Partly allowed

Shabu v. State of Kerala

Kerala HC10 Apr 2018CRL.A/1124/2012

Case brief

AI extract

What is this about?

Appeals by ten accused against conviction for rioting, unlawful assembly and murder after a group attack on three men, one fatally. The High Court upheld the trial court's appreciation of eyewitness evidence, identification, recoveries under Section 27 and rejection of the alibi, but acquitted all the accused of criminal conspiracy under Section 120B IPC.

What did the court decide?

Conviction and sentence under Section 120B IPC set aside; conviction and sentence for the offences under Sections 143, 147, 148, 324, 307 and 302 read with Section 149 IPC confirmed.

Shabu Vs State of Kerala — Murder and Culpable Homicide | Kerala HC (2018)

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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 A.M.SHAFFIQUE &

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THE HONOURABLE MR. JUSTICE P.SOMARAJAN

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TUESDAY, THE 10TH DAY OF APRIL 2018 / 20TH CHAITHRA, 1940

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CRL.A.No. 1124 of 2012

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AGAINST THE JUDGMENT IN SC 868/2003 of ADDL.SESSIONS COURT, FAST TRACK-I, ALAPPUZHA DATED 26/7/2012 CP 47/2002 of J.C.C.M.-II, CHERTHALA

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APPELLANTS/ACCUSED 1 TO 5, A7 TO A9, A11 AND 12

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1 SHABU

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S/O LALITHA PRASAD, NILAYAMKATTU VEEDU, PATTASSERI

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BHAGOM, WARD NO.2, CHERTHALA SOUTH PANCHAYAT.

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2 SHAJI,

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S/O LALITHA PRASAD, NILAYAMKATTU VEEDU, PATTASSERI

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BHAGOM, WARD NO.2, CHERTHALA SOUTH PANCHAYAT.

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3 PRADEEP,

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S/O PRABHAKARAN, KUNNELIVELI VEEDU, PATTASSERI BHAGOM,

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WARD NO.2, CHERTHALA SOUTH PANCHAYAT.

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4 SAJEEVAN,

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S/O BHASKARAN, BHAGAVATHICKKAL VEEDU, PATTASSERI

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BHAGOM, WARD NO.2, CHERTHALA SOUTH PANCHAYAT.

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5 SANTHOSH,

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S/O PARAMESWARAN, VELIKKAKATHU VEEDU, PATTASSERI

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BHAGOM, WARD NO.2, CHERTHALA SOUTH PANCHAYAT.

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6 JOSEPH @ PAPPACHAN,

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S/O PETER, CHAREMLATTU VEEDU, WARD-10, CHERTHALA SOUTH PANCHAYAT.

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7 MANOJ,

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S/O RAGHAVAN, MARATHUNKAL VEEDU, WARD NO.13, CHERTHALA SOUTH PANCHAYAT.

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8 HORINIOSE,

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S/O CLEETUS, ARESSERIL VEEDU, WARD NO.II, CHERTHALA SOUTH PANCHAYAT.

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9 SURESH,

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S/O KESAVAN, NADUMURIYIL VEEDU, PATTASERI BHAGOM, WARD-2, CHERTHALA SOUTH PANCHAYAT.

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10 PRADEEP, S/O. KARUNAKARAN, KODALICHIRA VEEDU, WARD NO.12,

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CHERTHALA SOUTH PANCHAYAT.

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BY ADVS.SRI.P.VIJAYA BHANU (SR.) SRI.M.REVIKRISHNAN SRI.VIPIN NARAYAN SMT.M.A.SHEEBA

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CRL.APPEAL NO.1124/2012

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-2-

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RESPONDENT/COMPLAINANT:

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

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BY SR PUBLIC PROSECUTOR SRI.S.U.NAZAR

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 20-02-2018, ALONG WITH CRL.APPEAL NOS. 1129 AND 1243/2012, THE COURT ON 10-04-2018 DELIVERED THE FOLLOWING:

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A.M. SHAFFIQUE & P.SOMARAJAN, JJ.

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========================== Crl.Appeal Nos.1124, 1129 & 1243 of 2012

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

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Dated this, the 10^th day of April, 2018

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J U D G M E N T

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Shaffique, J.

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Since these appeals arise out of common judgment in SC No.868/2003, they are heard and decided together. Crl.Appeal No.1124/12 has been filed by accused 1 to 5, 7 to 9, 11 and 12. Crl.Appeal No.1129/2012 has been filed by the 6^th accused and Crl.Appeal No.1243/2012 has been filed by the 10^th accused.

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The accused had been charge sheeted for having committed offence punishable u/s 143, 147, 148, 120B, 324, 307 and 302 r/w S.149 of I.P.C. According to the prosecution, the accused entertained an enmity with the deceased and certain other persons in relation to an eviction proceedings and they entered into a criminal conspiracy to commit murder forming themselves into an unlawful assembly and armed with deadly weapons such as sword, stick, chopper, iron pipe, wooden sticks etc., in furtherance of a common object of committing rioting and murder, inflicted injuries

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Crl.Appeal Nos.1124, 1129 & 1243/2012

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on the victims and as a result of which one of the victims died and the other was seriously injured.

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After completion of investigation by the police, final report was submitted before the Judicial First Class Magistrate Court-II, Cherthala and committed to the Court of Sessions, Alappuzha. The case was made over to the Additional Sessions Judge, Fast Track, Alappuzha for final disposal. Before the Trial Court, prosecution examined PWs 1 to 39 and relied upon Exts.P1 to P80 and MO1 to MO18. The accused were questioned u/s 313 Cr.P.C. Exts.D1 to D18(a) were marked as defence exhibits. The Trial Court found all the accused guilty. They were sentenced to undergo rigorous imprisonment for 3 months each u/s 143 I.P.C., rigorous imprisonment for 6 months each u/s 147 I.P.C., rigorous imprisonment for one year each u/s 148 I.P.C., rigorous imprisonment for one year each u/s 324 r/w S.149 of I.P.C., rigorous imprisonment for 7 years each and fine of 5,000/- each u/s 307 r/w S.149 I.P.C., in default of which to undergo rigorous imprisonment for a further period of one year each, rigorous imprisonment for life each and fine of 10,000/- each u/s 302 r/w S.149 I.P.C. in default of payment of fine to undergo rigorous

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Crl.Appeal Nos.1124, 1129 & 1243/2012

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imprisonment for 2 years each and rigorous imprisonment for life u/s 120B I.P.C. The sentence was to run concurrently.

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Learned counsel for the appellants contended that the Court below has committed serious error of law in appreciating the evidence adduced in the case. There was absolutely no evidence to substantiate the prosecution case and the evidence of eye witnesses were not believable on account of their partisan nature. The identity of the accused were also not proved in accordance with law and that apart, the alleged recoveries made were not in terms of S.27 of the Indian Evidence Act.

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On the other hand, learned Public Prosecutor while supporting the judgment of the Trial Court contended that this is a case involving a riot by a group of people with a clear intention to commit murder and the accused were known to all the witnesses and they have clearly identified them. All the accused were known to the witnesses and therefore their identity is not questionable at all. Further, recoveries had been effected based on the disclosure statement of the accused strictly complying with the procedure prescribed and therefore there is no reason to interfere with the judgment of the Trial Court.

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Crl.Appeal Nos.1124, 1129 & 1243/2012

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On the basis of the respective contentions urged on behalf of the learned counsel for appellants what has to be considered is whether the evidence adduced by the prosecution has been properly appreciated by the Trial Court and whether the prosecution case has been proved beyond reasonable doubt.

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PW1 Sebastian was injured in the incident. In his evidence he stated that the incident occurred on 30/11/2000 at about 11.15 pm on a public road which is situated on the southern side of Henry's house which is on the eastern side of PW1's house. According to him, by about 11.15 p.m, while he was talking to Johnny and Kunjachan on the eastern side of the road, he heard a slogan as “DYFI Sindabad”. He lighted the torch. Then he saw all the accused under the leadership of first accused coming towards them. They were asking for Pattambi Kuttan. He said he was Pattambi Kuttan. On hearing this, Peter and Dummini came to the said place. Shaji who is also known as Shibu shouted “ഇവന�ന�ല�� തന�ട�" (to do away with all of them). Immediately, Shibu inflicted an injury on the chest of Dummini Uncle, and he started bleeding. Immediately Pradeep who was having a long chopper with him inflicted a wound on the face of his uncle. Shaji @ Shibu inflicted a

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Crl.Appeal Nos.1124, 1129 & 1243/2012

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cut injury on the shoulder of his uncle. Joseph had a sword with him. He also inflicted an injury on Dimmini. Sajeevan hit him with an iron rod on his knee. Peter uncle tried to interfere. Immediately Santhosh with his sword inflicted an injury on his head. Manoj also inflicted an injury on Peter uncle and blood oozed from the wound. Horiniose (A9) had an iron rod with him and he hit him with the same. Sunil Kumar hit Peter uncle with another iron rod on his right leg. He fell down. At that time, Shaji, Santhosh, Shabu, Horiniose, Sunil Kumar, Pradeep, Manoj all of them together surrounded his uncle and they were hitting and inflicting injuries. PW1 tried to interfere. At that time, Gund Pradeep and Shibu started throwing stones. On hearing the hue and cry, people in and around the locality came. One stone which Shibu threw hit PW1 on the side of his right eye and caused an injury. Blood oozed out from the said injury. He kneeled and fell down and he suffered an injury on his left hand. People came around from the western side and immediately the accused ran away. While running, Shabu's dhothi fell down. They ran with the weapons. Kunjachan and Henry called an autorickshaw and Dummini uncle was taken to Alappuzha Medical College Hospital.

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Crl.Appeal Nos.1124, 1129 & 1243/2012

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Peter uncle was taken in Lancy's autorickshaw. PW1 proceeded in another autorickshaw. He reached Alappuzha Medical College Hospital at about 12.30 night. When he reached hospital, he heard that Dummini uncle died. PW1 was given appropriate treatment. Peter uncle was admitted in the 14^th ward and his condition was serious. PW1 had given statement about the incident to the Assistant Sub Inspector of Police, Arthunkal. He identified Ext.P1, the First information statement. He also identified the torch MO1, which he was carrying at the relevant time. He further stated that while giving FIS, he was not in a good state of mind. He further identified the weapon used by the first accused which is a chopper and it is marked as MO2. The 3^rd accused was using a chopper which is normally used by coconut climbers which he identified as MO3. The 5^th accused Santhosh was using a sword like weapon which he identified as MO4. Sajeevan was using a ridged iron rod which he identified as MO5. 10^th accused used an iron stick which he identified as MO6. 9^th accused was using a black pipe which he identified as MO7. Suresh was using a wooden stick which is identified as MO8. Shibu had with him a sword which is curved on its front end which he

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Crl.Appeal Nos.1124, 1129 & 1243/2012

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identifies as MO9. The sword used by Joseph is identified as MO10. The sword used by Manoj is identified as MO11. First accused was wearing a brown coloured dhoti which he identifies as MO12. The 2^nd accused is the brother of A1. He had identified all the accused A1 to A12. He further deposed that A1 and A2 were running a toddy shop and accused 3 and 4 were always with them. 4^th accused used to sell gun powder in his residence. He is a photographer. They used to go to his house for purchasing fire crackers. Santhosh is living about 150 metres away from their house. Santhosh has married from a house which is 150 metres away from his house. 6^th accused is a person in the locality who is conducting blade (illegal finance at high rate of interest). The 7^th accused is a supplier in the shop of one Pius. 8^th accused is residing about 200 metres away from his house. He is an autorickshaw driver. 9^th accused is a member of his parish. 10^th accused is a Salesman in a cassette shop. 11^th accused used to be in the shop of A1 always. 12^th accused handles gunpowder. The toddy shop of first accused is near to his house. In cross examination, the suggestion was that, in the incident, PW1 and certain others had attacked 7^th accused and he suffered serious

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Crl.Appeal Nos.1124, 1129 & 1243/2012

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injuries. Further PW1 admits that in Ext.P1 statement he had only mentioned the names of accused 1 to 4 and 6. He also stated that he did not mention about any overt act of 5^th accused since he was not in a good state of mind at the relevant time when the statement was given. Similarly, he states that he had mentioned about the overt acts of the 7^th accused also and he has no explanation why it was not recorded by the police.

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PW2 is Peter. He is the other injured in the incident. He supported the statement of PW1. He has also identified the accused and also the material objects produced in the case. He was hospitalised for 9 days in the Medical College Hospital and thereafter he was hospitalised at another hospital for 10 days. Thereafter, he was admitted at Mathilakom hospital where he continued treatment for one month and he has physical disabilities on account of the injuries sustained by him. He is unable to go for work. His deposition would corroborate the testimony of PW1.

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PW3 is Kunjachan, an eye witness to the incident. He was along with PW1 and Johnny at the time when the mob came shouting slogans as DYFI Sindabad. When they came near them

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Crl.Appeal Nos.1124, 1129 & 1243/2012

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with weapons, Dummini and Peter came. At that time, Shaji called upon the others to attack them and accordingly all the accused inflicted injuries on both of them. PW1 also suffered injuries. He also stated that 7^th accused was injured and he was also taken to the hospital. He also identified the material objects. In cross examination, he deposed that he does not know as to how 7^th accused got injured. In further cross examination he stated that after this incident there was a conflict between the fisherman in the place known as Thaikkal and in the said confrontation, four persons died.

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PW4 Henry is another eye witness. He also deposed about the incident in accordance with the evidence given by PW1. He also stated that in the incident 7^th accused suffered injury. But he states that he suffered injury with the weapon which was in the hand of accused themselves.

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PW5 Johnny H.H is another eye witness. He has also spoken in accordance with the evidence given by other eye witnesses.

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PW6 Simon @ Baiju is also an eye witness. He is a person residing on the western side of Dummini's house. He has also

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Crl.Appeal Nos.1124, 1129 & 1243/2012

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identified accused 1 to 3, 5, 6, 9 and 12. He had also identified the weapons that were used by a few of them.

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PW7 Roy is the nephew of Dummini. He resides on the eastern side of Dummini's house. He is also a witness to the incident. He has also supported the version of PW1 and other witnesses. He has also identified accused 2 to 6 and 8 to 12. He also knows accused 1 and 7.

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PW8 Joseph @ Ouseph is a fisherman by profession. He used to go to Muttunkal toddy shop for consuming toddy. It was run by accused 1 and 2. On the date on which Dummini died, he came to know about the incident early morning. On the previous day, he had gone to the toddy shop at Muttunkal. He had gone there by about 9 pm. While he was entering the toddy shop, he saw A1 and A2 along with 8-10 persons on the northern side of the toddy shop. Since it was night and as there was no light, he could not identify the other 8 persons who were standing there. He heard them saying Pattambi Kuttan. When he came near them, they stopped talking. He entered the shop and consumed toddy and came back. He identified accused 1 and 2.

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PW9 has turned hostile to the prosecution.

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Crl.Appeal Nos.1124, 1129 & 1243/2012

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PW10 is a witness to the inquest report Ext.P3. He has identified MO13 and MO14 which were the dresses Dummini, was wearing at the time of inquest.

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PW11 is a witness to the scene mahazar Ext.P4. He has also witnessed the Circle Inspector of Police recovering 6 rubber chappals, one lungi, certain granite pieces and a knife without handle. The rubber chappals were marked as MO17 series, the lungi is marked as MO12 and the knife MO4.

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PW12 turned hostile to the prosecution. However, he admitted his signature in Ext.P5 mahazar.

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PW13 was a witness to prove the mahazar for recovery of a sword used by 2^nd accused. He has turned hostile. However he has identified his signature in Ext.P6 mahazar.

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PW14 has seen the 4^th accused Sajeevan taking an iron rod and it was entrusted to the police. He has signed the mahazar Ext.P7.

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PW15 is a witness to Ext.P8 mahazar by which the police had recovered a sword at the instance of 7^th accused. He also identified the 7^th accused.

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PW16 is a witness to the recovery of a chopper at the

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Crl.Appeal Nos.1124, 1129 & 1243/2012

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instance of 3^rd accused. The chopper is marked as MO3 and he had identified the 3^rd accused. Ext.P9 is the mahazar.

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PW17 who was a witness to recovery of a sword by 8^th accused has turned hostile. However he admits to have signed Ext.P10 mahazar.

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PW18 has also turned hostile. But he has identified Ext.P11 the mahazar which he has signed for recovery of a weapon by 9^th accused.

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PW19 has also turned hostile. He is also a witness to recovery mahazar. He identifies the signature in Ext.P12. In cross examination it was suggested that at the instance of 10^th accused an iron rod was recovered.

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PW20 had identified his signature in Ext.P13 recovery mahazar which is in respect of recovering a wooden stick at the instance of 11^th accused. However the witness has turned hostile stating that he has not seen the recovery.

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PW21 is the Librarian of Medical College Hospital Alappuzha. He had produced the casualty OP register Ext.P14 and wound certificate register Ext.P15.

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PW22 Sam Antony has been examined to prove the

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Crl.Appeal Nos.1124, 1129 & 1243/2012

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motive behind the crime. He deposed that his uncle Samuel Baby had shop rooms at Panjaramukku. His uncle was residing at Ernakulam. A person by name Marian Sebastian was conducting business in the shop room of his uncle. He knew accused 1, 2 and 6. However, when he was asked as to whether accused 1, 2 and 6 had interfered in the matter relating to eviction of the shop, he had denied having any such information. He was therefore declared hostile.

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PW23 Sebastian was conducting a stationery shop at Panjaramukku. He had taken the shop room from Sam Antony (PW22). On 26/11/2000, Sam Antony requested to surrender possession of the premises. PW23 said that he requires some more time. On 28/11/2000 at about 10 am, first accused came to the shop and returned. By evening at 7 p.m, Shabu and Anilkumar came to the shop and asked him to vacate the premises. They caught him by his collar and asked him to inform the matter next day morning in their toddy shop. Next day he went to Muttunkal shop. At that time, they had procured a stamp paper having a value of `50/-. He was asked to give in writing in the stamp paper that he will vacate within three months. The said agreement is

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Crl.Appeal Nos.1124, 1129 & 1243/2012

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produced and marked as Ext.P17. The person Antony, referred in the agreement is Sam Antony (PW22). At the time when he signed the agreement, Shabu, Shaji and Anilkumar were present there. That day evening, some one attacked Sam Antony in front of his house. There was a flag post of Swathanthra Matsya Thozhilali Union on the southern side of his shop. Some one had damaged and bent it down. He also identified accused 1 and 2.

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PW24 is a witness to Ext.P18 mahazar by which Ext.P17 agreement was taken on record by the police. However, to the question that the document which was recovered was Ext.P17(a), he denied. He was declared hostile.

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PW25 Anil kumar turned hostile.

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PW26 is Dr. T.M.Jose. On 30/11/2000, he was the Lecturer in Medical College Hospital Alappuzha. He had examined Peter at 11.30 p.m and issued Ext.P20 wound certificate. Following were the injuries noticed by him:-

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“(1) An incised wound forehead left side 4x1x1cm, contusion on upper 3^rd and lower 3^rd arm lateral aspect. (2) Multiple superficial abrasion middle and upper 1/3 of the arm.

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(3) Incised wound posterial aspect left forearm upper 3^rd of 2x1cm

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(4) Abrasion dorzem left wrist.

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Crl.Appeal Nos.1124, 1129 & 1243/2012

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(5) Fracture distal nidious left side.

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(6) Incised wound volar aspect index finger distal to distal areas.

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(7) Contusion over lower ribs anterior aspect.

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(8) Lacerated wound medial aspect right knee of 1x1cm.

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(9) Lacerated wound of 10x3cm over medial and plantar aspect right foot over vigtoe.

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(10) Incised wound 5x1x1cm anterior aspect middle.

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(11) 3^rd left leg incised wound 5x3x2cm over left trochanteric region exposing thigh muscles.

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(12) Lacerated wound 10x5x3cm posterior aspect the right middle 3^rd exposing thigh muscles.

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(13) Contusion paraspinal area left tochanteric region.”

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The alleged cause of the injuries was inflicting blows with

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swords. According to him, the injuries could be caused as alleged and the incise wounds in Ext.P20 can be caused by sharp weapons like chopper and sword sticks. He also stated that the injuries could be produced by using MO2, MO3, MO4 and MO9 to MO11. Contusion and abrasions can be caused by blunt weapons like iron rod, iron pipe, stick etc. Those injuries could be caused by weapons like MO5 to MO8. Lacerated injury can also be caused by weapons like MO5 to MO8. He further deposed that blunt side of MOs 2 to 4 can produce lacerated injury. Injury Nos. 1 and 7 were on vital part of the body. However, he stated that the injuries noted in Ext.P20 could not cause death in the ordinary

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Crl.Appeal Nos.1124, 1129 & 1243/2012

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course. Though a question was put that he had mistakenly put the time of examination in Ext.P20, he said it is not a mistake and he used to record the time from the clock provided in the casualty.

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PW27 is a witness to Ext.P21 mahazar which he had recorded for the purpose of verifying the flag post of Swathanthra Matsya Thozhilali Union at Panjaramukku junction.

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PW28 is Ushakumary who is the person in duty at the Casualty in Medical College Hospital. She had recorded the OP register from 7 p.m. onwards on 30/11/2000 till the next day morning. She deposed that Sl.Nos.616 and 617 patients were Dominic and Peter respectively. The time at which they have been brought to the Casualty has not been recorded in the register. Sl.No.603 has come to the hospital at 11.00 p.m. After 12 midnight, time is recorded. Sl.No.614 has come to the hospital at 11.50 p.m. As per record, Sl.Nos.616 and 617 had come to the hospital after 11.50 p.m. OP tickets are issued after registering their names in the OP register. Thereafter, the Doctor sees the patients.

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PW29 is the Village Officer of Cherthala south village. He had prepared Ext.P22 site plan.

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Crl.Appeal Nos.1124, 1129 & 1243/2012

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PW30 was the Assistant Sub Inspector of Police at Arthunkal police station on 30/11/2000. He received intimation from the Medical College Hospital regarding the injury sustained by two witnesses in the case. That day, by midnight, at about 1 'O' clock, he had gone and taken the statement of PW1 while he was getting treatment. He then recorded the body note of PW1 and PW2 which are marked as Exts.P1(a) and P1(b). Thereafter he reached the police station and on that basis crime has been registered which is marked as Ext.P23. He had submitted express report to the higher ups and it was sent to the Court. Police was deputed to guard the scene also.

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PW31 Joseph Benedict had deposed that there was a flag post of Swathanthra Matysa Thozhilali Union at Panjaramukku. He is residing on the western side of Panjaramukku. On 28/11/2000, by about 10 p.m, he saw that the flag post was bend. He was alighting from KSRTC bus. The flag post was bend by Shabu, Anil Kumar and two others.

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PW32 is Dr.B.Ashok Kumar. He is Lecturer of Medical College Hospital, Alappuzha. He deposed that, on 1/12/2000, at 12.15 am, a dead body was brought to the hospital with the

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Crl.Appeal Nos.1124, 1129 & 1243/2012

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alleged cause of injury as stab injury on the left side of the chest and one incised wound on left side of chest wall below clavicle and one incised wound below the nose on the upper lip. He deposed that the injuries could be caused by using a sharp weapon like chopper. Wound certificate is marked as Ext.P25.

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PW33 is Dr.R.Aniraj. He had issued Ext.P26 wound certificate in regard to the injuries found on the body of Pappachan (7^th accused).

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Following were the injuries noticed by him:-

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“1) Lacerated wound right side of forehead, bone deep 6x2 cm vertical line

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(2) Lacerated wound left side of forehead bone deep 3x1 cm transverse line.

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(3) Lacerated through and through upper lip vertical 2x1cm. Full thickness.

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(4) Lacerated wound occipital scalp 6x5 cm.

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(5) Lacerated wound on right elbow 2x1 cm and

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(6) Multiple contused abrations left arm and forearm.”

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He stated that the cause was that somebody had manhandled him at 1.00 a.m on 1/12/2000 near Arthunkal. The patient was brought by a group of people who vanished from the casualty immediately. He also stated that injury No.6 could be caused by a fall and injury Nos. 1 to 5 could be caused by a stick,

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Crl.Appeal Nos.1124, 1129 & 1243/2012

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iron rod and blunt side of a chopper. In cross examination, he stated that since injury No.4 was serious in nature, he referred the patient to Neuro Surgeon and had a CT scan. Thereafter, he was admitted in the ward. He gave intimation to the police as well.

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PW34 is Dr.V.C.Mamman, He has a hospital by name Mohan Hospital at Eramathoor. On 1/12/2006 at 3.30 a.m, a person by name Ramesan came to the hospital with an injury on the right knee joint. At 8.30 am, he was discharged. He had no fracture. He also identified MO18, the OP ticket which was seized by the police. Witness was declared as hostile.

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PW35 is the Station House Officer who had produced the records from Arthunkal police station.

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PW36 was the Associate Professor of Forensic Medicine and Deputy Police Surgeon who conducted postmortem of the dead body of Dominic, aged 61 years. Ext.P27 is the postmortem certificate. Following were the ante-mortem injuries noticed by him:-

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“1. An incised wound 4x0.5x1cm, transverse, over space between nose and upper lip, mainly over left side with inner end touching right ala, 2.5 cm right to midline, coursing backwards to open into vertibule.

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2. Linear abrasion 3 cm long, transverse over left cheek,

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Crl.Appeal Nos.1124, 1129 & 1243/2012

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in a line with and 0.5cm outer to injury No.1

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3. Incised wound 12 x 0.1 cm superficial oblique over back of left shoulder, with lower inner end 9 cm each from midline and shoulder top.

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4. Contused abrasion 1 x 1 cm over front of right knee.

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5. Incised wound 9.5 x 0.1 - 0.4 cm superficial transverse over outer aspect of left thigh, 33 cm above knee.

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6. Incised penetrating wound with skin part 6.5 x 1.5 cm,oblique, over left side of front of chest, with end sharp cut, with lower inner end 3 cm outer to midline and 5 cm below collar bone, coursing backwards, inwards and downwards for 3 cm to open into left chest cavity, cutting muscles, nerves and vessels underneath and cut fracturing 2^nd left rib and fracturing the breast bone transversely inner to it and cutting underneath pleura. 1000 cc fluid blood and 3 handfuls reddish clots in left chest cavity. Underneath the brest bone, the pericardium was cut along the line of wound for 3 cm and lower lobe of left lung for 1 cm. Ascending aorta showed incised wound 2.2 0.1 cm at front wall opening into the lumen, along the axis of wound. Left lung (280 grams, collapsed) and right lung (300 gms) pale.

¶170

All incised wound had contused edges. My opinion as to the cause of death is that the deceased died of incised penetrating wounds on chest (injury No.6). Injury No.6 was sufficient in the ordinary course of nature to cause death. Ascending aorta take oxigeneted blood from heart to supply whole body. Injury No.1 can be caused by a heavy sharp cutting weapon like MO.3 shown to me (witness answered after verifying MO.3). Whether injury NO.6 could be caused by weapon like MO.2 chopper (Q)

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Crl.Appeal Nos.1124, 1129 & 1243/2012

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Can be caused (A) Injury No.2 can be caused by a sharp cutting weapon. Injury Nos. 3 and 5 can be caused by weapons like MO.9, MO.10 and MO.11 shown to me. Injury No.4 can be caused by iron rods like Mos. 5 and 6 shown to me.”

¶174

In the opinion of PW36, the deceased died due to incised penetrating wound on chest. He deposed that said injury was sufficient in the ordinary course of nature to cause death. He also deposed that injury No.1 can be caused by a heavy sharp cutting weapon like MO3. Injury No.6 could be caused by weapon like MO3 chopper. Injury No.2 can be caused by a sharp cutting weapon. Injury Nos.3 and 5 can be caused by weapons like, MO9, 10 and 11. Injury No.4 can be caused by iron rods like MO5 and 6.

¶175

PW37 was the Circle Inspector of police who conducted investigation into the matter.

¶176

PW38 continued the investigation from 1/3/2001.

¶177

PW39 completed the investigation and submitted final report before court.

¶178

The defence examined 3 witnesses DW1 to DW3. DW1 is Dr.V.Karthaswamy. He was working in the department of Forensic Medicine, Medical College in Kerala and was working as Tutor, Assistant Professor, Associate Professor, Professor and Director.

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Crl.Appeal Nos.1124, 1129 & 1243/2012

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He has also worked as Police Surgeon. With reference to Ext.P27 postmortem certificate of the deceased, he opined that injury No.6 is a fatal injury. He further deposed that injury No.6 could be caused by a weapon like knife, dagger or a similar piercing weapon with a blade length of 5 inches or more. He stated that the weapon used should be a double edged one. To a specific question as to whether MO2 could cause an injury like No.6, his answer was that it cannot. He further deposed that MO2 is basically a cutting weapon and not a stabbing weapon. If it is used for piercing, the dimensions of injuries given in injury No.6 will not match with the size of MO2. Further the weapon used has to be stained with blood since it caused injury on aorta and MO2 could not have caused such an injury. He further deposed that incised wound is called so, when the length is more than depth. If the depth is more than breadth and length it is called stab wound. If such wound involved a blood cavity it is called a penetrating wound. In regard to injury No.6, he stated that no contused edges were mentioned in injury No.6. During cross examination, he submitted that MO2 is used for cutting purpose and that is why he described it as a cutting weapon. He further deposed that injuries

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Crl.Appeal Nos.1124, 1129 & 1243/2012

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like cutting muscles, nerves and vessels underneath and fracturing the second left rib and breast bone transversely inner to it and cutting underneath plura can be caused by MO2. He also deposed that it is not necessary to have a pointed weapon to cause death of a person. Width of the end portion of MO2 is less than its width on the middle part.

¶185

DW2 is Dr.Harikumar. He had produced Ext.D17 the case sheet relating to a patient by name Pappachan C.P. He was examined on 2/12/2000 at 2.15 am after reference from Medical College Hospital, Alappuzha and was discharged on request. Following were the injuries noticed:-

¶186

“(i) bilateral black eye.

¶187

(ii) sutured wound on the Rt.frontal region extending to right upper ey-lids 6.5 cms long.

¶188

(iii) Sutured wound on the Lt. Frontal region, 3 cms long.

¶189

(iv) Sutured wound on the left parietal region.

¶190

(v) Sutured wound on the Rt.Occipital region, 4 cms long.

¶191

(vi) Sutured wound on the Rt.elbow 2 cm long.

¶192

(vii) Sutured wound on the Lt.leg below the knee, 1 cm

¶193

long.

¶194

(viii) Multiple contusions on the left arm, back of thorax and loin.

¶195

(ix) Multiple linear abrasions on the back.

¶196

(x) Contusion on the upper lip with sutured wound 2 cms on the left side.”

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Crl.Appeal Nos.1124, 1129 & 1243/2012

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¶199

He stated that he was admitted in the Neuro Intensive Care Unit and he was discharged on 15/12/2000. He came for review in January and had undergone bone fixation and grafting on 2/12/2000. He had complained that Dasan and 10-15 others had attacked him on 30/11/2000 around 9.30 p.m near Arthunkal. During cross examination he said he cannot identify Pappachan at this point of time.

¶200

DW3 is Bhaskaran who is a worker of CPI(M). He is the local committee Secretary for the last 13 years. He knew the 5^th accused who was a member of the local committee for the last 16 years. He had produced Ext.D18 which proves that on 30/11/2000, 5^th accused had attended the local committee meeting. The signature is Ext.D18(a). The meeting started at 7.30 pm and was over by 12.05 mid night.

¶201

The first contention taken by the learned counsel for appellants is that PW1 to 7 cannot be believed. Prosecution had arrayed them as eye witnesses. But according to the defence, there were lot of omissions and contradictions in their evidence. First of all, the incident happened according to the prosecution at 11.15 pm and sufficient light was not available. Therefore the

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Crl.Appeal Nos.1124, 1129 & 1243/2012

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witnesses could not have identified the accused, whereas in the evidence they have even given minute details of the overt acts by each of the accused. It is argued that there was an attempt to contend that PW1 was having MO1 torch with him, so as to identify the accused. Further an attempt has been made to indicate that it was a full moon day. It is also contended that the prosecution has stated that there was a light in front of PW1's house which was enough to see the assailants and the overt act, which could not be believed at all.

¶205

But, it could be seen that PW1 has given FIS from the Casualty of Medical College Hospital, Alappuzha at 4 a.m on 1/12/2000 and it was recorded by PW30 Assistant Sub Inspector of Police. In the FI statement PW1 had stated that on 30/11/2000 at 11.15 p.m, after having food, he was talking to his neighbours Johnny and Kunjachan outside his house and near the road, he heard noise of some people shouting the slogan DYFI Sindabad. When he lighted his torch, he saw certain persons coming under the leadership of Shabu (A1). He also identified Shaji (A2), Pradeep (A3), Sajeevan (A4), Santhosh (A5) and Shibu (A6). He had also stated that they were having weapons and some others

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Crl.Appeal Nos.1124, 1129 & 1243/2012

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were having granite stones with them. They were asking for “Pattambi Kuttan”. On hearing them, his father's younger brothers Dummini and Peter came to his house and when they reached near the pathway on the southern side of Henry's house, Shaji shouted to do away with them. They initially attacked Dummini and when Peter interfered, Peter was attacked. Some of them threw stones of which one hit on the right eye of PW1 and he fell down. When the people around converged on hearing the hue and cry, accused left the place. Peter and Dummini fell down consequent to the injuries and they were taken to the hospital. He gave an additional statement before the police on the next day giving all the minute details of the incident including the names of the accused. PW2 is the injured who also identified all the accused and has also stated the overt acts committed by each of them. PWs 3 to 7 are the other occurrence witnesses. Despite the contradictions and omissions pointed out during cross examination of these witnesses, all of the witnesses supported the prosecution case as stated by PW1 and PW2. The fact that PW1 was injured is evident from the body note prepared by PW30 though the wound certificate is not forthcoming. PW2 is an

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Crl.Appeal Nos.1124, 1129 & 1243/2012

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injured witness. He suffered severe injuries and even now he is unable to do any work. All the accused are known to the witnesses. PW1 had clearly spoken to the fact as to how he knew all the accused. Therefore when the incident happened, it was seen by seven persons and they have a clear idea about the involvement of all the accused in the case. Therefore, the contention that the accused could not have been identified cannot be believed. Even at the earliest point of time, PW1 has stated about the presence of accused 1 to 6 and about 10 persons who could be recognized. The fact that PW1 was standing in front of his house and the incident happened on the road in front of his house and the fact that PW1 had a torch and he had lighted it to find out who were coming is clear from the evidence. When all the witnesses are categoric in their testimony regarding the presence of the accused, defence contention that they could not have identified the accused and overt acts or the weapons cannot be sustained.

¶212

Next contention urged is that the evidence of PWs 1 to 7 cannot be believed. After having gone through the entire evidence, despite the omissions and contradictions pointed out,

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Crl.Appeal Nos.1124, 1129 & 1243/2012

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there is no reason to discard their evidence in toto. That apart, PW1 and 2 are injured witnesses. Their presence in the scene of occurrence cannot be disputed. When PW1 and 2 have clearly spoken about the incident without much contradictions, which are material to the facts of the case, there is no reason to disbelieve their version. The contradiction as far as PW1 is concerned is his statement that some of the persons had thrown stones against him and as a result of which he has suffered an injury on his right eye, which he denied. As far as PW2 is concerned, the only contradiction is Ext.D3. Ext.D3 is a statement recorded by the police u/s 161 Cr.P.C. wherein he denies to have given a statement that Kuttan and others tried to assault Anil Kumar and the assailants had come to seek vengeance and in the process they got injured and brother Dummini was killed. Two injured witnesses have given evidence without much contradiction which is seen supported by other eye witnesses. Therefore when the fact that under the leadership of first accused, a gang had come to attack PW1 is evident from the deposition of all the witnesses, the fact that PW1, PW2 and Dummini got injured in the said incident also is proved. PW2 and Dummini were taken to the

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Crl.Appeal Nos.1124, 1129 & 1243/2012

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hospital in separate vehicles and PW1 followed them in another vehicle. Dummini was brought dead at the hospital which is proved by the evidence of Doctor who examined him. PW2 had to undergo treatment for a few months. From the aforesaid evidence, the incident of attack on PW1, PW2 and Dummini have been proved. When all the witnesses identified the accused who were the assailants, none of them can escape the liability.

¶219

Another contention urged was that Dummini died due to an injury viz., injury No.6, which was fatal and it could not have been caused by the weapons which have been produced before Court. To prove the aforesaid fact, they have examined DW1. According to him, injury No.6 cannot be caused by MO2 chopper. The 6^th injury is an incised penetrating wound 6.5x1.5 cm, oblique over left side of front of chest with ends sharp cut with lower inner end 3 cms. PW36 has clearly stated that the said injury could be caused by weapon like MO2. Court below did not place any reliance upon evidence of DW1 who had no occasion to see the injury. He was only basing his opinion on the basis of what is noted in Ext.P27 document. Since he has not actually seen the injuries on the body of the deceased, Court below observed that it

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Crl.Appeal Nos.1124, 1129 & 1243/2012

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may not be possible to rely upon the evidence given by DW1. From the evidence of PWs 1 to 7, it is rather clear that Dummini was attacked by the accused. In the process, he suffered a penetrating wound also. The eye witnesses have stated that they saw the first accused inflicting an injury on the deceased by MO2 chopper. When during postmortem the Doctor finds a fatal injury which had caused the death and the attack is by a group of assailants, probably it may not be possible to specifically state the nature of weapon used to inflict such an injury. It is only an assumption. But, when the witnesses have identified the accused who had committed the crime, such evidence by DW1 may not help the accused to contend that they are not involved in the crime or they were not responsible for causing the injuries.

¶223

Yet another contention urged is that no motive had been proved in the case. First of all, when eye witnesses have spoken about the incident, there is no reason to prove the motive. Still the prosecution had attempted to adduce evidence. It was alleged by the prosecution that PW22 rented a shop at Panjaramukku to PW23 and he wanted PW23 to be evicted. The first accused had threatened PW23 and he managed to obtain

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Crl.Appeal Nos.1124, 1129 & 1243/2012

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Ext.P17 agreement by which PW23 agreed to vacate the premises within three months. PW23 appears to have made a complaint to his friends, who assaulted PW22 on 29/11/2000 at 9.30 p.m. PW22 is a member of Swatantra Matsya Thozhilali Federation. Coming to know about the attack on PW22, first accused and his Manager damaged a flag post belonging to the federation pursuant to which PW1 who is a local leader of the federation assaulted PW25, Manager of A1 on 30/11/2000 at 4.00 p.m. PW1 is also known as Pattambi Kuttan. It is in retaliation of the aforesaid incident that a conspiracy was hatched out at 9.30 p.m at Muttunkal toddy shop owned by the first accused and a conspiracy was hatched out to murder PW1 and others. It is based on such a conspiracy that all the accused forming themselves into an unlawful assembly with deadly weapons came and attacked PW1 and others.

¶227

PW22 turned hostile. However, PW23 deposed about the execution of Ext.P17 agreement and the attack on PW22, the damage to the flag post etc,. PW25 also turned hostile. However, the FIS given by PW25 to the Arthunkal police station is marked as Ext.P24, though it is denied by PW25. But PW27, the Head

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Crl.Appeal Nos.1124, 1129 & 1243/2012

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constable of the said police station deposed that Ext.P24 FIS was given by PW25 and Ext.P24(a) was the body note of PW25 which he had recorded.

¶231

Though PW22 had turned hostile, the fact that he was attacked by certain persons and a crime has been registered at Arthunkal police station is admitted. Ext.P21 is the mahazar relating to the flag post and the evidence of PW27 proves that PW25 has given a statement that he was attacked. Therefore, it is rather evident that the first accused had an axe to grind against the members of the federation and they were on the look out of Pattambi Kuttan (PW1). However, under what circumstances they had to attack Dummini and Peter is not known. Probably it is on account of the fact that they were also members of the same federation. The fact remains that there was a conflict among two groups with reference to the issue relating to evicting PW23 from the shop room, which ultimately resulted in the crime being committed.

¶232

The other question that may emanate for consideration is whether there is any evidence for conspiracy. Only evidence is that of PW8 who deposes that at 9 p.m on the previous day of the

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Crl.Appeal Nos.1124, 1129 & 1243/2012

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incident, he saw accused 1 and 2 and about 10 persons on the northern side of the toddy shop. He heard them talk about Pattambi Kuttan. He had identified accused 1 and 2. It is true that in cases of conspiracy, the agreement between the conspirators cannot be proved with direct evidence, but can only be inferred from a set of facts which had been proved. In the present case, the only evidence that had been adduced is that of PW8 who deposed that he saw accused 1 and 2 talking to 10 other persons near the toddy shop. The first accused of course can be said to have an enmity against the members of the federation and there is also evidence to indicate that there was an attempt to evict PW23 from the shop room which was also a fact projected by the prosecution. But in order to prove criminal conspiracy, it has to be proved that there was a previous meeting of mind between the conspirators. The fact that they have formed into an unlawful assembly and had a common object to commit the crime by itself will not be enough to prove the conspiracy. The prosecution case is that the motive and conspiracy was hatched up to attack PW1. But it is relevant to note that PW1 did not suffer any fatal injury. PW1 only suffered a single injury, when a stone was thrown at

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Crl.Appeal Nos.1124, 1129 & 1243/2012

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him. The accused had attacked Dummini and Peter and they suffered severe injuries and one injury to Dummini became fatal. PW1 does not have a case that he had run away from the scene of crime. Somebody had thrown a stone on him which caused the injury on the right side of his eye. Apparently, the assailants did not conspire together to commit murder of Dummini or to attack Peter. Even according to the prosecution, they came there by chance and suffered the injuries. Therefore, the prosecution theory of criminal conspiracy to commit murder of PW1 is not proved and the accused cannot be convicted for the conspiracy u/s 120B of I.P.C.

¶239

The 5^th accused has a separate case that he was not even present and evidence of DW3 is to the effect that he was attending a meeting of a local committee at the relevant time when the incident took place. But it is to be noticed that the minutes of meeting of a local committee of a political party cannot be taken as a piece of evidence to prove alibi. Though DW3 deposes that 5^th accused was present in the meeting all along, it might be only for the purpose of excluding him from the prosecution in the above case. PW37 the investigating officer has

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Crl.Appeal Nos.1124, 1129 & 1243/2012

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stated that the minutes book was artificially created for the purpose of the case. Court below also did not rely upon the evidence of DW3 and the contents of the minutes book in order to exclude the 5^th accused from being prosecuted. The eye witnesses have spoken about the presence of 5^th accused in the scene of crime and he has been specifically named by PW1 in the FIS which was given at the earliest point of time, there is no reason to disbelieve their version. We do not find any error in the said view taken by the court below.

¶243

The other contention urged is that the injuries on the 7^th accused is not properly explained by the prosecution. The contention is that though the eye witnesses have spoken about specific overt acts, none had stated anything about the injury caused to 7^th accused. However, PW2 admitted that the 7^th accused sustained injury at the place of occurrence. PW3 has also stated before police that the 7^th accused sustained injury. PW5 saw the 7^th accused at the Medical College Hospital with a dressing on his head. PW1 also has stated to have seen him at the hospital. PW33 is the Doctor who had attended to the 7^th accused and Ext.P26 is the wound certificate. DW2 is the Doctor at Medical

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Crl.Appeal Nos.1124, 1129 & 1243/2012

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College Hospital who has treated the 7^th accused. According to him, the injuries were very serious. The argument raised by the defence was that the presence of 7^th accused was not stated in the FIS and he was included in the party array only after a long period. When the injuries to the 7^th accused have not been explained by any of the eye witnesses, their evidence has to be viewed with caution. PW33 has examined the 7^th accused at 3 a.m on 1/12/2000 at Medical College Hospital and has issued Ext.P26 wound certificate. The cause of injury was that he was attacked by several persons at 1.00 am on 1/12/2000 near Arthunkal. It is also stated that the patient was brought by a group of people who vanished from the casualty immediately. Doctor also stated in his evidence that the information regarding the incident was given by the patient. 7^th accused was later seen by DW2 at 2.15 am on 2/12/2000 after being referred from Medical College Hospital, Alappuzha. In Ext.D17 case sheet, it is stated that 7^th accused was assaulted on 30/11/2000 at 9.30 p.m by Dasan and 10-15 persons. Therefore, these materials would show that the 7^th accused had tried to conceal the manner in which he suffered injuries. At the Medical College Hospital, it was stated that he

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Crl.Appeal Nos.1124, 1129 & 1243/2012

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-:37:-

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suffered injury at 1 am on 1/12/2000 whereas at the Medical Trust Hospital, he stated that he was attacked at 9.30 pm on 30/11/2000. He has no case that he suffered injury at 11.15 pm. Therefore, it is not correct to contend that he had suffered injuries while PW1, 2 and Dummini were attacked. Such a contention cannot be accepted. He has also not given valid explanation about the time at which he was attacked while the incriminating circumstances were put to him during 313 statement.

¶250

Further, it could be seen that the weapons were recovered based on disclosure statement of the accused. Some of the witnesses who witnessed recovery turned hostile to the prosecution. But when the investigating officer had recovered the material objects based on the disclosure statement given by the accused, it becomes a valid piece of evidence to support the prosecution case. It is trite law that even if the witnesses to the recovery have not supported the recovery as such, when the police had recovered the material objects viz., the weapons, based on the disclosure statement given by the accused, the said fact stands proved in terms of S.27 of the Indian Evidence Act. Further all the recovery witnesses have admitted their signatures

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Crl.Appeal Nos.1124, 1129 & 1243/2012

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in the recovery mahazar.

¶253

Taking into account all these facts and on a perusal of the judgment of the Trial Court, we do not think that the Trial Court has committed any error in finding the accused guilty of the offences charged except Section 120B of I.P.C.

¶254

The appeals are therefore disposed of setting aside the conviction and sentence for the offence u/s 120B I.P.C. and confirming the conviction and sentence in respect of all other offences.

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Sd/-

¶256

A.M. SHAFFIQUE, JUDGE

¶257

Sd/-

¶258

P.SOMARAJAN, JUDGE

¶259

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//True Copy//

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PS to Judge

Shabu v. State of Kerala

Case brief

What is this about?

What did the court decide?

Shabu v. State of Kerala

Case brief

What is this about?

What did the court decide?

What the court decided

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