IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL A No. 573 of 2005()
1. MADAMPALLI MAMMOOTTY, S/O.MOOSA,
... Petitioner
2. KADAR MAJEED, S/O.ABDULLA,
3. O.C.ABDULLA @ OSSAM ABDULLA,
4. CHEENAMBADAN AZEEZ, S/O.ABDULLA,
5. MAKKI ABDULLA, S/O.MOIDU,
Vs
1. STATE OF KERALA, THROUGH THE
... Respondent
For Petitioner :SRI.SUNNY MATHEW
For Respondent : No Appearance
The Hon'ble MR. Justice K.THANKAPPAN
Dated :20/02/2007
O R D E R
K.Thankappan, J.
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Crl. A. No. 573 of 2005
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Dated this the 20th day of February, 2007
JUDMENT
The accused Nos. 1,2,13,14 and 15 in S.C. 25 of 1997 on the file of
the Court of the Additional Sessions Judge (Adhoc)-I, Wayanad, Kalpetta are
the appellants. The appellants and 11 other accused faced trial for the
offences punishable under sections 143, 147, 148, 452, 323, 120B, 307 read
with section 149 IPC. Brief facts of the prosecution case against the
appellants and other accused is as follows:- On 19th September, 1993 there
was a communal clash at Kundala in Mananthavady between the Bharathya
Janata Party and Muslim League. Enraged at this, the appellants and other
accused persons, who entered into a criminal conspiracy to murder PW1
and PW2 Gopu, the supporters of Bharathya Janatha Party, armed with
deadly weapons like chopper, iron rod etc., formed themselves into an
unlawful assembly at 1 A.M. on 20-9-1993 and reached the house of PW1
and when PW1 opened the door, the appellants and other accused persons
trespassed into the house of PW1, appellants 1 and 2 inflicted cut injuries
with a chopper on PW1, the 9th accused beat PW1 with an iron rod and the
other accused persons beat and kicked PW1 and thereby caused grievous
injuries to PW1 and thereby attempted to kill PW1. On the above allegation
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the appellants and other accused persons have been committed the
offence punishable under section 143, 147, 148, 452, 323, 120(b), 307
read with section 149 IPC. To prove the case against the appellants and
other accused, PW1 to PW17 were examined and Exts.P1 to P13 were
marked. MO1 to MO6 were also marked. When the appellants were
questioned under section 313 of Cr.P.C., they denied the allegation and
stated that they were innocent. Relying on the evidence adduced by the
prosecution both, oral and documentary, the trial court found that the
appellants guilty under sections 143, 147, 148, 452, 323, 307 read with
section 149 IPC and they were convicted thereunder and sentenced to
undergo rigorous imprisonment for two years each and to pay a fine of
Rs.51,000/- each and in default to undergo simple imprisonment for three
months each under section 147 read with 149 IPC. Though the
appellants were found guilty under section 143 and 147 read with section
149, section 147 being a higher offence involving all these ingredients,
no separate sentence was awarded under section 143 IPC as per section
71 IPC. They were sentenced to undergo rigorous imprisonment for two
years each and to pay a fine of Rs.20,000/- each and in default to undergo
simple imprisonment for four months each under section 148 read with
section 149 IPC. They were also sentenced to undergo rigorous
Crl.A.573/2005 3
imprisonment for five years each and to pay a fine of Rs.25,000/- each
and in default to undergo simple imprisonment for six months under
section 452 read with section 149 IPC. The trial court found that the
appellants were found guilty under sections 323 and 307 read with
section 149 IPC and they were sentenced only for higher offence under
section 307 IPC to undergo rigorous imprisonment for 10 years each and
to pay a fine of Rs.1,00,000/- each and if the fine amount of
Rs.1,00,000/- was realized, that would be given to PW1 towards the
pain and suffering. Challenging the conviction and sentence ordered
against the appellants, the appeal is filed.
2. The learned counsel for the appellants has taken the following
contentions to challenge the impugned judgment. Firstly, the learned
counsel contended that the trial court has committed serious error in
relying on the evidence tendered by the prosecution witnesses to enter a
finding against the appellants, as the evidence tendered by the witnesses
are mutually contradictory and inconsistent. Secondly, it is contended
that the trial court had committed serious error in finding the appellants
guilty under sections 143, 147, 148, 452, 323, 307 read with section 149
IPC, as the witnesses failed to identify the appellants as the persons who
Crl.A.573/2005 4
had participated in the commission of the offences. Thirdly, it is
contended that the trial court had committed serious error in convicting
the appellants under section 307 IPC, as there was no medical evidence
to prove that the appellants had committed the above acts in prosecution
of their common object to commit murder as alleged by the prosecution.
Finally, the learned counsel contended that the sentence awarded against
the appellants are excessive.
3. As per the prosecution case, the motive to commit the
offence by the appellants and other accused is the common object of
committing the murder of PW1 on account of political enmity. The
prosecution mainly relies on the evidence of PW1 injured, PW3
Mohanan, PW4 Francis, PW5 wife of PW1 and PW6 daughter of PW1.
All these witnesses were examined as occurrence witnesses to the
prosecution. PW1, PW3 to PW6 were examined as eye witnesses to the
occurrence. PW3, PW4, PW7 and PW8 were not supporting the
prosecution case and hence they were declared as hostile to the
prosecution. PW9 was examined to prove Ext.P3 mahazar. He
identified MO1 and MO2. PW10 and PW11 were also examined to
prove Ext.P4 recovery mahazar, under which certain material objects
were recovered
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4. PW, the injured, stated that on the date of the incident he
along with his wife was sleeping at the room on the western side of the
middle room and at about 12- 12.30, they heard some one knocking at
the door. He came to the central room and switched on the light to kolai.
He saw three – four persons who were known to him, the appellants, and
in total there were about 10 – 12 persons. He further stated that when he
opened the door, 1st appellant inflicted a cut on his left shoulder, in
which he sustained injuries, and the 2nd appellant inflicted another cut
on his head and on that cut his ear also wounded and ear hanged.
Thereafter shouting ” “2nd appellant pushed him to the
courtyard. Then two or three persons beaten and kicked him with iron
rod and coffee stick. PW1 specifically stated that appellants 1 and 2
inflicted cut on his body. He identified 2nd appellant,5th appellant, 1st
appellant, 3rd appellant and 4th appellant. He also identified the material
objects.
5. PW2, son of PW1, stated that his father sustained injury on
19-9-1991. On that day he was not in the house and he was in his wife’s
residence. He stated that his father had disclosed that the appellants
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and others came to the house in the night and his father was called out
and when he came out of the house, 1st appellant inflicted a cut, then
followed by Majeed inflicted a cut on his head and pushed him to the
courtyard shouting ”
“PW5, wife of PW1, stated
that at about 12 O’ Clock they heard some one knocking on the door and
after switching on light, PW1 went to the varandha. She and her
daughter accompanied PW1 stood at the door of the varandha. Then 2nd
appellant requested to open the door. She stated that they saw some
people outside. Among them she identified appellants 1 and 2. She
further stated that ”
.
.
.”
6. PW6, daughter of PW1, had given evidence in support of the
evidence of PW1 and PW5. She identified appellants 1 and 2. She stated
as follows:-
”
.
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.
.
.
,
.
.
.
.
.
.
.
.
.”
The trial court after considering the evidence came to the conclusion that
in the light of evidence of all eye witnesses and injured it is clearly came
in evidence that the incident of inflicting two cut injuries by sharp
edged weapon took place while PW1 was opening the varandha’s door
opening to courtyard and after inflicted cut injuries PW1 was pushed to
the courtyard and beaten indiscriminately using iron rod and coffee stick.
7. Question to be decided in this appeal is whether the prosecution
has succeeded in proving the entire case against the appellants?
8. The allegation is that due to communal clash at Kundala
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between the Bharathiya Janata Party and Muslim League, during night
of 19-9-1993, some persons came to the house of PW1, tapped at the
door. The 2nd appellant told PW1 to open the door and while opening the
door the accused rushed inside shouting to kill him and 1st appellant
inflicted a cut on the shoulder of PW1 and 2nd appellant inflicted cut
injury on his head which cut his ear to a hanging stage and he was
pushed to the courtyard and there the was beaten with iron rode and stick
and he sustained injuries.
9. If so, question to be decided is whether the appellants and
others have got any common object in attacking PW1 and whether they
entered into any conspiracy to attack PW1?
10. The prime motive as alleged by the prosecution for the offence
committed by the accused was due to political clash between the
political parties. If that be so, the common object was to attack PW2,
the son of PW1 who belongs to B.J.P. The evidence of PW1, PW4 and
PW5 would not show that the persons who assembled, including the
appellants, have got any common object to attack PW1. In the above
circumstances, this Court is of the view that the prosecution has
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miserably failed to prove the common object to attack PW1. It has come
out in evidence that when the accused came to the house of PW1, they
asked whether PW2 was there. Hence, it is clear that the accused
reached the house with common intention of attacking PW2. But on
finding that PW2 was not there, appellants 1 and 2 attacked PW1.
Further, even if the evidence of PW1, PW3, PW5, PW6 is accepted,
there is no evidence to show that the appellants committed house
trespass. Hence, the prosecution failed to prove that the appellants have
committed house trespass.
11. As per the medical evidence adduced by the prosecution, there
were two injuries on the body of PW1. Following are the injuries noted
by PW12 doctor:-
1. An incised wound 6 x 4 x 2 cm. On the left side of the
scalpula.
2. An incised wound 6 x 4 cm. Bone deep on the left side of the
scalp. It is curved in nature.
There is no evidence adduced by the prosecution to prove that the
injuries sustained by PW1 are likely to cause death. With regard to that
aspect, PW12 doctor was silent regrading the nature of injuries. He
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stated that except injury 1 and 2 noted in Ext.P5 certificate, no other
injuries were noted by him. Hence, this Court is of the view that the 2nd
injury is in grievous in nature and the injury can be caused as alleged.
The evidence of PW1, PW3 and PW5 would show that appellants 1 and
2 attacked PW1. In this context, the evidence of PW16 and 17 are also
important. According to them, they recovered MO3 and MO3(a) on the
basis of the information given by appellants 1 and 2. Hence, this Court
is of the view that appellants 1 and 2 are responsible for causing injuries
on PW1.
12. On analyzing the entire evidence this Court finds that
appellants 1 and 2 are found guilty of the offences punishable under
section 324 read with section 34 IPC and they are convicted thereunder.
The evidence of PW12 doctor would show that except injury Nos.1 and
2 noted in Ext.P5 wound certificate, no other injuries were noted by the
doctor at the time of examination. Hence, the prosecution has not
succeeded in proving the offences alleged against appellants 3 to 5
beyond reasonable doubt. Accordingly, they are not found guilty of the
offences as alleged by the prosecution. Therefore, the conviction and
sentence awarded against the appellants 3 to 5 are set aside and they are
acquitted.
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13. In the above circumstances, sentence of simple imprisonment
for one month each to appellants 1 and 2 and a fine of Rs.15,000/-
each under section 324 read with section 34 IPC will meet the ends of
justice. Hence, appellants 1 and 2 are sentenced to undergo simple
imprisonment for one month and to pay fine of Rs.15,000/- each and in
default to undergo simple imprisonment for six months each under
section 428 Cr.PC.
The appeal is partly allowed.
K. Thankappan,
Judge.
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K. Thankappan,J.
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Crl.A. No. 573/2005
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Judgment
20-2-2007