{"id":24643,"date":"2010-01-05T00:00:00","date_gmt":"2010-01-04T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/ahammed-kannu-vs-state-of-kerala-on-5-january-2010"},"modified":"2014-10-05T20:49:18","modified_gmt":"2014-10-05T15:19:18","slug":"ahammed-kannu-vs-state-of-kerala-on-5-january-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/ahammed-kannu-vs-state-of-kerala-on-5-january-2010","title":{"rendered":"Ahammed Kannu vs State Of Kerala on 5 January, 2010"},"content":{"rendered":"
Kerala High Court<\/div>\n
Ahammed Kannu vs State Of Kerala on 5 January, 2010<\/div>\n
       \n\n  \n\n  \n\n \n \n  IN THE HIGH COURT OF KERALA AT ERNAKULAM\n\nCRL.A.No. 2207 of 2005()\n\n\n1. AHAMMED KANNU, S\/O.ABDUL REHMAN,\n                      ...  Petitioner\n2. SHARAFUDEEN, S\/O.MOYDEEN KANNU,\n3. ABDULMAJEED, S\/O.PEERU MUHAMMED,\n\n                        Vs\n\n\n\n1. STATE OF KERALA, REPRESENTED BY THE\n                       ...       Respondent\n\n                For Petitioner  :SRI.SUMAN CHAKRAVARTHY\n\n                For Respondent  : No Appearance\n\nThe Hon'ble MR. Justice K.BALAKRISHNAN NAIR\nThe Hon'ble MR. Justice P.BHAVADASAN\n\n Dated :05\/01\/2010\n\n O R D E R\n            K. BALAKRISHNAN NAIR & P. BHAVADASAN, JJ.\n               - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -\n                        Crl. Appeal Nos. 2207 of 2005,\n                                 92 & 169 of 2006.\n                  - - - - - - - - - - - - - - - - - - - - - - - - - - - - -\n                  Dated this the 5th day of January, 2010.\n\n                                      JUDGMENT\n<\/pre>\n
Bhavadasan, J,<\/p>\n
            These three appeals arise out of the judgment in<\/p>\n
SC.948 of 2001 of the Court of Additional District and<\/p>\n
Sessions Judge (Fast Track-1), Thiruvananthapuram.<\/p>\n
            2. Six persons were sought to be prosecuted for the<\/p>\n
offences punishable under Sections 143, 147 and 302 read with<\/p>\n
Section 149 of the Indian Penal Code. Among them, the sixth<\/p>\n
accused absconded and the case against him was split up. The<\/p>\n
others stood trial. The first and the fifth accused were found<\/p>\n
guilty of the offences punishable under Section 302 read with<\/p>\n
Section 34 IPC. Accused Nos.1 to 5 were acquitted of the<\/p>\n
charges under Sections 143 and 147 IPC and accused Nos.2 to<\/p>\n
4 were also acquitted of the charges under Section 302 read<\/p>\n
with Section 149 IPC but were found guilty of the offence<\/p>\n
punishable under Section 323 read with Section 34 IPC. The<\/p>\n
Crl.Appeal.2207\/2005 & con.cases.\n<\/p>\n
                                    2<\/span><\/p>\n
first and fifth accused were convicted for the offence punishable<\/p>\n
under Section 302 read with Section 34 IPC and sentenced to<\/p>\n
undergo imprisonment for life and to pay a fine of Rs.25,000\/-, in<\/p>\n
default of which they have to suffer rigorous imprisonment for<\/p>\n
three years each. Accused Nos. 2, 3 and 4 were sentenced to<\/p>\n
undergo rigorous imprisonment for one year each and to pay a fine<\/p>\n
of Rs.1000\/- each and in default, each of them had to suffer<\/p>\n
rigorous imprisonment for three months            for the   offence<\/p>\n
punishable under Section 323 read with Section 34 IPC. It is also<\/p>\n
ordered that if the fine amounts were realised, a sum of Rs.50,000\/-<\/p>\n
shall be paid to the legal heirs of Jalaludeen as compensation<\/p>\n
under Section 357(1)(b) Cr.P.C.       Accused Nos. 2 to 4 have<\/p>\n
preferred Crl.Appeal No.2207 of 2005, first accused has filed<\/p>\n
Crl.Appeal No.92 of 2006 and the fifth accused has filed<\/p>\n
Crl.Appeal No.169 of 2006.\n<\/p>\n
             3. The incident in this case occurred on 25.6.1998 at<\/p>\n
about 7 p.m.. The deceased, namely, Jalaludeen was the Secretary<\/p>\n
Crl.Appeal.2207\/2005 & con.cases.\n<\/p>\n
                                    3<\/span><\/p>\n
of the Vizhinjam Jama-ath at the relevant time. The accused were<\/p>\n
members of the said Jama-ath. On the date of the incident, there<\/p>\n
was a General Body Meeting of the members of Jama-ath. In the<\/p>\n
meeting held on the date of the incident, the accounts of the<\/p>\n
committee was being read out, when someone shouted that it was<\/p>\n
not audible. That sparked of a commotion in the hall. According<\/p>\n
to the prosecution, at that time accused Nos.1 and 2 shouted from<\/p>\n
behind that since it was the Secretary and the President, who had<\/p>\n
given information to the police regarding the persons who caught<\/p>\n
fish from the sea by using explosives, they should be taught a<\/p>\n
lesson. Thereafter it was a free for all in the hall. Prosecution said<\/p>\n
that Jalaludeen, the Secretary of the then Committee, was chased<\/p>\n
by the accused persons. Jalaludeen ran to the flat concrete roof of<\/p>\n
the building. He was beaten up by the accused persons and<\/p>\n
thereafter it is alleged that accused Nos. 1 and 5 caught hold of his<\/p>\n
limbs and threw him down from the roof of the building.<\/p>\n
Jalaludeen suffered injuries in the fall and he succumbed to his<\/p>\n
Crl.Appeal.2207\/2005 & con.cases.\n<\/p>\n
                                    4<\/span><\/p>\n
injuries on 10.7.1998 at about 4.10 p.m.. In the meanwhile, getting<\/p>\n
information about the incident, police reached Medical College<\/p>\n
Hospital, Thiruvananthapuram, where Jalaludeen was undergoing<\/p>\n
treatment, on 26.6.1998 at about 8.30 a.m.       Police found that<\/p>\n
Jalaludeen was not in a position to talk and therefore recorded the<\/p>\n
first information statement, namely, Ext.P1 furnished by P.W.1.<\/p>\n
When Jalaludeen was taken to the Medical College Hospital, he<\/p>\n
was attended to by P.W.20 and Ext.P14 is his case sheet. P.W.19<\/p>\n
had also attended to Jalaludeen while he was undergoing treatment<\/p>\n
in the Medical College Hospital.      First Information Statement<\/p>\n
given by P.W.1 was recorded by P.W.26, the Sub Inspector of<\/p>\n
Police, Vizhinjam Police Station. He prepared the body note of<\/p>\n
Jalaludeen, namely Ext.P1(a) and thereafter on the basis of Ext.P1,<\/p>\n
he registered the Crime as per Ext.P1(b) FIR. Investigation was<\/p>\n
taken over by P.W.27. He went to the place of occurrence and<\/p>\n
prepared Ext.P15 scene mahazar. Inquest was done by P.W.27 and<\/p>\n
thereafter Ext.P7 inquest report was drawn up. The body was sent<\/p>\n
Crl.Appeal.2207\/2005 & con.cases.\n<\/p>\n
                                    5<\/span><\/p>\n
for autopsy. P.W.18, the Forensic Surgeon attached to the Medical<\/p>\n
College Hospital conducted autopsy and furnished Ext.P12 report.<\/p>\n
The chemical analysis report obtained by P.W.18 is marked as<\/p>\n
Ext.P13. P.W.27 recorded the statements of witnesses and had the<\/p>\n
accused arrested. On getting information that Jalaludeen is no<\/p>\n
more, he filed Ext.P20 report seeking to have Section 302 IPC<\/p>\n
incorporated. It appears that the investigation was handed over to<\/p>\n
the Crime Branch and C.W.46 had conducted further investigation.<\/p>\n
Unfortunately, C.W.46 was no more at the time of trial. P.W.27<\/p>\n
had deposed that C.W.46 has recorded the statement of other<\/p>\n
witnesses also. He had obtained the necessary documents and<\/p>\n
ultimately he laid the charge before court.\n<\/p>\n
             4. JFCM-II, Neyyattinkara, before whom final report<\/p>\n
was laid, took cognizance of the offence.       On summons, the<\/p>\n
accused entered appearance before the said court. On appearance<\/p>\n
of the accused before the said court all legal formalities were<\/p>\n
complied with. The learned Magistrate found that the offence was<\/p>\n
Crl.Appeal.2207\/2005 & con.cases.\n<\/p>\n
                                    6<\/span><\/p>\n
one exclusively triable by a court of Sessions and accordingly<\/p>\n
committed the case to Sessions Court, Thiruvananthapuram under<\/p>\n
Section 209 Cr.P.C.. The said court made over the case to Second<\/p>\n
Additional Sessions Court, Thiruvananthapuram for trial and<\/p>\n
disposal.    In the said court, only accused Nos.1 to 5 entered<\/p>\n
appearance and since accused No.6 was absconding, the case<\/p>\n
against him was split up and included in the LPR. Subsequently<\/p>\n
the case was made over to the Additional District and Sessions<\/p>\n
Court (Fast Track-I), Thiruvananthapuram for trial and disposal.<\/p>\n
             5. That court, on receipt of records, issued summons to<\/p>\n
the accused, who entered appearance. After hearing both sides,<\/p>\n
charges were framed for the offences punishable under Sections<\/p>\n
143, 147 and 302 read with Section 149 IPC. To the charge, the<\/p>\n
accused pleaded not guilty and claimed to be tried. Prosecution<\/p>\n
therefore had P.Ws. 1 to 27 examined Exts.P1 to P22 marked.<\/p>\n
M.Os. 1 to 2 were identified and marked on the side of the<\/p>\n
prosecution.        After the close of the prosecution evidence, the<\/p>\n
Crl.Appeal.2207\/2005 & con.cases.\n<\/p>\n
                                    7<\/span><\/p>\n
accused were questioned under Section 313 of the Criminal<\/p>\n
Procedure Code. All of them maintained that they were innocent<\/p>\n
and have been falsely implicated. Finding that the accused could<\/p>\n
not be acquitted under Section 232 Cr.P.C., they were asked to<\/p>\n
enter on their defence. The accused had got Exts.D1 to D10<\/p>\n
marked. No other evidence was adduced by the defence. On an<\/p>\n
appreciation of the evidence in the case, the court below found the<\/p>\n
first and fifth accused guilty of the offence of murder, while<\/p>\n
accused Nos.2, 3 and 4 were guilty of the offence of causing hurt<\/p>\n
to the victim. Accordingly, the conviction and sentence, as already<\/p>\n
mentioned, followed.\n<\/p>\n
             6. The question that arises for consideration is whether<\/p>\n
any interference is called for with the finding of the court below.<\/p>\n
             7. The prosecution case in brief is that on 25.6.1998 in<\/p>\n
the evening, while the Committee meeting of the Jama-ath was<\/p>\n
going on, a pandemonium broke out and taking advantage of the<\/p>\n
situation, according to the prosecution, the accused persons chased<\/p>\n
Crl.Appeal.2207\/2005 & con.cases.\n<\/p>\n
                                    8<\/span><\/p>\n
the Secretary of the Jama-ath, namely, Jalaludeen to the concrete<\/p>\n
roof of the building and thereafter they beat him up. Then it is<\/p>\n
further alleged that accused Nos.1 and 5 caught hold of his arms<\/p>\n
and legs and threw him down from the terrace.          The injuries<\/p>\n
sustained in the fall resulted in the death of Jalaludeen on a later<\/p>\n
date.\n<\/p>\n
             8.    It is seen that the Court below had placed<\/p>\n
considerable reliance on the evidence of P.W.2.     The court below<\/p>\n
has also noticed that P.W.1, the author of Ext.P1, at the time of<\/p>\n
evidence      had not fully supported the prosecution case. Even<\/p>\n
though P.Ws.3, 4, 13, 17 and 22 were also examined to prove the<\/p>\n
incident, unfortunately for the prosecution, they too did not fully<\/p>\n
support the prosecution case. However, corroboration is available<\/p>\n
in patches from their evidence. Motive is also attributed to the act<\/p>\n
committed by the accused persons. The accused believed that it<\/p>\n
was the President, P.W.2 and late Jalaludeen who had disclosed the<\/p>\n
names of the persons, who were engaged in illegal fishing in the<\/p>\n
Crl.Appeal.2207\/2005 & con.cases.\n<\/p>\n
                                    9<\/span><\/p>\n
sea, to the police.         The prosecution would say that taking<\/p>\n
advantage of the chaos that occurred in the hall, the act was<\/p>\n
committed by the accused persons.         Then again, there is yet<\/p>\n
another motive suggested for the first accused to nurse grudge<\/p>\n
against Jalaludeen, the Secretary.       P.W.15 had married     late<\/p>\n
Jalaludeen. Her evidence would show that in fact the first accused<\/p>\n
had taken a fancy for her and he wanted to marry her. But she was<\/p>\n
not amenable.\n<\/p>\n
             9.    As already noticed, the court below found the<\/p>\n
evidence of P.W.2, supported by the evidence of P.Ws.3, 4, 13, 17<\/p>\n
and 22, sufficient to establish the prosecution case.<\/p>\n
             10.     Learned counsel appearing for the appellants<\/p>\n
severely criticised the finding of the court below. According to<\/p>\n
the learned counsel, the court below has not applied its mind to the<\/p>\n
evidence adduced in the case and has acted in a mechanical<\/p>\n
manner. On a close reading of the evidence, according to the<\/p>\n
learned counsel, it can be seen that Ext.P1 would not have been the<\/p>\n
Crl.Appeal.2207\/2005 & con.cases.\n<\/p>\n
                                    10<\/span><\/p>\n
first information statement as claimed by the prosecution. In fact<\/p>\n
the evidence of P.W.2 and P.W.17 could clearly reveal that the<\/p>\n
police was informed about the incident on the date of incident<\/p>\n
itself, that is on 25.6.1998 and the evidence of P.W.17 is to the<\/p>\n
effect that the police had come to the place and taken a statement.<\/p>\n
If that be so, Ext.P1 cannot be treated as the first information<\/p>\n
statement. It is also pointed out that the origin and development of<\/p>\n
the incident is in serious doubt. Drawing attention of this court to<\/p>\n
the evidence in the case, it was pointed out that the chaos erupted<\/p>\n
when someone shouted that they could not hear the Secretary<\/p>\n
reading the accounts of the Jama-ath Committee. That sparked of<\/p>\n
the incident in the hall and thereafter, according to the learned<\/p>\n
counsel, if the evidence is closely read, it can be seen that it was a<\/p>\n
free for all affair. Even assuming that the first and fifth accused<\/p>\n
had made exhortions against the Secretary and the President, that<\/p>\n
by itself is not a ground to hold against the accused persons. There<\/p>\n
is nothing to indicate that the chaos in the meeting was a deliberate<\/p>\n
Crl.Appeal.2207\/2005 & con.cases.\n<\/p>\n
                                    11<\/span><\/p>\n
creation of the accused persons with the ill-motive of doing away<\/p>\n
with the Secretary, namely, Jalaludeen. Prosecution is bound to<\/p>\n
establish as to what exactly had transpired at the spot and to show<\/p>\n
that the accused persons had acted in a manner uncalled for. The<\/p>\n
evidence on record, according to the learned counsel, shows that<\/p>\n
the Secretary was chased by a number of people and he had ran to<\/p>\n
the roof. May be that the accused also followed him along with<\/p>\n
others. It is possible that the Secretary could have slipped and had<\/p>\n
fallen from the terrace There is absolutely no evidence to show as<\/p>\n
to what exactly had transpired at the spot and placing of implicit<\/p>\n
reliance on the evidence of P.W.2 may not be justified considering<\/p>\n
the fact that there is possibility of manipulation and false<\/p>\n
implication.      Learned counsel appearing for the appellant in<\/p>\n
Crl.Appeal No.92 of 2006 pointed out that it is rather unbelievable<\/p>\n
that an issue of the nature, that had erupted on the date of the<\/p>\n
incident in a sensitive area, would not have come to the notice of<\/p>\n
the police, especially when the police station was only one<\/p>\n
Crl.Appeal.2207\/2005 & con.cases.\n<\/p>\n
                                    12<\/span><\/p>\n
kilometre away from the place where the meeting was conducted.<\/p>\n
Learned counsel also stressed the fact that no wound certificate had<\/p>\n
been produced by the prosecution and that creates further suspicion<\/p>\n
in the matter. Claim of P.W.26 that police came to know about the<\/p>\n
incident only on getting intimation from the hospital on the next<\/p>\n
day cannot be true in the light of the evidence furnished by P.W.2<\/p>\n
and P.W.17. This shows that the prosecution had a lot to hide.<\/p>\n
Finally, the counsel appearing for the appellants in Crl. Appeal<\/p>\n
Nos.92 and 169 of 2006, namely accused Nos.1 and 5 pointed out<\/p>\n
that even assuming that all what prosecution says are true, still it is<\/p>\n
impossible and inconceivable that Section 300 would be attracted<\/p>\n
to the facts of the case.\n<\/p>\n
             11. In reply, learned Public Prosecutor pointed out that<\/p>\n
even though the above arguments may look attractive at the first<\/p>\n
blush, on a close scrutiny, it can be seen that they do not have<\/p>\n
much substance at all. The fact that the accused persons had not<\/p>\n
come armed with deadly weapons, and that they have no intention<\/p>\n
Crl.Appeal.2207\/2005 & con.cases.\n<\/p>\n
                                       13<\/span><\/p>\n
to create trouble in the meeting is not by itself enough to exculpate<\/p>\n
the accused. At any rate, according to learned Public Prosecutor,<\/p>\n
they had taken undue advantage of the situation and had done a<\/p>\n
gruesome act. They had a reason to have a grudge against the<\/p>\n
Secretary and President. Even assuming that there was a chaos<\/p>\n
followed by free for all         in the meeting, there was no reason for<\/p>\n
the accused persons to chase the Secretary or to follow him to the<\/p>\n
roof. They did not leave him there. They unleashed a merciless<\/p>\n
attack on him by beating, kicking and fisting him. When he had<\/p>\n
fallen on the floor of the terrace, accused Nos. 1 and 5 held his<\/p>\n
limbs and threw him down. There was no justification for them to<\/p>\n
do so. The evidence of P.W.2 is very clear in this regard. Even<\/p>\n
though the prosecution may not derive complete support from the<\/p>\n
evidence of P.Ws. 3, 4, 13, 17 and 22, it can be seen that to a large<\/p>\n
extent their evidence too support the version given by P.W.2. It is<\/p>\n
also stressed that there was no reason for P.W.2 to falsely implicate<\/p>\n
the accused persons. On the other hand, the belief of accused<\/p>\n
Crl.Appeal.2207\/2005 & con.cases.\n<\/p>\n
                                    14<\/span><\/p>\n
Nos.1 and 5 that it was the Secretary and the President, who are<\/p>\n
responsible for disclosing the names of those persons, who had<\/p>\n
engaged in illegal fishing, to the police,      had resulted in the<\/p>\n
incident. Learned Public Prosecutor went on to point out that the<\/p>\n
court below, after considering the evidence in detail, had arrived at<\/p>\n
a proper conclusion. No grounds are made out to interfere with the<\/p>\n
said finding.\n<\/p>\n
             12. The fact that the then Secretary late Jalaludeen<\/p>\n
suffered injuries consequent on the fall from the roof and that he<\/p>\n
succumbed to his injuries on a later date are matters which cannot<\/p>\n
be disputed. Ext.P14 is the case sheet maintained in the Medical<\/p>\n
College Hospital, Thiruvananthapuram, where Jalaludeen had<\/p>\n
undergone treatment.           It shows that Jalaludeen expired on<\/p>\n
10.7.1998.         Ext.P12 is the postmortem certificate issued by<\/p>\n
P.W.18, who is the Forensic Surgeon attached to the Medical<\/p>\n
College, Thiruvananthapuram.         The said document shows the<\/p>\n
injuries found on the body of the victim. The cause of death is<\/p>\n
Crl.Appeal.2207\/2005 & con.cases.\n<\/p>\n
                                    15<\/span><\/p>\n
stated to be due to head injury. The Forensic Surgeon had opined<\/p>\n
that the injury which caused the death of the victim could be<\/p>\n
sustained in a fall from the roof of a building. It is pointed out by<\/p>\n
her that injury Nos.1 and 2 noticed in Ext.P12, with its internal<\/p>\n
effects are sufficient in the ordinary course of nature to cause<\/p>\n
death. This shows that death was not due to natural causes.<\/p>\n
             13. The next question is whether as alleged by the<\/p>\n
prosecution accused Nos.1 and 5 are responsible for causing the<\/p>\n
fatal injuries to Jalaludeen. As already noticed, the main evidence<\/p>\n
on which prosecution placed reliance is the testimony of P.W.2.<\/p>\n
He was then the Jama-ath President of the Vizhinjam Jama-ath and<\/p>\n
the deceased was the Secretary.        He would depose that on<\/p>\n
25.6.1998 a General Body Meeting of the Jama-ath was convened<\/p>\n
at about 7 p.m. at the Vizhinjam Madrassa Hall. After the meeting<\/p>\n
had commenced and while the Secretary was reading out the<\/p>\n
income and expenditure statement, someone shouted from behind<\/p>\n
that his speech was not audible. At that time, the first and second<\/p>\n
Crl.Appeal.2207\/2005 & con.cases.\n<\/p>\n
                                    16<\/span><\/p>\n
accused, who were standing outside the hall shouted that the<\/p>\n
President and Secretary, who were responsible for disclosing the<\/p>\n
names of those persons, who had done illegal fishing from the sea<\/p>\n
by using explosives should not be allowed to live. They along<\/p>\n
with others came rushing at him and the deceased. Even though a<\/p>\n
few others tried to prevent them, they did not succeed. P.W.2<\/p>\n
would say that in order to protect them from attack, Abdul Khader,<\/p>\n
Abdul Karim and Sainudeen and a few others took P.W.2,<\/p>\n
Secretary and others to the roof of the building. But the accused<\/p>\n
followed them. They caught hold of the Secretary and the fourth<\/p>\n
accused is said to have fisted Jalaludeen from behind. The third<\/p>\n
accused kicked him. The first accused is said to have stamped him<\/p>\n
on his chest. Then what P.W.2 would say is that the first accused<\/p>\n
caught hold of the hands of the deceased and the fifth accused held<\/p>\n
his legs.     They lifted him shouting that the Secretary, who<\/p>\n
disclosed the names of the persons, who had done illegal fishing<\/p>\n
from the sea, to the police, should not remain alive, threw him<\/p>\n
Crl.Appeal.2207\/2005 & con.cases.\n<\/p>\n
                                    17<\/span><\/p>\n
down from the roof. P.W.2 would say that then he found the<\/p>\n
miscreants turning towards him and out of fear, he took to his<\/p>\n
heels. He would also depose that the first accused had a grudge<\/p>\n
towards Jalaludeen, for, the latter having married a lady for whom<\/p>\n
the first accused had a fancy.        Quite often there used to be<\/p>\n
exchange of words between them in relation to the said matter.<\/p>\n
             14. P.W.1 is the author of Ext.P1 first information<\/p>\n
statement. His evidence shows that he runs a tea shop near the<\/p>\n
Mosque. He was a member of the Jama-ath Committee. He would<\/p>\n
depose that at the relevant time P.W.2 was the President and the<\/p>\n
deceased Jalaludeen was its Secretary. On 25.6.1998 the General<\/p>\n
Body Meeting of the Jama-ath Committee was convened and the<\/p>\n
meeting commenced by about 7 p.m.. There were about 300<\/p>\n
participants. At the time of disclosing the income and expenditure<\/p>\n
statement of the Jama-ath Committee, there was a complaint that it<\/p>\n
was not audible and that sparked of a commotion in the hall. He<\/p>\n
too would depose that at that time three or four persons removed<\/p>\n
Crl.Appeal.2207\/2005 & con.cases.\n<\/p>\n
                                    18<\/span><\/p>\n
the President and the Secretary to the roof of the building. P.W.1<\/p>\n
says that thereafter there was free for all in the hall. According to<\/p>\n
him, thereafter a few persons had rushed to the roof of the building<\/p>\n
and he heard one of them shouting that “he is standing here” and<\/p>\n
he saw somebody kicking the Secretary. But he was unable to<\/p>\n
identify the person in court. He would depose that he saw the<\/p>\n
deceased falling from the roof of the building. According to him,<\/p>\n
the signature found on Ext.P1 belongs to him, but the statement<\/p>\n
was infact given by P.W.2. He would say that after the statement<\/p>\n
was recorded by the police officer concerned, since P.W.2 had<\/p>\n
gone along with Adv. Sri.Gopalakrishnan to see the injured, he<\/p>\n
signed on the document. It could thus be seen that he has betrayed<\/p>\n
the prosecution at the later stage.\n<\/p>\n
             15. P.W.3 was also examined to prove the incident. He<\/p>\n
also would say that he had also gone to attend the General Body<\/p>\n
Meeting of the Jama-ath Committee. He too speaks about the<\/p>\n
incident which occurred at the time of presentation of the income<\/p>\n
Crl.Appeal.2207\/2005 & con.cases.\n<\/p>\n
                                    19<\/span><\/p>\n
and expenditure statement and says that a few persons had taken<\/p>\n
the Secretary and the President to the roof. He would depose that<\/p>\n
since there was a lot of scuffle and pandemonium in the hall, some<\/p>\n
of the participants felt that it was safe to remove the President and<\/p>\n
the Secretary from the place. He would also depose that he saw<\/p>\n
some persons going to the roof of the building. According to him,<\/p>\n
he would suspect that they were going to harm the President and<\/p>\n
the Secretary, therefore he went away from the place. He denied of<\/p>\n
having seen the incident.\n<\/p>\n
             16. P.W.4 is also a participant of the meeting. He<\/p>\n
would say that when he reached the hall, he found that there was<\/p>\n
utter chaos in the hall. No sooner than he reached the place, he<\/p>\n
found a person falling from the roof of the Madrassa. He says that<\/p>\n
he found five or six persons running away from the roof to the rear<\/p>\n
portion of the building. Then he soon came to know the person,<\/p>\n
who fell down from the terrace is none other than Jalaludeen. He<\/p>\n
would depose that when he looked up seeing the fall of Jalaludeen,<\/p>\n
Crl.Appeal.2207\/2005 & con.cases.\n<\/p>\n
                                    20<\/span><\/p>\n
he could recognise accused Nos. 1 and 2. He however refused to<\/p>\n
support the prosecution case regarding the identity of persons and<\/p>\n
he denied of having seen any of the accused there.<\/p>\n
             17. P.W.13 is yet another person, who runs a business<\/p>\n
nearby the Madrassa Complex. He denied having seen the incident<\/p>\n
as such. He would depose that hearing the noise when he rushed to<\/p>\n
the place, he found Jalaludeen lying on the floor of the building.<\/p>\n
he also saw Sudheer and another person taking Jalaludeen to<\/p>\n
hospital. He also deposed that soon after the incident he saw<\/p>\n
accused Nos.1 to 6 rushing away from the place. He identified all<\/p>\n
of them in court.\n<\/p>\n
             18. P.W.15 is the lady, whom, the first accused wanted<\/p>\n
to marry and who, later became the wife of the deceased. She<\/p>\n
would depose that her marriage to Jalaludeen was not taken well<\/p>\n
by the first accused.\n<\/p>\n
             19. The next witness is P.W.17. He would depose that<\/p>\n
on 25.6.1998 he had gone to the Madrassa to attend the General<\/p>\n
Crl.Appeal.2207\/2005 & con.cases.\n<\/p>\n
                                    21<\/span><\/p>\n
Body Meeting. According to him, the meeting commenced at 7<\/p>\n
p.m. and the agenda contained the election to the new Managing<\/p>\n
Committee. The agenda also required the income and expenditure<\/p>\n
account to be read out to the General Body. A short while after<\/p>\n
the meeting had commenced, the President asked the Secretary to<\/p>\n
present the income and expenditure account. When the Secretary<\/p>\n
began to do so, someone shouted that it was not audible. That was<\/p>\n
followed by scuffle. He would depose that he heard somebody<\/p>\n
shouting from outside that the President and Secretary, who were<\/p>\n
responsible for disclosing the names of persons, who had done<\/p>\n
illegal fishing using explosives, should not be allowed to remain<\/p>\n
alive. When he looked around, he saw that the person who said<\/p>\n
that was none other than the first accused. Finding that the things<\/p>\n
were not going well, according to this witness, he came out of the<\/p>\n
hall and went near the gate of the Madrassa. Even though he was<\/p>\n
examined to prove the incident, he refused to oblige the<\/p>\n
prosecution. He however would depose that he saw someone<\/p>\n
Crl.Appeal.2207\/2005 & con.cases.\n<\/p>\n
                                    22<\/span><\/p>\n
falling from the roof of the building and soon he realised that it<\/p>\n
was Jalaludeen. He would depose that he is definite that somebody<\/p>\n
had pushed Jalaludeen from the roof. His evidence also disclosed<\/p>\n
that there was some enmity between the first accused and<\/p>\n
Jalaludeen, the deceased, with reference to the marriage of P.W.15.<\/p>\n
             20. P.W.22 is yet another person, who had attended the<\/p>\n
meeting on the date of the incident. He was engaged in social<\/p>\n
work. He is a member of the Jama-ath. He reached the venue at<\/p>\n
about 7 p.m.. He would say that the President invited the Secretary<\/p>\n
to read out the income and expenditure account. He too deposed<\/p>\n
that the agenda contained election to the          new Managing<\/p>\n
Committee. While the Secretary was presenting the income and<\/p>\n
expenditure account, someone shouted from behind that it was not<\/p>\n
audible and demanded the Secretary to speak aloud. This was<\/p>\n
followed by exchange of words. This witness too would say that<\/p>\n
accused Nos.1 and 2, who were standing outside the hall shouted<\/p>\n
that the President and the Secretary are the persons, who had<\/p>\n
Crl.Appeal.2207\/2005 & con.cases.\n<\/p>\n
                                    23<\/span><\/p>\n
disclosed to police the names of persons, who used explosives to<\/p>\n
catch fish and that they should not be left alive. He also deposed<\/p>\n
that he heard them shouting that they should be done away with.<\/p>\n
When they reached towards the President and Secretary, a few<\/p>\n
people tried to prevent them. Finding it difficult to do so, a few<\/p>\n
others removed the President and Secretary to the roof of the<\/p>\n
building. He would depose that the accused along with others<\/p>\n
rushed towards the roof of the building. A short while thereafter,<\/p>\n
he heard a loud cry. When he came out, he found the deceased<\/p>\n
lying on the floor in a pool of blood. He identified accused Nos.1<\/p>\n
to 4 in court.\n<\/p>\n
             21.    The above items of evidence would show the<\/p>\n
culpability of the accused. It is not as if      there is dearth of<\/p>\n
evidence in the case. It is true that P.W.1 has disowned the first<\/p>\n
information statement and has infact gone to the extent of saying<\/p>\n
that its real author was P.W.2. P.Ws. 3, 4, 13, 17 and 22 have also<\/p>\n
not fully supported the prosecution case. For the reasons best<\/p>\n
Crl.Appeal.2207\/2005 & con.cases.\n<\/p>\n
                                    24<\/span><\/p>\n
known to them they chose to resile from the earlier statement. But<\/p>\n
however the fact remains that the evidence of these witnesses<\/p>\n
show that there was a meeting held on the date of the incident and<\/p>\n
there was a commotion in the meeting. It is also evident that there<\/p>\n
was an exhortation from the side of the first and second accused to<\/p>\n
harm the President and Secretary since they believed that it was<\/p>\n
they who had disclosed the names of persons, who had done<\/p>\n
illegal fishing using explosives to the police. At any rate, the<\/p>\n
evidence is clear to the effect that further incidents took place as a<\/p>\n
consequence of this exhortation.\n<\/p>\n
             22. It is true that there is some want of evidence to<\/p>\n
show what exactly had transpired inside the hall after<\/p>\n
pandemonium broke out. It is difficult to accept the case of the<\/p>\n
appellants that, that should go in their favour and that it is difficult<\/p>\n
to hold that the accused had no role to play in the incident. The<\/p>\n
contention that somebody else could have done that act or it could<\/p>\n
be an accidental fall cannot be accepted in the light of the evidence<\/p>\n
Crl.Appeal.2207\/2005 & con.cases.\n<\/p>\n
                                    25<\/span><\/p>\n
available in this case. The evidence of P.W.2 is clear to the effect<\/p>\n
that it was the accused, who had followed them to the terrace and<\/p>\n
had infact manhandled the Secretary. The fact that the accused had<\/p>\n
followed the President and Secretary to the roof is seen spoken to<\/p>\n
by the other witnesses also. P.W.2 has also spoken about the overt<\/p>\n
acts committed by the accused. True that it is not for the appellants<\/p>\n
to show how the incident had occurred. But the fact that the<\/p>\n
witnesses have spoken to about their presence and also about their<\/p>\n
involvement cannot be easily ignored.        At any rate, there is<\/p>\n
considerable evidence to show that though the President and the<\/p>\n
Secretary were removed to the roof of the building by a few<\/p>\n
persons to protect them, the accused followed them. The conduct<\/p>\n
of the accused hurrying away from the place together strengthens<\/p>\n
the case of the prosecution regarding their involvement.<\/p>\n
             23. Much was said about the inaction on the part of the<\/p>\n
investigating officer in not taking the statement of late Jalaludeen<\/p>\n
while he was in the hospital. But here, learned counsel for the<\/p>\n
Crl.Appeal.2207\/2005 & con.cases.\n<\/p>\n
                                    26<\/span><\/p>\n
appellants omits to note that the evidence is to the effect that after<\/p>\n
sustaining the head injury, Jalaludeen was not in a position to<\/p>\n
speak. There is nothing to indicate that he had talked to anyone<\/p>\n
after he had sustained the injuries, and there is no suggestion to the<\/p>\n
Doctor that Jalaludeen could talk. There is nothing to indicate that<\/p>\n
he was mentally and physically fit to speak. True, the doctor<\/p>\n
would say that Jalaludeen was conscious. That is different from<\/p>\n
saying that he was capable of giving a statement. Probably with<\/p>\n
much difficulty he could speak.       But the mere fact that       the<\/p>\n
statement of Jalaludeen was not taken by itself is not a ground to<\/p>\n
suspect the prosecution version of the incident. At any rate, even<\/p>\n
assuming that the accused were not the perpetrators of the chaos in<\/p>\n
the hall, accused Nos.1 and 2 had made their intention clear by the<\/p>\n
exhortation made by them from outside the hall, which is spoken to<\/p>\n
by the witnesses. There is considerable evidence in this regard.<\/p>\n
There is also convincing evidence to hold that after the President<\/p>\n
and the Secretary were removed to the roof, they had followed<\/p>\n
Crl.Appeal.2207\/2005 & con.cases.\n<\/p>\n
                                    27<\/span><\/p>\n
them. There is no reason to disbelieve P.W.2, when he says that<\/p>\n
they had assaulted Jalaludeen. There is no convincing reason<\/p>\n
given by the defence to show that P.W.2 had any reason to falsely<\/p>\n
implicate them.\n<\/p>\n
             24. Much was said about the absence of mention of<\/p>\n
any blood in the place of the incident in the scene mahazar. The<\/p>\n
evidence would show that there was bleeding as soon as Jalaludeen<\/p>\n
hit the ground. The evidence also discloses that there was rain on<\/p>\n
that day. Probably the blood would have been washed away.<\/p>\n
Merely because there was no mention            of blood in the scene<\/p>\n
mahazar is not by itself is a ground to reject the prosecution case.<\/p>\n
             25. Therefore, though the prosecution does not get<\/p>\n
complete support from the evidence of P.W.2, there are patches in<\/p>\n
the evidence of P.Ws. 3, 4, 13, 17 and 22 to corroborate the<\/p>\n
evidence given by P.W.2.         One fails to understand as to why all<\/p>\n
these person should speak against the accused persons.<\/p>\n
Crl.Appeal.2207\/2005 & con.cases.\n<\/p>\n
                                    28<\/span><\/p>\n
             26. The court below has analysed the acts of each of<\/p>\n
the persons and found that the acts attributed to accused Nos.2 and<\/p>\n
4 is that they had fisted Jalaludeen on his back and accused No.3<\/p>\n
had stamped him. Thereafter the court below found that the first<\/p>\n
accused caught hold of the hands of the victim and accused No.5<\/p>\n
had caught hold of his legs with the support given by the<\/p>\n
absconding accused, namely accused No.6, they threw him down.<\/p>\n
The court below seems to be fully justified, going by the evidence<\/p>\n
on record, to come to the conclusion that accused Nos.2, 3 and 4<\/p>\n
had no intention to cause death of Jalaludeen. Probably their<\/p>\n
intention was to teach him a lesson for being unkind to the<\/p>\n
members of the community, who indulged in illegal fishing. There<\/p>\n
is nothing to show that there is common intention to cause the<\/p>\n
death of Jalaludeen. Therefore the court below found that as far as<\/p>\n
accused Nos. 2, 3 and 4 are concerned, they are guilty of only<\/p>\n
causing hurt to Jalaludeen.\n<\/p>\n
Crl.Appeal.2207\/2005 & con.cases.\n<\/p>\n
                                    29<\/span><\/p>\n
             27. However, the court below was of the view that the<\/p>\n
position of accused Nos.1 and 5 was quite different. From the<\/p>\n
sequence of events, according to learned counsel, the intention to<\/p>\n
cause the death of Jalaludeen can be gathered from the conduct of<\/p>\n
accused Nos.1 and 5.             The court below reached the above<\/p>\n
conclusion on the basis of the evidence, which indicated that while<\/p>\n
Jalaludeen was lying on the floor receiving blows from the accused<\/p>\n
persons, the first accused is said to have put his leg on the chest of<\/p>\n
Jalaludeen and uttered that he should be done away with.<\/p>\n
             28. It is difficult to accept the finding of the court<\/p>\n
below that accused Nos.1 and 5 had shared a common intention to<\/p>\n
do away with Jalaludeen. It must be remembered that they had<\/p>\n
gone to the place unarmed. Probably they had an intention to<\/p>\n
create trouble in the meeting and also to humiliate the Secretary<\/p>\n
and the President.       It also needs to be remembered that there are<\/p>\n
some doubts regarding the origin and development of the incident.<\/p>\n
Whatever that be, the evidence is to the effect that the accused had<\/p>\n
Crl.Appeal.2207\/2005 & con.cases.\n<\/p>\n
                                    30<\/span><\/p>\n
followed the President and Secretary to the roof and did the<\/p>\n
objectionable acts. Considering the height of the building and also<\/p>\n
the manner in which the act was done by the accused, namely<\/p>\n
accused Nos.1 and 5, it is rather difficult to believe that they had<\/p>\n
an intention to cause the death of Jalaludeen. On consideration of<\/p>\n
the materials before the court, it is difficult to bring the act of<\/p>\n
accused Nos.1 and 5 within the ambit of the fourth clause of<\/p>\n
Section 300 IPC. However, the act of throwing down a person<\/p>\n
from the terrace cannot be taken lightly. Considering the height of<\/p>\n
the building and also the nature         of the act committed by the<\/p>\n
persons, namely, accused Nos.1 and 5, it follows that they should<\/p>\n
be credited with the knowledge that their act is such that it would<\/p>\n
likely to cause death. If that be so, their act falls within Part II of<\/p>\n
Section 304 IPC.\n<\/p>\n
             In the result, these appeals are disposed of as follows:<\/p>\n
             i) The conviction and sentence of accused No.2, 3 and<\/p>\n
4 are confirmed.\n<\/p>\n
Crl.Appeal.2207\/2005 & con.cases.\n<\/p>\n
                                    31<\/span><\/p>\n
             ii) The conviction and sentence of accused Nos.1 and 5<\/p>\n
for the offences punishable under Section 302 read with Section 34<\/p>\n
IPC are set aside and instead they are found guilty of the offence<\/p>\n
punishable under Part II of Section 304 IPC.\n<\/p>\n
             iii) Accused Nos.1 and 5 are therefore sentenced to<\/p>\n
suffer rigorous imprisonment for a period of eight years and to pay<\/p>\n
a fine of Rs.30,000\/- each, in default of which, each of them shall<\/p>\n
suffer rigorous imprisonment for a further period of two years. If<\/p>\n
the fine amount is realised, a sum of Rs.55, 000\/- shall be paid to<\/p>\n
the legal heirs of late Jalaludeen a per Section 357(1)(b) of Cr.P.C.<\/p>\n
Set off as per law will be allowed.\n<\/p>\n<\/p>\n
                                          K. Balakrishnan Nair,
\n                                                  Judge<\/p>\n
                                             P. Bhavadasan,
\n                                                  Judge<\/p>\n
sb.\n<\/p>\n
Crl.Appeal.2207\/2005 & con.cases.\n<\/p>\n
                                          32<\/span><\/p>\n
                             K. BALAKRISHNAN NAIR & P. BHAVADASAN, JJ.\n<\/p>\n
                                 – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – –\n<\/p>\n
                                           Crl. Appeal Nos. 2207 of 2005,
\n                                                     92 & 169 of 2006.\n<\/p>\n
                                    – – – – – – – – – – – – – – – – – – – – – – – – – – – – –\n<\/p>\n<\/p>\n
                                                        JUDGMENT<\/p>\n
                                                     05.01.2010.\n<\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"
Kerala High Court Ahammed Kannu vs State Of Kerala on 5 January, 2010 IN THE HIGH COURT OF KERALA AT ERNAKULAM CRL.A.No. 2207 of 2005() 1. AHAMMED KANNU, S\/O.ABDUL REHMAN, … Petitioner 2. SHARAFUDEEN, S\/O.MOYDEEN KANNU, 3. ABDULMAJEED, S\/O.PEERU MUHAMMED, Vs 1. STATE OF KERALA, REPRESENTED BY THE … Respondent For Petitioner :SRI.SUMAN CHAKRAVARTHY For […]<\/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-24643","post","type-post","status-publish","format-standard","hentry","category-high-court","category-kerala-high-court"],"yoast_head":"\nAhammed Kannu vs State Of Kerala on 5 January, 2010 - 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\/ahammed-kannu-vs-state-of-kerala-on-5-january-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Ahammed Kannu vs State Of Kerala on 5 January, 2010 - 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