IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL.A.No. 1427 of 2003()
1. RAJU @ KADIYAN RAJU, S/O. MATHEW,
... Petitioner
2. BAIJU @ BAIJU ANNAN S/O. VARGHESE,
3. RATHI @ RATHEESH S/O. KARUNAKARAN,
4. SUDHI S/O. BALAN, VALIYAPARAMBIL HOUSE,
5. BAIJU @ THATHA BAIJU S/O. KUTTAN,
6. SHAJU S/O. BABY, ATHIPPARAMBIL HOUSE,
7. JAISON @ VELLA JAISON S/O. KOCHAPPAN,
Vs
1. STATE OF KERAL, REPRESENTED BY THE
... Respondent
For Petitioner :SRI.P.G.SURESH
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice V.RAMKUMAR
Dated :01/12/2009
O R D E R
V. RAMKUMAR, J.
= = = = = = = = = = = = =
Crl.Appeal.No.1427 of 2003
= = = = = = = = = = = = = =
Dated this the 1st day of December, 2009
JUDGMENT
In this appeal filed under Section 374(2) Cr.P.C,
accused Nos.1,2,4 to 6,10 and 12 in S.C. No.284 of 1999 on
the file of the Addl. Sessions Judge Fast Track-II(Adhoc),
Thrissur, challenge the conviction entered and the
sentence passed against them for offences punishable under
Sections 143, 148, 323, 324, 325 and 307 read with 149
IPC.
THE PROSECUTION CASE
2. The case of the prosecution can be summarised
as follows:-
On the Thiruonam day in the year 1997, CW5
(Ajayan) and CW7 (Sadanandhan) along with A3
(Baijulal) (who died pending trial) were playing cards to
make excessive profit out of that. In the dispute
arising out of the said game, A1 to A14 formed
themselves into an unlawful assembly the common
Crl.Appeal.No.1427 of 2003
2object of which was to take revenge against CW5 and
others. Accordingly, A1 to A14 at about 6.30 pm on
16.09.1997 in front of the residential house of
Chandran (CW4) father of CW5,CW7,PW1(Vijeendran)
and bearing building No.VI/24 of Nadathara Panchayat
in Polukara armed with deadly weapons such as swords,
criminally trespassed into the courtyard of the said
house and A1 uttering to kill PW1, dealt a blow on the
right side of his head, cutting his right ear with MO1
sword, A2 cut wounded PW1 on the middle of his head
with MO2 sword in the course of which CW3(Ajitha) the
wife of PW1 also sustained an injury on her nose and A3
kicked CW4(Chandran) on his right leg and pushed him
to the ground on account of which CW4 sustained a
fracture to the bone of his right leg and the other
accused persons kicked and fisted CW5(Ajayan) and
PW8(Ajish) a neighbour. The accused persons have
thus committed offences punishable under Sections
Crl.Appeal.No.1427 of 2003
3
3. The 3rd accused Baijulal died before trial. He
was murdered by somebody. Accused Nos.1,2 and 4 to 14
alone stood trial before the court below.
THE TRIAL
4. On the accused pleading not guilty to the charge
framed against them by the court below for the
aforementioned offences, the prosecution was permitted to
adduce evidence in support of its case. The prosecution
altogether examined 14 witnesses as P.Ws 1 to 14 and got
marked 12 documents as Exts. P1 to P12 and 5 material
objects as MOs. 1 to 5.
5. After the close of the prosecution evidence, the
accused were questioned under Sec. 313 (1)(b) Cr.P.C. with
regard to the incriminating circumstances appearing
against them in the evidence for the prosecution. They
denied those circumstances and maintained their
Crl.Appeal.No.1427 of 2003
4
innocence.
A1 had the following to submit before the court:-
Accused persons are all BJP workers. The
prosecution witnesses are members of DYFI. The
witnesses have political animosity against the accused
persons. Radhakrishnan, Circle Inspector of Police
(CW6) has personal animosity towards the 1st accused.
One day the Police had taken him into custody from the
premises of the Sessions Court. His father had filed a
petition before the High Court against the Police. In
that case the Police had tendered unconditional apology.
At that time a threat was made that he would be falsely
implicated in a case. The present case was foisted out
of the said enmity and political hostility. He is innocent.
The other accused persons also alleged that they were
falsely implicated in this case out of political vendetta.
6. Since this was not a case of no evidence for the
prosecution, the court below did not record an order of
acquittal of the accused under Section 232 Cr.P.C. When
Crl.Appeal.No.1427 of 2003
5
the accused were called upon to enter on their defence the
accused produced Ext.D2 certified copy of the order dated
12.11.1997 of this Court in Crl.R.P.No.852 of 1997 as per
which the Circle Inspector of Police, Town East Police
Station, Thrissur tendered unconditional apology for the
arrest of the 1st accused herein.
7. The learned Sessions Judge, after trial, as per
judgment dated 21.07.2003 acquitted accused Nos.7, 8, 9,
11, 13 and 14 but convicted accused Nos.1, 2, 4 to 6 and 10
to 12 (appellants herein) for the aforementioned offences.
For the conviction under Sections 143,148,323,324,325 and
307 IPC, each of the appellants was sentenced to rigorous
imprisonment for 1 month, 1 year, 6 months, one year, 2
years and 3 years respectively, in addition to a fine of
Rs.10,000/- each for the conviction under Section 307 read
with 149 IPC. On default to pay the fine each of the
defaulting accused was directed to undergo rigorous
imprisonment for one year. From out of the fine amount a
Crl.Appeal.No.1427 of 2003
6
sum of Rs.7,500/- each was directed to be paid to PW1 as
compensation under Section 357(1)(b) Cr.P.C. It is the said
judgment which is assailed in this appeal.
8. I heard Advocate Sri.P.G.Suresh, the learned
counsel appearing for the appellants as well as the learned
Public Prosecutor.
9. The only point which arises for consideration in
this appeal is as to whether the conviction entered and the
sentence passed against the appellants are sustainable or
not ?
The Point:-
THE PROSECUTION WITNESSES
10. P.W.1 (CW2) (Vichitran) is one of the injured
persons in the occurrence. He is not the 1st informant in
the case.
11. P.W.2 (CW10) Sudhakaran is an independent eye
witness. He is a resident of Polurkara and a friend of PW1.
According to him he came to the house of PW1 as the
Crl.Appeal.No.1427 of 2003
7
latter was going to Mysore that night. He claims to have
seen the occurrence from the paramba situated to the south
of PW1’s house.
12. PW3(CW1) Thankamani is the mother of PW1.
She is the 1st informant in this case. Ext.P1 is the First
Information Statement given by her to PW11 the Sub
Inspector of Ollur Police Station, at about 7.30 p.m on
16.9.1997 from her residence.
13. PW4 (CW12)(Anthony) is a witness to Ext.P2
scene mahazar prepared by the Investigating Officer. He
turned hostile to the prosecution.
14. PW5 (CW14) (Gopalan) is a witness to Ext.P2
Seizure Mahazar. He has proved the recovery of MO3 from
the scene of occurrence.
15. PW6 (Dr.Rafeeque of Medical College Hospital,
Thrissur) proved Ext.P3 Wound Certificate of PW1 who was
examined by him at 7.45 p.m on 17.9.1997. the alleged
cause stated to the Doctor was the following:-
Crl.Appeal.No.1427 of 2003
8
” ”
The following are the injuries noted by PW6.
“Incised wound extending from right
Zygotic region involving right pinna extending
up to neck 15 cm below mastoid. Wound is one
inch deep. 7 cm cut on scalp mid line. 3 to 5
cm lacerated wound on temporal region.”
16. PW7 (Dr.Shibu Abraham, Lecturer in Ortho,
Medical College Hospital, Thrissur) proved Ext.P4 Wound
Certificate of Chandran (CW4) husband of PW3. The said
doctor examined CW4 at 8.30 p.m on 16.9.97 with the
complaint that he was assaulted by many people. The injury
noted was a fracture of 2nd metatarsal of right feet. PW7
also proved Ext.P5 Wound Certificate pertaining to CW5
(Ajayan) who is one of the brothers of PW1. The doctor who
had examined CW5 was Dr.Koshy George(CW24) was not
available and his handwriting and signature were familiar
to PW7. CW5 was examined by Dr.Koshy George at 8 p.m
on 16.9.97 and the history stated was alleged assault at
Crl.Appeal.No.1427 of 2003
9
about 7.15 p.m on 16.9.1997.
17. PW8 (CW6) Ajish is another injured witness. He is
also a resident of Polukara and was allegedly visiting PW1
who was going to Mysore that night. He was allegedly
returning from underneath the Banyan tree where they
used to play the game of playing cards.
18. PW9 (CW15) (Sathyajith) was an attestor to Ext.P6
seizure mahazar dated 18.9.1997 as per which MO1 sword
and MO1(a) sheath were recovered by PW11 at 5.15 p.m
consequent on the confession made by A1.
19. PW10(Baiju)(CW16) was cited to prove the
recovery of MO5 blood-stained shirt of A8 as per Ext.P8
Mahazar prepared by PW11. However, this witness turned
hostile to the prosecution.
20. PW11(Chakunni) is the Sub Inspector of Police,
Ollur Police Station. He recorded Ext.P5 First Information
Statement of PW3 from her house at 7.30 pm on 16.9.1997
and also took into custody MO3 sword which was lying at
Crl.Appeal.No.1427 of 2003
10
the scene of occurrence. It was this officer who recovered
MO1 sword and MO1(a) sheath as per Ext.P6 Mahazar
pursuant to the confession of A1.
21. PW12 (M.R.Maniyan) (CW27) was the Circle
Inspector of Police who questioned A2 and on the strength
of his confession recovered MO2 sword as per Ext.P11
search list. He had sent Ext.P11 search memorandum prior
to the search of the house of A2.
22. PW13 Baby (CW18) was a witness to Ext.P11
search list prepared for the recovery of MO2 sword from
A2. He turned hostile to the prosecution.
23. PW14(Joby)(CW17) was a witness to Ext.P11
search list. He also turned hostile to the prosecution.
EYE WITNESSES’ ACCOUNT
24. Out of 14 witnesses examined by the prosecution,
PWs 1 to 3 and 8 are the occurrence witnesses of whom
PWs 1 and 8 are the injured. The testimony of PW1 who
was the main target of attack and who sustained the graver
Crl.Appeal.No.1427 of 2003
11
injuries is to the following effect:-
He is a goldsmith by avocation. He belongs to
Polukkara. About five months prior to the occurrence, he
and his wife Ajitha (CW3) had gone to Mysore for treating
their deaf and dumb daughter. They came home to the
native place in connection with onam. The occurrence took
place on 16.09.1997 which was the third onam day. The
time of occurrence was about 6.30 p.m. In their house at
Polukkara, his father Chandran (CW4), mother Thankamony
(PW3) and brothers Sadanandan (CW7), Ajayan (CW5),
himself, his younger brother Vinod are the inmates. Besides
them, the wives of his two elder brothers are also residing
in that house. PW1, his elder brother Ajayan (CW5) and
neighbour Ajeesh (PW8) were engaged in pleasantries in
the front varandah of their house. He was supposed to
return to Mysore in the bus starting at 9.30 in the night.
His parents were standing in the front courtyard. Their
house is facing west. At that time, about 10 or 11 assailants
Crl.Appeal.No.1427 of 2003
12
from west came running to their house. They were in a
belligerent mood. As soon as they came, Byju Lal (A2)
kicked his father Chandran (CW4) on his right leg and his
father fell down. Byju Lal is now no more since he was
murdered by somebody. As soon as his father fell down,
PW1 and others went to the rescue of their father. At that
time, A1 to A4 took out this swords which they had hidden
under their shirts. He knows all those four accused
persons. Seeing the weapons, he got frightened and ran
towards the back side of the house through the southern
portion of the house. The four persons who are armed with
swords(A1to A4), chased him. Immediately behind him was
A1 Raju. While running for his life, A1 cut him with MO1
sword on his right ear resulting in a portion of the pinna
shearing from its position and dangling. From the back side
of the house, he ran eastwards. After jumping over the
water channel, he fell into the yam cultivation( ).
At that time, A4, A3 and others fisted and kicked him.
Crl.Appeal.No.1427 of 2003
13
(witness identified A5, A6 and A8 also) His mother (PW3)
and sister Latha (CW8) came to his rescue. At that time,
the assailants withdrew from the scene. He was carried to
the front portion of the house and made to see there. His
wife also came to console him and attended on him. At that
time, suddenly A2 emerged there with a sword and cut him
on the head twice. One of the blows struck the nose of his
wife who sustained an injury to her nose. The sword
wielded by A3 was lying on the ground. All the assailants
then ran towards the west. Thereafter, PW8 and PW1’s
brother Ajayan (CW5) came there. The leg of PW8 was seen
injured. There was an abrasion on the leg of CW5 as well.
His father was complaining of pain at the ankle. Somebody
took them to the hospital. A1 had cut him on the right ear
by shouting that he will kill him. Sometime prior to the
occurrence, there was some quarrel among his brother
Ajayan (CW5), (PW8) and few others who were playing
cards. The occurrence took place pursuant to the said
Crl.Appeal.No.1427 of 2003
14
incident. He had given a statement to the police. MO1 was
the sword along with its sheath wielded by A1. MO2 was
the sword used by A2. The bigger sword which was lying
on the ground at the rescue of crime was MO3. Altogether
five persons including him were injured in the occurrence.
It is not correct to say that the occurrence took place at
7.15 p.m. or that darkness had set in from 5.30 onwards.
All the five injured persons were taken to the hospital
together. He might have told the doctor that identifiable
persons came to his house and cut him. He cannot
remember what he is told the doctor since his mental
condition at that time was very precarious. It was not even
sure whether he would survive or not. The majority of
improvements on the rear side of his house are coconut
trees. The distance of the yam cultivation would be around
150 metres from the house. The accused persons used to
come to Polukkara even before. They came to his house only
on the date of occurrence. He does not know what
Crl.Appeal.No.1427 of 2003
15
happened at the place where cards were played. He does
not know the persons with whom Ajayan and PW8 picked up
quarrels. The first cut was received by him while he was
running towards northern direction by the side of his house.
After running northwards, he ran towards the east. It was
at a point on the eastern side of the house that he received
the first cut on the right ear. The second cut was received
by him from the front portion on the western side of the
house. He does not know whether himself and his family
members are sympathisers of Marxist party. He also does
not know whether there used to be clashes between the
Marxist and the R.S.S people in that locality since he was in
Mysore. He does not know as to how his brother Ajayan
and neighbour PW8 sustained injuries. He has not shown
the assailants to the police nor had the police shown them
to him. He had told the doctor that identifiable persons had
done this to him. All the four accused persons were
wielding swords. He had told the police that A1 to A4 had
Crl.Appeal.No.1427 of 2003
16
chased him and it was while running that he was cut on his
ear from behind. When his mother and sister came, the
assailants had withdrawn. Thereafter, when he was carried
to the western side of the house, the assailants re-appeared
there and it was while his wife was attending on him that he
was cut again with MO2 sword which had struck his wife’s
nose as well. He sustained two cut injuries on his head. It
is only for the past one year that he is a member of the
Marxist party. He does not know whether the accused are
B.J.P – R.S.S people. Even when the swords were shown to
him by the police, there was blood marks on them. It is not
correct to say that it was dark at the time of occurrence. It
is also not correct to say that he was giving the names of
persons as dictated to him by the party people out of
political enmity.
25. P.W.2 (Sudhakaran) who is also a goldsmith by
avocation is a resident of Polookara. He is a friend of
P.W.1 for the past 21 years. The main part of his
Crl.Appeal.No.1427 of 2003
17
testimony is as follows:-
The occurrence took place on the third onam
day. When he reached P.W.1’s house between
6 and 6.30 p.m. the assailants had collected
there armed with weapons and so he did not
go near them. Then he saw Ajayan (CW5),
Sadanandan (CW7) and Ajeesh (P.W.8)
running and P.W.1 also running behind them.
A1, A2 and A4 who were armed with weapons
chased them shouting that they will kill him.
Then A1 cut P.W.1 on his right ear and the ear
lobe was cut and a piece was dangling. P.W.1
ran and fell in the yam cultivation. A1, A2 and
A4 fisted P.W.1 who was lying in the yam
cultivation. P.W.1 was carried to the front
courtyard by his mother and sister. His wife
came and sat beside him. By that time A2
suddenly emerged with a sword in his hand
Crl.Appeal.No.1427 of 2003
18
and cut P.W.1. In that blow the sword struck
the nose of P.W.1’s wife causing an injury. By
the time people gathered there the assailants
made good their escape. Sadanandan (C.W.7),
Ajesh (PW8) and Vadakkan Sathyan were the
persons who came there. There was an injury
on the leg of P.W.8 and PW8 told him that it
was sustained with the sword of A3. PW2
also identified A12, A6 and A5 also among the
assailants. When he went to the house of P.W.1
on that day besides the inmates of the house,
there were 5 to 8 persons. He is a Marxist
sympathiser for the past 20 years. He was
present when P.W.3 the mother of P.W.1 gave
statement to the police. After the occurrence
he hired a car and took the injured persons to
the hospital, He spent the whole night in the
hospital. P.W.1’s brother Ajayan (CW5) ,
Crl.Appeal.No.1427 of 2003
19
Ajitha and Ajeesh (P.W.8) were taken to the
hospital. Chandran, the father of P.w.1 was not
taken to the hospital. All the four injured
persons were examined by the doctor. He
was present when P.w.1 was examined by the
doctor. P.W.1 was in his senses and was able to
speak. P.W.1 also told the doctor about the
injuries. The house situated to the south of
P.W.1’s house is that of one Pappan Sankaran .
He does not know whether the said Sankaran
was at home at that time. He had got into the
paramba of the said Sankaran. There are trees
like coconut, areacanut, jack fruit etc, in that
paramba. It is possible to see the occurrence
from the house also. He had remained in that
paramba for 10 minutes. At that time, neither
P.W.1 nor his family members had seen him.
Besides the house of Sankaran, there are
Crl.Appeal.No.1427 of 2003
20
several houses in that locality. The house of
P.W.1 is facing west. It was a forceful cut.
The assailants chased PW1 for about 200
metres. His wife and sister had run behind
the assailants. It was seeing the sword that
they got scared and ran. C.W.7 and others
were running along the side of the house.
After P.W.1 was brought the assailants came
back. The parents of P.W.1 were on the
western side of the house at the beginning of
occurrence. Ajayan and P.W.8 had run along
with Sadanandan. It was not dark at the time
of occurrence. It is only by 7.15 that it would
become dark. It was the Sub Inspector who
recorded the statement of the mother of P.W.1.
He does not know whether P.W.1 was the
Marxist worker. He is a friend of P.W.1 for the
past 21 years. He is not telling falsehood in
Crl.Appeal.No.1427 of 2003
21
view of his friendship with P.W.1.
26. P.W.3 (Thakamani) is the mother of P.W.1. She
is the first informant as well. At the time of her
examination of 20-12-2003 she was aged 62 years. Her
deposition is to the following effect:-
She is a resident of Polookkara. The
occurrence took place at 6.30 p.m. on the 3rd
Onam day. Herself and her husband
(Chandran – CW4) were standing on the front
courtyard. Her sons Sadanandan (CW7),
Vichithran (P.W.1), Ajayan (CW5) and her
neighbour Ajeesh (P.W.8) were talking in the
front veranda. While so, some persons came
from the west armed with sticks and swords.
There were about 10-14 assailants. Byjulal
kicked her husband on his leg and he fell
down. Byjulal is now no more. When she
cried aloud her sons came to the courtyard. At
Crl.Appeal.No.1427 of 2003
22
that time Byjulal (A3), Rethi (A4), etc, took out
their swords. Two more persons took out
the swords hidden inside their shirt. Seeing
this, her sons got frightened and they started
running. The four assailants chased them.
She and her daughter also went behind them
in a frightened mood. When she reached there
her son P.W.1 was lying in the yam
cultivation situated near the water channel
and about 5 or 8 persons were kicking and
beating him. They include A6, A2, A4 and A1.
She does not remember others as she was in
a perplexed mood. When she and others
raised a hue and cry the assailants withdrew
from the scene. She and her daughter carried
P.W.1 to the foot steps on the western side of
the house and made him sit there. By that
time P.W.1’s wife Ajitha also came to his
Crl.Appeal.No.1427 of 2003
23
rescue. Suddenly three or four assailants who
had withdrawn earlier emerged there. A2 cut
P.W.1 on the head. His wife sustained an
injury on her nose. She does not know as to
what happened thereafter. The assailants
went towards the west. P.W.1’s right ear was
dangling. The Police came and she uttered
something. Ext.P1 is that statement. She does
not know as to what all matters were stated to
the police. She was not knowing whether her
son was alive and what happened to her
husband. She was completely put out. It is
not correct to say that the statement given to
the police was in accordance with the advice
given by the local Marxist leaders. No party
men had come there. She does not remember
whether she had seen A3 alone taking out the
sword from inside his shirt. The occurrence
Crl.Appeal.No.1427 of 2003
24
was from the yam cultivation. P.W.1 was at
the extreme rear. All others had run
together. She herself and her daughter had
run behind them. While P.W.1 was lying after
sustaining the cut he had told that he was cut
by Raju (A1). He again repeated the same
while he was brought from the yam
cultivation. Her son Sadanandan plays cards.
She does not know whether on the date of
occurrence he had gone for playing cards or
whether he had picked up any quarrel. She
has not given Ext.D1 statement as per which
she was told that Byjulal , Rethi, Kadiyan Raju,
Rethilal, Thatha Baiju, Sudhi, Vettikka Raju,
Kannan, Dixon, Jobby and Shaju etc. are the
persons who had come to her courtyard and
assaulted her children. When people started
gathering Byjulal (A3) dropped the sword on
Crl.Appeal.No.1427 of 2003
25
the courtyard and ran westwards. Her son
was not able to speak properly from the
hospital. His speech was incoherent. When
she saw P.W.1 his ear was hanging and it was
bleeding. She does not remember the
occurrence fully. The occurrence was at 6.30
p.m. and not at 7.15 p.m. There was sufficient
light. The person residing in the southern
house is Sankaran who is the younger brother
of her husband. The inmates of Sankaran’s
house were in that house on that day. There
is only one house situated close to her house.
There are only a few houses in that area and
she did not see whether any of them had
witnessed the occurrence. Ajitha was in the
hospital and she had six stitches.
27. The only other eye witness (P.W.8) was also injured
. He along with C.W.5 (Ajayan) were there beneath the
Crl.Appeal.No.1427 of 2003
26
banyan tree where people were playing cards. while the
card game was going on, A3 and A4 insisted that they also
should be allowed to play the game. P.W 8 and others
refused. Then A3 and A4 asked them to stop the game.
They discontinued the game and disbursed. P.W.8 along
with C.W.5 then went straight to the house of P.W.1. They
were sitting in the front portion of P.W.1’s house. The
assailants came there. The parents of P.W.1 were also
there. A3 came and kicked C.W.4 (Chandran) on his leg.
The bone cracked. C.W.4 fell down. P.W.8 and others went
to the rescue of Chandran. At that time A1 and A2 took out
the swords which they had concealed in their shirts. Seeing
this, all of them ran. P.W.8 was in the front and behind him
the brother P.W.1 was running. P.W.1 was the last man.
The assailants were chasing them from behind. There were
three or four persons. When he looked back, he saw A1
cutting P.W.1 from behind. In the meanwhile P.W.8
stumbled upon the ridge and fell down. At that time A3 and
Crl.Appeal.No.1427 of 2003
27
others came running and he sustained an injury on his leg
with the tip of the sword in their hands. Seeing that they
were fast approaching he got up and ran away. When he
reached home after some time he saw P.W.1 had been
wounded. P.W.1 told him that A2 had cut him near his ear.
They went to the hospital. He had no serious injury which
required treatment. MO1 is the weapon used by A1 (Raju).
His house is about 200 metres away. P.W.1 was going to
Mysore that day and the child of P.W.1 was sick that was
the reason why he went there. By the time he returned
after the occurrence it was about 7.15 p.m. and darkness
had set in. He had run for about 1 km. When he
returned P.W.1 was in his senses and was able to walk and
speak. There are 7 persons residing on the four sides of
P.W.1’s house. He knows those neighbours. When he
returned, neighbours like Subramonian, Suran, Asokan and
Raju were in his house. He does not know whether they
are Marxist party workers. That was a card game by
Crl.Appeal.No.1427 of 2003
28
name 56. There are altogether 8 players. There was a
quarrel between those 8 persons. P.W.1 and his brother
were also there. That was at about 5 p.m. The water
channel is to the east of the yam cultivation. There is no
water channel to its west. P.W.1 sustained the injury from
the yam cultivation. It may be about 100 or 150 metres
away from the house. The persons who picked up quarrels
in the card game were Byju and Ratheesh (A3 and A4). The
total extent of P.W.1’s property would come to 3-4 acres.
There are houses of Sankaran and Kesavan in the
neighbourhood.
ARGUMENTS ON BEHALF OF THE APPELLANTS
28. The learned counsel appearing for the appellants
made the following submissions before me in support of his
fervent plea for acquittal of the appellants:-
A)The specific case of the prosecution is that the
Crl.Appeal.No.1427 of 2003
29
occurrence took place at 6.30p.m when there was
sufficient light. According to PWs.1 and 2, the
occurrence was between 6 and 6.30 p.m and
according to PWs.3 and 8 occurrence was at 6.30 p.m.
But in Ext.P1 First Information Statement the time of
occurrence is stated as 7.30 p.m. There has been a
deliberate attempt to prepone the occurrence so that
the failure to offer an explanation regarding the
source of light could be explained away. There is
absolutely no evidence adduced regarding the source
of light in which the witnesses had seen the
occurrence. From Ext.P5 wound certificate
pertaining to Ajayan (CW5), it can be seen that the
alleged assault was at 7.15p.m when it would be dark.
The fact that the occurrence took place after dark is
also indicated by the testimony of PWs.1 and 8 who
say that MO1 sword was shining.
B) The testimony of PW3 (Thankamani) cannot be
Crl.Appeal.No.1427 of 2003
30
believed for a moment. Going by Ext.P1 First
Information Statement given by her to PW11, it would
appear as though she had witnessed the entire
occurrence right from the beginning till the end. Her
case in Ext.P1 First Information Statement is that it
was A3 who cut PW1, CW3 and PW8. But while in the
witness box PW3 does not mention about this part of
the occurrence as stated in Ext.P1. The testimony of
PW3 is fraught with irreconcilable contradictions,
omissions and exaggerations. PW3 has denied
Ext.D1 contradiction in Ext.P1 First Information
Statement wherein the names of A3, A4, A1, A8, A6
and A5 and one Nellikka Baiju, A11, A7,A9 and A10
had been mentioned. But in Court she deposed that
she did not mention their names. It will be unsafe to
rely on the testimony of such a witness to confirm the
conviction against the appellants.
C) While according to PW1 and PW8, A1 to A4 did not
Crl.Appeal.No.1427 of 2003
31
initially reveal the weapons which they were hiding in
their shirts, according to PW3 a few persons armed
with sticks and swords came there from the western
side.
D) The testimony of PWs.1,2 and 8 also suffers from
contradictions, omissions and embellishments.
PWs.1,2 and 8 are all goldsmiths interested in
supporting the prosecution at any cost. PW2, who
claims to have seen the occurrence from the paramba
situated to the south of the house of PW1 could not
have seen the occurrence since there were so many
trees preventing vision. His presence at the place
itself is doubtful. These witnesses who are all active
workers of the BJP-RSS in that locality were falsely
implicating the appellants from out of political
antagonism.
E) The motive put forward by the prosecution is also
totally unbelievable. In the final report what is
Crl.Appeal.No.1427 of 2003
32
alleged is that the animosity was on account of the
dispute at the place where cards were played at 5 p.m
on the same day. What exactly was the dispute is not
stated. While according to PW1 he was not present
at the site below the Banyan tree where the cards
were being played, the evidence of PW8 would go to
show that PW1 and his brother were also there at the
place where the card game was played. According to
PW8 while they were playing cards A3 and A4 came
there and asked to include them also in the game and
they were not allowed. Thereupon, they asked the
players to stop the game and the players discontinued
the game and went away. At any rate, there is no
evidence to show that any of the accused had any
motive against PW1 or others so as to proceed to their
house armed with deadly weapons and mount an
attack against the members of the family.
F) PWs.1,2,3 and 8 did not have previous acquaintance
Crl.Appeal.No.1427 of 2003
33
with any of the assailants . Hence, dock identification
for the first time in court after 6 years of the
occurrence is absolutely valueless. Even in Ext.P1
First Information Statement what PW3 had stated is
that the assailants are identifiable by sight. Such a
woman could not have identified the assailants for the
first time in court after 6 years.
G) Ext.P2 Scene Mahazar shows that the house of one
Sankaran S/o.Kunjappan is situated only 18.30 meters
to the south-east of the house of PW1 and the house
of one Subramanian s/o.Velayudhan is situated at a
distance of 11.55 meters to the north-west of the
house of PW1 and the house of one Shaju s/o.Kesavan
is situated at a distance of 23.10 meters to the north
of the house of PW1, the house of Subran, son of
Kesavan is situated at a distance of 25 metres further
north. PW3 deposed that Sankaran residing in the
southern house was available in his house. In spite of
Crl.Appeal.No.1427 of 2003
34
that none of the nearby residents has been cited as
witnesses to the occurrence. Latha (CW8) who was
in the company of PW3,Ajitha, (CW3) who was injured
during the 2nd attack, Chandran (CW4) who sustained
a fracture on his right leg, Ajayan(CW5) another
injured witness, Sadanandhan CW7 and 2
independent witnesses Sathyan (CW9) Anil Kumar
(CW11) etc. have all been kept out of the witness box.
Instead, persons who were either closely related to
PW1 or his close friends alone have been examined as
witnesses to the occurrence.
H) Eventhough PW1 claims to have known the
assailants even before the occurrence what was
stated to the doctor at 7.45 p.m on 16.9.1997 as
evidenced by Ext.P3 wound certificate is that a
person identifiable by sight came to his house and cut
him. Failure to mention the names of the assailants to
the doctor is a serious flaw.
Crl.Appeal.No.1427 of 2003
35
I) Eventhough, according to the prosecution witnesses,
4 of the assailants were armed with swords, 3 swords
alone have been produced before court. MO1 is the
sword which was allegedly used by A1 and seized as
per Ext.P6 mahazar in which it is recited that there
were blood stains on the sword. Likewise, MO5 is the
blood stained dress worn by A8 and recovered as per
Ext.P8 mahazar. MO2 sword was recovered by
PW12 as per Ext.P11 seizure mahazar pursuant to the
confession by A2. The said sword is described as
smeared with blood. PW1 has admitted that one of
the swords shown to him by the Police had blood
smears. PW11, the Investigating Officer has
admitted that the swords and MO5 dress were not
sent for chemical examination to confirm the presence
of blood on those material objects. This is also a
serious flaw, the benefit of which should undoubtedly
go to the accused.
Crl.Appeal.No.1427 of 2003
36
J) The alleged confession made by A1 to PW11 is
neither extracted in Ext.P6 Mahazar nor deposed to
by PW11 while giving evidence. Likewise, the alleged
confession of A2 is neither extracted in Ext.P11
search list in the words of A1 nor was it deposed to by
PW12. Hence, the recovery under Exts.P6 and P11
do not fall under Section 27 of the Evidence Act.
That apart, the confessions of A1 and A2 recited in
third person in Exts.P6 and P11 fall short of the
authorship of concealment. A1 and A2 had not stated
that they had concealed the weapons at the respective
places mentioned. Hence the recovery of MO1 and
MO2 swords does not fall under Section 27 of the
Evidence Act and cannot be relied on.
JUDICIAL EVALUATION
28. I am afraid that I cannot agree with the above
submissions. It is true that all the prosecution witnesses
Crl.Appeal.No.1427 of 2003
37
mentioned that the occurrence took place either at 6 pm
or 6.30 pm, when there would have been sufficient light for
each of them to witness the occurrence. But going by
Ext.P5 wound certificate pertaining to Ajayan(CW5) it is
stated that the assault was at 7.15 pm. As per the
testimony of PW11 (the Sub Inspector) he reached the place
of occurrence within 10 mts of getting information about
the occurrence and the time of occurrence stated by PW3
was 7.30 pm. If so, it is reasonable to infer that the
occurrence might have taken place between 7.15 and 7.30
p.m. It is also true that none of the prosecution witnesses
has deposed about the presence of light at the scene of
occurrence. Except suggesting that it was dark, nobody
was asked by the defence as to whether there was any
source of light enabling them to witness the occurrence. It
is pertinent to note that if the assailants had enough light to
identify their targets and inflict injuries on them using
deadly weapons carried by them, it is futile for the defence
Crl.Appeal.No.1427 of 2003
38
to contend that it was dark and there was no sufficient light
enabling the witnesses to see and identify the assailants. In
State of Uttar Pradesh v. Nahar Singh ( 1998 SCC (Crl)
850) the Apex Court observed that when the light was
enough to enable the assailants to identify their victims it
could not be said that the light was not enough to identify
the assailants. In Kalika Tiwari v. State of Bihar (1997
SCC (Crl)600) the Apex Court observed that the visibility
capacity of urban people who are acclimatised to
fluorescent lights or incandescent lamps is not the standard
to be applied to villagers whose optical potency is attuned
to country-made lamps. The witnesses in this case are all
rustic witnesses and the assailants are also known to them,
though not by name. In fact, PW1 has stated that he had
seen all of them at Polukara and they were coming to his
house for the first time only on the date of occurrence.
30. There is a classic observation by the Supreme
Court in Kedar Singh and Others v. State of Bihar (1998
Crl.Appeal.No.1427 of 2003
39
SCC Crl.907) where the incident took place at 8 p.m. This
is what the Apex Court observed:-
“Even on a full dark night there is never total
darkness. Identification is possible through shape of
body, clothes, gait, manner of walking etc. and also by
voice.”
The assailants in this case are not strangers to the eye
witnesses and they were all used to be traditional native
habits. Hence, the identification of the assailants by the
prosecution witnesses cannot be said to be faulty.
31. No doubt the testimony of PW3 is full of
contradictions, as rightly contended by the learned counsel
for the appellants. Eventhough, she has narrated the
entire occurrence in Ext.P1, F.I.Statement, she has not
stated in Ext.P1 that she had seen the entire occurrence.
The source of her information about the occurrence can be
hearsay as well. For setting the law in motion, one does not
have to be an occurrence witness. PW3 did not narrate
Crl.Appeal.No.1427 of 2003
40
before court most part of the occurrence in which PW1
sustained cut on his right ear. Evidently she has not seen
that part of the occurrence. It must be remembered that it
was without any hint or indication that more than 10
assailants suddenly barged into the compound of PW1
armed with deadly weapons. PW3 and her husband were
standing in the courtyard when the assailants made their
entry. As observed by the Apex Court, every person who
witnesses a ghastly crime reacts in his own way. Some may
be stunned; some become speechless ; some stand rooted to
the spot; some become hysteric and others start wailing.
Some start shouting for help. Still others run away to keep
themselves as far removed from the spot as possible. Still
others rush to the rescue of the victim, even going to the
extent of counter-attacking the assailants. None of these
witnesses can be said to be unbelievable merely because he
or she reacted in a particular way. Everyone reacts in his
own specific way. There is no set rule of natural reaction.
Crl.Appeal.No.1427 of 2003
41
To discard the evidence of the witnesses on the ground that
they did not react in any particular manner is to appreciate
evidence in a wholly unrealistic and unimaginative way.
See Rana Pratap and others v. State of Haryana (AIR
1983 SC 680)
32. When the assailants in this case made their entry
into the compound towards dusk, PW3 and her husband
and other family members were in relaxed mood. Seeing
the sudden emergence of the assailants she must have been
dumb founded and stunned. The occurrence was then
taking place in quick succession and PW1 cannot be
expected to recall each of the sequence of events,
particularly when she was giving evidence 6 years after the
occurrence. Even if she were physically present at the spot
it may not be possible for her to register each and every
episode, retain the same and recapitulate either to the
police officer sooner or later or depose before court years
thereafter. Hence, the testimony of PW3 cannot decide the
Crl.Appeal.No.1427 of 2003
42
fate of the prosecution in this case.
33. PWs.1,2 & 8 who are the other eye witnesses to
the occurrence have given a credible account of the
occurrence. No doubt, there are contradictions, omissions
and exaggerations in their testimony as well. Such
contradictions, omissions, exaggerations, embellishments
etc. are bound to happen even in the case of the most
truthful witnesses. As long as those aspects do not affect
the main core of the testimony, such contradictions,
omissions, exaggerations and embellishments are liable to
be discarded by the courts while appreciating the evidence.
The testimony of these 3 witnesses clearly shows that at
about day break on that day, more than 10 assailants
suddenly barged into the compound of PW1. Among them
A2 first set upon Chandran, the father of PW1 by kicking on
his right leg. The blow was so heavy that he fell down
sustaining a fracture of 2nd metatarsal of right foot as
evidenced by Ext.P4 wound certificate proved by PW7.
Crl.Appeal.No.1427 of 2003
43
When PW1 and others went to the rescue of their father,
A1 to A4 took out the deadly swords which they were hiding
in the shirts worn by them. Thereupon sensing danger
PW1, his brothers and others including PW8 who was a
neighbour talking with them, took to their heels. PW8 was
in the front and PW1 was the last man. The assailants,
mainly A1 to A4 chased them with the deadly weapons in
their hands. PWs.1 and 8 and others were taking a course
towards the yam cultivation on the eastern side of the
house. On the way A1 cut PW1 on the right ear resulting in
PW1 sustaining a bleeding injury. His right pinna was cut
and the piece of the pinna was dangling. PW1 after
receiving the cut ran further and he jumped over the water
channel and fell into the yam cultivation, which going by
Ext.P2 scene mahazar, is situated 78.80 metres away at
the back of the house. When the mother(PW3) and the
sister (CW8) of PW1 came to the spot raising a hue and cry,
the assailants withdrew from the spot . Wounded PW1 was
Crl.Appeal.No.1427 of 2003
44
brought to the front portion of the house and made to sit
there. His wife Ajitha(CW3) came and started bringing
succor to him. It was at that time that suddenly A2 and
others emerged at the spot and mounted a fresh attack on
PW1 again by A2 cutting him with MO2 sword on the head
twice in the course of which the tip of the sword hit the
nose of his wife Ajitha(CW3). She also sustained an injury.
When people started pouring in, the assailants made good
their escape through the western side after A3 leaving MO3
sword at the place of occurrence and it was subsequently
seized by PW11, the Investigating Officer at the time of
preparing Ext.P2 scene mahazar. This aspect of the
occurrence is amply proved by the testimony of PW1, 2 and
8.
34. It is true that the prosecution has not examined all
the injured persons and all the persons who were witnesses
to the occurrence. The prosecution has no duty to examine
each and every eye witness and each and every injured
Crl.Appeal.No.1427 of 2003
45
person. It is a discretion available to the Public Prosecutor .
When the entire occurrence has been unfolded through the
testimony of PWs,1,2,3 and 8, the Public Prosecutor in
charge of the case might have used his discretion by not
examining the rest of the injured persons. It must be
remembered that PW1 is the person who sustained the
major injuries as revealed by Ext.P3 wound certificate.
Hence the prosecution has chosen to examine him. It
cannot be said that the discretion was improperly exercised.
35. Failure by PW1 and others to mention the name
of the assailants to the doctor also cannot be taken
advantage of by the defence to contend that the prosecution
case is to be thrown out. Failure by the injured to mention
the name of the person who stabbed him does not mean
that he was not aware as to who stabbed him. It is a matter
of common knowledge that such an entry in the wound
certificate does not necessarily amount to a statement. At
Crl.Appeal.No.1427 of 2003
46
that stage, the doctor was required to fill up the columns
in the wound certificate in a normal manner and it was not
the duty of the doctor to enquire from the injured about the
actual assailants. Doctor’s enquiry is confined to the
question as to how the injuries namely the weapon used
etc. The paramount duty of the doctor is to save the patient.
He is not concerned about who committed the offence etc.
(See Venkaiah v. State of Andra Pradesh (1985 SC 1715)
and State of Kerala v. Kilakkatha Parambath Sasi and
others (2004(2)KLJ606).
36. It is true that neither the weapons nor MO5 dress
of A8 were sent for chemical examination to confirm
whether they were smeared with human blood. When the
occular and other evidence in the case clearly proves that
the injuries were caused with the weapons produced,
omissions to send the weapon to the serologist to determine
whether the blood on the weapon was human blood or not
Crl.Appeal.No.1427 of 2003
47
cannot put the prosecution case out of court. (See the last
portion of the decision in Ananta Mahanto v/s.State of
Orissa- AIR 1979 SC 1433). Even if the weapons were
sent it could be argued that the serological test could not
locate the origin of the blood or the owner of the blood.
There can be no end for such exercise. At the most, as
observed by the Apex Court in Surendra Paswan v. State
of Jharkand (2003(12)SCC 360) the failure to send the
weapon to the serologist may be a defect in the
investigation, but it does not corrode the evidentiary value
of the eye witnesses. Moreover this is not a flaw in the
investigation which the defence can take advantage of (See
State of Karnataka vs. Yarappa Reddi – 1999(3) KLT 456
(SC).
37. It may be out of ignorance that the exact confession
statements of A1 and A2 have not been extracted in Exts.P6 and
P11. PWs.11 and 12 the investigating officers also did not
depose before Court about the confession of A1 and A2 in their
Crl.Appeal.No.1427 of 2003
48
own words (that is ipsissima verba). But that alone cannot
render the evidence of recovery inadmissible. However, in the
absence of a statement by A1 and 2 that it was they who had
concealed the weapons at the respective places from which the
weapons were recovered, the defence can legitimately contend
that this statement cannot fall under Section 27 of the Evidence
Act, for want of authorship of concealment. Even if those
statements would not fall under Section 27 of the Evidence Act,
the conduct of A1 and A2 leading the Police party to the
respective places and pointing out the weapons will certainly
fall under Section 8 of the Evidence Act and can constitute yet
another piece of incriminating evidence (Prakash Chand v.
State (Delhi Administration (AIR 1979 SC 400) Raveendran
v. State (1989(2) KLJ 534)
38. After a careful evaluation of the oral and documentary
evidence in the case, I have no hesitation to conclude that there
was an unlawful assembly consisting of A1 to A4 and others
formed with the common object of committing offences
punishable under Sections 323,324,325 and 307 IPC and all the
members of the unlawful assembly committed rioting, armed
Crl.Appeal.No.1427 of 2003
49
with deadly weapons, such as swords etc. But at the same time
except statement by PW1 to the effect that A5,A6 & A8 were also
present among the assailants, there is nothing to show that those
persons shared the common object of the said assembly or that
they committed any overt acts. PW2 added the name of A12 also
as one of the persons who was present. PW8, the other eye-
witnesses has not implicated anybody specifically except A1 to
A3. PW3 has implicated A1 to A4 and A6. Hence, it may not be
safe to convict A5,A6,A10 and A12 mainly for their alleged
presence for which also there is no unanimous testimony. But
the existence of an unlawful assembly though not with
A5,A6,A10 and A12 as members was definitely there.
Accordingly, I do not think the conviction recorded against
A5,A6,A10 and A12 is sustainable. Those accused are,
therefore, found not guilty of the offences punishable under
Sections 143, 145, 147, 148, 323, 324, 325 and 307 read with
149 IPC and are acquitted of the same. They shall be set at
liberty forthwith. Since A3 died pending trial, the charge against
him stands abated. In the case of accused Nos.1,2 and 4 who are
appellants 1 to 3, they were rightly convicted by the court below
Crl.Appeal.No.1427 of 2003
50
for the aforementioned offences. The sentence imposed on
them also cannot be said to be harsh or disproportionately
excessive. Accordingly, the conviction entered and sentence
passed against Accused Nos.1,2 and 4 are hereby confirmed.
In the result, this appeal is allowed in part acquitting
accused Nos.5,6,10 and 12, but confirming the conviction
entered and the sentence passed against accused Nos.1,2 and 4.
Dated this the 1st day of December, 2009.
V. RAMKUMAR, JUDGE
sj/rv/ani