Kerala High Court
Pradeep vs State Of Kerala on 5 November, 2012
Author: Sasidharan Nambiar
Bench: M.Sasidharan Nambiar, C.T.Ravikumar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE M.SASIDHARAN NAMBIAR
&
THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR
MONDAY, THE 5TH DAY OF NOVEMBER 2012/14TH KARTHIKA 1934
CRL.A.No. 812 of 2008 (B)
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SC.14/2006 of II ADDL.DISTRICT COURT,ERNAKULAM
CP.18/2004 of J.M.F.C.-II, ALUVA
CRIME NO.205/03 OF ANGAMALY P.S
APPELLANT(S)/ACCUSED NO.1:
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PRADEEP, S/O.PANKAJAKSHAN
AGED 31 YEARS, MANGALATHU VEEDU, PAZHPONGU BHAGOM
KIDANGOOR KARA, THURAVOOR, ALUVA TALUK.
BY ADVS.SRI.B.RAMAN PILLAI
SRI.R.ANIL
SRI.ANIL K.MOHAMMED
SRI.DELVIN JACOB MATHEWS
SRI.SUJESH MENON V.B.
SRI.JOSEPH P.ALEX
RESPONDENT(S)/COMPLAINANT:
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STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR
HIGH COURT OF KERALA, ERNAKULAM.
BY ADGP SRI.TOM JOSE PADINJAREKKARA
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 05-11-2012,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
M.SASIDHARAN NAMBIAR & C.T.RAVIKUMAR,JJ.
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CRL.A.NO.812 of 2008
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Dated 5th day of November, 2012
ORDER
Sasidharan Nambiar,J.
Appellant is the first accused in S.C.No.14 of 2006 before Additional Sessions Court, Ernakulam. The second accused died before evidence was recorded in the case and therefore, the charge as against him stood abated. Learned Additional Sessions Judge convicted and sentenced the appellant to imprisonment for life and fine of Rs.10,000/- and in default simple imprisonment for one year, for the offences under Sections 449, 302 and 307 read with Section 34 of the Indian Penal Code.
2. Prosecution case is that appellant was one of the accused in the case charge sheeted by the police for the murder of the CRA 812/08 2 brother of deceased Saji and, he was on inimical terms with deceased Saji. A case was registered against Saji and another for inflicting injuries on the appellant. That was also a ground for his enmity towards deceased Saji. On the evening of 14.4.2003 Saji along with PW2 Wilson Mundadan, PW3 Roban, Jojo and Eldho reached Savitha Bar, attached to Mundadan's Royal Inn, Angamaly. They were taking liquor by sitting in the northern room of the bar. Both the accused came to the bar by about 6.30 p.m. and approached them. First accused declared that they have come in search of Saji and took MO1 sword, which was kept on his back side and waved it at Saji. When Saji evaded it, it landed on his shoulder. There was a scuffle between the first accused and CRA 812/08 3 deceased Saji and both of them fell on the floor and the sword slipped out from his hand. The second accused picked the sword and attacked Saji. PW2 Wilson Mundadan, intervened. The second accused inflicted injury on PW2, with the intention to cause his death. The first accused asked the second accused to give him the "hand tool" and the second accused handed over MO2 knife to the first accused. First accused with MO2 knife inflicted several injuries on deceased Saji. PW2 also sustained injury and fell on the ground. PW3 along with others ran away from the scene. The accused also left the place. PW2 reached the reception counter and requested to inform the police. PW2 was informed that the police was already informed. When the police constables reached CRA 812/08 4 there, with their assistance PW2 took deceased Saji in an autorickshaw to Little Flower Hospital, Angamaly. The doctor on examining Saji declared him dead. On getting the information, PW15, the Sub Inspector of Police, Angamaly reached the scene of occurrence along with Police Constables. The police jeep was attacked and damaged. PW15 registered Crime No.204 of 2003 of Angamaly police station under Ext.D1 F.I.R. suo motu. PW2 who sustained injuries was examined by PW10 Dr.P.J.John. PW10 prepared Ext.P9 wound certificate at 7.05 p.m. on 14.4.2003 and admitted him as an inpatient. PW1 Subash, an employee of the bar, reached Angamaly police station at 8.30 p.m. and furnished Ext.P1 F.I. Statement. It was recorded by PW15 who prepared Ext.P1(a) F.I.R CRA 812/08 5 and registered Crime No.205 of 2003 for the offences under Sections 143, 147, 148, 452, 302, 324 and 427 read with Section 149 of the Indian Penal Code. PW16, the Circle Inspector of Police, took over the investigation on 15.4.2003. He reached Little Flower Hospital, Angamaly and prepared Ext.P3 inquest report and seized MOs 8 to 11, the dresses found on the body of deceased Saji. PW16 submitted necessary requisition for conducting postmortem examination. PW9 Dr.J.Nelson, Professor of Forensic Medicine, Medial College Hospital, Alappuzha conducted the autopsy on 15.4.2003 and prepared Ext.P8 postmortem certificate recording that Saji died due to the penetrating injuries sustained to the chest, injuries 7, 14, 15 and 16 shown in Ext.P8. PW16 reached CRA 812/08 6 the bar and prepared Ext.P5 scene mahazar and seized from the scene of occurrence MO13 Mundu, MO12 Chappals, MOs 14 and 15 broken pieces of plates, glasses etc. PW16 also got the scene of occurrence examined by PW5, the Scientific Assistant, who collected the hairs and blood samples from the scene of occurrence. They were taken possession by PW16 under Ext.P4 mahazar. Under Ext.P11 mahazar MOs 3 to 5, the dresses worn by PW2 were also seized by PW16, later when in it was produced. Ext.P20 forwarding note was submitted to send the material objects for chemical analysis. PW16 arrested both the accused at 7.40 p.m. on 30.4.2003 and questioned them. He produced them before the Magistrate on 1.5.2003. PW17, the successor Circle Inspector, took over the CRA 812/08 7 investigation on 1.5.2003. He obtained custody of the accused on 7.5.2003. Based on the information furnished by the first accused, under Ext.P6 recovery mahazar PW17 recovered MO1 sword on 8.5.2003, in the presence of PW7. Under Ext.P12 recovery mahazar he recovered MOs 7 and 9, the shirts of the accused, in the presence of PW12, the Head Constable, in whose handwriting the mahazars were prepared. PW17 recovered MO2 knife under Ext.P7 mahazar, in the presence of PW8 and PW12. The material objects were examined at the laboratory and obtained Exts.P21 and P22 reports. After completing the investigation charge was laid before Judicial First Class Magistrate-II, Aluva against both the accused for the offences under Sections 449, 302, 307 and 427 read with CRA 812/08 8 Section 34 IPC. The learned Magistrate committed the case to Sessions Court, Ernakulam who made it over for trial to Additional Sessions Court, Ernakulam. Learned Additional Sessions Judge, framed charges for the offences under Sections 449, 307, 427 and 302 read with Section 34 IPC. Later, the second accused died and hence at the time of evidence only the appellant was available. Charge against the second accused abated. The prosecution examined 17 witnesses, marked 22 exhibits and identified 16 material objects. Exts.D1 to D7 were got marked by the defence while examining the prosecution witnesses. After closing the prosecution evidence, appellant was questioned under Section 313 Cr.P.C. Appellant denied the incriminating evidence put to him and CRA 812/08 9 additionally contended that during the last seven years due to the influence of P.S.Joy, an Ex-MLA, several cases were registered against him by the Circle Inspector. Appellant is innocent. Learned Additional Sessions Judge finding that appellant cannot be acquitted under Section 232 Cr.P.C., called upon him to adduce defence evidence. Appellant examined DW1, the Sub Inspector of Police. The learned Additional Sessions Judge on the evidence, relied on the evidence of PW2 as well as the evidence of PW3 in part and found that deceased Saji and PW2 sustained the injuries recorded in Ext.P8 postmortem certificate and Ext.P9 wound certificate, respectively, from the northern room of the bar attached to Mundadan's Royal Inn on 14.4.2003 at about 6.30 p.m. as alleged CRA 812/08 10 by the prosecution. The learned Additional Sessions Judge relied on the evidence of PW9 and Ext.P8 postmortem certificate and found that Saji died due to the penetrating injuries sustained on his chest. Relying on the evidence of PWs2 and 3 it was found that those injuries were inflicted by the appellant and those injuries were inflicted in furtherance of their common intention to cause his death. The learned Additional Sessions Judge relying on the evidence of PW2 and that of PW10 corroborated by Ext.P9 wound certificate found that the injuries sustained by PW2 were inflicted by the second accused, and it was inflicted in furtherance of their common intention and those injuries were inflicted with the intention to cause his death. The CRA 812/08 11 learned Additional Sessions Judge also accepted the evidence of PW16 and found that MOs 1 and 2, were the weapons with which the injuries were inflicted and they were recovered on the information furnished by the appellant, under Exts.P6 and P7 mahazars and it further establishes that appellant inflicted the said injuries along with the second accused. Based on these findings, the appellant was found guilty and convicted for the offences under Sections 449, 302 and 307 read with Section 34 IPC. It was found that the offence under Section 427 IPC was not established. The appellant was acquitted of the said charge. He was sentenced for the offences as stated earlier. The appeal is filed challenging the conviction and the sentence.
CRA 812/08 12
3. Learned counsel appearing for the appellant and the learned Public Prosecutor were heard.
4. The learned counsel appearing for the appellant pointed out that PW15, the Sub Inspector of Police, reached the Mundadan's Royal Inn immediately after the incident, on the information received at the police station and when the police jeep was attacked, under Ext.D1 Crime No.204 of 2003 was registered against two persons and those persons were subsequently identified and Ext.D3 final report was submitted against the two accused who are co-accused along with the brother of PW2 in other cases. The learned counsel pointed out that as per Ext.D1 F.I.R. suo motu registered by PW15, the first information he received on CRA 812/08 13 reaching the scene of occurrence was that there was a fight between two rival groups and two persons sustained injuries and they were taken to the hospital. It was pointed out that in spite of this information received, PW15 did not proceed to Little Flower Hospital, Angamaly where PW2 was admitted or the dead body of deceased Saji was lying and instead got Ext.P1 F.I. Statement recorded from PW1 at 8.30 p.m. It was pointed out that, it was with the intention to suppress the true genesis and origin of the incident, PW15 did not record the F.I. Statement from PW2 who sustained injuries or deceased Saji who sustained the fatal injuries and got Ext.P1 recorded later. The learned counsel pointed out that the evidence of PW2 establish that after sustaining the CRA 812/08 14 injuries, he reached the reception of the hotel and requested to inform the police and PW2 was informed that police was already intimated and PW2 returned to the bar where the injured Saji was lying and with the help of the police who reached there, PW2 took the injured Saji in an autorickshaw to Little Flower Hospital, Angamaly and it is thus clear that when PW15 reached the scene of occurrence the deceased and PW2 were available there and still no statement from the injured was recorded or crime was registered and it was due to the influence of PW2, as admittedly he was the Secretary of Youth Congress and at that time the UDF was ruling the State and Congress was the main constituent of the UDF. It was also pointed out that Ext.P5 scene mahazar supports CRA 812/08 15 the statement in Ext.D1 that PW2 and deceased Saji sustained injuries, in a fight between two rival groups. Learned counsel pointed out that Ext.P5 discloses that the whole tables and chairs in the southern room, shown as No.20 in Ext.P10 scene plan prepared by PW11, the Village Officer, as well as the northern room shown as No.19 in Ext.P10, were found scattered and broken pieces of plates and glasses were found scattered in both the rooms and therefore, it probabilise the case in Ext.D1 that there was a fight between two groups. The learned counsel argued that if the evidence of PWs 2 and 3 is believable, there is no possibility for the displacement of the tables or the chairs in the southern room, if at all, some of the furniture in the northern room were CRA 812/08 16 displaced. The learned counsel also pointed out that, as per the evidence of PW2, he along with deceased Saji , PW3, Jojo and Eldho, reached the bar and entered the northern room, through the door on its southern wall and thereafter sat on the corner of the left side of the northern room and the entire incident occurred at that spot. It was pointed out that the scene of occurrence as described in Ext.P5 scene mahazar is both the northern and southern rooms and the scene of occurrence is not described as the corner of the northern room. Learned counsel argued that if the evidence of PWs2 and 3 is to be believed, while they were sitting at the corner of that room, both the accused came there and attacked them and in spite of the scuffle between the CRA 812/08 17 deceased and the appellant deceased and PW2 had fallen there itself and Ext.P5 shows that blood was found only on the middle of the room and not on any corner of the room, which cannot be the case if the evidence of PWs 2 and 3 is correct. The learned counsel also pointed out that there is no explanation for the presence of blood in the middle of the northern room or on the southern room, and it is therefore clear that the incident did not take place in the manner deposed by PWs 2 and 3. The learned counsel also pointed out that though PW3 is a friend of PW2 and deceased Saji, he did not support the evidence of PW2 as to how deceased Saji and PW2 sustained the injuries. The learned counsel argued that the evidence of PWs15, 16 and 17 establish that PW3 Roban, CRA 812/08 18 Eldho and Jojo who came to the bar along with PW2 and deceased Saji are included in the rowdy list of Angamaly police station and they are all involved in several criminal cases. It was argued that if the evidence of PWs 2 and 3 is to be believed, apart from PW2, deceased Saji, PW3, Eldho and Jojo who are proclaimed rowdies were percent along with them and, as admitted by the prosecution, even Saji and PW2 were involved in several criminal cases. It was argued that if the two accused approached them concealing the weapons, with the intention to attack them, it is not at all believable that PW3 along with Jojo and Eldho would run away without offering any help to Saji or PW2 and that fact itself is sufficient to disbelieve the evidence of PWs 2 and 3. The learned CRA 812/08 19 counsel also argued that as admitted by PW2, he is a political leader, who was subsequently elected as the Vice Chairman of the Municipality and who is involved in several cases, and still he did not disclose to PW10 the doctor, when Ext.P9 wound certificate was prepared, that he was attacked by the appellant or second accused and instead what was recorded in Ext.P9 wound certificate is only "assault". It is therefore argued that the case was subsequently created due to the previous enmity against the appellant and when the evidence of PW2 is contradicted by the evidence of PW3 and there is no other ocular evidence and as Jojo and Eldho, who were admittedly present at the scene of occurrence, were not examined and PW1, who claimed in Ext.P1 F.I. Statement that he CRA 812/08 20 witnessed the incident, denied it at the time of his examination and his evidence was not even challenged by the prosecution, the conviction is bad. It was also argued that the evidence of PW16 establish that after arrest of the appellant, when he was questioned by PW16 it was allegedly disclosed that the weapons were thrown away and PW17 who took over the investigation later allegedly recovered MOs 1 and 2 on the information furnished by the appellant. It was pointed out that the witnesses to Exts.P6 and P7 mahazars, PW7 and PW8, did not support the prosecution case and they only deposed that they signed in the mahazars and did not depose that they witnessed any recovery. It was also argued that the evidence of PW17 establish that the second CRA 812/08 21 attesting witness to Ext.P7 recovery mahazar was accused No.13 in Ext.D2 final report and PW3 is the third accused therein and Jojo was accused No.11 and one of the attesting witness to Ext.P13 mahazar is accused No.15 and the brother of PW2 is the first accused in that crime and one of the accused in Ext.D1 crime is accused No.18 therein. It was also pointed out that Ext.D4 final report would show that PW2 and his brother are the accused in that crime and Ext.D3 final report shows that one of the accused therein is accused No.18 therein. It was therefore, argued that it is clear that police cooked up the alleged recovery in support of the prosecution case and the weapons MOs1 and 2 were not recovered on the information furnished by the appellant. It was CRA 812/08 22 also argued that Exts.P21 and P22 reports of chemical analysis do not support the prosecution case that MOs 1 and 2 were used for inflicting the injuries on deceased Saji or PW2 as the blood group was not identified in them, though human blood was detected. It is therefore, argued that based on the evidence of PWs2 and 3 the appellant cannot be found guilty and when the prosecution did not conduct any investigation as to whose chappals were found at the scene of occurrence and on the owner of MO13 dhoti it is clear that it was not investigated because if investigated it would have revealed that they do not belong either to the deceased, PW2 or the accused. In such circumstances, the appellant is at least entitled to get the benefit of reasonable doubt. CRA 812/08 23
5. Learned Public Prosecutor argued that PW2 is the injured witness and there is no reason to disbelieve his evidence. It was argued that the motive for the appellant to attack deceased Saji is clear from the evidence as Saji was one of the accused in a case registered by the police for inflicting injuries on the appellant. It was also argued that it is not disputed that the appellant was one of the accused in the case charged by the police for the murder of the brother of Saji and hence there is additional motive for the appellant to attack deceased Saji. It was also argued that injuries were inflicted on PW2, as he intervened while Saji was being attacked and in any case, being the injured, his evidence is to be relied on and the fact that PW2 is CRA 812/08 24 involved in other cases is not a ground to disbelieve him or to view his evidence with suspicion. The learned counsel argued that though PW3 turned hostile to the prosecution on certain aspects, part of his evidence is sufficient to prove the motive as well as the presence of the appellant at the scene of occurrence, along with the second accused. It was also argued that the evidence of PW3 corroborates the evidence of PW2 that both the accused reached the bar while PW2, deceased Saji, PW3, Eldho and Jojo were consuming liquor and the first accused approached them stating that he was looking for Saji and thereafter attacked Saji and though PW3 did not corroborate the evidence of PW2 on other aspects, it is clear from the evidence of PW3 CRA 812/08 25 that both the accused reached the scene of occurrence with the intention to cause the death of Saji and attacked Saji as well as PW2.
Learned Public Prosecutor also argued that recovery of MOs 1 and 2 based on the
information furnished by the appellant under Exts.P6 and P7 recovery mahazars, establish that it was the appellant and the second accused who inflicted the injuries and caused the death of Saji and attacked and inflicted injuries on PW2 with the intention to cause death. The learned Public Prosecutor relying on the decision of the Supreme Court in State of Maharashtra v. Balram Bama Patil (AIR 1983 SC 305) argued that it is not the nature of the injury inflicted which would determine the intention to cause death and even if the injury CRA 812/08 26 inflicted is not sufficient to cause death, if there is evidence to prove that the intention was to cause death, an offence under Section 307 IPC is attracted and evidence of PW2 establish that the appellant and second accused inflicted injuries on PW2 with the intention to cause his death and the evidence of PW2 conclusively establish that appellant along with the second accused inflicted the injuries on deceased Saji and caused his death and therefore, there is no reason to interfere with the conviction or the sentence.
6. Fact that deceased Saji and PW2 sustained injuries from the Bar attached to Mundadan's Royal Inn on 14/4/2003 at about 6.30 p.m was not disputed at the time of evidence. Evidence of PW2 the injured and PW10 the doctor CRA 812/08 27 with Ext.P9 wound certificate establish that PW10 examined PW2 at 7.05 p.m on 14/4/2003. Evidence of PW2 that deceased Saji was taken to Little Flower Hospital, Angamaly immediately after sustaining the injuries and on examination the doctor declared that the deceased dead was also not disputed. Ext.P8 postmortem certificate issued by PW9 Dr.Nelson, Professor of Forensic Medicine, Medical College Hospital, Alappuzha establish that he conducted autopsy on the body of deceased Saji on 15/4/2003 between 2.45 p.m and 4.30 p.m and PW9 noted the following antemortem injuries.
1. Incised wound 3x0.5 cm bone deep obliquely placed on the middle of the forehead 1 cm above the bridge of nose.
2. Incised wound 3x0.7 cm bone deep on the right side of face 4 cm in CRA 812/08 28 front of the ear.
3. Incised wound 1.5 x 1 cm muscle deep 2.5 cm below injury No.2.
4. Incised wound 3 x 0.5 cm muscle deep on the front of right shoulder 2 cm below its tip.
5. Incised wound 8 x 1 cm muscle deep on the outer aspect of right shoulder 7 cm below its tip.
6. Incised wound 3 x 0.5 cm on the back of right shoulder 4 cm behind injury No.5.
7. Incised penetrating wound 4x1 cm, 4.5 c.m deep, obliquely placed on the outer aspect right chest 20 cm below the armpit. The upper end was sharply cut, the other end was blunt. The wound entered the right chest cavity through the 5th intercostal space and terminated by cutting the upper lobe of right lung. The wound was directed backwards, downwards and to the left. Right chest cavity contained 650 ml CRA 812/08 29 of blood.
8. Incised wound 4 x 0.5 cm muscle deep on the inner aspect of right thigh 6 cm below the inguinal region.
9. Skin deep incised wound 10 cm long obliquely placed on the inner aspect of right thigh 10 cm above the knee.
10. Incised wound 8 x 3 cm bone deep obliquely placed on the outer aspect of right ankle.
11. Incised wound 3 x 0.5 cm muscle deep on the outer aspect of right thigh 10 cm below the iliac crest.
12. Skin deep curved incised wound 4 x 0.2 cm with its concavity downwards on the back of left forearm 8 cm above the wrist.
13. Incised wound 10 x 3 cm muscle deep obliquely placed on the middle of the back of left forearm.
14. Incised penetrating wound 4 x 1 cm, 5 cm deep, on the back of left chest 15 cm below the root of neck.
CRA 812/08 30
The wound entered the left chest cavity and terminated by cutting the lower lobe of left lung. The wound was directed forwards, downwards and to the left. The left chest cavity contained 500 ml of blood.
15. Incised penetrating wound 4 x 0.5 cm, 5 cm deep, obliquely placed on the middle of the back of chest 23 cm below the root of neck. The wound entered the left chest cavity and terminated by cutting the lower lobe of left lung. The wound was directed forwards, downwards and to the left.
16. Incised penetrating wound 4.5 x 0.5 cm, 5 cm deep, obliquely placed on the back of right chest 9 cm to the right of midline and 8 cm below the level of the shoulder blade. The wound entered the left chest cavity and terminated by cutting the lower lobe of the left lung. The wound was directed forwards, downwards and to CRA 812/08 31 the left.
17. Incised wound 3 x 1 cm, muscle deep, on the back of right chest 9 cm to the right of injury No.16.
18. Incised wound 2x1 cm muscle deep, on the right side of the back of neck 1 cm above the root of neck.
19. Incised wound 4 x 0.5 cm bone deep, on the left side of the back of head, 5 cm to the left of midline, the skull bone underneath showed a superficial cut.
Injury Nos.7, 14, 15 and 16 are incised penetrating injuries on the chest. Evidence of PW9 that death was caused by those four penetrating injuries sustained on the chest was also not challenged. It is clear from the description of injury Nos.7, 14, 15 and 16 and the evidence of PW9 corroborated by Ext.P8 CRA 812/08 32 postmortem certificate that death was caused due to the said penetrating injuries sustained on the chest. Evidence of PW9 that those injuries are independently sufficient in the ordinary course of nature to cause the death was also not challenged in cross examination. From the nature of the said injuries, and the evidence of PW9 as corroborated by Ext.P8 postmortem certificate, it is also conclusively proved that those injuries sustained on the chest, are sufficient in the ordinary course of nature to cause death.
7. The question is whether the appellant and deceased second accused inflicted those injuries on the deceased Saji and caused his death. Prosecution is relying on the evidence of Pws.2 and 3 to prove how deceased CRA 812/08 33 Saji sustained injuries. Jojo and Eldho who according to Pws.2,3 and the prosecution, were with them at the time of the incident were not examined. No other witness present at the Bar, whether on the northern room or southern room was examined. Though it was PW1 who lodged Ext.P1 FI statement and he claimed in Ext.P1 that he witnessed the incident, when examined before the Court, PW1 deposed that he did not witness the incident. According to PW1 he reached the scene of occurrence only after the incident and he found PW2 and the deceased lying on the floor and did not know who inflicted the injuries or how the incident occurred. As rightly pointed out by the learned counsel, even though PW1 did not support his version in Ext.P1 FI statement, learned Public CRA 812/08 34 Prosecutor did not seek permission to cross examine PW1 with reference to his statement in Ext.P1 in spite of the fact that PW1 deposed that he only affixed his signature in Ext.P1 as a blank paper when the police reached at the scene of occurrence. Therefore, the only available evidence on record as to how the incident occurred and how PW2 and deceased Saji sustained injuries is that of PW2 and PW3.
8. Learned Additional Sessions Judge relied on the evidence of PW2 finding that he is an injured witness and there is no reason to disbelieve him. Portion of the evidence of PW3, was also relied on, though he did not support the entire prosecution case and was declared hostile and was cross examined. The question is how far the evidence of PW2 and CRA 812/08 35 the portion of the evidence of PW3, which supports the prosecution case, is trustworthy and reliable.
9. The incident as stated earlier occurred at about 6.30 p.m inside the Bar attached to Mundadan's Royal Inn at Angamaly. Evidence of Pws.2 and 3 and PW16 the Investigating Officer, with Ext.P5 scene mahazar establish that the Bar consists of two rooms. One on the north and other on the south. The entry to the Bar is through the southern door of the southern room. There is a Bar counter on the western side of the southern room. The entry to the northern room is from the southern room and that entry, hemisphere in shape, is almost on the middle of the wall without any shutters. Though as per the CRA 812/08 36 prosecution case the entire incident occurred on the northern room, Ext.P5 scene mahazar was prepared, as if the scene of occurrence is not only the northern room, but also the southern room. Where exactly the incident occurred is not specified. For proper appreciation of the evidence of Pws.2 and 3 it is a relevant and material aspect.
10. The evidence of PW2 whose presence at the scene of occurrence was not disputed establish that he along with deceased Saji, PW3, Jojo and Eldho came to the Bar and entered the northern Bar room and sat on the left corner of the northern room, on entering the said room. If that evidence of PW2 is correct, it can only be taken that PW2 along with deceased Saji, Pw.3 and others were sitting on CRA 812/08 37 the south western corner of the said room. Learned Public Prosecutor argued that it was not on the south western corner but on the north western corner PW2, deceased and others were sitting and consuming liquor. But there is no evidence as to where exactly PW2 and others were sitting at the time of the incident, except the said version of PW2. It is true that in the final report submitted before the Court, based on which cognizance was taken, the scene of occurrence is described viz. where PW2 and the deceased were sitting as the north western corner. But we have scanned the entire evidence and found that except the evidence of PW2 there is no other evidence or material to find out where exactly the deceased, PW2, PW3 and others were sitting. CRA 812/08 38 If the said place is to be located on the evidence of PW2, it can only be the south western corner of that room. As stated earlier entry to the northern room is through the door on the middle of the southern wall of the northern room and that entry is from the southern Bar room and it is the northern wall of the southern room. If one enters through that door and is sitting on his left corner, as deposed by PW2, it can never be the north western corner as canvassed by the learned Public Prosecutor. If it is to be the north western corner, Pws.2, 3 and others should enter northern room and proceed towards the northern end and thereafter towards western end. Evidence of PW2 does not give any indication that they entered the northern room CRA 812/08 39 and moved towards northern wall. Instead his evidence is that they sat on the left corner of the room on their entrance, which could only be the south western corner of northern room.
11. Evidence of PW2 establish that after sustaining injuries he ran towards the reception counter and requested them to inform police. PW2 in turn was told that police was already informed. Evidence of PW2 further establish that he returned back to the northern bar room where deceased Saji sustaining injuries, was lying and police constables reached there and PW2 took the injured Saji in an autorickshaw to Little Flower Hospital, Angamaly with the help of said police constables. Therefore, it is clear from the evidence of PW2 that police was informed of the CRA 812/08 40 incident immediately and police reached there before the deceased Saji and PW2 were taken from the scene of occurrence to the hospital. It is pertinent to note that Ext.P1 FI statement was recorded at 8.30 p.m from the police station, as if the statement was furnished by PW1, an eye witness. Evidence of PW1 shows that he did not proceed to the police station as seen in Ext.P1. On the other hand, his evidence is that he affixed his signature in a blank paper, when the police reached the Bar. As stated earlier, this evidence of PW1 was not challenged by the Public Prosecutor and therefore, it cannot be ignored or disbelieved. This fact has significance in appreciating the evidence.
12. Evidence of PW15 the Sub CRA 812/08 41 Inspector shows that he reached the Bar on getting information about the incident without delay. Ext.D1 Crime No.204/2003 was registered by PW15 at 7.15 p.m on the same day suo moto. His report in Ext.D1 discloses that while PW15 was in the police station he got information that there is a fight inside Mundadan's Bar at Angamaly and therefore, along with Head Constable and two police constables he reached there in the police jeep and he got information that the two injured were already taken to Little Flower Hospital, Angamaly. As per the said report when PW15 was about to proceed to the hospital, the jeep was attacked by two persons causing damages and therefore, the crime was registered under Section 3(1) of Prevention of Damages to Public Property Act CRA 812/08 42 and Section 27 of the Arms Act. Evidence of PW15 with Ext.D3 its final report establish that subsequently the two accused in that crime were identified as Salson @ Jaison and one Ratheesh. It is pertinent to note that the statement contained in Ext.D1 report was denied by PW15, partly when he was examined. When his case in Ext.D1 is that he got information while he was inside police station and proceeded to the scene from the police station. At the time of his evidence PW15 claimed that he was on patrol duty and the information was received at the police station and it was conveyed to him and he reached the scene of occurrence. Ext.D1 also shows that when PW15 reached the scene of occurrence it was disclosed to him, by persons present therein, CRA 812/08 43 that there was a fight inside the bar between two groups and in that fight two rival persons sustained injuries and they were taken to the hospital. When PW15 was examined he did not support that version. Even though Ext.P1 FI statement was recorded within two hours of the incident and thereby it can definitely be said that there was no undue delay in registering the crime, it is not the delay which is material but the reason for the delay. If the evidence of PW2 is to be believed, it can only be taken that PW15 along with Head Constable and Police Constables reached the Bar before PW2 and the injured were taken to the hospital. Learned Public Prosecutor made an attempt to explain that police constables referred to by PW2 in cross examination are not the police CRA 812/08 44 constables accompanying PW15, but some other police constable who reached there. Unfortunately, for the Prosecutor, there is no evidence that any other police constable reached the scene of occurrence before PW15 with the police constables reached there. More over, evidence of PW2 establish that when he requested the receptionist to inform the police, he was told that police was already informed and presence of police constables thereafter as spoken to by PW2 could only be the police constables who reached there on getting that information. When there is no evidence that any other police constable except the police constables referred to in Ext.D1 reached there, it cannot be believed that the police constables who reached there and CRA 812/08 45 assisted PW2 to take the injured Saji to the hospital were not the police constables who came along with PW15. If that be the case, it is clear that statement in Ext.D1 that the injured were already taken to the hospital before PW15 reached there can never be true. Normally there is no reason for PW15 to lodge incorrect facts in Ext.D1. But when PW15 himself deposed that facts stated in Ext.D1 are not fully correct, in the light of the evidence of PW2, it can only be believed that PW15 reached the scene of occurrence before PW2 and deceased Saji were taken to the hospital. PW15 also admitted that what is stated in Ext.D1 is fully true. On the evidence it can only be found that PW15 reached there before the injured were taken to the hospital and the CRA 812/08 46 information he could collect from the scene of occurrence disclosed to him was that PW2 and deceased Saji sustained injuries when there was fight between two rival groups inside the Bar at about 6.30 p.m.
13. Evidence of PW2 establish that he is a local political leader. He was the Secretary of Youth Congress during the time of the incident and was later elected as Vice Chairman of Angamaly Municipality. It was also admitted that during the time of the incident UDF was ruling the State and Indian National Congress Party was its main constituent. In such circumstances, possibility of political clout recording Ext.D1 even before registering a crime on before registering a crime on the first incident whereunder PW2 and deceased Saji CRA 812/08 47 sustained injuries.
14. The question is for what reason PW15 delayed recording the statement from the injured and register the crime on the first incident and why later PW1 was made to furnish Ext.P1 FI statement, even though he was not an eye witness to the incident. From the facts and circumstances brought out in evidence, it could only be for the reason that PW15 wanted to mould a case after due deliberations according to wishes of PW2. Even if the version of PW15 that before he reached the scene, the injured were taken to hospital is true, in the normal course the proper method to be adopted by PW15 was to reach the hospital and record the FI statement either from PW2 the injured or some other eye witness if PW2 is not in a CRA 812/08 48 position to disclose the facts and register the crime. Instead of following that legal and proper course, we find that PW15 first registered Crime No.204/2003, instead of the crime on the incident which occurred first and that too for committing damages to the police jeep and did not reach the hospital and made no attempt to get the crime registered on the first incident after recording the statement of PW2. The purpose is clear. Recording of the statement of PW2 is to be delayed, as persons who are to be brought to book is to be decided later after deliberations. If that be so, evidence of PW2, though he is an injured witness warrants minute scrutiny, especially when even PW3 his on friend was not prepared to support the entire case.
CRA 812/08 49
15. Evidence of PW2 and PW3 establish that Pws.2, 3, deceased Saji, Eldho and Jojo reached the Bar and sat on the northern room and were consuming liquor. Though PW2 deposed that they came together, evidence of PW3 shows that PW2, deceased Saji and PW3 were standing in front of Arya Bhavan Hotel and Jojo came there in a car and took them in the car and they reached the Bar. According to PW3 by that time Eldho was contacted and he also reached the Bar and they were taking liquor. Though PW2 claimed that he had only taken beer, the others were drinking Brandy. Evidence of PW2 establish that though he is a local political leader, he is involved in several crimes. PW2 deposed that he is an accused in four or five crimes. Evidence of PW2 also CRA 812/08 50 shows that PW3, Jojo and Eldho are in the rowdy list prepared by Angamaly police and Jaison, the brother of PW2 is also one among the persons in the rowdy list and at the time of examination of PW2 Jaison was in jail.
16. Evidence of PW2 and PW15 with Ext.D1 and D3 final reports submitted in Crime No.204/2003, establish that Salson @ Jaison who is one of the accused in Ext.D1 crime was also the first accused in Crime No.526/2003 registered for the offence under Section 308 of Indian Penal Code. Jojo who was with PW2 at the time of the incident was the third accused therein. Evidence further establish that in Crime No.384/2003 evidenced by Ext.D2, brother of PW2 is the first accused. PW3 is third accused. Jojo is accused No.11. So also one of CRA 812/08 51 the witnesses to Ext.P6 recovery mahazar was accused No.17 and one of the attesting witness to Ext.P13 is accused No.15. So also accused No.18 therein is Salson @ Jaison who is the first accused in Crime No.204/2003. Evidence of PW15 with Ext.D4 establish that second accused in Crime No.179/2001 is PW2 and the third accused is his brother Jaison. Evidence of PW15 with Exts.D5 and D6 establish that first accused in Crime No.236/1999 and Crime No.219/2001 is PW2. It is thus clear from the evidence that PW2, PW3, Jojo and Eldho were the accused in various crimes. Evidence of PW2 and PW16 the Investigating Officer would establish that deceased Saji was also an accused in several crimes.
17. Ext.D5 with the evidence of CRA 812/08 52 PW16 establish that deceased Saji and his brother are the accused for attacking the appellant herein. Evidence of PW13 and PW14 establish that deceased Saji and his brother were the accused in Crime No.342/2001, for attacking the accused. In the light of the evidence it is clear that PW2, PW3, deceased Saji, Eldho and Jojo were all involved in several crimes and many of them including the brother of PW2 are included in the rowdy list prepared by the police. With this criminal background of Pws.2 and 3, deceased Saji, Jojo and Eldho evidence of PW2 is to be appreciated.
18. True as held by the Supreme Court in State of U.P v. Farid Khan and others (2005 KHC 1522), fact that an eye witness is CRA 812/08 53 having criminal background by itself is not a sufficient reason to discard his evidence, if it is otherwise trustworthy and reliable. But the conduct of the witness as well as the persons who were present at the scene of occurrence cannot be appreciated in isolation de hors of their criminal background as to how such persons would react to a certain situation. If we are to believe the evidence of PW2 while he along with deceased Saji, PW3, Eldho and Jojo were sitting and drinking liquor, appellant along with second accused reached there. First accused revealed to deceased Saji that they were looking for him and all of a sudden took out MO.1 sword which was concealed on his back side and waived at his neck. When Saji evaded it, it landed on his CRA 812/08 54 shoulder and there arose a scuffle between Saji and the appellant. Saji fell on the ground and the sword from the hands of the appellant slipped away. Second accused took that sword and attacked Saji. PW2 finding it intervened. Then second accused attacked him with the sword and inflicted injuries on PW2. The appellant asked second accused to hand over hand tool (ssI SqD) which is described by PW2 as a knife having a length of one foot. By that time PW2 also fell on the ground and he saw the appellant inflicting injuries on deceased Saji with MO.2 hand tool. If this evidence of PW2 is to be believed PW3, Eldho and Jojo who are proclaimed rowdies remained silent spectators and did not help either Saji or PW2 to prevent the appellant and second accused from attacking CRA 812/08 55 them. It cannot be believed from the nature and character of PW3, Jojo and Eldho. Evidence of PW3 on the other hand shows that after the second accused inflicted injuries on the deceased Saji, Sajeevan (it could be the second accused and not deceased Saji) asked PW3 and others to escape and PW3 ran away from the spot. PW3 did not claim that Jojo and Eldho also ran away from the spot. If the version of Pws.2 and 3 is correct, PW3, Eldho and Jojo did not offer any help to his friends, which can never be believed. More over, as to the details of the incident spoken by PW2, PW3 had given a different story. According to PW3 also PW2, deceased Saji, himself Eldho and Jojo were drinking liquor from the northern room. While so, appellant and second accused came there CRA 812/08 56 and appellant told deceased Saji that they came there to see him. According to PW3 there was some talk between deceased Saji and the appellant and thereafter a scuffle arose and as a result both of them fell on the ground. PW3 deposed that when deceased Saji was lying on the floor, appellant inflicted injury on him with sword and asked PW3 and others to run away and he ran away and he did not witness any other incident. If the said version of PW3 is correct, the version as to what occurred there as spoken to by PW2 cannot be correct. If appellant had taken a sword and inflicted injury on the shoulder of deceased Saji, before there was a scuffle and Saji fell on the floor as deposed by PW2, PW3 would have definitely witnessed it and if so, we find no CRA 812/08 57 reason why PW2 suppressed such an incident. If the evidence of PW3 is correct, before he ran away from the spot, the appellant did not ask the second accused to hand over the hand tool and he did not see the second accused handing over the hand tool to the appellant or the appellant inflicting any injury on PW2. Learned Public Prosecutor submitted that PW2 did not depose these facts because of the fear and the apprehension that appellant would attack him later. We find no basis for such an excuse for PW3 because if PW3 was afraid of the appellant he would not have deposed that he found the appellant approaching deceased Saji or engaging in a scuffle with deceased Saji. More over, though PW3 was declared hostile and portions of his statement, which are not in conformity CRA 812/08 58 with the evidence of PW2 were confronted and marked, it was not even suggested that what was allegedly disclosed to PW16 and recorded under Section 161 of Code of Criminal Procedure are the true versions and the facts deposed from the box are not the true facts. As it is clear that PW3 is a close friend of PW2 as well as deceased Saji, if the incident as spoken to by PW2 is correct, we find no reason why PW3 did not support the version of PW2. It is thus clear that evidence of PW3 is not corroborating the evidence of PW2 as to how the incident occurred.
19. There is intrinsic evidence to doubt the correctness of the version given by PW2 as stated earlier. PW15 reached the scene of occurrence immediately and what PW15 could CRA 812/08 59 gather at that time was that PW2 and deceased Saji sustained injuries during a fight between two rival groups inside the Bar. The probability of such a fight is corroborated by the materials furnished in Ext.P5 scene mahazar. As stated earlier there are two rooms in the Bar, northern room and a southern room. It is also brought out from the evidence of PW16 and Ext.P5 scene mahazar that in both the rooms there were tables and chairs for the customers. If the incident occurred at the place where deceased Saji, Pws.2 and 3 and others were sitting and consuming liquor, the scene of occurrence could only be the south western corner of the northern room, as we have already found that PW2 and others were sitting on the south western corner. As per the CRA 812/08 60 evidence of PW2 he was sitting on the corner and on his left side was the wall and on the right side deceased Saji, when the accused came there. Evidence of PW2 or PW3 do not disclose that deceased Saji or PW2 had moved from that corner except the case that they had fallen on the floor. If the incident occurred on the south western corner, and PW2 and deceased Saji sustained injuries from there, there would have been some blood marks on the south western corner, especially when the injuries sustained by deceased Saji, especially the four penetrating injuries on the chest, which are bleeding and sufficient in the ordinary course of nature to cause death. Instead Ext.P5 scene mahazar shows that blood was found accumulated on the middle portion of northern room. Neither CRA 812/08 61 PW2 nor PW3 has a case that the incident occurred on the middle of the northern room or injured Saji was taken to the middle of the room and was made to lie there or after sustaining injuries he moved towards the middle of the room and fell at that place. Even if PW2 and deceased Saji were sitting on the north western corner as, canvassed by the learned Public Prosecutor, Ext.P5 does not show any blood marks on the north western corner also. Ext.P5 shows that MO.13 Dhothi was found at the scene of occurrence, 1.40 meters to the west of eastern wall and two pairs of chappels and two separate chappels were found near the southern wall of the northern room. It is clear that something occurred near the southern wall of the northern room. PW16 did not conduct CRA 812/08 62 any investigation on the identity of the chappels or MO.13 dhothi. There is no case for the prosecution that Mo.13 Dhothi belongs either to deceased Saji or injured PW2 or any of the accused. So also prosecution has no case that the chappels found at the scene of occurrence is that of either the accused or the injured or the deceased. If that be the case, the question is how those chappels and dhothy happened to be there at the scene of occurrence. There is no explanation. Though learned Public Prosecutor argued that it could be that of the other customers, who were present in the Bar and who ran away from the scene by seeing the incident, we find no material in support of such a submission. As stated earlier the failure of the Investigating CRA 812/08 63 Officer to investigate on the identity of chappels and dhothi could only be due to his anxiety to suppress that they do not belong to the accused or the injured, as prosecution cannot offer any explanation for the presence of the chappels or the dhothi in any other way and their presence would probablise the statement in Ext.D1 that there was a fight between two rival groups in the Bar whereunder two persons sustained injuries. Ext.P5 also shows that tables and chairs found on both northern and southern rooms were displaced, plates and glasses were broken. It also probablise the theory that there was a first fight between the two groups. It is also seen that blood drops were found in the southern Bar room. Neither PW2 nor PW3 offered any CRA 812/08 64 explanation for the displacement of the chairs or tables or broken glasses or plates in both the rooms. Though learned Public Prosecutor made an attempt to explain submitting that it could be, when the customers ran from two rooms seeing the incident, when there is no evidence to support such a possibility the said explanation cannot be accepted. We find that these aspects only probablise the version collected by PW15 and recorded in Ext.D1 that there was a fight between two rival groups. The evidence of Pws.2 and 3 if appreciated in this background, it is not possible to repose faith on the version given by Pws.2 and 3. It is clear that the incident did not occur as deposed by Pws.2 and 3. That could only be the reason why PW15 did not record the statement of CRA 812/08 65 PW2 immediately on reaching the scene of occurrence or even send an officer to the hospital for recording the statement of PW2, and register the crime, even though that crime is far more serious than the crime registered under Ext.D1 FIR. The attempt could only be to suppress material facts so as to implicate persons on the choice of PW2 at a later stage. If that be so, even though on the ground that Pws.2 and 3 are having criminal background, their evidence cannot be discarded, when their evidence is not wholly reliable and contradictory and the three other eye witnesses, who even according to the prosecution were present at the scene of occurrence, were not examined and none of the other customers in the Bar who were either in CRA 812/08 66 the northern room or the southern room were examined, it is clear that the true genesis of the incident was not unveiled by the prosecution. Though learned Public Prosecutor argued that recovery of MO.1 under Ext.P6 recovery mahazar and Mo.2 under Ext.P7 recovery mahazar proved by the evidence of PW16 and PW12 Head Constable, establish that those weapons were recovered on the information furnished by the appellant, we find even the recovery is not wholly reliable. When the evidence of Pws.2 and 3 is unreliable, based on the recovery of Mos.1 and 2 alone, it cannot be found that appellant and the second accused inflicted injuries as alleged by the prosecution.
20. Even though PW2 is an injured, we CRA 812/08 67 find it not at all safe to rely on his evidence to find that the injuries sustained by him were inflicted by the second appellant in furtherance of his common intention with the appellant. Even if the evidence of PW2 is to be believed, second accused inflicted injuries on PW2, only because PW2 intervened when the second accused attacked deceased Saji and appellant had no common intention to inflict any injury on PW2. Evidence of PW2 establish that appellant by himself did not inflict any injury on PW2. In such circumstances, even the conviction of the appellant for the offence for inflicting injuries on PW2 cannot be sustained. In such circumstances, conviction of the appellant with the aid of Section 34 of Indian Penal Code for the offences under Sections 302, CRA 812/08 68 307 and 449 of Indian Penal Code cannot be sustained.
Appeal is allowed. Conviction of the appellant for the offences under Sections 302, 307 and 449 read with Section 34 of Indian Penal Code by Second Additional Sessions Judge, Ernakulam in S.C.14/2006 is set aside. Appellant is found not guilty of the offences charged. He is acquitted. If the appellant is not wanted in any other case, he shall be released from prison forthwith.
M.SASIDHARAN NAMBIAR, JUDGE.
C.T.RAVIKUMAR, JUDGE.
Tks/uj.