{"id":56666,"date":"2009-01-14T00:00:00","date_gmt":"2009-01-13T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/ahammedkutty-vs-state-of-kerala-on-14-january-2009"},"modified":"2014-10-20T13:01:51","modified_gmt":"2014-10-20T07:31:51","slug":"ahammedkutty-vs-state-of-kerala-on-14-january-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/ahammedkutty-vs-state-of-kerala-on-14-january-2009","title":{"rendered":"Ahammedkutty vs State Of Kerala on 14 January, 2009"},"content":{"rendered":"
Kerala High Court<\/div>\n
Ahammedkutty vs State Of Kerala on 14 January, 2009<\/div>\n
       \n\n  \n\n  \n\n \n \n  IN THE HIGH COURT OF KERALA AT ERNAKULAM\n\nCrl.Rev.Pet.No. 3082 of 2007()\n\n\n1. AHAMMEDKUTTY, S\/O. ABOOBACKER,\n                      ...  Petitioner\n2. MUHAMMED, S\/O. AHAMMEDKUTTY,\n3. ABOOBACKER, S\/O. AHAMMEDKUTTY,\n4. ABDURAHIMAN, S\/O. AHAMMEDKUTTY,\n5. ABDULKHADER, S\/O. AHAMMEDKUTTY,\n6. IBRAHIM, S\/O. AHAMMEDKUTTY,\n7. UMMER, S\/O. AYAMMEDKUTTY,\n8. ABOOBAKCER, S\/O. AYAMMED,\n\n                        Vs\n\n\n\n1. STATE OF KERALA,\n                       ...       Respondent\n\n2. THE SUB INSPECTOR OF POLICE,\n\n                For Petitioner  :SRI.K.JAGADEESCHANDRAN NAIR\n\n                For Respondent  :PUBLIC PROSECUTOR\n\nThe Hon'ble MR. Justice M.SASIDHARAN NAMBIAR\n\n Dated :14\/01\/2009\n\n O R D E R\n              M.SASIDHARAN NAMBIAR,J.\n\n              ------------------------------------------\n                CRL.R.P.NO.3082 OF 2007\n                                and\n                  CRL.R.C.NO.1 OF 2007\n              ------------------------------------------\n\n               Dated       14th January 2009\n\n\n                           O R D E R\n<\/pre>\n
              Revision petitioners are                   eight accused<\/p>\n
in S.C.383\/2002 on the file of Assistant Sessions<\/p>\n
court, Kozhikode. First revision petitioner                    is the<\/p>\n
father  and revision petitioners 2 to 7 his sons and<\/p>\n
eighth   revision petitioner his                 son-in-law. Charge<\/p>\n
against  revision     petitioners           framed      by   Assistant<\/p>\n
sessions Judge, Kozhikode was that on 22\/12\/1998                    at<\/p>\n
about 8.15 p.m all the revision petitioners formed<\/p>\n
themselves into an unlawful assembly with the common<\/p>\n
object  of  causing     death       of     Pws.1       and  2 and   in<\/p>\n
furtherance of the common object revision petitioners<\/p>\n
armed with deadly weapons like knife, chopper                   wooden<\/p>\n
reaper  came to the bazar,           in front of the          building<\/p>\n
No.K.P.12\/192-194 situated on the northern side of the<\/p>\n
Manipuram-Kunnamangalam road, in jeep No.KL-11-H-1441<\/p>\n
and got down and thereafter attacked Pws.1 to 3                    and<\/p>\n
seventh revision petitioner cut PW1 with a chopper<\/p>\n
CRRP 3082\/07 & RC 1\/07
\n                                 2<\/span><\/p>\n
which was resisted       by him and revision petitioners 2<\/p>\n
and 3 inflicted injuries on PW1 by hitting with reaper<\/p>\n
and wooden stick and with the intention to cause death,<\/p>\n
first revision petitioner inflicted injury on the head<\/p>\n
of PW1 and revision petitioners, being members of the<\/p>\n
unlawful assembly inflicted injuries on Pws.2 and 3 also<\/p>\n
and they thereby      committed offences under Sections 143,<\/p>\n
147, 148, 323, 324, 326, 307 and 506(ii) read with<\/p>\n
Section 149 of Indian Penal Code. After hearing      them on<\/p>\n
the question of sentence, revision petitioners were<\/p>\n
convicted and sentenced by learned Assistant Sessions<\/p>\n
Judge.   Petitioners       challenged  the  conviction   and<\/p>\n
sentence     before     Sessions    court,   Kozhikode    in<\/p>\n
Crl.A.51\/2005. Learned Additional Sessions Judge on re-<\/p>\n
appreciation of evidence confirmed the conviction and<\/p>\n
sentence and dismissed the appeal. It is challenged in<\/p>\n
the revision. When the reason was admitted finding that<\/p>\n
in spite of conviction no sentence was awarded for the<\/p>\n
offence under Section 143 and 148 of Indian Penal Code,<\/p>\n
Cr.R.C.12\/2007 was suo motu taken.\n<\/p>\n
     2.    Learned     counsel  appearing   for     revision<\/p>\n
petitioners and Public Prosecutor were heard.<\/p>\n
     3.      Argument of the learned counsel        is that<\/p>\n
CRRP 3082\/07 & RC 1\/07
\n                                3<\/span><\/p>\n
though revision petitioners were concurrently convicted,<\/p>\n
appreciation    of    evidence by   the courts  below   was<\/p>\n
perverse and material contradictions and       omission in<\/p>\n
the evidence of Pws.1 to 3 was not properly appreciated<\/p>\n
by the courts below. It was pointed out that there was<\/p>\n
no case for Pws.1 to 3 when       PW1 furnished  Ext.P1 FI<\/p>\n
statement or their        statements were recorded by the<\/p>\n
police under Section 161 of Code of Criminal Procedure,<\/p>\n
as proved by the evidence of PW13,      head constable who<\/p>\n
investigated the case, that either revision petitioners<\/p>\n
attempted to     inflict injury with a chopper or when it<\/p>\n
was resisted the chopper fell down or that the accused<\/p>\n
came proclaiming that Pws.1 to 3       are to be killed or<\/p>\n
that their liver is to be taken out as deposed by them<\/p>\n
at the time of evidence and this aspect was not properly<\/p>\n
appreciated.    Learned counsel also pointed out that even<\/p>\n
though PW1 has a case that all the accused came there<\/p>\n
together in a     jeep driven by eight revision petitioner,<\/p>\n
Pws.2 and 3 did not have          such a case when their<\/p>\n
statements were recorded under Section 161 of Code of<\/p>\n
Criminal Procedure by PW13 and evidence of Pws.1 to 3<\/p>\n
was not   corroborated by any independent witness. It was<\/p>\n
pointed out that Pws.4 and 11 the independent witnesses<\/p>\n
CRRP 3082\/07 & RC 1\/07
\n                                4<\/span><\/p>\n
turned hostile to the prosecution and even though PW4 is<\/p>\n
related to     Pws.1 to 3, even PW4 did not support the<\/p>\n
prosecution case and on the uncorroborated interested<\/p>\n
version of Pws.1 to 3, courts below should not have<\/p>\n
accepted     the prosecution case. Learned counsel also<\/p>\n
argued that there is no evidence to prove that injury<\/p>\n
sustained by PW1 was a grievous hurt and though Ext.X1<\/p>\n
case file was     relied on by the courts below, it was not<\/p>\n
proved and the doctor who allegedly           treated PW1,<\/p>\n
evidenced by Ext.X1, was     not examined and there is no<\/p>\n
evidence to prove that injury sustained by PW1 evidenced<\/p>\n
by Ext.P3 wound certificate was likely to cause death<\/p>\n
and on the evidence conviction for the offence under<\/p>\n
Section 307 of Indian Penal Code is not sustainable.<\/p>\n
Learned counsel also pointed out that evidence of DW1<\/p>\n
the doctor with Ext.D6 wound certificate establish     that<\/p>\n
third revision petitioner     sustained injuries which are<\/p>\n
more serious than the injury sustained by Pws.1 to 3 and<\/p>\n
Ext.D3 refer report submitted after investigation of the<\/p>\n
counter case in Crime No.255\/1998     establish that  third<\/p>\n
revision petitioner     also sustained injury in the same<\/p>\n
incident and therefore,    courts below were not justified<\/p>\n
in finding that third revision petitioner sustained<\/p>\n
CRRP 3082\/07 & RC 1\/07
\n                                 5<\/span><\/p>\n
injuries in a        subsequent incident.   Learned counsel<\/p>\n
argued that     when Pws.1 to 3 did not throw any light as<\/p>\n
to how third revision petitioner sustained injuries and<\/p>\n
it is proved that third revision petitioner sustained<\/p>\n
injuries, the     only   conclusion that could be arrived at<\/p>\n
is that either      Pws.1 to 3 are not disclosing the truth<\/p>\n
or they were suppressing the truth and if so, their<\/p>\n
evidence should not      have been believed especially, when<\/p>\n
not corroborated      by the independent witnesses. Learned<\/p>\n
counsel    also     argued  that   in  such   circumstances,<\/p>\n
conviction     is   not  sustainable  and     in  any   case<\/p>\n
petitioners are entitled to the benefit of doubt.<\/p>\n
     4.    Learned    Public  Prosecutor     submitted  that<\/p>\n
courts below appreciated the evidence in the proper<\/p>\n
perspective.    Evidence   of  Pws.1  to   3  were  mutually<\/p>\n
corroborated      and fact that they sustained injury is<\/p>\n
proved by the evidence of PW6, the doctor and Ext.P3 to<\/p>\n
P5  wound    certificates    and   when  the  evidence   was<\/p>\n
appreciated in the proper perspective, there is no<\/p>\n
reason to interfere with the conviction and therefore<\/p>\n
the appeal is only to be dismissed.\n<\/p>\n
     5.    Ext.P1 F.I.Statement    was prepared at 4.30 p.m<\/p>\n
on 23\/12\/1998 from Primary Health Centre, Narikkuni<\/p>\n
CRRP 3082\/07 & RC 1\/07
\n                              6<\/span><\/p>\n
where PW1       at that time was undergoing treatment.<\/p>\n
Evidence of PW6 with Ext.P3 wound certificate establish<\/p>\n
that PW1 sustained injury and was examined by PW6 the<\/p>\n
doctor at 9.10 p.m and it was disclosed to the doctor<\/p>\n
that he sustained injury at Eranhikkoth of Koduvalli at<\/p>\n
about 8.p.m from the hands of revision petitioners.<\/p>\n
Injuries sustained by PW1 were (1) wound 1x1x1 cm      on<\/p>\n
the occipital region of scalp. (2) Swelling nearly 4×3<\/p>\n
cm on the right elbow region of front aspect (3)<\/p>\n
Multiple small aberration on the left elbow region (4)<\/p>\n
Multiple small aberration on the dorsal aspect of right<\/p>\n
foot    (5)     Multiple small aberration on the    front<\/p>\n
aspect of left leg below the     knee and (6) Difficulty<\/p>\n
in lifting right hand above the shoulder level apart<\/p>\n
from small aberration on left shoulder. PW6 did not<\/p>\n
depose that the said injuries are either grievous or<\/p>\n
likely to cause death.        Though Ext.X1 case record<\/p>\n
disclosing      the treatment of PW1 at Medical College<\/p>\n
Hospital after admission as an inpatient on 9\/1\/1999 was<\/p>\n
relied on, neither the doctor who treated PW1 at the<\/p>\n
hospital was examined nor any other evidence adduced to<\/p>\n
prove for what purpose    PW1 was admitted and treated as<\/p>\n
seen in Ext.X1. There is no evidence to prove that the<\/p>\n
CRRP 3082\/07 & RC 1\/07
\n                                 7<\/span><\/p>\n
treatment     evidenced by Ext.X1 was consequent to the<\/p>\n
injury sustained      by PW1 in the incident involved in the<\/p>\n
case. Therefore based on Ext.X1 it is not possible to<\/p>\n
hold that the injury sustained by PW1      on the occipital<\/p>\n
region     was either grievous or was likely to cause<\/p>\n
death. Hence Based on Ext.X1 revision petitioner cannot<\/p>\n
be found guilty of the offence under Section 307 of<\/p>\n
Indian    Penal    Code.   The     intention  for   revision<\/p>\n
petitioners to cause death cannot be inferred based on<\/p>\n
the statement of the accused allegedly made when they<\/p>\n
alighted     from the jeep    as spoken to by Pws.1 to 3.<\/p>\n
Though Pws.1 to 3 deposed from the box that the revision<\/p>\n
petitioners     proclaimed that Pws.1 and 2 are to be<\/p>\n
killed and their livers are to be taken and thrown out,<\/p>\n
such an allegation was not made in Ext.P1 FI Statement<\/p>\n
or the statements of Pws.2 and 3 when their statements<\/p>\n
are recorded under Section 161 of Code of Criminal<\/p>\n
Procedure    proved     by  the   evidence  of   PW13,   the<\/p>\n
investigating Officer. It is proved that when their<\/p>\n
statements were recorded, they did not have such a case.<\/p>\n
It is clear that      their statements from the witness box<\/p>\n
are result of      after thought. Therefore, either for the<\/p>\n
reasons that revision petitioners had an intention to<\/p>\n
CRRP 3082\/07 & RC 1\/07
\n                                8<\/span><\/p>\n
cause death or that the injury sustained by PW1          is<\/p>\n
likely to cause death, it cannot be found that revision<\/p>\n
petitioners had an intention to cause death        or that<\/p>\n
there was an attempt to cause death of PWs.1 and 2.<\/p>\n
Therefore, finding of the courts below that revision<\/p>\n
petitioners committed the offence under Section 307     of<\/p>\n
Indian Penal Code is not sustainable.\n<\/p>\n
     6.    Though courts below      discarded the defence<\/p>\n
case that it was Pws.1 to 3 who were the assailants and<\/p>\n
third accused sustained injury in the incident holding<\/p>\n
that  injury    sustained   by  third  revision  petitioner<\/p>\n
could only be in a subsequent incident,       Ext.D3 refer<\/p>\n
report    submitted by PW14 in the counter case based on<\/p>\n
Ext.D4 FIR registered after recording the statement of<\/p>\n
third revision petitioner, who was admitted in the<\/p>\n
hospital by DW1 after preparing Ext.D6 wound certificate<\/p>\n
establish    that    third revision  petitioner   sustained<\/p>\n
injury in the same incident. Finding that third revision<\/p>\n
petitioner sustained     injury in a subsequent incident or<\/p>\n
at any other place cannot be accepted in the light of<\/p>\n
Ext.D3. Therefore, in the light of Ext.D3 refer report,<\/p>\n
it can only be found that third revision petitioner also<\/p>\n
sustained injury in the very same incident. In all<\/p>\n
CRRP 3082\/07 & RC 1\/07
\n                                9<\/span><\/p>\n
probability third revision petitioner sustained injury<\/p>\n
evidenced by Ext.D6 wound certificate, proved by the<\/p>\n
evidence of DW1, from the scene of     occurrence and  that<\/p>\n
too in the very same incident.\n<\/p>\n
     7.    Though fact that third revision petitioner<\/p>\n
sustained injury was suppressed by Pws.1 to 3, evidence<\/p>\n
of PW4 the independent witness establish that when PW1<\/p>\n
was removed to the hospital after he sustained injury in<\/p>\n
the incident, PW4 found that Rahmath hotel       which was<\/p>\n
being   run    by    the  third  revision  petitioner   was<\/p>\n
destroyed. According to PW4      it was at about 8.30 p.m.<\/p>\n
If that be so, the incident whereunder third revision<\/p>\n
petitioner sustained injury       should also have taken<\/p>\n
place before 8.30 p.m and it probablise the     version  in<\/p>\n
Ext.D3     report that     third revision petitioner also<\/p>\n
sustained injury in the same incident. If that be the<\/p>\n
case, when the evidence of Pws.1 to 3     do not revel how<\/p>\n
third   revision     petitioner sustained  injury  in   the<\/p>\n
incident it is clear that they are suppressing the true<\/p>\n
genesis       of the incident and how it was developed<\/p>\n
or they are not deposing       the truth. Whatever  be the<\/p>\n
reason, in such circumstances evidence of Pws.1 to 3<\/p>\n
cannot be      swallowed   without a pinch of salt.    When<\/p>\n
CRRP 3082\/07 & RC 1\/07
\n                                10<\/span><\/p>\n
Pws.4   and    11   the  independent  witnesses, who   were<\/p>\n
examined by the prosecution to prove the incident as<\/p>\n
alleged      did not support the prosecution case, the<\/p>\n
question is whether      on the uncorroborated evidence of<\/p>\n
Pws.1 to 3 it could be found that revision petitioners<\/p>\n
were members of an unlawful assembly and they came to<\/p>\n
the spot in furtherance of common object of the unlawful<\/p>\n
assembly and that too armed with deadly weapons and<\/p>\n
thereafter inflicted injuries on Pws.1 to 3. Even though<\/p>\n
in Ext.P1 FI statement PW1 has no case that         seventh<\/p>\n
revision petitioner with     a butcher’s knife attempted to<\/p>\n
inflict injury on PW1, after proclaiming that his liver<\/p>\n
is to be taken out and thrown on the road and PW1<\/p>\n
resisted it and then the knife fell down he has no<\/p>\n
such case in Ext.P1. According to PW1 at that point<\/p>\n
third revision petitioner hit him with leg of a Wooden<\/p>\n
table and then second revision petitioner hit him with a<\/p>\n
reaper where nails      are affixed on his hands. Fact that<\/p>\n
seventh revision petitioner used a knife and it was<\/p>\n
resisted and it fell down was not stated in Ext.P1 FI<\/p>\n
Statement. Pws.2 and 3 in their statement recorded under<\/p>\n
Section 161 by PW13 also did not disclose          such an<\/p>\n
incident. But        when they were    examined before the<\/p>\n
CRRP 3082\/07 & RC 1\/07
\n                               11<\/span><\/p>\n
court, they deposed as deposed by PW1 like parrots<\/p>\n
evidently      because of    previous decisions to depose<\/p>\n
falsehood. It is clear from the evidence of Pws.1 to 3<\/p>\n
that  they     are    not deposing  the truth  and     are<\/p>\n
suppressing     material facts. From the evidence it is<\/p>\n
clear that third revision petitioner       also sustained<\/p>\n
injury, evidenced by Ext.D6 wound certificate in the<\/p>\n
same incident. If that be so, the incident could not<\/p>\n
have been as deposed by Pws.1 to 3 and but it is<\/p>\n
possible that there was a     fight between the two groups<\/p>\n
consisting of revision petitioners in one group        and<\/p>\n
Pws.1 to 3 in the other group. Though prosecution has a<\/p>\n
case that    revision petitioners came there in a jeep KL-<\/p>\n
11\/H-1441 based on which theory of unlawful assembly was<\/p>\n
projected    Ext.D5 report submitted by PW14 proves that<\/p>\n
investigation revealed that jeep KL-11\/H-1441 was not<\/p>\n
involved in the incident.       If that be so,   the very<\/p>\n
prosecution case that petitioners came there together in<\/p>\n
the jeep driven by eighth revision petitioner    cannot be<\/p>\n
true. When all these facts were appreciated in the<\/p>\n
proper perspective, it is clear that evidence of Pws.1<\/p>\n
to 3 without corroboration, cannot be believed and on<\/p>\n
the  evidence     it   cannot be  found that  Pws.1  to  3<\/p>\n
CRRP 3082\/07 & RC 1\/07
\n                              12<\/span><\/p>\n
sustained injury in the incident as alleged by the<\/p>\n
prosecution.    If that be so, revision  petitioners are<\/p>\n
entitled to get at least the benefit of reasonable<\/p>\n
doubt. In such circumstances, conviction of revision<\/p>\n
petitioners for the offences is not sustainable.<\/p>\n
     Revision is allowed.      Conviction    of revision<\/p>\n
petitioners     is set aside. Revision petitioners   are<\/p>\n
found not guilty of the offences charged.       They are<\/p>\n
acquitted. Bail bond executed by them stand cancelled.<\/p>\n
They are set at liberty.       In view of the order of<\/p>\n
acquittal Crl.R.C.1\/2007 suo motu taken by this court<\/p>\n
is dismissed.\n<\/p>\n<\/p>\n
                                    M.SASIDHARAN NAMBIAR,
\n                                               JUDGE.\n<\/p>\n
\nuj.<\/p>\n","protected":false},"excerpt":{"rendered":"
Kerala High Court Ahammedkutty vs State Of Kerala on 14 January, 2009 IN THE HIGH COURT OF KERALA AT ERNAKULAM Crl.Rev.Pet.No. 3082 of 2007() 1. AHAMMEDKUTTY, S\/O. ABOOBACKER, … Petitioner 2. MUHAMMED, S\/O. AHAMMEDKUTTY, 3. ABOOBACKER, S\/O. AHAMMEDKUTTY, 4. ABDURAHIMAN, S\/O. AHAMMEDKUTTY, 5. ABDULKHADER, S\/O. AHAMMEDKUTTY, 6. IBRAHIM, S\/O. AHAMMEDKUTTY, 7. UMMER, S\/O. AYAMMEDKUTTY, 8. […]<\/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-56666","post","type-post","status-publish","format-standard","hentry","category-high-court","category-kerala-high-court"],"yoast_head":"\nAhammedkutty vs State Of Kerala on 14 January, 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\/ahammedkutty-vs-state-of-kerala-on-14-january-2009\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Ahammedkutty vs State Of Kerala on 14 January, 2009 - 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