Beeran vs State Of Kerala on 15 November, 2024

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Kerala High Court

Beeran vs State Of Kerala on 15 November, 2024

These appeals are filed against the judgment of conviction and sentence passed by the the Addl.Sessions Court-II, Manjeri, in Sessions Case No.435/2010. Crl.Appeal No.1186/2017 was filed by the accused 8 and 9, Crl.Appeal No.8/2018 was filed by the 11th accused and Crl.Appeal No.107/2018 was filed by accused 1 to 6 and 10.

2. Altogether there are 11 accused persons in the case. Out of which, accused No.7 died during the pendency of the appeal and therefore, charge against accused No.7 abated. After the conclusion of the trial as against the remaining accused persons, the trial court found all of them guilty under Sections 143, 147, 148, 341, 324, 326, 307 and 302 r/w Section 149 of IPC and convicted and sentenced them for various punishments including imprisonment for life and fine under Section 302 of IPC. Aggrieved by the above judgment of conviction and sentence, they have preferred these appeals. After filing Crl.Appeal No.1186/2017 accused No.8 also died. Therefore, the charge against accused No.8 also abated. Crl. Appeal. Nos.1186/2017, 8/2018 &107/2018 6 2024:KER:85293

3. The prosecution case is that on 29.8.2008 at about 1.30 p.m., the accused persons formed themselves into an unlawful assembly, armed with deadly weapons like knife, iron pipe etc. with the common object to wreak vengeance against the members of the rival group in Kottakkal Kuttipuram Juma Mosque, including the deceased Abdu, Aboobacker as well as PWs1 to 6 and and in prosecution of the common object, attacked them after the Juma prayers and inflicted grievous injuries to all of them and as a result of which, Abdu and Aboobacker succumbed to the injuries.

4. The evidence in the case consists of the oral testimonies of PW1 to 22 and Exts.P1 to P73 on the side of the prosecution. MOs 1 to 34 were identified. On the side of the accused persons, DW1 to 8 were examined and Exts.D1 to D31 marked. After evaluating the available evidence, the trial court found the accused persons 1 to 6 and 8 to 11 guilty of all the charges levelled against them. Aggrieved by the above judgment of conviction and sentence they have preferred these appeals raising various contentions.

5. Now the points that arise for consideration are the following :-

(i) Whether the prosecution has succeeded in proving the charges against the accused persons 1 to 6, 10 and 11 as alleged ?

(ii) Whether the impugned judgment of conviction and sentence Crl. Appeal. Nos.1186/2017, 8/2018 &107/2018 7 2024:KER:85293 calls for any interference, in the light of the grounds raised in the appeals ?

6. Heard the learned Senior counsel Sri.B.Raman Pillai on behalf of accused persons 1 to 6, 9 and 11 and Sri.S.Rajeev on behalf of accused No.10. On the side of the prosecution, the learned Public Prosecutor Sri.E.C.Bineesh was also heard in detail.

7. The points :- Sri.B.Raman Pillai the learned Senior counsel would argue that in this case really the witnesses namely PWs1 to 7 are the real aggressors who have commenced the attack against one Rayinkutty, one Unneenkutty and the accused persons with deadly weapons and inflicted serious injuries on their body. According to him, the prosecution has not explained the manner in which they have sustained those injuries and also miserably failed in proving the charge against the accused persons. Therefore, he prayed for acquitting the accused persons. Sri.S.Rajeev, the learned counsel for the 10th accused also prayed for acquitting the accused persons. On the other hand, the learned Public Prosecutor would argue that the prosecution has succeeded in proving the charge against the accused persons and there is no valid grounds for interfering with the impugned judgment of conviction and sentence. He would also argue that since a counter case was registered against the main witnesses in this case, there is no suppression of Crl. Appeal. Nos.1186/2017, 8/2018 &107/2018 8 2024:KER:85293 injuries of accused, as alleged. Therefore, he prayed for dismissing the appeals and for sustaining the conviction as against all the accused persons.

8. The incident occurred at the premises of Kuttipuram Juma Mosque on 29.8.2008 between 1.30 pm and 1.45 pm. PW1 Ahammedkutty Haji and his father Muhammed Haji were the President of the Juma-ath for the past several years. It has come out in evidence that there was an attempt to oust PW1 from the post of the President of the Jama-ath at the instance of the accused persons. In connection with the above dispute, there was a clash on 29.8.2008 between the supporters of PW1 on the one side and his opponents on the other side. In the incident, two brothers of PW1 namely Abdu and Aboobacker died and several supporters on both sides sustained injuries. In that respect, Kuttipuram police registered two crimes, 431/2008 and 432/2008. The offences involved in the counter case against PW1 and others includes section 307 IPC. Both the cases were tried simultaneously by the Sessions Court and in both the cases all the accused persons involved therein were convicted. With respect to the conviction in the counter case, another Crl. Appeal is also pending before this Court, which is being heard simultaneously along with these appeals.

9. PW1, one of the injured, would swear that on 29.8.2008 between 1.30 and 1.45 p.m he was attending the Juma prayer at the Juma-ath mosque Crl. Appeal. Nos.1186/2017, 8/2018 &107/2018 9 2024:KER:85293 at Kuttipuram. While so, he saw the 1st accused talking loudly towards his father Muhammed Haji. When he went near his father and the 1 st accused, the 1st accused took out a knife from scabbard and brandished the same towards him, which he evaded. When the 1st accused brandished again, he blocked the same and it hit on his left wrist causing injury. At that time, one K.C.Rayin Kutty threw a bucket towards him. When his brother Aboobacker came out of the mosque, accused persons 1, 4, 5, 6 and 9 surrounded him and the 2 nd accused stabbed on his chest repeatedly using a knife. The 8 th accused also stabbed on his chest, using a knife. The 3rd accused hacked on his right hand above elbow using a knife. When he tried to save Aboobacker, the 2nd accused approached him with a knife and hence he ran towards the parking area of the mosque. His another brother Abdu was standing at the southern end of the veranda. He saw the accused persons 1 and 8 stabbing Abdu using a knife. Accused persons 5, 7, 9 and 11 surrounded Abdu and at that time, the 2 nd accused stabbed on the chest of Abdu and the 1st accused hacked on his wrist. The 10th accused beat on his head using an iron pipe. When PW2 Muhammed Fazil tried to stop them from attacking Abdu, the 10 th accused beat PW2 on his head using an iron pipe. He would further swear that his father Muhammed Haji (CW6) was held by accused persons 10 and 11 and at that time, the 1st accused stabbed on the stomach of his father using a knife. Crl. Appeal. Nos.1186/2017, 8/2018 &107/2018 10 2024:KER:85293 According to PW1, all the injured persons were taken to Al-Mas hospital, Kottakkal and by that time, his brother Abdu died. From Al-Mas hospital, they were referred to Medical College hospital, Kozhikode, and on the way to Medical College hospital, Aboobacker also died. Since there was no bed in the Medical College hospital, they were admitted in National hospital, Kozhikode. His son Muhammed Shameem was admitted in MIMS hospital. He would swear that in respect of the above incident, he had given Ext.P1 FI statement to the police. He identified MO5 as the knife used by the 2 nd accused to attack them and MO6 as the iron pipe used by the 10th accused.

10. PW2 Muhammed Fazil is the nephew of PW1. He would swear that on 29.8.2008 at about 1.30 p.m. he attended Juma prayers at Kuttipuram Juma-ath mosque, which was followed by the function called Dikhr. At that time, he heard a scream from the veranda. When he went to the veranda, he saw Aboobacker being surrounded by accused persons 1 to 6, 8 and 9. He further saw the 2nd accused stabbing Aboobacker using a knife on his chest. The 3rd accused hacked on his left hand and the 8 th accused stabbed on his chest with a knife. Further, according to him, he saw Abdu at the southern end of the veranda surrounded by accused persons 1, 2, 5, 7, 10 and 11. The 2nd accused stabbed on his chest using a knife and the 1 st accused hacked on his right hand. Accused No.10 beat on his head using an iron pipe. When Crl. Appeal. Nos.1186/2017, 8/2018 &107/2018 11 2024:KER:85293 PW2 tried to stop the accused persons, the 10th accused beat on his head using the iron pipe. He would further swear that CW6, father of PW1 was held by accused persons 10 and 11 and at that time, he was stabbed by the 1 st accused on his stomach. He also would swear that in the incident, Abdu and Aboobacker died and he was admitted in National hospital. He also identified MO5 as the knife used by the 2nd accused and MO6 as the iron pipe used by the 10th accused. He also identified all the accused persons before the Court.

11. PW3, the son of PW1 would swear that at about 1.40 p.m. on 29.8.2008 he heard a scream from the veranda. When he went there along with PW2, he saw accused persons 1 to 6, 8 and 9 surrounding Aboobacker. According to him, the 2nd accused stabbed repeatedly on the chest of Aboobacker. The 8th accused also stabbed on his chest using knife and A3 hacked on his left hand muscle using knife. According to PW3, Abdu was standing at the southern end of the veranda surrounded by accused persons 5, 7 and 11. At that time, the 2nd accused stabbed him repeatedly on his chest. The 1st accused stabbed on his right hand and the 10th accused beat on his head using an iron rod. When PW3 tried to prevent them, the 6 th accused pricked him using a screwdriver like weapon on his chest. He would further swear that accused persons 10 and 11 held CW6 at the veranda. At that time, the 1st accused stabbed on his stomach using a knife. He also deposed that in Crl. Appeal. Nos.1186/2017, 8/2018 &107/2018 12 2024:KER:85293 the incident, Abdu and Aboobacker died. He was first taken to Al-Mas hospital and from there, he was taken to MIMS hospital, Kozhikode. He also identified MOs5 and 6 knife and iron rod as the weapons used by the accused persons for attacking them.

12. PW4, another injured would swear that at about 1.30 p.m. on 29.8.2008, while he was attending the function Dhikr, he heard a scream from the northern veranda of the mosque. When he went there, he saw that it was the scream of Aboobacker. Aboobacker was surrounded by accused persons 1, 4, 5 and 6. Accused persons 2 and 8 stabbed on the chest of Aboobacker using knives. The 3rd accused stabbed on his left hand. When he tried to save Aboobacker, the 4th accused beat him using the reaper of arecanut on his right hand resulting in fracture there. He identified the above reaper as MO8. When he went to the southern veranda, he saw the accused persons 10 and 11 holding CW6. Further, according to him, at that time, the 1 st accused stabbed on the stomach of CW6 using a knife. He was first taken to Al-Mas hospital, Kottakkal and then to National hospital.

13. PW7 was the casualty Medical Officer, MIMS hospital, Calicut. He would swear that on 29.8.2008 at 5.10 pm he had examined PW3 and issued Ext.P4 certificate. The alleged history given to him by PW3 is a fight between two groups.

Crl. Appeal. Nos.1186/2017, 8/2018 &107/2018 13 2024:KER:85293

14. PW8 was the casualty Medical Officer, Al-Mas hospital, Kottackal who had examined Abdu at 2.00 p.m on 29.8.2008 and issued Ext.P5 wound certificate. He would swear that when Abdu was brought to the hospital, he was dead. According to PW8, at the same time, the patient by name Aboobacker was also brought and Ext.P6 is the wound certificate issued by him in that respect. On the same day he had examined PWs1, 3 and 4 and CW6 and issued Exts.P7 to P10 certificates also. After giving first aid, the patients were referred to the Medical College hospital, Kozhikode.

15. PW9 was the casualty Medical Officer, National hospital, Kozhikode. He would swear that on 29.8.2008 at about 5.45 p.m. he had examined CW6, PW1, CW4, PW2 and PW4 and issued Exts.P11 to P15 certificates respectively, in that respect.

16. PW13 was the Professor and Head of the Department of Forensic Medicine, Medical College hospital, Kozhikode who had conducted postmortem examination on the body of Abdu as well as Aboobacker and issued Exts.P23 and 24 postmortem certificates. He had noticed the following ante-mortem injuries on the body of Abdu :

1. Lacerated wound 6.5 x 0.8 cm x 0.8 cm vertical, on top of head. The front end was just behind hairline and 1 cm outer to midline. Skull intact underneath. No intra cranial bleed.

2. Incised wound 2.5 cm, through and through, Crl. Appeal. Nos.1186/2017, 8/2018 &107/2018 14 2024:KER:85293 transverse, on the left ear lobe 2 cm below its upper border.

3. Incised wound 2.5 x 0.3 cm, on front of chest wall, 2 cm to the left of midline and 17 cm below inner end or left collar bone, lower end square cut, upper end sharp cut.

4. Incised would 3x 0.5 cm, vertical, on front lower chest wall, 2cm below left nipple. Lower end square cut, upper end sharp cut.

At depth injury no.3 and 4, had a common entry wound in the chest wall 5 cm long cutting the 4th and 5th intercostal spaces and 5th rib partly 1500 ml fluid blood in left chest cavity. Injury No.3 had caused a nick 0.5x0.2 cm on the right of ventricle of heart near apex. The wound was directed backwards.

The injury No.4 then transfixing the heart through inter ventricular septum and supper back portion of left ventricle was lost in the posterior mediastinum. The wound was directed backwards and medially.

5. A linear superficial incised wound 4 cm long on front wall of abdomen upper outer end 4.5 cm to the left of umbilicus.

6. Incised wound 9.5 x 4x4 cm, vertical, inner border of right forearm, 8 cm below elbow.

7. Incised cut 3 cm across midpalm of right hand.

8. Abrasion 1x0.5 cm of back of right index finger.

9. Multiple contused abrasion 2x2 cm front of left knee (Right knee front was free of injuries)

10. Multiple scattered contused abrasion on the back of Crl. Appeal. Nos.1186/2017, 8/2018 &107/2018 15 2024:KER:85293 right forefoot area.

The opinion as to the cause of death of Abdu according to him is, he died of incised penetrating wounds to chest, one of them transfixing heart.

17. The ante-mortem injuries noticed on the body of Aboobacker by PW13 are the following :

1. Multiple contused abrasions over an area 7x1.5 com, vertical, on the left front wall of chest 4.5 cm outer to midline, mid clavicular level upto 2nd intercostal space.

2. Multiple abrasion 3.8x0.4 cm, on inner border of foot and big toe, left side, and a spot abrasion of 2 cm below inner prominence of left ankle.

3. Avulsed lacerated wound 2.8x1.2x0.8 cm on the inner border of proximal knuckle of left index finger, superficial lacerated wounds 5x1x1 cm each in the proximal and distal knuckles of left thumb.

4. Multiple contusion over an area 7x5.5 cm back of left upper arm just above elbow.

5. Abrasion 0.3x0.2 cm, back of right upper arm 14 cm below shoulder.

6. Multiple contused abrasions and superficial avulsions 8x5 cm over back portions of index to little fingers of left hand.

7. Incised cut 1.8x0.4 cm transverse, on midline front chest 2 cm below neck.

8. Incised wound 6.5x2.2 cm, gaping obliquely placed on Crl. Appeal. Nos.1186/2017, 8/2018 &107/2018 16 2024:KER:85293 the right front portion of lower chest. The upper inner end was 5 cm to the right of midline and 19 cm below collar bone, overlying the lower cutting 7th and 8th costal cartilages, was square cut; the lower end was sharp cut.

Underneath there was a similar through and through cut in the right dome of disphragm (6.3 cm) and another similar wound (6.5cm) in the outer surface of right lobe of liver directly underneath where it penetrated through and through, made an exit on back interior aspect measuring 0.3x0.3 cm, and then made a 0.4 cm linear out on the interior vena cava just above the right supra-renal (adrenal) gland-Directed backwards with total Minimal Depth 9.5 cm. There was 750 ml of fluid blood in the peritoneal cavity.

9. Superficial incised cut 0.3x0.2 cm outer border of left hand 2.5 cm below wrist.

10. Superficial incised cut 3 cm long over middle knuckle of little finger of right hand.

11. Incised wound 3.2x0.5 cm, oblique, on outer aspect of left upper arm lower front end sharp cut and the other end square cut with a drawn extension 5x2.2 cm to over from the upper end which was slightly curved (Remark : rotatory action of the single edged knife).

6.5 cm deep stab injury directed backwards in the muscles.

18. The opinion as to the cause of death of Aboobacker, according to PW13 is, bleeding and shock from penetrating injury to chest and abdomen. Crl. Appeal. Nos.1186/2017, 8/2018 &107/2018 17 2024:KER:85293 He has also deposed that all the incised injuries noted on the body of Abdu and Aboobacker can be caused using MO5 knife and the lacerated injuries can be caused using MO6 iron pipe.

19. In order to prove that the accused persons also sustained injuries in the incident, they have examined DWs2 to 5. DW2 is the Casualty Medical Officer, Baby Memorial hospital, Kozhikode. He would swear that on 29.8.2008 at 3.20 p.m. he had examined the patient by name Rayinkutty. Ext.D14 is the certificate issued by him in that respect. DW3 was the Neuro surgeon of Baby Memorial hospital, who had proved Ext.D15 discharge summary in respect of Rayinkutty.

20. DW4 was the casualty Medical Officer, MIMS hospital Kozhikode. He would swear that on 29.8.2008 he had examined Unneenkutty and issued Ext.D16 certificate in that respect. DW5 is the Casualty Medical Officer, Al-Mas hospital, Kottakkal. He would swear that on 29.8.2008, he had examined Rayinkutty, Unneenkutty, Muhammed Haji (A7), Beeran (A11), Saidalavi (A6), Yousuf Haji (A2), Moideenkutty (A9), Kabeer and Alavi and issued Exts.D18 to D26 certificates respectively. Further, according to him, after giving first aid, the patients were referred to Medical College hospital, Kozhikode.

21. On behalf of the accused persons, DW1, the Sub Inspector Crl. Appeal. Nos.1186/2017, 8/2018 &107/2018 18 2024:KER:85293 Kottakkal Police Station was examined to prove that on 30.8.2018, a car belonging to PW1 with several deadly weapons were seized during the inspection by the patrolling police and a crime was registered in that respect. According to DW1, on 30.8.2018, a car with weapons was seized and crime No.435/2008 was registered against one Ummar S/o. Kunjahammed Haji. DW8 was the Sub Inspector of Kottakkal, who had conducted the investigation in Crime No.435/2008 and filed the final report. He proved Ext. D30 certified copy of the final report in crime No.435/2008. At the time of evidence, it is revealed that the above car belongs to PW1 and that Ummer was convicted in that case. However, PW1 was not made a co-accused in the above crime and in this case, there is no evidence to prove that those weapons were transported in the above car, with the knowledge or connivance of PW1.

22. DW7, the Sub Inspector, Kottakkal would swear that he had registered Crime No.934/2013, on the basis of Exhibit D29 FI statement and that Exhibit D28 is the FIR registered in that respect. According to him, it was a case registered against PW1 and the allegation is that he had attempted to commit murder of the MLA Abdul Samad Samadani. DW6 was the Dy.SP, Tirur. He would swear that PW1 had given a complaint against MLA Abdul Samad Samadani alleging that the MLA attempted to murder him. In that respect, Crime No.938/2013 was registered. However, according to him, on Crl. Appeal. Nos.1186/2017, 8/2018 &107/2018 19 2024:KER:85293 investigation, it was found that the above complaint filed by PW1 was false. Therefore, the above crime was referred and Exhibit D27 is the Final Report filed by him. At the same time, he clarified that, crime registered against PW1 was found to be genuine and charge sheet was field in that respect.

23. From the evidence adduced by DWs 2 to 5 as well as from Exts.D14 to D23 proved by them, it is revealed that on 29.8.2008, in the incident that occurred at about 1.30 p.m. at Kuttippuram Juma Mosque, the accused persons as well as one Rayinkutty and Unneenkutty also sustained injuries. The injuries sustained by some of them are very serious in nature. The injuries noticed by DW2 on the body of Rayinkutty and noted in Ext.D14 are the following:

1. Incised wound 4x1 cm on left upper arm.

2. Incised wound 3x1cm close to injury No.1

3. Incised wound 3x1cm over back of left thigh

4. Incised wound middle of back 2x1 cm.

5. Penetrating spinal cord injury at para pareses.

6. Fracture D1 vertibra.

24. The injuries found on the body of Unneenkutty by DW4, the casualty Medical Officer, MIMS hospital Kozhikode and mentioned in Ext.D16 certificate includes the following:

1. 4x2 cm penetrating wound over left lower chest Crl. Appeal. Nos.1186/2017, 8/2018 &107/2018 20 2024:KER:85293 in the mid axillary line over 8th and 9th rib.

2. 4x2 cm penetrating wound 3 cm above left iliac crest.

3. 4x2 cm penetrating wound over right renal angle.

4. 2 lacerations of 2x2 cm over right flank.

25. From Exts. D17 to 24, it can be seen that in addition to Rayinkutty and Unneenkutty, other accused persons also sustained injuries in the above incident. However, when PWs 1 to 4 were examined before the court, they have not stated anything about those injuries sustained by the accused persons as well as Rayinkutty and Unneenkutty. When questions were put to them during cross examination, about the injuries sustained by the accused persons, Rayinkutty and Unneenkutty, they would swear that after they were taken to the hospital, there was a clash between the local people and the accused persons and according to them it was in that incident, Rayinkutty, Unneenkutty and the accused sustained injuries. However, from the evidence of DW2 to 5 as well as from Exts. D14 to Ext.D23 documents, it appears that they also sustained injuries in the same incident that occurred at the very same place on 29.8.2008. Therefore, the evidence given by PWs 1 to 4 during cross examination that the accused persons along with Rayinkutty and Unneenkutty sustained injuries after they were taken to the hospital in the Crl. Appeal. Nos.1186/2017, 8/2018 &107/2018 21 2024:KER:85293 clash with local people cannot be true. On the other hand, from the available evidence it is evident that the accused persons along with Rayinkutty and Unneenkutty also sustained injuries in the same transaction in which deceased Aboobaker, Abdu, PWs 1 to 4 and CW6 sustained injuries.

26. It is revealed during the cross examination of PWs 20 and 21, the investigating officers that the untoward incidents in the mosque on 29.8.2008 started at the houl in the Mosque, when the deceased Abdu and Aboobacker along with PW1 and others attacked Rayinkutty with knife. At that time Rayinkutty screamed and on hearing the scream, Unneenkutty and other persons came there and tried to save him. It was thereafter the violence spread into an armed clash between two groups. Therefore, from the evidence of PWs 20 and 21 it appears that the genesis of the entire untoward incidents that occurred on 29.8.2008 was the attack on Rayinkutty inside the houl of the Mosque by the deceased along with PW1 and others. From the evidence adduced by the prosecution it is evident that the above genesis of the case has been deliberately suppressed, presumably because, if PWs1 to 4 admits the same it may incriminate them. Though in the final report, some other witnesses who would have deposed about the genesis of the case were cited, they were not examined and the net result is that the court is kept at dark about the genesis of the case and also the manner in which the accused Crl. Appeal. Nos.1186/2017, 8/2018 &107/2018 22 2024:KER:85293 persons along with Rayinkutty and Unneenkutty sustained injuries. In other words, the evidence on record in this case is not only incomplete, but also a one sided version.

27. The learned Senior Counsel would argue that it is the bounded duty of the prosecution to explain as to how the accused persons sustained injuries and in the absence of any such explanation, the prosecution case is to be disbelieved. He would also argue that non-examination of independent witnesses in this case is also very crucial. In support of the above arguments, he has relied upon the decisions of the Hon'ble Supreme Court in Lakshmi Singh and Others v. State of Bihar, 1976) SCC Cri. 671, Mohd. Khalil Chisti v. State of Rajasthan & Others, (2013) 2 SCC 541, Gourav Maini v. State of Haryana, 2024 INSC 488 (Crl. Appeal No.696/2010 decided on 9.7.2024) and Jaikam Khan v. State of Uttar Pradesh (2021) 13 SCC 716. He has also relied upon the decision of a Division Bench of this Court in Raghava Kurup v. State of Kerala, 1965 KHC 382.

28. In the decision in Lakshmi Singh (supra), PWs 1 to 4 gave a parrot-like version with regard to the charge against accused persons. The prosecution also failed to explain how the accused persons sustained injuries found on their body. In the above context, the Hon'ble Supreme Court in paragraph 12 held that:

Crl. Appeal. Nos.1186/2017, 8/2018 &107/2018 23 2024:KER:85293 "12. In these circumstances, therefore, it was the bounden duty of the prosecution to give a reasonable explanation for the injuries sustained by the accused Dasrath Singh in the course of the occurrence. Not only the prosecution has given no explanation, but some of the witnesses have made a clear statement that they did not see any injuries on the person of the accused. Indeed if the eye-witnesses could have given such graphic details regarding the assault on the two deceased and Dasain Singh and yet they deliberately suppressed the injuries on the person of the accused, this is a most important circumstance to discredit the entire prosecution case. It is well settled that fouler the crime, higher the proof, and hence in a murder case where one of the accused is proved to have sustained injuries in the course of the same occurrence, the non-explanation of such injuries by the prosecution is a manifest defect in the prosecution case and shows that the origin and genesis of the occurrence had been deliberately suppressed which leads to the irresistible conclusion that the prosecution has not come out with a true version of the occurrence."

29. In the decision in Mohd. Khalil Chisti (supra) also, the Apex Court has emphasized the duty of the prosecution to prove the genesis of the incident and against its suppression. In the decision in Raghava Kurup (supra), a Division Bench of this Court held that non-explanation of the injuries sustained by the accused and failure to examine the independent Crl. Appeal. Nos.1186/2017, 8/2018 &107/2018 24 2024:KER:85293 witnesses are sufficient to draw adverse inference against the prosecution case. In Gourav Maini (supra), non-examination of the first informant without offering any explanation was held fatal to the prosecution.

30. In Jaikam Khan (supra), the Apex Court observed in paragraph 69 as follows:

"69. According to P.W.1 Ali Sher Khan and P.W.2 Jaan Mohammad, a large number of villagers had gathered at the spot after the incident. However, none of the independent witnesses have been examined by the prosecution. Since the witnesses examined on behalf of the prosecution are interested witnesses, non-examination of independent witnesses, though available, would make the prosecution version doubtful."

31. During the cross examination of PW1, he deposed that in the mosque after the Juma prayer, there was a function by name Dhikr, in which the participants used to offer money in a tin. Since Rayinkutty and accused persons objected the unanimous declaration of PW1 that he is the President of the Juma-ath, they opposed the collection of money by PW1. In the above circumstance, when the tin for the collection of money was passed from one person to another and reached Rayinkutty, he had not only put any money into the tin, but also kept the tin aside, without passing it over to the next person. Thereafter, Rayinkutty went out of the Mosque and proceeded Crl. Appeal. Nos.1186/2017, 8/2018 &107/2018 25 2024:KER:85293 towards the houl. The case of the accused persons is that Rayinkutty went to the houl for drinking water and at that time, the deceased Abdu and Aboobacker followed him to the houl along with PW1 and others and attacked and injured Rayinkutty using dagger.

32. In this context, it is to be noted that PW20, the Investigating Officer while preparing Ext. P20 scene mahazar, seized MO17 steel glass, two scabbards (MO20 series), 2 caps (MO22 series), two pieces of a broken umbrella (MOs 23 and 31), a broken Rado watch and it's chain (Mos 25 and

26), broken spectacles (MO27) etc. from the houl. He had also noticed a pool of blood inside the houl. PW20 in clear terms deposed that Rayinkutty sustained injury inside the houl and the incident started inside the houl. He also deposed that Rayinkutty has not attacked anybody else and that is why, though his name was included as one of the accused in the FIR, subsequently his name was deleted from the array of accused. PW21 also deposed that deceased 1 and 2 along with PW1 and others attacked and injured Rayinkutty in the houl and it was the genesis of the incident. However, as we have already noted above, the prosecution has suppressed the above genesis of the incident. When PWs1 to 4 were examined, they have not only claimed that they have not seen how Rayinkutty, Unneenkutty and the accused persons sustained injuries, but also stated falsehood to the effect that they got injured Crl. Appeal. Nos.1186/2017, 8/2018 &107/2018 26 2024:KER:85293 in a clash with local people.

33. The learned Public Prosecutor would argue that, in this case the prosecution has not suppressed the injuries sustained by Rayinkutty, Unneenkutty as well as the accused persons and that is why they have registered a counter case and filed charge sheet against PW1 and others. Therefore, according to him, there is no merit in the argument that the prosecution has suppressed the injuries sustained by the accused persons.

34. On the other hand, the learned Senior Counsel would argue that in this case, none of the witnesses have deposed about the manner in which Rayinkutty, Unneenkutty as well as the accused persons sustained injuries and further according to him, the disclosure of the injuries sustained by the accused persons in the counter case is not enough because, the evidence produced by the prosecution in one case cannot be looked into or considered in the other case.

35. The procedure to be followed, in case there is a case and cross case, has been laid down by the Hon'ble Supreme Court in the decision in Nathi Lal and Others v. State of U.P and Another, 1990 SCC (Cri) 638. In paragraph 2 the Apex Court held that:

"2. We think that the fair procedure to adopt in a matter like the present where there are cross cases, is to direct that the same learned Judge must try both the cross cases one after Crl. Appeal. Nos.1186/2017, 8/2018 &107/2018 27 2024:KER:85293 the other. After the recording of evidence in one case is completed, he must hear the arguments but he must reserve the judgment. Thereafter he must proceed to hear the cross case and after recording all the evidence he must hear the arguments but reserve the judgment in that case. The same learned Judge must thereafter dispose of the matters by two separate judgments. In deciding each of the cases, he can rely only on the evidence recorded in that particular case. The evidence recorded in the cross case cannot be looked into. Nor can the judge be influenced by whatever is argued in the cross case. Each case must be decided on the basis of the evidence which has been placed on record in that particular case without being influenced in any manner by the evidence or arguments urged in the cross case. But both the judgments must be pronounced by the same learned Judge one after the other."

36. Therefore, the evidence adduced by the prosecution in one case cannot be relied upon in the other case and even the arguments advanced in one case cannot be considered in the other case. In the above circumstance, the contention of the learned Public Prosecutor that since in the counter case the prosecution has disclosed about the injuries sustained by the accused in this case, is not sufficient to satisfy the compliance of the law laid down by the Hon'ble Supreme Court in Lakshmi Singh (supra) referred above. Therefore, it is to be held that, in this case, the prosecution has not disclosed Crl. Appeal. Nos.1186/2017, 8/2018 &107/2018 28 2024:KER:85293 the manner in which Rayinkutty, Unneenkutty as well as the accused persons sustained injuries.

37. At the same time, from the evidence of PW1 it is revealed that during Dhikr, when the tin for the collection of money came in the hands of Rayinkutty, he had not put any money into it. Instead, he kept the tin aside and then went towards the houl. Though, PWs1 to 4 have not spoken anything about the incident that occurred inside the houl, PWs 20 and 21 deposed that Rayinkutty was attacked by the deceased along with PW1 and others, inside the houl. It is true that the evidence of PWs20 and 21 in that respect is not direct and hence it requires further proof. Recovery of MO17 steel glass, two scabbards (MO20 series), 2 caps (MO22 series), two pieces of a broken umbrella (MOs 23 and 31), a broken Rado watch and it's chain (Mos 25 and 26), broken spectacles (MO27) etc. from the houl by PW20 while preparing Ext.P20 scene mahazar, offers some credence to the above conclusion. Pool of blood present inside the houl and noticed by PW20 in the scene mahazar also substantiates the defence version that when Rayinkutty went to the houl for drinking water, he was brutally attacked by the deceased along with PW1 and others.

38. The evidence of PW1 that during the incident Rayinkutty threw a bucket towards him, also supports the defence version that the attack on Crl. Appeal. Nos.1186/2017, 8/2018 &107/2018 29 2024:KER:85293 Rayinkutty occurred inside the houl. Since Rayinkutty went to the houl, just for drinking water, there was no chance for him to throw the bucket towards PW1, unless there was enough provocation from the side of PW1. Presence of MO17 steel glass in the wastewater drainage inside the houl substantiates the defence version that Rayinkutty went to the houl for drinking water. Presence of two scabbards (MO20 series) and pool of blood inside the houl and presence of the injuries noted in Ext.D16 on the body of Rayinkutty also compels us to believe that he sustained those injuries while he was inside the houl. From the conduct of Rayinkutty in throwing the bucket towards PW1 it can also be presumed that he was unarmed at that time. In the above circumstance, there is every reason to believe that Rayinkutty sustained injuries in the presence of PW1. However, PW1 has not offered any explanation as to how Rayinkutty sustained those injuries. Absence of any such explanation from the side of PW1 as to how Rayinkutty sustained those injuries, is to be appreciated in the above context. When the entire evidence available on record is evaluated in the above context, it can be safely concluded that on 29.8.2008, the incident started when the deceased persons along with PW1 and others brutally attacked and injured Rayinkutty when he went to the houl, for drinking water.

39. Even according to PWs2 to 4, while they were inside the mosque Crl. Appeal. Nos.1186/2017, 8/2018 &107/2018 30 2024:KER:85293 during Dhikr function, they heard a scream and it was on account of that scream, they went out of the mosque. It is true that according to them the scream was heard from the veranda of the mosque. However, since the first attack was on Rayinkutty and he sustained serious stab injuries on his body, in that attack which occurred inside the houl, there is every reason to believe that the first scream was that of Rayinkutty. The above circumstance substantiates the defence version that, on hearing the scream of Rayinkutty, at first Unneenkutty and then the accused persons rushed to the houl to save him, that, at that time, the deceased along with PW1 and others attacked Unneenkutty as well as accused persons with deadly weapons and that, it was followed by a fight between two groups resulting in causing injuries to those in both sides and death of two persons.

40. In the above circumstances, the learned Senior Counsel would argue that since it was the deceased persons and PW1 along with others started the violence and attacked Rayinkutty and others, the accused persons have the right of private defence, even up to the extend of causing death. It is true that as per Section 100 IPC, the right of private defence of the body extends to causing death if there is reasonable apprehension that death or grievous hurt will otherwise be the consequence.

41. As we have already noted above, in this case, the prosecution has Crl. Appeal. Nos.1186/2017, 8/2018 &107/2018 31 2024:KER:85293 not adduced any evidence explaining the injuries sustained by the accused persons as well as Rayinkutty and Unneenkutty. They have also not disclosed the manner in which they have sustained those serious injuries. In the above circumstances, it can be seen that PWs1 to 4, the occurrence witnesses examined in this case had given only a one sided version of the incident that occurred on 29.8.2008. They have not disclosed the genesis of the incident. At the same time, they have deliberately attempted to mislead the court by stating that the accused persons, Rayinkutty and Unneenkutty sustained injuries in a clash with the local people, after they were taken to the hospital. In short, PWs 1 to 4 have not only not deposed complete truth before the Court, but deliberately deposed falsehood before the court.

42. Admittedly, in the mosque there were several other persons who had not participated in the fight between two groups. In spite of that, the prosecution has not examined any such persons, who were not loyal to the two fighting groups. The non-examination of those independent witnesses is also fatal to the prosecution case. Even the Secretary and Khazi of the mosque were not examined in this case as witnesses. All the witnesses examined in this case to prove the charge are injured persons participated in the attack against the injured persons who are the accused in the counter case. In the above circumstances, it is not surprising that they have given only a Crl. Appeal. Nos.1186/2017, 8/2018 &107/2018 32 2024:KER:85293 one-sided version as to how they sustained injuries. At the same time, they deliberately suppressed as to how the accused persons as well as Rayeenkutty and Unneenkutty sustained injuries. Therefore, it is not at all safe to rely upon the evidence of PWs1, to 4 to prove the charge against the accused persons.

43. As noted above, the evidence of PWs 1 to 4 is not at all reliable or trustworthy and as such, it is to be held that, in this case there is no reliable evidence to reach a just conclusion as to the actual incident that occurred at the mosque on 29.8.2008. Since the prosecution has suppressed the injuries sustained by the accused persons as well as Rayinkutty and Unneenkutty, on that ground also, the prosecution case is liable to be rejected. As we have already noted above, the prosecution has also suppressed the genesis of the case and, in the facts of this case, it is also sufficient enough to reject the prosecution case. It is also to be held that, in the facts of the case, the non- examination of independent witnesses is also fatal to the prosecution case. In view of the above, it is to be held that the prosecution has not succeeded in proving the charge against any of the accused persons, beyond reasonable doubt and as such they are liable to be acquitted. Points answered accordingly.

44. In the result, Crl. Appeal No.8 of 2018 is allowed. The conviction and sentence passed against the accused No.11 is set aside and he Crl. Appeal. Nos.1186/2017, 8/2018 &107/2018 33 2024:KER:85293 is acquitted under Section 386 (b)(i) of Cr.P.C.

45. In the result, Crl. Appeal No.107 of 2018 is allowed. The conviction and sentence passed against accused Nos.1 to 6 and 10 is set aside and they are acquitted under Section 386 (b) (i) of Cr.P.C. Accused persons are set at liberty canceling their bail bonds.

46. In the result, Crl.Appeal No.1186 of 2017 as against the 9th accused is allowed. The conviction and sentence passed against the 9 th accused is set aside and he is acquitted under Section 386(b)(i) of Cr.P.C. The charge as against the 8th accused is abated.

Sd/-

P.B. Suresh Kumar, Judge Sd/-

C. Pratheep Kumar, Judge Mrcs/sou/25.10.

 Crl. Appeal. Nos.1186/2017, 8/2018 &107/2018


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                          APPENDIX OF CRL.A 1186/2017

PETITIONER ANNEXURES

Annexure-A                    TRUE COPY OF THE ORDER IN
                              CRL.M.A.NO.6703/2017 DATED 25-1-2018 OF
                              THIS HON'BLE COURT

Annexure-B                    TRUE COPY OF THE ORDER OF THIS HON'BLE
                              COURT IN CRL.M.A.NO.1 OF 2020, DATED 24-
                              2-2020
 Crl. Appeal. Nos.1186/2017, 8/2018 &107/2018


                                               35

                                                        2024:KER:85293



                           APPENDIX OF CRL.A 107/2018

PETITIONER ANNEXURES

Annexure 1                    TRUE COPY OF THE WEDDING CARD

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