{"id":40235,"date":"2007-02-20T00:00:00","date_gmt":"2007-02-19T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/madampalli-mammootty-vs-state-of-kerala-on-20-february-2007"},"modified":"2016-11-13T20:51:16","modified_gmt":"2016-11-13T15:21:16","slug":"madampalli-mammootty-vs-state-of-kerala-on-20-february-2007","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/madampalli-mammootty-vs-state-of-kerala-on-20-february-2007","title":{"rendered":"Madampalli Mammootty vs State Of Kerala on 20 February, 2007"},"content":{"rendered":"
Kerala High Court<\/div>\n
Madampalli Mammootty vs State Of Kerala on 20 February, 2007<\/div>\n
       \n\n  \n\n  \n\n \n \n  IN THE HIGH COURT OF KERALA AT ERNAKULAM\n\nCRL A No. 573 of 2005()\n\n\n1. MADAMPALLI MAMMOOTTY, S\/O.MOOSA,\n                      ...  Petitioner\n2. KADAR MAJEED, S\/O.ABDULLA,\n3. O.C.ABDULLA @ OSSAM ABDULLA,\n4. CHEENAMBADAN AZEEZ, S\/O.ABDULLA,\n5. MAKKI ABDULLA, S\/O.MOIDU,\n\n                        Vs\n\n\n\n1. STATE OF KERALA, THROUGH THE\n                       ...       Respondent\n\n                For Petitioner  :SRI.SUNNY MATHEW\n\n                For Respondent  : No Appearance\n\nThe Hon'ble MR. Justice K.THANKAPPAN\n\n Dated :20\/02\/2007\n\n O R D E R\n<\/pre>\n
                                      K.Thankappan, J.\n<\/p>\n
                  – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – –\n<\/p>\n
                                  Crl. A. No.  573  of 2005<\/p>\n
                  – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – –\n<\/p>\n
                       Dated this the 20th day of  February, 2007<\/p>\n
                                           JUDMENT<\/p>\n
          The  accused Nos. 1,2,13,14 and 15 in S.C. 25 of 1997 on the file of<\/p>\n
the Court of the Additional Sessions Judge (Adhoc)-I, Wayanad, Kalpetta are<\/p>\n
the   appellants.     The   appellants   and   11   other   accused     faced     trial     for   the<\/p>\n
offences punishable under sections 143, 147, 148, 452, 323, 120B, 307 read<\/p>\n
with   section   149   IPC.     Brief   facts   of   the   prosecution   case   against   the<\/p>\n
appellants and other accused is  as follows:-  On 19th September, 1993 there<\/p>\n
was a communal clash at Kundala in Mananthavady between the Bharathya<\/p>\n
Janata Party and Muslim League. Enraged at this,   the appellants and other<\/p>\n
accused  persons,   who   entered into  a criminal conspiracy to murder   PW1<\/p>\n
and     PW2   Gopu,   the   supporters   of   Bharathya   Janatha   Party,   armed   with<\/p>\n
deadly   weapons   like   chopper,   iron   rod   etc.,   formed   themselves   into   an<\/p>\n
unlawful assembly at 1 A.M. on 20-9-1993 and  reached the house of PW1<\/p>\n
and   when PW1 opened the door,  the appellants and other accused persons<\/p>\n
trespassed  into the house of PW1,   appellants 1 and 2 inflicted cut injuries<\/p>\n
with a chopper on PW1, the 9th  accused beat PW1 with an iron rod and the<\/p>\n
other   accused   persons   beat   and   kicked   PW1   and   thereby   caused   grievous<\/p>\n
injuries to PW1 and thereby attempted to kill PW1.  On the above allegation<\/p>\n
Crl.A.573\/2005                                 2<\/span><\/p>\n
the   appellants   and   other   accused   persons   have   been   committed   the<\/p>\n
offence   punishable  under  section  143,  147,  148,   452,  323,  120(b),  307<\/p>\n
read with section 149 IPC.  To prove the case against the appellants and<\/p>\n
other  accused,  PW1  to  PW17  were examined  and  Exts.P1  to  P13  were<\/p>\n
marked.   MO1   to   MO6   were   also   marked.       When   the   appellants   were<\/p>\n
questioned under section 313 of Cr.P.C., they denied the  allegation and<\/p>\n
stated that  they were innocent.  Relying on the evidence adduced by the<\/p>\n
prosecution   both,   oral   and   documentary,   the   trial   court   found   that     the<\/p>\n
appellants   guilty under sections 143, 147, 148, 452, 323, 307 read with<\/p>\n
section 149 IPC   and   they were  convicted thereunder and sentenced to<\/p>\n
undergo rigorous imprisonment for two years each and to pay   a fine of<\/p>\n
Rs.51,000\/- each and in default to undergo simple imprisonment for three<\/p>\n
months   each   under   section   147   read   with   149   IPC.     Though   the<\/p>\n
appellants were found guilty under section 143 and 147 read with section<\/p>\n
149,   section 147 being a higher offence involving all these ingredients,<\/p>\n
no separate sentence was awarded under section 143 IPC  as per section<\/p>\n
71 IPC. They were  sentenced to undergo rigorous imprisonment for two<\/p>\n
years each and to pay a fine of Rs.20,000\/- each and in default to undergo<\/p>\n
simple imprisonment   for four months each under section 148 read with<\/p>\n
section   149   IPC.   They   were   also   sentenced   to   undergo   rigorous<\/p>\n
Crl.A.573\/2005                                   3<\/span><\/p>\n
imprisonment for five years each and to pay a fine  of Rs.25,000\/- each<\/p>\n
and   in   default   to   undergo   simple   imprisonment     for   six   months   under<\/p>\n
section   452   read   with   section   149   IPC.     The   trial   court   found   that   the<\/p>\n
appellants     were   found   guilty   under   sections   323   and   307   read   with<\/p>\n
section 149 IPC and  they were sentenced only for higher offence under<\/p>\n
section 307 IPC to undergo rigorous imprisonment for 10 years each and<\/p>\n
to   pay   a   fine   of   Rs.1,00,000\/-   each   and   if   the   fine   amount   of<\/p>\n
Rs.1,00,000\/-     was   realized,     that   would   be   given   to   PW1   towards   the<\/p>\n
pain   and   suffering.     Challenging   the   conviction   and   sentence   ordered<\/p>\n
against the appellants, the appeal is filed.\n<\/p>\n
          2.  The learned counsel for the appellants has taken the following<\/p>\n
contentions   to   challenge   the   impugned   judgment.   Firstly,   the   learned<\/p>\n
counsel   contended that   the trial court has   committed serious error in<\/p>\n
relying on the evidence tendered by the  prosecution witnesses to enter  a<\/p>\n
finding against the appellants,  as the evidence tendered by the witnesses<\/p>\n
are  mutually contradictory  and   inconsistent.    Secondly,  it  is  contended<\/p>\n
that the trial court had committed serious error in finding  the appellants<\/p>\n
guilty under sections 143, 147, 148, 452, 323, 307 read with section 149<\/p>\n
IPC, as the witnesses failed to identify the appellants as the persons who<\/p>\n
Crl.A.573\/2005                                4<\/span><\/p>\n
had   participated   in   the   commission   of   the   offences.   Thirdly,   it   is<\/p>\n
contended that the trial court  had committed serious error in convicting<\/p>\n
the appellants under section 307 IPC, as there was no medical evidence<\/p>\n
to prove that the appellants had committed the above  acts in prosecution<\/p>\n
of their common object to commit murder as alleged by the prosecution.\n<\/p>\n
Finally, the learned counsel contended that the sentence awarded against<\/p>\n
the appellants are excessive.\n<\/p>\n
               3.   As  per   the   prosecution   case,   the   motive     to   commit   the<\/p>\n
offence   by   the   appellants   and   other   accused   is   the   common   object   of<\/p>\n
committing   the   murder   of   PW1   on   account   of   political   enmity.       The<\/p>\n
prosecution   mainly   relies   on   the   evidence   of   PW1   injured,   PW3<\/p>\n
Mohanan, PW4 Francis, PW5 wife of  PW1 and PW6 daughter of PW1.\n<\/p>\n
All   these   witnesses   were   examined   as   occurrence   witnesses   to   the<\/p>\n
prosecution. PW1, PW3 to PW6 were examined as eye witnesses to the<\/p>\n
occurrence.   PW3,   PW4,   PW7   and   PW8   were     not   supporting   the<\/p>\n
prosecution   case   and   hence   they   were   declared   as     hostile   to   the<\/p>\n
prosecution.       PW9   was   examined   to   prove   Ext.P3   mahazar.   He<\/p>\n
identified   MO1   and   MO2.     PW10   and   PW11   were   also   examined   to<\/p>\n
prove   Ext.P4   recovery   mahazar,     under   which   certain   material   objects<\/p>\n
were recovered<\/p>\n
Crl.A.573\/2005                                    5<\/span><\/p>\n
          4.  PW,  the    injured,    stated   that  on   the  date  of  the  incident   he<\/p>\n
along with his wife was sleeping at the room on the western side of the<\/p>\n
middle room and at about 12- 12.30, they heard some one   knocking at<\/p>\n
the door. He came to the central room and switched on the light to kolai.\n<\/p>\n
He saw three – four persons who were known to him, the appellants, and<\/p>\n
in total there were about 10 – 12 persons. He further stated that  when he<\/p>\n
opened   the   door,   1st  appellant   inflicted   a   cut   on   his   left   shoulder,     in<\/p>\n
which  he sustained injuries, and    the 2nd  appellant inflicted another cut<\/p>\n
on   his   head   and   on   that   cut   his   ear   also   wounded   and     ear   hanged.\n<\/p>\n
Thereafter shouting ”                         “2nd appellant pushed him to the<\/p>\n
courtyard.  Then  two  or  three  persons  beaten  and  kicked  him with  iron<\/p>\n
rod   and   coffee   stick.     PW1   specifically   stated   that   appellants   1   and   2<\/p>\n
inflicted  cut   on   his   body.   He   identified    2nd  appellant,5th  appellant,  1st<\/p>\n
appellant, 3rd appellant and 4th appellant.  He also identified the material<\/p>\n
objects.\n<\/p>\n
            5. PW2, son of PW1, stated  that his  father sustained injury on<\/p>\n
19-9-1991. On that day he was   not in the house and he was in his wife’s<\/p>\n
residence.     He   stated   that   his   father   had   disclosed   that     the   appellants<\/p>\n
Crl.A.573\/2005                                            6<\/span><\/p>\n
and others came to the house in the night   and his father was called out<\/p>\n
and   when  he  came   out   of   the   house,   1st  appellant   inflicted   a   cut,   then<\/p>\n
followed  by Majeed  inflicted  a  cut  on  his  head  and   pushed   him to  the<\/p>\n
courtyard   shouting  ”\n<\/p>\n
                                                                          “PW5,   wife   of   PW1,   stated<\/p>\n
that  at about 12 O’ Clock they heard some one knocking on the door and<\/p>\n
after   switching   on   light,   PW1   went   to   the   varandha.     She   and   her<\/p>\n
daughter accompanied PW1 stood at the door of the varandha. Then 2nd<\/p>\n
appellant   requested   to   open   the   door.   She   stated   that   they   saw   some<\/p>\n
people   outside.   Among   them   she   identified   appellants   1   and   2.  She<\/p>\n
further   stated   that         ”\n<\/p>\n
                                                .<\/p>\n
                                                                                   .\n<\/p><\/blockquote>\n
                            .”<\/p><\/blockquote>\n
          6. PW6, daughter of PW1, had given evidence in support of the<\/p>\n
evidence of PW1 and PW5. She identified appellants 1 and 2. She stated<\/p>\n
as follows:-\n<\/p>\n
         ”\n<\/p><\/blockquote>\n
               .\n<\/p><\/blockquote>\n
Crl.A.573\/2005                                                            7<\/span><\/p>\n
                                                 .\n<\/p><\/blockquote>\n
                         .\n<\/p><\/blockquote>\n
              .\n<\/p><\/blockquote>\n
                                                                                                                    ,<\/p>\n
                                        .\n<\/p><\/blockquote>\n
                                     .\n<\/p><\/blockquote>\n
                                      .\n<\/p><\/blockquote>\n
                                                                                                  .\n<\/p><\/blockquote>\n<\/blockquote>\n
           .\n<\/p><\/blockquote>\n
            .\n<\/p><\/blockquote>\n
                                     .\n<\/p><\/blockquote>\n
                            .\n<\/p><\/blockquote>\n
           .”\n<\/p><\/blockquote>\n
The trial court after considering the evidence came to the conclusion that<\/p>\n
in the light of evidence of all eye witnesses and injured it is clearly came<\/p>\n
in   evidence   that   the   incident   of     inflicting   two   cut   injuries   by   sharp<\/p>\n
edged  weapon  took  place while  PW1 was opening  the  varandha’s  door<\/p>\n
opening to courtyard and after inflicted cut injuries PW1 was pushed to<\/p>\n
the courtyard and beaten indiscriminately using iron rod and coffee stick.\n<\/p>\n
       7. Question to be decided in this appeal is whether the prosecution<\/p>\n
has succeeded in proving the entire case against the appellants?\n<\/p>\n
       8.   The   allegation   is   that   due   to   communal   clash   at   Kundala<\/p>\n
Crl.A.573\/2005                                   8<\/span><\/p>\n
between the Bharathiya Janata Party and Muslim League,   during night<\/p>\n
of 19-9-1993,    some persons  came to the  house  of PW1, tapped  at  the<\/p>\n
door. The 2nd appellant told PW1 to open the door and while opening the<\/p>\n
door   the   accused   rushed   inside   shouting   to   kill   him   and   1st  appellant<\/p>\n
inflicted a cut on  the shoulder  of   PW1   and  2nd  appellant inflicted cut<\/p>\n
injury   on     his   head   which   cut   his   ear   to   a   hanging   stage   and   he   was<\/p>\n
pushed to the courtyard and there the was beaten with iron rode and stick<\/p>\n
and he sustained injuries.\n<\/p>\n
        9.   If   so,   question     to   be   decided   is   whether   the   appellants   and<\/p>\n
others have got any common object in attacking PW1 and whether they<\/p>\n
entered into any conspiracy to attack PW1?\n<\/p>\n
        10. The prime motive as alleged by the prosecution for the offence<\/p>\n
committed   by   the   accused   was   due   to   political   clash   between   the<\/p>\n
political parties. If that be so,     the common object was to attack PW2,<\/p>\n
the son of PW1 who belongs to B.J.P.   The evidence of PW1, PW4 and<\/p>\n
PW5   would   not   show   that   the   persons   who   assembled,   including   the<\/p>\n
appellants,  have   got   any  common   object   to   attack   PW1.    In   the   above<\/p>\n
circumstances,   this   Court   is   of   the   view   that   the   prosecution   has<\/p>\n
Crl.A.573\/2005                                   9<\/span><\/p>\n
miserably failed to prove the common object to attack PW1. It has  come<\/p>\n
out in evidence that when the accused came to the house of PW1, they<\/p>\n
asked   whether   PW2   was   there.     Hence,   it   is   clear   that   the   accused<\/p>\n
reached   the   house   with   common   intention   of   attacking   PW2.   But   on<\/p>\n
finding   that   PW2   was   not   there,   appellants   1   and   2   attacked   PW1.\n<\/p>\n
Further,     even   if   the   evidence   of   PW1,   PW3,   PW5,   PW6   is   accepted,<\/p>\n
there   is   no   evidence   to   show   that   the   appellants   committed   house<\/p>\n
trespass.  Hence, the prosecution failed to prove that the appellants have<\/p>\n
committed house trespass.\n<\/p>\n
       11. As per the medical evidence adduced by the prosecution, there<\/p>\n
were two injuries on the body of PW1.  Following are the injuries noted<\/p>\n
by PW12 doctor:-\n<\/p>\n
         1.   An   incised     wound   6   x   4   x   2   cm.   On   the   left   side   of   the<\/p>\n
            scalpula.\n<\/p><\/blockquote>\n
         2. An incised wound 6 x 4 cm. Bone deep on the left side of the<\/p>\n
            scalp. It is curved in nature.\n<\/p><\/blockquote>\n
There   is   no   evidence   adduced   by   the   prosecution   to   prove   that   the<\/p>\n
injuries sustained by PW1 are likely to cause death. With regard to that<\/p>\n
aspect,   PW12   doctor   was   silent   regrading   the   nature   of   injuries.   He<\/p>\n
Crl.A.573\/2005                                  10<\/span><\/p>\n
stated   that   except   injury   1   and   2   noted   in   Ext.P5   certificate,   no   other<\/p>\n
injuries were noted by him.  Hence, this Court is of the view that the 2nd<\/p>\n
injury is in grievous  in nature  and the injury can be caused as alleged.\n<\/p>\n
The evidence of PW1, PW3 and PW5 would show that appellants 1 and<\/p>\n
2 attacked PW1.  In this context, the evidence of  PW16 and 17 are also<\/p>\n
important. According to them, they recovered MO3 and MO3(a) on the<\/p>\n
basis of the information given by  appellants 1 and 2.  Hence, this Court<\/p>\n
is of the view that appellants 1 and 2 are responsible for causing injuries<\/p>\n
on PW1.\n<\/p>\n
        12.   On   analyzing   the   entire   evidence   this   Court   finds   that<\/p>\n
appellants   1   and   2   are   found   guilty   of   the   offences   punishable   under<\/p>\n
section  324 read with section 34 IPC and they are convicted thereunder.\n<\/p>\n
The evidence of PW12 doctor would show that except injury Nos.1 and<\/p>\n
2 noted in Ext.P5 wound certificate, no other injuries were noted by the<\/p>\n
doctor   at   the   time   of   examination.       Hence,     the   prosecution   has   not<\/p>\n
succeeded   in   proving   the   offences   alleged     against   appellants   3   to   5<\/p>\n
beyond reasonable doubt. Accordingly, they are not found guilty of the<\/p>\n
offences   as   alleged   by   the   prosecution.   Therefore,   the   conviction   and<\/p>\n
sentence awarded against the appellants 3 to 5 are set aside and they are<\/p>\n
acquitted.\n<\/p>\n
Crl.A.573\/2005                              11<\/span><\/p>\n
       13.  In the above circumstances, sentence of simple imprisonment<\/p>\n
for one month each    to   appellants  1 and 2   and    a fine of Rs.15,000\/-\n<\/p>\n
each under   section 324 read with section 34 IPC will meet the ends of<\/p>\n
justice.     Hence,   appellants   1   and   2   are   sentenced   to   undergo   simple<\/p>\n
imprisonment  for one month and to pay fine of Rs.15,000\/- each and in<\/p>\n
default   to   undergo   simple   imprisonment     for   six   months   each   under<\/p>\n
section 428 Cr.PC.\n<\/p>\n
       The appeal is partly allowed.\n<\/p>\n
                                                            K. Thankappan,<\/p>\n
                                                            Judge.\n<\/p>\n
Crl.A.573\/2005    12\n\n\n\n\n\n                          K. Thankappan,J.\n\n                         - - - - - - - - - - - - - - - -\n\n                         Crl.A. No. 573\/2005\n\n                         - - - - - - - - - - - - - - - -\n\n\n\n\n\n                                Judgment\n\n                                20-2-2007\n\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Kerala High Court Madampalli Mammootty vs State Of Kerala on 20 February, 2007 IN THE HIGH COURT OF KERALA AT ERNAKULAM CRL A No. 573 of 2005() 1. MADAMPALLI MAMMOOTTY, S\/O.MOOSA, … Petitioner 2. KADAR MAJEED, S\/O.ABDULLA, 3. O.C.ABDULLA @ OSSAM ABDULLA, 4. CHEENAMBADAN AZEEZ, S\/O.ABDULLA, 5. MAKKI ABDULLA, S\/O.MOIDU, Vs 1. STATE OF KERALA, […]<\/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-40235","post","type-post","status-publish","format-standard","hentry","category-high-court","category-kerala-high-court"],"yoast_head":"\nMadampalli Mammootty vs State Of Kerala on 20 February, 2007 - 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\/madampalli-mammootty-vs-state-of-kerala-on-20-february-2007\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Madampalli Mammootty vs State Of Kerala on 20 February, 2007 - 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