{"id":250072,"date":"2009-12-01T00:00:00","date_gmt":"2009-11-30T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/raju-kadiyan-raju-vs-state-of-keral-on-1-december-2009"},"modified":"2016-09-10T11:33:48","modified_gmt":"2016-09-10T06:03:48","slug":"raju-kadiyan-raju-vs-state-of-keral-on-1-december-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/raju-kadiyan-raju-vs-state-of-keral-on-1-december-2009","title":{"rendered":"Raju @ Kadiyan Raju vs State Of Keral on 1 December, 2009"},"content":{"rendered":"
Kerala High Court<\/div>\n
Raju @ Kadiyan Raju vs State Of Keral on 1 December, 2009<\/div>\n
       \n\n  \n\n  \n\n \n \n  IN THE HIGH COURT OF KERALA AT ERNAKULAM\n\nCRL.A.No. 1427 of 2003()\n\n\n1. RAJU @ KADIYAN RAJU, S\/O. MATHEW,\n                      ...  Petitioner\n2. BAIJU @ BAIJU ANNAN S\/O. VARGHESE,\n3. RATHI @ RATHEESH  S\/O. KARUNAKARAN,\n4. SUDHI S\/O. BALAN, VALIYAPARAMBIL HOUSE,\n5. BAIJU @ THATHA BAIJU S\/O. KUTTAN,\n6. SHAJU S\/O. BABY, ATHIPPARAMBIL HOUSE,\n7. JAISON @ VELLA JAISON S\/O. KOCHAPPAN,\n\n                        Vs\n\n\n\n1. STATE OF KERAL, REPRESENTED BY THE\n                       ...       Respondent\n\n                For Petitioner  :SRI.P.G.SURESH\n\n                For Respondent  :PUBLIC PROSECUTOR\n\nThe Hon'ble MR. Justice V.RAMKUMAR\n\n Dated :01\/12\/2009\n\n O R D E R\n                      V. RAMKUMAR, J.\n                   = = = = = = = = = = = = =\n                   Crl.Appeal.No.1427 of 2003\n                  = = = = = = = = = = = = = =\n            Dated this the 1st day of December, 2009\n\n                           JUDGMENT\n<\/pre>\n
     In this appeal      filed under Section 374(2)<\/a> Cr.P.C,<\/p>\n
accused Nos.1,2,4 to 6,10 and 12 in S.C. No.284 of 1999 on<\/p>\n
the file of the Addl. Sessions Judge Fast Track-II(Adhoc),<\/p>\n
Thrissur,      challenge the conviction entered         and the<\/p>\n
sentence passed against them for offences punishable under<\/p>\n
Sections 143<\/a>, 148<\/a>, 323<\/a>, 324<\/a>, 325<\/a> and 307<\/a> read with 149<\/p>\n
IPC<\/a>.\n<\/p>\n
                    THE PROSECUTION CASE<\/p>\n
     2.    The case of the prosecution can be summarised<\/p>\n
as follows:-\n<\/p>\n
           On the Thiruonam day in the year 1997, CW5<\/p>\n
    (Ajayan) and CW7 (Sadanandhan) along with A3<\/p>\n
    (Baijulal) (who died pending trial) were playing cards to<\/p>\n
    make excessive profit out of that.       In the dispute<\/p>\n
    arising out of the said game, A1 to A14 formed<\/p>\n
    themselves into an unlawful assembly the common<\/p>\n
Crl.Appeal.No.1427 of 2003
\n                               2<\/span><\/p>\n
    object of which was to take revenge against CW5 and<\/p>\n
    others. Accordingly, A1 to A14 at about 6.30 pm on<\/p>\n
    16.09.1997 in front of the residential house of<\/p>\n
    Chandran (CW4) father of CW5,CW7,PW1(Vijeendran)<\/p>\n
    and bearing building No.VI\/24 of Nadathara Panchayat<\/p>\n
    in Polukara armed with deadly weapons such as swords,<\/p>\n
    criminally trespassed into the courtyard of the said<\/p>\n
    house and A1 uttering to kill PW1, dealt a blow on the<\/p>\n
    right side of his head, cutting his right ear with MO1<\/p>\n
    sword, A2 cut wounded PW1 on the middle of his head<\/p>\n
    with MO2 sword in the course of which CW3(Ajitha) the<\/p>\n
    wife of PW1 also sustained an injury on her nose and A3<\/p>\n
    kicked CW4(Chandran) on his right leg and pushed him<\/p>\n
    to the ground on account of which CW4 sustained a<\/p>\n
    fracture to the bone of his right leg and the other<\/p>\n
    accused persons kicked and fisted CW5(Ajayan) and<\/p>\n
    PW8(Ajish) a neighbour.     The accused persons have<\/p>\n
    thus committed offences punishable under Sections<\/p>\n
    143<\/a>, 147<\/a>, 148<\/a>, 447<\/a>,324<\/a>, 326<\/a> and 307<\/a> read with 149 IPC<\/a>.<\/p>\n<\/blockquote>\n
Crl.Appeal.No.1427 of 2003
\n                              3<\/span><\/p>\n
     3.    The 3rd accused Baijulal died before trial. He<\/p>\n
was murdered by somebody. Accused Nos.1,2 and 4 to 14<\/p>\n
alone stood trial before the court below.<\/p>\n
                          THE TRIAL<\/p>\n
     4. On the accused pleading not guilty to the charge<\/p>\n
framed against them by the court below for the<\/p>\n
aforementioned offences, the prosecution was permitted to<\/p>\n
adduce evidence in support of its case. The prosecution<\/p>\n
altogether examined 14 witnesses as P.Ws 1 to 14 and got<\/p>\n
marked 12 documents as Exts. P1 to P12 and 5 material<\/p>\n
objects as MOs. 1 to 5.\n<\/p>\n
     5.  After the close of the prosecution evidence, the<\/p>\n
accused were questioned under Sec. 313 (1)(b) Cr.P.C<\/a>. with<\/p>\n
regard to the incriminating circumstances appearing<\/p>\n
against them in the evidence for the prosecution.     They<\/p>\n
denied   those    circumstances     and  maintained   their<\/p>\n
Crl.Appeal.No.1427 of 2003
\n                                  4<\/span><\/p>\n
innocence.\n<\/p>\n
     A1 had the following to submit before the court:-<\/p>\n
           Accused persons are all BJP workers.              The<\/p>\n
     prosecution witnesses are members of DYFI.              The<\/p>\n
     witnesses have political animosity against the accused<\/p>\n
     persons.    Radhakrishnan, Circle Inspector of Police<\/p>\n
     (CW6) has personal animosity towards the 1st accused.<\/p>\n
     One day the Police had taken him into custody from the<\/p>\n
     premises of the Sessions Court. His father had filed a<\/p>\n
     petition before the High Court against the Police. In<\/p>\n
     that case the Police had tendered unconditional apology.<\/p>\n
     At that time a threat was made that he would be falsely<\/p>\n
     implicated in a case. The present case was foisted out<\/p>\n
     of the said enmity and political hostility. He is innocent.<\/p>\n
     The other accused persons also alleged that they were<\/p>\n
     falsely implicated in this case out of political vendetta.<\/p>\n
     6. Since this was not a case of no evidence for the<\/p>\n
prosecution, the court below did not record an order of<\/p>\n
acquittal of the accused under Section 232<\/a> Cr.P.C. When<\/p>\n
Crl.Appeal.No.1427 of 2003
\n                               5<\/span><\/p>\n
the accused were called upon to enter on their defence the<\/p>\n
accused produced Ext.D2 certified copy of the order dated<\/p>\n
12.11.1997 of this Court in Crl.R.P.No.852 of 1997 as per<\/p>\n
which the Circle Inspector of Police, Town East Police<\/p>\n
Station, Thrissur tendered unconditional apology for the<\/p>\n
arrest of the 1st accused herein.\n<\/p>\n
     7.   The learned Sessions Judge, after trial, as per<\/p>\n
judgment dated 21.07.2003 acquitted accused Nos.7, 8, 9,<\/p>\n
11, 13 and 14 but convicted accused Nos.1, 2, 4 to 6 and 10<\/p>\n
to 12 (appellants herein) for the aforementioned offences.<\/p>\n
For the conviction under Sections 143<\/a>,148<\/a>,323<\/a>,324<\/a>,325<\/a> and<\/p>\n
307<\/a> IPC, each of the appellants was sentenced to rigorous<\/p>\n
imprisonment for 1 month, 1 year, 6 months, one year, 2<\/p>\n
years and 3 years respectively, in addition to a fine of<\/p>\n
Rs.10,000\/- each for the conviction under Section 307<\/a> read<\/p>\n
with 149 IPC<\/a>.       On default to pay the fine each of the<\/p>\n
defaulting accused was directed to undergo rigorous<\/p>\n
imprisonment for one year. From out of the fine amount a<\/p>\n
Crl.Appeal.No.1427 of 2003
\n                              6<\/span><\/p>\n
sum of Rs.7,500\/- each was directed to be paid to PW1 as<\/p>\n
compensation under Section 357(1)(b)<\/a> Cr.P.C. It is the said<\/p>\n
judgment which is assailed in this appeal.<\/p>\n
     8.   I heard Advocate Sri.P.G.Suresh, the learned<\/p>\n
counsel appearing for the appellants as well as the learned<\/p>\n
Public Prosecutor.\n<\/p>\n
     9.   The only point which arises for consideration in<\/p>\n
this appeal is as to whether the conviction entered and the<\/p>\n
sentence passed against the appellants are sustainable or<\/p>\n
not ?\n<\/p>\n
The Point:-\n<\/p>\n
              THE PROSECUTION WITNESSES<\/p>\n
     10. P.W.1 (CW2) (Vichitran) is one of the      injured<\/p>\n
persons in the occurrence. He is not the 1st informant in<\/p>\n
the case.\n<\/p>\n
     11. P.W.2 (CW10) Sudhakaran is an independent eye<\/p>\n
witness. He is a resident of Polurkara and a friend of PW1.<\/p>\n
According to him he came to the house of PW1 as the<\/p>\n
Crl.Appeal.No.1427 of 2003
\n                              7<\/span><\/p>\n
latter was going to Mysore that night. He claims to have<\/p>\n
seen the occurrence from the paramba situated to the south<\/p>\n
of PW1’s house.\n<\/p>\n
     12. PW3(CW1) Thankamani is the mother of PW1.<\/p>\n
She is the 1st informant in this case. Ext.P1 is the First<\/p>\n
Information Statement given by her to PW11 the Sub<\/p>\n
Inspector of Ollur Police Station, at about 7.30 p.m on<\/p>\n
16.9.1997 from her residence.\n<\/p>\n
     13.   PW4 (CW12)(Anthony)      is a witness to Ext.P2<\/p>\n
scene mahazar prepared by the Investigating Officer.   He<\/p>\n
turned hostile to the prosecution.\n<\/p>\n
     14. PW5 (CW14) (Gopalan) is a witness to Ext.P2<\/p>\n
Seizure Mahazar. He has proved the recovery of MO3 from<\/p>\n
the scene of occurrence.\n<\/p>\n
     15. PW6 (Dr.Rafeeque of Medical College Hospital,<\/p>\n
Thrissur) proved Ext.P3 Wound Certificate of PW1 who was<\/p>\n
examined by him at 7.45 p.m on 17.9.1997. the alleged<\/p>\n
cause stated to the Doctor was the following:-<\/p>\n
\nCrl.Appeal.No.1427 of 2003
\n                              8<\/span><\/p>\n
          ”           ”\n<\/p>\n
The following are the injuries noted by PW6.<\/p>\n
          “Incised   wound     extending from   right<\/p>\n
     Zygotic region involving right pinna extending<\/p>\n
     up to neck 15 cm below mastoid. Wound is one<\/p>\n
     inch deep.   7 cm cut on scalp mid line. 3 to 5<\/p>\n
     cm lacerated wound on temporal region.”<\/p>\n
     16.   PW7 (Dr.Shibu Abraham, Lecturer in Ortho,<\/p>\n
Medical College Hospital, Thrissur) proved Ext.P4 Wound<\/p>\n
Certificate of Chandran (CW4) husband of PW3. The said<\/p>\n
doctor examined CW4 at 8.30 p.m on 16.9.97 with the<\/p>\n
complaint that he was assaulted by many people. The injury<\/p>\n
noted was a fracture of 2nd metatarsal of right feet. PW7<\/p>\n
also proved Ext.P5 Wound Certificate pertaining to CW5<\/p>\n
(Ajayan) who is one of the brothers of PW1. The doctor who<\/p>\n
had examined CW5 was Dr.Koshy George(CW24) was not<\/p>\n
available and his handwriting and signature were familiar<\/p>\n
to PW7. CW5 was examined by Dr.Koshy George at 8 p.m<\/p>\n
on 16.9.97 and the history stated was alleged assault at<\/p>\n
Crl.Appeal.No.1427 of 2003
\n                             9<\/span><\/p>\n
about 7.15 p.m on 16.9.1997.\n<\/p>\n
     17. PW8 (CW6) Ajish is another injured witness. He is<\/p>\n
also a resident of Polukara and was allegedly visiting PW1<\/p>\n
who was going to Mysore that night.     He was allegedly<\/p>\n
returning from underneath the Banyan tree where they<\/p>\n
used to play the game of playing cards.\n<\/p>\n
     18. PW9 (CW15) (Sathyajith) was an attestor to Ext.P6<\/p>\n
seizure mahazar dated 18.9.1997 as per which MO1 sword<\/p>\n
and MO1(a) sheath were recovered by PW11 at 5.15 p.m<\/p>\n
consequent on the confession made by A1.<\/p>\n
     19.    PW10(Baiju)(CW16) was cited to prove the<\/p>\n
recovery of MO5 blood-stained shirt of A8 as per Ext.P8<\/p>\n
Mahazar prepared by PW11. However, this witness turned<\/p>\n
hostile to the prosecution.\n<\/p>\n
     20. PW11(Chakunni) is the Sub Inspector of Police,<\/p>\n
Ollur Police Station. He recorded Ext.P5 First Information<\/p>\n
Statement of PW3 from her house at 7.30 pm on 16.9.1997<\/p>\n
and also took into custody MO3 sword which was lying at<\/p>\n
Crl.Appeal.No.1427 of 2003
\n                              10<\/span><\/p>\n
the scene of occurrence. It was this officer who recovered<\/p>\n
MO1 sword and MO1(a) sheath as per Ext.P6 Mahazar<\/p>\n
pursuant to the confession of A1.\n<\/p>\n
     21. PW12 (M.R.Maniyan) (CW27) was the Circle<\/p>\n
Inspector of Police who questioned A2 and on the strength<\/p>\n
of his confession recovered MO2 sword as per Ext.P11<\/p>\n
search list. He had sent Ext.P11 search memorandum prior<\/p>\n
to the search of the house of A2.\n<\/p>\n
     22.   PW13 Baby (CW18) was a witness to Ext.P11<\/p>\n
search list prepared for the recovery of MO2 sword from<\/p>\n
A2. He turned hostile to the prosecution.<\/p>\n
     23. PW14(Joby)(CW17) was a witness to Ext.P11<\/p>\n
search list. He also turned hostile to the prosecution.<\/p>\n
               EYE WITNESSES’ ACCOUNT<\/p>\n
     24. Out of 14 witnesses examined by the prosecution,<\/p>\n
PWs 1 to 3 and 8 are the occurrence witnesses of whom<\/p>\n
PWs 1 and 8 are the injured. The testimony of PW1 who<\/p>\n
was the main target of attack and who sustained the graver<\/p>\n
Crl.Appeal.No.1427 of 2003
\n                                11<\/span><\/p>\n
injuries is to the following effect:-\n<\/p>\n
     He is a goldsmith by avocation.        He belongs to<\/p>\n
Polukkara. About five months prior to the occurrence, he<\/p>\n
and his wife Ajitha (CW3) had gone to Mysore for treating<\/p>\n
their deaf and dumb daughter. They came home to the<\/p>\n
native place in connection with onam. The occurrence took<\/p>\n
place on 16.09.1997 which was the third onam day. The<\/p>\n
time of occurrence was about 6.30 p.m. In their house at<\/p>\n
Polukkara, his father Chandran (CW4), mother Thankamony<\/p>\n
(PW3) and brothers Sadanandan (CW7), Ajayan (CW5),<\/p>\n
himself, his younger brother Vinod are the inmates. Besides<\/p>\n
them, the wives of his two elder brothers are also residing<\/p>\n
in that house. PW1, his elder brother Ajayan (CW5) and<\/p>\n
neighbour Ajeesh (PW8) were engaged in pleasantries in<\/p>\n
the front varandah of their house.     He was supposed to<\/p>\n
return to Mysore in the bus starting at 9.30 in the night.<\/p>\n
His parents were standing in the front courtyard. Their<\/p>\n
house is facing west. At that time, about 10 or 11 assailants<\/p>\n
Crl.Appeal.No.1427 of 2003
\n                              12<\/span><\/p>\n
from west came running to their house. They were in a<\/p>\n
belligerent mood.   As soon as they came, Byju Lal (A2)<\/p>\n
kicked his father Chandran (CW4) on his right leg and his<\/p>\n
father fell down. Byju Lal is now no more since he was<\/p>\n
murdered by somebody. As soon as his father fell down,<\/p>\n
PW1 and others went to the rescue of their father. At that<\/p>\n
time, A1 to A4 took out this swords which they had hidden<\/p>\n
under their shirts.      He knows all those four accused<\/p>\n
persons. Seeing the weapons, he got frightened and ran<\/p>\n
towards the back side of the house through the southern<\/p>\n
portion of the house. The four persons who are armed with<\/p>\n
swords(A1to A4), chased him. Immediately behind him was<\/p>\n
A1 Raju. While running for his life, A1 cut him with MO1<\/p>\n
sword on his right ear resulting in a portion of the pinna<\/p>\n
shearing from its position and dangling. From the back side<\/p>\n
of the house, he ran eastwards. After jumping over the<\/p>\n
water channel, he fell into the yam cultivation(      ).<\/p>\n
At that time, A4, A3 and others fisted and kicked him.<\/p>\n
Crl.Appeal.No.1427 of 2003
\n                             13<\/span><\/p>\n
(witness identified A5, A6 and A8 also) His mother (PW3)<\/p>\n
and sister Latha (CW8) came to his rescue. At that time,<\/p>\n
the assailants withdrew from the scene. He was carried to<\/p>\n
the front portion of the house and made to see there. His<\/p>\n
wife also came to console him and attended on him. At that<\/p>\n
time, suddenly A2 emerged there with a sword and cut him<\/p>\n
on the head twice. One of the blows struck the nose of his<\/p>\n
wife who sustained an injury to her nose.       The sword<\/p>\n
wielded by A3 was lying on the ground. All the assailants<\/p>\n
then ran towards the west. Thereafter, PW8 and PW1’s<\/p>\n
brother Ajayan (CW5) came there. The leg of PW8 was seen<\/p>\n
injured. There was an abrasion on the leg of CW5 as well.<\/p>\n
His father was complaining of pain at the ankle. Somebody<\/p>\n
took them to the hospital. A1 had cut him on the right ear<\/p>\n
by shouting that he will kill him. Sometime prior to the<\/p>\n
occurrence, there was some quarrel among his brother<\/p>\n
Ajayan (CW5), (PW8) and few others who were playing<\/p>\n
cards.  The occurrence took place pursuant to the said<\/p>\n
Crl.Appeal.No.1427 of 2003
\n                             14<\/span><\/p>\n
incident. He had given a statement to the police. MO1 was<\/p>\n
the sword along with its sheath wielded by A1. MO2 was<\/p>\n
the sword used by A2. The bigger sword which was lying<\/p>\n
on the ground at the rescue of crime was MO3. Altogether<\/p>\n
five persons including him were injured in the occurrence.<\/p>\n
It is not correct to say that the occurrence took place at<\/p>\n
7.15 p.m. or that darkness had set in from 5.30 onwards.<\/p>\n
All the five injured persons were taken to the hospital<\/p>\n
together. He might have told the doctor that identifiable<\/p>\n
persons came to his house and cut him.          He cannot<\/p>\n
remember what he is told the doctor since his mental<\/p>\n
condition at that time was very precarious. It was not even<\/p>\n
sure whether he would survive or not.      The majority of<\/p>\n
improvements on the rear side of his house are coconut<\/p>\n
trees. The distance of the yam cultivation would be around<\/p>\n
150 metres from the house.     The accused persons used to<\/p>\n
come to Polukkara even before. They came to his house only<\/p>\n
on the date of occurrence.      He does not know what<\/p>\n
Crl.Appeal.No.1427 of 2003
\n                              15<\/span><\/p>\n
happened at the place where cards were played. He does<\/p>\n
not know the persons with whom Ajayan and PW8 picked up<\/p>\n
quarrels. The first cut was received by him while he was<\/p>\n
running towards northern direction by the side of his house.<\/p>\n
After running northwards, he ran towards the east. It was<\/p>\n
at a point on the eastern side of the house that he received<\/p>\n
the first cut on the right ear. The second cut was received<\/p>\n
by him from the front portion on the western side of the<\/p>\n
house. He does not know whether himself and his family<\/p>\n
members are sympathisers of Marxist party. He also does<\/p>\n
not know whether there used to be clashes between the<\/p>\n
Marxist and the R.S.S people in that locality since he was in<\/p>\n
Mysore. He does not know as to how his brother Ajayan<\/p>\n
and neighbour PW8 sustained injuries. He has not shown<\/p>\n
the assailants to the police nor had the police shown them<\/p>\n
to him. He had told the doctor that identifiable persons had<\/p>\n
done this to him.      All the four accused persons were<\/p>\n
wielding swords. He had told the police that A1 to A4 had<\/p>\n
Crl.Appeal.No.1427 of 2003
\n                              16<\/span><\/p>\n
chased him and it was while running that he was cut on his<\/p>\n
ear from behind. When his mother and sister came, the<\/p>\n
assailants had withdrawn. Thereafter, when he was carried<\/p>\n
to the western side of the house, the assailants re-appeared<\/p>\n
there and it was while his wife was attending on him that he<\/p>\n
was cut again with MO2 sword which had struck his wife’s<\/p>\n
nose as well. He sustained two cut injuries on his head. It<\/p>\n
is only for the past one year that he is a member of the<\/p>\n
Marxist party. He does not know whether the accused are<\/p>\n
B.J.P – R.S.S people. Even when the swords were shown to<\/p>\n
him by the police, there was blood marks on them. It is not<\/p>\n
correct to say that it was dark at the time of occurrence. It<\/p>\n
is also not correct to say that he was giving the names of<\/p>\n
persons as dictated to him by the party people out of<\/p>\n
political enmity.\n<\/p>\n
     25.   P.W.2 (Sudhakaran) who is also a goldsmith by<\/p>\n
avocation is a resident of Polookara.      He is a friend of<\/p>\n
P.W.1     for the past 21 years.    The main part of      his<\/p>\n
Crl.Appeal.No.1427 of 2003
\n                             17<\/span><\/p>\n
testimony is as follows:-\n<\/p>\n
        The occurrence took place on the third onam<\/p>\n
        day. When he reached P.W.1’s house between<\/p>\n
        6 and 6.30 p.m. the assailants had collected<\/p>\n
        there armed with weapons and so he did not<\/p>\n
        go near them. Then he saw        Ajayan (CW5),<\/p>\n
        Sadanandan       (CW7) and       Ajeesh (P.W.8)<\/p>\n
        running and P.W.1 also running behind them.<\/p>\n
        A1, A2 and A4 who were armed with weapons<\/p>\n
        chased them shouting that they will kill him.<\/p><\/blockquote>\n
\n
        Then A1 cut P.W.1 on his right ear and the ear<\/p>\n
        lobe was cut and a piece was dangling.   P.W.1<\/p>\n
        ran and fell in the yam cultivation. A1, A2 and<\/p>\n
        A4 fisted P.W.1 who was lying in the yam<\/p>\n
        cultivation.  P.W.1 was carried to the front<\/p>\n
        courtyard by his mother and sister. His wife<\/p>\n
        came and sat beside him.      By that time A2<\/p>\n
        suddenly emerged with a sword in his hand<\/p>\n
Crl.Appeal.No.1427 of 2003
\n                             18<\/span><\/p>\n
        and cut P.W.1.   In that blow the sword struck<\/p>\n
        the nose of P.W.1’s wife causing an injury. By<\/p>\n
        the time people gathered there the assailants<\/p>\n
        made good their escape.   Sadanandan (C.W.7),<\/p>\n
        Ajesh (PW8) and Vadakkan Sathyan were the<\/p>\n
        persons who came there. There was an injury<\/p>\n
        on the leg of P.W.8 and PW8 told him that it<\/p>\n
        was sustained with the sword of A3.       PW2<\/p>\n
        also identified A12, A6 and A5 also among the<\/p>\n
        assailants. When he went to the house of P.W.1<\/p>\n
        on that day besides the inmates of the house,<\/p>\n
        there were 5 to 8 persons. He is a Marxist<\/p>\n
        sympathiser for the past 20 years.     He was<\/p>\n
        present when P.W.3 the mother of P.W.1 gave<\/p>\n
        statement to the police. After the occurrence<\/p>\n
        he hired a car and took the injured persons to<\/p>\n
        the hospital, He spent the whole night in the<\/p>\n
        hospital.     P.W.1’s brother Ajayan (CW5) ,<\/p>\n
Crl.Appeal.No.1427 of 2003
\n                              19<\/span><\/p>\n
        Ajitha and Ajeesh (P.W.8) were taken to the<\/p>\n
        hospital. Chandran, the father of P.w.1 was not<\/p>\n
        taken to the hospital.      All the four injured<\/p>\n
        persons were examined by the doctor.           He<\/p>\n
        was present when P.w.1 was examined by the<\/p>\n
        doctor. P.W.1 was in his senses and was able to<\/p>\n
        speak.   P.W.1 also told the doctor about the<\/p>\n
        injuries. The house situated to the south of<\/p>\n
        P.W.1’s house is that of one Pappan Sankaran .<\/p>\n
        He does not know      whether the said Sankaran<\/p>\n
        was at home at that time. He had got into the<\/p>\n
        paramba of the said Sankaran. There are trees<\/p>\n
        like coconut, areacanut, jack fruit etc, in that<\/p>\n
        paramba.     It is possible to see the occurrence<\/p>\n
        from the house also.    He had remained in that<\/p>\n
        paramba for 10 minutes.      At that time, neither<\/p>\n
        P.W.1 nor his family members had seen him.<\/p>\n
        Besides the house of Sankaran, there are<\/p>\n
Crl.Appeal.No.1427 of 2003
\n                             20<\/span><\/p>\n
        several houses in that locality. The house of<\/p>\n
        P.W.1 is facing west. It was a forceful cut.<\/p>\n
        The assailants chased PW1 for about 200<\/p>\n
        metres. His wife and sister had run behind<\/p>\n
        the assailants.  It was seeing the sword that<\/p>\n
        they got scared and ran. C.W.7 and others<\/p>\n
        were running along     the side of the house.<\/p>\n
        After P.W.1 was brought the assailants came<\/p>\n
        back.   The parents of P.W.1      were on the<\/p>\n
        western side of the house at the beginning of<\/p>\n
        occurrence. Ajayan and P.W.8 had run along<\/p>\n
        with Sadanandan. It was not dark at the time<\/p>\n
        of occurrence. It is only by 7.15 that it would<\/p>\n
        become dark. It was the Sub Inspector who<\/p>\n
        recorded the statement of the mother of P.W.1.<\/p>\n
        He does not know whether        P.W.1 was the<\/p>\n
        Marxist worker. He is a friend of P.W.1 for the<\/p>\n
        past 21 years. He is not telling falsehood   in<\/p>\n
Crl.Appeal.No.1427 of 2003
\n                               21<\/span><\/p>\n
        view of his friendship with P.W.1.\n<\/p>\n
     26. P.W.3 (Thakamani) is the mother of P.W.1. She<\/p>\n
is  the   first   informant as well.    At the time of her<\/p>\n
examination of 20-12-2003 she was aged 62 years. Her<\/p>\n
deposition is to the following effect:-<\/p>\n
              She    is a resident of Polookkara. The<\/p>\n
        occurrence took place at 6.30 p.m. on the 3rd<\/p>\n
        Onam day.         Herself and     her husband<\/p>\n
        (Chandran – CW4) were standing on the front<\/p>\n
        courtyard.      Her sons Sadanandan (CW7),<\/p>\n
        Vichithran (P.W.1), Ajayan (CW5) and her<\/p>\n
        neighbour Ajeesh (P.W.8) were talking in the<\/p>\n
        front veranda. While so, some persons came<\/p>\n
        from the west armed with sticks and swords.<\/p>\n
        There were about 10-14 assailants.      Byjulal<\/p>\n
        kicked her husband on his leg and he fell<\/p>\n
        down.     Byjulal is  now no more. When she<\/p>\n
        cried aloud her sons came to the courtyard. At<\/p>\n
Crl.Appeal.No.1427 of 2003
\n                              22<\/span><\/p>\n
        that time Byjulal (A3), Rethi (A4), etc, took out<\/p>\n
        their swords.      Two more persons took out<\/p>\n
        the swords hidden inside their shirt. Seeing<\/p>\n
        this, her sons got frightened and they started<\/p>\n
        running.    The four assailants chased them.<\/p>\n
        She and her daughter also went behind them<\/p>\n
        in a frightened mood. When she reached there<\/p>\n
        her     son P.W.1 was      lying in the yam<\/p>\n
        cultivation situated   near the water channel<\/p>\n
        and about 5 or 8 persons were kicking and<\/p>\n
        beating him. They include A6, A2, A4 and A1.<\/p>\n
        She does not remember others as she was in<\/p>\n
        a perplexed mood.       When she and others<\/p>\n
        raised a hue and cry the assailants withdrew<\/p>\n
        from the scene. She and her daughter carried<\/p>\n
        P.W.1 to the foot steps on the western side of<\/p>\n
        the house and made him sit there. By that<\/p>\n
        time P.W.1’s wife Ajitha also came to his<\/p>\n
Crl.Appeal.No.1427 of 2003
\n                            23<\/span><\/p>\n
        rescue. Suddenly three or four assailants who<\/p>\n
        had withdrawn earlier emerged there. A2 cut<\/p>\n
        P.W.1 on the head.     His wife sustained an<\/p>\n
        injury on her nose.  She does not know as to<\/p>\n
        what happened thereafter.       The assailants<\/p>\n
        went towards the west. P.W.1’s right ear was<\/p>\n
        dangling. The Police came and she uttered<\/p>\n
        something. Ext.P1 is that statement. She does<\/p>\n
        not know as to what all matters were stated to<\/p>\n
        the police. She was not knowing whether her<\/p>\n
        son was alive and what happened to her<\/p>\n
        husband. She was completely put out.      It is<\/p>\n
        not correct to say that the statement given to<\/p>\n
        the police was in accordance with the advice<\/p>\n
        given by the local Marxist leaders. No party<\/p>\n
        men had come there. She does not remember<\/p>\n
        whether she had seen A3 alone taking out the<\/p>\n
        sword from inside his shirt. The occurrence<\/p>\n
Crl.Appeal.No.1427 of 2003
\n                            24<\/span><\/p>\n
        was from the yam cultivation. P.W.1 was at<\/p>\n
        the extreme rear.     All others       had run<\/p>\n
        together. She herself and her daughter had<\/p>\n
        run behind them. While P.W.1 was lying after<\/p>\n
        sustaining the cut he had told that he was cut<\/p>\n
        by Raju (A1).    He again repeated the same<\/p>\n
        while he was        brought from the yam<\/p>\n
        cultivation. Her son Sadanandan plays cards.<\/p>\n
        She does not know whether on the date of<\/p>\n
        occurrence he had gone for playing cards or<\/p>\n
        whether he had picked up any quarrel. She<\/p>\n
        has not given Ext.D1 statement as per which<\/p>\n
        she was told that Byjulal , Rethi, Kadiyan Raju,<\/p>\n
        Rethilal, Thatha Baiju, Sudhi, Vettikka Raju,<\/p>\n
        Kannan, Dixon, Jobby and Shaju etc.     are the<\/p>\n
        persons who had come to her courtyard and<\/p>\n
        assaulted her children. When people started<\/p>\n
        gathering Byjulal (A3)  dropped the sword on<\/p>\n
Crl.Appeal.No.1427 of 2003
\n                             25<\/span><\/p>\n
        the courtyard and ran westwards.      Her son<\/p>\n
        was not able to speak properly from the<\/p>\n
        hospital. His speech was incoherent.    When<\/p>\n
        she saw P.W.1 his ear was hanging and it was<\/p>\n
        bleeding.     She does not remember the<\/p>\n
        occurrence fully. The occurrence was at 6.30<\/p>\n
        p.m. and not at 7.15 p.m. There was sufficient<\/p>\n
        light.   The person residing in the southern<\/p>\n
        house is Sankaran who is the younger brother<\/p>\n
        of her husband.    The inmates of Sankaran’s<\/p>\n
        house were in that house on that day. There<\/p>\n
        is only one house situated close to her house.<\/p>\n
        There are only a few houses in that area and<\/p>\n
        she did not see whether any of them had<\/p>\n
        witnessed the occurrence. Ajitha was in the<\/p>\n
        hospital and she had six stitches.\n<\/p>\n
    27. The only other eye witness (P.W.8) was also injured<\/p>\n
. He along with C.W.5 (Ajayan) were there beneath the<\/p>\n
Crl.Appeal.No.1427 of 2003
\n                             26<\/span><\/p>\n
banyan tree     where people were playing cards. while the<\/p>\n
card game was going on, A3 and A4 insisted that they also<\/p>\n
should be allowed to play the game.       P.W 8 and others<\/p>\n
refused. Then A3 and A4 asked them to stop the game.<\/p>\n
They discontinued the game and disbursed. P.W.8 along<\/p>\n
with C.W.5 then went straight to the house of P.W.1. They<\/p>\n
were sitting in the front portion of P.W.1’s house.      The<\/p>\n
assailants came    there. The parents of P.W.1 were also<\/p>\n
there.     A3 came and kicked C.W.4 (Chandran) on his leg.<\/p>\n
The bone cracked. C.W.4 fell down. P.W.8 and others went<\/p>\n
to the rescue of Chandran. At that time A1 and A2 took out<\/p>\n
the swords which they had concealed in their shirts. Seeing<\/p>\n
this, all of them ran. P.W.8 was in the front and behind him<\/p>\n
the brother P.W.1 was running. P.W.1 was the last man.<\/p>\n
The assailants were chasing them from behind. There were<\/p>\n
three or four persons. When he looked back, he saw A1<\/p>\n
cutting P.W.1 from behind.        In the meanwhile P.W.8<\/p>\n
stumbled upon the ridge and fell down. At that time A3 and<\/p>\n
Crl.Appeal.No.1427 of 2003
\n                             27<\/span><\/p>\n
others came running and he sustained an injury on his leg<\/p>\n
with the tip of the sword in their hands. Seeing that they<\/p>\n
were fast approaching he got up and ran away.    When he<\/p>\n
reached home after some time he saw P.W.1       had been<\/p>\n
wounded. P.W.1 told him that A2 had cut him near his ear.<\/p>\n
They went to the hospital. He had no serious injury which<\/p>\n
required treatment. MO1 is the weapon used by A1 (Raju).<\/p>\n
His house is about 200 metres away. P.W.1 was going to<\/p>\n
Mysore that day and the child of P.W.1 was sick that was<\/p>\n
the reason why he went there. By the time he returned<\/p>\n
after the occurrence it was about 7.15 p.m. and darkness<\/p>\n
had set in.     He had run for about 1 km.      When he<\/p>\n
returned P.W.1 was in his senses and was able to walk and<\/p>\n
speak. There are 7 persons residing on the four sides of<\/p>\n
P.W.1’s house.    He knows    those neighbours. When he<\/p>\n
returned, neighbours like Subramonian, Suran, Asokan and<\/p>\n
Raju were in his house. He does not know whether they<\/p>\n
are Marxist party workers.      That was a card game by<\/p>\n
Crl.Appeal.No.1427 of 2003
\n                               28<\/span><\/p>\n
name 56. There are altogether 8 players.       There was a<\/p>\n
quarrel between those 8 persons. P.W.1 and his brother<\/p>\n
were also there.   That was at about 5 p.m.     The water<\/p>\n
channel is to the east of the yam cultivation. There is no<\/p>\n
water channel to its west. P.W.1 sustained the injury from<\/p>\n
the   yam cultivation. It may be about 100 or 150 metres<\/p>\n
away from the house. The persons who picked up quarrels<\/p>\n
in the card game were Byju and Ratheesh (A3 and A4). The<\/p>\n
total extent of P.W.1’s property would come to 3-4 acres.<\/p>\n
There are houses of Sankaran and Kesavan in the<\/p>\n
neighbourhood.\n<\/p>\n
\n
     ARGUMENTS ON BEHALF OF THE APPELLANTS<\/p>\n
     28. The learned counsel appearing for the appellants<\/p>\n
made the following submissions before me in support of his<\/p>\n
fervent plea for acquittal of the appellants:-<\/p>\n
    A)The specific case of the prosecution is that the<\/p>\n
Crl.Appeal.No.1427 of 2003
\n                             29<\/span><\/p>\n
      occurrence took place at 6.30p.m when there was<\/p>\n
      sufficient light.  According to PWs.1 and 2, the<\/p>\n
      occurrence was between 6 and 6.30 p.m and<\/p>\n
      according to PWs.3 and 8 occurrence was at 6.30 p.m.<\/p>\n
      But in Ext.P1 First Information Statement the time of<\/p>\n
      occurrence is stated as 7.30 p.m. There has been a<\/p>\n
      deliberate attempt to prepone the occurrence so that<\/p>\n
      the failure to offer an explanation regarding the<\/p>\n
      source of light could be explained away.    There is<\/p>\n
      absolutely no evidence adduced regarding the source<\/p>\n
      of light in which the witnesses had seen the<\/p>\n
      occurrence.      From    Ext.P5   wound    certificate<\/p>\n
      pertaining to Ajayan (CW5), it can be seen that the<\/p>\n
      alleged assault was at 7.15p.m when it would be dark.<\/p>\n
      The fact that the occurrence took place after dark is<\/p>\n
      also indicated by the testimony of PWs.1 and 8 who<\/p>\n
      say that MO1 sword was shining.\n<\/p>\n
    B)   The testimony of PW3 (Thankamani) cannot be<\/p>\n
Crl.Appeal.No.1427 of 2003
\n                             30<\/span><\/p>\n
      believed for a moment.       Going by Ext.P1 First<\/p>\n
      Information Statement given by her to PW11, it would<\/p>\n
      appear as though she had witnessed the entire<\/p>\n
      occurrence right from the beginning till the end. Her<\/p>\n
      case in Ext.P1 First Information Statement is that it<\/p>\n
      was A3 who cut PW1, CW3 and PW8. But while in the<\/p>\n
      witness box PW3 does not mention about this part of<\/p>\n
      the occurrence as stated in Ext.P1. The testimony of<\/p>\n
      PW3 is fraught with     irreconcilable contradictions,<\/p>\n
      omissions and exaggerations.       PW3     has denied<\/p>\n
      Ext.D1 contradiction in Ext.P1 First Information<\/p>\n
      Statement wherein the names of A3, A4, A1, A8, A6<\/p>\n
      and A5 and one Nellikka Baiju, A11, A7,A9 and A10<\/p>\n
      had been mentioned. But in Court she deposed that<\/p>\n
      she did not mention their names. It will be unsafe to<\/p>\n
      rely on the testimony of such a witness to confirm the<\/p>\n
      conviction against the appellants.\n<\/p>\n
    C) While according to PW1 and PW8, A1 to A4 did not<\/p>\n
Crl.Appeal.No.1427 of 2003
\n                              31<\/span><\/p>\n
      initially reveal the weapons which they were hiding in<\/p>\n
      their shirts, according to PW3 a few persons armed<\/p>\n
      with sticks and swords came there from the western<\/p>\n
      side.\n<\/p>\n
    D) The testimony of PWs.1,2 and 8 also suffers from<\/p>\n
      contradictions,    omissions   and    embellishments.<\/p>\n
      PWs.1,2 and 8 are all goldsmiths interested in<\/p>\n
      supporting the prosecution at any cost. PW2, who<\/p>\n
      claims to have seen the occurrence from the paramba<\/p>\n
      situated to the south of the house of PW1 could not<\/p>\n
      have seen the occurrence since there were so many<\/p>\n
      trees preventing vision. His presence at the place<\/p>\n
      itself is doubtful. These witnesses who are all active<\/p>\n
      workers of the BJP-RSS in that locality were falsely<\/p>\n
      implicating the appellants from out of political<\/p>\n
      antagonism.\n<\/p>\n
    E) The motive put forward by the prosecution is also<\/p>\n
      totally unbelievable.   In the final report   what is<\/p>\n
Crl.Appeal.No.1427 of 2003
\n                             32<\/span><\/p>\n
      alleged is that the animosity was on account of the<\/p>\n
      dispute at the place where cards were played at 5 p.m<\/p>\n
      on the same day. What exactly was the dispute is not<\/p>\n
      stated.  While according to PW1 he was not present<\/p>\n
      at the site below the Banyan tree where the cards<\/p>\n
      were being played, the evidence of PW8 would go to<\/p>\n
      show that PW1 and his brother were also there at the<\/p>\n
      place where the card game was played. According to<\/p>\n
      PW8 while they were playing cards A3 and A4 came<\/p>\n
      there and asked to include them also in the game and<\/p>\n
      they were not allowed. Thereupon, they asked the<\/p>\n
      players to stop the game and the players discontinued<\/p>\n
      the game and went away. At any rate, there is no<\/p>\n
      evidence to show that any of the accused had any<\/p>\n
      motive against PW1 or others so as to proceed to their<\/p>\n
      house armed with deadly weapons and mount an<\/p>\n
      attack against the members of the family.<\/p>\n
    F) PWs.1,2,3 and 8 did not have previous acquaintance<\/p>\n
Crl.Appeal.No.1427 of 2003
\n                               33<\/span><\/p>\n
      with any of the assailants . Hence, dock identification<\/p>\n
      for the first time in court after 6 years of the<\/p>\n
      occurrence is absolutely valueless.   Even in Ext.P1<\/p>\n
      First Information Statement what PW3 had stated is<\/p>\n
      that the assailants are identifiable by sight. Such a<\/p>\n
      woman could not have identified the assailants for the<\/p>\n
      first time in court after 6 years.\n<\/p>\n
    G) Ext.P2 Scene Mahazar shows that the house of one<\/p>\n
      Sankaran S\/o.Kunjappan is situated only 18.30 meters<\/p>\n
      to the south-east of the house of PW1 and the house<\/p>\n
      of one Subramanian s\/o.Velayudhan is situated at a<\/p>\n
      distance of 11.55 meters to the north-west of the<\/p>\n
      house of PW1 and the house of one Shaju s\/o.Kesavan<\/p>\n
      is situated at a distance of 23.10 meters to the north<\/p>\n
      of the house of PW1, the house of Subran, son of<\/p>\n
      Kesavan is situated at a distance of 25 metres further<\/p>\n
      north. PW3 deposed that Sankaran residing in the<\/p>\n
      southern house was available in his house. In spite of<\/p>\n
Crl.Appeal.No.1427 of 2003
\n                              34<\/span><\/p>\n
      that none of the nearby residents has been cited as<\/p>\n
      witnesses to the occurrence.   Latha (CW8) who was<\/p>\n
      in the company of PW3,Ajitha, (CW3) who was injured<\/p>\n
      during the 2nd attack, Chandran (CW4) who sustained<\/p>\n
      a fracture on his right leg, Ajayan(CW5) another<\/p>\n
      injured  witness,       Sadanandhan    CW7    and   2<\/p>\n
      independent witnesses Sathyan (CW9) Anil Kumar<\/p>\n
      (CW11) etc. have all been kept out of the witness box.<\/p>\n
      Instead, persons who were either closely related to<\/p>\n
      PW1 or his close friends alone have been examined as<\/p>\n
      witnesses to the occurrence.\n<\/p>\n
    H)    Eventhough PW1 claims to have known the<\/p>\n
      assailants even before the occurrence what was<\/p>\n
      stated to the doctor at 7.45 p.m on 16.9.1997 as<\/p>\n
      evidenced by Ext.P3 wound certificate       is that a<\/p>\n
      person identifiable by sight came to his house and cut<\/p>\n
      him. Failure to mention the names of the assailants to<\/p>\n
      the doctor is a serious flaw.\n<\/p>\n
Crl.Appeal.No.1427 of 2003
\n                             35<\/span><\/p>\n
    I) Eventhough, according to the prosecution witnesses,<\/p>\n
      4 of the assailants were armed with swords, 3 swords<\/p>\n
      alone have been produced before court. MO1 is the<\/p>\n
      sword which was allegedly used by A1 and seized as<\/p>\n
      per Ext.P6 mahazar in which it is recited that there<\/p>\n
      were blood stains on the sword. Likewise, MO5 is the<\/p>\n
      blood stained dress worn by A8 and recovered as per<\/p>\n
      Ext.P8 mahazar.     MO2    sword   was recovered by<\/p>\n
      PW12 as per Ext.P11 seizure mahazar pursuant to the<\/p>\n
      confession by A2.   The said sword is described as<\/p>\n
      smeared with blood. PW1 has admitted that one of<\/p>\n
      the swords shown to him by the Police had blood<\/p>\n
      smears.     PW11, the Investigating Officer       has<\/p>\n
      admitted that the swords and MO5 dress were not<\/p>\n
      sent for chemical examination to confirm the presence<\/p>\n
      of blood on those material objects.    This is also a<\/p>\n
      serious flaw, the benefit of which should undoubtedly<\/p>\n
      go to the accused.\n<\/p>\n
Crl.Appeal.No.1427 of 2003
\n                              36<\/span><\/p>\n
    J)  The alleged confession made by A1 to PW11 is<\/p>\n
      neither extracted in Ext.P6 Mahazar nor deposed to<\/p>\n
      by PW11 while giving evidence. Likewise, the alleged<\/p>\n
      confession of A2 is neither extracted in Ext.P11<\/p>\n
      search list in the words of A1 nor was it deposed to by<\/p>\n
      PW12. Hence, the recovery under Exts.P6 and P11<\/p>\n
      do not fall under Section 27<\/a> of the Evidence Act.<\/p>\n
      That apart, the confessions of A1 and A2 recited in<\/p>\n
      third person in Exts.P6 and P11 fall short of the<\/p>\n
      authorship of concealment. A1 and A2 had not stated<\/p>\n
      that they had concealed the weapons at the respective<\/p>\n
      places mentioned. Hence the recovery of MO1 and<\/p>\n
      MO2 swords does not fall under Section 27<\/a> of the<\/p>\n
      Evidence Act and cannot be relied on.\n<\/p>\n
                   JUDICIAL EVALUATION<\/p>\n
     28. I am afraid that I cannot agree with the above<\/p>\n
submissions. It is true that all the prosecution witnesses<\/p>\n
Crl.Appeal.No.1427 of 2003
\n                               37<\/span><\/p>\n
mentioned that the occurrence took place either at       6 pm<\/p>\n
or 6.30 pm, when there would have been sufficient light for<\/p>\n
each of them to witness the occurrence.          But going by<\/p>\n
Ext.P5 wound certificate pertaining to Ajayan(CW5) it is<\/p>\n
stated that the assault was at 7.15 pm.           As per the<\/p>\n
testimony of PW11 (the Sub Inspector) he reached the place<\/p>\n
of occurrence within 10 mts of getting information about<\/p>\n
the occurrence and the time of occurrence stated by PW3<\/p>\n
was 7.30 pm.      If so, it is reasonable to infer that the<\/p>\n
occurrence might have taken place between 7.15 and 7.30<\/p>\n
p.m. It is also true that none of the prosecution witnesses<\/p>\n
has deposed about the presence of light at the scene of<\/p>\n
occurrence. Except suggesting that it was dark, nobody<\/p>\n
was asked by the defence as to whether there was any<\/p>\n
source of light enabling them to witness the occurrence. It<\/p>\n
is pertinent to note that if the assailants had enough light to<\/p>\n
identify their  targets and inflict injuries on them using<\/p>\n
deadly weapons carried by them, it is futile for the defence<\/p>\n
Crl.Appeal.No.1427 of 2003
\n                              38<\/span><\/p>\n
to contend that it was dark and there was no sufficient light<\/p>\n
enabling the witnesses to see and identify the assailants. In<\/p>\n
State of Uttar Pradesh v. Nahar Singh<\/a> ( 1998 SCC (Crl)<\/p>\n
850) the Apex Court observed that        when the light was<\/p>\n
enough to enable the assailants to identify their victims it<\/p>\n
could not be said that the light was not enough to identify<\/p>\n
the assailants. In Kalika Tiwari v. State of Bihar<\/a> (1997<\/p>\n
SCC (Crl)600) the Apex Court observed that the visibility<\/p>\n
capacity of urban people who are acclimatised to<\/p>\n
fluorescent lights or incandescent lamps is not the standard<\/p>\n
to be applied to villagers whose optical potency is attuned<\/p>\n
to country-made lamps. The witnesses in this case are all<\/p>\n
rustic witnesses and the assailants are also known to them,<\/p>\n
though not by name. In fact, PW1 has stated that he had<\/p>\n
seen all of them at Polukara and they were coming to his<\/p>\n
house for the first time only on the date of occurrence.<\/p>\n
     30.  There is a classic observation by the Supreme<\/p>\n
Court in Kedar Singh and Others v. State of Bihar<\/a> (1998<\/p>\n
Crl.Appeal.No.1427 of 2003
\n                               39<\/span><\/p>\n
SCC Crl.907) where the incident took place at 8 p.m. This<\/p>\n
is what the Apex Court observed:-\n<\/p>\n
          “Even on a full dark night there is never total<\/p>\n
     darkness. Identification is possible through shape of<\/p>\n
     body, clothes, gait, manner of walking etc. and also by<\/p>\n
     voice.”\n<\/p><\/blockquote>\n
  The assailants in this case are not strangers to the eye<\/p>\n
witnesses and they were all used to be traditional native<\/p>\n
habits. Hence, the identification of the assailants by the<\/p>\n
prosecution witnesses cannot be said to be faulty.<\/p>\n
     31.    No doubt the testimony of PW3 is full of<\/p>\n
contradictions, as rightly contended by the learned counsel<\/p>\n
for the appellants.       Eventhough, she has narrated the<\/p>\n
entire occurrence in Ext.P1, F.I.Statement, she has not<\/p>\n
stated in Ext.P1 that she had seen the entire occurrence.<\/p>\n
The source of her information about the occurrence can be<\/p>\n
hearsay as well. For setting the law in motion, one does not<\/p>\n
have to be an occurrence witness. PW3 did not narrate<\/p>\n
Crl.Appeal.No.1427 of 2003
\n                            40<\/span><\/p>\n
before court most part of the occurrence in which PW1<\/p>\n
sustained cut on his right ear. Evidently she has not seen<\/p>\n
that part of the occurrence. It must be remembered that it<\/p>\n
was without any hint or indication that more than 10<\/p>\n
assailants suddenly barged into the compound of PW1<\/p>\n
armed with deadly weapons. PW3 and her husband were<\/p>\n
standing in the courtyard when the assailants made their<\/p>\n
entry. As observed by the Apex Court, every person who<\/p>\n
witnesses a ghastly crime reacts in his own way. Some may<\/p>\n
be stunned; some become speechless ; some stand rooted to<\/p>\n
the spot; some become hysteric and others start wailing.<\/p>\n
Some start shouting for help. Still others run away to keep<\/p>\n
themselves as far removed from the spot as possible. Still<\/p>\n
others rush to the rescue of the victim, even going to the<\/p>\n
extent of counter-attacking the assailants. None of these<\/p>\n
witnesses can be said to be unbelievable merely because he<\/p>\n
or she reacted in a particular way. Everyone reacts in his<\/p>\n
own specific way. There is no set rule of natural reaction.<\/p>\n
Crl.Appeal.No.1427 of 2003
\n                             41<\/span><\/p>\n
To discard the evidence of the witnesses on the ground that<\/p>\n
they did not react in any particular manner is to appreciate<\/p>\n
evidence in a wholly unrealistic and unimaginative way.<\/p>\n
See Rana Pratap and others v. State of Haryana<\/a> (AIR<\/p>\n
1983 SC 680)<\/p>\n
     32. When the assailants in this case made their entry<\/p>\n
into the compound towards dusk, PW3 and her husband<\/p>\n
and other family members were in relaxed mood. Seeing<\/p>\n
the sudden emergence of the assailants she must have been<\/p>\n
dumb founded and stunned.         The occurrence was then<\/p>\n
taking place in quick succession and PW1 cannot be<\/p>\n
expected    to recall each of the sequence        of events,<\/p>\n
particularly when she was giving evidence 6 years after the<\/p>\n
occurrence. Even if she were physically present at the spot<\/p>\n
it may not be possible for her to register each and every<\/p>\n
episode, retain the same and recapitulate either to the<\/p>\n
police officer sooner or later or depose before court years<\/p>\n
thereafter. Hence, the testimony of PW3 cannot decide the<\/p>\n
Crl.Appeal.No.1427 of 2003
\n                               42<\/span><\/p>\n
fate of the prosecution in this case.\n<\/p>\n
     33. PWs.1,2 & 8 who are the other eye witnesses to<\/p>\n
the occurrence have given a credible account of the<\/p>\n
occurrence. No doubt, there are contradictions, omissions<\/p>\n
and exaggerations in their testimony as well.          Such<\/p>\n
contradictions, omissions, exaggerations, embellishments<\/p>\n
etc. are bound to happen even in the case of the most<\/p>\n
truthful witnesses. As long as those aspects do not affect<\/p>\n
the main core of the testimony, such contradictions,<\/p>\n
omissions, exaggerations and embellishments are liable to<\/p>\n
be discarded by the courts while appreciating the evidence.<\/p>\n
The testimony of these 3 witnesses clearly shows that at<\/p>\n
about day break on that day, more than 10 assailants<\/p>\n
suddenly barged into the compound of PW1. Among them<\/p>\n
A2 first set upon Chandran, the father of PW1 by kicking on<\/p>\n
his right leg. The blow was so heavy that he fell down<\/p>\n
sustaining a fracture of     2nd metatarsal of right foot as<\/p>\n
evidenced by Ext.P4 wound certificate proved by PW7.<\/p>\n
Crl.Appeal.No.1427 of 2003
\n                             43<\/span><\/p>\n
When PW1 and others went to the rescue of their father,<\/p>\n
A1 to A4 took out the deadly swords which they were hiding<\/p>\n
in the shirts worn by them.     Thereupon sensing danger<\/p>\n
PW1, his brothers and others including PW8 who was a<\/p>\n
neighbour talking with them, took to their heels. PW8 was<\/p>\n
in the front and PW1 was the last man. The assailants,<\/p>\n
mainly A1 to A4 chased them with the deadly weapons in<\/p>\n
their hands. PWs.1 and 8 and others were taking a course<\/p>\n
towards the yam     cultivation on the eastern side of the<\/p>\n
house. On the way A1 cut PW1 on the right ear resulting in<\/p>\n
PW1 sustaining a bleeding injury. His right pinna was cut<\/p>\n
and the piece of the pinna was dangling.        PW1 after<\/p>\n
receiving the cut ran further and he jumped over the water<\/p>\n
channel and fell into the yam cultivation, which going by<\/p>\n
Ext.P2 scene mahazar, is situated 78.80 metres     away at<\/p>\n
the back of the house.    When the mother(PW3) and the<\/p>\n
sister (CW8) of PW1 came to the spot raising a hue and cry,<\/p>\n
the assailants withdrew from the spot . Wounded PW1 was<\/p>\n
Crl.Appeal.No.1427 of 2003
\n                              44<\/span><\/p>\n
brought to the front portion of the house and made to sit<\/p>\n
there.  His wife Ajitha(CW3) came and started bringing<\/p>\n
succor to him. It was at that time that suddenly A2 and<\/p>\n
others emerged at the spot and mounted a fresh attack on<\/p>\n
PW1 again by A2 cutting him with MO2 sword on the head<\/p>\n
twice in the course of which the tip of the sword hit the<\/p>\n
nose of his wife Ajitha(CW3). She also sustained an injury.<\/p>\n
When people started pouring in, the assailants made good<\/p>\n
their escape through the western side after A3 leaving MO3<\/p>\n
sword at the place of occurrence and it was subsequently<\/p>\n
seized by PW11, the Investigating Officer at the time of<\/p>\n
preparing Ext.P2 scene       mahazar.    This aspect of the<\/p>\n
occurrence is amply proved by the testimony of PW1, 2 and<\/p>\n
8.<\/p>\n
     34. It is true that the prosecution has not examined all<\/p>\n
the injured persons and all the persons who were witnesses<\/p>\n
to the occurrence. The prosecution has no duty to examine<\/p>\n
each and every eye witness and each and every injured<\/p>\n
Crl.Appeal.No.1427 of 2003
\n                              45<\/span><\/p>\n
person. It is a discretion available to the Public Prosecutor .<\/p>\n
When the entire occurrence has been unfolded through the<\/p>\n
testimony of PWs,1,2,3 and 8, the Public Prosecutor in<\/p>\n
charge of the case might have used his discretion by not<\/p>\n
examining the rest of the injured persons.         It must be<\/p>\n
remembered that PW1 is the person who sustained the<\/p>\n
major injuries as    revealed by Ext.P3 wound certificate.<\/p>\n
Hence the prosecution has chosen to examine him. It<\/p>\n
cannot be said that the discretion was improperly exercised.<\/p>\n
     35. Failure by PW1 and others to mention the name<\/p>\n
of the assailants    to the doctor also cannot be taken<\/p>\n
advantage of by the defence to contend that the prosecution<\/p>\n
case is to be thrown out. Failure by the injured to mention<\/p>\n
the name of the person who stabbed him does not mean<\/p>\n
that he was not aware as to who stabbed him. It is a matter<\/p>\n
of common knowledge that such an entry in the wound<\/p>\n
certificate does not necessarily amount to a statement. At<\/p>\n
Crl.Appeal.No.1427 of 2003
\n                              46<\/span><\/p>\n
that stage, the doctor was required to fill up the columns<\/p>\n
in the wound certificate in a normal manner and it was not<\/p>\n
the duty of the doctor to enquire from the injured about the<\/p>\n
actual assailants.    Doctor’s enquiry is confined to the<\/p>\n
question as to how the injuries namely the weapon used<\/p>\n
etc. The paramount duty of the doctor is to save the patient.<\/p>\n
He is not concerned about who committed the offence etc.<\/p>\n
(See Venkaiah v. State of Andra Pradesh<\/a> (1985 SC 1715)<\/p>\n
and State of Kerala v. Kilakkatha Parambath Sasi and<\/p>\n
others<\/a> (2004(2)KLJ606).\n<\/p>\n
\n
     36. It is true that neither the weapons nor MO5 dress<\/p>\n
of A8 were sent for chemical examination         to confirm<\/p>\n
whether they were smeared with human blood.       When the<\/p>\n
occular and other evidence in the case clearly proves that<\/p>\n
the injuries were caused with the weapons produced,<\/p>\n
omissions to send the weapon to the serologist to determine<\/p>\n
whether the blood on the weapon was human blood or not<\/p>\n
Crl.Appeal.No.1427 of 2003
\n                             47<\/span><\/p>\n
cannot put the prosecution case out of court. (See the last<\/p>\n
portion of the decision in Ananta Mahanto v\/s.State of<\/p>\n
Orissa- AIR 1979 SC 1433).       Even if the weapons were<\/p>\n
sent it could be argued that the serological test could not<\/p>\n
locate the origin of the blood or the owner of the blood.<\/p>\n
There can be no end for such exercise. At the most, as<\/p>\n
observed by the Apex Court in Surendra Paswan v. State<\/p>\n
of Jharkand (2003(12)SCC 360) the failure to send the<\/p>\n
weapon to the serologist may be a defect in the<\/p>\n
investigation, but it does not corrode the evidentiary value<\/p>\n
of the eye witnesses. Moreover this is not a flaw in the<\/p>\n
investigation which the defence can take advantage of (See<\/p>\n
State of Karnataka vs. Yarappa Reddi<\/a> – 1999(3) KLT 456<\/p>\n
(SC).\n<\/p>\n
     37. It may be out of ignorance that the exact confession<\/p>\n
statements of A1 and A2 have not been extracted in Exts.P6 and<\/p>\n
P11.   PWs.11 and 12 the investigating officers also did not<\/p>\n
depose before Court about the confession of A1 and A2 in their<\/p>\n
Crl.Appeal.No.1427 of 2003
\n                                48<\/span><\/p>\n
own words (that is ipsissima verba). But that alone cannot<\/p>\n
render the evidence of recovery inadmissible. However, in the<\/p>\n
absence of a statement by A1 and 2 that it was they who had<\/p>\n
concealed the weapons at the respective places from which the<\/p>\n
weapons were recovered, the defence can legitimately contend<\/p>\n
that this statement cannot fall under Section 27<\/a> of the Evidence<\/p>\n
Act, for want of authorship     of concealment.    Even if those<\/p>\n
statements would not fall under Section 27<\/a> of the Evidence Act,<\/p>\n
the conduct of A1 and A2        leading the Police party to the<\/p>\n
respective places and pointing out the weapons will certainly<\/p>\n
fall under Section 8<\/a> of the Evidence Act and can constitute yet<\/p>\n
another piece of incriminating evidence (Prakash Chand v.<\/p>\n
State (Delhi Administration<\/a> (AIR 1979 SC 400) Raveendran<\/p>\n
v. State<\/a> (1989(2) KLJ 534)<\/p>\n
      38. After a careful evaluation of the oral and documentary<\/p>\n
evidence in the case, I have no hesitation to conclude that there<\/p>\n
was an unlawful assembly consisting of A1 to A4 and others<\/p>\n
formed with the common object of committing offences<\/p>\n
punishable under Sections 323<\/a>,324<\/a>,325<\/a> and 307<\/a> IPC and all the<\/p>\n
members of the unlawful assembly committed rioting, armed<\/p>\n
Crl.Appeal.No.1427 of 2003
\n                                49<\/span><\/p>\n
with deadly weapons, such as swords etc. But at the same time<\/p>\n
except statement by PW1 to the effect that A5,A6 & A8 were also<\/p>\n
present among the assailants, there is nothing to show that those<\/p>\n
persons shared the common object of the said assembly or that<\/p>\n
they committed any overt acts. PW2 added the name of A12 also<\/p>\n
as one of the persons who was present. PW8, the other eye-<\/p>\n
witnesses has not implicated anybody specifically except A1 to<\/p>\n
A3. PW3 has implicated A1 to A4 and A6.      Hence, it may not be<\/p>\n
safe to convict   A5,A6,A10 and A12 mainly for their alleged<\/p>\n
presence for which also there is no unanimous testimony. But<\/p>\n
the existence of an unlawful assembly though not with<\/p>\n
A5,A6,A10    and   A12   as members      was definitely     there.<\/p>\n
Accordingly, I do not think the conviction recorded against<\/p>\n
A5,A6,A10 and      A12 is     sustainable.   Those accused are,<\/p>\n
therefore, found not guilty of the offences punishable under<\/p>\n
Sections 143<\/a>, 145<\/a>, 147<\/a>, 148<\/a>, 323<\/a>, 324<\/a>, 325<\/a> and 307<\/a> read with<\/p>\n
149 IPC<\/a> and are acquitted of the same. They shall be set at<\/p>\n
liberty forthwith. Since A3 died pending trial, the charge against<\/p>\n
him stands abated. In the case of accused Nos.1,2 and 4 who are<\/p>\n
appellants 1 to 3, they were rightly convicted by the court below<\/p>\n
Crl.Appeal.No.1427 of 2003
\n                               50<\/span><\/p>\n
for the aforementioned offences.    The sentence imposed on<\/p>\n
them also cannot be said to be harsh or disproportionately<\/p>\n
excessive.  Accordingly, the conviction entered and sentence<\/p>\n
passed against Accused Nos.1,2 and 4 are hereby confirmed.<\/p>\n
     In the result, this appeal is allowed in part acquitting<\/p>\n
accused Nos.5,6,10 and 12, but confirming the conviction<\/p>\n
entered and the sentence passed against accused Nos.1,2 and 4.<\/p>\n
Dated this the 1st day of December, 2009.<\/p>\n
                                       V. RAMKUMAR, JUDGE<\/p>\n
sj\/rv\/ani<\/p>\n","protected":false},"excerpt":{"rendered":"
Kerala High Court Raju @ Kadiyan Raju vs State Of Keral on 1 December, 2009 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, […]<\/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-250072","post","type-post","status-publish","format-standard","hentry","category-high-court","category-kerala-high-court"],"yoast_head":"\nRaju @ Kadiyan Raju vs State Of Keral on 1 December, 2009 - 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\/raju-kadiyan-raju-vs-state-of-keral-on-1-december-2009\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Raju @ Kadiyan Raju vs State Of Keral on 1 December, 2009 - 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