Convictions for murder and attempted murder with a common object, and unlawful assembly offences, were upheld. The Court rejected challenges concerning delayed receipt of the FIR, eyewitness credibility and identification, injuries on the accused, motive and weapon recovery. All appeals were dismissed.
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
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
THE HONOURABLE MR. JUSTICE P.SOMARAJAN
FRIDAY, THE 23RD DAY OF MARCH 2018 / 2ND CHAITHRA,1940
CRL.A.No. 753 of 2012
AGAINST THE ORDER/JUDGMENT IN SC 1790/2008 of ADDL.SESSIONS COURT-I, THIRUVANANTHAPURAM DATED 24-04-2012
APPELLANTS/ACCUSED NO. 1 TO 3
3 PRADEEP, AGED 43, S/O. RAVEENDRAN, SARASWATHY BHAVAN, MAMMAN THURUTH, NEENDAKARA TALUK, KOLLAM DISTRICT, NOW RESIDING AT MARUTHUVILASOM VEEDU,T.C. 41/527, PUTHENKOTTA, DEVI NAGAR JUNCTION KURIYATHI WARD, MANACAUD VILLAGE.
BY ADVS.SRI.VIPIN NARAYAN SRI.M.REVIKRISHNAN SRI.P.VIJAYA BHANU (SR.)
RESPONDENT(S)/COMPLAINANT:
STATE OF KERALA REPRESENTED BY THE C.I. OF POLICE (CRIME NO. 429/05) FORT POLICE STATION REPRESENTED BY THE PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM.
BY PUBLIC PROSECUTOR SRI.NICHOLAS JOSEPH
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 10-01-2018 ALONG WITH CRL.APPEAL NOS. 953, 954 AND 955/2012,THE COURT ON 23-03-2018 DELIVERED THE FOLLOWING:
IN THE HIGH COURT OF KERALA AT ERNAKULAM
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE &
THE HONOURABLE MR. JUSTICE P.SOMARAJAN
FRIDAY, THE 23RD DAY OF MARCH 2018 / 2ND CHAITHRA,1940
CRL.A.No. 953 of 2012
AGAINST THE ORDER/JUDGMENT IN SC 1790/2008 of ADDL.SESSIONS COURT-I, THIRUVANANTHAPURAM DATED 24.4.2012
APPELLANT/ACCUSED NO.7
SREEKUMAR @ KUTTAN, AGED 39, S/O.SOMAN, MARUTHUVILASAM VEEDU, T.C.41/527, PUTHENKOTTA, DEVI NAGAR JUNCTION, KURIYATHI WARD, MANACAUD VILLAGE, PIN 695009.
BY ADV.SRI.C.P.UDAYABHANU
RESPONDENT/COMPLAINANT:
STATE OF KERALA REPRESENTED BY THE C.I. OF POLICE (CRIME NO.429/05), FORT POLICE STATION REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.
R1 BY ADV. PUBLIC PROSECUTOR SRI.NICHOLAS JOSEPH
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 10-01-2018 ALONG WITH CRL.APPEAL NOS. 753, 954 AND 955/2012,THE COURT ON 23-03-2018 DELIVERED THE FOLLOWING:
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE & THE HONOURABLE MR. JUSTICE P.SOMARAJAN
FRIDAY, THE 23RD DAY OF MARCH 2018 / 2ND CHAITHRA,1940
CRL.A.No. 954 of 2012
AGAINST THE ORDER/JUDGMENT IN SC 1790/2008 of ADDL.SESSIONS COURT-I, THIRUVANANTHAPURAM DATED 24-04-2012
APPELLANT(S)/6TH ACCUSED
PRASANTH, S/O MUTHUKRISHNAN, T.C.41/853, VADAKKEKOTTA LANE, BEHND PUTHENCOTTA SIVAN TEMPLE, KURIYATHY WARD, MANACAUD VILLAGE THIRUVANANTHAPURAM DISTRICT.
BY ADVS.SRI.K.SIJU
SRI.S.ABHILASH SMT.BINDU GEORGE SMT.CHITHRA.S.BABU
RESPONDENT(S)/STATE:
STATE OF KERALA THROUGH CIRCLE INSPECTOR OF POLICE, FORT POLICE STATION, THIRUVANANTHAPURAM, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031.
R1 BY ADV. PUBLIC PROSECUTOR SRI.NICHOLAS JOSEPH
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 10-01-2018 ALONG WITH CRL.APPEAL NOS. 753, 953 AND 955/2012,THE COURT ON 23-03-2018 DELIVERED THE FOLLOWING:
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE &
THE HONOURABLE MR. JUSTICE P.SOMARAJAN
FRIDAY, THE 23RD DAY OF MARCH 2018 / 2ND CHAITHRA,1940
CRL.A.No. 955 of 2012
AGAINST THE ORDER/JUDGMENT IN SC 1790/2008 of ADDL.SESSIONS COURT-I, THIRUVANANTHAPURAM DATED 24-04-2012
APPELLANTS/ACCUSED NOS.5 AND 4:-
1 RAJESH S/O.SIVANKUTTY, RESIDING AT ATTUVARAMBU KATTAKKAL VEEDU, T.C.21/1852, NEAR THERAKOM JUNCTION, NEDUMCAUD WARD, MANACADU VILLAGE, THIRUVANANTHAPURAM TALUK.
2 SEKHAR, S/O.ARUMUGHAM, RESIDING AT SIVA BHAVAN, T.C.41/527, PUTHENKOTTA, DEVI NAGAR JUNCTION, KURIYATHI WARD, MANACADU VILLAGE, THIRUVANANTHAPURAM.
BY ADVS.SRI.V.AJAKUMAR
SRI.T.M.CHANDRAN SRI.SIDHARTH A.MENON SRI.S.SUJITH
RESPONDENT(S)/COMPLAINANT:-
STATE OF KERALA REPRESENTED BY THE C.I OF POLICE (CRIME NO.429/2005), FORT POLICE STATION, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.
BY PUBLIC PROSECUTOR SRI.NICHOLAS JOSEPH
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 10-01-2018 ALONG WITH CRL.APPEAL NOS. 753, 953 AND 954/2012,THE COURT ON 23-03-2018 DELIVERED THE FOLLOWING:
A.M. SHAFFIQUE & P.SOMARAJAN, JJ.
========================== Crl.Appeal Nos. 753, 953, 954 & 955 of 2012
=============================
Dated this, the 23rd day of March, 2018
J U D G M E N T
Shaffique, J.
Accused 1 to 3 in SC No.1790/2008 decided on 24/4/2012 by the Additional Sessions Court-I Thiruvananthapuram are the appellants in Crl.Appeal No.753/12, accused Nos.4 and 5 are the appellants in Crl.Appeal No.955/2012, 6th accused is the appellant in Crl.Appeal No. 954/2012 and 7th accused is the appellant in Crl.Appeal No. 953/12.
Crl.Appeal Nos. 753, 953, 954 & 955 of 2012
-:2:-
each and for offence u/s 143 and 148 of IPC, rigorous imprisonment for 6 months each. Accused 8 and 9 were acquitted.
Crl.Appeal Nos. 753, 953, 954 & 955 of 2012
-:3:-
to 9 along with their friends, deceased Anil Kumar and PW3 formed a Voluntary Association under the name Devi Volunteer Association and they constructed a shed in front of the said shop room and started a reading room. The said shed was constructed in such a manner to block the view of the said shop room.
Crl.Appeal Nos. 753, 953, 954 & 955 of 2012
-:4:-
2 and 7 to 9 was the President decided to demolish the reading room shed and to shift the same to another place. Anil Kumar and PW3 who were special invitees opposed the said proposal which incident also aggravated the animosity between the parties.
Crl.Appeal Nos. 753, 953, 954 & 955 of 2012
-:5:-
autorickshaw and went back to the house of accused 1, 2, and 7 to 9 to give message to accused 7 to 9 who were also present there. Accused 7 to 9 also reached the spot with weapons. Thereafter, at .7.30 pm, all the 9 accused persons went to the starting point of Vattavila lane. They went towards deceased and PW3. First accused caught hold of the shirt of the deceased and threatened him that he will be killed. Deceased pushed away his hand and ran away from there through Vattavila street. PW3 ran behind him followed by PWs 1 and 2. All the 9 accused followed the deceased and attacked him with weapons in front of the house of one Komalan. The deceased fell down on the street. 8th accused also shouted to kill him. In the meantime, after the attack on the deceased and after confirming that he had succumbed to the injuries, the accused ran towards the workshop in search of PW3 and thereafter inflicted injuries on PW3 with the intention to commit murder. PW6 and 7 took the deceased to the hospital. PW3 was also taken to the hospital by PW6 and one Suresh. PW3 was admitted and referred to the Critical Care Unit. Anil Kumar was taken to the Medical College Hospital where he was declared dead.
Crl.Appeal Nos. 753, 953, 954 & 955 of 2012
-:6:-
Crl.Appeal Nos. 753, 953, 954 & 955 of 2012
-:7:-
evidence adduced and therefore this Court should interfere in the finding of guilt and acquit the accused.
Crl.Appeal Nos. 753, 953, 954 & 955 of 2012
-:8:-
the delay and also the delay in sending the same forthwith to the learned Magistrate. It is argued that the FIS was prepared after collecting all the evidence which is further evident from the fact that there was delay in the FIS reaching the Magistrate, whose office was just 2 kms away from the Police Station. Learned counsel for the appellants placed reliance on the judgment in Ishwar Singh v. State of U.P. (AIR 1976 SC 2423). He also placed reliance on the judgment of the Apex Court reported in Kailash Gour v. State of Assam [(2012) 2 SCC 34].
Crl.Appeal Nos. 753, 953, 954 & 955 of 2012
-:9:-
the alleged crime has not been proved. The appellants have also a case that the recovery of the material objects are not proved.
“1. Incised wound 0.6 x 0.5 cm, bone deep obliquely placed on the right side of forehead upper inner end 6.5 cm outer to midline and 1 cm above eye brow.
2. Incised wound 5 x 0.6 cm, bone deep, obliquely placed on the left side of forehead, the upper inner end in the midline and 8.5 cm above the root of nose.
3. Contusion 1.5 x 0.6 x 0.2 cm, obliquely placed on the right side of face, the lower inner end 2.5 cm outer to midline and 2.5 cm above the lip margin.
4. Abrasion 1.5 x 9.5 cm, horizontal, on the right side of face, the inner end 7 cm outer to midline and 1.5 cm above the outer margin of upper lip.
5. Superficial incised wound 1.5 x 0.3 cm oblique on the right side of face with an abraded contusion 1x0.6 cm and 1x0.4 cm, on the lower and upper margin respectively, the upper inner end 3.5 cm outer to bridge of nose and 1 cm
Crl.Appeal Nos. 753, 953, 954 & 955 of 2012
-:10:-
below the inner angle of eye.
6. Abraded contusion 2.2x 1 x 0.5 cm, overlying the prominence of right cheek and adjoining part of outer angle of eye.
7. Contusion of whole of left temporalis muscle. Anterior cranial fossa showed a fracture in the midline. Brain showed subarachnoid hemorrhage on the tip of frontal lobes and right occipital lobe. Sulci of brain narrowed and gyri flattened.
8. Incised penetrating wound 9.1 x 2.8 cm vertically placed on the right side of chest, the lower rounded end 9 cm outer to midline, 15 cm below collar bone the upper end was sharp with tailing of 1 cm extending upwards. Chest cavity was found penetrated by cutting the lower border of 5th rib, 5th intercostal space and costal cartilages of 6th rib transfixed the right dome of diaphragm 0.8 x 0.5 cm, involving the whole thickness and 2 cm outer to the central attachment and terminated in the front surface of right lobe of liver 0.5 x 0.5 x 0.5 cm, 7 cm above the lower margin. Wound was directed downwards backwards and to the left for a total minimum depth of 10.8 cm.
9. Incised penetrating wound 5.1x 2.1 cm, entering the chest cavity, obliquely placed on the left side of upper part of chest and adjoining neck, the lower inner rounded end 7 cm outer to midline and overlying the lower border of collarbone. Chest cavity was found pierced by cutting the 1st rib and first intercostal space and terminated at
Crl.Appeal Nos. 753, 953, 954 & 955 of 2012
-:11:-
the apex of left lung 3x1.5x1 cm. Left chest cavity contained 650 ml of fluid blood. Left lung partially collapsed. Wound was directed downwards backwards and to the right for a total minimum depth of 6.4 cm.
10. Incised puncture wound 2.5 x 0.2 cm to 0.5 x 4.5 cm, obliquely placed on the left side of chest, its upper inner rounded end 11.5 cm outer to midline and 15 cm below collarbone. Wound track was in the muscle, plane.
11. Incised wound 8x1.5x0.4 cm oblique on the outer aspect of left side of chest, the upper outer end 22 cm outer to midline and 21 cm below the top of shoulder.
12. Incised puncture wound 4.8x2x8.3 cm, vertical on the left side of lower trunk, the upper rounded end 18.5 cm outer to umbilicus and overlying the hip bone. Lower end showed a tailing 2.5x0.5 cm extending downwards. Wound track was in the muscle plane.
13. Incised wound 9.5 x 0.3 cm, superficial, obliquely placed on the right side of lower trunk, its lower inner end 5 cm outer to midline and 11 cm above natal cleft.
14. Incised puncture wound 6.5x1.8x12.5 cm, obliquely placed on the upper outer quardrant of right buttock, the lower inner sharp end 9 cm outer to natal cleft. Upper outer end was rounded. The upper margin showed two skin tags of size 0.5 x 0.5 cm each 1.5 cm apart, the inner one was at a point 3cm inner to the upper outer end. The
Crl.Appeal Nos. 753, 953, 954 & 955 of 2012
-:12:-
lower margin showed four skin tags 0.5x0.5cm, 0.2x0.2cm, 0.2x0.1 cm and 0.2x0.1cm, 1.5cm, 0.6 cm and 0.8cm apart and larger one was in the lower inner end. Wound track was in the muscle plane and was found terminated at the side of vertebral column.
15. Superficial incised wound 4x0.3cm obliquely placed on the left side of abdomen, the lower inner end 16.5cm outer to umbilicus.
16. Incised wound 4.1x1.2x2 cm, oblique, on the outer aspect of tip of right shoulder the upper outer end showed a tailing of 1.7x0.5 cm and the lower inner end showed a tailing of 3.3x0.3cm extending downwards.
17. Superficial incised wound 11x0.3cm on the back of right forearm 11.5 cm below elbow.
18. Multiple small abrasions over an area of 2.5x0.5 cm, on the back of right forearm 5.5cm, below elbow.
19. Multiple small abrasions over an area of 4.5x4.5cm, on the back of right elbow.
20. Incised wound 7.2x1.3x7 cm oblique, on the left side of back of neck, its upper inner end 4.5cm outer to midline and 16cm below occiput, and the lower outer end showed a tailing 1.3x0.5 cm, extending downwards and outwards.
Air passages pale and contained mucoid fluid mixed with blood. Lungs pale. Stomach contained a handful of starchy food particles in a light brown fluid medium having no unusual smell, mucosa was normal. Urinary bladder was empty,
Crl.Appeal Nos. 753, 953, 954 & 955 of 2012
-:13:-
its mucosa was normal. All other internal organs were pale, otherwise normal.”
Anil Kumar during the attack on the fateful day. In the light of the scientific evidence adduced, there cannot be any dispute about
Crl.Appeal Nos. 753, 953, 954 & 955 of 2012
-:14:-
the fact that PW3 had sustained injuries on the very same day when Anil Kumar was attacked.
Crl.Appeal Nos. 753, 953, 954 & 955 of 2012
-:15:-
No.1 giving a cut injury on the head of PW3 with the sword. PW3 turned and ran to a sub lane. When Anil Kumar reached in front of the house of one Komalan, the first accused inflicted another cut injury on his head with a sword. Anil Kumar again ran and when he reached in front of the house of Rajan, he fell down. Five of the accused persons stood on one side of Anil Kumar and four of them on the other side. The 8th accused caught hold on the left leg of the deceased and shouted to the first accused to kill him. First accused again inflicted a cut injury on the forehead with a sword, the second accused stabbed him on his chest, 3rd accused stabbed on his left hip, the 7th accused inflicted an injury with a chopper on the back of the waist of the deceased, the 6th accused inflicted a cut injury on the right side of his waist, the 4th accused stabbed him on the left side of the neck and the 5th accused inflicted an injury with a chopper on his right shoulder. The 7th accused remained by the side of the deceased Anil Kumar and the other accused went towards the workshop in search of PW3. One of them located PW3 and all the accused except the 7th accused rushed towards PW3. On seeing them, PW3 jumped the wall of the workshop and ran away. The accused ran behind him. Witness
Crl.Appeal Nos. 753, 953, 954 & 955 of 2012
-:16:-
further deposed that one Renjith and Sreekumar came and took Anil Kumar to Medical College Hospital in an autorickshaw. After two-three minutes, PW1 saw PW6 and Suresh bringing PW3. He was also taken in an autorickshaw to Medical College Hospital.
Crl.Appeal Nos. 753, 953, 954 & 955 of 2012
-:17:-
before Court, it is for the Court to decide the matter on a case to case basis. It might be a case where the first informant had identified accused Nos. 1 to 6 immediately and he would not have been familiar with the other accused. In the FIS he has stated that accused 1 to 6 along with few others were involved in the crime.
Crl.Appeal Nos. 753, 953, 954 & 955 of 2012
-:18:-
of his house. He then saw the accused turning towards PW3 and threatening to inflict injuries on him. He also identified the accused and the weapons used. No contradiction had been pointed out. He is also an attestor to Ext.P26 inquest report. One of the arguments raised against his evidence is that he was not a person residing in Vattavila and he is a witness who had been planted.
Crl.Appeal Nos. 753, 953, 954 & 955 of 2012
-:19:-
suffered by Anil Kumar in the incident in Ext.P25 statement cannot be taken as a material to discard his evidence.
Crl.Appeal Nos. 753, 953, 954 & 955 of 2012
-:20:-
on the slab situated near Vattavila street on 5.6.2005 at 7.30 p.m. along with PW1 and PW2. He saw an autorickshaw coming and stopping at the opposite side and also saw accused No.4 getting down. Thereafter he saw accused 1 to 6 getting down from the auto with swords and choppers. He also saw accused Nos. 7 to 9. He also heard the accused uttering that Anil Kmar will be killed. Thereafter, Anil Kumar ran away along with PW2. He heard a hue and cry. After some time, he saw Anil Kumar being taken to the Medical College Hospital and after some time, PW3 was also taken to the hospital.
Crl.Appeal Nos. 753, 953, 954 & 955 of 2012
-:21:-
Some women who came to take water from the public tap screamed and hearing the same, all the accused ran away. He went towards PW3. Some people gathered and he along with one Suresh took PW3 to Medical College Hospital.
Crl.Appeal Nos. 753, 953, 954 & 955 of 2012
-:22:-
recovered. Material objects 2 to 4 the weapons used by accused 2 to 4 were recovered based on Exts.P19 to P21 mahazars. The statement given by the accused were marked as Exts.P19(a), P20(a) and P21(a). The weapons were recovered based on the disclosure statement given by the accused in the presence of witnesses. Ext.P6 is the recovery mahazar pertaining to recovery of MO5 and Ext.P6(a) is the confession statement of the fifth accused. PW16 is the witness to the recovery mahazar.
Crl.Appeal Nos. 753, 953, 954 & 955 of 2012
-:23:-
and therefore not believable, the sequence of the events as spoken to by the witnesses and the scientific evidence adduced in the case read with the recovery of the weapons used for the crime proves the prosecution case beyond reasonable doubt. Though there are some contradictions pointed out during examination of witnesses, those are all not so material to discard the prosecution evidence.
Crl.Appeal Nos. 753, 953, 954 & 955 of 2012
-:24:-
p.m on 5/6/2005. It is stated that the FIR had been sent to the Judicial Magistrate of First Class only at 10.30 p.m on 6/6/2005. According to the learned counsel who appeared for accused 1 to 3, an attempt had been made to fabricate and collect all the evidence before registration of FIR and there is no explanation on the side of the investigating officer. It is seen from Ext.P1 that the FIR was registered at 10.00 pm on 5/6/2005 and it was dispatched to the Court on the same day at 10.45 p.m. But it seems that it was received by the learned Magistrate only at 10.20 p.m on 6/6/2005. In Ishwar Singh (supra), the Apex Court had occasion to consider the scope and effect of sending the FIR to the Magistrate within a reasonable time. It was held that the extraordinary delay in sending the FIR is a circumstance which provides a legitimate basis for suspecting that the FIR was recorded much later than the stated date and hour affording sufficient time to the prosecution to introduce improvements and embellishments and set up a distorted version of the occurrence. In Tara Singh v. State of Punjab (AIR 1991 SC 63), the Apex Court held that unless there are indications of fabrication, the court cannot reject the prosecution version as given in the FIR. In
Crl.Appeal Nos. 753, 953, 954 & 955 of 2012
-:25:-
State of Karnataka v. Bhaskar Kushali Kotharkar and
Others (AIR 2004 SC 4333), Apex Court held that the evidence of an eye witness could not be rejected merely because of delay in giving the FI statement to the police.
Crl.Appeal Nos. 753, 953, 954 & 955 of 2012
-:26:-
to record the First Information Report immediately based on the eye witness account of the occurrence. It was further found that, in that case, no effort was made by the investigating officer and there was no explanation for his failure to ascertain from the alleged eyewitness the sequence of events and the names and particulars of those who were responsible for the same and without registering FIR, the investigating officer completed the inquest, prepared a site plan and got the post mortem of the dead conducted and FIR was registered only long thereafter. It was held that either he was an incompetent person or secondly he had no clue as to who were the perpetrators of the crime. In the present case also, the argument is that until the FIR reaches the Magistrate, there is every chance for manipulation and fabrication of the First Information Statement. In Ext.P1 statement, PW1 had given information about the involvement of accused 1 to 6 only. He had in clear terms stated about the weapons carried by each of them. PW33 the investigating officer in his evidence has stated that he received wireless message about the incident and he reached the place of occurrence by about 8 p.m. The situation at the place of occurrence was highly tense. He therefore gave
Crl.Appeal Nos. 753, 953, 954 & 955 of 2012
-:27:-
importance to maintain law and order and to avoid further attack or retaliation, he called for additional police force and arranged police patrol. The matter was also informed to higher officials. Though he tried to find out a witness, none had turned up. He therefore went to the Medical College Hospital where the deceased and the injured were taken. During that time, PW1 reached the police station and had given the FIS. PW33 had gone to the Medical College Hospital. Therefore, factually there is no delay in registering the FIR.
Crl.Appeal Nos. 753, 953, 954 & 955 of 2012
-:28:-
the prosecution to fabricate the evidence, and thereafter it is incorporated in the FIR, there is nothing to doubt the genuineness of the said document.
Crl.Appeal Nos. 753, 953, 954 & 955 of 2012
-:29:-
prejudice had been caused to the accused on account of the delay in the FIR reaching the Magistrate, and, in between, whether the prosecution had fabricated any evidence. Apparently, what is to be considered is whether the evidence adduced by the witnesses are truthful and can be relied upon.
Crl.Appeal Nos. 753, 953, 954 & 955 of 2012
-:30:-
proper. That was a case in which the deposition of witnesses revealed that the Sessions Judge had merely recorded the rank number of the accused in the charge and no effort was seen taken to certify in the deposition that the person referred by the witness was one of the members of the unlawful assembly which perpetrated the crime. It was held that when it does not appear from the evidence that the accused was specifically pointed out by their name or specific feature and an endeavour is made by the Court to individually fix each of the accused as being present in the scene of crime to involve them as members of the unlawful assembly, it would amount to a travesty of justice to hold such accused guilty of the crime especially when no specific overt acts are alleged against them. General allegations against the accused are not enough to convict them.
Crl.Appeal Nos. 753, 953, 954 & 955 of 2012
-:31:-
They were also armed. He gives the names of those persons. When they tried to attack Anilkumar, he and Babu ran away from the scene and all the 9 assailants followed them. PW1 also ran behind them. He saw the first accused Sailan inflicting an injury on the head of Babu. Babu proceeded towards a lane on the right side. Anilkumar ran straight. When he reached the place in front of the house of one Komalan, Sailan again inflicted an injury on his head with his sword. Anilkumar ran further and fell down in front of the house of Rajan. Then he narrated the manner in which Anilkumar was manhandled. He had given the details of overt acts committed by each of them. After taking care of Anilkumar, they went in search of Babu to a workshop. One of them saw Babu and called the others saying that Babu should also be taken care of. Babu climbed up a wall and jumped over it. The assailants followed. He further identified all the accused by stating that “അന കണ ഒൻപത പപര� ഇപ��ൾ പക�ടത�യ�ലണ�. Witness points out all accused in the box and identify them. പത�കള� എന�ക 15 വർഷമ�യ� അറ�യ��”. PW1 himself had given FI statement Ext.P1. In the FI statement, the contradiction is Ext.D1 by which he denied having given a statement that the three persons who
Crl.Appeal Nos. 753, 953, 954 & 955 of 2012
-:32:-
were following the other accused were Sreekumar, Sivakumar and Sureshkumar. According to him, he had not given any such statement to the police u/s 161 Cr.P.C.. Ext.D1(a) is another contradiction. During cross examination, few omissions had been brought out. But the contradictions and omissions are not material to discard his oral testimony regarding the incident. Similarly PW3 has also given a narration of what has happened and the other witnesses which we have already considered have clearly spoken about the incident including PW9. This is a case where a group of persons who had clearly been identified had come with deadly weapons. All the witnesses clearly indicated that they have uttered that their intention is to kill Anilkumar. They shouted and uttered that he will be killed. All of them together inflicted injuries. They also inflicted injuries on PW3. The fact that the deceased Anilkumar suffered injuries at the hands of the accused cannot be disbelieved. May be in their over enthusiasm the witnesses would have narrated each and every minute details. But the fact remains that all of them who formed an unlawful assembly had the intention to do away with Anilkumar and PW3. All of them had weapons with them and they
Crl.Appeal Nos. 753, 953, 954 & 955 of 2012
-:33:-
cornered the deceased and he was stabbed, chopped and made cut wounds which resulted in his death. When the fact of that act is proved, even assuming that there is some embellishment in each of the individual acts committed by any of the accused, all of them forming members of the unlawful assembly had the common object of committing murder which cannot be lightly considered. Therefore, we cannot accept the argument of the learned counsel for the appellants that the delay in sending the FIR to the Magistrate had made a situation enabling the prosecution to fabricate the case. When the fact of injury and death is proved, the only question is who had committed the same. All the witnesses which we have discussed above have categorically stated about the presence of accused with murder weapons and their leaving of the place after the incident. Under such circumstances their complicity in the crime cannot be doubted.
Crl.Appeal Nos. 753, 953, 954 & 955 of 2012
-:34:-
injuries, the prosecution is bound to explain the injuries. However, it becomes fatal to the prosecution case only if the court is satisfied that the injury on the person of the accused was of a serious nature and the injuries must have been caused at the time of occurrence in question. From the materials placed on record, there is no evidence to arrive at a conclusion that the accused suffered injuries in the same incident. In the statement u/s 313 filed by the first accused, he had stated that the injuries were sustained by them in an incident which took place at 5.30 p.m. and therefore, it is rather clear that it is not with reference to the same incident. Further, the inspection memo Exts.P24, P34 and P35 would show that the injuries are of a minor nature. Therefore, we do not think that non-explanation of injuries on the accused would be fatal to the prosecution case.
Crl.Appeal Nos. 753, 953, 954 & 955 of 2012
-:35:-
it is a fabricated case. As already stated, when the evidence is clear and categoric, especially regarding the presence of the accused in the scene of crime with deadly weapons and the witnesses have clearly spoken about the intention of the accused and one of the witness is the injured himself. Hence, there is no reason to doubt the credibility of their evidence. It is argued that PW1, PW2 and PW3 had different versions regarding the genesis of the incident. On a perusal of the evidence, we do not think that there is any such difference in the manner in which the crime has been committed and how the prosecution has proved it.
Crl.Appeal Nos. 753, 953, 954 & 955 of 2012
-:36:-
we do not think that the court below had committed any error in convicting the accused. No grounds had been made out for interfere.
Appeals are, therefore, dismissed.
Sd/-
A.M. SHAFFIQUE, JUDGE
Sd/-
P.SOMARAJAN, JUDGE
Rp
//True Copy//
PS to Judge
3 issues framed by the court
Did the delay in the FIR reaching the Magistrate undermine the prosecution case through possible fabrication?
Did alleged tutoring, identification defects and discrepancies undermine the eyewitness evidence establishing unlawful assembly and common object?
Did non-explanation of the accused's injuries, alleged failure to prove motive or defects in weapon recovery warrant acquittal?
Colour shows how this judgement treated each authority
Ishwar Singh v. State of U.P.Distinguished¶190
(AIR 1976 SC 2423) · Who else cites this
Kailash Gour v. State of AssamDistinguished¶196
[(2012) 2 SCC 34] · Who else cites this
Tara Singh v. State of PunjabRelied on¶190
(AIR 1991 SC 63) · Who else cites this
State of Karnataka v. Bhaskar Kushali Kotharkar and OthersRelied on¶194
(AIR 2004 SC 4333) · Who else cites this
Golden Satheesan and others v. State of KeralaDistinguished¶212
Crl.Appeal No.362/2007
Sevi and another v. State of Tamil NaduReferred¶212
(1981 Crl.L.J. 736)
State of Punjab v. Mohri Ram and OthersReferred¶212
(1994 Supp (1) SCC 632) · Who else cites this
Vayalali Girishan and others v. State of KeralaDistinguished¶212
Crl.Appeal No. 859/2011
3 provisions across 1 enactments
SUNIL KUMAR @ SAILAN
SAJIKUMAR @ SINDHU
PRADEEP
STATE OF KERALA
SREEKUMAR @ KUTTAN
PRASANTH
A.M.SHAFFIQUE
P.SOMARAJAN
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
