{"id":208915,"date":"2008-03-24T00:00:00","date_gmt":"2008-03-23T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/aziz-azi-vs-state-of-kerala-on-24-march-2008"},"modified":"2018-08-17T16:53:29","modified_gmt":"2018-08-17T11:23:29","slug":"aziz-azi-vs-state-of-kerala-on-24-march-2008","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/aziz-azi-vs-state-of-kerala-on-24-march-2008","title":{"rendered":"Aziz @ Azi vs State Of Kerala on 24 March, 2008"},"content":{"rendered":"
Kerala High Court<\/div>\n
Aziz @ Azi vs State Of Kerala on 24 March, 2008<\/div>\n
       \n\n  \n\n  \n\n \n \n  IN THE HIGH COURT OF KERALA AT ERNAKULAM\n\nCRL.A.No. 2170 of 2007()\n\n\n1. AZIZ @ AZI, AGED 38,\n                      ...  Petitioner\n\n                        Vs\n\n\n\n1. STATE OF KERALA, REPRESENTED\n                       ...       Respondent\n\n                For Petitioner  :SRI.B.RAMAN PILLAI\n\n                For Respondent  :PUBLIC PROSECUTOR\n\nThe Hon'ble MR. Justice J.B.KOSHY\nThe Hon'ble MRS. Justice K.HEMA\n\n Dated :24\/03\/2008\n\n O R D E R\n<\/pre>\n
                     J.B. Koshy & K.Hema, JJ.\n<\/p>\n
                 ————————————–
\n               Crl. Appeal No. 2170 of 2007\n<\/p>\n
                —————————————
\n        Dated this the 24th day of March, 2008<\/p>\n
                              Judgment<\/p>\n
Koshy,J.\n<\/p>\n
           A 29 year old youngster was alleged to be murdered in a<\/p>\n
chicken centre run in the heart of Cochin city by the appellant and<\/p>\n
nine others and it created a sensation in the city. Out of the ten<\/p>\n
accused, accused No.4 died before committal of the crime and<\/p>\n
accused No.10 died after committal and eight accused faced trial for<\/p>\n
charges under sections 143, 147, 148, 120(B), 109, 365, 342, 323,<\/p>\n
324 and 302 of the Indian Penal Code read with section 149 IPC.<\/p>\n
Except the first accused, all others were acquitted of all charges and<\/p>\n
appellant  was     convicted    and   sentenced     to  undergo    life<\/p>\n
imprisonment with a fine of Rs.5,000\/- for offence punishable under<\/p>\n
section 302 IPC. He was also convicted and senteced to undergo<\/p>\n
rigorous imprisonment for one year each for the offence punishable<\/p>\n
under sections 323 and 342, three years under section 324 and five<\/p>\n
years under section 365 IPC.      The sentences imposed under the<\/p>\n
above sections were ordered to be run concurrently.<\/p>\n
Crl. Appeal No.2170\/2007                2<\/span><\/p>\n
               2. The charge framed by the court was as follows:<\/p>\n
                       “That you all along with the 4th accused
\n               who is no more, due to your previous enmity
\n               towards deceased Sudheesh, armed with deadly
\n               weapons and forming into an unlawful assembly
\n               entered into a criminal conspiracy to kidnap and
\n               kill Sudheesh by taking him to the Chicken
\n               Centre     of  the   first accused   in  building
\n               No.C.C.63\/1783 and accused Nos.1 and 5 on
\n               4.1.2004 at about 5.30 p.m. riding the motor
\n               cycles bearing Nos.KL-7T\/4637 and KL-11\/G
\n               9836 reached the pathway at Palaparambu road
\n               and forcibly abducted deceased Sudheesh, who
\n               was found there along with charge witness Nos.
\n               2 and 3 and after having taken deceased
\n               Sudheesh thus to the chicken centre run by the
\n               first accused, you all along with deceased 4th
\n               accused wrongfully confined deceased Sudheesh
\n               in the chicken centre and you all kicked,
\n               stamped and man-handled him continuously till
\n               10 p.m. on 4.1.2004 resulting in the fracture of
\n               his ribs and rupture of his lungs and he died due
\n               to the gravity of the injuries sustained by him
\n               and thereby you all committed the offences u\/ss
\n               143, 147, 148, 120B, 109, 365, 342, 323, 324
\n               and 302 r\/w 149 IPC.”\n<\/p>\n
This appeal is filed by the first accused who was convicted and<\/p>\n
sentenced. The State did not file any appeal regarding acquittal of<\/p>\n
the other accused.\n<\/p>\n
               3. PW1, brother of the deceased, gave first information<\/p>\n
statement. According to him, on 4.1.2004 at about 10.30 p.m. a<\/p>\n
friend of the deceased by name Nizar (CW15 – he was not<\/p>\n
examined) telephoned him and told that the deceased was seen<\/p>\n
Crl. Appeal No.2170\/2007           3<\/span><\/p>\n
dead in the shop of first accused at S.R.M. Road. He immediately<\/p>\n
hired a car and went to the above shop along with some of his<\/p>\n
friends. PW1 and his friends entered the shop and found his brother<\/p>\n
lying dead. According to him, a number of visible injuries were also<\/p>\n
seen on the dead body of the deceased. At about 12.30 in the night<\/p>\n
he went to Town North Police Station and gave Ext.P1 first<\/p>\n
information statement. He also identified a pocket diary alleged to<\/p>\n
have been recovered from the first accused at the time of his arrest<\/p>\n
as that belonging to the deceased.       He also deposed that the<\/p>\n
deceased was an accused in a criminal case wherein he is alleged to<\/p>\n
have committed acts of violence in the very same chicken centre.<\/p>\n
In the first information statement, he also stated that A1 to A5 and<\/p>\n
others are the main suspects. PWs 2 and 3 are the friends of the<\/p>\n
deceased. They were examined by the prosecution to prove that<\/p>\n
deceased was found in their company on the evening of 4.1.2004 at<\/p>\n
about 5.30 p.m. when he was kidnapped by accused Nos.2 and 5,<\/p>\n
but, PWs 2 and 3 denied these suggestions and they were declared<\/p>\n
hostile. No part of their examination was helpful to the prosecution.<\/p>\n
PWs 4 and 5 are husband and wife. They are running a petty shop<\/p>\n
adjacent to the railway line from where the deceased was alleged to<\/p>\n
have been adbucted by the assailants.       They were cited by the<\/p>\n
Crl. Appeal No.2170\/2007             4<\/span><\/p>\n
prosecution to prove that they found the deceased being forcibly<\/p>\n
dragged by accused Nos.1 and 5 to the chicken centre of the first<\/p>\n
accused, but, all these witnesses also did not support the<\/p>\n
prosecution and they were also declared hostile.<\/p>\n
               4. PW5 participated in the identification parade. In the<\/p>\n
identification parade, he identified accused No.5, but, he did not<\/p>\n
identify him in the court. PW6 supported to the prosecution to the<\/p>\n
extent that on 4.1.2004 at about 5.30 p.m. he found the deceased<\/p>\n
being forcibly dragged by two persons through the railway line<\/p>\n
adjacent to his residential house.     But, he did not identify those<\/p>\n
persons in court, but, in the identification parade, he identified<\/p>\n
accused Nos.5 and 7. So, his evidence also will not connect the first<\/p>\n
accused, the appellant in this case, with the incident.       PW7 is a<\/p>\n
friend of the deceased. He was examined by the prosecution to<\/p>\n
prove the case that the deceased was forcibly taken to the shop of<\/p>\n
A1 on the evening of 4.1.2004, but, he only deposed before the<\/p>\n
court that he saw two persons dragging the deceased forcibly<\/p>\n
through the railway line.        According to him, one among the<\/p>\n
miscreant was the eighth accused in the dock and he stated that he<\/p>\n
is not in a position to identify the other.      So, PW7 also did not<\/p>\n
identify A1 as the person who has forcibly taken the deceased to the<\/p>\n
Crl. Appeal No.2170\/2007           5<\/span><\/p>\n
chicken shop and he also did not say that the first accused was<\/p>\n
conducting the chicken shop where the deceased was dragged and<\/p>\n
killed.\n<\/p>\n
               5. PWs 8 and 9 were also examined by the prosecution<\/p>\n
to prove its case that the accused was the owner of the shop at<\/p>\n
S.R.M. Road. They did not support the prosecution case before the<\/p>\n
court and they failed to identify the persons     who dragged the<\/p>\n
deceased. PW8 identified A5, A7 and A8 in the test identification<\/p>\n
parade. He also did not give any evidence to connect the first<\/p>\n
accused with the incident. PW10 is another friend of the deceased.<\/p>\n
He gave evidence to the effect that PW11 told him that A1 and A2<\/p>\n
dragged the deceased through the railway line to the chicken<\/p>\n
centre.      He got the information from PW11 at 4.30 p.m. PW10<\/p>\n
suspected that the deceased was taken to the chicken centre. He<\/p>\n
also deposed that he went to the friends of the deceased and told<\/p>\n
them that first accused and his associates were seen in front of the<\/p>\n
chicken centre. But, we have already seen that PW8 did not support<\/p>\n
such a case of the prosecution.           According to PW10, he,<\/p>\n
accompanied by other friends of the deceased, came to the shop<\/p>\n
and found that all the lights in the shop were switched off and the<\/p>\n
front gate was locked. He along with PW12 entered the chicken<\/p>\n
Crl. Appeal No.2170\/2007           6<\/span><\/p>\n
shop from behind and found the deceased lying dead inside the<\/p>\n
shop. He identified the deceased in the light of his mobile phone.<\/p>\n
PW10 also deposed that three or four persons were running from<\/p>\n
the compound of the chicken centre by climbing over the wall, but,<\/p>\n
they could not identify who are those persons due to darkness.<\/p>\n
PW11 deposed that he saw deceased Sudheesh at 4.30 p.m. on<\/p>\n
4.1.2004 by the side of the railway track. According to him, when he<\/p>\n
came to the nearby petty shop after having participated in a football<\/p>\n
match, PWs 2 and 3 came to him and told that they found Sudheesh<\/p>\n
being forcibly taken away by accused Nos.1 and 2 through the<\/p>\n
railway line. So, he had also only hearsay information and evidence<\/p>\n
of PWs 2 and 3 show that they had not seen A1. According to him,<\/p>\n
he immediately passed on the information to PW10 with whom he<\/p>\n
went to the nearby place to inform the matter to the other friends of<\/p>\n
Sudheesh. He also deposed that along with PW10, he also came to<\/p>\n
the chicken centre at 9.30 p.m. and found Sudheesh lying dead in<\/p>\n
the chicken centre near the railway track. According to PW12, at<\/p>\n
about 6.30 p.m. PWs 10 and 11 together came to him and told that<\/p>\n
first accused and his associated kidnapped Sudheesh and thereafter<\/p>\n
PW10 proceeded to the chicken centre. He also deposed that PW8<\/p>\n
Sachin came to him and told that he was called to the chicken<\/p>\n
Crl. Appeal No.2170\/2007            7<\/span><\/p>\n
centre by A1 and made the witness to see the deceased in a<\/p>\n
pathetic condition lying inside the chicken centre. PW8 has no such<\/p>\n
case when he was examined.            PW13 was examined by the<\/p>\n
prosecution to prove that the chicken centre was being run by the<\/p>\n
first accused in partnership with PW13, but, he refused to support<\/p>\n
the prosecution case.      PWs 14 and 15 were examined by the<\/p>\n
prosecution to prove the case regarding the criminal conspiracy<\/p>\n
allegedly hatched by accused Nos.1 to 9. They became completely<\/p>\n
hostile to the prosecution and their evidence were of no help to the<\/p>\n
prosecution. PW16 was examined by the prosecution to prove its<\/p>\n
case that on the evening of 4.1.2004, he found accused Nos.1 to 9<\/p>\n
together in the chicken centre of the first accused, but, he did not<\/p>\n
support the prosecution case. PW17 is the father-in-law of the first<\/p>\n
accused. He was also examined to prove that the chicken centre<\/p>\n
was run by the first accused, but, he deposed that the chicken<\/p>\n
centre was owned by his son Noufal who, at the time of incident,<\/p>\n
was working at abroad.         He further deposed that the chicken<\/p>\n
centre at that time was entrusted to fourth accused and he was<\/p>\n
running the shop.        He categorically deposed that at no point of<\/p>\n
time the first accused was given possession of the chicken centre.<\/p>\n
He was also declared hostile. His evidence is also damaging to the<\/p>\n
Crl. Appeal No.2170\/2007              8<\/span><\/p>\n
prosecution.        During cross-examination, he also stated that his<\/p>\n
daughter while studying for MBBS was married to A1 against his<\/p>\n
consent and they are not in good terms. PWs 18, 19 and 20 are<\/p>\n
only mahazar witnesses and their evidence has nothing to connect<\/p>\n
A1 with the incident.\n<\/p>\n
               6. PW21 deposed that he was residing at Coimbatore<\/p>\n
and on 11.1.2004 at about 7.30 p.m. while he was walking along the<\/p>\n
road he found the jeep of Kerala police and a crowd adjacent to it.<\/p>\n
He approached the gathering and found that first accused was with<\/p>\n
the Kerala Police. Police recovered Ext.P2 pocket diary from the<\/p>\n
possession of the first accused and he signed Ext.P17 mahazar. This<\/p>\n
is the only evidence brought through PWs 1 to 17 to connect the<\/p>\n
first accused with the crime, but, in cross-examination, PW21 stated<\/p>\n
that he was a close friend of PW1. He did not come to the court for<\/p>\n
giving evidence on receipt of summons, but, as requested by PW1<\/p>\n
he had attended the court proceedings on all days and even when<\/p>\n
this case was taken up in court. He also deposed that he and PW1<\/p>\n
were friends and he was residing at Coimbatore about 10 k.ms.<\/p>\n
away from the place where the recovery was made and his work<\/p>\n
place is 20 k.m. away. He had no explanation why at 7.30 p.m. he<\/p>\n
was at that place where the police arrested the accused.         The<\/p>\n
Crl. Appeal No.2170\/2007                9<\/span><\/p>\n
suggestion put forward by the defence was that Ext.P17 mahazar<\/p>\n
was signed at the Ernakulam North Police Station.          Even though<\/p>\n
large number of people gathered there when A1 was arrested, no<\/p>\n
local residents were made as witnesses.          No evidence was also<\/p>\n
adduced to show that at the relevant time PW 21 was residing at<\/p>\n
Coimbatore.         It is also pertinent to note that his address is not<\/p>\n
written in the mahazar, it is very difficult to believe that A1 who is<\/p>\n
alleged to have forcibly taken the deceased to the chicken centre<\/p>\n
and killed him and also inflicted injuries on the deceased and kept<\/p>\n
the pocket diary of the deceased in his pocket for one week so that<\/p>\n
at the time accused was arrested police can recover the same. It<\/p>\n
shows that evidence of PW21 and recovery of diary from the pocket<\/p>\n
of first accused is artificial and on that basis alone the accused<\/p>\n
cannot be connected with the crime.\n<\/p>\n
               7. PW25 conducted postmortem of the body of the<\/p>\n
deceased and issued Ext.P21 certificate which clearly shows that<\/p>\n
several injuries were inflicted on the accused. There were a total of<\/p>\n
33 abrasions and contusions including fracture on the body of the<\/p>\n
deceased. Information as to the cause of death was injuries to the<\/p>\n
chest. He also stated that injury Nos.30 and 31, namely:<\/p>\n
Crl. Appeal No.2170\/2007                10<\/span><\/p>\n
                       “31. Contusion of chest wall 10 x 8 c.m. on
\n               left side. Fracture of ribs on left side at multiple
\n               places involving ribs 3 to 10. Left lung collapsed’
\n               Lung laceration 3 x 1 x 0.5 c.m. involving lower
\n               lobe left side. Left chest cavity contained two
\n               hands full of fluid blood; and<\/p>\n<\/blockquote>\n
                       32. Fracture of ribs 3 and 7 on right side
\n               close to starnum and lungs normal.”\n<\/p><\/blockquote>\n
are sufficient in the ordinary course of nature to cause the death of<\/p>\n
the deceased. Doctor also gave evidence that those fatal injuries<\/p>\n
can be caused by hitting with a weighing lock of two kilograms<\/p>\n
which is produced before the court and marked as MO9. Evidence<\/p>\n
of the doctor clearly shows that the deceased was stamped, kicked<\/p>\n
and battered with MO9 weighing block and he died due to the<\/p>\n
gravity of such injuries sustained by him. Evidence of the doctor<\/p>\n
also shows that the dead body was found at the chicken centre at<\/p>\n
S.R.M. road. The other documents relied on by the prosecution to<\/p>\n
connect the first accused to the incident other than Ext.P2 pocket<\/p>\n
diary were Exts.P45 and 46.             Ext.P45 is the first information<\/p>\n
statement given by the first accused regarding an attack by the<\/p>\n
deceased in the chicken centre on 10.4.2003.               Ext.P46 is the<\/p>\n
charge sheet in the above case. It is contended by the learned<\/p>\n
counsel for the accused that the above FIR and the final charge<\/p>\n
report cannot be relied on as it was not proved by examining the<\/p>\n
Crl. Appeal No.2170\/2007           11<\/span><\/p>\n
investigating officers in that case. The person who recorded the<\/p>\n
first information statement and who filed the final charge sheet<\/p>\n
were not examined. Therefore, contents of Exts.P45 and P46 cannot<\/p>\n
be relied on. Further, it is submitted that shop number given in the<\/p>\n
above first information statement and the number of the chicken<\/p>\n
shop where the incident took place is also different. As far as first<\/p>\n
accused is concerned, there is no evidence to connect the first<\/p>\n
accused in the crime.      Prosecution also failed to prove that the<\/p>\n
chicken centre was conducted by the first accused. On the basis of<\/p>\n
Exts.P45 and P56, he cannot be treated as the person who was<\/p>\n
conducting the shop at the relevant time. According to PW9, the<\/p>\n
shop was conducted by A4. PW17 also confirmed the same. Fourth<\/p>\n
accused died before trial. None of the witnesses has stated that<\/p>\n
they have seen accused No.1 among the persons who dragged the<\/p>\n
deceased through the railway line to the chicken centre. Even if the<\/p>\n
chicken centre was conducted by A1, it cannot be stated that he has<\/p>\n
got anything to do with the murder of the deceased. Prosecution<\/p>\n
also failed to produce Corporation licence, ownership details etc.<\/p>\n
regarding the chicken centre.       Apart from surmises, there is<\/p>\n
absolutely no evidence to connect the first accused with the crime.<\/p>\n
It is well settled law that unless the prosecution proves the case<\/p>\n
Crl. Appeal No.2170\/2007             12<\/span><\/p>\n
beyond doubt, nobody can be convicted for an offence. In this case,<\/p>\n
absolutely there is no evidence to connect the first accused with the<\/p>\n
crime.      Mere suspicion is not enough for convicting an accused<\/p>\n
especially for serious offence punishable under section 302 IPC.<\/p>\n
               8. After consideration of the evidence, we are of the<\/p>\n
opinion that prosecution has failed to prove beyond reasonable<\/p>\n
doubt that appellant\/accused No.1 is guilty of any of the charges<\/p>\n
levelled against him. In the above circumstances, we set aside the<\/p>\n
conviction and sentence imposed on the appellant\/accused No.1.<\/p>\n
The judgment of the trial Judge is set aside.         Therefore, the<\/p>\n
appellant\/accused No.1 is acquitted and he should be set free<\/p>\n
forthwith if he is not required in any other case.<\/p>\n
                                                  J.B.Koshy
\n                                                    Judge<\/p>\n
                                                  K. Hema
\n                                                    Judge<\/p>\n
vaa<\/p>\n
Crl. Appeal No.2170\/2007    13<\/span><\/p>\n
                                         J.B. KOSHY
\n                                             AND
\n                                        K.HEMA ,JJ.\n<\/p>\n<\/p>\n
                               ————————————-\n<\/p>\n
                              Crl.Appeal No. 2170 of 2007\n<\/p>\n
                               ————————————-\n<\/p>\n<\/p>\n
                                        Judgment<\/p>\n
                              Dated:24th March, 2008<\/p>\n","protected":false},"excerpt":{"rendered":"
Kerala High Court Aziz @ Azi vs State Of Kerala on 24 March, 2008 IN THE HIGH COURT OF KERALA AT ERNAKULAM CRL.A.No. 2170 of 2007() 1. AZIZ @ AZI, AGED 38, … Petitioner Vs 1. STATE OF KERALA, REPRESENTED … Respondent For Petitioner :SRI.B.RAMAN PILLAI For Respondent :PUBLIC PROSECUTOR The Hon’ble MR. Justice J.B.KOSHY […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,21],"tags":[],"class_list":["post-208915","post","type-post","status-publish","format-standard","hentry","category-high-court","category-kerala-high-court"],"yoast_head":"\nAziz @ Azi vs State Of Kerala on 24 March, 2008 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/aziz-azi-vs-state-of-kerala-on-24-march-2008\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Aziz @ Azi vs State Of Kerala on 24 March, 2008 - 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