Kerala High Court
Puthenthara Mohanan And Ors. vs State Of Kerala on 6 September, 1989
Equivalent citations: 1990CRILJ1059
JUDGMENT P.K. Shamsuddin, J.
1. Accused in Sessions Case No. 68 of 1986 on the file of the Court of Session, Alleppey, are the appellants. They were charge-sheeted for offence punishable under Sections 143, 147, 148, 149 and 302, I.P.C A1 was found guilty under Sections 302, 143, 147, 323, 324 and 326 read with Section 149, I.P.C. and sentenced to undergo imprisonment for life under Section 302, rigorous imprisonment for 6 months under Section 143, rigorous imprisonment for one year under Section 147, rigorous imprisonment for 6 months under Section 323 read with Section 149, I.P.C. R.I. for 18 months under Section 324 read with Section 149, I.P.C, and R.I. for 3 years under Section 326 read with Section 149, I.P.C. Accused Nos. 2 and 3 were convicted and sentenced to undergo R.I. for 6 months under Section 143, R.I. for one year under Section 147, R.I. for 18 months under Section 148, R.I. for 3 years under Section 326, I.P.C, R.I. for 6 months under Section 323 read with Section 149, I.P.C and R.I. for 18 months under Section 324 read with Section 149, I.P.C. Accused No. 4 was found guilty of offences under Sections 143, 147, 148, 324 and 323 and 326 read with Section 149, I.P.C and sentenced to undergo R.I. for 6 months under Section 143, I.P.C, R.I. for one year under Section 147, I.P.C, R.I. for 18 months under Section 148, I.P.C, R.I. for 18 months under Section 324, I.P.C, R.I. for 6 months under Section 323 read with Section 149, I.P.C. and R.I. for 3 years under Section 326 read with Section 149, I.P.C The 5th accused was found guilty of offences under Sections 143, 147, 148, 323 and 324 and 326 read with Section 149, I.P.C. and sentenced to undergo R.I. for 6 months under Section 143, I.P.C, R.I. for one year under Section 147, I.P.C, R.I. for 18 months under Section 148, I.P.C, R.I. for 6 months under Section 323, I.P.C, R.I. for 18 months under Section 324 read With Section 149, and R. I. for 3 years under Section 326 read with Section 149 IPC. The sentences were ordered to run concurrently.
2. The prosecution case in brief is as follows:
On 27-12-1985 at about 6 p.m. the accused formed themselves into an unlawful assembly with the common object of causing death of Vijayan, brother of PW. 1 Sahadevan, and committed the offence of rioting, armed with dangerous weapons like chopper, dagger, iron rod and wooden stick and all the accused attacked Vijayan while he was sitting in the pan-shop of PW. 10 on the southern side of the lane proceeding westwards from Kannadappan Kavala to Ponnamvely in Uzhuva Muri in Vayalar East Village. Vijayan jumped up from the platform of the shop and ran to the north. The second accused cut Vijayan with a chopper at the back of his head and also at two places on his forehead. The 3rd accused stabbed Vijayan with a dagger above his right hip and right shoulder. The 5th accused also beat Vijayan with a wooden stick on his left and right shoulder blades. Vijayan fell on the lane. Then the first accused beat Vijayan with a wooden stick on his head twice as a result of which Vijayan's cranium was broken and brain matter was exposed and Vijayan died instantaneously. The prosecution alleged that there was an altercation between Vijayan and the 2nd accused inside the toddy shop of PW. 5 and that formed the motive for the action of the accused against Vijayan. P.W. 1, the elder brother of Vijayan who saw the occurrence went, near Vijayan and found him dead. He asked PW. 2 to guard the dead body of Vijayan and went to the Police Station at Sherthallai at about 8 p.m. and gave Ext. P1 first information statement which was recorded by PW. 12 Head constable of that Police Station. He registered Crime No. 448 of 1985 under Sections, 143, 147, 148, 149 and 302 IPC against all the accused. PW. 13, C.I. of Police, Sherthallai conducted inquest on the dead body of Vijayan on the next day morning at the place of occurrence, prepared Ext. P5 inquest report and recovered MO. 6 shirt and MO. 7 underwear from the dead body of Vijayan from near the pan shop of PW. 10, MO. 9 thorthu and MO. 13 a pair of rubber chappals were also recovered. He also recovered from a place towards the north of the pan-shop a knife wrapped in a piece of paper. From the western side of the road running to Neelimangalam on the south, he recovered MO. 1 a wooden pole. PW. 13 collected some hair from the dead body. He also searched the house of accused 1 to 5 but no weapons could be recovered. PW. 11 conducted postmortem on the dead body of Vijayan and issued Ext. P11 postmortem certificate.
3. Accused 1, 2, 4 and 5 were arrested in the mid-night between 3-1-1986 and 4-1-1986 and on the basis of the information furnished by accused 2, 4 and 5, MO. 2 chopper, MO. 3 iron rod and a baton were recovered. The 3rd accused was arrested at 5. a.m. on 6-1-1986. On the basis of the information furnished by him, a dagger was also recovered on the same day. The material objects in the case were sent for chemical analysis to the Forensic Science Laboratory, Trivandrum. Ext. P15 is the report of the Analyst. After completing the" investigation PW. 13 laid charge against the accused before the Judicial Magistrate of the IInd Class at Sherthallai, who committed the accused to stand trial before the Court of Session, Alleppey.
4. On the accused pleading not guilty to the charge, the prosecution examined PWs. 1 to 13 and marked Exts. P1 to P15 and MOs. 1 to 14. In their statements under Section 313 Cr. P.C. the accused generally denied the incriminating circumstances appearing against them in the prosecution evidence. No witness was examined on their behalf but Ext. D1 portion of the statement of PW.1 in Ext. P1 was marked.
5. That Vijayan died in an occurrence on 27-12-1985 admits of no doubt. Ext. P5 is the inquest report prepared by PW. 13 on the dead body of Vijayan. Ext. P11 is the postmortem certificate issued by P.W. 11 in respect of the injuries found on the dead body of Vijayan. Ext. P11 shows that Vijayan sustained as many as 14 injuries. There were long fractures of whole left side of skull fragmenting the whole bones, and also fracture of right side of skull separating frontal bone from parietal bone and fracture of right side of skull scparating parietal bone from occipital bone. Membranes of brain was completely torn off and brain completely damaged and part of it, missing. The evidence of PW. 11 would indicate that Vijayan died on account of coma as a result of fracture of skull and severe damage to brain matter.
6. P.W. 1 is the elder brother of Vijayan who was residing near the place of occurrence. He deposed that he had come to the Kannadappan Kavala at about 5.30 in the evening on the date of occurrence and saw Vijayan sitting on the south-eastern side on the top of the platform of the pan-shop of PW. 10. After taking tea, PW. 1 came to the pan-shop of Anirudhan, son of PW. 4, on the northern side of the road leading to Ponnamveli from Kannadappan Kavala. P.W. 1 saw all the accused running with deadly weapons to the place where Vijayan was sitting. The 4th accused told Vijayan that they came in search of him. A4 beat Vijayan on his shoulder with an iron rod. On receiving the blow Vijayan jumped towards north and ran to a distance of 6 to 7 feet. All the accused surrounded Vijayan. The 2nd accused inflicted a cut on the back of Vajayan with a chopper, resulting in a bleeding injury. When Vijayan turned the 2nd accused again cut with the chopper twice on the forehead of Vijayan, the 3rd accused stabbed with the dagger on the right hip of Vijayan resulting in another bleeding injury. He also stabbed on the right shoulder of Vijayan again causing an injury and the 5th accused beat Vijayan with a baton on his shoulders. Vijayan ran towards west and fell down on the lane after covering a distance of 8 to 9 feet. At that time the 1st accused beat Vijayan with a Wooden pole twice on his head, resulting in the skull being broken and the brain matter coming out and uttered that Vijayan was no more. All the accused then ran towards south. The 1st accused threw the wooden pole towards the west of the road. The rest of the accused took their weapons in their hands.
7. PW. 1 further stated that one or two months prior to the occurrence, there was some quarrel between Vijayan and the accused. He identified MO 1 as the wooden post, with which A1 beat Vijayan, MO. 2 as the chopper, which was with the 2nd accused, MO. 3 as the weapon, which was with the 3rd accused, MO. 4 as the iron rod which was used by the 4th accused and MO. 5 as the short stick which was used by the 5th accused.
8. The prosecution examined P.Ws. 2, 3 and 4 also as eye-witnesses to the occurrence, but none of them supported the prosecution version and they turned hostile.
9. PW 2 stated that he went to Kannadappan Junction at about 6 p.m. and found Vijayan lying dead in front of Anirudhan's shop and people running hither and thither. He also found A1 standing in front of pan shop of Anirudhan. Since he refused to subscribe to his version to the police, portions of case diary statements of this witness were put to him, but he denied the statement as well as the fact that he was questioned by the Police.
10. PW 3 stated that he saw Vijayan sitting on the platform of the shop of PW 10 at about 6 p.m., while he was proceeding to the temple, that on his return, he found the dead body of Vijayan lying on the road near the shop of PW 10 and that he did not see accused attacking Vijayan. Since this witness also turned hostile, he was also cross-examined by the Public Prosecutor with reference to his earlier version to the police Ex. P3. He replied that he did not remember it having stated, but if the police had recorded like that it should be correct.
11. PW 4 gave evidence that he had a small pan shop at Kannadappan Junction and that he had no knowledge about the death of Vijayan. Since this witness also turned hostile, the Public Prosecutor was permitted to cross-examine him with reference to his earlier version to the police, but he denied that police had questioned him.
12. The prosecution examined PW 5 to prove the motive. He had a toddy shop at Ponnamveli. It is the prosecution case that Vijayan and the 2nd accused had a quarrel at this shop. However, PW 5 stated that there was no confrontation between A2 and Vijayan at the shop. On further examination, he admitted that he knew an occurrence about a month prior to the death of Vijayan in which A2 was taken into custody by police. He stated that Vijayan was not taken into custody. In the cross-examination by defence counsel, he stated that he did not know why A2 was taken by police.
13. Sri. P. V. Aiyappan, counsel for the appellants challenged the conviction and sentence on various grounds. Learned counsel first submitted that the lower court has not formulated the necessary points for determination and no finding also was recorded on essential points. The accused have been charged with offences punishable under Sections 143, 147, 148 and 149 I.P.C. It was necessary to formulate points as to whether the accused were members of an unlawful assembly, whether they shared any of the common objects mentioned in Section 141 I.P.C. and whether the accused committed rioting armed with deadly weapons. Unfortunately, the learned Sessions Judge only considered the above aspects under point MO. 4, namely, what if any are the offences committed by the accused. That point has been discussed by the learned Sessions Judge in paragraphs 21, 22 and 23 of his judgment. In para 21, the learned Sessions Judge found that the prosecution has proved beyond reasonable doubt that there was an unlawful assembly consistng of 5 accused as defined under Section 141 IPC and that each one of them was a member of an unlawful assembly and is guilty of the offence punishable under Section 143 IPC. The learned Sessions Judge found that the 1st accused had not carried MO 1 when he proceeded to the scene of occurrence along with other accused, but that fact will not be a ground for holding that A1 has not committed the offence punishable under Section 147 IPC. On the basis of the evidence of PW 4, the learned Sessions Judge came to the conclusion that A1 would have taken MO 1 wooden pole from the shop of PW 4. The learned Sessions Judge held that the prosecution case that A1 beat on the head of Vijayan with MO 1 is true. The learned Sessions Judge also found that the prosecution has established that force was used by the accused 2 to 5 before Vijayan fell down on the pathway leading to Ponnamvely and that the use of force or violence by any member of the unlawful assembly is sufficient to cast liability defined under Section 146 IPC on the remaining members of the unlawful assembly and that therefore all the accused are guilty of offence under Section 147 IPC. The learned Sessions Judge has not recorded a definite finding as to the object of the unlawful assembly. In order to determine the nature of the offence committed by each member of an unlawful assembly, such a finding was quite necessary. If the common object of the unlawful assembly was to commit murder of Vijayan each member would be liable for offence of murder irrespective of the nature of the individual overt acts committed by each member in view of Section 149 IPC. The learned Sessions Judge has convicted only A1 under Section 302 IPC and as far as others are concerned, they were only convicted for lessor offences. It is therefore clear that according to the learned Sessions Judge, the common object of the unlawful assembly consisting of accused 1 to 5 was not to commit murder, but only to commit a lessor offence.
14. Sri. P. V. Aiyappan, learned counsel for the appellants, contended that since the learned Sessions Judge failed to formulate the necessary points for determination, the conviction and sentence are liable to be set aside. In this connection the learned counsel invited our attention to the ruling of the Supreme Court in State of Andhra Pradesh v. Gowthu Ranghunayakulu AIR 1987 SC 40: (1987 Cri LJ 316). In regard to the failure of the appellate court to formulate the proper points for decision, the Supreme Court made the following observations (paras 5 and 6):
"The learned Judge did not formulate properly the points for decision and did not marshal the evidence on record and did not come to specific finding on each of the points for determination by recording specific reasons for arriving at the decision. It is really unfortunate that the learned Judge approached the case from wrong angle and without properly formulating the points for decision and without any proper appraisal of the evidences, adduced by the prosecution to prove the guilt of the accused persons and also without adverting to the reasonings of the Sessions Judge has perfunctorily come to the finding that the prosecution has failed to prove beyond doubt the case against the accused even though there are eye witnesses P.Ws. 1, 3, 4, 6 and 7 to the occurrence.
In our considered opinion, this judgment is not in accordance with the mandatory requirements as laid down in Section 354, Cr. P.C. We, therefore, set aside the judgment and order of acquittal passed by the High Court of Andhra Pradesh and remit the case back to the High Court Andhra Pradesh, for deciding the case in accordance with law on a proper appraisal and marshalling of the evidences on record as early as possible."
Section 354 Cr. P.C. deals with language and contents of judgment and Clause (b) of Section 354 states that every judgment referred to in Section 353 shall contain the point or points for determination, the decision thereon and the reasons for the decision. The trial court ought to have formulated separate points for determination of the aspects referred to above in strict compliance with Section 354 (b) Cr. P.C. rather than considering all these aspects under the heading what if any are the offences committed by the accused. However, the learned Sessions Judge has considered the points in paragraphs 21 to 23 of his judgment, and there is substantial compliance with Section. Though the learned Sessions Judge does not specifically state as to what was the common object of the unlawful assembly, it is clear from the judgment that according to the learned Sessions Judge, the object of the unlawful assembly, was not to commit murder of Vijayan, but to commit only grievous hurt to him. It is for this reason that the learned Sessions Judge acquitted accused 2 to 5 of offences punishable under Section 302 read with Section 149 IPC. The State has not filed any appeal against the acquittal of accused 1 to 5 of offence punishable under Section 302 read with Section 149 IPC and therefore we are not called upon to decide the question whether the learned Sessions Judge was justified in holding that the common object was not to commit murder, but only to commit a lesser offence. In view of the distance of time, we feel that it would cause hardship and harassment to the accused, if we remit the case to the trial court with a direction to dispose of the matter afresh after formulating necessary points. We are satisfied that there is substantial compliance with Section 354 of Code of Criminal Procedure and that no prejudice has been caused to the accused.
15. Learned counsel for the appellants next contended that Ext. P5 inquest report shows that no neighbour was questioned, that even PW. 1 the brother of Vijayan was not questioned and that only Mohanan, who is not an eye witness to the occurrence and who came to the scene on hearing about the occurrence, was questioned. The evidence of the prosecution shows that there was festival in a temple near the locality and though there were shops at the scene they were closed. The inquest report itself gives indication to this fact. The investigation itself has started on the basis of the F.I.R. prepared pursuant to Ext. P1 first information statement given by P.W. 1. In the circumstances, it is not possible to find fault with the prosecution for not examining any other witness at the time of inquest.
16. Another criticism levelled against the prosecution by the learned counsel for the appellants is that on account of the festival, people were moving but only P.W. 1 the brother of Vijayan, who according to the learned counsel, is an interested witness, alone was examined. He also submitted that though Ext. P1 first information statement of PW. 1 mentions that PW. 2 was an eye witness to the occurrence, P.W. 2 denied having seen the occurrence. He also submitted that P.Ws. 3 and 4 who were cited as eye witnesses also denied having witnessed the occurrence. They turned hostile and refused to subscribe to their version to the police and the prosecution cannot be blamed for not examining other witnesses. P.W. 2 however has admitted that when he reached the scene of occurrence he saw PW. 1 standing at the door of the pan-shop of A4. Thus, the presence of PW. 1 at the scene of occurrence has been corroborated by P.W. 2. P.W. 2 also stated about the closure of the shops on the southern side before he reached the scene of occurrence and the closure of the shops on the northern side, after he reached the scene of occurrence.
17. Similarly, PW. 3 stated that he saw Vijayan sitting at the plat-form of the pan-shop of PW. 10 while he was proceeding to the temple and to that extent, PW. 3 corroborates the evidence of PWs. 1 and 2. PW. 3 also stated that he did not remember whether he gave a statement to the Police as contained in Ext. P3, but he admitted that if police had recorded like that, it should be correct.
18. Counsel for the appellants raised a contention that since the version of P. Ws. 2 to 4, Exts. P2 to P4 have not been properly proved, P. Ws. 2 to 4 should not be treated as hostile witnesses and the evidence of those witnesses has to be treated as if those witnesses are not hostile to the prosecution. Learned counsel placed before us the decision of the Supreme Court in Tahsildar Singh v. State of U.P. AIR 1959 SC 1012: (1959 Cri LJ 1231). The Supreme Court after elaborate discussion on the interpretation of Section 162 Cr. P.C. made the following observations (para 13):--
"The procedure prescribed is that, if it is intended to contradict a witness by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him. The proviso to Section 162 of the Code of Criminal Procedure only enables the accused to make use of such statement to contradict a witness in the manner provided by Section 145 of the Evidence Act. It would be doing violence to the language of the proviso if the said statement be allowed to be used for the purpose of cross-examining a witness within the meaning of the first part of Section 145 of the Evidence Act. Nor are we impressed by the argument that it would not be possible to invoke the second part of Section 145 of the Evidence Act, without putting relevant questions under the first part thereof. The difficulty is more imaginary than real. The second part of Section 145 of the Evidence Act clearly indicates the simple procedure to be followed. To illustrate : A says in the witness-box that B stabbed C; before the police he had stated that D stabbed C. His attention can be drawn to that part of the statement made before the police which contradicts his statement in the witness box. If he admits his previous statement, no further proof is necessary; if he does not admit, the practice generally followed is to admit it subject to proof by the police officer."
19. The learned counsel argued that the learned Sessions Judge has not brought to the notice of the witnesses the relevant portions of the case diary to contradict their evidence in the case and only the beginning and the end of the portions of statements with some dotted lines in between them were alone put in inverted commas and attention of the witnesses was drawn to these portions. The learned Public Prosecutor must have read the relevant portions, but for the purpose of reducing the burden of writing, the learned Sessions Judge wrote only the beginning and the end of the portions of the statements with dotted lines in between in inverted commas. In large number of cases, which had come before us we find that this is the practice followed by some Judges, though this practice has been depricated by this Court.
20. In Krishnan Nair v. State of Kerala 1971 Ker LT 326 a Division Bench of this Court had occasion to consider the scope of the application of Section 145 of the Evidence Act. After quoting from the observations of the Supreme Court in Tahsildar Singh's case (1959 Cri LJ 1231) (supra), the Division Bench held that the Investigating Officer did not even offer formal evidence that the statements within inverted commas put to the witnesses were taken from the recorded statements under Section 162 Cr. P.C. that the statements themselves were not marked and that was a serious defect committed by the prosecution and by the Sessions Judge, and that in view of this serious defect, there is no material for them to hold that any contradictions have been established in regard to P.Ws. 2 to 5, in that case.
21. In Imbayi v. State (1989) 1 Ker LT 956 another Division Bench of this Court to which one of us is a party (Shamsuddin J.) had occasion to consider a similar question. The Court observed thus:--
"The prosecutor seems to have resorted to an unusual and irregular method, in violation of Section 162, to get the entire case diary statements of these witnesses marked en bloc. The case diary statements in full were not incorporated in the depositions. Instead, the beginning and end were put in inverted comas with dotted lines in between. Case diary statements contain contradicted and uncontradicted portions. The portions sought to be contradicted were not put to the witnesses. They were not duly proved by putting to the investigating officer also. Instead, he was made to swear generally that they said "as stated in Exts. P2, P3 and P7". Neither Section 162 of the Code of Criminal Procedure nor Section 145 of the Evidence Act was complied with in form. But it cannot be said that there was no compliance in substance or that prejudic resulted. This Court has occasion to remind judicial officers of the irregularity of resorting to such method of whole sale -marking of case diary statements. What is required to be done is when a witness is called for the prosecution in the inquiry or trial consequent on the investigation during which his statement is recorded under Section 161 and when occasion arises any part of his statement necessary should be put to him for contradiction as provided in Section 145 of the Evidence Act and duly proved through the investigating officer who recorded the same. The witness must get an opportunity of admitting or denying that statement or to give his own explanation which will have to be considered by Court. If denied the statement will have to be duly proved also. Then only it becomes admissible though the admissibility is only to be used for contradicting discrediting or considering the veracity of that witness and not otherwise to be used as substantive evidence. A contradicted and denied statement, even if duly proved, cannot be used as substantive evidence against the accused."
As stated by the Privy Council in Bhagwan Singh v. State of Punjab AIR 1952 SC 214 : (1952 Cri LJ 1131), there can be no hard and fast rule as regards the compliance with the requirements of Section 145 of the Evidence Act and what is required is that the witness must be treated fairly and be afforded a reasonable opportunity of explaining the contradictions after his attention has been drawn to them in a fair and reasonable manner. The matter is one of substance and not of mere form. In the instant case, the entire portions of the statement with which the witnesses were sought to be confronted with were not seen put to the witness. The inverted comas contained only the beginning and the end of the statements with dotted lines in between. So also portions of the statements with which the witnesses were sought to be confronted with were not put to P"W. 13, the Investigation Officer and he was only asked whether PWs. 2 to 4 had stated as contained in Exts. P2, P3 and P4. This can be hardly treated as proof of the statement.
22. In view of the aforesaid defects, we are not taking into account Exts. P2 to P4. But it will not in any way affect the other items of prosecution evidence It is also open to us to make use of those parts of the statements of P.Ws. 2 to 4 in Court which are found to be true and acceptable.
23. Learned counsel next submitted that there is only the solitary evidence of PW. 1 to support the prosecution version, and he being the brother of the deceased Vijayan, it is not at all safe to convict the accused on the basis of the sole testimony of P.W. 1.
24. We have considered the question of application of evidence of a relative witness in Crl. Appeal No. 141/86 and held that normally a relative witness is not likely to falsely implicate innocent persons and protect the real culprits. See also Vishvas Aba Kurane. v. State of Maharashtra AIR 1978 SC 414 : (1978 Cri LJ 484), State of Rajasthan v. Smt. Kalki. AIR 1981 SC 1390: (1981 Cri LJ 1012), Gurnek Singh v. State of Punjab AIR 1988 SC 2249 : (1989 Cri LJ 299), Dalip Singh v. State of Punjab AIR 1953 SC 364 : (1953 Cri LJ 1465) Gopal Singh v. State of Uttar Pradesh AIR 1979 SC 1822 : 1978 SCC (Crl) 398) : (1980 Cri LJ 832).It is also an accepted principle that even if a case against the accused hangs on the evidence of a single eye witness, it may be enough to sustain the conviction if the testimony of the single witness is found truthful and acceptable. It has not been suggested that PW 1 had any axe to grind against any of the accused. No motive is suggested to PW 1 to falsely implicate the accused and protect the real culprit. PW 1 saw the occurrence and went to Vijayan and found him dead and immediately he went to the Shertallai Police Station, 10 KM north of the place of occurrence and gave Ext. P1 statement. Ext. P1 shows that it was recorded at 8 PM i.e. within two hours of occurrence. Ext. P1 reached the court on 28-12-1985 itself. Ext. P1 substantially corroborates the evidence of PW 1 in the court. The names of all the accused are mentioned in Ext. P1. In the circumstances, we do not find any reason to reject the evidence of PW 1. The learned counsel for the appellants invited our attention to Ext. D1, which is a portion of Ext. P1, where it is stated that A3 inflicted stabs on the right shoulder of Vijayan. On a comparison of his evidence in the court with Ext. D1, we do not find any substantial variation.
25. Another contention raised by the learned counsel for the appellants is that Vijayan had no business to go to the shop of PW 10 and sit there and that the prosecution has not explained why he had come to the shop of PW 10. We do not think that we can throw away the prosecution case for this reason. There is no case for the defence that Vijayan had any motive to attack the accused on the date of occurrence and Vijayan had either attacked the accused or picked any quarrel with the accused. While Vijayan was sitting on the platform, the accused went to the place of occurrence, where Vijayan was siting, armed with weapons and A4 shouted out that they were searching for Vijayan and all of them started attacking him by inflicting stabs and cuts. No injury was caused to any of the accused and they had no case that the incident had taken place in a different manner. In their statements under Section 313 Cr. P.C., all the accused denied the occurrence. Therefore, the failure on the part of the prosecution to prove the purpose for which Vijayan went to the shop of PW 10 does not adversely effect the prosecution case in any manner.
26. Learned counsel contended that there is no evidence to show that the accused knew the presence of Vijayan at the shop of PW 10. PW 1 stated that on seeing Vijayan, A4 shouted that they were searching for him (Vijayan) and all the accused started attacking him. He also stated that all the accused were armed with weapons. From this, it is clear that, all the accused formed into an unlawful assembly for attacking Vijayan and were searching for him with deadly weapons and on meeting Vijayan on the platform of the shop of PW 10, they attacked him. It is clear from the conduct of the accused that they had come to the place of occurrence knowing about the presence of Vijayan in the shop of PW 10.
27. Another contention raised by the learned counsel is that no motive against the accused for attacking Vijayan has been established in the case. The evidence of P.W. 1 would show that one month prior to the occurrence, there was a quarrel between A2 and Vijayan at the toddy shop of P.W. 5. The evidence of PW. 1 on this aspect is corroborated by the evidence of PW. 5 to some extent. Accused 1 to 4 are brothers and the 5th accused is the companion of accused 1 to 4. PW. 5 deposed that one month prior to the occurrence, A2 was taken into custody by the Police, but Vijayan was not taken into custody. However P.W. 5 added that he did not see any confrontation between Vijayan and A2 at his shop. The learned counsel also argued that in any event, there was no immediate motive for attacking Vijayan since the alleged incident had taken place one month's prior to the occurrence. In a case where there is direct evidence failure to prove sufficient motive is no ground to discredit the testimony of the ocular witnesses regarding the occurrence.
28. The learned counsel also attacked the evidence of P.W. 1 on the ground that on seeing that his brother was attacked, P.W. 1 did not rush to the place of occurrence to rescue his brother Vijayan. Accused were 5 in number and they were armed with deadly weapons. P.W. 1 stated that he was frightened on seeing the occurrence and did not attempt to intervene and this explanation appears to us quite reasonable and acceptable.
29. Another contention raised by the learned counsel for the appellants against the evidence of P.W. 1 is that in the course of cross-examination he stated that Vijayan was wearing kaily mundu and shirt, but he did not see kaily mundu on the dead body of Vijayan. No kaily has been recovered from the dead body of Vijayan or from the scene of occurrence. We do not think that this circumstance would in any way indicate that the evidence of P.W. 1 was untrue. The kaily would have fallen on the ground, when the attack was made or when he jumped from the plat-form on receiving the attack from the accused and ran towards north. The failure to recover kaily cannot also be considered as sufficient reason to reject the prosecution evidence. It was also argued by the learned counsel that P.W. 1 was an accused in a criminal case and that therefore his evidence has to be scrutinised with caution. Learned counsel also submitted that Vijayan was accused in number of criminal cases, that therefore he had large number of enemies and that the attack must have been made by such enemies. We are unable to accept this contention also. The evidence of PW. 1 would clearly show that the accused themselves attacked Vijayan. PW. 1 stated that there are only 4 or 5 houses in between his house and the place of occurrence and the distance is only 1 /4 furlong. He is a natural witness and probable witness and his evidence appeared to be quite acceptable. Therefore there is no scope for imagining that the crime must have been committed by some other persons.
30. Another contention raised by the learned counsel for the appellants is that P.W. 1 attributed to A2 a cut with chopper on the head of Vijayan causing a bleeding injury and P.W. 11 did not notice any corresponding injury on the head of Vijayan. P.W. 11 deposed that if the victim had sustained an injury with a short cutting weapon like M.O. 2 and the victim later sustains an injury on the parietal region shattering the skull bone, the latter injury is likely to overlap the first injury. Vijayan sustained fracture of right side of skull separating frontal bone from parietal bone and fracture of right side of skull separating parietal bone from occipital bone. When a victim is attacked by stabbing and by cutting with weapons incessantly by different persons, it would be difficult to a witness to give narration with precision in the order in which, they were inflicted or the number of injuries or cuts inflicted or the places where they were fallen/Narration with such precision would be indicative of tutored nature of the evidence tendered.
31. Another items of evidence relied on by the prosecution is the discovery of MO. 1 from the place on the west of the pathway leading to the south of the road to Ponnemvely. P.W. 13, the Investigating Officer deposed that it was recovered from a place 32 meters towards south, where the dead body of Vijayan was lying. MO. 1 was covered with human blood and hair. Some hairs were taken from the dead body and Ext. P15 shows that the hairs on MO. 1 were similar to the scalp hair of the deceased, collected from the dead body. This amply proves that Vijayan was attacked with MO. 1. It also contained traces of human blood.
32. Another item of evidence relied on by the prosecution is the discovery of MOs. 2, 3, 4 and 5 pursuant to the disclosure statements made by A2, A3, A4 and A5. The statements do not make any mention of authorship of hiding and in the circumstances, we are not relying on these items of evidence.
33. The next question that has to be considered is what are the offences committed by each of the accused. It has come out in evidence that A1 beat Vijayan with MO. 1. We examined MO. 1 and it is very heavy. Learned counsel argued that it was impossible to use MO. 1 with one hand and inflict an injury. But from the evidence of PW. 1 it is clear that A1 beat Vijayan with MO. 1 using both hands. MO. 1 was recovered from near the place of occurrence and on comparison of the hairs found on MO. 1 with the hairs collected from the dead body of Vijayan it was found that the hairs in MO. 1 were similar to that of the hairs collected from the dead body of Vijayan. The evidence of P.W. 11 also shows that the injuries on the skull can be caused with MO. 1. There was long fracture of whole left side of skull fragmenting the whole bones and another fracture of right side of the skull separating frontal bone from parietal bone, and another fracture of right side of skull separating parietal bone from occipital bone. Membranes of brain was completely torn off and the brain was completely damaged and part of it is missing. Therefore, the injuries on the skull can very well be attributable to the 1st accused. The necessary intention on the part of A1 to murder Vijayan or to cause him injuries sufficient in the ordinary course of nature to cause death can very well be inferred from the conduct of A1 in beating with such a heavy weapon like MO. 1 on a vital part of body of Vijayan resulting in breaking of skull. In the circumstances, the conviction of A1 with offence punishable under Section 302 IPC is correct. It has also been proved that he is a member of the unlawful assembly and therefore his conviction and sentence under Sections 143, 147, 326 read with Section 149 IPC. are also correct and are liable to be confirmed. We accordingly do so. Since A1 is convicted for higher offence under Section 326 read with Section 149 IPC. We do not think it necessary to convict him for offences under Sections 323, and 324 read with Section 149 IPC. Accordingly, we set aside his conviction and sentence under Sections 323 and 324 read with Section 149 IPC.
34. Similarly the conviction of A2, A3 and A4 and A5 for offences punishable under Sections 143, 147 and 148 IPC and the imposition of sentence thereunder are correct and are confirmed. They formed into an unlawful assembly along with A1 with the intention of causing grievous hurt to Vijayan with deadly weapons and committed riot and other acts of violence. Therefore the conviction of accused 2 and 3 for offence punishable under Section 326 PC and imposition of sentence to undergo R.I. for 3 years on them by the lower court are correct and are confirmed. No separate conviction under Sections 323 and 324 read with Section 149 IPC are necessary as they were convicted for higher offence and therefore, we set aside the conviction and sentence of accused 2 and 3 under Sections 323 and 324 read with Section 149 IPC. We confirm the conviction of A4 for offence under Section 326 read with Section 149 IPC. No separate conviction under Section 324 read with Section 149 and under Section 323 read with Section 149 IPC is necessary and accordingly we set aside the conviction against A4 under Section 324 read with Section 149 IPC and under Section 323 read with Section 149 IPC and also the sentences imposed thereunder. Similarly we confirm the conviction and sentence awarded against A5 under Section 326 read with Section 149 IPC. Separate conviction under Sections 323 and 324 Vead with Section 149 IPC are set aside and -sentences of 6 months and 18 months respectively awarded thereunder are set aside.
In the result, subject to the above modifications. Criminal Appeal is dismissed.