction and sentence under challenge in SC.No.467/2001 of
the Sessions Division, Thrissur against the appellants, they are
set at liberty. The appellants shall be released forthwith
provided their presence is not warranted in any other case.
K.BALAKRISHNAN NAIR, JUDGE.
P.S.GOPINATHAN, JUDGE.
Kvs/-