Dismissed

State of Kerala v. P.C.Ashraf and 13 Others

Kerala HC16 Sept 2015CRL.A/422/2011

Case brief

AI extract

What is this about?

State appeals against the acquittal of accused tried for offences including murder and grievous hurt arising from a factional clash between head load workers. The court held the death homicidal but found the incident a free fight, section 149 IPC inapplicable, and the prosecution's suppression of injuries on the accused made its eyewitnesses unreliable. Acquittal upheld.

What the court decided

AI extract

State of Kerala Vs P.C.Ashraf and 13 Others — Murder and Culpable Homicide | Kerala HC (2015)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR &

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THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH

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WEDNESDAY, THE 16TH DAY OF SEPTEMBER 2015/25TH BHADRA, 1937

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CRL.A.No. 422 of 2011 ( )

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AGAINST THE JUDGMENT IN SC 585/2006 of THE COURT OF ADDL.SESSIONS JUDGE-I, PALAKKAD

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APPELLANT(S)/COMPLAINANT::

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STATE OF KERALA, REP.BY THE STATE PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM.

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BY PUBLIC PROSECUTOR SMT. V.H.JASMINE

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RESPONDENT(S)/ACCUSED 3,5 TO 11 & 13 TO 17 AND 19::

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P.C.ASHRAF, S/O.KASIM, AGED 26/2005 POTHUVACHOLA HOUSE, ARIYOOR, KUMARAMPUTHUR.

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SUBAIR, S/O.VEERANKUTTY, AGED 45/2005 PULATH HOUSE, KUMARAMPUTHUR.

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HAMZA, S/O.MOIDEEN, AGED 47/2005, KIZHAKKETHIL HOUSE, ARIYOOR, KUMARAMPUTHUR.

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SUBAIR, S/O.KUNHAYAMUTTYHAJI, AGED 32/2005, NEYYAPADATH HOUSE, ARIYOOR KUMARAMPUTHUR.

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IQBAL, S/O.ABDUL AZEEZ, AGED 23/2000, KIZHAKKETHIL HOUSE, ARIYOOR.

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ASMAN @ ABDUL AZEEZ, AGED 35/2000, KIZHAKKETHIL HOUSE, ARIYOOR, KUMARAMPUTHUR.

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HAMEED, S/O.YOOSAF, AGED 33/2000, KIZHAKKETHIL HOUSE, ARIYOOR, KUMARAMPUTHUR.

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K.T.RASHEED, S/O.MUHAMMED, AGED 34/2005 KANNAKKANTHODE HOUSE, ARIYOOR.

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ASSAINAR, S/O.KUNHAYAMUTTI HAJI, AGED 35/2000, NADALA HOUSE, ARIYOOR.

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MEHAMOODU, S/O.ASSAINAR, AGED 21/2000, KIZHAKKETHIL HOUSE, ARIYOOR.

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SHEREEF, S/O.KOYA, AGED 23/2000, THANKAYATHIL HOUSE, CHUNGAM, KUMARAMPUTHUR.

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MUHAMMED SHEREEF @ SHEREEF, S/O.MUHAMMEDALI, AGED 20/2000 ANAKAPALLA ENNA PULLATH HOUSE, ARIYOOR.

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HAMZA, S/O.KUNHAYAMUTTI HAJI, AGED 42/2000, ODALA HOUSE, ARIYOOR.

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MUHAMMEDALI, S/O.MOIDU, AGED 40/2000, KURUKAN HOUSE, ARIYOOR KUMARAMPUTHUR.

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R1-R14 BY ADV. SRI.C.K.SREEDHARAN

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R1-R14 BY ADV. SRI.SUNNY MATHEW

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 16-09-2015, ALONG WITH CRA.NO. 1276/2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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C.T. RAVIKUMAR

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K.P.JYOTHINDRANATH, JJ.

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==========================

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Crl.Appeal Nos.422 of 2011 &

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1276 of 2013

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==========================

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Dated this the 16^th day of September, 2015

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JUDGMENT

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Ravikumar, J.

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The captioned appeals preferred by the State Government are directed against the common judgment of acquittal passed by the Court of Additional Sessions Judge-I, Palakkad respectively in S.C.Nos.585 of 2006 and 166 of 2008, arising out of the same occurrence and naturally of the same FIR in Crime No.618 of 2000 of Mannarkad Police Station. In the joint trial, evidence was recorded in S.C.No.585 of 2006. In Crime No.618 of 2000, there were altogether 19 accused persons. After completing the investigation, charge was filed before the Court of Judicial First Class Magistrate, Mannarkad and the case was committed as against accused Nos.1, 3, 5 to 11, 13 to

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17 and 19 to the Court of Session, Palakkad and after taking it on file

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and assigning number as S.C.585 of 2006 it was made over to the Court of Additional Sessions Judge-I, Palakkad for trial and disposal. Subsequently, the Court of Judicial First Class Magistrate, Mannarkad committed the case against accused Nos.2, 4 and 18 to the Court of Session, Palakkad and after following the procedures it was also made over to the Court of Additional Sessions Judge-I, Palakkad for trial and disposal as S.C.No.166 of 2008. Subsequent to the committal, accused No.1 absconded. In fact, accused No.12 died during the investigation stage itself. The learned Sessions Judge clubbed and consolidated the cases whilst kept separate numbers and jointly tried both the sessions cases and shown the names of all the accused in S.C.No.585 of 2006 in accordance with their original ranks in the array of accused in the final report in Crime No.618 of 2000. After the joint trial, all the accused persons were found not guilty of all the charged offences viz., offences punishable under sections 143, 147, 148, 324, 326 and 302 read with section 149 of the Indian Penal Code and consequently, acquitted of the said offences under section 235(1)

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of the Code of Criminal Procedure. These appeals are filed against the common judgment of acquittal. In the circumstances, we jointly heard these appeals and they are being disposed of by this common judgment.

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The case of the prosecution was as follows:-

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A factional fight over a labour issue between the head load workers owing allegiance to United Democratic Front (UDF) and owing allegiance to Left Democratic Front (LDF) took place at 8.50 p.m on 09.12.2000. It is the case of the prosecution that former group that entertained enmity towards the latter group formed themselves into an unlawful assembly with the common object to cause death of the head load workers owing allegiance to LDF, the latter group and armed with deadly weapons like sword, iron pipe, wooden sticks etc. and using force or violence they reached the southern mud margin of

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Mannarkkad-Perinthalmanna public road at Ariyoor in Kumaramputhur village. On reaching there accused Nos.1 and 5

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exhorted the others to kill them and consequently, accused Nos.3, 4, 5, 10-13, 15 and 16 attacked deceased Gaffoor, PW2, PW3, CW3 and CW4 with sword, iron pipe, wooden sticks, wooden handle of spade and stones causing grievous hurt to Gaffoor and PW2 and hurt to PW3, CW3 and CW4. The persons injured in the said attack were taken to Moulana Hospital, Perinthalmanna and Gaffoor succumbed to the injuries from the hospital, on 11.12.2000. It is in the aforesaid circumstances that charge was laid against the appellants and their coaccused for offences punishable under sections 143, 147, 148, 324, 326 and 302 read with section 149, IPC against the respondents/accused. On their appearance, after preliminary hearing, the trial court framed charge under sections 143,147, 148, 324, 326 and 302 read with section 149 IPC against accused Nos. 2 to 11 and 13 to 19 (respondents in these appeals) and it was read over and explained to them. They pleaded not guilty and claimed to be tried. To bring home the charge against them the prosecution has examined 18 witnesses and exhibited 40 documents besides identifying MO1 to

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MO13. After the closure of the evidence of the prosecution, the accused persons were questioned under section 313, Cr.P.C and they denied the incriminating circumstances put to them. Finding that the accused persons were not entitled to be acquitted under section 232, Cr.P.C they were called upon to enter on their defence. Exts.D1 to D12 were marked on their side and in fact, they were all marked during the examination of prosecution witnesses. After considering the arguments advanced and the evidence on record the trial court arrived at the finding that the prosecution has failed to establish the guilt of the accused persons beyond reasonable doubt and therefore, they are entitled to the benefit of doubt. It was based on such findings that the respondents herein were acquitted under section 235(1), Cr.P.C.

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We have heard the learned Public Prosecutor, learned

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counsel Advocate Sri.C.K.Sreedharan and also Advocate Sri.Sunny Mathew, appearing for the respondents.

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Before adverting to the contentions raised in the light of the evidence on record, we think it apropos to refer to the settled position regarding the scope of interference in an appeal against a judgment of acquittal. The principles which would govern and regulate the hearing of appeal against an order of acquittal were highlighted by the Hon'ble Apex Court in a catena of decisions such

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as C.Antony v. K.C.Raghavan Nair (AIR 2003 SC 182), Ramanand Yadav v. Prabhunath Jha (AIR 2004 SC 1053) and State of Punjab v. Sukhchain Singh (AIR 2009 SC 1542) . They can be summarised as hereunder:-

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(1) In an appeal against an order of acquittal, the High Court possesses all the powers, and nothing less than the powers it possesses while hearing an appeal against an order of conviction.

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(2) The High Court has the power to reconsider the whole issue, reappraise the evidence, and come to its own conclusion and findings recorded by the trial court, if the said findings are against the weight of the evidence on record, or in other words, perverse.

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(3) Before reversing the finding of acquittal,

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the High Court has to consider each ground on which the order of acquittal was based and to record its own reasons for not accepting those grounds and not subscribing to the view expressed by the trial court that the accused is entitled to acquittal.

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(4) In reversing the finding of acquittal, the High Court had to keep in view the fact that the presumption of innocence is still available in favour of the accused and the same stands fortified and strengthened by the order of acquittal passed in his favour by the trial court.

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(5) If the High Court, on a fresh scrutiny and reappraisal of the evidence and other material on record, is of the opinion that there is another view which can be reasonably taken, then the view which favours the accused should be adopted.

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(6) The High Court has also to keep in mind that the trial court had the advantage of looking at the demeanour of witnesses and observing their conduct in the Court especially in the witness box.

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(7) The High Court has also to keep in mind that even at that stage, the accused was entitled to benefit of doubt. The doubt should be such as a reasonable person would honestly and conscientiously entertain as to the guilt of the accused.

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(8) Unless the High Court arrives at definite conclusion that the findings recorded by trial court are perverse, it would not

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substitute its own view on a totally different perspective.

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(9) The appellate Court in considering the appeal against judgment of acquittal is to interfere only when there are compelling and substantial reasons for doing so. If the impugned judgment is clearly unreasonable and relevant and convincing materials have been unjustifiably eliminated in the process, it is a compelling reason for interference.

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Bearing in mind the said principles, we will examine the evidence on

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record and cross check the reasons of the trial court to ascertain whether an appellate interference is called for.

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The learned Public Prosecutor contended that the trial

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court erred in discarding the evidence of PWs 1 to 4, the occurrence witnesses. It is submitted that among the said occurrence witnesses PWs 2 and 3 are the injured witnesses and though the evidence of

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injured witnesses got greater evidentiary value the trial court failed to

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give credence to their testimonies despite the failure of the defence to

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elicit anything to discredit their version. It is further contended that

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the evidence of PW11 Doctor with Ext.P8 certificate would establish that the death of Gaffoor is homicide. In the light of the occular evidence that gained support of the medical evidence the accused persons who stood the trial/the respondents in these appeals ought to have been found guilty and convicted for the offence punishable under section 302, IPC and the conclusion and finding that the prosecution has failed to establish the charges against the respondents beyond reasonable doubt is nothing but an outcome of utter, perverse appreciation of the evidence on record. It is also contended that Exts.P36 to P39 marked through PW18 would establish that PWs 2, 3 and CWs 3 and 4 sustained injuries and in the said circumstances, the respondents/accused ought to have been found guilty and convicted for the offence under section 324, IPC. It is the further contention that the oral testimonies of prosecution witnesses established that the respondents/accused formed an unlawful assembly with the common object to kill head load workers owing allegiance to LDF and came to the place of occurrence and committed the aforesaid offences in

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furtherance of the said common object and in the said circumstances, the trial court has erred in not finding the respondents guilty for forming an unlawful assembly and also for committing the offences alleged, in prosecution of their common object. Per contra, the learned counsel appearing for the respondents contended that the common judgment of acquittal is a well merited one and the trial court had properly appreciated the entire evidence on record to arrive at the conclusion that the prosecution has failed to establish the guilt of the accused/respondents beyond reasonable doubt. It is further contended that in the light of the evidence on record the trial court was perfectly justified in granting benefit of doubt to the accused. In short, according to the respondents, no interference is called for in the appeals.

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6. We will firstly consider the question whether the death of

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Gaffoor is homicidal or not. In fact, no serious challenge was made by the respondents in this regard and obviously, the fact that the death

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of Gaffoor is homicide is indisputable. PW11 conducted autopsy on

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the body of deceased Gaffoor and issued Ext.P8 post mortem

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certificate. The following ante mortem injuries were noted in Ext.P8:-

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Sutured wound 11 cm long, seen sutured with 12 sutures, obliquely placed on right side of head, lower front end 2.5 cm in front end 2.5 cm in front of tragus, upper back end 7 cm above top of ear. On removing the sutures the muscles underneath seen sutured. An irregular bony deficit 5 x 2 cm, through which dura seen bulging. Dura seen sutured (surgical incised wound).

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Sutured wound, 7 cm long, seen sutured with 10 sutures, curved with convexity downwards, on right side of head, back end at 6 cm behind top of ear, front upper end reaching injury No.1, at 5 cm above its lower end (surgical incised wound).

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Sutured wound 1cm long, sutured with 1 suture, vertical on right side of head 6 cm below right parietal eminence and 1.3 cm above back end of injury No.2 (?surgical incised wound for drain).

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Sutured wound 7 cm long, sutured with 6 sutures on right side and right half of top of head, lower end 7 cm above top of ear at 11' o' clock position, upper end reaching midline. The wound was vertically placed. On removing the sutures the edges were contused and irregular with tissue bridges in the depth of the wound. The upper back end of injury

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No.1 reached the front edge of this wound at 1.5 cm above the lower end.

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Sutured wound 5.5 cm, seen sutured with 6 sutures, obliquely placed over right parietal eminence front lower end 11.5 cm above top of right ear. The edges of wounds were regular on removing the sutures. The wound was bone deep and both ends were sharp cut.

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Sutured wound 2 cm long, sutured with 2 sutures along the border between back and top aspects of head, 15 cm above top of right ear. The edges of the wound were contused and irregular. On removing the sutures tissue bridges seen in the depth of the wound.

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Multiple contused abrasions of size varying between 0.6 x 0.2 cm and 1.5 x 0.3 cm over an area of 9 x 7 cm on left side of head, transverse with lower edge of the area just above top of ear.

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Sutured wound 3.5 x 0.5 cm, sutured with 3 sutures, on the right frontal region, 6 cm above right eyebrow and 2 cm outer to midline. On removal of sutures edges of the wound were contused and irregular with lacerated scalp tissue underneath.

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Superficial contusion 5 x 1cm, transversely placed on front of right chest 11 cm outer to midline and 11 cm below top of shoulder.

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10.Contusion 4 x 2.5 x 0.4 cm on back and inner aspect of right forearm 6 cm below elbow.

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11.Contusion 8 x 5 x 1 cm on back, inner and outer aspects right forearm, 10 cm below elbow.

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12.Contusion 4 x 2 x 1cm on back of right forearm, 14 cm below elbow.

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13.Contusion 3x 1x 0.3 cm on back of right forearm, 18 cm below elbow.

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14.Contusion 5 x 3 x 1.5 cm on back of right hand on its inner two third and over inner three knuckles.

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15.Contusion 11 x 5 x 1.5 cm on front and outer aspect of right thigh 16 cm above knee.

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16.Contusion 11 x 3 x 1.5 cm on outer aspect of right thigh 4cm above knee.

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17.Linear abrasion, 6 cm long, on front of right thigh and knee, lower outer end at outer aspect of knee.

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18.Multiple contused abrasion 2 x 3 cm vertical on outer aspect of right leg 19 cm below knee.

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19.Multiple contused abrasions 4 x 1 cm on front of right ankle.

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20.Multiple contused abrasions 4 x 2 cm on top of right foot 8cm away from ankle.

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21.Multiple contused abrasions 6 x 2 cm on upper aspect of inner three toes of right foot.

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22.Contusion 7 x 3x 1 cm on front of right upper arm, transversely placed, just above elbow.

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23.Contusion 3 x 1x 1cm on outer aspect of right elbow.

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24.Contused abrasion 0.5x 0.4 cm over right upper eyelid.

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25.Contused abrasion 1x 0.4 cm over left upper eyelid and eyebrow.

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26.Sutured wound 1cm long, sutured with 1 suture on tip of left big toe.

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27.Contused abrasion 1.5x 1cm on top right big toe, just proximal to nail.

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28.Sutured lacerated wound 4.5cm long, sutured with 7 sutures, with contused abrasion 3.5 x 2.5 cm around, on front of left leg, 7 cm above ankle.

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29.Contusion 5 x 3 cm with abrasion 1 x 0.3 cm over it, on back of left chest, 3 cm below shoulder and 1 cm outer to midline.

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30.Contusion 2 x 2 x 1cm on front of left upper arm, 10 cm above elbow.

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31.Contusion 7 x 2.5 x 1.5 cm on front of left upper arm, 5 cm above elbow.

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32.Contusion 6.5 x 5 x 1cm on back of left hand in its outer half.

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33.Multiple abrasions over an area of 9 x 6 cm on inner and back aspect of left forearm, upper end at elbow.

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34.Contusion 8 x 4 x 1cm on left side of head and neck behind and below lower part of ear, extending to lower third of ear lobe.

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Internal:-

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Scalp contusion 18 x 8 cm on left side of head and 16 x14 cm on right side and right half of back of head. Fissured fracture of the skull in the right tempero parietal region extending upwards and downwards from the bony deficit on right side of skull. The fracture extended to the right middle cranial fossa through petrous part of temporal bone. Depressed comminuted fracture with depression and comminution of an area of

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temporal bone of left side, 4 x 1.5 cm. From the depressed fracture fissured fracture extended to left middle cranial fossa. Extra dural haematoma seen as clots over the left temporo parietal regions. Thick subdural and subarachnoid bleedings over both cerebral and cerebellar hemispheres. Brain oedamatous. Contusion of brain 6 x 4 x 1 cm over left temporal lobe with multiple patechial haemorrhage underneath in the white matter. Multiple patechial haemorrhages of pinhead to 0.2 x 0.2cm seen in upper half of brain stem.

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PW11 deposed to the effect that Gaffoor died due to head

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injury. External injury Nos.4 and 6 to 8 and their corresponding internal injury No.1 noted in Ext.P8 were sufficient in the ordinary

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course of nature to cause death, going by the opinion of PW11. He also deposed to the effect that except injury No.5 all the other injuries could be caused by beating with MO2 and MO7 and by pelting stones. Injury No.5 in Ext.P8 could be caused with MO1 sword. Evidence of PW12 who proved Ext.P9 wound certificate issued by Dr.Sasidharan who examined deceased Gaffoor at Moulana Hospital at 9.50 p.m on 09.12.2000 also assumes relevance in this regard. PW12 deposed to

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the effect that he is conversant with the hand writing and signature of CW34 and CW34 was not in a position to appear and adduce evidence

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due to illness. In Ext.P9 wound certificate, the following injuries were noted:-

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Lacerated wound 4 x 1 cm over right posterior frontal paramedial obliquely placed bone deep;

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Lacerated wound 8 x 1 cm bone deep over right parietal scalp tranversely placed;

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Lacerated wound starting from parietal convexity to occipital region 7 x 1cm bone deep longitudinally placed;

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Lacerated wound parieto occipital region transversely placed, 2 x 1 cm bone deep with active bleeding;

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Lacerated wound 3x 1x 0.5 cm over left leg.

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Having considered the injuries noted in Ext.P8 and the

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nature of the external injuries Nos.4 and 6 to 8 and the corresponding internal injury No.1 noted in Ext.P8, we do not find any reason to disagree with the opinion of PW11 that Gaffoor died due to head injury and that the external injuries Nos.4 and 6 to 8 and their corresponding internal injury No.1, noted in Ext.P8 are sufficient in

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the ordinary course of nature to cause death. In short, the evidence of PW11 with Ext.P8 and the evidence of PW12 with Ext.P9 would undoubtedly reveal that the death of Gaffoor is homicidal. Therefore, we hold that the death of Gaffoor is homicide.

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The next question is whether the prosecution has

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succeeded in establishing that the respondents/accused are responsible for the homicidal death of Gaffoor. The evidence of all the four eyewitnesses are broadly consistent as regards the aspect that the attack on deceased Gaffoor and the other injured was made by gang of head load workers owing allegiance to UDF. The case of the prosecution is that accused No.4 inflicted an injury on Gaffoor with MO1 sword and accused No.12 inflicted another injury on him with MO2, the handle of a spade. Accused Nos.10, 11, 16 and 5 respectively inflicted injuries with MOs 3 to 6 wooden sticks and accused No.13 inflicted an injury with MO7 iron pipe. It is also the case of the prosecution that MO1 sword was discovered pursuant to Ext.P16 disclosure

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statement of accused No.4 under Ext.P4 mahazar and MO2 wooden stick was discovered under Ext.P3 mahazar pursuant to Ext.P18 disclosure statement of accused No.12. We do think that it is absolutely unnecessary to consider the issues touching the accusation against accused No.12 as admittedly he died during the investigation stage itself. MO7 iron pipe was allegedly discovered under Ext.P10 mahazar pursuant to Ext.P20 disclosure statement of accused No.13.

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The question whether the discovery of the said material objects assumes any significance or whether owing to the report of analysis they fell into desuetude would be considered a little later in case it is found that such a consideration is necessary.

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As noticed hereinbefore, the contention of the learned

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Public Prosecutor is that the evidence of PWs 1 to 4 was brought in, to unfold the case of the prosecution regarding the culpability and complicity of the respondents-accused. Therefore, the question is whether the oral testimonies of PWs 1 to 4 are reliable and whether

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the trial court erred in discarding their evidence. In this context, it is to be noted that a scanning of the evidence of PWs 1 to 4 as also the evidence of PW18 would reveal that what occurred on 09.12.2000 at about 8.50 p.m at the southern mud margin of MannarkkadPerinthalmanna public road, was nothing but a free fight between two factions; one belonging to head load workers owing allegiance to LDF and head load workers owing allegiance to UDF. True that they attempted to portrait it as an attack by an unlawful assemblage of head load workers belonging to UDF on head load workers owing allegiance to LDF. Evidently, members belonging to both factions sustained injuries. Gaffoor belonging to the group of head load workers owing allegiance to LDF succumbed to the injuries sustained and PWs 2 and 3 have sustained injuries. Exts.D6 to D9 wound certificates would reveal that accused Nos. 4, 9, 12 and 14 were also sustained injuries in the same occurrence. In this context, it is relevant to note that PW18, the investigating officer deposed to the effect that the accused persons had also sustained injuries in the same

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transaction. Thus obviously, the said two factions indulged in a fight in the public road and both sides had victims who sustained injuries at the hands of the opposite side. Exts. P9 and P35 to P39 are the wound certificates revealing sustainment of injuries by members belonging to the group owing allegiance to LDF and Exts.D6 to D9 are the wound certificates revealing sustainment of injuries by the opposite group. The said wound certificates together with the evidence of PW18 would go to show that, in fact, what had occurred on that fateful day was nothing but a promiscuous fight in which persons present there belonging to both the factions joined and in other words, it was a free fight. Though PWs 1 to 4 while being testified deposed to the effect that the accused persons had attacked the group owing allegiance to LDF, the CD statement contradictions proved through the investigating officer would indicate that before the police, statements suggesting a move towards accused Nos.4, 9, 12, 13 and 14 under the leadership of deceased Gaffoor holding weapons were made by PWs 3 and 4. Taking all such aspects and also the factum of sustainment of

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injuries by accused Nos.4, 9, 12 and 14 as revealed from Exts.D6 to D9 what is probable is not the unprovoked attack by persons belonging to the group showing allegiance to UDF whilst what is more probable is a free fight between two factions. When once it is so found the question is whether section 149, IPC got any application in such circumstances. It is to consider the said question that the trial court relied on a decision of the Hon'ble Apex Court in State of Hariyana v. Chandvir and others [1996 (2) Crimes 187 (SC)]. The Hon'ble Apex Court ultimately found that in a case of free fight section 149, IPC could not be applied. A consideration of the evidence on record, as referred above, constrains us to hold that the incident occurred at 8.50 p.m on 9.12.2000 is a free fight and therefore, we have no hesitation to hold that the decision in Chandvir 's case (supra) was correctly applied by the trial court to hold that section 149, IPC got no application in the instant case. Certain other aspects also have to be considered to ascertain whether the oral testimonies of PWs 1 to 4 are reliable and whether their

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evidence ought to have been accepted and acted upon. In that context, it is appropriate to consider the evidence of PW12 with Exts.D6 to D9 which would reveal that accused 4, 9, 12 and 14 had also sustained injuries on the same day and evidently, it has proximity with the time of occurrence. In this context it is also to be noted that PW18, the investigating officer deposed to the effect that the accused persons had also sustained injuries in the same transaction. But at the same time, it

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is evident that the fact that the accused persons had also sustained injuries in the same transaction was virtually, suppressed by the occurrence witnesses. PWs 1 to 4 during their examination feigned ignorance about the same and deposed to the effect that they did not know whether the accused persons had sustained injuries in the same transaction. PW1 deposed during cross examination:-

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4, 9, 12, 13, 14 ®Kà dÉÄßµZAí ¨ Ø¢ ÍÕJßÈí ÉøßAí Éxß ¦ÖáÉdÄßÏßW µß¿KÄÞÏßå®ÈßAí ¥ùßÏßÜï.

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PW4 would depose during his cross examination:-

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dÉÄßµZAí ¦VæACßÜá¢ ÉøßAí ÉxßÏÄÞÏß ®ÈßAí ¥ùßÏßÜï.

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PW2 and PW3 have also deposed that they did not know whether the accused persons 4, 9, 12 and 14 sustained any injury in the incident. In the contextual situation, the decision of the Hon'ble Apex Court in Lakshmi Singh v. State of Bihar [AIR 1976 SC 2263] assumes relevance. In the said decision, it was held that in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is very important circumstance from which the Court can draw the following inferences:- (1) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version; (2) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; (3) that in case there is a defence version which explains the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. It was further held that the omission on the part of the prosecution to explain the injuries on the person of the accused

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assumes much greater importance where the evidence consists of oral testimonies of interested or inimical witnesses or where the defence gives a version which competes in probability with that of the prosecution one. The evidence of PW12 with Exts.D6 and D9 would reveal that accused Nos.4, 9, and 12 and 14 had also sustained injuries. Ext.D6 is the wound certificate relating accused No.4 and it was proved by PW12. It would reveal that accused No.4 sustained the injuries viz., deep lacerated wound 3 cm over forehead, abrasions over face below right eye, fracture of nasal bone and right periorbital oedema. Ext.D7 would reveal that accused No.9 sustained the injuries viz., contusion chest left and contusion left knee. Ext.D8 would reveal that accused No.12 sustained the injuries viz., lacerated wound 5 x 1 cm over left forehead, linear abrasions 10 x 1 cm left chest, 5 x 1 cm right chest, and contusion chest. Ext.D9 is the wound certificate relating accused No.14. It would reveal that accused No.14 sustained injuries viz., contusion left elbow and fracture olecranon left with abrasion left elbow. The fact that they sustained such injuries was

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proved by PW12 with Exts.D6 and D9. This fact was suppressed by the prosecution. But, at the same time the evidence of PW18, the investigating officer also go to prove the verity of the version of the defence in this regard. In such circumstances, in the light of the decision in Lakshmi Singh 's case (supra), the court was bound to infer that the prosecution had suppressed the genesis and origin of the occurrence and thus did not present the true version. As noticed hereinbefore, PWs 1, 3 and 4 denied the knowledge of sustainment of any injury by any of the accused persons. Going by the decision in Lakshmi Singh 's case (supra), when the prosecution witnesses denied the presence of injuries on the accused and when the defence has brought out and proved the factum of injuries on the body of the accused sustained in the same transaction or in the course of altercation it should be inferred that the accused persons are lying on the most material point. This aspect certainly makes their evidence unreliable. Exts.D1 and D1(a) are the CD contradictions of PW2 and Exts.D2 to D2 (d) are the CD contradictions of PW3. Exts.D3 to D3

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(b) are the CD contradictions of PW4. In this context, it is also to be noted that both PWs 2 and 3 deposed to the effect that they had not seen accused Nos.4, 9, 12, 13 and 14 in the place of occurrence. Still, in the fitness of things, we will advert to the CD contradictions marked during the examination of PWs 2 to 4 and also the oral testimony of PW1. These indisputable facts borne out from the evidence on record would certainly make us also to come to the conclusion that it is unsafe to act upon the oral testimonies of PWs 1 to 4. Evidently, it is the oral testimonies of PWs 1 to 4 which were mainly relied on by the prosecution to prove the occurrence and participation of the accused. The purpose of marking the contradictions is to impinge the credibility of the witnesses. When the contradictions which were marked and referred to hereinbefore could not be said to be minor contradictions to be ignored in a case of factional fight such contradictions become material. The said circumstances coupled with fact that they have denied the knowledge of sustainment of injuries on the accused in the same transaction

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would certainly make their version unreliable. In the said circumstances, even while holding that the death of Gaffoor is homicidal based on the evidence of PWs 1 to PW4 certainly it would be unsafe to hold that it was the respondents-the accused persons who are the culprits. With respect to the injuries sustained by PW2 it is to be noted that immediately after the incident he was taken to Deenabandhu Hospital, Mannarkkad. Ext.P36 is the wound certificate relating PW2. It would reveal that he has not named any persons as the assailants and he did not divulge the names of the assailants. He has only disclosed to the Doctor the cause of injury as an assault at 8 p.m on 9.12.2000 at Ariyoor. However, in the box, PW2 would depose that the assailants are known to him by name. There is nothing on record to show that he was taken to hospital in an unconscious stage or he was incapable of giving such details to the Doctor at the time when he was brought to the hospital. Ext.P39 is the wound certificate belonging to PW3 Gopakumar. They were marked through PW18. Regarding the cause of injury PW3 also made

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disclosure to the doctor in the same manner as has been disclosed by PW2. In the box he too deposed that the accused persons are known to him by name. That apart, it is to be noted that though Exts.P36 and P39 were marked through PW18 the said wound certificates were not proved by examining the doctor who issued such certificates. In such circumstances, apart from the oral testimonies of PWs 2 and 3 no evidence was brought on record to show that they sustained injuries. True that the fact that the injuries sustained by witnesses were not entered into medico-legal register itself is no ground to disbelieve witnesses, going by the decision of the Hon'ble Apex Court in Jaishrea Yadav v. State of U.P [AIR 2004 SC 4443] . However, in this instant case, there are other reasons. It is also to be noted that the other persons who allegedly sustained injuries viz., CWs 3 and 4 were not examined by the prosecution. In such circumstances, with the evidence on record the only conclusion that could be arrived at, was that the prosecution had failed to prove the guilt of the accused beyond reasonable doubt. When that be the plausible conclusion

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which could be arrived at, certainly the accused persons are entitled to get the benefit of doubt. In this case, the trial court after appreciating the evidence on record held that the prosecution has failed to prove the guilt of the accused beyond reasonable doubt and that in such circumstances, they are entitled to get the benefit of doubt. We do not find any reason to differ from the findings and conclusions arrived by the trial court. The long and short of the discussions as above is that the impugned judgment of acquittal passed by the Court of Additional Sessions Judge-I, Palakkad in S.C.Nos.585 of 2006 and 166 of 2008 invites no interference. In the result, these appeals are liable to fail and accordingly, they are dismissed.

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Sd/-

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C.T. RAVIKUMAR (JUDGE)

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Sd/-

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K.P.JYOTHINDRANATH (JUDGE)

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spc/

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