Kerala High Court
Jahidul Huck vs State Of Kerala Represented By on 20 February, 2010
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
THURSDAY, THE 7TH DAY OF DECEMBER 2017/16TH AGRAHAYANA, 1939
CRL.A.No. 590 of 2010 ( )
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AGAINST THE ORDER/JUDGMENT IN SC 114/2006 of III ADDITIONAL SESSIONS
JUDGE, KOLLAM DATED 20.02.2010
APPELLANT(S):
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JAHIDUL HUCK,C.NO.4772,
CENTRAL PRISON,TRIVANDRUM-12
BY ADVS.SMT. MANJU ANTONY [BY ORDER]
SMT.MANJU ANTONY
RESPONDENT(S):
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STATE OF KERALA REPRESENTED BY
PUBLIC PROSECUTOR, HIGH COURT OF KERALA,
ERNAKULAM.
R1 BY ADV. NICHOLAS JOSEPH, PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 23.6.2017
ALONG WITH CRA. 545/2012, THE COURT ON 07-12-2017, DELIVERED THE
FOLLOWING:
C.K.ABDUL REHIM & A.M.BABU, JJ.
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Crl.A.Nos.590/2010 and 545/2012
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Dated : 7th December, 2017
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JUDGMENT
A.M.Babu, J The additional sessions judge-III, Kollam in SC 114/2006 convicted the accused persons who were six in number. They were convicted under Secs 120 B, 302, 396, 397, 399 and 449 of the Indian Penal Code ('IPC' for short). Crl.A No.590/2010 is filed by the sixth accused. Accused 1 to 5 filed Crl.A.No.545/2012.
2. Prosecution case is stated below: The accused persons who are friends came to Kollam from West Bengal in search of employment. They were working at different places in and around Kollam. They targeted the house of one Koshy to commit dacoity. The conspiracy to do the crime hatched when they assembled from 2.10.2005 to 8.10.2005 in a shed where resided the first accused. Accused 1 and 2 purchased an air pistol on 3.10.2005 from a shop named Kochin Armoury at Ernakulam. Accused 2 and 3 on 4.10.2005 bought a 2 Crl.A.Nos.590/2010 and 545/2012 cutting knife (kripan) from a shop by name Mitra Metals at Kottiyam. They on the same day bought a small knife from a footpath vendor at Kottiyam. The incident had taken place on 8.10.2005 in the house of Koshy at Churakulam in Anchal village of Kollam district. By noon on that day accused 1 and 5 came to the compound of the house of Koshy to watch the surroundings and to ascertain the way to escape after committing dacoity. Two bath towels were purchased by the accused persons in the evening of 8.10.2005. At about 6.30 p.m on the same day they entered the house compound of Koshy having made preparation to commit dacoity. They were armed with deadly weapons. They approached Koshy as if they had come there to get some job in the brick factory of Koshy. Koshy went inside the house to make a telephone call. At that time Koshy's servant, Karuppuswamy by name, was standing in the car porch of the house of Koshy. Realising that Karuppuswamy would be an obstruction to the commission of dacoity, his murder was committed by the accused persons. The second accused stabbed on the abdomen of 3 Crl.A.Nos.590/2010 and 545/2012 Karuppuswamy with a steel knife while the latter was kept under the hold of the fifth accused. Thereafter the accused persons barged into the house. The first accused pointed the 'kripan' at Koshy's wife (CW1/PW1) and threatened to kill her. The third accused put a bath towel around the neck of CW1(PW1) and held her. The former put the latter in fear of death pointing the knife at her and demanded the key of the safe. He stabbed her with the knife on her right shoulder and caused her hurt. He inflicted an injury on her left thumb with the knife. He then snatched a gold chain which she wore on her neck. The third accused then snatched a gold chain of Koshy's mother (CW3) from her neck. He pushed her down. Accused 4 and 5 put Koshy's daughter-in-law (CW2/PW2) in fear of death and made her to sit on the sofa. The fifth accused put a bath towel around the neck of CW2 (PW2) and demanded Rs 1 lakh. He dragged her to the sit out of the house and took from her by force two gold bangles and a gold finger ring worn by her. Accused 1,2 and 6 went inside Koshy's bedroom. The first accused pointed the 'kripan' at Koshy, thrust him on the cot and demanded 4 Crl.A.Nos.590/2010 and 545/2012 the key of the safe. Koshy asked his wife to give the key and from her the third accused collected it. Accused 2 and 3 opened the drawer of the table and took currency notes totalling Rs.19,730/-, a lady's wrist watch and a mobile phone. Accused 1 to 4 and 6 made Koshy to lay on the floor. The fourth accused took the 'kripan' from the first accused and cut on the neck of Koshy with it. While the accused persons were returning after committing the crimes inside the house, the fourth accused with the 'kripan' cut on the neck of Karuppuswamy who was lying in the car porch with the injury he already sustained. Koshy and Karuppuswamy succumbed to the injuries they sustained. The accused persons who committed the murder of Koshy and Karuppuswamy abandoned the weapons to cause disappearance of evidence in order to screen themselves from legal punishment. The accused committed the offences in furtherance of their common intention.
3. Koshy's widow (CW1/PW1) gave the first information statement. A special investigation team headed by the circle inspector of Anchal police station 5 Crl.A.Nos.590/2010 and 545/2012 conducted the investigation. The said circle inspector filed the charge-sheet. The judicial magistrate-I, first class, Punalur committed the case to the court of session, Kollam division. The learned sessions judge made over the case to the 3rd additional session judge for disposal.
4. After hearing the prosecution and the defence the learned trial judge framed charges against the accused persons under Secs 120B, 201, 302, 307, 396, 397, 399 and 449 of IPC read with IPC 34. The charges were read over and explained to the accused persons through an interpreter. They pleaded not guilty and claimed to be tried.
5. PWs 1 to 31 were examined and Exts P1 to P63 were marked on the side of the prosecution. MOs 1 to 52 were also marked.
6. The learned trial judge on completion of the prosecution evidence examined the accused persons under Sec.313 of the Code of Criminal Procedure ('Cr.P.C' for short). They denied the incriminating evidence and circumstances against them. The trial court found after hearing both sides that the accused were not entitled to 6 Crl.A.Nos.590/2010 and 545/2012 acquittal under Sec.232 of Cr.P.C. They were therefore called upon to enter on defence and adduce evidence. But no evidence was adduced on their side.
7. The court below acquitted all the accused of the charges under Secs 201 and 307 of IPC. They were convicted under Secs 120 B, 302, 396, 397, 399 and 449 of IPC read with IPC 34. The sentences imposed on them were (i) rigorous imprisonment for 7 years under Sec.120B of IPC, (ii) imprisonment for life and a fine of Rs.10,000/- each under Sec.302 of IPC, (iii) rigorous imprisonment for 7 years and a fine of Rs.3000/- each under Sec.396 of IPC,
(iv) rigorous imprisonment for 7 years under Sec.397 of IPC and (v) rigorous imprisonment for 3 years and a fine of Rs.1000/- each under Sec.449 of IPC. Separate sentences in default of payment of the fine amounts were also imposed. No separate sentence was awarded under Sec.399 of IPC stating that sentences were imposed under Secs 396 and 397 of IPC. The substantive sentences of imprisonment under Secs 120B, 396 and 449 of IPC were directed to run concurrently with the sentence of imprisonment for life imposed under Sec.302 of IPC. But 7 Crl.A.Nos.590/2010 and 545/2012 the sentence imposed under Sec.397 of IPC was directed to run consecutively.
8. Heard Sri.Ranjith B.Marar, the learned counsel for the first accused, Sri.V.S.Thoshin, the learned counsel for accused 2 and 4, Smt.Rajatha P.Jacob, the learned counsel for accused 3 and 5 and Sri.Manju Antony, the learned counsel for the sixth accused. Heard the learned public prosecutor Sri.Nicholas Joseph.
9. The prosecution alleges that the accused persons conspired to commit dacoity in the house of Koshy. The accused allegedly committed house-trespass, dacoity and murder. It was at around 7.00p.m on 8.10.2005 the incident. The locale of the crime was Koshy's house. The death of Koshy and Karuppuswamy on 8.10.2005 is not disputed. It is also not in dispute that they had a homicidal death. They were admittedly murdered, whoever be the culprits. The said undisputed fact is proved as well.
10. Koshy and Karuppuswamy were brought dead to St. Joseph Hospital at Anchal on 8.10.2005. PW26 was the casualty medical officer there. He examined the 8 Crl.A.Nos.590/2010 and 545/2012 dead bodies of Karuppuswamy and Koshy at 7.45 p.m and 7.50 p.m respectively. After such examination PW26 issued Exts P29 and P30 wound certificates respectively. PW26 on examination of the corpse of Karuppuswamy saw a deep incised wound on the right side of the neck and another incised wound on the abdomen. PW26 noted a deep incised wound on the neck of Koshy too. PW26 deposed that the heads of both the dead bodies were hanging. PW26 was not cross-examined. His evidence alone is sufficient to prove that Koshy and Karuppuswamy were murdered.
11. PW27 was working as the assistant professor of forensic medicine at the medical college hospital, Thiruvananthapuram on 9.10.2005. At 12.05 p.m on that day she conducted post-mortem examination on the dead body of Koshy. Ext P36 is the autopsy certificate. PW27 noted 33 ante-mortem injuries on the dead body. She opined that injury no.1 was the fatal injury. PW27 described injury no.1 as follows:
1. Incised wound 14 x 5.5 x 3cm obliquely placed on the front and right side of neck across midline, with its 9 Crl.A.Nos.590/2010 and 545/2012 lower left end 3.5cm to the left of midline and 6.5cm below jawbone and upper right end 6cm below the tip of mastoid process. Jugular vein on both sides, right carotid artery, larynx at the level just below the hyoid bone and the right transverse process of third cervical vertebrae (3.5x1x1cm) were seen cleanly cut. The wound was deeper on its right side. Right ventricle of heart contained air and frothy blood.
Injury no.1 deposed to by PW27 proves that Koshy was murdered.
12. PW28 on 9.10.2005 conducted post-
mortem examination on the dead body of Karuppuswamy. PW28 was the senior lecturer of forensic medicine at the medical college hospital, Thiruvananthapuram. Ext P38 is the autopsy certificate issued by him. He noted 11 ante- mortem injuries. Injury nos 1 and 2 as noted in Ext P38 and as deposed to by PW28 are reproduced below:
1. Incised wound 10x8x2 to 2.7cm, horizontally placed on the front of neck (more towards the right side), with its lower margin 5.5cm above root of neck, its deeper right end was 7cm below the mastoid process and left end 3cm below left angle of jaw, jugular veins on both sides, the right carotid artery, and the upper border of the thyroid cartilage and the right transverse process of 5th cervical vertebra over an area of 1.5x0.5x1 cm were cleanly cut. Right ventricle of heart contained air and frothy blood.
2. Incised penetrating wound 6.5x2.5 cm, oblique on the middle of front of abdomen, with its upper inner rounded end 10 Crl.A.Nos.590/2010 and 545/2012 in the midline 2cm below the tip of the breast bone, the lower left end was sharply cut. One track from the wound was directed backwards, upwards and to the right for a total minimum depth of 8cm, piercing through the upper border of the liver and the adjacent diaphragm and terminating by puncturing the front surface of lower lobe of right lung to produce a wound 1x0.7x1.2cm at a point 1cm above its lower margin. The right lung was seen collapsed. Another track was seen directed backwards, to the right and slightly downwards for a total minimum depth of 7cm piercing the lower border of liver and terminating in the 9th intercostal space at the back (near the vertebral column), therein making a wound 3x2x2cm. The right chest cavity contained 100 ml of fluid blood, the peritoneal cavity contained 50 ml of fluid blood with retroperitoneal haemorrahage on the right side.
Both those injuries were fatal as deposed to by PW28. The nature of injuries and the evidence of PW28 prove that Karuppuswamy was also murdered.
13. The prosecution proved the death of Koshy and Karuppuswamy to be murder. The question is whether the accused persons were the murderers.
14. The prosecution cited three witnesses as eyewitnesses. One of them (CW3, mother of Koshy) died before the trial. The other two eyewitnesses were examined as PWs 1 and 2. PW1 is Koshy's wife. PW2 is Koshy's son's wife. The first information statement was 11 Crl.A.Nos.590/2010 and 545/2012 given by PW1. It was recorded and the FIR was registered by CW83 who was the sub-inspector of Anchal police station. CW83 also died before the trial. Hence the FIR was marked through PW31 who was the inspector of Anchal police circle and who was acquainted with the signature of CW83. Exts P1 and P1(a) are the FI statement and FIR respectively.
15. PWs 1 and 2 deposed that themselves, Koshy, CW3, PW2's baby and Karuppuswamy were residing in the house of Koshy. PW1 stated that her husband was running a brick manufacturing unit in the house compound itself. PW1 asserted that she knew all the accused persons. According to PW1, the first accused had worked in the kiln of Koshy. PW1 added that she had seen the other accused persons when they had come to see the first accused while he was working in the kiln. PWs 1 and 2 identified every accused while narrating the overt acts. Sri.Manju Antony, the learned counsel for the 6th accused, submitted that accused 2 to 6 were strangers to both PWs 1 and 2. The learned counsel pointed out that the name of the first accused alone was stated in the FI statement 12 Crl.A.Nos.590/2010 and 545/2012 and that the others were referred to therein only as persons identifiable by sight. Therefore, according to the learned counsel, the identification of accused 2 to 6 in court shall be rejected. The counsel submitted that no test identification parade was conducted. Sri.V.S.Thoshin, the learned counsel for accused 2 and 4, who raised the same argument relied on the decision of this court in Sabu vs State of Kerala (2016 (4) KHC 426) and the decision of the Calcutta High Court in Tapas Karanga @ Handa vs State of West Bengal (2016 Crl.L.J 4257). Both the decisions deal with the necessity of holding a test identification parade when the accused are strangers to the witnesses.
16. It is not possible to agree with the learned counsel. The evidence of PW1 that the first accused worked in the brick factory of Koshy was not challenged in cross-examination. PW1 spoke in cross-examination that the first accused worked there till six months before the incident although the witness was unable to remember how long the first accused worked there. The evidence of PW1 that she had seen the other accused persons when 13 Crl.A.Nos.590/2010 and 545/2012 they had come to see the first accused was also not challenged in cross-examination. It was even suggested to PW1 in cross-examination that accused 1 and 5 had come at 1.00 p.m on the date of incident and met Koshy to collect the arrears of wages due to them. Another suggestion put to PW1 in cross-examination was that Koshy used to treat the first accused and his companions with liquor. It was suggested to PW2 that before her marriage the accused persons had worked in the brick factory of Koshy. The aforenoted suggestions would not have been put to PWs 1 and 2 in cross-examination had the identity of the accused persons been challenged by the defence. It was elicited in the cross-examination of PW2 that she had seen the other accused persons when they had visited the first accused while he was working in the kiln of Koshy. The trend of cross-examination was to the effect that PWs 1 and 2 did know all the accused persons. No single question was put either to PW1 or to PW2 disputing the identity of any of the accused. The discussion of the evidence by the learned trial judge suggests that the identity of the accused persons was not 14 Crl.A.Nos.590/2010 and 545/2012 challenged in the trial court. They cannot challenge it for the first time in appeal. The narration of the incident by PWs 1 and 2 would suggest that they had ample time to see and observe the faces of the assailants. In these circumstances, we accept the evidence of PWs 1 and 2 identifying each and every accused. The two decisions cited by the learned counsel for accused 2 and 4 are not helpful to any of the accused as their identity was not challenged at the trial.
17. PWs 1 and 2 spoke that by noon on 8.10.2005 accused 1 and 5 came and asked PW1 whether any job was available in the kiln. PW1 stated that she told accused 1 and 5 to ask Koshy who was in the factory. PW2 also stated so. Both PWs 1 and 2 deposed that accused 1 and 5 went to the factory to meet Koshy. The evidence of PW2 regarding the visit of accused 1 and 5 in the noon of 8.10.2005 was not touched in her cross- examination. PW1 reiterated in cross-examination that accused 1 and 5 came in the noon on the date of incident seeking job. The said visit of accused 1 and 5 was not challenged in cross-examination, but a question was put 15 Crl.A.Nos.590/2010 and 545/2012 admitting the visit. The suggestion put to PW1 was that accused 1 and 5 came to demand the arrears of wages. PW1 denied the suggestion. The evidence of PWs 1 and 2 would prove that accused 1 and 5 came on 8.10.2005 by noon seeking job in the brick factory of Koshy.
18. PW6 is an auto rickshaw driver. He identified accused 1 and 5 in court. PW6 stated that his auto rickshaw was hired by accused 1 and 5 to reach Churakulam at about 12.00 noon on the date of incident. PW6 stated that he was told by accused 1 and 5 that they wanted to go to the brick factory at Churakulam. It was also the evidence of PW6 that the house of Koshy was situated at Churakulam. PW6 was not cross-examined. He proved that it was in his auto rickshaw accused 1 and 5 reached Churakulam at around 12 noon on the date of incident. The evidence of PWs 1 and 2 regarding the visit of accused 1 and 5 by noon on 8.10.2005 gets support from the unchallenged evidence of PW6.
19. PW5 was the manager of an establishment called Apsara JCB. He identified accused 1 and 5. His such identification made in court was not challenged in 16 Crl.A.Nos.590/2010 and 545/2012 cross-examination. PW5 stated that he saw accused 1 and 5 talking to Koshy at the brick factory at around noon on the date of incident. PW5's evidence suggests that he did not hear the conversation, but saw accused 1 and 5 talking to Koshy.
20. At around noon on the date of incident PW6 in his auto rickshaw dropped accused 1 and 5 at Churakulam where was Koshy residing. Accused 1 and 5 met PW1 seeking employment for them in the brick factory of Koshy. PW1 told accused 1 and 5 to meet Koshy who was in the factory. PW5 saw accused 1 and 5 talking to Koshy. The visit of accused 1 and 5 at the house and factory of Koshy at around noon on 8.10.2005 is thus proved. According to the prosecution, the real purpose of the visit of accused 1 and 5 on the date of incident at around noon was to watch the surroundings and also to ascertain the way to escape after committing dacoity. The said version of the prosecution can be accepted if the accused persons were really the culprits who committed dacoity and murder.
21. The crucial question is whether the prosecution could prove the complicity of the accused persons. We 17 Crl.A.Nos.590/2010 and 545/2012 shall first consider the evidence of PW1. Her evidence in her examination-in-chief may be summarized as follows:
At about 6.30 p.m on the date of incident all the accused were seen talking to Koshy in the car porch of the house. The accused were talking about the employment they were in search of. Karuppuswamy was also in the car porch at that time. PW5 and his workers came to the courtyard of the house. Koshy and PW5 came inside the house. They settled the accounts and Koshy paid the amount due to PW5. Thereafter PW1 and Koshy checked the account. PW1 kept a bundle of notes totalling Rs.10,000/- in the drawer of the table. A slip reading 'JCB' was placed on the bundle of notes and tied with a rubber band. Another bundle of notes totalling Rs.9,730/- was also kept by PW1 in the drawer of the table. She locked the table. PW1 and Koshy came out of the house. When Koshy went to talk to the accused, PW1 went to the kitchen. Koshy told the accused persons that there was no vacancy in his brick factory. PW1 came from the kitchen and asked Koshy to enquire whether workers were needed in the brick factory of Sunu (PW3). Koshy then 18 Crl.A.Nos.590/2010 and 545/2012 talked to PW3 over telephone. PW1 who was in the kitchen came to the dining hall to know the result of the enquiry with PW3. At that time CW3 (the mother of Koshy) was sitting in the drawing room. Suddenly all the accused entered the drawing room. The first accused carried a sword like long knife and he brandished it. He threatened to kill if anyone shouted. The second accused took a pistol from his hip. The third accused came near PW1 with a short knife and put a bath towel around her neck to hold her. Accused 1, 2 and 6 went inside the bedroom of Koshy. The first accused placed the weapon in his hand at the neck of Koshy. Accused 2 and 6 put a bath towel around the neck of Koshy and held him tight.
The third accused took PW1 to the kitchen. He asked her to give him the key. PW1 showed reluctance. Then the third accused with the knife stabbed PW1 on her right shoulder. PW1 fell down. The third accused snatched the chain of PW1. When she was lying on the floor, she was beaten by the third accused. Thereafter he brought her to the dining hall. Koshy asked PW1 to give the key. When CW3 came to PW1, the third accused snatched the chain 19 Crl.A.Nos.590/2010 and 545/2012 of CW3. The said accused then pushed CW3. She fell down. When PW1 gave the key, the third accused released her. PW2 who was carrying her baby was held with a bath towel around her neck by the 5th accused. The 4th accused then went inside the bedroom of Koshy. Accused 2 and 3 opened the drawer of the table and took a mobile phone, a wrist watch and currency notes. Koshy was made to lay on the ground by accused 1 to 4 and 6. The 4th accused took the sword from the first accused and cut at the neck of Koshy. PW1 ran to the kitchen and made her exit from the house through the door of the kitchen. She rushed to the house of a neighbour and told the inmates of that house that 5-6 Bengalies inflicted injuries on her and Koshy. Hearing the cry of PW1 the neighbours including George and Mammachan rushed to the house of Koshy. PW2 told PW1 that the accused persons left and that they had taken the bangles and finger ring of PW2 . Karuppuswamy was lying in a pool of blood in the car porch. He had wounds on his neck and abdomen. The neighbours took Koshy and Karuppuswamy in a car to St.Joseph Hospital at Anchal. PW1 was also 20 Crl.A.Nos.590/2010 and 545/2012 taken to the same hospital and she was managed in the hospital as an inpatient for two days. It was only some time later PW1 was informed about the death of Koshy and Karuppuswamy.
22. The evidence of the other ocular witness, PW2, in her examination-in-chief goes as follows: At 6.30 p.m on the date of incident the accused persons and Koshy were seen in a conversation in the car porch. Karuppuswamy was also standing in the car porch. PW2 came inside and sat in the drawing room with her baby. The JCB manager (PW5) and Koshy came to the drawing room. Koshy paid the amount due to PW5. Koshy then entrusted the money in his hand with PW1. Koshy and PW1 went inside their bedroom. After some time Koshy went to the car porch and told the accused persons that there was no job for them at present. PW1 came near the drawing room and asked Koshy to enquire whether Sunu (PW3) needed employees. PW1 went to the kitchen. After some time all the accused persons entered the drawing room. They had taken out knives, pistol and sword from their loins. The first accused showed the sword and 21 Crl.A.Nos.590/2010 and 545/2012 threatened to kill everybody if they shouted. The third accused who was holding a broad knife put a bath towel around the neck of PW1 to hold her tight. Accused 1, 2 and 6 went inside the bedroom of Koshy. Accused 4 and 5 came near PW2 and directed her not to move. She got frightened and sat on the sofa. Then the 4th accused also went inside the bedroom of Koshy. From there the cry of PW1 was heard. The 5th accused put a bath towel around the neck of PW2 and held her. He then demanded one lakh rupees. She heard Koshy telling PW1 to hand over the key. PW1 at that time was standing in the dining hall near the door of her bedroom. The 5th accused took PW2 towards the sit-out. PW2 heard Karuppuswamy groan. The 5th accused by force took from PW2 her bangles and finger ring. After some time those accused who went inside the bedroom of Koshy came out. The knife (MO1) which the first accused was seen holding before was seen in the hand of the 4th accused when they came out of the room of Koshy. The 6th accused was holding a knife (MO19) and the second accused was holding a folding type knife (MO20). Accused 1, 2 and 4 to 6 went out of 22 Crl.A.Nos.590/2010 and 545/2012 the house. PW2 closed the door and locked it. When she looked back, she saw the third accused who was holding a broken knife (MO3). He asked PW2 to open the door. She obeyed and the third accused also made his exit from the house. PW2 again locked the door. She saw CW3 sitting on the floor unable to get up. PW2 saw Koshy in the bedroom lying in a pool of blood. The pistol was lying on the floor. PW2 went to the kitchen in search of PW1. She closed the door of the kitchen, came back to the drawing room and opened the front door. She saw Karuppuswamy lying in the car porch in a pool of blood. PW2 came to the courtyard and saw the neighbours by name George and Mamachan running towards the house of Koshy followed by PW1. PW2 told them that Koshy and Karuppuswamy were lying in blood. PW2 told PW1 that the accused had taken her (PW2's) bangles and finger ring. PW1 told PW2 that the former was stabbed. The maxi worn by PW1 was stained in blood. Mammachan and George had taken Koshy, Karuppuswamy and PW1 to the hospital in a car.
23 Crl.A.Nos.590/2010 and 545/2012
23. We have narrated the evidence of PWs 1 and 2 narrating the incident. They were cross-examined. There has been no contradiction or omission in their evidence within the meaning of the proviso to Sec.162 (1) of Cr.P.C or the explanation to Sec.162. PW1 deposed in cross-examination that she was not aware whether the accused persons came at 6.30 p.m in auto rickshaw or by foot. The witness is not expected to know such details. When PW1 saw the accused persons at 6.30 p.m, they were in the car porch of the house. Only a few questions were put to PW1 in cross-examination challenging the overt acts alleged against the accused. To such questions put to PW1 she answered that the first accused positioned at the left hand side of Koshy when Koshy was made to lay on the floor, that the accused persons except the one who opened the almirah and the table and the one who held PW2 made Koshy to lay on the floor and that Koshy lay prone on the floor. The remaining questions put to PW1 in cross-examination on the overt acts were only a few suggestions. It was suggested to her that she did not see any overt act. She denied the suggestion and 24 Crl.A.Nos.590/2010 and 545/2012 asserted that she did see the whole incident. Another suggestion to PW1 was that she ran out of the house soon the pistol was dropped on the floor. PW1 denied that suggestion too. She again asserted that she saw the whole incident. She added that she left the scene of occurrence only after her husband was cut. Another suggestion to PW1 was that it was not possible for her to see from the dining hall the incident which happened in the room where PW2 was sitting. PW1 asserted that it was possible. Going by the evidence of PWs 1 and 2, PW2 was sitting in the drawing room of the house. Ext P23 sketch of the scene of occurrence prepared by PW20 (village officer) suggests that it is possible to see the drawing room from the dining hall. The evidence of PW1 in her examination-in-chief was no way damaged in cross- examination.
24. The learned counsel for the 6th accused, Sri.Manju Antony, has submitted that there are a few discrepancies. The learned counsel submitted that the presence of PW5 just before the incident was not made mention of in Ext P1 FI statement. That is not much 25 Crl.A.Nos.590/2010 and 545/2012 material. PW1 was interrogated and her statement was recorded under Sec.161 of Cr.P.C. No question was put to her that she did not mention the name of PW5 while giving statement under Sec.161 of Cr.P.C. The learned counsel submitted that going by the version in the FI statement PW1 heard the groan of Karuppuswamy from outside when the accused concerned were taking money and gold ornaments from the house. But PW1 did not state in court that she heard the groan of Karuppuswamy from outside. That means something PW1 stated in the F.I statement was not deposed to in court. This cannot be considered a discrepancy. Another submission of the learned counsel was that PW1 deposed that she saw Karuppuswamy lying in the car porch with bleeding injuries when she came back to her house after giving alarm to the neighbours, but as per the FI statement she saw Karuppuswamy when she ran out of the house for help. The said argument also does not impress us since PW1 deposed that she could not give the first information statement in an arranged manner as she was perplexed and disturbed then. The said explanation is only to be 26 Crl.A.Nos.590/2010 and 545/2012 accepted as it is natural and also in the absence of any cross-examination on that explanation. Yet another submission of the learned counsel was that PWs 1 and 2 could not have seen the incident as they were held tight by putting bath towels around their necks. We are unable to accept the said argument too. No question was put to PWs 1 and 2 to elicit that they were unable to see the incident as they were held as stated above. Not even a suggestion was put to that effect. We find that the evidence of PW1 is believable.
25. The cross-examination of PW2 also produced no result favourable to the accused persons. The incident as such and the overt acts of the accused persons were not challenged in cross-examination except two suggestions put. One of the suggestions was that PW2 gave her ornaments to the police as wanted by the police to trap the accused persons. PW2 denied the suggestion. She added that her ornaments were taken by force at the time of the incident. Another suggestion was that she did not at all see the incident. She said she did not see. She clarified in re-examination that what she meant was that 27 Crl.A.Nos.590/2010 and 545/2012 she did not see the overt act of inflicting injury on Koshy. The clarification given by PW2 is acceptable. Her evidence in her examination-in-chief suggests that she did not go to the bedroom of Koshy at the time of the incident. Therefore she did not see the attack on Koshy. She did not state in her examination-in-chief that she saw the attack on Koshy. PW2 is also a believable witness. Her entire evidence on the incident is acceptable.
26. PW3 was also running a brick factory. He corroborated the evidence of PW1 that he was asked by Koshy over phone whether he needed workers in his factory. PW3 spoke that in the evening of the date of incident he was contacted over phone by Koshy. PW3 deposed that he was told by Koshy that 5-6 Bengalies had approached Koshy for employment. PW3 added that Koshy asked whether PW3 could accommodate them. PW3 stated that he told Koshy that workers were not needed for him. PW3 deposed that thereafter Koshy did not continue the conversation, but the call was not cut. PW3 said he heard the sound of something falling down and also the cry of someone. PW3 tried to call back, but 28 Crl.A.Nos.590/2010 and 545/2012 the call did not get connected. None of the above matters spoken to by PW3 was challenged in cross-examination except the suggestion put to him that he gave a false statement to the police. PW3 replied that he told the police only what he heard. The evidence of PW1 has been corroborated by PW3 to the extent indicated above.
27. As already seen, PW1 spoke that PW5 (manager, Apsara JCB) and his workers came to the courtyard of Koshy's house in the evening of the date of incident when the accused persons were in the car porch. We have also referred to the evidence of PWs 1 and 2 that Koshy and PW5 came inside the house and that Koshy paid the amount due to PW5. PW5 testified that when he came to the house of Koshy in the evening of the date of incident to settle the account, he saw Koshy sitting in the sit-out of the house and the accused persons standing in the car porch. PW5 deposed that at that time a Tamil boy was also standing in the car porch. PW5 was referring to Karuppuswamy who was aged 17 years. PW5 stated that himself and Koshy went to the drawing room of the house, that the account was checked and settled and that the 29 Crl.A.Nos.590/2010 and 545/2012 former received money from the latter. PW5 spoke that when he came out, the accused persons and the Tamil boy were still standing in the car porch. The above matters spoken to by PW5 were not challenged in cross- examination. PW5 identified the accused persons in court. There was no cross-examination on the evidence of PW5 identifying the accused persons. The evidence of PW5 corroborates the evidence of PWs 1 and 2 and proves the presence of the accused persons and Karuppuswamy in the car porch of Koshy's house just before the incident.
28. Going by the description of MO1, it is a sword like knife. Both PWs 1 and 2 identified MO1 in court. PW1 referred to it a sword like knife while PW2 called it a sword. PWs 1 and 2 deposed that MO1 was in the hand of the first accused. The witnesses spoke that they were intimidated by the first accused pointing MO1. PW1 testified that the fourth accused took MO1 from the first accused and cut at the neck of Koshy with it. PW2's evidence suggests that the first accused entered the bedroom of Koshy holding MO1, but it was seen in the hand of the fourth accused when he came out of the 30 Crl.A.Nos.590/2010 and 545/2012 bedroom. No question was put to PW2 in cross- examination touching MO1. It was just suggested to PW1 in cross-examination that MO1 belonged to Karuppuswamy. The suggestion was denied by PW1. MO1 is proved to be a weapon used in the crime.
29. PWs 1 and 2 identified MO3 to be the knife which the third accused was holding at the time of the incident. PW1 deposed that she was stabbed on her right shoulder by the third accused with MO3 knife. Identification of MO3 by PW2 was left untouched in her cross-examination. No question on that aspect was put to PW1 except a suggestion. She denied the suggestion that MO3 was the knife used in her kitchen. The prosecution proved that MO3 was in the hand of the third accused at the time of the incident. It is also proved that he used it to stab PW1 on her shoulder.
30. MO2 is a toy air pistol. PWs 1 and 2 identified it. They spoke that it was in the hand of the second accused. Their evidence identifying MO2 to be the pistol carried by the second accused was also not challenged in cross- examination.
31 Crl.A.Nos.590/2010 and 545/2012
31. MO19 is a knife. MO20 is a folding type knife. PW1 was not asked any question in her examination-in- chief about MOs 19 and 20. PW2 identified MOs 19 and 20 to be the knife and the folding type knife respectively seen in the hands of accused 6 and 2 respectively. The said evidence of PW2 was also not challenged in cross- examination. The prosecution proved that during the course of the incident accused 2 and 6 carried MOs 20 and 19 knifes respectively.
32. PWs 1 and 2 deposed that MO14 series were the bangles and MO15 was the finger ring robed from PW2. Their evidence identifying MO14 series and MO15 was not challenged in cross-examination.
33. PW1 identified MO13 to be the chain snatched from her by the third accused. The witness said that MO12 was the chain robbed from her mother-in-law (CW3 who died before the trial). As already stated, PW1 deposed that a wrist watch, a bundle of currency notes with a slip on it reading `JCB' and the mobile phone of Koshy were taken by accused 2 and 3 from the drawer of the table. PW1 identified those wrist watch, bundle of 32 Crl.A.Nos.590/2010 and 545/2012 notes, the slip reading `JCB' and the mobile phone to be MOs16, 17 , 17(a) and 18 respectively. Identification of MOs 12, 13 and 16 to 18 by PW1 was also not challenged in cross-examination.
34. Identification of the weapons, ornaments, wrist watch, bundle of currency notes with slip thereon and the mobile phone as discussed above has a relevancy in the case. We shall consider that aspect soon.
35. PW31, the circle inspector of police, was the head of the special investigation team which investigated the case. The other members of the team were PWs 29 and 30 who were sub-inspectors. PW29 conducted inquest on the dead body of Karuppuswamy. Ext P40 is the inquest report. Inquest on the dead body of the Koshy was conducted by PW31. Ext P45 is the inquest report prepared by PW31. He inspected the scene of crime and prepared Ext P6 scene mahazar. He arrested all the accused persons. Accused 2 and 3 were the persons who were arrested first. The learned counsel for accused 2 and 4, Sri. Thoshin.V.S, again referred to the FI statement and submitted that the name of the first accused alone 33 Crl.A.Nos.590/2010 and 545/2012 was mentioned therein. Therefore, according to the learned counsel, the first accused should have been arrested first to get information about the other accused persons, but accused 2 and 3 were arrested first. The evidence of PW13 is important in this connection.
36. PW13 does business in 'wirecut' bricks. The name of his brick factory is GMP Bricks. He spoke that he knew accused 2 and 3. PW13 said that on 9.10.2005 he was approached by accused 2 and 3 for employment in the said factory. At that time, said PW13, accused 2 and 3 were tired and they wore soiled shirts and pants. They talked Malayalam, but told PW13 that they were Bengalies. PW13 offered them employment from the next day onwards and permitted them to stay in a room in the factory building. It was thereafter PW13 knew about the murder of Koshy. PW13 deposed that he went to Koshy's house and gathered from the people gathered there that Koshy and a Tamil boy were murdered by Bengalies. PW13 said he returned to his factory and observed accused 2 and 3 since their perplexion and acts produced suspicion. PW13 spoke that by evening he 34 Crl.A.Nos.590/2010 and 545/2012 became more suspicious and therefore informed the police over phone. PW13 added that the circle inspector and party came to his factory and arrested accused 2 and
3. We do not find anything in the cross-examination of PW13 to suspect his evidence discussed above. PW31 deposed that he reached 'GMP Bricks' on getting information that two Bengalies were seen there in a suspicious circumstance. The prosecution thus explained the arrest of accused 2 and 3 ahead of the arrest of the first accused. We therefore see no merit in the argument of Sri. Thoshin that the arrest of accused 2 and 3 before the arrest of the first accused is suspicious.
37. PW31 reached 'GMP Bricks' at 7.30 p.m on 9.10.2005. He found there accused 2 and 3 and questioned them. PW31 said that he was convinced that accused 2 and 3 were involved in the crime. PW31 arrested accused 2 and 3 at 7.45 p.m and 8.30 p.m respectively. Exts P9 and P10 are the memoranda of arrest pertaining to accused 2 and 3 respectively. PW13 who witnessed the arrest signed Exts P9 and P10 as a witness. PW31 deposed that on search of the person of 35 Crl.A.Nos.590/2010 and 545/2012 the second accused 18 currency notes of the denomination of 500 were found. Those currency notes were seized by PW31 and he prepared Ext P4 seizure mahazar to evidence the seizure. The currency notes were produced before the court and the amount was remitted into the treasury, said PW31. According to him, on search of the body of the third accused a purse and a mobile phone were found. The purse contained a currency note of the denomination of 100 and four currency notes of the denomination of 50. PW31 seized the purse, the currency notes and the mobile phone and prepared Ext P5 seizure mahazar. The currency notes totalled 300. The amount of 300 seized from the third accused was remitted into the treasury. The purse is MO23. The currency notes seized from accused 2 and 3 and MO23 purse are not relevant since the prosecution has no material to connect the purse and notes to the crime. The mobile phone seized from the third accused is MO18. Seizure of MO18 from the third accused is not seen disputed in cross-examination. PW13 testified that he witnessed the seizure of MO18 from the third accused. 36 Crl.A.Nos.590/2010 and 545/2012 PW13 identified MO18 to be the mobile phone seized from the third accused. As already seen, PW1 identified MO18 . She deposed that it was the mobile phone used by her husband. One of the stolen properties, viz. MO18, was seized from the possession of the third accused at the time of his arrest. Its seizure from him at the time of his arrest is an incriminating evidence against him.
38. PW31 arrested the remaining accused on the night of 9-10 October, 2005 at a place called Chengulam Kurizumoodu near a hollow brick factory. PW31 spoke so. He deposed that he seized stolen properties from them except the 4th accused. PW31 prepared memoranda of arrest and also seizure mahazars. He denied the suggestion put to him in cross-examination that he arrested accused 1 to 6 from one and the same place. No other question was put to PW31 in cross-examination regarding the arrest and seizure. The brick factory referred to above was owned by PW14. He deposed that he used to stay in his factory during nights. He testified that he witnessed the arrest of four Bengalies on the night of 9.10.2005. He identified in court accused 1 and 4 37 Crl.A.Nos.590/2010 and 545/2012 to 6 to be those four Bengalies. PW14 deposed that he signed the memoranda of arrest and seizure mahazars as a witness. In cross-examination too PW14 maintained that he witnessed the arrest of accused 1 and 4 to 6. The witness denied the suggestion that he did not see the arrest and seizure. He denied the further suggestion that he signed a mahazar which was already prepared by the police. PW14's evidence identifying accused 1 and 4 to 6 in court was not disputed in cross-examination. The testimonies of PWs 14 and 31 on arrest and seizure are believable and acceptable.
39. The first accused was arrested at 11.30 p.m on 9.10.2005. Ext P14 is the arrest memo prepared by PW31 and attested by PW14. PW31 searched the body of the first accused. The former seized from the latter MO14 series gold bangles and MO15 finger ring made of gold. PW31 prepared Ext P11 seizure mahazar to evidence the seizure. PW14 deposed that he saw the search and seizure. He said he signed Ext P11 seizure mahazar as a witness. The prosecution proved that MO14 series and MO15 gold ornaments were seized from the person of the 38 Crl.A.Nos.590/2010 and 545/2012 first accused at the time of his arrest. As already stated, MO14 series bangles and MO15 ring were identified by PWs 1 and 2 to be the gold ornaments of PW2 and robbed from her. Recovery of MO14 and MO15 ornaments from the first accused is an incriminating evidence against him. It is true that those ornaments were robbed from PW2 by the 5th accused, but recovered from the first accused. Still the recovery is an incriminating evidence against the first accused as all the accused persons came together, did the atrocious acts together and left the place together. Accused 1 and 5 were arrested when they and accused 4 and 6 were moving together.
40. The arrest of the 5th accused was at 12.05 a.m on 10.10.2005. Ext P16 is the memorandum of arrest. Its author and attestor are PW31 and PW14 respectively. The 5th accused was searched and MO12 chain was seized from him. PWs 14 and 31 deposed to the said search and seizure. Ext P12 is the seizure mahazar. PW1 identified MO12 to be the chain of her mother-in-law (CW3). PWs 14 and 31 deposed that at the time of seizure of MO12 a gray hair was seen entangled in it. There was no cross- 39 Crl.A.Nos.590/2010 and 545/2012 examination on that aspect. PW25 who was working as civil surgeon at the government hospital, Punalur had collected sample scalp hairs of PW1 and CW3. PW25 said that he separately packed those items, sealed the packets and handed over the same to the investigating officer. PW25 was not cross-examined. The sealed packet containing the scalp hairs of CW3 is item 50 in Ext P58 forwarding note. MO12 chain and the gray hair(s) found entangled in it at the time of seizure are item 55 in Ext P58. Items 50 and 55 along with other items were forwarded to the forensic science laboratory, Thiruvananthapuram. Ext P59 is the report of the assistant director (biology), forensic science laboratory, Thiruvananthapuram. Ext P59 recites that in fact four gray hairs were entangled in MO12. Ext P59 proves that the said four hairs which were human scalp hairs were similar to the sample scalp hairs of CW3. The prosecution proved that MO12 gold chain which was grabbed from CW3 was seized from the 5th accused when his body was searched at the time of his arrest. At the time of seizure the scalp hairs of CW3 were entangled in MO12. 40 Crl.A.Nos.590/2010 and 545/2012
41. The 6th accused was arrested on the same night at 12.45 a.m. He too was searched. From him was seized MO16 wrist watch. PWs 14 and 31 spoke to the said arrest, search and seizure. Exts P13 and P17 are the seizure mahazar and arrest memo respectively prepared by PW31 and attested by PW14. MO16 is the wrist watch of PW1 as identified by her. It was stolen at the time of the incident from the drawer of the table as stated by PW1. The recovery of MO16 stolen property from the possession of the 6th accused at the time of his arrest is an incriminating evidence against him.
42. PW31 interrogated all the accused persons he arrested. PW31 deposed as follows: (i) the 4th accused on interrogation stated that he had kept the bundle of notes in his residential shed at Meenad and that he would produce it if he was taken there, (ii) the 4th accused had taken out a plastic cover from the roof of the shed, (iii) the said plastic cover contained 100 currency notes of the denomination of 100 and (iv) a slip which read 'JCB' was seen tied using a rubber band with the bundle of notes. The bundle of notes is MO17 and the slip is MO17 (a). 41 Crl.A.Nos.590/2010 and 545/2012 PW31 seized MO17 and MO17 (a) as produced by the 4th accused. Ext P7 is the seizure mahazar pertaining to MO17 and MO17 (a). The disclosure statement of the 4th accused extracted in Ext P7 seizure mahazar is Ext P7 (a). PW31 denied the suggestion that Ext P7 (a) statement was not given to him. No other question was put to PW31 in cross-examination regarding the disclosure statement and the seizure of MOs 17 and 17 (a) at the instance of the 4th accused. PW12 who resides at Meenad spoke that he witnessed the seizure of the currency notes and the slip. He identified in court the 4th accused. PW12 deposed that he saw the 4th accused taking out the bundle of currency notes from the roof of the shed. It was also the evidence of PW12 that at that time a slip reading 'JCB' was tied on the bundle of notes with a rubber band. PW12 identified MO17 (a) and spoke that the currency notes were of the denomination of 100. In cross-examination he stated that he was residing just one kilometre away from the said shed. He stated that more than one person was residing in the said shed. The fact that other persons were also residing in the shed is not sufficient for the 4th 42 Crl.A.Nos.590/2010 and 545/2012 accused to contend that the recovery of MO17 and MO17
(a) is not an incriminating evidence against him. He was the person who made the disclosure statement. He was the person who had taken out the currency notes with the slip from the place of concealment. The evidence of PW12 in cross-examination suggests that the currency notes were kept in such a way that the same were not visible. The recovery of stolen currency notes at the instance of the 4th accused does incriminate him.
43. PW31 questioned the second accused. The former spoke that he was given a disclosure statement by the latter. The disclosure statement was that the second accused had concealed a chain in the brick factory at Vayala and that he would show the chain if he was taken there. PW31 deposed to the said disclosure statement. He denied the suggestion in cross-examination that no such statement was given to him by the second accused. Ext P43 is the disclosure statement of the second accused extracted by PW31. He entrusted the second accused and Ext P43 with PW30 to effect the recovery. PW30 stated that he reached 'GMP Bricks' as led by the second 43 Crl.A.Nos.590/2010 and 545/2012 accused. PW30 spoke that the second accused had taken out a plastic cover from a heap of bricks. PW30 opened the plastic cover and saw in it a broken gold chain with a locket. He identified MO13 to be the said chain. He prepared Ext P8 mahazar at the time of the seizure. It was suggested to him in cross-examination that he himself kept MO13 under the heap of bricks and took the second accused there to recover it. The suggestion was denied by PW30. PW13, the owner of 'GMP Bricks', stated that at 9.a.m on 10.10.2005 the sub-inspector brought the second accused to the factory. PW13 testified that the second accused from a heap of bricks took a packet and handed over the same to the sub-inspector. PW13 spoke that the packet contained a broken gold chain with a locket. PW13 identified MO13 to be the chain with the locket. He signed Ext P8 seizure mahazar as a witness. He asserted in cross-examination too that the chain was taken out from the heap of bricks by the second accused. PWs 30 and 31 deposed that the former handed over MO13 and Ext P8 to the latter. PW1 identified MO13 to be her chain robbed from her at the time of the incident. The 44 Crl.A.Nos.590/2010 and 545/2012 prosecution proved recovery of MO13 stolen property at the instance of the second accused and as produced by him from the place where it was hid.
44. From the recovery of stolen properties we shall move on to the alleged recovery of weapons. We have already discussed and accepted (i) the evidence of PWs 1 and 2 that MO1 was initially carried by the first accused, (ii) the evidence of PW1 that the 4th accused took it from the first accused and cut at the neck of Koshy and
(iii) the evidence of PW2 that the 4th accused carried MO1 when the said accused came out of the bedroom of Koshy. PW31 deposed to the disclosure statement made to him by the 4th accused regarding MO1. The disclosure statement of the 4th accused as deposed to by PW31 is that the 4th accused had kept the 'kripan' in the shed at Meenad where he was residing and that he would produce it if he was taken to the said shed. PW31 spoke that on the basis of the said information and as led by the 4th accused PW31 reached the said shed. According to PW31, the 4th accused had taken out MO1 which was kept under a pillow in the room which was at the eastern end of the 45 Crl.A.Nos.590/2010 and 545/2012 shed. PW31 deposed that not only MO1, but its case was also produced by the first accused. The case was marked as MO1 (a). The recovery of MO1(a) is not an incriminating evidence against the 4th accused and therefore we ignore it. PW31 prepared Ext P47 seizure mahazar to evidence the seizure of MO1. The disclosure statement of the 4th accused extracted in Ext P47 mahazar is separately marked as Ext 47(a). PW31 denied the suggestion in cross-examination that the 4th accused did not give Ext P47(a) statement. PW12 who witnessed the recovery of the currency notes and slip witnessed the recovery of MO1 too. He spoke that the 4th accused took out the knife which was kept in the shed under a pillow. The recovery of MO1 at the instance of the 4th accused and as produced by him is an incriminating evidence against him. It was him who used it to cut at the neck of Koshy.
45. PW31 questioned the 3rd accused. The former deposed to the disclosure statement given to him by the latter. The disclosure statement as deposed to by PW31 was that the 3rd accused had kept the broken knife in the 46 Crl.A.Nos.590/2010 and 545/2012 compound of a house and that he (3rd accused) would produce it if taken there. PW31 reached the compound of Kizhakke puthenveedu on the basis of the aforesaid information given by the third accused and as led by the said accused. PW31 spoke further that from the bush in the said compound the third accused took MO3 and MO3
(a) which were respectively the blade portion and the handle of the knife. PW31 seized MOs 3 and 3(a) under Ext P18 seizure mahazar. Ext P18 (a) is the disclosure statement of the 3rd accused extracted in Ext P18 mahazar. PW31 denied the suggestion that the third accused did not give Ext P18 (a) statement. No other question was put in cross-examination to challenge the recovery. PW15 signed Ext P18 as a witness. He spoke that he did witness the seizure. He identified MO3. He identified the 3rd accused. PW15 stated that MOs 3 and 3
(a) were taken out from the bush by the 3rd accused. It was also in the evidence of PW15 that the 3rd accused handed over the blade portion as well as the handle to the circle inspector. PW15 spoke in cross-examination that he had no occasion to see the accused persons before the 47 Crl.A.Nos.590/2010 and 545/2012 recovery of he witnessed. But the witness could identify the 3rd accused in court. The evidence of PW15 identifying the 3rd accused was no way damaged in cross- examination. The witness denied the general suggestion put to him in cross-examination that he spoke falsehood in court. PW15 corroborated the evidence of PW31 on the recovery of MOs 3 and 3(a). PWs 1 and 2 saw MO3 knife in the hand of the 3rd accused. PW1 testified that it was with MO3 she was stabbed on her shoulder by the 3rd accused. It was recovered at the instance and as produced by the 3rd accused himself. Such recovery is an incriminating evidence against him.
46. MO2 is not a lethal weapon. It is only a toy air pistol. It was seen lying on the floor of the house when PW31 inspected the scene of occurrence. He seized it and described it in Ext P6 scene mahazar prepared by him. PW11 who attested Ext P6 saw MO2 lay on the floor. He saw its seizure by PW31. PWs 1 and 2 swore that the second accused took it from his hip at the time of the incident. Barring the said evidence of PWs 1 and 2, MO2 is not helpful to the prosecution to prove the complicity of 48 Crl.A.Nos.590/2010 and 545/2012 the second accused or any other accused.
47. The prosecution is relying on Ext P2 and also on the evidence of PWs 8, 9, 29 and 31 to connect MO2 air pistol to accused 1 and 2. According to the prosecution, accused 1 and 2 purchased MO2 from the shop owned by PW8. PW8 no doubt spoke so. He deposed that Ext P2 was the duplicate of the bill under which MO2 was sold. The bill was issued in the name of Pappy, Valiyaveettil Enterprises, Kollam. According to PW8, the purchaser should give a declaration on the bill. The witness spoke that the declaration was signed by Sheriful. Sheriful is the first accused. PW8 identified the first accused in court as the declarant. Thus, going by the evidence of PW8, MO2 was sold to Pappy who signed the declaration. As PW8 has identified the first accused as the declarant, it may appear to a reader of the deposition of PW8 that the first accused is pappy. The prosecution examined PW9 to prove who pappy was. PW9 is the owner of Valiyaveettil Enterprises which is a crusher unit. He spoke that Pappy was his employee in his crusher unit. The person whom PW9 identified as Pappy was not the first accused, but the 49 Crl.A.Nos.590/2010 and 545/2012 second accused. We do not find it safe to accept the evidence of PWs 8 and 9 to connect MO2 to the first accused or the second accused in view of the inconsistency in their evidence as to who precisely is Pappy. We therefore do not accept Ext P2 or the evidence of PWs 8 and 9 as good evidence.
48. The prosecution is relying on the evidence of PWs 29 and 31 too to connect MO2 to accused 1 and 2. PW31 spoke that he was given Ext P41 statement by the second accused. PW29 deposed that he reached the shop of PW8 along with accused 1 and 2 based on Ext P41 statement and as led by those accused persons. Both PWs 29 and 31 deposed to the alleged disclosure statement of the second accused. The alleged statement was that the second accused would show the shop from where he bought the pistol and also the shop owner. No incriminating fact was discovered in consequence of the alleged information given by the second accused. Therefore Sec.27 of the Indian Evidence Act is not attracted. Any statement given by an accused person to a police officer during investigation is a statement under 50 Crl.A.Nos.590/2010 and 545/2012 Sec.161 of Cr.P.C. As Sec.27 of the Evidence Act is not attracted, the said statement is hit by Sec.162 of Cr.P.C and therefore inadmissible in evidence. Going by the evidence of PW29, he took accused 1 and 2 to PW8 and got those accused persons identified by PW8. When an investigating officer gets an accused identified by a witness or when a witness identifies an accused before the investigating officer, what the witness does is to give a statement to the investigating officer under Sec.161 of Cr.P.C identifying the accused. A statement in court by the investigating officer or the witness that the former got the accused identified by the latter is hit by Sec.162 of Cr.P.C. Therefore the evidence of PW29 that he got accused 1 and 2 identified by PW8 is inadmissible in evidence.
49. There is one more aspect which should not go unnoticed. The alleged statement about the purchase of the pistol by the second accused was given by him. If so, why did PW29 take the first accused also along with the second accused to the shop of PW8 to get the first accused also identified by PW8? The prosecution did not 51 Crl.A.Nos.590/2010 and 545/2012 explain this.
50. The prosecution is relying on scientific evidence also. All the accused persons were arrested within a couple of days after the incident. They were produced before the magistrate and were obtained in police custody as per the order of the magistrate. Some of the recoveries were effected by the investigating officers after obtaining such custody. PW24 who was working as the medical officer at the taluk hospital at Punalur collected the scalp hairs of all the accused persons on 15.10.2005 honouring the requisition of the investigating officer. PW24 deposed so. He stated that the scalp hairs of each accused were separately packed and the packets were sealed. PW24 was not cross- examined. PW16, scientific assistant, examined the scene of occurrence on 9.10.2005. He spoke that he examined the whole house including the car porch for biological trace evidence. It was also his evidence that he collected 10 items. He collected short and long hairs from MO25 bath towel which was found in the kitchen. From MO30 bath towel found lying in the car porch he collected short 52 Crl.A.Nos.590/2010 and 545/2012 hairs. He packed those items (items 3 and 9) and other items separately. He sealed the packets and handed over to the investigating officer. It was brought out in cross- examination of PW16 that as the scene of occurrence was guarded by the police there was no external intervention before his inspection. PW28 who conducted autopsy collected the scalp hairs of Karuppuswamy. PW28 packed those scalp hairs, sealed the packets and sent to the sub- inspector of police through a police constable. PW28 was also not cross-examined. The scalp hairs collected, packed and sealed by PWs 16 , 24 and 28 were forwarded to the forensic science laboratory for analysis. Ext P59 is the hair analysis report of the assistant director (biology), forensic science laboratory, Thiruvananthapuram. The report shows that 2 out of 11 human scalp hairs collected from MO25 towel were similar to the sample scalp hairs of the 4th accused. The report shows further that 4 out of 6 human scalp hairs collected from MO30 bath towel were similar to the sample scalp hairs of Karuppuswamy and the remaining two scalp hairs were similar to the sample scalp hairs of the first accused. Ext P59 report thus 53 Crl.A.Nos.590/2010 and 545/2012 contains another item of incriminating evidence against accused 1 and 4.
51. PW31 who arrested the accused persons had obtained their fingerprints. The evidence of PW31 on that aspect was not challenged in cross-examination. PW21 was employed as photographer in the police department. PW22 was working as fingerprint expert in the single digit fingerprint bureau, Kollam. PWs 21 and 22 were not cross-examined. Their unchallenged evidence shall be taken as true. The scene of occurrence was inspected by PW22 on 9.10.2005 as per the requisition of PW31. At that time PW21 was with PW22. PW22 developed 9 chance fingerprints from the scene of crime. Those fingerprints were photographed by PW21. Those photographs are Exts P24 series. The negatives were marked as Ext 24 (a). Fingerprints were developed from MO2 pistol, MO22 bottle and MO38 broken mirror. Those fingerprints were photographed. Two fingerprints traced from MO22 bottle alone could be compared. The other fingerprints were unfit for comparison. MO22 was seized by PW31 from the kitchen of Koshy's house. PWs 21, 22 54 Crl.A.Nos.590/2010 and 545/2012 and 31 identified MO22 bottle. PW21 enlarged the photographs of the fingerprints traced from MO22 bottle as well as the specimen thumb impression of the 4th accused. Ext P25 is the enlarged photograph of the chance fingerprint traced from MO22. Ext P26 is the enlarged photograph of the thumb impression of the 4th accused. On comparison of Ext P25 with Ext P26, PW22 found one chance fingerprint taken from MO22 tallied with the specimen thumb impression of the 4th accused. PW22 deposed so. Ext P27 is his report. He elaborately stated his reasons for his such opinion. His opinion is only to be accepted, particularly when he was not cross-examined. He opined in Ext P27 that on comparison the chance fingerprint developed and photographed from the scene of crime was identical with the right thumb impression of the 4th accused. Ext P27 proves that one chance fingerprint traced from MO22 and the specimen right thumb impression of the 4th accused possessed eight identical ridge characteristics in their nature and relative positions. Those eight identical ridge characteristics are detailed in Ext P27. The right thumb impression of the 4th accused on 55 Crl.A.Nos.590/2010 and 545/2012 MO22 bottle seized from the kitchen of Koshy's house is a strong incriminating evidence against the 4th accused.
52. As deposed by PWs 27 and 28, the blood groups of Koshy and Karuppuswamy were determined at the blood bank attached to the medical college hospital, Thiruvananthapuram. PW27 deposed that the blood group of Koshy was A+ve. The evidence of PW28 suggests that Karuppuswamy belonged to the blood group of O+ve. PW31 who conducted inquest on the dead body of Koshy seized MO4 shirt and MO5 lungi worn by the deceased. PW31 seized MO8 nighty, MO9 underskirt and MO10 brassiere worn by PW1 at the time of the incident. PW29 at the time of inquest seized MO6 shirt, MO7 lungi and MO35 brief worn by Karuppuswamy. MOs 4 to 10 and 35 were sent to the forensic science laboratory, Thiruvananthapuram. Ext P60 is the report of the assistant director (serology), forensic science laboratory, Thiruvananthapuram. The report proves that MOs 4 and 5 contained human blood of the group 'A' and MOs 6, 7 and 35 contained human blood of the group 'O'. That means Koshy and Karuppuswamy belonged to the blood groups 56 Crl.A.Nos.590/2010 and 545/2012 of 'A' and 'O' respectively. Ext P60 proves further that MOs 8 to 10 contained human blood belonging to group 'O'. That means the blood group of PW1 is also 'O'.
53. PW31 who arrested all the accused seized from each of them the shirt and pants they wore at the time of the incident. The shirts of accused 1 to 6 are MOs 41, 43, 45 (tee shirt), 47, 49 and 51 respectively and their pants are respectively MOs 42, 44, 46, 48, 50 and 52. MOs 41 to 52 were also forwarded to the forensic science laboratory, Thiruvananthapuram. Ext P60 serology report proves that human blood belonging to group 'A' was detected in MO41 shirt and MO42 pants of the first accused, MO43 shirt and MO44 pants of the 2nd accused, MO47 shirt and MO48 pants of the 4th accused and MO 51 shirt and MO52 pants of the sixth accused. Human blood belonging to group 'O' was detected in MO46 pants of the third accused and MO49 shirt of the fifth accused. As already seen, Koshy and Karuppuswamy belonged to the blood groups 'A' and 'O' respectively. PW1 belongs to the blood group 'O'. She was stabbed by the third accused. Therefore the blood of 'O' group detected in the pants of the third 57 Crl.A.Nos.590/2010 and 545/2012 accused must be that of PW1. It must be Karuppuswamy's blood which was detected in the shirt of the 5th accused. Detection of human blood belonging to group 'O' in the pants of the third accused and the shirt of the fifth accused is a strong incriminating evidence against them. Similarly, detection of human blood of group 'A' in the shirts and pants of accused 1, 2, 4 and 6 is a strong incriminating evidence against them.
54. MOs 1, 3, 19 and 20 weapons were also subjected to chemical analysis at the forensic science laboratory. MO1 sword like knife having the look of a 'kripan' held by the first accused initially and used by the 4th accused to cut the neck of Koshy was stained with blood. Ext P60 report proves that human blood of group 'A' was detected in MO1 . MO3 is the blade portion of the broken knife. It was used by the third accused to stab PW1 on her shoulder. Ext P60 proves that human blood of group 'O' was detected in MO3. We have already stated that PW1 belongs to the blood group 'O'. MO20 steel handled folding type knife was held by the second accused as seen from the ocular evidence. Human blood 58 Crl.A.Nos.590/2010 and 545/2012 of group 'O' was detected in it as seen from Ext P60. The second accused did not attack PW1 with MO20. That means the human blood of group 'O' detected in MO20 in chemical analysis must be that of Karuppuswamy. The human blood of 'A' group detected in MO1 and the human blood of 'O' group detected in MOs 3 and 20 are incriminating evidence against the accused persons. MO19 was held by the 6th accused as per the ocular evidence. Blood was detected in MO19 too, but the origin could not be ascertained for insufficient quantity of blood. Detection of blood in MO19 too is an incriminating evidence against the accused persons when considered in the light of the other evidence against them.
55. We shall next consider the opinion evidence of two forensic surgeons who conducted post-mortem examinations. We have already extracted in this judgment the fatal injuries sustained by Koshy and Karuppuswamy. PW27 opined that injury no.1 shown in Ext P36 autopsy report and deposed to by him could be caused by a weapon like MO1. PW28 spoke that injury no.1 deposed to by him and shown in Ext P38 autopsy 59 Crl.A.Nos.590/2010 and 545/2012 certificate pertaining to Karuppuswamy could be caused by a weapon like MO1. PW28 spoke further that injury no.2 in Ext P38 could be caused by using a weapon like MO20. The opinion evidence of PWs 27 and 28 discussed above would go against accused 2 and 4 particularly and also against all other accused as the acts of the accused would positively suggest existence of a common intention within the meaning of Sec.34 of IPC.
56. We shall in this and the next eight paragraphs (paragraphs 56 to 64) recapitulate the discussion so far had. Koshy and Karuppuswamy were murdered on 8.10.2005. PWs 1 and 2 who are the ocular witnesses identified in court all the accused persons correctly. Identity of none of them was challenged at the trial. By noon on 8.10.2005 accused 1 and 5 approached Koshy under the guise of seeking employment. The real intention behind the visit was to watch the surroundings.
57. All the accused came to the house of Koshy and talked to him at about 6.30 p.m on 8.10.2005. Karuppuswamy was standing in the car porch of the house along with the accused persons when PW5 came and left. 60 Crl.A.Nos.590/2010 and 545/2012 PWs 1 and 2 also saw Karuppuswamy in the car porch when the accused persons were standing there.
58. All the accused entered the house of Koshy. The first accused brandished MO1 'kripan' and threatened to kill everyone if any one shouted. The second accused took MO2 air pistol from his loin. The third accused with whom was MO3 knife held PW1 with a bath towel around her neck. The first accused placed MO1 at the neck of Koshy in order to get the keys of the table and almirah. Accused 2 and 6 put a bath towel around the neck of Koshy to hold him. The third accused stabbed PW1 with MO3 knife on her shoulder. The third accused grabbed MO13 gold chain from PW1 and MO12 gold chain from CW3. The 5th accused robbed MO14 series bangles and MO15 finger ring from PW2. Accused 2 and 3 opened the drawer of the table and stole MO16 wrist watch, MO17 currency notes and MO18 mobile phone. Accused 1, 2, 4 and 6 by force made Koshy to lay on the floor. The 4th accused took MO1 from the first accused and cut Koshy at his neck. When the accused persons left, PWs 1 and 2 saw Karuppuswamy lying in the car porch in a pool of 61 Crl.A.Nos.590/2010 and 545/2012 blood.
59. Stolen properties were recovered during the investigation. From the third accused at the time of his arrest was seized MO18 mobile phone by PW31. MO14 series bangles and MO15 ring of PW2 were seized from the first accused at the time of his arrest by PW31. PW31 searched the person of the 5th accused at the time of arrest and seized MO12 gold chain of CW3. MO16 wrist watch of PW1 was seized by PW31 from the 6th accused at the time of arrest. The 4th accused who concealed MO17 currency notes had taken out those notes from the place of concealment. He himself handed over the notes to PW31. MO13 gold chain of PW1 was hidden by the second accused. He himself had taken it from the place of concealment and handed over to PW31.
60. Four weapons used in the crime were also recovered during the course of investigation. MO1 was recovered on the basis of the information given by the 4th accused and as produced by him. MO3 which is the blade portion of the knife with which PW1 was stabbed by the third accused was recovered by PW31 based on the 62 Crl.A.Nos.590/2010 and 545/2012 disclosure statement given by the third accused and at the instance of the said accused.
61. The prosecution produced scientific evidence also. Two out of eleven scalp hairs collected from MO25 bath towel, which was seized from the kitchen of the house of Koshy, were similar to the sample scalp hairs of the 4th accused. Two of the scalp hairs collected from MO30 bath towel were found similar to the sample scalp hairs of the first accused. The remaining four human scalp hairs collected from MO30 towel were similar to the sample scalp hairs of Karuppuswamy. The scalp hairs of the deceased (Karuppuswamy) and the scalp hairs of the first accused were collected from one and the same towel, namely, MO30 which was seen lying in the car porch. The gray hairs entangled in MO12 chain have been proved to be the scalp hairs of CW3. The right thumb impression of the 4th accused was traced from MO22 bottle which was seized from the kitchen of Koshy's house.
62. The shirts and pants of accused 1, 2, 4 and 6 were stained with the blood of Koshy. The pants of the third accused and the shirt of the 5th accused were stained 63 Crl.A.Nos.590/2010 and 545/2012 with the blood of PW1 and Karuppuswamy respectively. The pants and shirts referred to above were those worn by the accused persons at the time of the incident and the same were seized by PW31 at the time of arrest.
63. The blood stain in MO1 sword like knife was proved to be Koshy's. The blood stain in MO3 blade portion of the broken knife was that of PW1. The blood stain in MO20 steel handled folding type knife was that of Karuppuswamy. Blood was detected in MO19 too.
64. The opinion evidence suggests that the fatal injury sustained by Koshy could be caused by MO1. It is also the opinion evidence that the fatal injuries sustained by Karuppuswamy could be caused by MO1 and MO20.
65. We have considered the evidence produced by the prosecution. The incident on 8.10.2005 is proved. Accused 1 to 6 have been proved to be the assailants. Every accused had a role in the incident. Their movements at the time of the incident and the acts done by them during the incident prove that they did every criminal act in furtherance of their common intention. Sec.34 of IPC is attracted. Therefore each accused is 64 Crl.A.Nos.590/2010 and 545/2012 liable for every act done at the time of the incident.
66. Sec.449 of IPC is attracted inasmuch as house-trespass was committed to commit murder also. Robbery was committed since in committing theft of money, gold ornaments et cetera hurt was caused to PW1. Death of Koshy was also caused. There was the commission of dacoity since six persons conjointly committed robbery. Murder of Koshy was committed by the dacoits while they were conjointly committing dacoity. An offence under Sec.396 IPC was therefore committed. The offence under Sec.397 of IPC was also committed since the offenders used deadly weapons. The offenders made preparation for committing dacoity and thereby they committed the offence under Sec.399 of IPC.
67. The accused persons committed the murder of Koshy and Karuppuswamy. There is the direct evidence of PW1 to find that Koshy was inflicted with the fatal injury on his neck by the 4th accused with MO1 while the other accused persons except the 5th accused were holding Koshy. The 5th accused is also liable to be convicted for the murder of Koshy since every dacoit is liable to be 65 Crl.A.Nos.590/2010 and 545/2012 convicted under Sec.396 of IPC for such murder. We have considered the other evidences also to find the accused persons guilty of having committed the murder of Koshy.
68. It is true that nobody saw how Karuppuswamy sustained fatal injuries and who caused him those injuries. But the prosecution proved that Karuppuswamy was also murdered in the same incident. We have already considered such evidence. Karuppuswamy sustained injuries and died not in a different incident. PWs 1, 2 and 5 had seen Karuppuswamy standing in the car porch when the accused persons were also standing there. Karuppuswamy and the accused persons were in the car porch when PW5 left Koshy's house. During the transaction PW2 heard Karuppuswamy groan. He was seen by PWs 1 and 2 lying in the car porch in a pool of blood. After the departure of PW5 nobody came to the house of Koshy to attack and kill Karuppuswamy. The scalp hairs of Karuppuswamy and the scalp hairs of the first accused were collected from MO30 towel which was seen lying in the car porch. The shirt of the 5th accused was stained with the blood of Karuppuswamy. MO20 knife 66 Crl.A.Nos.590/2010 and 545/2012 was also stained with the blood of Karuppuswamy. One of the fatal injuries sustained by Karuppuswamy could be caused by MO20 as opined by PW28. The other fatal injury on Karuppuswamy could be caused by MO1 as deposed by PW28, although Karuppuswamy's blood was not detected in it. The aforenoted evidence and circumstances prove that the accused persons are guilty of committing the murder of Karuppuswamy.
69. Sri.Ranjith B.Marar, the learned counsel for the first accused, had an alternative argument. The learned counsel submitted that the accused persons could not have been convicted under Sec.302 of IPC. According to the counsel, at the most they could be convicted under Sec.396 of IPC. The learned counsel requested to set aside the conviction and sentence under Sec.302 of IPC. The substantive sentence imposed on the accused by the trial court under Sec.396 of IPC was rigorous imprisonment for seven years. If the argument of the learned counsel is acceptable, the accused would not be liable to undergo life sentence. We shall consider the argument of the learned counsel.
67 Crl.A.Nos.590/2010 and 545/2012
70. Sec.302 of IPC provides that whoever commits murder shall be punished with death or imprisonment for life, and shall also be liable to fine. Sec.396 of IPC states that if any one of five or more persons, who are conjointly committing dacoity, commits murder in so committing dacoity, every one of those persons shall be punished with death or imprisonment for life or rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine. The ingredients of Sec.300 of IPC should be satisfied to find a person guilty under Sec.302 of IPC or under Sec.396 of IPC. But the offences are separate and distinct. Sec.396 of IPC is attracted where any one of the dacoits while conjointly committing dacoity commits murder in so committing dacoity. The words 'in so committing dacoity' appearing in Sec.396 IPC are very important. Karuppuswamy was the first person to be attacked by the assailants. He was attacked before the entry of the assailants into the house of Koshy to commit dacoity. That means Karuppuswamy was attacked and deeply wounded in order to commit dacoity, and not in committing dacoity conjointly. The murder of 68 Crl.A.Nos.590/2010 and 545/2012 Karuppuswamy cannot therefore be brought within the purview of Sec.396 of IPC. Hence the accused persons should be convicted under Sec.302 of IPC for having committed the murder of Karuppuswamy. We therefore reject the argument of Sri Ranjith B.Marar.
71. Conspiracies usually hatch in secrecy. Therefore direct evidence to prove conspiracy is more or less impossible. But prosecution can establish it by circumstantial evidence. The trial court said that the circumstances relied on by it would clinchingly prove the conspiracy. The trial court stated that the first accused was a worker in the brick factory of Koshy sometime before the incident and that the other accused persons used to visit the first accused when he was working there. It was also stated that just before the incident the accused persons were found together in the car porch of Koshy's house and that Karuppuswamy was also there then. Another observation of the trial court was that at noon on the date of incident accused 1 and 5 approached Koshy under the guise of seeking job for them. The above aspects considered by the trial court as circumstances 69 Crl.A.Nos.590/2010 and 545/2012 cannot at all be treated as circumstances to find conspiracy.
72. Two circumstances considered by the learned trial judge were (i) accused 1 and 2 purchased MO2 air pistol from the shop of PW8 and (ii) accused 2 and 3 purchased MO3 knife from the shop of PW7. We have already found that the prosecution failed to prove its case that accused 1 and 2 purchased MO2 from the shop of PW8. We have given the reasons at paragraphs 47 to 49 of this judgment for the said finding of ours.
73. PW31 deposed that he took accused 2 and 3 to the shop of PW7 on the basis of the information given by those accused persons. PW31 stated that he got accused 2 and 3 identified by PW7. PW7 identified in court the 3rd accused and failed to identify the 2nd accused. The evidence of PW7 also suggests that he identified the third accused before PW31. As we have stated at paragraph 48 of this judgment, what a witness does when he identifies an accused before the investigating officer is to give a statement under Sec.161 of Cr.P.C. The evidence of the witness and the investigating officer in court that the 70 Crl.A.Nos.590/2010 and 545/2012 latter got the accused identified by the former is hit by Sec.162 of Cr.P.C. Therefore the evidence of PWs 7 and 31 regarding the said identification is inadmissible in evidence. The prosecution failed to prove the purchase of MO3 by accused 2 or 3 or both from the shop of PW7.
74. Thus, none of the reasons given by the learned trial judge as proof of conspiracy is acceptable. The prosecution is without evidence to prove the alleged conspiracy. Therefore the conviction and sentence under Sec.120B of IPC are liable to be set aside. We do so.
75. The sentences imposed on the accused persons by the learned trial judge under Secs 302, 396, 397 and 449 of IPC are not harsh or excessive. We therefore confirm those sentences.
76. The learned trial judge committed three mistakes. One of the mistakes was the direction that the sentence under Sec.397 of IPC should run consecutively. When an accused is sentenced to imprisonment for life, all other substantive sentences of imprisonment imposed on him can run concurrently only. No reason is stated in the impugned judgment why the sentence under Sec.397 of 71 Crl.A.Nos.590/2010 and 545/2012 IPC alone should run consecutively. We correct the mistake and direct that the substantive sentence of imprisonment imposed on the accused persons under Sec.397 of IPC shall also run concurrently with the life sentence.
77. The decision of the trial court not to impose a sentence under Sec.399 of IPC was another mistake committed by it. The learned trial judge stated that no sentence was imposed under Sec.399 of IPC since sentences were imposed under Secs 396 and 397 of IPC. The offences under Secs 396, 397 and 399 of IPC are separate and distinct offences. Every conviction shall be followed by a proper sentence. Clause (e) of Sec.386 of Cr.P.C confers on the appellate court the power to make any amendment or any consequential or incidental order that may be just or proper. We may refer to the decision of the apex court in Jayaram Vithoba vs State of Bombay (AIR 1956 SC 146). The Supreme Court holds thus:
"When a person is tried for an offence and convicted, it is the duty of the court to impose on him such sentence as is 72 Crl.A.Nos.590/2010 and 545/2012 prescribed therefor. The law does not envisage a person being convicted for an offence without a sentence being imposed therefor. When the trial magistrate convicted the first appellant under Sec.5, it was plainly his duty to have imposed a sentence. Having imposed a sentence under Sec.4(a), he obviously considered that there was no need to impose a like sentence under Sec.5 and to direct that both the sentences should run concurrently. But, in strictness, such an order was the proper one to be passed. The appellants then took the matter in revision to the High Court and contended that their conviction under Sec.5 was bad. The High Court went into the question on the merits and found them guilty under that section. It was the duty of the High Court to impose a sentence under Sec.5, and that is precisely what it has done. The power to pass a sentence under those circumstances is derived from the law which enacts that on conviction a sentence shall be imposed on the accused, and that is a power which can and ought to be exercised by all the courts which, having jurisdiction to decide whether the accused is guilty or not find that he is. We are of opinion that this power is preserved to the appellate court expressly by Sec.423 (1) (d), which enacts that it can "make any amendment or any consequential or incidental order that may be just or proper". When a conviction is affirmed in appeal but no sentence had been awarded by the trial magistrate, the award of a sentence is consequential on and incidental to the affirmance of the conviction, and it is a just and proper order to be passed under the law. We are unable to agree with the view expressed in AIR 1940 Bom 129 (A) that such an order would be an enhancement of the sentence. Before a sentence can be said to be enhanced, there must be one 73 Crl.A.Nos.590/2010 and 545/2012 which could be enhanced, and when no sentence was imposed on a conviction by the trial magistrate and one is for the first time awarded in appeal, it cannot correctly be said to be an enhancement. We are accordingly of opinion that it was within the competence of the High Court to have passed the sentence which it had".
Sec.423 (1) (d) of the Code of Criminal Procedure, 1898 considered by the Supreme Court as the source of power of the appellate court to impose a sentence in such a circumstance corresponds to clause (e) of Sec.386 of the present Cr.P.C. We are duty bound to impose a sentence under Sec.399 of IPC. The aforesaid dictum laid down by the Hon'ble Supreme Court has been reiterated in Sawal Das vs State of Bihar (AIR 1974 SC 2276). The accused persons were heard on the question of sentence by the trial court. Therefore it is not necessary to hear them once again on the question of sentence before a sentence is imposed under Sec.399 of IPC by this court.
78. The punishment provided under Sec.399 of IPC is rigorous imprisonment for a term which may extend to ten years and fine. Fine is compulsory. Rigorous imprisonment for two years and a fine of Rs 1000/- 74 Crl.A.Nos.590/2010 and 545/2012 appear to us as proper sentence under Sec.399 of IPC. We therefore impose such a sentence on the accused persons. The accused who defaults the fine shall undergo rigorous imprisonment for two months more. The substantive sentence of imprisonment shall run concurrently only with the life sentence imposed under Sec.302 of IPC.
79. The trial court said that the evidence would not show the injury sustained by PW1 was of such a nature as was sufficient in the ordinary course of nature to cause death. Therefore the accused were acquitted of the offence under Sec.307 of IPC. But the trial court overlooked the evidence and its own finding that PW1 was caused hurt with a deadly weapon. Even if Sec.307 of IPC was not attracted for the reason stated by the learned trial judge, there was no reason why Sec.324 of IPC was not attracted. The failure to convict the accused persons under Sec.324 of IPC was the third mistake committed by the trial court. But we leave it there in the absence of an appeal by the State. We do not propose to initiate a revision suo motu as any sentence imposed under 75 Crl.A.Nos.590/2010 and 545/2012 Sec.324 of IPC should only run concurrently with the life sentence imposed under Sec.302 of IPC.
80. We conclude. We dispose of the appeals as under:
(1) We confirm the judgment of the trial court convicting the accused persons under Secs 302, 396, 397 and 449 of IPC. The sentences imposed on them under those sections are also confirmed.
(2) The conviction of the accused persons under Sec.399 of IPC stands confirmed. Each accused is sentenced thereunder to rigorous imprisonment for two years and a fine of Rs 1000/- (One thousand only). The substantive sentence of imprisonment shall run concurrently with the life sentence. In default of payment of fine, the defaulter shall undergo rigorous imprisonment for two months.
(3) The appeals stand allowed to the extent of (i) setting aside the conviction passed and the sentence imposed by the trial court under Sec.120B of IPC and
(ii) directing the sentence under Sec.397 of IPC to run only concurrently with the life sentence. 76 Crl.A.Nos.590/2010 and 545/2012 The trial court shall issue a modified warrant of commitment in respect of each accused in terms of this judgment.
sd/-
C.K.ABDUL REHIM Judge sd/-
A.M.BABU Judge sks