Kerala High Court dismissed the criminal appeal challenging conviction and sentence under Sections 302, 307, PCI (unlawful assembly) for murder involving multiple victims, upholding evidence despite hostilities.
Appeal dismissed; conviction and sentence of life imprisonment upheld.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
&
THE HONOURABLE MR. JUSTICE P.SOMARAJAN
THURSDAY, THE 8TH DAY OF FEBRUARY 2018 / 19TH MAGHA, 1939
CRL.A.No. 1685 of 2011 (A)
AGAINST THE JUDGMENT IN SC 62/2005 of II ADDL. SESSIONS COURT, KOLLAM, DATED 29-07-2011
APPELLANTS/ACCUSED 2, 3, 5 & 7 : -
BY ADVS.DR.K.P.SATHEESAN
SRI.ANOOP.V.NAIR
SRI.M.R.JAYAPRASAD
SRI.MATHEW SUNNY
SRI.P.MOHANDAS (ERNAKULAM)
RESPONDENTS/STATE & COMPLAINANT: -
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 31-01-2018, THE COURT ON 08.02.2018 DELIVERED THE FOLLOWING:
DMR/-
A.M.SHAFFIQUE & P. SOMARAJAN, JJ.
Crl.Appeal No.1685 of 2011
Dated this the 8th day of February, 2018
J U D G M E N T
Somarajan, J.
Accused Nos.2,3,5 and 7 (herein after referred to as “appellants” for the sake of convenience) in Sessions Case No.62/2005 of the Additional Sessions Court-II, Kollam, came up with this appeal against the judgment of conviction and order of sentence under Sections 302, 307, 143, 147 and 148 IPC, dated 29.07.2011.
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the common object to do away the victims herein, the deceased Nelson and Raju and PW2, and accused No.2 with a sword inflicted cut injuries on the right cheek, dorsal aspect of left knee and right wrist of deceased Raju. The victim Nelson interfered and tried to defend the attack on Raju. Thereon accused No.2 inflicted cut injuries on his chest with the sword. Accused No.3 also stabbed on him with a knife. Accused No.7 inflicted cut injuries on the back and head of deceased Raju. Accused No.5 inflicted a stab injury on the left chest of deceased Nelson while accused No.6 beat on his right shoulder with a stick. Accused No.3 also stabbed on the chest of PW2 with a knife when he interfered in the attack and accused Nos.4, 9 and 10 stabbed him with sticks. The victims Raju and Nelson succumbed to the injuries at the place of occurrence.
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their father, accused No.1, dug ditches through the eastern pathway leading to the house under construction and in retaliation the deceased Raju blocked the pathway on its frontage which was being used by accused persons as a short cut to their house. Thereon accused Nos.1 to 10 formed themselves into an unlawful assembly with the object of wreck vengeance against Raju and others and to do away the victims, proceeded to the house of PW1 wherein they were temporarily staying and took Raju by force to the house compound of Makkariyose and inflicted injuries on his body. Seeing this Nelson interfered, which has resulted in inflicting several injuries on his body also. PW2 also received stab injuries and other injuries when he attempted to prevent the accused from unleashing attack on the two victims. Both the victims succumbed to the injuries at the spot.
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Sections 302, 307, 143, 147 and 148 IPC. They were found not guilty for the offence under Sections 324 and 447 IPC. The charge against accused No.1 was abated on his death. Other accused were found not guilty and hence acquitted. Accused Nos.2, 3, 5 and 7 were sentenced to undergo life imprisonment and to pay a fine of Rs.25,000/- with a default sentence of rigorous imprisonment for two years for the offence under Section 302 IPC, rigorous imprisonment for five years and to pay a fine of Rs.10,000/- with a default sentence of rigorous imprisonment for one year for the offence under Section 307 IPC, rigorous imprisonment for six months for the offence under Section 143 IPC and rigorous imprisonment for one year each for the offence under Sections 143 and 148 IPC with a rider that compensation to PW2 and the mother of the victims was allowed without stating its quantum and mode of realization. This appeal is against the above said judgment of conviction and sentence.
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brothers of PW3, wife of PW1. Accused No.1 is the father of accused Nos.2 to 4. The alleged incident was happened on 14.03.1999 at 9.00 p.m. The main attack on the judgment of conviction rendered by the learned Sessions Judge is that the delay occasioned in recording the FIS and registering the FIR was not properly considered. All the independent witnesses cited by the prosecution, six in numbers, turned hostile to the prosecution and none of them supported the prosecution case. In the said circumstances, it was argued that no much reliance can be placed on the interested testimony of PWs 1 to 3 who are the near relatives and kith and kin of the deceased persons. The presence of PW1 at the place of occurrence was also disputed besides the contention that it may not be possible for PW1 to see what actually happened at the place of occurrence which is situated 120 meters away from his house. The ocular version given by PW2 is tainted by enmity as he had received injuries in the alleged incident and no much reliance can be placed on it. The oral evidence tendered by PW3 stood on the same pedestal with that of PWs 1 and 2 and
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cannot be accepted. The oral evidence tendered by PWs 1 to 3 cannot be acted upon unless there is sufficient corroboration as the above said witnesses closely related to the victims being the kith and kin of both the deceased and lastly that the information given by PW2 before the Doctor, PW20, who had drawn Exhibit P10 wound certificate goes against the main substratum of the prosecution case.
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the genuineness of the oral evidence given by the first informant which is otherwise found to be acceptable and reliable.
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much relevance as it is with respect to the date of digging on the alleged pathway. On the other hand, the oral evidence tendered by PW1 and PW3 gives sufficient corroboration to the oral testimony of PW2 in all respects and nothing was brought out to shake the credibility of the oral testimony of PW1 and PW3. The fact that all the independent witnesses were turned hostile to the prosecution is not at all sufficient to discard the oral testimony of PW1 to PW3 when the same were found to be trustworthy and genuine. The fact that nothing was elucidated during their cross examination to shake the credibility of their oral testimony has to be appreciated with the attending circumstances. The contention raised by the appellants that it is not possible for PW1 to see the incident with its minute details by standing on at a distance of 120 meters and that the oral deposition of PW1 is only a tutored one cannot be sustained because of the reason that PW1 was actually standing very near to the place of occurrence. The distance noted in between the house of PW1 and the place of occurrence as 120 meters does not have any
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relevance on the reason that PW1 at the time of occurrence was standing on his compound and proceeded to the place of occurrence when one of the victims was forcibly taken to the compound of Makkariyose by the accused persons and he had seen the entire episode by standing on its north-western side. The further contention that the conduct of PW1 in not involving in the alleged incident in spite of attack on his two brother-in-laws itself would show that he did not witness the alleged incident, cannot be sustained as we could not see anything abnormal or unusual in the conduct of PW1 in keeping away from the alleged incident. It may be due to fear of injury to his body or due to some other reasons. What has to be tested is the reliability of the oral evidence tendered by PW1. PW1 to PW3 are in agreement with respect to the main substratum of the prosecution case with its details including the genesis in which the alleged incident was happened and nothing was brought out to discredit their oral testimony. On the other hand, they are in full agreement with respect to the sequence of incident, the respective overt acts of appellants
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and the role played by each of them in the commission of offence.
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support the genesis of the incident as set up by the prosecution through PW1 to PW3. Further, the employment of weapons - a sword and knife - would also prima facie show that the assailants were the accused persons as they did not have any case that any of the victims armed with weapons came to their house compound.
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Solomon who is not an eye witness to the alleged incident. Hence no much reliance can be placed on the above said entry in Exhibit P10 and it will not, in any way, assist the defence set up by the appellants.
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directed downwards, backwards and to the right for a minimum depth of 11 cm.
(2) Incised wound 3x0.5 cm bone deep obliquely placed on the top of right side of head, the upper inner end being just outer to midline and 8 cm above occiput.
(3) Incised wound 1x0.5 cm bone deep obliquely placed on the back of head 5 cm outer to midline and 6 cm above occiput.
(4) Multiple abrasion 4.5x3 cm on the left side of face 3.5 cm in front of middle of ear.
(5) Abrasion 1x1 cm on the inner aspect of right elbow.
of right leg 4 cm above ankle.
(8) Incised wound 2.5x0.5 cm skin deep on the inner aspect of left leg 4 cm below knee.
(9) Abrasion 7x1.5 cm obliquely placed on the back of left forearm 12 cm above wrist.
(10) Abraded contusion 4x1.5 cm on the top of left shoulder.
(11) Multiple abrasion 2x2 cm on the back of left side of trunk 10 cm outer to midline and 18 cm below root of neck.
(12) Abrasion 2.5x0.5 cm vertical on the back of middle of trunk just below root of neck.
(13) Incised wound 1.5x0.5 cm skin deep obliquely
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placed on the back of right side of trunk 5.5 cm outer to midline and 7 cm above natal cleft.
(14) Incised wound 9x0.5 cm skin deep on the front of left side of chest the upper inner end being 5.5 cm outer to midline and 13 cm below collar bone.
(15) Incised wound 7.5x1 cm skin deep obliquely placed on the left side of front of chest the inner end being 9 cm outer to midline and 15.5 cm below collar bone with a tailing 3.5 cm upwards. ”
was issued in respect of autopsy conducted on the body of Raju wherein the following ante-mortem injuries were noted:
“(1) Incised penetrating wound 3.5x1.5 cm on the front of left side of chest the upper outer sharply cut end being 2 cm outer to midline and 10 cm below the upper end of sternum. The other end showed splitting. The wound entered into the chest cavity just above the lower end of sternum. It was then penetrated the pericardial cavity and terminated into the chamber of the left ventricle with a nick in the posterior wall. The pericardial cavity contained 120 ml of fluid blood and the left chest cavity contained 500 ml of fluid blood. The wound was directed upwards and backwards to the right for a minimum depth of 10.5cm.
(2) Incised wound 6.4x1 cm bone deep oblique
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on the left side of top of head the inner front end being 1 cm outer to midline and 8 cm above eyebrow. Underneath the bone was found sharply cut.
(3) Multiple small abrasion 3x2 cm on the right side of forehead 1.5 cm outer to midline and 2 cm above eyebrow.
(4) Incised wound 6x5x1 cm on the right eyebrow and adjacent part of face with a flap downwards 2 cm in front of ear.
(5) Abrasion 8x1 cm oblique on the front of right leg 12 cm below knee.
(6) Abrasion 1.5 x1.5 cm on the front of right knee.
(7) Incised wound 11x3x3 cm obliquely placed on the inner aspect of left thigh 2 cm above knee. Underneath the bone was found sharply cut.
(8) Abrasion 6x1 cm on the front of left leg 12 cm below knee.
(9) Incised wound 5.5x3x2.5cm horizontally placed on the front of left forearm 5.5cm above wrist. Underneath the vessels, nerves and muscles found severed and both bones were found sharply cut.
(10) Incised wound 9x0.5x0.5cm oblique on the back of right side of trunk, the lower inner end being 1 cm outer to midline 13 cm below root of neck.
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(11) Incised wound 11x0.5x0.2 cm to 0.5cm on the left side of back trunk the upper inner end 1 cm outer to midline and 16 cm below root of neck. (12) Incised wound 8x1.5x0.5 to 1 cm on the left side of back of trunk with tailing downwards for a length of 7cm, the upper inner end being 5 cm outer to midline and 8 cm below root of neck.
(13) Incised wound 18x0.5 to 2cmx0.5 to 1 cm on the back of left side of trunk and adjacent part of arm, the lower inner end being 7 cm outer to midline and 8.5 cm below top of shoulder.
(14) Superficial incised wound 16 cm long obliquely placed on the back of left side of trunk the lower inner end being 13 cm outer to midline and 30 cm above natal cleft.
(15) Superficial incised wound 12 cm long on the back of right arm 2 cm below top of shoulder.
(16) Incised wound 3x1x1 cm vertically placed on the back of middle of trunk with a tailing upwards for a length of 13 cm, downwards 3.5 cm the lower end being 17 cm above natal cleft.
(17) Incised wound 6x0.5x0.5cm with a tailing 8.5 cm upwards on the back of right side of trunk the lower inner end being 0.5 cm outer to midline and 23 cm above natal cleft.
(18) Superficial incised wound 34 cm long obliquely placed on the back of trunk, the upper outer end being 17 cm below top of shoulder.
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(19) Superficial incised wound 18 cm long oblique on the back of middle of trunk 23 cm above natal cleft.
(21) Superficial incised wound 4 cm long oblique on the upper inner quadrant of left buttock.”
Doctor who conducted autopsy on the body of deceased Nelson and Raju and issued Exhibits P14 and P15 are as follows:
(i) There were 21 ante-mortem injuries on the body of
deceased Raju.
(ii) Injury Nos.1 and 9 in Exhibit P15 post-mortem examination report are on the chest and left forearm and they
are sufficient in its ordinary course to cause death.
injuries in Exhibit P15 are possible by MO4 or a weapon like MO4.
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(vi) The cause of death of Raju is due to injuries sustained to the chest and left forearm (injury Nos.1 and 9).
(vii) There were 15 ante-mortem injuries on the body of deceased Nelson.
(viii) The cause of death of Nelson is due to injuries sustained to the chest, i.e injury No.1, and it is sufficient in its ordinary course to cause death.
(ix) Injury No.1 is possible by a single edged weapon like knife. The other incised wounds stated in Exhibit P14 are possible by a weapon like MO4. Abrasions noted in Exhibit P14 are possible by contact with the rough surface of a weapon like MO5.
(x) Except injury No.1 other incised wounds are possible by a sharp edged weapon like sword.
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regarding the weapon used - MO3 knife and MO4 sword - for the commission of offence stood as corroborated by the expert opinion rendered by the Doctor who conducted post-mortem examination on the body of deceased and gives sufficient corroboration to the oral testimony of PWs 1 to 3 regarding the main substratum of the prosecution case. Nothing else was brought to our notice to discard the oral evidence tendered by PW1 to PW3. It is now settled that the factum of relationship of witnesses with the victim itself is not a ground to reject or to discard the oral evidence tendered by them, if it is otherwise found to be truthful and reliable.
“Stab injury 4cm long 4 cm below the supersternal notch”.
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injury having 4 cm length on the vital part of the body of PW2. The medical evidence adduced through PW20 Doctor and Exhibit P10 wound certificate would also give sufficient corroboration to the oral evidence tendered by PW2. Hence, the finding of guilt of appellants under Sections 302, 307, 143, 147 and 148 IPC and the conviction thereunder do not call for any interference by this Court.
In the result, the appeal is dismissed.
A.M.SHAFFIQUE (JUDGE)
P. SOMARAJAN (JUDGE)
DMR/-
3 issues framed by the court
Whether the conviction despite hostility of independent witnesses and allegations of delay in FIR must be set aside.
Whether the corroboration of interested witnesses by post-mortem reports supports the finding of guilt.
Whether the sentences awarded under Sections 302, 307, 143, 147 and 148 IPC require interference.
1 provisions across 1 enactments
Joy @ Salim and Others
State of Kerala
A.M. Shaffique
P. Somarajan
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
