Partly allowed

Santhosh v. State of Kerala

Kerala HC3 Jun 2020CRL.A/1097/2004

Case brief

AI extract

What is this about?

The High Court, Ernakulam, allowed the criminal appeal in part. Some accused were acquitted due to benefit of doubt, while others were convicted and sentenced for offences under sections 143, 147, 148, 323, 324, 307, and 427 IPC involving a mob attack with weapons.

What did the court decide?

Accused Nos. 9, 10, 11 acquitted; others convicted and sentenced to imprisonment/fine/discontinued bonds.

Santhosh Vs State of Kerala — Murder and Culpable Homicide | Kerala HC (2020)

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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 SUNIL THOMAS

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WEDNESDAY, THE 3RD DAY OF JUNE 2020 / 13TH JYAISHTA, 1942

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CRL.A.No.1097 OF 2004(B)

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AGAINST THE ORDER/JUDGMENT IN SC 110/2002 DATED 31-05-2004 OF ADDITIONAL SESSIONS COURT (ADHOC)-II, ERNAKULAM

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AGAINST THE ORDER/JUDGMENT IN CP 26/2001 OF JUDICIAL MAGISTRATE OF FIRST CLASS -I,KOCHI

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APPELLANT/ACCUSED NO.1 TO 12:

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1 SANTHOSH

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S/O.SANKUNNI, THARESSERIVEEDU, KATTUNKAL DESOM, KUMBALANGHI.

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2 VINOD

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S/O REVI @ RAVEENDRAN, THARASSERIVEEDU, KATTUNKAL DESOM, KUMBALANGHI.

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3 JOSSY

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S/O.GEORGE, VAVAKKATTUVEEDU, NEAR ILLIKKAL JUNCTION, KUMBALANGHI.

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4 SUMESH S/O.SURESH BABU, NADUVILA VEEDU, NEAR ILLIKKAL JUNCTION, KUMBALANGHI.

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5 SHAIJU

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S/O.KUNJAPPAN VALIYAPARAMBILVEEDU, NEAR PANCHAYATH OFFICE, KUMBALANGHI.

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6 SHAJAN S/O.KUNJAPPAN VALIYAPARAMBIL VEEDU, NEAR PANCHAYATH OFFICE, KUMBALANGHI.

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7 SATHEESAN S/O.KUNJAPPAN ILAMPLAVILVEEDU, NEAR ILLIKKAL JUNCTION, KUMBALANGHI.

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8 VIJESH

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S/O.KUNJAPPAN, ILLAMPLAVIL VEEDU, NEAR ILLIKKAL JUNCTION, KUMBALANGHI.

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Crl.Appeal No.1097/2004

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9 JIJAN S/O.MOHANAN, IRAVIKKATTUVEEDU, NEAR ILLIKKAL JUNCTION, KUMBALANGHI.

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10 ANIL S/O.PADMANABHAN, VALIYAPARAMBILVEEDU, NEAR PANCHAYATH OFFICE, KUMBALANGHI.

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11 VIPU, S/O.VELAYUDHAN, CHAMUNDIVEEDU, NEAR ILLIKKAL JUNCTION, KUMBALANGHI.

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12 SREEKANTH, S/O.SOMAN ARAKKAPPARAMBU VEEDU, NEAR ILLICKAL JUNCTION, KUMBALANGHI.

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BY ADVS. SRI.P.VIJAYA BHANU SRI.P.M.RAFIQ

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RESPONDENT/COMPLAINANT:

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

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 26-022020, THE COURT ON 3-06-2020 DELIVERED THE FOLLOWING:

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Crl.Appeal No.1097/2004

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JUDGMENT

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Dated this the 3^rd day June of 2020

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The appellants challenge their conviction and sentence imposed by the Additional Sessions Court(Adhoc-II), Ernakulam in SC No.110/2002 for offences punishable under sections 143,147,148,323,324,307 and 427 IPC

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The prosecution allegation was that, due to the previous enmity which the accused maintained against PW3 to PW7, the accused, on 6/4/2001 at 11 pm formed into an unlawful assembly, armed with dangerous weapons and in furtherance of their common object to inflict bodily injuries, attacked some of the victims. While the injured were being removed to the hospital in a car, they wrongfully intercepted the car, damaged it, pulled out the travellers and inflicted further bodily injuries on several persons. The injured were rushed to the hospital. FIS was laid by PW1 on the night of 6/4/2001 at the hospital. Cr.39/2001 of Kannamally police station was registered by PW25. Investigation was conducted by

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PW28 and final report was laid. Accused faced the trial before the court below. On the side of the prosecution, PW1 to PW28 were examined and Exts.P1 to P43 were marked. MO1 to MO8 were identified. There was no evidence on the side of the accused. The court below on the basis of the evidence found all the accused guilty for offenses mentioned above. The conviction and sentence is under challenge in this appeal.

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Heard the learned counsel for the appellants and the learned Public Prosecutor.

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Ext.P1 FIS was laid by PW1 on 7/4/2001 at 00.45 hours at the Hospital. According to the first informant, on 6/4/2004 at 10 p.m. he met Rajesh, Shibu, Ani and Saju near a temple. They had sustained injuries in a scuffle. He called a car. They along with one Purushothaman, got into the car and proceeded to the Hospital. On the way, the car was intercepted by the first accused and three other persons. Second accused shouted to kill and then hit with a sword stick, which hit the car. He pulled out Rajesh, Purushottaman and the car driver. When PW1 got out of the car, he was hit by 2^nd accused with a sword. It injured the right shoulder. Another accused hit on the head with an iron rod. He started bleeding. He rushed to a nearby house and took asylum there. There were about 25 assailants . Some others also had sustained injuries. Somebody informed the police, who reached the spot and took him to the hospital.

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PW1 in his oral testimony deposed in accordance with the FIS.

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According to him, on the relevant day he met Ani, Shaju, Baiju and Frelesh (Rajesh) who had already sustained injuries. As directed by his political party leader, he arranged the vehicle of one Kunjumon. Vehicle was driven by Suresh alias Sunil(PW8). While they were proceeding to the hospital, A1, A3, A5, A6, A7, A8, A11 and A12, along with few others intercepted the vehicle. They were armed with iron rods. A1 screamed to kill then. Thereupon 2^nd accused hit on the car with a sword stick. He pulled out Purushothaman(PW2) from the car. Thereupon A5 injured the left shoulder. When he tried to escape, A3 hit on his head with an iron rod. He took asylum in the house of one Francis. He was later rescued and taken to hospital. The iron rod and sword stick used to injure him were identified as MO1 and MO2 respectively.

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The above Purushothaman was examined as PW2. According to him, he got information on 6/4/2001 night that some of his neighbours were attacked by few of the accused. When he reached the spot, he found the injured. He was directed by the political leader to accompany the injured to the hospital. When they were proceeding to the hospital, A1, A3, A4, A5, A6 intercepted the vehicle. A5 came near the door and dragged him out. A2 dragged PW1 and hit on his head. PW2 was also hit on head, who fell on the ground. Later he was taken to the hospital. They were armed with swords and iron rods. He identified A5 and the weapon used as MO2. The blood stained dresses of PW2 were identified as MO5 series.

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PW3 was projected by the prosecution as a witness who was

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present at the temple premises at the time, when the earlier incident took place. His version was that when they were returning, from the temple compound, A5 and A6 picked up a quarrel with PW3, Baiju. Frelesh and Saju . Both accused assaulted the above four persons referring to the earlier incident. The accused escaped, when locals reached the spot. The injured were taken in a car by PW1 and PW2. On the way, they were blocked by A1, A10 and A12 along with others shouting to kill them. They pulled out PW2 and the drivers. A5 opened the back door and hacked on the back side. When people rushed to the spot, all the above accused escaped. According to the witnesses, it was a retaliation to an earlier quarrel that had taken place in the temple compound, between A5 and A6 and some of the injured. He deposed that he was injured by A5 using MO2 sword. The blood stained dress worn by him was identified as MO6. He stated that he was treated in the hospital for five days.

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PW4 was projected by the prosecution as an injured witness. His version was that on 6/4/2001 at about 8.30 p.m.,while he along with Frelesh and Saiju were returning from temple, A2, A5, A6 and A8 attacked them. Thereafter they ran away. PW3 had already sustained an injury in an earlier incident. When all four were being taken to the hospital by PW1 and PW2, they were intercepted by about 20-25 persons, led by A2. He screamed to kill them and smashed the glass panes of the car. They

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opened the doors and pulled out the travelers. A8 hit with sword stick on the right side of shoulder below the right ear. A5 hacked on the chest with a sword stick. A2 hit with an iron rod. All accused were armed with sword sticks and iron rods. He was taken to the hospital and was treated as an inpatient.

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PW5 though examined by the prosecution as an eye witness, did not support the prosecution and was declared as hostile. PW6 deposed that on 6/4/2001, while he was returning from temple along with PW2, PW3 and one Frelesh , they were attacked by A5, A6 and A8. They were injured and were taken to hospital by PW1 and Pw2. On the way, they were blocked by the accused. They were armed with sword stick and iron rods. PW1 was hacked by A2 using a sword stick on the left shoulder. A5 injured PW2 on head with a sword. PW6 was hit on neck by A5. Vijesh (A8) hit on shoulder. A3 hit on the stomach with an iron rod. A5 chased PW3 and hacked with sword stick. When the injured cried aloud, assailants ran away. He was taken to hospital and treated there.

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According to PW7, on 6/4/2001 at 8.30 p.m., while he, along with PW3, PW4 and PW6 were returning from temple, they were assaulted by A5, A6, A8 and A11. All four were beaten up. When they cried, the assailants escaped. The injured were taken to hospital by PW2 and others. While they were proceeding in a car, a group of about 25 persons blocked the car. A3 and A6 broke the front glass of the car. A2 pulled out

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the driver and shouted to kill him. He hacked PW1 on his shoulder with a sword. A3 hit PW1 on his shoulder. A5 hit PW2, PW3 and PW6 with sword. He also attempted to hack the head of PW7, but it hit his palm and thumb which was cut off. The injured were rushed to the hospital. According to witness, the attack was a sequel to an earlier dispute that had arose during an earlier temple festival.

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11, PW8 was the driver of the car which had carried the injured in the above incident to the hospital. According to him ,on the relevant day he had gone to the temple to watch the festival. At about 9.45 p.m.he saw A6 was running . When he proceeded to enquire, he found A6 hitting PW4 and PW6. He was requested by one Suresh Banu to take the injured to hospital. While they were proceeding, a group of 25 persons blocked the car. A2 smashed the front glass. A2 pulled out PW8 from the car. He identified the second accused as the person who had committed the criminal act. Though the Car was damaged, he was not injured.

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PW13 and PW23 were projected by the prosecution as independent eye witnesses to the incident. According to PW13, he had seen the clash that occurred at 9 p.m. on 6/4/2001 outside the temple. He saw PWs 4 to 7 among them. He had seen them with injuries. He also saw accused 4,5 and 6 at that place. The injured were taken to the hospital by PW1 and PW2. While returning, he was told that the injured were again attacked. He saw the damaged car on the road side. PW 23

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deposed that on the relevant day, while he was proceeding along the road, he saw A1 to A4 and others blocking a car , pulling out PW1 to PW3 and PW7 from the car and hacking and attcking them with swords and iron rods. When locals rushed to the spot, they escaped. He accompanied PW2 to the hospital.

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PW11 was examined to prove that he along with another person had taken PW1, who was injured on the relevant day to the hospital. He deposed that PW1 had sustained injury on the head and shoulder and was taken in a police jeep to the hospital. He was not a witness to the attack. PW14 was the witness to the seizure of blood stained dresses of PW1, PW4 and PW4 Mahazar. The dresses were identified as MO4 and MO8 series. PW15 was witness to seizure of dresses of PW2 by Ext.P6 mahazar. PW16 was a witness to seizure of dresses of PW3 and PW4, by Exts.P7 mahazar. PW17 was a witness to recovery of iron rods used by A3, A5 and A6, by Exts.P9, P10 and P11 mahazars. PW 18 was the witness to recovery of weapons from A4, A6 and A9 by Exts.P12, and P13 mahazars. PW20 was a head constable of city police control room. His version was that on 6/4/2001 at 10.15 p.m., the flying squad got a message about clash at the relevant place. When they reached the spot, PW1, who had sustained injury was brought. He was taken to general hospital . After giving first aid, he was taken to another hospital.

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Oral evidence of the eye witnesses were sought to be corroborated by the prosecution through medical evidence. PW21 was the casualty medical officer of a hospital. He stated that on 6/4/200 he had examined PW..7and issued Ext.P16 injury certificate. It indicated an incised wound 3x1 cm on the right thumb. Extension tendon was cut. Alleged cause was recorded as, assault with sword at 8.30 p.m.on 6/4/2001 at Kumbalanghi temple, by an unknown person. According to the doctor, injury could have occurred as alleged. PW22 was an orthopedic surgeon at Gautham hospital. He deposed that he had examined PW2 on 6/4/2001 at 10.30 p.m. and issued Ext.P17. He had seen a transverse incised wound of 10cm x 5 cm on the right side of skull. Another small injury was seen on the middle of back. Alleged cause of injury was due to hacking by a member of an assailant group. PW24 was the civil surgeon at Govt. Hospital, Karuvelipady. According to her on 6/4/2001, she had examined PW3 and issued Ext.P18 wound certificate. He had sustained two injuries on the scapular area. The cause was noted as stabbing by few identifiable persons on 6/4/2001 at 9.45 p.m. She had also issued Ext.P19 wound certificate in relation to one Biju. He had sustained two injuries on the neck and abdomen due to hit by two persons using iron rod. Ext.P20 wound certificate relates to PW5 and Ext.P 21 relates to PW4. They had also sustained injuries in similar circumstances. Ext.P21 referred to injury inflicted by A5 on 6/4/2001 at 9. 45 p.m.. PW26 was the Causality

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Medical officer of Medical Trust Hospital. He deposed that he had examined PW1 on 6/4/2001 at 11.45 p.m.and issued Ext.P22 wound certificate. He had two incised wounds on the parietal region and right arm. Cause was reported as assault by three persons using sword, on that day at 10 30 p.m. PW27 was the casualty medical officer of Medical Trust Hospital Ernakulam. On 7/4/2001, he had examined PW2 and issued Ext.P23 wound certificate. He had sustained injury due to an attack by few persons with sword on 6/4/2001 at 9 p.m.

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Challenging the prosecution and the findings arrived at by the court below, the learned counsel for the accused contended that the allegations were absolutely false and cooked up. It was contended that accused have been falsely implicated. According to the defence, one of the injured had attempted to disrupt the festival by attempting to climb on elephant brought for festival procession. There was a clash between two groups in which, they got injured. This defence was suggested to all the crucial witnesses examined the prosecution, which was stoutly denied by all of them. Apart from such a bare suggestion,there was no other material to support such a defence.

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Prosecution heavily relied on the oral evidence of PWs 1 to 4, PW6, PW7, PW8, PW9, PW13 and PW23 to establish the crime. Except PWs 9,13 and 23 all other witnesses are injured persons. According to the prosecution, the incident has two parts. The first incident took place near

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the temple ,when PW3, 4,6 and 7 were fisted by few of the accused. When they were being taken to a hospital by Pw1 ad PW2 in a car driven by PW9, the original assailants along with several others stopped the car and attacked those witnesses, with swords and iron rods. PWs 1 to 8 sustained injuries. According to prosecution, A2 and A5 were armed with sword stick and others were armed with iron rods.

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All the above witnesses have substantially tendered evidence in accordance with the prosecution allegation. They have given evidence referring to the specific individual overtacts of some of the accused. Substantially their version are uniform and there is no serious contradiction among the witnesses on the material aspects. No material contradiction or omission was brought out in the evidence of the witnesses. One of the suggestion put forward at the time of cross examination of witnesses was that since the second part of the incident took place near the main road, local witnesses must have witnessed the incident. In fact, PW13 and PW23 were local witnesses and not related to the injured. Further PW9 was also an independent person, who did not belong to the group of injured and being the driver, was a natural witness to the incident.

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The learned counsel for the accused attacked the version of all the above witnesses including that of PW9, PW13 and PW23 on the ground that they belonged to the same political party. Some of the injured were accused in a criminal case and some of the accused herein, were

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prosecution witnesses in that case. Further evidence disclosed that immediately after the first incident, local party leaders intervened and on their instructions, PW2 arranged car. PW2 was also directed to take the injured to the hospital. It was hence contended that political intervention was visible and the possibility of political rivalary being the cause for setting up a false case could not be ruled out. It is true that all the crucial eye witnesses belong to same political party. Some of them had been local political leaders also. However, all the witnesses have given evidence in a substantially uniform manner. Medical records show that most of the eye witnesses have sustained substantial injuries. Their oral evidence substantially tallies with the respective wound certificate or medical records. In some of the wound certificates, cause of injury were seen recorded. Even the details disclosed in the FIR are in consonance with the prosecution case. Hence, in the light of the consistent version, which is corroborated by medical and other supporting materials, the plea that the evidence of eye wittiness are politically coloured and hence to be discarded is only to be rejected.

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An evaluation of the entire facts show that the evidence let in by prosecution is consistent and is only to be accepted. Evidence substantially support the allegation that accused attacked the injured at two different places. Evidence show that A2, A5, A6 and A8 had hit four among the injured at the temple premises. They were not armed at that

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time. However, when the second limb of the incident happened, they were armed with iron rods and sword sticks and they along with others attacked. Evidence shows that PW1, PW2, PW3, PW4, PW6 and PW7 have referred to the use of sword stick by A2 and inflicting injuries on several persons. This is corroborated by oral evidence. All the above witnesses have consistently referred to A5 as another person who has used sword stick and inflicted injuries on several persons. Their versions are corroborated by oral evidence also. PW 4 in his evidence has stated that A8 had punched him with a sword stick on his neck and A5 had hacked him with a sword stick. His wound certificate marked as Ext.P21 shows that he had sustained a lacerated wound of 1x1x1 cm on theright side of his neck . Wound certificate only refers to use of sword by A5 only. Further, PW24, the civil surgeon who had examined the injured and issued the certificate had admitted that, if one is punched with a sword stick, it will cause a deep injury, whereas injury seen here was not a deep injury. Further no other witness has referred to use of sword by A8. Hence, evidence consistently

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show that only A2 and A5 alone have used sword stick and inflicted serious injuries on vital parts of the victims.

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21.PW1 and PW7 have specifically referred to the role of A3 . According to them, he blocked the car and used an iron rod to hit on the head of PW1. Corresponding injuries are seen. Further A4 was armed with an iron rod and hit the car. Witnesses have referred to A1, A11 and A12 as

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persons who were present among the assailants.

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Evidence show that all the accused blocked the car to prevent the injured from being taken to the hospital. It also shows that one of the assailants has screamed to kill them. It was thereafter that they attacked the group. Some witnesses have stated that, had they not intervened, the injured would have been killed. The use of dangerous weapon, the nature of injuries, the vital parts where injuries were inflicted, clearly show that they had attempted to commit murder. All the accused were acting in combination in furtherance of the common object. Hence all the accused can be roped in with the aid of section 149 IPC and liable to be convicted.

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Having considered the above, I feel that since limited role are attributed to few of the accused, a lenient view is liable to be taken in their favour. Accused Nos. 7 and 12 have died, The appeals of them stand abated. The evidence of witnesses show that though the presence of accused Nos. 9,10,11 are referred, no specific overtact is attributed to them. Further the individual role of those accused are not specifically corroborated by any other witness. Hence, I am inclined to grant them benefit of doubt and hence they are liable to be acquitted. Allegation against A1 (Santhosh) is that he intercepted the car and shouted to kill them. Similarly the allegation against A8(Vijesh) is that he had hit the injured at the temple premises and was in the group which intercepted the car. However, they have not used any weapon nor inflicted any serious

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bodily injuries. There is nothing to show that they caused injuries with the intention to commit murder. Hence, section 307 IPC will not lie against them. Hence, I am inclined to take a lenient view in their case considering the fact that they have no criminal antecedents and considering the fact that they have been facing the trial since 2001. I am inclined to avoid jail sentence and to impose sentence of fine for offence found again them. However, A2(Vinod) A3(Jossy) A4(Sumesh) A5 (Shaiju) and A6(Shajan) have used sword sticks and iron rods and inflicted injuries. Among them, A2 and A5 used sword stick and inflicted serious injuries on the injured. The role played by them is serious. Hence, they are liable for simple imprisonment for two months for offences under sections 143, 147,148,323 and 427 IPC and to undergo SI for four months from offences punishable under section 324 IPC and to undergo RI for one year for offences under section 307 IPC. Regarding A3, A4 and A6 they are liable for SI for two months for offences under sections 143, 147,148,323 and 427 IPC., SI for three months for offences punishable under section 324 IPC and four months for offence punishable under section 307 IPC.

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In the result, the appeal stands allowed in part as follows:

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I). Appeal to the extent of A7(Satheesan) and A12(Sreekanth) stand abated.

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2). Accused Nos.9(Jijan),10(Anil) and 11(Vipu) stands acquitted. Their bail bonds are discharged.

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3). Accused Nos.1(Santhosh) and Accused No.8(Vijesh) are convicted and sentenced to pay a fine of Rs.5,000/- each for offenes under sections 143, 147,148,323 and 427 IPC and Rs.5,000/- each for offence punishable under section 324 IPC. In default of deposit of the above fines, they shall undergo SI for one month each. Their bail bonds are cancelled.

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4). Accused Nos. A3(Joshy), A4(Sumesh) and A6(Shajan) are convicted and sentenced to undergo SI for two months for offences punishable under sections 143,147,148,323 and 427 IPC and SI for three months for offences punishable under section 324 IPC and RI for four months for offence under section 307 IPC and fine of Rs.3000/-(Rupees three thousand only) in default of it SI for one month. Their bail bonds stand cancelled.

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5). Accused Nos.2(Vinod) and A5(Shaiju) stand convicted for S.I for two months for offenes punishable under sections 143,147,148,323 and section 47 IPC and SI for three months for offences under section 329 IPC

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and RI for one year and fine of Rs.3000/-(Rupees three thousand only) in default of it SI for one month for offence under section 307 IPC. Their bail bond stands cancelled.

SUNIL THOMAS

dpk

JUDGE

Crl.Appeal No.1097/2004 18

Santhosh v. State of Kerala

Case brief

What is this about?

What did the court decide?

Santhosh v. State of Kerala

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

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