Kerala High Court
State Of Kerala vs Mujeeb Rahman (A1) on 14 May, 2009
Author: C.K. Abdul Rehim
Bench: C.K.Abdul Rehim
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM
&
THE HONOURABLE MR. JUSTICE A.M.BABU
TUESDAY, THE 25TH DAY OF JULY 2017/3RD SRAVANA, 1939
CRL.A.No. 1737 of 2009 ( )
---------------------------
AGAINST THE JUDGMENT IN SC 241/2007 of ADDL.SESSIONS COURT (ADHOC)-III,
MANJERI DATED 14-05-2009
APPELLANT/COMPLAINT:
-------------------------------------
STATE OF KERALA,
REP BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
BY SPECIAL PUBLIC PROSECUTOR (CRIMINAL)
ADV. SRI. NICHOLAS JOSEPH
RESPONDENTS/ACCUSED:
---------------------------------------
1. MUJEEB RAHMAN (A1)
S/O.MOIDEEN, AGED 25,
THEKKINIKADAN HOUSE, KUNNUMMAL EDAVANNA.
2. MANOJ BABU (A2)
S/O. MOIDEEN, AGED 30,
THEKKINIKADAN HOUSE, KUNNUMMAL EDAVANNA.
3. HARSHADKHAN (A3)
S/O. HUSSAIN, AGED 24,
THEKKINIKADAN HOUSE, KUNNUMMAL EDAVANNA.
4. ABDUL MUNEER (A4)
MUHAMMED, AGED 35,
KALLUMUDRIYAN HOUSE, PATHAPIRIYAM EDAVANNA.
R1 & R2 BY ADVS.SRI.S.RAJEEV
SRI.K.K.DHEERENDRAKRISHNAN
R3 & R4 BY ADVS.SRI.BECHU KURIAN THOMAS
SRI.M.RISHIKESH SHENOY
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 25-07-2017,
ALONG WITH CRRP. 3024/2009, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
AMG
C.K. ABDUL REHIM, J.
&
A. M. BABU, J.
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Crl. Appeal No. 1737 OF 2009
&
Crl. R.P. No. 3024 OF 2009
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DATED THIS THE 25th DAY OF JULY, 2017
J U D G M E N T
Abdul Rehim, J:
Both the above cases were instituted against the judgment in SC No.241/2007 of the Additional Sessions Court, Fast Track No.III, (Ad-hoc), Manjeri. Criminal Appeal No.1737/2009 was filed by the State represented by the Public Prosecutor of the High Court of Kerala, challenging acquittal of the respondents therein (Accused 1 to 4), who were charged with offences punishable under Sections 120B, 324, 114, 341, 302 and 201 read with Section 34 of Indian Penal Code (IPC). Criminal R.P. No.3024/2009 is a Revision Petition filed under Sections 397 and 401 of the Code of Criminal Procedure (Cr.P.C.) by the defacto complainant (PW1) seeking to set aside the acquittal against the respondents. The petitioner in the revision petition is a close relative of the deceased, Najeeb.
Crl. Appeal No. 1737/2009 & Crl. R.P.No.3024/2009 -2-
2. Prosecution case in brief is that; Najeeb @ Bapputty (the deceased) was stabbed to death by all the accused (A1 to A5) at about 9.30 a.m. on 24-08-2006. All the accused are the family members of the former wife (CW38) of Najeeb. After divorcing CW38, Najeeb remarried PW2, Sajna. CW38 was residing along with the eldest daughter (CW 39) at her parental house. Two younger daughters were living with Najeeb. Najeeb used to harass CW38 and CW 39. The charge was that, on account of enmity towards Najeeb, due to harassments caused by him to CW 38 and CW39, the accused 1, 2 & 5 assaulted Najeeb at about 8 a.m. on 24- 08-2006 and the 5th accused had inflicted a stab injury on his left leg below the knee, with a knife. Najeeb was taken to the Community Health Centre, Edavanna for treatment, from where he was referred to the District Hospital, Manjeri for better management. On the same day at about 9.30 a.m. while Najeeb was taken to the District Hospital at Manjeri in a Maruti Car belonging to PW5, which was driven by PW1, the accused followed them in a Lancer Car which overtook the Maruti Car and stopped in front in a manner blocking the Crl. Appeal No. 1737/2009 & Crl. R.P.No.3024/2009 -3- Maruti Car. Accused 1 to 4 pulled out Najeeb from the car and stabbed him several times with knives in their possession, at the public road. Najeeb died due to the severe injuries sustained. The 5th accused inspired accused 1 to 4 to commit the murder and thereafter all the accused threw away the blood stained dresses in Panthalloor River. Therefore all the accused were charged with the offences as mentioned above.
3. Police investigation in the case was initiated based on Ext.P1 'First Information Statement' given by PW1, which was recorded by PW25, Sub Inspector of Police. PW25 registered Ext.P33 'First Information Report (FIR)' at about 12 noon on the date of the occurrence itself. PW27, Circle Inspector of Police, who took charge of the investigation on the same day conducted inquest on the body of Najeeb at 1.45 p.m. and prepared Ext.P2 report. He visited the scene of occurrence and prepared Ext.P17 mahazar on the same day, at about 5.30 p.m. and also recovered some incriminating materials from the scene. He also visited the place of occurrence in front of the Madrassa where the 5th accused Crl. Appeal No. 1737/2009 & Crl. R.P.No.3024/2009 -4- had inflicted a stab injury on the leg of Najeeb, on the next day (25-08-2006) at 5 p.m. and prepared Ext.P19 mahazar. Accused 1 & 2 were arrested on the 2nd day after the incident, on 26-08-2006. Based on Ext.P5 (a) disclosure allegedly made by the 1st accused, MO1 knife was recovered by PW27 from a place to where he was led by the 1st accused, by preparing Ext.P5 mahazar, at 4 p.m. on the date of the arrest. Based on Ext.P24 (a) disclosure allegedly made by the 2nd accused, PW27 had recovered MO 2 knife, on the same day by preparing Ext.P24 mahazar. The Lancer Car used by the accused at the time of occurrence was recovered on the basis of Ext.P26 (a) disclosure made by accused 1 & 2, by preparing Ext.P26 mahazar. Accused 3 & 4 were arrested on 03-09-2006. The 5th accused was arrested on 26-09-2006. MO7 knife was recovered based on Ext.P30 (a) alleged disclosure made by the 5th accused, on 26-09-2006 at 11 a.m. by preparing Ext.P30 mahazar. The extracts of the disclosure statements of accused 1, 2 & 5 were also separately marked as P24 (b), P24 (c), P26 (b) and P26 (c). PW28 completed the investigation and submitted the final report. Before the trial Crl. Appeal No. 1737/2009 & Crl. R.P.No.3024/2009 -5- court, the prosecution had examined PWs 1 to 26 and marked Exts.P1 to P42 documents; and also got identified MO1 to MO11 material objects. No oral evidence was adduced on behalf of the defence, but marked Exhibits D1 to D32 documents. The 5th accused died during pendency of the trial. The trial court, on evaluating the evidence available on record, acquitted accused 1 to 4 under Section 235 Cr.P.C. The above appeal and revision petition are filed against acquittal of accused Nos.1 to 4.
4. We have ventured re-appreciation of the entire evidence available on record. For the purpose of brevity, we are only analyzing the evidences which are found to be incriminating against accused 1 to 4. It mainly consisted of the oral testimonies of ocular witnesses, medical evidence, as well as evidence relating to recovery of the weapons allegedly used. PW1 is the nephew of the deceased who gave Ext.P1 'First Information Statement'. He conceded that he had not witnessed the incident which occurred at 8 a.m. near the Madrassa at Pothupetty, from where the 5th accused had allegedly inflicted a stab injury on the left leg of the Crl. Appeal No. 1737/2009 & Crl. R.P.No.3024/2009 -6- deceased. According to PW1, it is PW5 who told to him about the said incident. He deposed of having taken Najeeb to the hospital in a Maruti Car belonging to PW5, along with PW2 and the mother of Najeeb (CW4), who died subsequently. He further deposed that, when Najeeb was referred to the District Hospital, Manjeri for better treatment, they came back to the house in order to collect the two children (CW2 & CW3) and the dress materials required. Thereafter when they proceeded to the District Hospital, Manjeri in the Maruti Car bearing Registration No.KL10 K 6455, the second incident occurred. According to PW1, he was driving the car and Najeeb was sitting on the front left seat. PW2 and CWs2 to 4 were on the back seat. When they reached near the Village Office at Ambalapady, a white Lancer car had overtaken them and stopped across in front. All the 5 accused got down and came near to the Maruti Car. The 1st accused pulled out PW1 after opening the front door on the right side. Thereafter accused 1 & 2 pulled out Najeeb from the car through the driver seat. Accused 3 & 4 caught hold of the hands and legs of Najeeb and the 1st accused stabbed him Crl. Appeal No. 1737/2009 & Crl. R.P.No.3024/2009 -7- on his abdomen and back, with a long knife. Najeeb fell down on the road. When he tried to get up, accused 3 & 4 again caught hold of his hands and legs and at that time the 2nd accused inflicted repeated stab injuries at his head and abdomen. The 1st accused also inflicted repeated injuries on Najeeb. PW1 specifically deposed that, during the course of the above transactions, a stab inflicted by the 1st accused on Najeeb had struck on the hand of the 2nd accused and the 2nd accused sustained injuries on his hand. PW1 deposed that the 5th accused uttered to stab Najeeb to death. After inflicting the injuries the 5th accused again uttered that Najeeb was dead. Then all the 5 accused got into the Lancer Car and drove away towards Manjeri direction. PW1 along with two others who came to the spot took Najeeb to the District Hospital, Manjeri in another vehicle which came through. On examination the Doctor opined that Najeeb was dead. PW1 admitted of having given Ext.P1 statement to the police at about 12 non. PW1 identified accused 1 to 4 as well as MO1 and MO2 knives, as weapons used for inflicting injuries on the deceased. In the testimony of PW1 he admitted that Crl. Appeal No. 1737/2009 & Crl. R.P.No.3024/2009 -8- CW38 had filed various cases against Najeeb in connection with matrimonial disputes existed between them. According to him, the 5th accused had stabbed Najeeb on his left leg when Najeeb attempted to meet the eldest daughter (CW 39), who was studying in the Madrassa.
5. Testimony of PW1 with respect to imputations against accused 3 & 4 is not free from contradictions. In Ext.P1 statement he has not mentioned the names of accused 3 and 4. On the other hand his version was that the 1st and 2nd accused came in the Lancer car along with two cousins of CW38. Of course, he had mentioned certain physical features and relationships, for the purpose of identifying them. It has come out in evidence that PW1 had identified accused 3 and 4 in the 'test identification parade' conducted by PW10, the Judicial First Class Magistrate, at the jail. But the testimony of PW1 while examined before the court was that, he knows accused 3 & 4 as brothers of CW 38 since the last 8 to 10 years. According to him, he knows them by their names from that time onwards. It is the case of PW1 that he had mentioned names of accused 3 & 4 to the police, even at Crl. Appeal No. 1737/2009 & Crl. R.P.No.3024/2009 -9- the time when he gave Ext.P1 statement. The defence could also succeed in bringing out a material contradiction in the testimony of PW1 to the extent that, he had not mentioned the name of the 5th accused as a person who was present at the time of the occurrence, when he gave Ext.P1 statement. But PW1 deposed that the name of the 5th accused was mentioned to the police even at the time when Ext.P1 statement was given. There are also slight contradictions in the evidence of PW1 regarding the position of the deceased at the time when accused 1 & 2 were inflicting the stab injuries.
6. PW2, the second wife of Najeeb, was examined to prove the incident. She deposed of having witnessed the incident which occurred at 9.30 a.m. near the Village Office at Ambalapady. According to her, when Najeeb was taken in the Maruti Car driven by PW1 to the District Hospital, Manjeri, she along with CW2 to 4 had accompanied. Her testimony is to the effect that, Najeeb was sitting on the left front seat and herself along with CW 2 to 4 were on the back seat. Her evidence had corroborated with that of PW1 to the Crl. Appeal No. 1737/2009 & Crl. R.P.No.3024/2009 -10- extent that, at the spot of the incident accused. 1, 2 and 5 came along with two others who can be identified in a white Lancer car which had overtaken their car and stopped across in front. She also deposed that accused 1 and 2 had pulled out PW1 from the driver seat and thereafter pulled out Najeeb through the driver seat of the car. According to PW2, the 2nd accused covered the mouth of Najeeb and accused 3 and 4 caught hold of his hands. She deposed that accused 1 and 2 had inflicted several stab injuries on the body of Najeeb, at the abdomen, neck, chest, head etc. with knives which they had in their possession. Her testimony is to the effect that, at that time the 5th accused had shouted to kill Najeeb and accused 1 & 2 had inflicted repeated stab injuries on different parts of his body. On realizing that Najeeb is dying the 5th accused uttered that he is dead and to stop further stabbing. All the accused had escaped from the scene in the car in which they came. PW1 identified MO1 knife as the one used by the 1st accused and MO2 knife as the one used by the 2nd accused. She further deposed that Najeeb was taken from the spot by PW1 and others in a vehicle Crl. Appeal No. 1737/2009 & Crl. R.P.No.3024/2009 -11- which came through, and she along with CW2 to 4 followed them to the District Hospital, Manjeri in another vehicle. But by the time they reached the Hospital Najeeb was dead. She also deposed about the enmity of the accused towards Najeeb; and also about the incident which occurred near the Madrassa in the morning on that day, in which the 5th accused had inflicted stab injury on the leg of the deceased. Eventhough PW2 could identify accused 3 & 4 while examined before the court, she conceded that she could not identify them during the 'test identification parade' conducted in the jail. It is pertinent to note that, despite extensive cross-examination no material contradictions could be brought in her evidence with respect to the overt acts of accused 1 & 2 in inflicting repeated stab injuries on deceased Najeeb.
7. PW3 is an independent witness examined to prove the occurrence. He deposed of having seen a person lying injured on the road at the spot of incident, at about 9.30 a.m. on 24-08-2006; and a white car proceeding from the spot in front, towards Manjeri direction. His testimony is to the Crl. Appeal No. 1737/2009 & Crl. R.P.No.3024/2009 -12- effect that he had seen a Maruti Car parked nearby and an aged lady, a young lady and two children standing there along with a young man. His testimony is to the effect that a person was seen lying there with injuries and his body was overturned by himself and few others gathered there and it was realized that he had sustained very severe stab injury on the abdomen and the internal organs were seen protruded out. He deposed of having bandaged the wound with a towel. The injured was taken to the hospital in a vehicle which came through by the youngster who was standing near the car, along with two others. According to PW3, he realized about the death of the injured through the newspapers, on the next day. On analysing the evidence of PW3, it is corroborating with the version given by PWs 1 and 2 with respect to the incident, which occurred on the public road at 9.30 a.m.
8. PW5 is the brother of deceased Najeeb. He deposed of having witnessed the incident which occurred near the Madrassa at about 8 a.m. His testimony is to the effect that while he was sitting in a tea shop in that area, somebody told him about the quarrel going on between Crl. Appeal No. 1737/2009 & Crl. R.P.No.3024/2009 -13- Najeeb and the accused 1, 2 & 5. Then he ran to the spot. He witnessed the accused 1 & 2 catching hold of Najeeb and pressing on his neck and the accused No.5 standing nearby. When he interfered and separated Najeeb from accused 1 and 2, the 5th accused came with a knife and attempted to stab Najeeb. But PW5 pushed him aside. At that time the 5th accused inflicted a stab injury on the left leg of Najeeb, below the knee. PW5 had identified MO7 knife as the one used by the 5th accused. Testimony of PW5 is to the effect that he took Najeeb in his car to the house, after informing to PW1 about the incident, over telephone. He requested PW1 to come to the house. He also supported the versions that Najeeb was taken to the hospital by PW1 accompanied by PW2 and CW4. He further deposed that they came back from the local hospital and then proceeded to the District Hospital, after collecting CW 2 & CW3. He also revealed about the disputes and litigations existing between CW38 and the deceased. He had conceded that Najeeb had once assaulted CW38, for which she was hospitalized.
Crl. Appeal No. 1737/2009 & Crl. R.P.No.3024/2009 -14-
9. CW2, one among the children of deceased Najeeb, who was allegedly present at the time of the occurrence, was examined as PW17. She was only 11 years at the time of examination, in December 2008. She was at the age of 9 years as on the date of the occurrence. She turned hostile to the prosecution. It has come out in evidence that, at the time of her examination before the court she was living with her mother, CW38. She conceded of having given statement before the Magistrate, under Section 164 Cr. P.C., on two occasions. But her testimony is to the effect that, she had not spoken about the incident before the Magistrate. However, she conceded of having identified accused 3 & 4 in the test identification parade. To a specific question put by the court, she answered that, at the time of the occurrence she was living with the deceased (her father) along with PW1 and PW5. She pretended ignorance about the cause of the death of her father. She was examined with questions put by the prosecution, after obtaining permission from the court under Section 154 of the Indian Evidence Act. Contradictions in her earlier statements were marked as Ext.P20 series, P21 and Crl. Appeal No. 1737/2009 & Crl. R.P.No.3024/2009 -15- P22. On an analysis, eventhough the evidence of PW17 is in no manner helpful to the prosecution, it cannot be accepted as credible testimony to discredit the version put forth by PW1, PW2, PW3 and PW5, in any manner.
10. The oral evidence available in the case is supported by the medical evidence adduced. PW18 is the Doctor who examined Najeeb at the Community Health Centre, Edavanna at 8.30 a.m. on 24-08-2007. Exhibit P23 is the 'Accident Register-cum-Wound Certificate' issued by PW18. The Doctor deposed of having examined Najeeb and noticed an incised wound of 5 x 1.5 cm size on his left leg with severe bleeding. He deposed of having referred Najeeb to the District Hospital, Manjeri. PW18 opined that it is possible to inflict such an injury with a weapon like MO7. In Ext.23, the history and alleged cause of the injury noted is, "stab injury inflicted with knife at about 8 a.m. on 24-08-2006 near Mannakkadukunnu Madrassa (Pothupetty)". The above evidence will corroborate the prosecution version that Najeeb sustained a stab injury on his left leg at 8 a.m. on 24- 08-2006 near the Madrassa at Pothupetty and that he was Crl. Appeal No. 1737/2009 & Crl. R.P.No.3024/2009 -16- taken for treatment to the Community Health Centre, Edavanna.
11. PW6 is the Doctor who conducted autopsy on the body of Najeeb, on the next day of the incident. Exhibit P3 is the 'Post Mortem Examination Certificate'. He deposed of having noticed the following ante-mortem injuries on the body of the deceased.
(1). Incised wound 3 cm long, gaping with the margins sharply cut lower end pointed, upper end irregular with marginal contusion, on the right side of back of head vertically placed with slight obliquity, skull deep, 3 cm outer to midline and 5 cm above the hair line.
(2). Incised wound 2 cm long, gaping with the margins sharply cut obliquely, placed on the back of head at midline 3 cm above the hair line. Skull deep, its left lower end pointed and right upper end blunt.
(3). Incised wound 2.8 cm long, transversely placed over back of head with obliquity, margins sharply cut with bevelling of upper margin. The upper margins was slanting. The right upper end appeared irregular and the left lower end appeared pointed. The wound was skull deep directed downwards and to the front. The injury was at midline and to the left 10cm above the hairline.
Injuries 1, 2, 3 on the back of head were transversely oblique with a right upper end and a left lower end. On dissection there was blood infiltration on the back of scalp and within the occipitalis muscle.
(4). Incised wound 2.6 cm long, gaping, obliquely placed on the right side of back of neck 3 cm outer to midline and 6 cm above the root of neck. The upper margin was sharply cut. The lower margin was contused. The right upper end was slightly irregular with marginal contusion. The left lower end was sharply cut. The injury was muscle deep.
Crl. Appeal No. 1737/2009 & Crl. R.P.No.3024/2009 -17- (5). Incised wound 1.5 cm long vertically oblique on the back of neck at midline 6 cm above the root of neck. The lower end was pointed and upper end was blunt. The wound was gaping, 1.5 cm deep, directed to the front and to the right.
(6). Multiple superficial incised wound (Nine) with marginal contusions, irregularities and slanting over an area 23 x 8 cm, transversely and obliquely placed over the back of upper part of trunk upper margin at the root of neck. The injuries ranged from 1 x 0.1 x 0.1 cm to 4 x 0.5 x 0.5 cm. The longer wounds showed tailing of their lower ends.
(7). Incised stab wound 3 cm long, gaping vertically placed on the right side of front of neck 3 cm outer to midline and 3 cm above the inner end of clavicle. The margins were sharply cut. The lower end was tapering with tailing. The upper end was blunt. The wound was 3.5 cm deep and directed to the back and left. On dissection there was blood infiltration over 12 x 8 cm on the right side of neck underneath. At the depth of the wound the underlying muscles, internal jugular vein and outer aspect of right common carotid artery were cut and the wound terminated by piercing the vertebral body of 7th cervical vertebrae on the right side slightly obliquely producing an injury 1.5 cm long on the front of the vertebral body.
(8). Four incised wounds transversely placed over an area 10 x 8 cm on the right side of top of shoulder extending to the root of neck and to the front of shoulder. The wounds measured 2 x 1 x 0.2 cm, 4 x 1 x 0.5 cm, 2 x 0.5 x 0.3 cm and 3 x 0.5 x 0.3 cm.
All the injuries showed tailing of their right end. There were three small spot contusions 0.2 x 0.2 cm each, Superficial in between the injuries.
(9). Incised stab wound 2 x 1 cm within the inner aspect of left ear 3.5 cm deep directed downwards and to the right terminating just behind the angle of mandible. The wound was inside the ear just below and behind the tragus.
Crl. Appeal No. 1737/2009 & Crl. R.P.No.3024/2009 -18- (10). Abrasion 2 x 2 cm on the left side of chin. (11). Abrasion 0.5 x 0.5 cm on the left side of front of neck 6 cm above the inner end of clavicle.
(12). Abrasion 0.5 x 0.3 cm on the left side of neck 8 cm below the ear lobule.
(13). Five incised stab wounds over an area 11 x 10 cm on the right side of back of trunk cm outer to midline and 10 cm above the right buttocks.
The injuries were:
(a) 4 cm long incised stab wound, gaping, margins sharply cut, ends pointed 9 cm deep entering into abdominal cavity. The wound was directed anteriorly and downwards passing through the para spinal muscle and right retroperitoneal soft tissues terminating by cutting the right iliopsoas muscle.
(b) Incised stab wound 4 cm long, gaping with its right margin sharply cut and left margin showing minimal contusion and a small side cut 0.1 cm towards the lower aspect. Both the ends were pointed. The wound was 8 cm deep and entered into the abdominal cavity. The wound was directed anteriorly and to the right terminating by piercing the back and front of right kidney. The Sharply cut injury on the back of kidney was 4 cm long and the injury on the front was 2.5 cm long and were in continuity. The wounds were vertical with their ends pointed.
(c) Incised stab wound 5.1 cm long gaping with both ends pointed. The right margin was minimally contused and left margins was sharply cut. The wound was 6 cm deep entering into the abdominal cavity. The wound was directed anteriorly and to the right.
(d) Incised stab wound 5 cm long with the margins sharply cut and ends pointed, gaping entering into the abdominal cavity 5 cm deep directed to the front and left. The injury entered into the right paracolic gutter piercing the peritoneum.
(e) Incised wound 4 cm long with both ends pointed.
There was minimal contusion on the left margin. The Crl. Appeal No. 1737/2009 & Crl. R.P.No.3024/2009 -19- lower aspect of both sides of wound showed side cut (0.1 cm each). The wound was 4.7 cm deep and entered into the abdominal cavity. The injury was directed to the front and to the left.
Injuries (a) and (b) were above the other injury No.
(c) was just outside injury (a) and (b). The No. (d) was outside injury (c). Injury No. (e) was outside injury No.
(d). All the injuries were vertical with slight obliquely. There was blood infiltration on the right side of retroperitoneum.
(14). Incised stab wound 3.5 cm long on the right side of back of trunk 25 cm above the buttocks and 16 cm outer to midline. The right margin of the wound was sharply cut with bevelling of the left margin. The left margin was minimally contused with slanting. The upper end was sharp and the lower end was slanting and frayed. The wound was directed to the front and passed through the subcutaneous plain to form to pocket 4 cm deep. (15). Incised stab wound 3.5 cm long obliquely placed on the right side of abdomen with a left upper end and a right lower end the left end being 4 cm outer to the umblicus. The left upper end was pointed and the right lower end was blunt. The wound entered the abdominal cavity and a portion of small intestine was found protruding outside. The total minimum depth was 3 cm. The injury terminated by piercing the mesentry of the small intestine.
(16). Incised stab wound 6 cm long gaping on the right side of abdomen vertically placed over the flank 14 cm outer to umblicus with a upper sharp cut end and lower blunt end. There was a side cut on the front margin of the wound 2 cm above its lower end. The wound entered the abdominal cavity and a portion of small intestine was found protruding outside. The total minimum depth was 4 cm. The injury pierced the ascending colon and intestinal content was found lying outside the bowel. (17). Incised stab wound 9 cm long transversely placed on the upper abdomen at midline and to the left just below the left costal cartilage. The wound was gaping. The left end was pointed with tailing for 1 cm and the right end was blunt. The injury was 8 cm above the umbilicus and the Crl. Appeal No. 1737/2009 & Crl. R.P.No.3024/2009 -20- left end was 7.5 cm to the left of midline, over the left costal cartilage. The wound entered the abdominal cavity and a portion of large intestine (Transverse colon) was found protruding outside. There was a linear abrasion 2 x 0.1 cm transversely oblique, on the front of abdomen 1 cm above the middle portion of the incised stab wound. The upper margin of the incised wound had a small side cut 0.1 cm at its middle. The total minimum depth was 3 cm. At its depth the injury passed through the front and back wall of stomach (Injury on the stomach wall measured 7 cm in length) piercing the duodenum and adjacent head of pancreas. The peritoneal cavity was blood smeared.
(18). Abrasion 2.5 x 0.2 cm - on the right side of front of lower part of chest obliquely, placed 2 cm outer to midline and overlying the lower margin of costal cartilage. (19). Superficial lacerated wound 0.3 x 0.3 cm on the left side of upper abdomen just below the costal cartilage margin 18 cm below the nipple.
(20). Incised wound 3.5 x 1 cm muscle deep, transversely oblique on the inner aspect of right upper arm 10 cm below the armpit. There was another incised wound 5 x 1 cm muscle deep vertically oblique 3 cm behind the above injury with the front margin sharply cut and back margin slanting. The upper ends of both wounds were rounded and the lower ends were pointed. Both the wounds were continuous through the subcutaneous plain. (21). Incised wound 6 x 2 cm, bone deep on the front of right hand gaping cutting the underlying muscles over the thenar eminence of right hand in line with another incised wound 3 x 1 cm, bone deep on the right palm passing through the inter digital cleft between the little and ring finger with an area of intact skin in between the two injuries on the front of right palm at its middle. (22). Incised wound 1.5 x 0.3 x 0.3 cm on the front of right ring finger 2 cm below its root.
(23). Incised wound 1.5 x 0.2 x 0.2 cm on the back of kunckle of right index finger.
Crl. Appeal No. 1737/2009 & Crl. R.P.No.3024/2009 -21- (24). Incised wound 1 x 0.2 x 0.2 cm on the back of right hand towards the outer aspect 2 cm below the wrist. (25). Abrasion 3 x 2 cm on the back of right upper arm 5 cm above the elbow.
(26). Contused abrasion 2.5 x 1.5 cm on the back of left hand 2 cm above the root of index finger.
(27). Abrasion 1 x 1 cm on the outer aspect of left elbow. (28). Abrasion 1 x 0.5 cm on the back of left upper arm 4 cm above the elbow.
(29). Incised wound 5 x 1 cm transversely placed on the inner aspect of left leg 16 cm below the knee. The margins were sharply cut and the ends pointed. The injuries was muscle deep."
Opinion of PW6 Doctor was that, the death was due to multiple stab injuries sustained on the neck and abdomen, especially injury numbers 7, 13, 15, 16 & 17. To a specific question put to him whether the injury No.29 can be caused with MO7, he answered on the positive. According to him, other incised wounds can be caused with any sharp edged weapon. When questioned after showing MO1 and MO2, he answered that the incised wounds are possible to be caused with those weapons. He specifically answered that injury Nos.1, 2, 3, 4, 5, 6, 7, 8, 9, 14, 15, 16, 17, 20, 21, 22, 23, 24 and 29 are possible to be inflicted with MO1 and injury Nos. 6, 8, 9, 13, 21, 22, 23, 24 and 29 are possible to be inflicted Crl. Appeal No. 1737/2009 & Crl. R.P.No.3024/2009 -22- with MO2. Evidence of PW18 and PW6 Doctors and Ext.P23 & P3 documents are corroborative of the incident as narrated by the prosecution, which was brought out through oral testimony of the ocular witnesses examined, as mentioned above.
12. PW9 is the Resident Medical Officer who was in charge of the 'casualty' at the Malabar Hospital on the date of the occurrence. She deposed of having examined accused 1, 2 & 5 on that date. According to her they came to the hospital at 9.30 a.m. on 24-08-2006. The 1st accused had an abrasion on his right index finger and the 2nd accused had an injury on his left hand having the size of 2 x 1 c.m., involving cut of tendon. She deposed of having given first aid to both of them. She identified accused 1 & 2 in the court. After arrest of accused 1 & 2 on 26-08-2006, the police had taken them for medical check-up to the Community Health Centre, Vandoor. PW11 is the Doctor who examined both of them at 9.30 p.m. on 26-08-2006. He deposed that, there was bandage on the right index finger of the 1st accused. On examination by removal of the bandage, an abrasion was Crl. Appeal No. 1737/2009 & Crl. R.P.No.3024/2009 -23- noted on the finger and the wound was cleaned and dressed. The Doctor opined that the injury appeared to be sustained one day prior to the examination. The Doctor also deposed that there was a bandage on the dorsum of the left hand of the 2nd accused with swelling and increased temperature. An infected wound of 3 x 2 c.m. size on the dorsum of the left hand of the 2nd accused was noticed. PW11 deposed that the 2nd accused was unable to extend his fingers and he was referred for orthopaedic consultation. There also the witness opined that, the injury appeared to be sustained more than one day prior to the examination. The above said evidence are corroborative of the testimony of PW1 that during the course of transaction the 2nd accused sustained a cut injury on his hand. There is no explanation forthcoming from the side of accused 1 & 2 with respect to the injuries sustained to them.
13. Discovery of MO1 knife based on the disclosure allegedly made by the 1st accused, discovery of MO2 knife based on disclosure allegedly made by the 2nd accused and discovery of MO7 knife based on disclosure allegedly made Crl. Appeal No. 1737/2009 & Crl. R.P.No.3024/2009 -24- by the 5th accused, need analysis as incriminating evidences. The investigating officer had deposed before the court that accused 1 & 2 had made disclosure statements, when questioned after their arrest, regarding the places where MO1 & MO2 knives were kept. He deposed of having discovered those weapons based on such disclosure made by accused 1 & 2 from places to where he was led by them. PW8 is the witness examined to prove the recovery of MO1. He deposed of having witnessed the 1st accused taking MO1 knife from a bush and handing over the same to PW27. He identified MO1 and conceded of having signed Ext.P5 mahazar. Eventhough PW19 was examined to prove the recovery of MO2 knife, he had not supported the prosecution and denied of having seen the 2nd accused taking and handing over the knife to PW27. However he admitted of having signed Ext.P24 mahazar. PW22 is the witness examined to prove the recovery of MO7 knife. He deposed of having witnessed the 5th accused taking out MO7 knife and handing over the same to PW27. He conceded of having signed Ext.P30 mahazar. The Investigating Officer had also Crl. Appeal No. 1737/2009 & Crl. R.P.No.3024/2009 -25- deposed about the recoveries in tune with the prosecution case. We are of the considered opinion that the evidence in this regard is acceptable under Section 27 of the Indian Evidence Act, 1872.
14. Question to be examined in the backdrop of the discussions made above is, whether the evidence available will conclude the guilt of the accused. If the answer is on the positive, then the next question to be considered is, whether the conclusions and findings of the court below, which ended in acquittal of the accused, are totally perverse or erroneous and whether it had resulted in total miscarriage of justice. As already observed, the 5th accused died during pendency of the trial. Therefore we need to examine only whether accused 1 to 4 are guilty of the offences charged.
15. At first, we may analyse whether there is any conclusive proof with respect to guilt of accused 3 & 4 in the incident. Eventhough PW17 had identified accused 3 and 4 in the 'test identification parade' as well as before the court, she turned hostile to the prosecution and denied of having witnessed the incident. PW3 had not identified the assailants. Crl. Appeal No. 1737/2009 & Crl. R.P.No.3024/2009 -26- By the time he reached the spot the assailants had left the place in the car. PW5 deposed of having witnessed only the first incident, which took place at 8 a.m. near the Madrassa. There is no case for him that accused 3 & 4 were present there or that they were involved in the said transaction. PW2, wife of the deceased, identified accused 3 & 4 in the dock. But, admittedly she failed to identify them in the 'test identification parade' conducted in the jail, which was the first opportunity for her to identify them as persons involved in the incident. She had conceded that accused 3 & 4 were not known to her before the incident. Therefore the evidence of PW2 cannot be held as sufficient to connect accused 3 & 4 with the incident. PW1 is the person who gave the first information. In Ext.P1 statement he describes accused 3 & 4 as cousins of CW38. He mentioned their identity through physical features and through the relationship with CW38. But his testimony before the court is that he had identified accused 3 & 4 in the 'test identification parade' and that he knows accused 3 and 4 since the last 8 to 10 years prior the date of the occurrence. His specific testimony is that, he Crl. Appeal No. 1737/2009 & Crl. R.P.No.3024/2009 -27- knows them by their name since that time onwards as brothers of CW38. According to PW1, he had mentioned their names to the police, even at the time when Ext.P1 statement was given. The material contradictions in the evidence of PW1 in this regard would go deep to the root of its credibility with respect to the identification of accused 3 & 4 as persons involved in the incident. Since no other credible and conclusive evidence is available to prove about the involvement of accused 3 & 4 in the incident, based on their identity, we are of the opinion that they are entitled to the benefit of doubt and the appeal against their acquittal cannot succeed.
16. Question next to be considered is whether the acquittal of accused 1 & 2 was manifestly wrong or perverse and whether it had resulted in total miscarriage of justice. Whether there occurred a total misappreciation of evidence, which had ended up in their acquittal, is the question mooted. But, before proceeding with discussions on the said aspect, we need to be cautioned ourselves about the guiding principles of law remaining well settled, with respect to the Crl. Appeal No. 1737/2009 & Crl. R.P.No.3024/2009 -28- scope and ambit of the powers of this court for interference in appeals against acquittals. The legal position in this regard remains settled through enumerable decisions of the hon'ble Supreme Court, right from the year 1952 onwards.
17. In Surajpal Singh V. State (AIR 1952 SC 52), while dealing with powers of the High Court in appeal against acquittals, it was observed that, the High Court has full power to review the evidence upon which the order of acquittal was founded. But it is equally well settled that the presumption of innocence of the accused is further reinforced by his acquittal by the trial court, and the findings of the trial court, which had the advantage of seeing the witnesses and hearing their evidence, can be reversed only for very substantial and compelling reasons. In a three Judges' decision of the hon'ble apex court rendered in the year 1976, in Dharamdeo Singh and others V. State of Bihar (AIR 1976 SC 832), it was held that, it is well settled that in an appeal against an order of acquittal, if two conclusions are possible based upon the evidence on record, the High Court should not disturb the findings of acquittal recorded by the Crl. Appeal No. 1737/2009 & Crl. R.P.No.3024/2009 -29- trial court. It would follow as a corollary from that, if the view taken by the trial court in acquitting the accused is not unreasonable, the occasion of reversal of that view would not arise. In Arun Kumar and another V. State of U.P. (AIR 1989 SC 1445) the hon'ble apex court observed that, we need only state that, when the view taken by the Sessions Judge was found by the High Court to be manifestly wrong and that it had led to miscarriage of justice, the High Court is entitled to set aside the acquittal and to convict the accused. Another three Judges' Bench of the hon'ble apex court in Bhim Singh V. State of Haryana (AIR 2003 SC 693) analysed the question in detail. Referring to a catena of earlier precedents it was observed that, an appellate court entertaining an appeal from a judgment of acquittal by the trial court, though entitled to re-appreciate the evidence and to come to an independent conclusion, should not do so as a matter of routine. In other words, if from the same set of facts two views are possible and if the trial court has taken one view, unless the appellate court comes to the conclusion that the view taken by the trial court is either perverse or Crl. Appeal No. 1737/2009 & Crl. R.P.No.3024/2009 -30- such that no reasonable person could come to that conclusion or that such a findings of the trial court is not based on any material on record, it should not merely because another conclusion is possible, reverse the findings of the trial court.
18. In a more recent decision of the apex court in Muralidhar @ Gidda and another V. State of Karnataka ((2014) 5 SCC 730) the hon'ble Supreme Court made an extensive reference to all the earlier precedents on the point and streamlined the factors which need to be borne in mind while dealing with appeals against acquittal. The hon'ble apex court held that, the appellate court must bear in mind the following:-
"(i) There is presumption of innocence in favour of an accused person and such presumption is strengthened by the order of acquittal passed in his favour by the trial court,
(ii). The accused person is entitled to the benefit of reasonable doubt when it deals with the merit of the appeal against acquittal, (iii) Though, the power of the appellate court in considering the appeals against acquittal are as extensive as its powers in appeals against convictions but the appellate court is generally loath in disturbing the finding of fact recorded by the trial court. It is so because the trial court had an advantage of seeing the demeanor of the witnesses. If the trial court takes a reasonable view of the facts of the case, interference by the appellate court with the judgment of acquittal is Crl. Appeal No. 1737/2009 & Crl. R.P.No.3024/2009 -31-
not justified. Unless, the conclusions reached by the trial court are palpably wrong or based on erroneous view of the law or if such conclusions are allowed to stand, they are likely to result in grave injustice, the reluctance on the part of the appellate court in interfering with such conclusions is fully justified, and (iv). Merely because the appellate court on re-appreciation and re-evaluation of the evidence is inclined to take a different view, interference with the judgment of acquittal is not justified if the view taken by the trial court is a possible view. The evenly balanced views of the evidence must not result in the interference by the appellate court in the judgment of the trial court."
19. In yet another decision of the hon'ble Supreme Court in Mahamadkhan Nathekhan V. State of Gujarat ((2014 (14) SCC 589) the apex court, after analysing the entire case law on the subject, made specific reference about the parameters stipulated in Chandrappa V. State of Karnataka ((2007) 4 SCC 415), wherein it is held as follows:-
"(1) An appellate court has full power to review, re-appreciate and reconsider the evidence upon which the order of acquittal is founded.
(2) The Code of Criminal Procedure, 1973 put no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law.
Crl. Appeal No. 1737/2009 & Crl. R.P.No.3024/2009 -32- (3) Various expressions, such as, 'substantial and compelling reasons', 'good and sufficient grounds', 'very strong circumstances', 'distorted conclusions', 'glaring mistakes', etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal.
Such phraseologies are more in the nature of 'flourishes of language' to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion.
(4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.
(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court."
After referring to the above said parameters the apex court in Mahamadkhan Nathekhan's case (supra) observed that, it is the obligation of the High court to consider and identify the error in the decision of the trial court and then to decide whether the error is gross enough to warrant interference. The High Court is not expected to merely substitute its Crl. Appeal No. 1737/2009 & Crl. R.P.No.3024/2009 -33- opinion for that of the trial court, only because of the first two principles in the decision referred to above permit it to do so and because it has the power to do so. It has to correct an error of law or fact significant enough to necessitate overturning of the verdict of the trial court. The High Court has to exercise its discretion very cautiously, keeping in mind the acquittal of the accused and the rights of the victim.
20. In Basappa V. State of Karnataka ((2014) 5 SCC 154) the hon'ble apex court made a scanning of the various decisions relevant on the point. The principles enunciated in the decision in Ganpat V. State of Haryana ((2010) 12 SCC 59) was re-produced. The principles which need to be kept in mind by the appellate court while dealing with the appeals, particularly against an order of acquittal, are enumerated as under:-
"(i) There is no limitation on the part of the appellate court to review the evidence upon which the order of acquittal is founded and to come to its own conclusion.
(ii) The appellate court can also review the trial court's conclusion with respect to both facts and law.
Crl. Appeal No. 1737/2009 & Crl. R.P.No.3024/2009 -34-
(iii) While dealing with the appeal preferred by the State, it is the duty of the appellate court to marshal the entire evidence on record and by giving cogent and adequate reasons may set aside the judgment of acquittal.
(iv) An order of acquittal is to be interfered with only when there are 'compelling and substantial reasons' for doing so. If the order is 'clearly unreasonable', it is a compelling reason for interference.
(v) When the trial court has ignored the evidence or misread the material evidence or has ignored material documents like dying declaration/report of ballistic experts, etc the appellate court is competent to reverse the decision of the trial court depending on the materials placed."
21. The hon'ble Supreme Court had again dealt with the issue in yet another decision in Harbeer Singh V. Sheeshpal and others (AIR 2016 SC 4958). It was held that, it is a cardinal principle of criminal jurisprudence that the guilt of the accused must be proved beyond all reasonable doubt. The burden of proving its case beyond all reasonable doubt lies on the prosecution and it never shifts. Another golden thread which runs through the web of administration of justice in criminal cases is that, if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his Crl. Appeal No. 1737/2009 & Crl. R.P.No.3024/2009 -35- innocence, the view which is favourable to the accused should be adopted.
22. The latest legal precedent of the hon'ble Supreme Court on the point is the ruling in Hakeem Khan and others V. State of M.P. (2017 (3) Supreme 336). It is observed that, the law on reversal of acquittals is well settled and is stated in many judgments. Referring to Murugesan V. State ((2012) 10 SCC 383), meaning of different expressions, "erroneous", "wrong" and "possible" were explained. It is held that, it will be necessary to emphasise that, a possible view denotes an opinion which can exist or be formed irrespective of the correctness or otherwise of such an opinion. A view taken by the court lower in the hierarchical structure may be termed as erroneous or wrong by a superior court upon a mere disagreement. But such a conclusion of the higher court would not take the view rendered by the subordinate court outside the arena of a possible view. Correctness or otherwise of any conclusions reached by the court has to be tested on the basis of what the superior judicial authority perceives to be the correct Crl. Appeal No. 1737/2009 & Crl. R.P.No.3024/2009 -36- conclusion. A possible view, on the other hand, denotes a conclusion which can reasonably be arrived at, regardless of the fact whether it is agreed upon or not by the higher court. The fundamental distinction between the two situations have to be kept in mind. So long as the view taken by the trial court can reasonably be formed, regardless of whether the High Court agrees with the same or not, the view taken by the trial court cannot be interdicted and that of the High Court supplanted over and above the view of the trial court.
23. On an analysis of the dicta contained in the above quoted precedents, question to be considered is whether the findings of the trial court in acquitting accused 1 and 2 are manifestly wrong or totally erroneous or perverse. As cautioned through settled precedents, innocence of the accused remains fortified through the acquittal. It is to be borne in mind that a reversal is possible only if the view taken by the Sessions judge is not at all a possible view that in the ordinary course a man of reasonable prudence would not have taken. We are persuaded to analyse the findings arrived by the trial court, in order to arrive at a conclusion Crl. Appeal No. 1737/2009 & Crl. R.P.No.3024/2009 -37- whether interference for reversal of the acquittal of accused 1 & 2 is warranted or not.
24. While analysing the evidence, the learned Sessions Judge observed that, in the light of the undisputed enmity between the deceased and the family of CW38, there is possibility of the accused attacking the deceased, but there is also possibility of any strangers who are on inimical terms with Najeeb attacking and committing murder of him. It was found that the investigation has not gone deep in order to rule out that possibility. Therefore the said aspect was found as an infirmity in the prosecution. We are constrained to observe that, it is an absurd proposition put forth by the trial court. In a case where ocular witnesses are available to prove the incident and when it is proved through their evidence that accused 1 & 2 had inflicted stab injuries on Najeeb and when it is revealed that there existed enmity between the accused and the deceased, there is absolutely no burden on the part of the investigating agency to make any probe to rule out possibility of any other strangers attacking Najeeb. There is absolutely no infirmity on the part of the Crl. Appeal No. 1737/2009 & Crl. R.P.No.3024/2009 -38- prosecution in this regard.
25. While analysing oral testimonies of PWs 1 & 2, the trial court observed that, they have given more or less identical and corroborative evidence on the substantial aspects of the incident. It was also observed that, certain contradictions, omissions and inconsistencies brought out during their cross-examination regarding various minor aspects of the incident; for example, who pulled Najeeb from the car, stabbed first, the position of Najeeb when he was stabbed etc. will not be fatal to the prosecution case. But regarding Ext.P23 wound certificate issued by PW18 doctor, who examined Najeeb at the health centre, the court below observed that, the wound certificate cannot be relied upon as a conclusive proof since the date of issue of the certificate is not noted. It is to be noted that, even the defence has no contention with respect to genuineness of Ext.P23. On the other hand, Ext.P23 document bears the date of the certificate as 24-08-2006. PW18 had deposed that Ext.P23 is the certificate issued by him after examining Najeeb at 8.30 a.m. on 24-08-2006. The history and alleged cause of the Crl. Appeal No. 1737/2009 & Crl. R.P.No.3024/2009 -39- injury mentioned therein is; "the stab injury was caused with a knife at about 8 a.m. on 24-08-2006 near Mannakkadukunnu Madrassa (Pothupetty)". PW18 deposed that Najeeb had sustained an incised wound of 5 x 1.5 c.m. size on his left leg with severe bleeding and cut of blood vessel was suspected. He deposed that Najeeb was referred to a major hospital. It is to be found that the appreciation made by the trial court regarding the evidence of PW18 is totally perverse.
26. While analysing evidence of PWs 1 & 2, the court below observed that, there is serious discrepancy in the testimony of PW1 regarding identity of accused 3 & 4. But while referring to the testimony with respect to the overt acts committed by accused 1 & 2, even after finding that there are no material omission or contradiction or inconsistencies on the substantial aspects of the incident, the court below found the evidence as not acceptable. Regarding the act of pulling out Najeeb through the right front door of the car, the court below observed that, normally it is easy to pull down him through the left front door instead of the right front door. Crl. Appeal No. 1737/2009 & Crl. R.P.No.3024/2009 -40- The court below assumed that there will be obstructions like gear liver, hand brake and steering near the driver's seat and it will be difficult to pull out a person through the driver's seat. Further it is observed that, it will not be possible for all the accused to pulled out Najeeb, because 4 persons cannot be accommodated near the opening. It is to be found that, the evidence of PW1 & PW2 are corroborative of the aspect that they witnessed the accused 1 & 2 pulling out Najeeb, who was sitting on the left front side of the car, through the right door. Both of them had deposed that accused 1 & 2 inflicted various stab injuries on the body of Najeeb, after they pulled out him from the car. Therefore it was totally erroneous on the part of the trial court to discard the evidence of PWs 1 & 2, merely based on presumptions and assumptions of practical hurdles and impossibilities, which are contradictory to the conclusive proof adduced. Further the court below had gone to the extent of observing that, since Najeeb was stabbed in a lying position immediately near to the Maruti car, there is no possibility of PW2 witnessing the actual incident of stabbing. According to the Sessions Judge, it will Crl. Appeal No. 1737/2009 & Crl. R.P.No.3024/2009 -41- be possible only if the window glass of the car was opened and she attempted to see the incident through the open windows. Hence it was found that the evidence adduced in this regard will improbablize the prosecution case. But it is to be noted that, the specific case of PW2 is that she had witnessed accused 1 & 2 inflicting repeated stab injuries on Najeeb, after pulling out him from the car. During cross examination she had categorically mentioned that herself and CWs 2 to 4 had witnessed the incident by standing on the left side of the car. She had again narrated about the overt acts by stating that, after pulling out Najeeb he was laid down on the road and 2nd accused had covered his mouth and at that time accused 1 & 2 had inflicted stab injuries on the head, back and other parts of the body of Najeeb. The above testimony would clearly corroborate the version of PW1, who is another eye-witness to the incident. Hence the findings in this regard are totally perverse.
27. Sri. S. Rajeev, learned counsel appearing for respondents 1 & 2 / accused 1 & 2 contended that it is not safe for this court to bestow much credibility on the evidence Crl. Appeal No. 1737/2009 & Crl. R.P.No.3024/2009 -42- of PWs 1 & 2, because both of them are close relatives of the deceased, one being his nephew and the other being his wife. It is argued that the court cannot sustain a conviction merely based on such interested versions of witnesses related to the victim. Per contra, Sri. B. Raman Pillai, learned Senior counsel appearing for the revision petitioner as well as the Public Prosecutor appearing for the appellant contended that there is no principle that a witness need to be disbelieved merely because he is related to the victim (deceased). Reliance was placed in this regard to a ruling of the hon'ble Supreme Court in Hukam Singh and others V. State of Rajasthan ((2000) 7 SCC 490). Referring to earlier precedents of the apex court, it was observed in the said judgment that, it is an erroneous perception that such witnesses are "interested witnesses". The only premise for dubbing them as "interested witnesses" is that they were the kith and kin of the deceased. Why should such witnesses be termed as interested witnesses? If they had seen the occurrence they would certainly have the interest to bring the offenders of the murder of their breadwinner to book. Crl. Appeal No. 1737/2009 & Crl. R.P.No.3024/2009 -43- Normally the kith and kin of the deceased, if they had seen the occurrence, would not absolve the real offenders and involve innocent persons in that murder. We are of the considered opinion that the dictum contained in the above quoted ruling will squarely apply in the case at hand. The evidence of PWs 1 & 2 cannot in any manner be brushed aside as testimony of interested witnesses. Their ocular evidence corroborated by other materials need to be considered as most genuine and trustworthy.
28. The court below further analyzed Ext.P15 series photographs and observed that the collection of blood on the road margin on the back of the Maruti car, would only indicate that the stab was done from the back of the car and not on the side of the car as contended by PWs 1 & 2. But on a perusal of Ext.P5 series photographs it is evident that the blood marks contained therein would indicate that, blood had flowed from the side of the right back wheel towards left side, to the road. It is pertinent to note that, these are not matters which are in dispute of the defence and there was no cross-examination of the occurrence witnesses on these Crl. Appeal No. 1737/2009 & Crl. R.P.No.3024/2009 -44- aspects. While analysing the oral testimony of PW3, the learned Sessions Judge observed that, the witness deposed that he saw a Maruti car parked in front of the Lancer car and that there is no case for the prosecution that, after the incident the Lancer car was brought to the back of the Maruti car. But, on an analysis of the evidence of PW3, it is clear that what was stated by him is that, while he was reaching the place of occurrence on a motor cycle, he saw the body of a person lying there injured and a white Lancer car proceeding from the front towards Manjeri direction. The witness had never deposed that he had seen the Maruti Car parked in front of the Lancer car. What was mentioned by him is that even before seeing the Lancer car he had seen a Maruti car parked there. Therefore it is to be noted that there was total erroneous appreciation of the evidence on the part of the trial court.
29. While appreciating the medical evidence, the trial court observed that, the width of the blade of MO1 knife is 3 c.m. and that of MO2 knife is 2.5 c.m. It was noticed that there were injuries having the length of 4 c.m. The court Crl. Appeal No. 1737/2009 & Crl. R.P.No.3024/2009 -45- below concluded that it will not be possible in the ordinary course to cause such injury with MO1 & MO2, because the maximum width of the wound will only be 3 c.m. The above proposition is basically wrong considering the well settled principles of medical jurisprudence. When a stab injury is caused with a knife, normally the length of the wound will be longer than the width of the blade of the knife. PW6 Doctor, while cross-examined, categorically deposed that, width of the wound need not be corresponding to the thickness of the blade and the length of the wound also need not be corresponding to the width of the blade. There can be variations between the length of the wound and the width of the blade, is his opinion. He had further deposed that, if there is no rocking of the weapon or movement on the part of the victim or the assailant, the length of the wound could exactly be the width of the blade penetrating into the body. He further deposed that, on seeing the injury on the body he cannot say whether there was movement on the part of the deceased or weapon or assailant. Under the above mentioned circumstances, it has to be held that, appreciation of the Crl. Appeal No. 1737/2009 & Crl. R.P.No.3024/2009 -46- medical evidence was totally erroneous and the findings rendered by the trial court on those aspects are highly perverse. It is to be noted that, despite detailed cross- examination of PW6 the defence has not put forth any specific question to the expert witness to the effect that, the injury found on the body of Najeeb was not possible to be inflicted by MO1 or MO2 or even by MO7. Therefore the findings of the lower court in this respect was only an erroneous presumption.
30. It is surprising to note that, despite specific findings contained in Ext.P42 report of the chemical examination that human blood was detected on MO1 and MO2 knives, the learned Sessions Judge erroneously observed that no blood stains were detected on MO1 and MO2. Therefore the findings that there was no possibility of usage of MO1 & MO2 in the incident, is totally erroneous. Learned counsel appearing for the accused 1 & 2 contended that there was failure on the part of the investigating agency to prove that the blood stains detected on the weapons are that of the deceased, by comparing the blood group with that Crl. Appeal No. 1737/2009 & Crl. R.P.No.3024/2009 -47- of the deceased's blood. But, in a case where the weapons are discovered on the basis of disclosure made by the accused and when it is proved that the weapons contained blood stains, credibility of such evidence will not be lost because of the failure to fix grouping of the blood, as settled in various precedents.
31. The impugned judgment contains serious criticism on the aspect of registration of the F.I.R at Edavanna Police Station, instead of Manjeri Police Station which is situated only about half a kilometer away from the District Hospital, Manjeri, especially in view of the fact that Ext.P34 intimation given from the District Hospital was addressed to Manjeri Police Station. Observations made by the learned Sessions Judge is that, lodging of the F.I. Statement before the Edavanna Police Station is very doubtful and it will probabilize the defence version that there was some malicious intention in lodging Ext.P1 before that Police Station. The learned Sessions Judge found that, when the F.I. Statement was lodged before a wrong police station, ordinarily what was expected is that the said police would Crl. Appeal No. 1737/2009 & Crl. R.P.No.3024/2009 -48- forward the information to the proper police station or if the crime is registered in a wrong police station that has to be presented to the proper police station. Hence it is found that the mistake committed in this regard is not inadvertent and it creates doubt regarding genuineness of the investigation. Evidently, it has come out that the place of occurrence with respect to one part of the incident in which the 5th accused had inflicted stab injury on the left leg of Najeeb, is within the limits of Edavanna Police Station. Therefore there is absolutely no mistake in registering the case at Edavanna Police station. The investigation conducted by the Circle Inspector of Police, Wandoor was with proper authority. More over the defence had not raised any dispute regarding competence or authority of the Investigating Officer. Hence the above said aspects pointed out by the learned Sessions Judge had no material relevance.
32. It is pertinent to note that, the trial court had elaborate discussions in the judgment with respect to recovery of MO8 'Nenjek'. Observation is that, PW28 had given much importance to the seizure of MO8, which is not a Crl. Appeal No. 1737/2009 & Crl. R.P.No.3024/2009 -49- weapon used in the commission of offence. The Sessions Judge had criticised the investigating officer for recovering that weapon, even before going to the place of occurrence,. Finding is that in a murder case an investigating officer is expected to do such things in the order of priority. It was observed that, the action taken by the investigating Officer in the matter of recovery of MO8 is highly suspicious and it probabilizes the defence case. In fact, MO8 'Nenjek' was recovered on the basis of an information received from the District Hospital that somebody had thrown out that weapon from a car which came to the compound of the Hospital, in a suspicious manner. But the prosecution had no case that MO8 'Nenjek' was used in the commission of the offence. Therefore, merely because the Investigating Officer had recovered an object based on an information received, that will not affect the prosecution case in any manner. The incident as well as the role of the accused are proved through independent evidence without reliance to recovery of MO8. Hence reliance placed by the Sessions Court on the aspect of recovery of MO8 was totally insignificant and perverse. Crl. Appeal No. 1737/2009 & Crl. R.P.No.3024/2009 -50-
33. At one place the court below observed that the type of omissions, contradictions and inconsistencies in the evidence of PWs1 & 2 on the minor aspects are insignificant and will not be fatal to the prosecution. In another part of the judgment of the trial court it is observed that, all the contradictions, omissions and inconsistencies in the evidence of PW1 and PW2, if taken independent, may appear to be very significant and when all the contradictions together is considered it appears to be fatal to the prosecution. But the reasons mentioned is only that there are minor discrepancies as to who pulled Najeeb from the car and who stabbed first and the position of Najeeb when the stab injuries were inflicted etc. The court below had miserably failed to appreciate that both PW1 & 2 had categorically narrated of witnessing the incident and their evidence are corroborative of each other and is strongly supported by the circumstances deposed to by PW3, about them witnessing the incident at the spot of the occurrence. Their presence at the spot is further corroborated by the evidence of PW5. But the court below had emphasized about the lack of independent ocular Crl. Appeal No. 1737/2009 & Crl. R.P.No.3024/2009 -51- evidence, by presuming that the occurrence was on a public road and that there would have heavy traffic during the morning hours. However, the court itself observed that, it cannot be expected that all the persons passing through will get down or stop or remain to see the incident. It is also observed that, nowadays even if one has seen the incident he will not be prepared to be a witness before the police and before the court and such persons will only attempt to escape from the scene. Despite such observations, the court below found that, PW3 in his deposition had stated that when he reached the place some persons gathered there. Hence the finding is that, there were other occurrence witnesses available. It is observed that the investigation ought to have found out independent occurrence witnesses to establish the prosecution case. But, on an appreciation of the evidence of PW3 it is clear that, his testimony is that he reached the spot only after the occurrence and that he had only witnessed a white Lancer car being taken away from the scene. His testimony is only to the effect that, after he reached there some persons gathered. Therefore it is to be noticed that Crl. Appeal No. 1737/2009 & Crl. R.P.No.3024/2009 -52- even PW3 does not have a case that anybody other than PW1, PW2 and CW2 to CW4 were present at the scene at the time of the occurrence of inflicting the stab injuries. The court below, without any basis, observed that, there are probabilities in the contention of the accused that it is not the accused who followed Najeeb and attacked him, but it is Najeeb and PW1 who followed the accused and attempted to attack them on account of their enmity. For observing such a probability, the court below found that, if the accused 1, 2 & 5 had intention to cause death of Najeeb they could have done it from the place where the first incident occurred, when PW5 had gone to take his car after leaving Najeeb alone near the tea shop. Such a probability had no basis at all because of the specific evidence of PW5 that he released Najeeb from the catch hold of accused 1 & 2 and that he pushed the 5th accused when he attempted to stab Najeeb. It is the case of PW5 that the stab fell on the left leg of the deceased. But there is nothing in the evidence of PW5 to the effect that, even after causing the stab injury on the leg of the deceased, accused 1, 2 & 5 were present at the scene. Crl. Appeal No. 1737/2009 & Crl. R.P.No.3024/2009 -53- Therefore the probability observed by the lower court is totally baseless and perverse.
34. The court below had discarded the evidence of discovery of weapons based on disclosure of the accused, which ought to have been accepted as a corroborative piece of evidence coming within the purview of Section 27 of the Evidence Act. Merely on erroneous observation that no blood stains were noticed in the seizure mahazar prepared for recovery of MO1 & MO2, the evidence of recovery could not have been discarded, especially when it is brought out through chemical examination that those weapons contained blood stains. Learned counsel appearing for accused 1 & 2 had raised a contention that the discovery of MO1 & MO2 cannot be accepted as an incriminating evidence coming within the purview of Section 27 of the Indian Evidence Act. The argument is that, there is illegality and infirmity with respect to the recovery because the investigating officer had obtained the signature of accused 1 & 2 in Ext.P5 and P24 recovery mahazars. It is contended that, obtaining of signature of the accused in the disclosure statement will Crl. Appeal No. 1737/2009 & Crl. R.P.No.3024/2009 -54- vitiate the recovery and will turn the same as illegal. For controverting the above said argument, the learned Public Prosecutor had pointed out a decision of the hon'ble Supreme Court, in State of Rajasthan V. Teja Ram and others ((1999) 3 SCC 507 = AIR 1999 SC 1776). The apex court observed that, the prohibition under Section 162 (1) of Cr.P.C. against collecting of signature of the person whose statement was reduced into writing during the interrogation, is in peremptory terms. But it is observed that, it is more a direction to the investigating officer than to the court, because the policy underlying the rule is to keep the witness free to testify in court unhampered by anything which the police claim to have elicited from him. But if any investigating officer, ignorant of the said provision, secures signature of the person concerned in the statement, it does not mean that the witness's testimony in court would thereby become contaminated or vitiated. The court will only reassure the witness that he is not bound by such statement albeit his signature finding a place thereon. Apart from that, it is observed that, the prohibition contained in sub-section Crl. Appeal No. 1737/2009 & Crl. R.P.No.3024/2009 -55- (1) of Section 162 is not applicable to any proceedings made as per Section 27 of the Evidence Act, 1972. It is so clearly provided in sub-section (2) of Section 162. The resultant position is that the investigating officer is not obliged to obtain signature of the accused in any statement attributed to him while preparing the seizure mahazar for recovery of any article covered by Section 27 of the Evidence Act. But if any signature has been obtained by the investigating officer, there is nothing wrong or illegal about it. Hence the apex court found that there is no force in the contention that signatures of the accused in seizure memos would vitiate the evidence regarding the recovery. Hence the argument of the counsel in this regard need to be discarded.
35. Learned counsel for respondents 1 & 2 (accused 1 & 2) made consistent efforts before this court to establish that, this is a case where the prosecution had failed to adduce any independent evidence through such persons who were present at the scene. It is argued that the non- examination of any independent witness is a factor which shall be considered in favour of the accused and that the Crl. Appeal No. 1737/2009 & Crl. R.P.No.3024/2009 -56- accused 1 & 2 are entitled to the benefit of doubt because of such failure. The Public Prosecutor appearing for the appellant contended that, when overwhelming evidence are available, non-examination of any independent witness is not fatal to the prosecution. He had relied on a latest decision of the hon'ble Supreme Court in Vijendra Singh V. State of U.P. (AIR 2017 SC 860). The apex court observed that, if already overwhelming evidence is available, examination of other witnesses would only be a repetition or duplication of the evidence already adduced. Non-examination of such other witnesses may not be material, if the witnesses already examined are reliable and the testimony coming from their mouth is unimpeachable. The court can safely act upon it, uninfluenced by the factum of non-examination of other witnesses. With respect to the relevance of the rule of benefit of doubt the Public Prosecutor controverted that the benefit of doubt cannot be extended in favour of an accused merely because there exists some fanciful doubts or lingering suspicions. Attention of this court was drawn to the observation contained in the ruling of the hon'ble Supreme Crl. Appeal No. 1737/2009 & Crl. R.P.No.3024/2009 -57- Court in Shivaji Sahebrao Bobade V. State of Maharashta (1974 (1) SCR 489) which are as follows;
".......The dangers of exaggerated devotion to the rule of benefit of doubt at the expense of social defence and to the soothing sentiment that all acquittals are always good regardless of justice to the victim and the community, demand special emphasis in the contemporary context of escalating crime and escape. The judicial instrument has a public accountability. The cherished principles of golden thread of proof beyond reasonable doubt which runs through the web of our law should not be stretched morbidly to embrace every hunch, hesitancy and degree of doubt...... The evil of acquitting a guilty person light - heartedly as a learned author Clanville Williams in 'Proof of Guilt' has sapiently observed, goes much beyond the simple fact that, just one guilty person has gone unpunished. If unmerited acquittals become general, they tend to lead to a cynical disregard of the law, and this in turn leads to a public demand for harsher legal presumptions against indicted 'persons' and more severe punishment of those who are found guilty. Thus too frequent acquittals of the guilty may lead to a ferocious penal law, eventually eroding the judicial protection of the guiltless......a miscarriage of justice may arise from the acquittal of the guilty no less than from the conviction of the innocent...."
The above principle was reiterated by the apex court in Sucha Singh and another V. State of Punjab (AIR 2003 SC 3617). It is observed that, exaggerated devotion to the rule of benefit of doubt must not nurture fanciful doubts Crl. Appeal No. 1737/2009 & Crl. R.P.No.3024/2009 -58- or lingering suspicion and thereby destroy the social defence. Justice cannot be made sterile on the plea that it is better to let hundred guilty escape than punish an innocent. Letting guilty escape is not doing justice according to law. Prosecution is not required to meet any and every hypothesis put forward by the accused. A reasonable doubt is not an imaginary, trivial or merely possible doubt, but a fair doubt based upon reason and commonsense. It must grow out of the evidence in the case. If a case is proved perfectly, it is argued that it is artificial; if a case has some flaws inevitable because human beings are prone to err, it is argued that it is too imperfect. One wonders whether in the meticulous hypersensitivity to eliminate a rare innocent from being punished, may guilty persons must be allowed to escape. Proof beyond reasonable doubt is a guideline, not a fetish, is the finding. Based on the principle as mentioned above, we are of the opinion that this is not a fit case where the benefit of doubt can be extended in favour of accused 1 & 2 by applying any exaggerated devotion to the rule of 'benefit of doubt'.
Crl. Appeal No. 1737/2009 & Crl. R.P.No.3024/2009 -59-
36. Lastly, it is argued that there was a counter case instituted against PW1 and others and the court below had omitted to take note of those facts. But nothing is available on record about such a case. However, this court through it's registry had called for a report from the Sessions Court concerned. It was revealed that a private complaint as Crl. M.P. No.4244/2007 was filed long after the incident, on 25- 11-2007, before the Magistrate's court. Evidently the said private complaint was registered as CC No.295/2008 on 19- 04-2008 by the Magistrate Court. Based on submissions made to the effect that the present case (SC No.241/2007) is connected to the said case, the Magistrate concerned had committed the case to the Sessions Court. The Sessions Court renumbered the case as SC 349/2008. Both the cases were tried and disposed of simultaneously. It is brought out that the case registered on the basis of the private complaint was also ended in acquittal. Therefore the said fact situation has no bearing on the merits of the case at hand.
37. None of the reasons mentioned in the impugned judgment, as basis for arriving at the conclusion of acquittal Crl. Appeal No. 1737/2009 & Crl. R.P.No.3024/2009 -60- of accused 1 & 2, are sustainable either on law or on facts. There are manifest errors and total perversity in appreciation of evidence available on record, especially the ocular evidence of PW1, PW2, PW3 and PW5, which was corroborated through the medical evidence of PW18 and PW6, and further fortified by the discovery of MO1 & MO2 from the places where they were hidden by accused 1 & 2, based on their disclosure. Usage of those weapons in the occurrence stands confirmed by the fact that those weapons were reportedly stained with human blood. The observations and findings of the court below in discarding the above evidence by pointing out certain failures on the part of the investigating agency, is a totally erroneous and perverse approach. Those findings have resulted in total miscarriage of justice. There is clear and evident misappreciation of the evidence on record and total misapplication of the so called pristine rule of the 'benefit of doubt'. All these aspects would definitely persuade this appellate court to arrive at a conclusion that this is a fit case where the appellate jurisdiction can be exercised based on independent review Crl. Appeal No. 1737/2009 & Crl. R.P.No.3024/2009 -61- and appreciation of the entire evidence. We are fully convinced that there occurred a manifest error and perverse approach from the side of the trial court, in the matter of acquittal of accused 1 & 2. The view taken by the trial court in acquitting the accused cannot be termed as a possible view formed on a prudent appreciation of the evidence on record. Hence we are inclined to reverse the findings of acquittal with respect to accused 1 & 2.
38. Even though the prosecution had alleged offence under Section 120 B of Indian Penal Code, there is no evidence available to establish that there occurred a criminal conspiracy between the accused to commit murder of Najeeb. Hence we are of the opinion that the accused are not liable to be punished for any offence under Section 120B of IPC. Even though the prosecution had alleged offence under Section 201, no evidence is adduced to prove that the accused had caused any evidence to disappear. Hence the prosecution has not made out any case for convicting the accused under Section 201 IPC. The accused were also charged of an offence under Section 114. Any act of Crl. Appeal No. 1737/2009 & Crl. R.P.No.3024/2009 -62- abetment, even if alleged, can only be raised against accused No.5. Since the said accused is not alive there is no scope for imposing conviction under Section 114.
39. It has come out in evidence that accused 1 & 2 had caused wrongfull restrainment to the deceased and to others by putting across the Lancer car in front of the Maruti car in which they were travelling. So also it has come out in evidence of PW5 that accused 1 & 2 had caught hold of Najeeb in the incident which happened in the morning in front of the Madrassa. According to PW5 he had released Najeeb from their clutches and at that time the 5th accused had inflicted a stab injury on Najeeb. Eventhough there is no clear evidence that accused 1 & 2 shared a common intention with accused No.5 in causing the stab injury, there is evidence to the effect that they had wrongfully restrained Najeeb in the said incident. Therefore we are of the opinion that the prosecution had succeeded in proving the guilt of accused 1 & 2 under Section 341 IPC, though the offence charged under Section 324 IPC could not be proved. Hence we are of the opinion that accused 1 & 2 are liable to be Crl. Appeal No. 1737/2009 & Crl. R.P.No.3024/2009 -63- convicted under Section 341 IPC.
40. Coming back to the evidence with respect to the charge under Section 302 IPC, as already discussed, this court is convinced that the prosecution had succeeded in establishing the guilt of accused 1 & 2. The evidence on record would indicate that both of them had committed criminal acts of inflicting fatal injuries on the body of Najeeb in furtherance of their common intention to cause death or to inflict such injury which are fatal enough to cause death. Therefore both accused 1 & 2 are liable to be punished under Section 302 IPC.
41. Hence, the judgment of acquittal passed by the Additional Sessions Court, Fast Track No.III (Ad-hoc), Manjery in SC No.241/2007 is hereby set aside to the extent it acquitted accused 1 & 2 for the offence charged under Sections 302 & 341 IPC. Accused No.1 & 2, who are respondents 1 & 2 in Crl. Appeal No.1737/2009, are hereby convicted for the offences under Sections 302 & 341 IPC. They were present before this court on today, pursuant to the direction issued Crl. Appeal No. 1737/2009 & Crl. R.P.No.3024/2009 -64- under Section 353 (6) Cr.P.C. Both of them are taken into custody. They were heard on the question of sentence after affording time for their reflection.
42. In view of the above judgment Crl.R.P. No.3024/2009 is hereby disposed of without any separate order.
Dated this the 25th day of July, 2017.
Sd/-
C.K. ABDUL REHIM, JUDGE.
Sd/-
A.M. BABU, JUDGE.
AMG Crl. Appeal No. 1737/2009 & Crl. R.P.No.3024/2009 -65-
43. Both the accused 1 & 2 (respondents 1 & 2 in the Crl. Appeal) were heard on the question of sentence, under Section 235 (2) of Cr.P.C., after allowing them time for their reflections.
44 Accused No.1 said that there are problems in his house. Three children of deceased Najeeb are there in the house. Marriage of the 2nd daughter of Najeeb is fixed to 17th of next month. Hence he requested for a lesser punishment.
45. Accused No.2 said that his aged mother is there in the house. Three children of deceased Najeeb are under their protection. Marriage of the 2nd daughter of deceased Najeeb is fixed to be conducted on 17th of next month. He is having 4 children, 2 sons and 2 daughters. The youngest child is only 2 years of age. The youngest daughter of deceased Najeeb is also studying in a Madrassa. Apart from both the accused there is nobody to look after these children. Hence he prayed for a lesser punishment.
Crl. Appeal No. 1737/2009 & Crl. R.P.No.3024/2009 -66-
46. The crime committed by the convicts is a cold blooded murder in open day light on a public road, without any sudden provocation, by chasing the car in which the deceased was travelling, with a pre-plan and preparation to commit such offence. However, the offence proved against them will not fall within the category of 'rarest of rare' cases in which death sentence can be imposed. Hence both of them are imposed with sentence of imprisonment for life and with fine of Rs.1,00,000/- (Rupees One lakh only) each and in default to undergo rigorous imprisonment for a period of one year. Both of them are sentenced to undergo simple imprisonment for 3 months under Section 341 IPC. The substantive sentence of imprisonment shall run concurrently. Out of the amount of fine, a sum of Rs.1,50,000/- (Rupees One lakh and fifty thousand only) shall be paid as compensation to PW2, who is the present wife of the deceased, under Section 357 (1) Cr.P.C.
47. Set off is allowed under Section 428 Cr.P.C. in case the Government exercises the power vested under Sections 432 or 433 of Cr.P.C.
Crl. Appeal No. 1737/2009 & Crl. R.P.No.3024/2009 -67-
48. The registry is directed to issue warrants of committal for confinement of the convicts to jail.
Dated this the 25th day of July, 2017.
Sd/-
C.K. ABDUL REHIM, JUDGE.
Sd/-
A.M. BABU, JUDGE.
AMG True copy P.A. to Judge