Partly allowed

Rajagopal @ Kembaban Binu v. State of Kerala

Kerala HC10 Nov 2020CRL.A/87/2017

Case brief

AI extract

What is this about?

A fatal armed house attack raised questions about an injured eyewitness's testimony and identification of assailants. The court upheld convictions of four accused, including murder with unlawful-assembly liability, but modified their sentences. Three others were acquitted on benefit of doubt and ordered released unless required in another case.

What did the court decide?

Accused Nos.5 to 7 acquitted and ordered released unless required elsewhere; sentences of accused Nos.1 to 4 modified, with concurrent substantive terms and set-off.

Rajagopal @ Kembaban Binu Vs State of Kerala — Murder and Culpable Homicide | Kerala HC (2020)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT

¶3

THE HONOURABLE MR. JUSTICE A.HARIPRASAD

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¶5

THE HONOURABLE MRS. JUSTICE M.R.ANITHA

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TUESDAY, THE 10TH DAY OF NOVEMBER 2020 / 19TH KARTHIKA, 1942

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CRL.A.No.87 OF 2017(D)

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CP 62/2010 OF JUDICIAL MAGISTRATE OF FIRST CLASS -I, ALAPPUZHA

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SC 1192/2010 DATED 05-12-2016 OF ADDITIONAL SESSIONS COURT - II, ALAPPUZHA

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CRIME NO.412/2007 OF Mararikulam Police Station , Alappuzha

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APPELLANTS/ACCUED 1 TO 5 AND 7

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1 RAJAGOPAL @ KEMBABAN BINU S/O. CHANDRASEKHARAN NAIR @ CHANTHAPPA KURUP, KALATHIL PARAMBIL VEEDU, MARARIKULAM, SOUTH PANCHAYATH, WARD NO.3.

¶13

2 JOSEPH @ BONICHAN S/O. ANDREWS, KURISINGAL VEEDU,MARARIKULAM, SOUTH PANCHAYATH, WARD NO.2.

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3 JACKSON @ SUBHASH S/O. THOMAS, THAYYIL VEEDU,MARARIKULAM SOUTH PANCHAYATH, WARD NO.2.

¶15

4 SELVARAJ @ SELVAN S/O. KUMARAN, PUTHUVAL VEEDU, ITC COLONY MANNANCHERRY PANCHAYATH, WARD NO.21.

¶16

5 SHIBU @ BOOMER SHIBU S/O. FRANCIS, PUTHENPURACKAL VEEDU, MARARIKULAM SOUTH PANCHAYATH, WARD NO.21.

¶17

6 SAJI S/O. CHERIYAN, PUNNACKAL VEEDU,MARARIKULAM SOUTH PANCHAYATH, WARD NO.5.

¶18

BY ADVS. SRI.T.A.SHAJI (SR.) SRI.ATHUL SHAJI SMT.NAMITHA JYOTHISH

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Crl. A.87 & 125 of 2017 2

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RESPONDENT/COMPLAINANT

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STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.(REPRESENTING THE SUB INSPECTOR OF POLICE, MARARIKULAM ALAPPUZHA DISTRICT).

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Sr.PP SRI.S.U.NAZAR

¶23

THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 23-092020, ALONG WITH CRL.A.125/2017, THE COURT ON 10.11.2020 DELIVERED THE FOLLOWING:

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Crl. A.87 & 125 of 2017 3

¶25

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶26

PRESENT

¶27

THE HONOURABLE MR. JUSTICE A.HARIPRASAD

¶28

¶29

THE HONOURABLE MRS. JUSTICE M.R.ANITHA

¶30

TUESDAY, THE 10TH DAY OF NOVEMBER 2020 / 1ST ASWINA, 1942

¶31

CRL.A.No.125 OF 2017

¶32

CP 62/2010 OF JUDICIAL MAGISTRATE OF FIRST CLASS -I, ALAPPUZHA

¶33

SC 1192/2010 OF ADDITIONAL SESSIONS COURT - II, ALAPPUZHA CRIME NO.412/2007 OF Mararikulam Police Station , Alappuzha

¶34

APPELLANT/ACCUSED NO.6

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SUDHEER @ THADI SUDHEER S/O.KASSIM, KANNANTHARA VEEDU, MANNANCHERRY PANCHAYATH,WARD NO.21, ALAPPUZHA DISTRICT

¶36

BY ADVS. SRI.SALIM V.S. SRI.H.NUJUMUDEEN

¶37

RESPONDENT/COMPLAINANT

¶38

STATE OF KERALA

¶39

REPRESENTED BY THE SUB INSPECTOR OF POLICE, MARARIKULAM POLICE STATION, THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN682031

¶40

Sr. PP SRI.S.U.NAZAR

¶41

THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 23-092020, ALONG WITH CRL.A.87/2017(D), THE COURT ON 10.11.2020 DELIVERED THE FOLLOWING:

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Crl. A.87 & 125 of 2017 4

¶43

C.R.

¶44

JUDGMENT

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Dated : 10^th November, 2020

¶46

M.R.Anitha, J.

¶47

Crl.Appeal 87/2017 has been filed by the appellants/accused Nos.1 to 5 and 7 and Crl. Appeal 125/2017 has been filed by the appellant/6^th accused, against the conviction and sentence passed in S.C.No.119/2010 on the files of Additional Sessions Court-II, Alappuzha.

¶48

Prosecution case can be summarized as follows :

¶49

In connection with a dispute in Abkari business between the deceased John Bosco @ Sunny (hereafter referred as deceased) and one Sreekumar, on 20.1.2005, they amputated the right hand of CW12, Lalachan. Thereafter Sunny and Kumar absconded. Fearing the deceased and Kumar accused Nos.1 to 3 left the place. While so,as pointed out by the sixth accused, the deceased and Sreekumar were booked by the police in connection with unauthorised sale of spirit. Enraged by that, the deceased Sunny and Sreekumar attacked the 6^th accused. Thereafter Sreekumar was got confined under KAPPA and in his absence accused Nos.1 to 3 returned to the place. Out of

¶50

Crl. A.87 & 125 of 2017 5

¶51

enmity towards the deceased on 18.11.2007 at 3.45 pm accused Nos.1 to 7 formed themselves into an unlawful assembly, armed themselves with lethal weapons, rioted and in prosecution of the common object of the assembly trespassed into his house and struck him with deadly weapons and inflicted fatal injuries.

¶52

Immediately after the incident, deceased was taken to Medical College hospital, Alappuzha in the autorickshaw of PW6 and from there he was referred to Medical College hospital, Kottayam. He died on the same day at about 9.40 p.m. while undergoing treatment.

¶53

PW15 the Lecturer in Forensic Medicine and Assistant Surgeon, Medical College hospital, conducted post-mortem on the body of the deceased. While undergoing treatment at Medical College hospital, PW7 the brother of the deceased Sunny who also sustained injury on his finger, gave Ext.P1 FI statement to PW17, the Sub Inspector of police, Mararikulam during the relevant time. He prepared body note of PW1. PW17, as per the direction of the Circle Inspector, Mararikulam on 19.11.2007 at 1.30 pm, prepared the scene mahazar which is marked as Ext.P10 and he seized MO8 to 12 by describing in the mahazar. Based on

¶54

Crl. A.87 & 125 of 2017 6

¶55

the FIS he registered Ext.P9 FIR under Sections 143, 144, 147, 148, 149 450, 427, 342, 506(2) and 307 IPC. Thereafter PW18 the Circle Inspector of police, Mararikulam conducted investigation of this case, prepared Ext.P12 inquest report and questioned witnesses. He filed Ext.P13 report adding Sections 449, 302, 324 IPC and deleting Sec.450 and 307 IPC. He arrested, accused Nos.2 and 3 on 1.12.2007 and first accused on 6.12.2007 and 4^th accused on 14.12.2007 and accused Nos.5 to 7 on 3.2.2007. He sent the material objects to FSL after preparing the forwarding note, Ext.P28. Ext.P29 is the FSL report. Thereafter he completed the investigation and filed the charge.

¶56

On the side of the prosecution, PW1 to 18 were examined and Exts.P1 to P31 were marked. MO1 to MO16 were identified and marked. DW1 examined on the side of the accused. Thereafter on hearing both sides, the court below found all the appellants guilty under Sections 143, 144, 147, 324, 427, 449, 302 r/w 149 IPC. They were sentenced to undergo rigorous imprisonment for six months each for the offence under Sections 143, 144, 147, 324, 427 r/w 149 IPC, rigorous imprisonment for life and to pay fine of Rs.25,000/each in default to undergo rigorous imprisonment for six months each for the offence under Sections 449 and 302 r/w

¶57

Crl. A.87 & 125 of 2017 7

¶58

149 IPC. Assailing the conviction and sentence, appellants came up before this court.

¶59

Notice was issued to the respondent. Respondent appeared through the learned public prosecutor. Lower court records were called for and perused. Heard Sri.T.A.Shaji, the learned counsel for the accused and Sri.S.U.Nazar, the learned senior public prosecutor. Adv.V.S.Salim counsel for the appellant/6^th accused in Crl.A.125/2017 endorsed the arguments of Adv.T.A.Shaji.

¶60

The learned counsel for the accused, Sri.T.A.Shaji assailed the conviction and sentence passed against the appellants on various grounds. He would contend about the inordinate delay in reaching the FIS before the court. Pw17 the Sub Inspector though claimed to have went to the spot immediately after the incident,he did not register the FIR forthwith. He would also contend that all the witnesses except PW7 turned hostile to the prosecution and it has come out in evidence that deceased had lot of enemies and it has not been proved that the alleged incident took place in the house of PW7. The evidence of PW7, the sole eye witness is not fully reliable and hence without independent corroboration ,it can not be accepted. He would also contend

¶61

Crl. A.87 & 125 of 2017 8

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that no sanctity can be given to the recovery of weapons since all the weapons were recovered from open places. FSL report also would not prove presence of human blood or its group in any of the articles send for analysis. He would also contend that no treatment records with respect to the deceased either from Medical college hospital, Alappuzha or Medical college hospital, Kottayam where he subsequently underwent treatment, have been collected by the prosecution and that has caused prejudice to the accused. He would further contend that Ext.P1 is not the FI statement of PW7 recorded by PW17. It is also his contention that no wound certificate of Pw7 has been produced to prove that he had sustained any injury as alleged by the prosecution.

¶63

The learned public prosecutor on the other hand would contend that apart from the testimony of PW7, the evidence of PW1 to 3 also can be read in corroboration with that of PW7 though they turned hostile to the prosecution. It is also his contention that some inconsistency in the evidence of PW7 while giving the FIS and giving evidence before the court by itself is not sufficient to discard the entire prosecution case and court has a duty to sift the grain from the chaff.

¶64

Crl. A.87 & 125 of 2017 9

¶65

PW15 was the lecturer in Forensic Medicine and Assistant surgeon attached to medical College hospital, Kottayam during the relevant time. He conducted post mortem on the body of the deceased and Ext.P7 is the post mortem certificate. The ante-mortem injuries noted as per Ext.P7 reads as follows :

¶66

Sutured incised wound 18 cm long and 3 cm deep horizontally placed on the right side of face, through and through involving right ear 1 cm below its top and back of head. The front inner and being 7 cm cuter to midline. Underneath the bones showed cut fracture.

¶67

Sutured incised wound 16 cm long and 2 cm deep horizontal on the right side of face, through and through involving right ear 2 cm below previous injury, and the back of head the front inner and being 9 cm outer to midline. Underneath the bones showed sup cut fracture.

¶68

Chop wound 13 cm long curved with its concaving facing. The ear on the back of right side of hand 3 cm outer to midline and 3 cm above top of ear. The inner end showed beweling. The skull bone showed cut fracture.

¶69

Contused abrasion 7x5x0.5 cm on the back of head overlying the occipit.

¶70

Superficial incised wound 2x0.2x0.2 cm horizontal overlying the back of head 2 cm below injury NO.(4).

¶71

Sutured incised wound 10 cm long and 3.5 on deep horizontal on the left side of forehead, the inner and being 0.5

¶72

Crl. A.87 & 125 of 2017 10

¶73

cm to left of midline and 2 cm above root of nose. Underneath the frontal bone showed a cut fracture. Brain showed subdural and subarachnoid bleeding into both sides.

¶74

Abrasion 2x1 cm on the back of neck overlying the root in the midline.

¶75

abrasion 2x1 cm on the back of neck 2 cm to right of injury No.(7).

¶76

Superficial incised wound 3 cm long vertical on the back of trunk in the midline the upper and being 1 cm below injury No.(7).

¶77

Abrasion 2x0.5 cm on the back of left side of trunk, 5 cm to left of midline and 7 cm below top of shoulder.

¶78

Sutured incised wound 5 cm long and 2 cm deep oblique on the right side of back of trunk with its upper inner and 14 cm outer to midline and 6 cm below top of shoulder.

¶79

Multiple superficial incised wounds over an area 14x9 cm on the right side of back of trunk 13 cm to right of midline and 11 cm below top of shoulder (sizes varying from 4 cm to 11 cm).

¶80

Sutured incised wound 7 cm long and 0.5 cm deep oblique on the right side of back of trunk the upper inner and was 19 cm outer to midline and 23 cm below top of shoulder.

¶81

Incised wound 2.5 x 0.5 x 0.5 cm on the right side of back of trunk. The upper inner end being 16 cm outer to midline and 16 cm below top of shoulder.

¶82

Sutured incised wound 2 cm long and 1 cm deep

¶83

Crl. A.87 & 125 of 2017 11

¶84

oblique on the right side of back of trunk. The lower inner and being 12 cm cuter to midline and 28 cm below top of shoulder.

¶85

Sutured incised wound 1 cm long and 0.5 cm deep oblique on the right side of back of trunk. The lower inner and being 10 cm outer to midline and 30 cm below top of shoulder.

¶86

Sutured incised wound 4 cm long and 0.5 cm deep. Vertical on the right side back of trunk 21 cm below the back fold of arm pit.

¶87

Incised penetrating wound 4 cm long obliquely placed on the right side of front of chest with the lower inner and 16 cm outer to midline and 10 cm below collar bone, both ends were sharply cut. The wound entered the right chest cavity by cutting the 6^th inter costal space and terminated in the cuter aspect of lower lobe of right lung. The chest cavity contained 200 ml of fluid blood and the lung was collapsed. The wound was directed downwards back wards and to the left for a minimum depth of 3 cm.

¶88

Superficial incised wound 10 cm long oblique on the right side of front of chest 14 cm outer to midline and 18 cm below collar bone.

¶89

Sutured punctured incised wound 5 cm long and 6 cm deep oblique on the upper part of back of right shoulder, the upper inner and being 3 cm below the top. Underneath the head of humerous was found cut.

¶90

Superficial incised wound 4 cm long oblique on the back of right arm the upper inner and 8 cm below top of

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Crl. A.87 & 125 of 2017 12

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shoulder.

¶93

Sutured incised wound 3 cm long oblique on the outer aspect of right arm, the upper front and 16 cm below shoulder with a tails of 4 cm upwards and forewards.

¶94

Sutured punctured incised wound 3.5 cm long and 5 cm deep oblique on the outer aspect of right arm. Upper front and 19 cm below shoulder underneath the humerus showed a cut fracture.

¶95

Sutured incised wound 9 cm long oblique on the back of right arm. Upper front and 24 cm below top of shoulder. Underneath the humerus was cut.

¶96

Sutured incised punctured wound 6 cm long and 8 cm deep on the back of right forearm 6 cm above wrist underneath both bones showed cut fracture separation.

¶97

Superficial incised wound 4 cm long horizontal on the back of right forearm 6 cm above injury No.(25).

¶98

Superficial incised wound 10 cm long oblique on the right side of front of chest the upper inner and 14 cm outer to midline and 18 cm below collar bone.

¶99

Superficial incised wound 1.5 cm long horizontal on the front of abdomen 3 cm to right of midline and 7 cm above pubis.

¶100

Sutured wound 15x5x2 cm horizontal on the outer and front aspects of right thingh 14 cm above knee.

¶101

Superficial incised wound 2.3 cm long oblique on the right side of front of abdomen with its front lower and 11 cm

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Crl. A.87 & 125 of 2017 13

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outer to midline and 4 cm above top of hip.

¶104

Sutured incised wound 15 cm long and 2.5 cm deep oblique on the outer aspect of right knee and leg. Underneath the fibula was cut.

¶105

Sutured incised wound 10 cm long and 2 cm deep horizontal on the back and outer aspect of right leg 15 cm below knee.

¶106

5 incised wounds oblique and parellel to one another and 1 cm apart on the outer aspect of right leg the lower one being at the ankle. Underneath both bones or right leg found fractured (verying sizes 6x0.5x3 cm to 8x0.5 to 3.5 cm).

¶107

Sutured incised wound 10 cm long oblique on the top of left foot inner front and being 3 cm behind root of 3^rd toe.

¶108

Superficial incised wound 4 cm long oblique on the front of left ankle of foot.

¶109

Superficial incised wound 2 cm long horizontal on the back of left heel, 2cm above the sole of foot.

¶110

Sutured incised wound 4 cm long horizontal on the back of left leg 5 cm above heel.

¶111

Superficial incised wound 2 cm long on the inner aspect of left knee.

¶112

Abrasion 2z1 cm on the outer aspect of right elbow.

¶113

Superficial incised wound 1 cm long on the front of left arm 6 cm above elbow.

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Abrasion 4x2 cm on the left side of trunk just below

¶115

Crl. A.87 & 125 of 2017 14

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the back fold of arm pit.

¶117

The doctor further deposed that fracture to any long bone, bones of upper and lower limbs will produce fat embolism which is very dangerous. It is also stated that fat embolism and bone marrow embolism are dangerous. Opinion as to cause of death stated by the doctor is that death was due to multiple injuries sustained in chest and limbs.

¶118

During cross examination of PW15, some questions were put with regard to the duty of a doctor to prepare accident-cum-wound certificate in a medico legal case. Some questions were also put with regard to the injuries which could be caused with the weapons shown to him. He was also questioned that there would be profuse bleeding after sustaining injuries noted in the certificate and that could itself be a cause of death. The answer of the doctor was that the major cause of the death was due to wounds and there was profuse bleeding in this case as well. So though the doctor was cross examined at length, his evidence in chief about the injuries sustained and the cause of death could not be successfully challenged. It has also come out in evidence that on the same day of incident while undergoing treatment at Medical College hospital, victim succumbed to

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Crl. A.87 & 125 of 2017 15

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the injuries. The fact that the death was homicide is also not seen disputed at the time of argument.

¶121

The main question for consideration before us is with regard to the admissibility of the evidence of PW7, the sole eye witness who supported the prosecution case. He is also an injured witness though that fact is disputed by the accused. FIR was registered based on Ext.P1 statement given by PW7. He sustained injury on left thumb while warding off attack upon the deceased by the assailants. Prosecution did not produce any medical records with respect to the treatment undergone by PW7. But Ext.P1(a) the body note attached to Ext.P1 FIS and the evidence of PW17 who recorded the FIS would prove that PW1 also sustained an injury though minor, on his left thumb. Exbt.P1(a) is a contemporaneous document prepared by a police officer while recording the FIS.

¶122

On a close evaluation of the FIS and also evidence of Pw7, it could be seen that trespass committed by accused Nos. 1 to 4 and overt act by each one of them has been consistently stated by him during evidence in corroboration with that of Ext.P1 FIS. With respect to first accused, the overt act stated by him during evidence is slashing with

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sword at his head firstly resulting the deceased to fall on the cot and thereafter falling on floor. That weapon has been identified by him as MO5 sword at the time of examination. The discrepancy brought out during cross examination is that he has not stated the weapon as sword stick during evidence. The evidence of PW15 and Ext.P7 post-mortem certificate would prove corresponding injury Nos.1, 2, 3 and 6. With respect to the second accused in the FIS and also during evidence he stated about the slashing with sword on his right thigh forcefully. Injury No.29 in Ext.P7 is the corresponding injury and PW15 stated that injury No.29 is possible to be caused using MO2. With regard to the third accused in the FIS and also during evidence, PW7 stated that he forcefully slashed on the right heel though the weapon was stated as sword stick in the FIS. During evidence he stated it as a sword used by toddy tappers. Injury No.33 in Ext.P7 shows a corresponding injury. With respect to the 2^nd accused, PW7 identified MO2 as the sword used by the 2^nd accused and with respect to the 3^rd accused, he identified MO1 as the sword used by the 3^rd accused. Injury No.23 in Ext.P7 seems to be a corresponding injury. With respect to the 4^Th accused, he identified MO4 as the sickle used by the 4^th accused. PW15

¶125

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¶126

stated that injury Nos.1,2,3,6,18,23 and 33 are independently sufficient in the ordinary course of nature to cause death.

¶127

It is true that at the time of giving FIS PW7 had stated that all the accused were using sword stick. Sword or sword stick does not make much difference. The inconsistency with regard to the weapon used by the 3^rd and 4^th accused also has been put to him during cross-examination. In page No.44 he also admitted his statement given in the FIS with regard to the trespass made by accused Nos.1 to 4 armed with sword stick. So we find some inconsistency with regard to the nature of weapon used by 3^rd and 4^th accused than from the statement given by PW7 at the time of lodging FIS. But it has come out in evidence that while PW7 was watching T.V. inside the hall of his house, accused Nos.1 to 4 suddenly trespassed into the house by breaking open the door and attacked the deceased by kicking open the door of the room in which the deceased was lying on the cot. It has been stated by PW7 in the FIS that he attempted to prevent the 2^nd accused from attacking the brother. Then 2^nd accused pushed him. PW7 sustained injury on his right thumb also. Nobody can expect that in such a dreadful scene any human being can closely watch the weapon used by each

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Crl. A.87 & 125 of 2017 18

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accused. So even if there is some discrepancy with regard to nature of weapons used by 3^rd and 4^th accused during evidence from that has been given in the FIS, that will not efface the evidence of PW7.

¶130

Strong argument was advanced by the learned counsel for the accused for the failure of the prosecution to produce the medical record pertaining to PW7. According to him, PW7 was actually not present at his house at the time of occurrence. That may be the reason why the prosecution could not produce any medical records with respect to the injury sustained by him. It is to be noted that PW2 is a close relative of the deceased (their father's niece). Though she was not prepared to support the prosecution case in toto and has been declared as hostile by the public prosecutor, it is seen that certain factors are admitted by her during crossexamination at the instance of prosecution. In this context it is apposite to quote Syad Akbar v. state of Karnataka (AIR 1979 SC 1848) wherein while dealing with Sec.3 and 154 of Evidence Act, it has been held that the evidence of prosecution witness cannot be rejected wholesale, merely on the ground that prosecution had dubbed him 'hostile' and had cross examined him. In that decision Sat paul v. Delhi Administration (AIR 1976 SC 294) has been quoted and the

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relevant paragraph has been extracted as follows :

¶133

“Even in a criminal prosecution when a witness is cross examined and contradicted with the leave of court by the party calling him, his evidence cannot, as a matter of law, be treated as washed off the record altogether. It is for the Judge of fact to consider in each case whether as a result of such cross-examination and contradiction, the witness stands thoroughly discredited or can still be believed in regard to a part of his testimony. If the Judge finds that in the process the credit of the witness has not been completely shaken, he may after reading and considering the evidence of the witness, as a whole, with due caution and care, accept, in the light of the other evidence on record, that part of his testimony which he finds to be credit-worthy and act upon it. If in a given case, the whole of the testimony of the witness is impugned, and in the process, the witness stands squarely and totally discredited, the judge should as a matter of prudence discard his evidence in toto”.

¶134

So in this case the admissible portion of the evidence of PW2 though hostile, can be read in corroboration with the evidence of PW7. She would categorically depose that she saw PW7, the brother of the deceased on the way while she was proceeding towards their house on hearing the

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commotion. She would also state that PW7 was scared and found to be screaming. She also deposed that blood was oozing out from his left hand. It is pertinent to note that the evidence of PW2 stands intact since was not crossexamined at the instance of defence. So the evidence of PW2 that there was injury in left hand of PW7 would corroborate with the evidence of PW7 and also Ext.P1(a) body note attached to Ext.P1 FIS. More over, PW1 the father of PW2, who also not supported the prosecution case and was declared hostile by the learned public prosecutor, would admit during cross-examination by the Prosecutor that while he went to Kottayam Medical college hospital, PW7 was there. It is true that he would depose that he had not seen the wound on the hand of PW7. But the presence of PW7 at the hospital is brought out from the evidence of PW1 also. The evidence of PW17 the Sub Inspector of police, Mararikulam also would show that the statement of PW7 was recorded at the casualty of Medical College Hospital, Kottayam. He also stated that since Sunny had been undergoing treatment at mini theater and was unconscious, he recorded the statement of PW7. It was contended by the learned counsel for the accused that there is no reference with regard to the injury sustained to PW7 in Ext.P1 FIS. But

¶137

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¶138

PW17 during evidence stated that PW7 stated about the bandage put from the hospital. Coupled with that, there is body note also attached to Ext.P1. On evaluating the above factors, the contention of the learned counsel for the accused that there is no evidence to prove that PW7 had sustained injury and his presence at the place of occurrence is not proved etc., is not at all acceptable.

¶139

The other attack on Ext.P1 and the evidence of PW7 is that in the FIS he has referred the name of accused Nos.1 to 4 only and there is no reference with regard to the other accused in the FIS. On perusing Ext.P1 FIS and the evidence of PW7 it could be seen that though he has not named the other accused, he has categorically stated even in the FIS that accused 1 to 4 trespassed into the house and 4 to 5 people, kicked the western side door of the hall, armed with iron rods and sword stick, and entered the house. So the argument so advanced is not fully correct.

¶140

The next aspect pointed out by the learned counsel is that in the FIS, his statement was that accused 1 to 4 were armed with sword stick and first accused shouted, 'where Sunny is'. With respect to the other 4 to 5 persons came through the western door of the hall, his statement was that

¶141

Crl. A.87 & 125 of 2017 22

¶142

they were armed with iron rod and sword stick. But during evidence, he has given a little improved version with regard to the weapons used by the accused. He would also contend that during evidence PW7 has gone to the extent of stating that the sword used by the first accused was a curved one at the end and the sword of second accused was double edged weapon. He also stated that the weapon used by 4^th accused was a sickle with handle welded using iron. 5^Th accused was holding a sword and its handle was made of wood. He also stated that accused Nos. 6 and 7 were holding iron pipes. He also stated that sickle held by 3^rd accused is identical to the one used by the toddy tappers. He identified MO1 as the one used by the 3^rd accused, MO2 as a double edged weapon used by the 2^nd accused, MO3 as the sword used by the 5^th accused and MO4 as the sickle used by 4^th accused. MO5 is identified by him as the sword used by the 1^st accused. MO6 series were identified by him as the iron rods used by accused 6 and 7.

¶143

It is true that there is some inconsistency in his statement in Ext.P1 that accused 1 to 4 were holding sword stick while trespassing into the house and attacked the deceased. During cross-examination , his statement in chief with regard to the specification of the weapon used by each

¶144

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¶145

accused was brought out as omission and though PW7 asserted that he had given such discriptions, on perusing the FIS, as rightly contended by the learned counsel, there is no specific statement with regard to the identification marks of the weapons of accused Nos.1 to 4 in the FIS. But it is to be noted that his statement was given on the day when incident occurred. His brother who sustained injury had been undergoing treatment in mini theater. He also had sustained an injury on his left thumb and bandage was put. Even in such a situation, he had stated specifically that accused 1 to 4 had trespassed into the house armed with long sword searching for the deceased. He also stated that when they were about to enter the room where the deceased was lying by kicking open the door, he requested the second accused not to slash him. Then the second accused proclaiming to slash the deceased to death, pushed him back. He also stated even in the FIS that on hearing the commotion, the deceased suddenly got up and requested not to kill him. At that time the 1^st accused with a sword stick forcefully struck at his head and the deceased fell down with an alarm on the cot. The 2^nd accused with the sword struck at his right thigh and the 3^rd accused with a long sword struck at the right heels of the deceased and the heel was clinging from the leg

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and 4^th accused with a sword stick forcefully struck at his hand muscle. Though there is discrepancy with regard to the weapons used while giving the FIS from the time of giving evidence before the court with respect to accused numbers 3 and 4, there is clear statement by him with regard to the place where they struck the deceased. As we pointed out earlier, it can only be imagined the shock and trauma which PW7 had been undergoing during that time since it is immediately after his brother was taken to the Kottayam Medical college hospital. Even if there is some inconsistency with respect to the nature of weapon used by accused Nos.3 and 4, that is not sufficient to discard his evidence.

¶148

PW15, the doctor during evidence deposed that injury No.18 which is an incised penetrating wound 4 cm long obliquely placed on the right side of the front of chest , could be caused by MO2. He also stated that injury Nos.29 and 31 the description of which have already been given, are possible to be caused by MO2 and injury No.3 which is a chopper wound, is also possible to be caused with MO1 or like other weapons. He also stated that incised wounds noted would be caused using MO3 as well. Since accused Nos. 1 to 4 proved to have trespassed into the house of the

¶149

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deceased armed with weapons and entered his room kicking th door, PW7 who is none other than his brother might not have time to identify the weapons held by each one of them clearly. So the discrepancy in the evidence of PW7 with regard to the nature of weapons will not efface the prosecution case or make PW7 as unbelievable witness. Admittedly by the prosecution, the incident occurred at 3.45 pm. It has also come out that these accused persons and the deceased were friends earlier. Due to some rivalry between CW12 Lalachan, deceased and Sreekumar attacked Lalachan. As a retaliation this incident alleged to have taken place. It has also come out that these accused person are residing nearby the house of PW7. So there will not be any difficulty for PW7 to identify them. Hence the discrepancy with regard to the weapons used by accused 3 and 4 by itself cannot be taken advantage of by the defence in view of the facts and circumstances of the case.

¶151

With respect to the other accused it is true that in the FIS, the statement given by him is that apart from accused Nos.1 to 4, about 4 to 5 people trespassed into the hall by kicking the western door and they also attacked the deceased. But he did not name any of those persons at the time of giving the FIS. The evidence in connection with them

¶152

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¶153

would be discussed separately later.

¶154

The evidence of PW7 was mainly attacked by the learned counsel for the accused alleging embellishments and inconsistencies. In this context the learned counsel placed reliance on Chander Pal v. State of Haryana (2002 (2) SCC 755) wherein while dealing with S.302 IPC in a blind murder case it has been held that contradictions and improbabilities in prosecution case, unexplained non examination of material witnesses and non corroboration of testimony of interested witness by any independent witness entitles the accused for an acquittal. But on going through the facts in that case it could be seen that the person who had picked up and brought the deceased to the hospital had given a different version about the place of occurrence to the doctor in the hospital. But he was not examined and nor his presence at the place of incident or in the hospital was mentioned by any prosecution witnesses and no explanation was given by the prosecution in that regard. Another person who accompanied the deceased to the hospital and played a very important role as a panch witness was also not examined by stating that his examination was unnecessary. The testimony of PW1, the brother of the deceased as eye witness was in contradiction

¶155

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with PW2 another interested person and did not inspire the confidence of the court. So the fact situation of that case was entirely different from the present case.

¶157

Learned counsel next drew our attention to Joseph v. State of Kerala (2003 (1) SCC 465 = 2003 KHC 764) wherein while dealing with appreciation of evidence of solitary eye witness, it has been held that it is permissible for a court to record and sustain a conviction on the evidence of a solitary eye witness, but the evidence should be wholly reliable. It is also held that if evidence of eye witness is in conflict with other evidence , it would be unsafe to convict the accused solely on the basis of such witness. In this case we have already found that the evidence of PW7 with regard to the involvement and overt act by accused 1 to 4 is clear and cogent and is admissible. On going through the fact situation of the decision cited above, it is seen that the signature of PW1 in Ext.P1 FIS was disputed and he himself admitted as having been different from the one given by him on the acknowledgment of having received the summons. So taking into the totality of the facts and circumstances and conflicting evidence it was held that the evidence of solitary eye witness when is in conflict with other evidence, the view taken by the trial court that it would be unsafe to convict the

¶158

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accused on his sole testimony cannot be stated to be unreasonable. So the decision cited has no bearing to the fact situation of this case.

¶160

The learned counsel further placed reliance upon Hemraj and others v. State of Kerala (2005 (10) SCC 614) which was a case under s.302 IPC and independent witnesses were not examined though available . 4 names were mentioned in the FIR as assailants but the investigating officer filed report showing only one person as accused, no blood stains were found at the scene of occurrence. The time when the FIR registered was found to be doubtful. In the said circumstances the accused person held to be entitled for benefit of doubt. It is also to be noted that in that case the incident occurred during night and there was no evidence regarding the place of occurrence. So in the said circumstances the version of eye witness that he had seen the accused attacking the deceased with particular weapons from a distance of 30 feet at night when a tube light operating 20 feet away alone was available, was held to be unreliable. But in this case the incident occurred during broad daylight. In the FIR PW7 stated the names of 4 accused and also stated about the trespass of 4 to 5 other persons also. So the fact situation of this case is entirely

¶161

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¶162

different from the decision cited.

¶163

The learned counsel further took our attention to Lallu Manjhi and another v. State of Jharkhand (AIR 2003 SC 854) = 2003 KHC 846) wherein it has been held that where a witness is neither wholly reliable nor wholly unreliable the court must seek corroboration in material particulars before placing reliance on such evidence . But in this case we have already discussed that the evidence of PW7 with respect to accused 1 to 4 is clear and cogent . The fact that his testimony with respect to accused 5 to 7 is suspicious or not is not a reason to categorize him as a witness neither wholly reliable nor wholly unreliable.

¶164

In this context the learned public prosecutor placed reliance on State of Haryana v. Tek Singh and others (AIR 1999 SC 1742 = 1999 KHC 1197). In that case it has been held by the Apex Court that it is the duty of the court to separate the truth from falsehood in the matter of appreciation of evidence of an interested witness. The approach should be whether the evidence of the witness read as a whole appears to have a ring of truth. In that case the accused armed with deadly weapons came together and attacked the deceased persons. Accused were known to the

¶165

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witnesses and their names were disclosed immediately. In the circumstances it was held that presence of the accused at the scene of occurrence is established.

¶167

The learned counsel for the accused would also raise an argument that during evidence PW7 had given minute details with regard to the weapons used by each accused. The description of the weapons used by each accused and overt act by each accused would make the entire evidence adduced by PW7 highly artificial and unbelievable.

¶168

The learned counsel drew our attention to Golden Satheesan @ Satheesan and others v. State of Kerala (2012 KHC 25) wherein while dealing with Sec .3 of the Evidence Act it has been held that the testimony of a highly interested, inimical, partisan and tutored witness describing the occurrence with meticulous details in a parrot like manner makes the evidence suspicious. That according to him makes his evidence artificial. But on going through the said decision it is seen that the incident in that case occurred at 12.30 mid night near a detached bath room and fire wood shed etc which had no electric connection and the only source of light available was 4 torches wielded by four among the assailants and one torch held by PW2. It was in

¶169

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¶170

the said circumstances it was held that the evidence of PW2 identifying the assailants attributing specific overt act of each of the accused and the weapons used by each of them and dress worn by them with photographic precision held as highly artificial. But in this case the incident occurred in broad daylight at 3.45 pm at the house of the deceased wherein PW7 was very much present in the hall and the assailants broke opened the door of the room and thereafter attacked the deceased. It has also come out in evidence that PW7 sustained an injury when he tried to prevent the 2^nd accused from attacking the deceased. Even at the time of giving the FIS within three hours of the incident he had specifically stated the overt act of accused 1 to 4. Hence the above decision has no relevance to the fact situation of this case.

¶171

With regard to the presence of the accused, the evidence of some of the occurrence witnesses though turned hostile also can be read in corroboration with the evidence of PW7. PW3 is a close relative of the deceased and PW7 (nephew of the father). Prosecution has got a case that PW3 also was attacked by the 1^st accused at the time of incident. But he was not prepared to support the prosecution case and was declared as hostile and was cross-examined.

¶172

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¶173

But during cross-examination he stated that the 1^st accused kicked at his chest and he fell backwards. He also stated that accused Nos.2 and 3 were present with the 1^st accused. He also admitted that glass of windows and doors of the house were broken.

¶174

PW 1 also though turned hostile admitted that doors and window pane glasses of the house were destructed. PW1 is the father's brother of the deceased who reached the spot on hearing the commotion. He admitted during cross-examination by the public prosecutor that he had seen pool of blood in the bed room of the house of the deceased and he had been to the Medical College hospital, Kottayam.

¶175

PW7 also gave evidence identifying, MO7 the dhothi which was worn by the deceased at the time of incident, MO8 mat spread on the cot, MO9 series chappals of the deceased, MO10 series pieces of wooden rod of the window, MO11 series hooks of the doors which were destructed by the accused, MO12 the glass pieces of the window destroyed by the accused. So the evidence of PW7 when read in corroboration of admissible portion of PW1, 2 and 3, there arose no room for doubt to conclude the incident which had taken place on the fateful day in the

¶176

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house of the deceased and presence accused No.1 to 3 on the spot.

¶178

The learned counsel for the accused also raised a contention that none of the other occurrence witnesses stated that PW7 has witnessed the incident and that would create doubt about the presence of PW7 at the spot. The argument so advanced is not seems to be acceptable in view of the the evidence of PW2. It has already been discussed by us that though she was not prepared to admit the prosecution case and was declared as hostile, during cross-examination at the instance of the public prosecutor, she categorically stated that while proceeding towards the house of the deceased, on hearing the alarm, she saw PW7 and he was so scared and there was also a wound on his hand. She also stated that he was screaming.

¶179

More sanctity can be attributed to the evidence of PW7 because, he is a witness who has sustained injury during the course of assailants attacking the deceased. It has been held repeatedly by the Apex Court and by this Court about the evidentiary value of an injured witness. In this context it is relevant to quote Vijay Sankar Shinda and others v. State of Maharashtra (2008 KHC 4068) it has been held that

¶180

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evidence of injured witness who is examined as a witness lends more credence because he would not falsely implicate a person thereby protecting the actual assailants.

¶182

It is true that he is also a related witness, the brother of the deceased. Irul v. State (2007 (Crl.L.J) 1139) underline the proposition of law that the evidence of relative witness have to be analyzed and scrutinized with care and caution. The same proposition has been laid down by the Apex Court in State of H.P. v. Mast Ram (AIR 2004 SC 5056). So also in Dalip Singh v. State of Punjab (1953 SC 364), Barati v. State of U.P. (1974 SC 839) and in Bhurgaran v. State of Kerala (AIR 2004 SC 1058), it has been laid down that ordinarily a close relative would be the last person to screen the real culprit and falsely implicate an innocent person.

¶183

Prosecution adduced evidence with respect to the recovery of weapons also. PW8 is the witness in Ext.P2 seizure mahazar prepared while recovering the weapon MO1 at the instance of the 3^rd accused and the disclosure statement is marked as Ext.P2(a) through Pw18. But apart from admitting signature in Ext.P2 mahazar, PW8 was not further prepared to support the prosecution case regarding the recovery of the weapon. Likewise PW9 and 10 are the

¶184

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¶185

witnesses in the mahazar of the weapons effected at the instance of 2^nd and 1^st accused respectively and those were marked as Ext.P3 and P4. But both of them turned hostile and withdrawn from the statements given to the police. The disclosure statement alleged to have been given by the 2^nd and 1^st accused have been marked as Ext.P3(a) and P16(a) respectively through Pw18. PW11 is another witness cited in Ext.P3 mahazar. But he was not even prepared to admit the signature even in the mahazar.

¶186

PW13 is the witness cited to prove the recovery of weapon at the instance of 4^th accused. But he was not even prepared to admit the signature in the mahazar prepared for recovery of the weapon. Hence, Ext.P8 recovery mahazar prepared for recovery of the weapon at the instance of 4^th accused is marked through PW18. The relevant portion of the disclosure statement is marked as Ext.P8(a). PW12 is the witness cited to prove the recovery of the weapon at the instance of the 5^th accused. But apart from admitting the signature in Ext.P5 recovery mahazar he did not support the case of the prosecution with regard to the recovery of the weapon at the instance of 5^th accused. Ext.P5(a) is the disclosure statement alleged to have been given by the 5^th accused and MO3 is the weapon alleged to have been

¶187

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recovered at the instance of the 5^th accused. PW13 is the witnesses in the recovery mahazar prepared for the recovery of the weapons at the instance of the 6^th accused, but he was also not prepared to admit the signature in the mahazar. The recovery mahazar is marked as Ext.P19 through PW18. The relevant portion of the disclosure statement has been marked as Ext.P19(a). Apart from the above, through PW18, the investigating officer dresses worn by the accused persons alleged to have been worn at the time of the incident have been seized. Ext.P15 is the seizure mahazar for seizing the shirt and dhoti of the 3^rd accused, Ext.P4 is the seizure mahazar prepared for seizing the shirt which is alleged to have been worn by the 1^st accused at the time of the incident. Ext.P18 is the seizure mahazar prepared for seizing the shirt and dhoti alleged to have been worn by the 4^th accused at the time of arrest which are alleged to be the dresses worn at the time of the incident. Ext.P21 is the seizure mahazar for seizing the dhoti of the deceased alleged to have been used for covering the body while taking to the hospital. The property lists were marked as Ext.P22 to P27 series. Ext.P28 is the forwarding note for sending the sample for chemical analysis. Ext.P29 is the FSL report. As per Ext.P29 though blood was detected on

¶189

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¶190

MO1 to 5 weapons and the dresses worn by 2^nd , 4^th accused the origin could not be determined since it was insufficient for determining the origin. So the recovery of the weapons or dresses of accused and FSL report is of no avail to the prosecution.

¶191

The next question would be whether the evidence adduced by the prosecution through PW7 and other witnesses would be sufficient to prove the complicity of accused Nos.5, 6 and 7. During cross-examination of PW7 it was brought out that, accused Nos.1 to 3 and 5 are his close neighbours. He also admitted that he is quite familiar with the fifth accused. He also stated that at the time of giving statement to the police, he has stated the names of only four accused and with regard to the other accused, he stated that they could be identified on sight. That would leads to an inference that if at all fifth accused was present among the assailants at the time of incident he need not have stated that the 5^th accused can be identified on sight. In other words, if at all the 5^th accused was present among the assailants, being a neighbour he could have named him also at the time of giving FIS. So the evidence of Pw7 with respect to the involvement of the 5t^h accused is not free from doubt. As far as the 6^th and 7^th accused are concerned, they

¶192

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were arrested on 3.2.2013. PW7 has no case that he has got any previous acquaintance with 6^th and 7^th accused. In spite of that no attempt was made by the prosecution agency to conduct any test identification parade to prove the identity of accused 6 and 7. With respect to them also apart from the evidence tendered by PW7 before the court and identification in the dock there is no convincing material to prove that they have got identified by PW7 prior to their examination before the court. None of the other occurrence witnesses also would state about the presence of accused 5 to 7 on the spot.

¶194

So also it is worthy to note that in the FIS the version of PW7 was that apart from accused 1 to 4, four to five people trespassed into the house with iron rods and sword sticks. During evidence he has changed the version by stating that accused 5 to 7 trespassed and 5^th accused was holding a sword and accused Nos.6 and 7 were holding iron rods. Among them, 5^th accused, according to him, is his neighbour. So even then as stated earlier, he stated him as a person who could be identified on sight. So complicity of accused No.5 to 7 could not be established by the prosecution beyond reasonable doubt.

¶195

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¶196

The motive alleged by the prosecution is the enmity of the accused persons towards the deceased in attacking Lalachan by the deceased and his friend Kumar. That is spoken to by PW7 at the time of giving Ext.P1 FIS. During his evidence as PW7 before the court also, he stated about the motive behind the incident as the issue between deceased and Lalachan. PW2 also admitted that there was a case against deceased and Kumar for attacking Lalachan though she pleaded ignorance whether it was after that case, the incident of trespass to the house of deceased took place. The suggestion put to PW7 during cross-examination at the instance of the accused is also to the effect that PW7 is giving evidence under threat of Kumar, though that was stoutly denied by him. He would also admit during crossexamination that there was a case against the deceased and Kumar for attacking Lalachan. But at the same time he categorically stated that he had not seen Kumar of late. He also stated that Kumar is now absconding. So the motive alleged by the prosecution that since the deceased attacked Lalachan who is a colleague of the accused persons and out of that enmity, they attacked the deceased and hacked him to death, could be proved by the prosecution beyond any reasonable doubt.

¶197

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¶198

The learned counsel for the accused has got a contention that no treatment records pertaining to the deceased either at Medical college hospital, Alappuzha or that of the Medical College hospital, Kottayam have been produced. Apart from the post mortem certificate, there is no record before the court to prove the alleged treatment undergone by the victim at Medical college, Alappuzha or at Medical college, Kottayam. During examination of PW18 the investigating officer, Ext.P14, the copy of the wound certificate of the deceased at Medical college hospital, Alappuzha which was enclosed with final report was marked as Ext.P14 subject to proof. Any way, since it is only a photocopy and objection has been raised from the side of the accused it cannot be said that Ext.P14 wound certificate of the decease at Medical College, Alappuzha has been proved. However it is to be noted that the incident occurred at 3.45 pm at the house of the deceased and the evidence of PW6 autorickshaw driver would prove that the deceased was taken in his autorickshaw to Medical college hospital Alappuzha and reached the hospital in the evening. Thereafter he was referred to Medical college hospital, Kottayam and on the same day at about 9.30 pm he succumbed to the injuries. PW2 categorically stated that

¶199

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though she saw the deceased while taking him into the autorikshaw he was not speaking anything. PW17 the Sub inspector who recorded the FIS of PW7 also deposed that deceased was in the mini theatre and was unconscious and hence the statement of his brother (PW7) was recorded. So the evidence of PW17 and Ext.P1 FIS and Ext.P9 FIR would show that the FIS was recorded at 7.45 pm. The evidence of PW7 would show that it was informed by the doctor at 9.40 pm on the same day that the deceased succumbed to the injuries. That fact is not seen challenged during crossexamination of PW7. So on the same day within hours, the victim died. That may be the reason why the investigating officer had not given much importance to the medical records of the deceased. It has no significance in this case also because, prosecution has no case that deceased had made any dying declaration. So non-examination of the doctor who treated the deceased or non production of the treatment records of the deeased will not create any prejudice to the accused in the facts and circumstances of this case.

¶201

The learned counsel also would contend that blood stained clothes of PW7 was not seized by the prosecution and brought in evidence. But while examining the

¶202

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investigating officer or PW17 the Sub inspector who questioned PW7, no question in that regard seen to have been put. It has also not come out in evidence that any blood stains were on the clothes of PW7. So without putting any questions either to PW17 or 18 in that regard the accused cannot be heard to contend about the prejudice caused to them in that regard. Learned public prosecutor also drew our attention to Harpal Singh v. Devinder singh and others (1997 6 SCC 660), wherein it has been held that failure of police to seize the clothes worn by the witness which was smeared with blood during the rescue operation is not a ground to discard his evidence.

¶204

The next contention of the learned counsel for the accused was regarding the delay caused in lodging the FIS and registering the FIR and reaching the FIR before the court. According to him PW17, the Sub inspector of police, at about 4 pm on that day got information regarding the assault at Pallathal area and went to the spot and thereafter he reached the hospital and recorded the FIS at 7.45 pm. But the FIR seen to have reached before the court at 3 pm on the next day. According to him, there is unexplained delay in registering the FIR and also reaching the same before the court. But according to PW17, when he reached the spot it

¶205

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was informed that the injured was taken to Medical college hospital, Alappuzha and thereafter he went to Medical college hospital, Alappuzha. Subsequently it was informed that the injured was taken to Medical college hospital, Kottayam. He informed the matter to the Circle Inspector and as per his direction, he reached the Medical college hospital, Kottayam. He stated that he reached the place of occurrence at 4 pm. So the time taken by him to travel to the Medical college hospital, Alappuzha and subsequently to Medical college hospital, Kottayam has to be taken into account. The registration of FIR at 10 pm on the same day cannot be said as an inordinate delay and on the immediate next day at about 2 pm, the learned magistrate had initialed it and court seal has been affixed at 3 pm. When PW17 was questioned about the delay, he stated that on 19.11.2007, he forwarded the FIR to court. Any way the court has initialed the same on 2 pm on the same day and hence it cannot be said that there is any inordinate delay in registering the FIR or forwarding the same to the court. In this context the learned counsel for the accused took our attention to Peddireddy Subbareddy and others v. State of Andhra praddsesh (AIR 1991 SC 1356 = 1991 KHC 1218) wherein while dealing with a murder trial under Sec.300 of IPC, it has been held that delay of 15

¶207

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hours in lodging FIR and the evidence of PW1 was clouded with strong suspicion. In the said circumstance it was held that false implication of appellants cannot be completely ruled out and accused was held to be entitled for an acquittal. On going through the facts situation of that case it is seen that the evidence of PW1 in that case was found to be highly interested besides being highly artificial. It has been discussed that PW1 is the son in law of the deceased but after witnessing the occurrence he did not go to the village and informed any one of the villagers. On the other hand he went to his village which is at a distance of 4 furlongs and informed only his mother in law and PW1 came with the version only on the next morning. It was in the said circumstances the veracity of the evidence is found to be incredible and the delay of 15 hours taken by him to report about the occurrence was held as fatal. But in this case the incident occurred at 3.45 pm and the FIS was recorded by PW17 at Medical college hospital Kottayam at 7.45 pm and FIR was registered at 10 pm on the same day.

¶209

The learned counsel for the accused next placed reliance on Sevy and another v. State of Tamil Nadu (1981 (Suppl.) SCC 43) wherein it has been held that even if the police officer is not satisfied with the information given about the

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commission of cognizable offence, he should make an entry in the general diary and proceed to the place of occurrence and record a complaint there from someone who is in a position to give such report about the commission of the offence. This decision was placed reliance for the reason that prosecution has got a case that PW17 went to the spot at 4 pm after incident but the FIR was registered only at 10 pm . But PW17, the SI, categorically stated that when he reached the spot nobody who was aware of the incident were present and neighboring people were not willing to give details. So there is a plausible explanation offered by him for not registering the crime at the time when he reached the spot at 4 p.m. On going through decision cited it could be seen that in that case the Sub Inspector on getting information, made an entry in the general diary and proceeded to the spot taking with him the FIR book, the hospital memo book etc. so it was taken to be an extra ordinary conduct on the part of Sub Inspector of police.

¶212

Public prosecutor in this context drew our attention to Harpal Singh v. Devinder singh and others (1997 6 SCC 660) wherein while dealing with Secs 154 and 157 Cr.P.C, it has been held that time taken in shifting the injured to other hospital and making effort to save the life and the delay in

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despatching the FIR does not affect the testimony of the person who lodged the FIR. In that case delay of 4 hours in lodging the FIR was held to be not unreasonable.

¶215

Another contention advanced by the learned counsel is that PW1 to 4 are close relatives of the deceased but none of them supported the prosecution case. But it has come out in evidence that there are other cases against the deceased and Kumar and the specific case of the prosecution is that even PW7 and the other witnesses are scared of the accused to give evidence in support of the prosecution. Specific suggestions were also put by PW1 to 4 that they are withdrawing from the statement given to the police, fearing the accused persons. Though they were not prepared to admit that fact, it has come out from the evidence of PW7, the brother of the deceased, that after issuing the summons and warrant from the court, he finally appeared before the court and tendered evidence. To a specific question by the court, he stated that his parents asked him to refrain from giving evidence fearing that accused would make problem. During his cross-examination also he stated that his parents are scared of the accused persons. It is quite natural that the parents who lost a son in the brutal attack at the instance of the accused would make every effort to refrain from another

¶216

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son giving evidence in order to save his life. So the explanation offered by PW7 that his parents refrained him from giving evidence and that is why he failed to appear before the court on getting summons, is only to be accepted. The contention of the learned counsel for the accused in this context is that PW7 was not prepared to give evidence against the accused falsely and that is why he did not appear in spite of repeated process. It is also their contention that PW7 attempted to commit suicide due to the compulsion of Kumar to give false evidence against accused persons. When PW7 was questioned in that regard, he stoutly denied that he had made any such attempt to commit suicide as alleged by the defence.

¶218

DW1 was also examined from the side of the defence to substantiate the contention that there was an attempt by PW7 to commit suicide after giving evidence in this case. DW1 would state that on 10.7.2015, PW7 attempted to commit suicide by jumping from Thevara bridge. He was informed about the same by an employee working with PW7. Due to the intervention of police officials who is a relative of PW7, the case was not charged. He also stated that Kumar used to harass PW7 to give false evidence against the accused and out of that he was in high tension. But during

¶219

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cross-examination DW1 could not state which police men he met at Thevara police station in connection with this information. There is also no record in that regard kept in the police station. So the evidence of DW1 will not in any way support the defence case of PW7 attempted suicide for giving false evidence against the accused at the instance of Kumar.

¶221

At the time of argument, learned counsel for the

¶222

accused persons would contend that subsequently PW7 committed suicide and copy of his death certificate was also produced. But the fact that PW7 committed suicide subsequently after giving evidence would not in any way lead to an inference that it was because of the repentance in giving evidence against the accused. But it can also be due to the fear of accused for giving evidence in support of the prosecution case. Any way it is a subsequent act and it will not have any relevance in deciding the facts in issue in this case.

¶223

The defence also got a strong contention that it has come out in evidence that deceased sunny has got several criminal cases against him and he had lot of enemies. The accused persons are neighbours and known to the deceased and PW7. It has also come out that on a previous

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occasion the door and window panes of the house of the deceased was destructed at the instance of the accused in retaliation of attack of CW12 by deceased and others. So there is no reason for the accused persons to do this brutal act against the deceased and hence it has to be found that they are not involved in this particular incident. It has come out in evidence that deceased is involved in other cases. Admittedly there is a case against him for attacking CW12 Lalachan. PW18 the investigating officer admitted that Abkari cases are pending against him. But the fact that the deceased is involved in other criminal cases by itself is not a reason for the accused to take the law into their hands and retaliate. If such acts are left unpunished looking at the criminal antecedents of the victim there will not be any rule of law and that would lead to anarchy.

¶226

The learned counsel for the accused would raise a further contention that though the parents and grandmother of the deceased were present in the house no attempt was made by the prosecution to cite them as witness. But neither PW7 nor any of the witnesses stated about the presence of parents and grandmother in the house at the time of incident. No single question also seen to have been put during cross-examination of PW7 about their presence in the

¶227

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house at the time of incident. They might not have been present also in the house at the time of incident, otherwise they would have rushed to the scene for preventing the accused from attacking the deceased. So also no question was also put to PW18 for not citing the parents and grandmother as witness. So the contention in the above regard appears as baseless.

¶229

The learned counsel for the accused also would vehemently contend that though PW1 to 4 the occurrence witnesses and also PW8 to 13 and 16 the witnesses in the recovery mahazars were declared as hostile and the contradictory versions given by them to the police have been put, none of the statements were marked and proved by putting the same to PW18 the investigating officer. In this regard he placed reliance upon Thankappan Mohanan v. State of Kerla (1990 (1) KLT 21 = 1990 KHC 5) wherein the procedure to be followed by the court and prosecution while contradicting a witness on the basis of previous case diary statements have been discussed in detail. In paragraph No.12 it has been categorically stated that the ideal procedure would be to record and extract in the deposition relevant previous statement whether it be long and short passage. It is also stated that it is really unnecessary to subject the over

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worked sessions Judges with the task of recording the entire portion. There is nothing wrong in principle instead of writing the relevant portion of the statement, only the commencing words and the ending words are recorded within inverted commas to indicate the particular passage in the written case diary statement and that portion is marked subject to proof and when the investigating officer is examined he must refer to that portion and it would be sufficient to show that he has proved the previous statement which is part of the statement in writing. It was also held that in that case the procedure followed is in substantial compliance of Sec.145. In the present case either the prosecution or the learned Additional Sessions Judge take necessary care and caution in marking the relevant portions of the statements and getting it proved by putting to the investigating officer at the time of examination. As has been held in Krishnan Nair v. State of kerala (1971 KLT 326) it is a serious defect committed by the prosecution and by the Sessions Judge. But this court while disposing the case ultimately confirmed the conviction. So in this case also the fact that the contradictory statements of prosecution witnesses though not were specifically marked and proved through the investigating officer, that alone will not be a ground to

¶232

Crl. A.87 & 125 of 2017 52

¶233

discard the prosecution case.

¶234

The learned Public Prosecutor in this context drew our attention to Sate of W.Bengal v. Mir Muhammed Omar and others (2000 8 SCC 382 = 2000 KHC 1735) wherein it has been held while dealing with irregularity investigation that it is almost impossible to come across a single case wherein the investigation was conducted completely flawless or absolutely fool proof. The function of the criminal courts should not be wasted in picking out the lapses in investigation and by expressing unsavory criticism against investigating officers. If offenders are acquitted only on account of flaws or defects in investigation, the courts of criminal justice become the victim. It is also held that efforts should be made by courts to see that criminal justice is salvaged despite such defects in investigation.

¶235

Based on the above discussions we are of the considered view that the conviction passed against appellant/accused No.1 to 4 are well founded and hence confirmed. But prosecution failed to prove the complicity of accused No.5 to 7 beyond any reasonable doubt and hence they are entitled for benefit of doubt and hence are entitled for an acquittal. Since accused No.1 to 4 alone are found guilty, question arose whether there is unlawful assembly as defined u/s.

¶236

Crl. A.87 & 125 of 2017 53

¶237

141 of IPC of five or more persons. Here, we have already found that there was unlawful assembly of more than five persons. The identity of accused No. 1 to 4 alone could be proved conclusively by the prosecution and the identity of accused No.5 to 7 is doubtful and on that ground they are entitled for an acquittal. So our conclusion is that though there are seven accused unquestionably, involvement of accused No.5 to 7 are doubtful. So there need not be any interference in the conviction and sentence passed against accused No.1 to 4 u/s. 143, 144, 147, 324, 427, 449 and 302 r/w. 149 IPC. We are guided by the principles laid down Dalip Singh v. State of Punjab [AIR 1953 SC 364] and Bharwad Mepa Dana and Anr. v. State of Bombay [AIR 1960 SC 289 : 1960 KHC 593].

¶238

With regard to the sentence passed, we find some illegality and irregularity committed by the Additional Sessions Judge. Even though charge has been framed against the accused u/s.148 IPC, there is no finding and sentence seen passed u/s.148 IPC. In paragraph No.19, there is clear discussion with regard to the trespass into the house with lethal weapons and inflicting injuries using the same by all the accused. So court below ought to have made a finding u/s.148 IPC and imposed sentence thereunder.

¶239

Crl. A.87 & 125 of 2017 54

¶240

In the result, Crl.A.No.125/2017 filed by the 6^th accused is allowed and conviction and sentence passed against him is set aside and he is set at liberty. Crl.A.87/2017 is allowed in part setting aside the conviction and sentence passed against appellants 5 & 6/accused No.5 & 7. The sentence passed against accused Nos.1 to 4 is modified as follows:

¶241

Each accused Nos.1 to 4 shall undergo rigorous imprisonment for six months each for the offences u/s.143, 144, 147, 148, 324 and 427 r/w.149 IPC. They are further sentenced to undergo rigorous imprisonment for ten years each and to pay fine of Rs.25,000/- (Rupees twenty five thousand only) each in default to undergo rigorous imprisonment for one year each under Sec.449 r/w. 149 IPC. Each of them are also sentenced to undergo rigorous imprisonment for life and to pay fine of Rs.25,000/each (Rupees twenty five thousand only), in default to undergo rigorous imprisonment for one year each under Sec.302 r/w. 149 IPC. Substantive sentences shall run concurrently. Out of the fine amount if realised, Rs.1,50,000/- shall be given to the father and mother of the deceased towards compensation

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Crl. A.87 & 125 of 2017 55

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due to the death of their son. Direction with regard to disposal of property made by the Additional Sessions Judge is maintained. Set off also allowed in accordance with law. Accused No.5 to 7 shall be released forthwith if their confinement is not required in any other case.

¶244

Sd/-

¶245

A. HARIPRASAD Judge

¶246

M.R.ANITHA Judge

¶247

Mrcs/16.10.

Rajagopal @ Kembaban Binu v. State of Kerala

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Rajagopal @ Kembaban Binu v. State of Kerala

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