Kerala High Court
Velukutty Assari vs State Of Kerala on 17 June, 2020
Author: M.R.Anitha
Bench: M.R.Anitha
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE M.R.ANITHA
WEDNESDAY, THE 17TH DAY OF JUNE 2020 / 27TH JYAISHTA, 1942
Crl.Rev.Pet.No.229 OF 2008
AGAINST THE ORDER/JUDGMENT IN CRA 178/2005 DATED 24-12-2007 OF
ADDITIONAL SESSIONS COURT, FAST TRACK COURT (ADHOC) NO.IV,
THIRUVANANTHAPURAM
AGAINST THE ORDER/JUDGMENT IN CC 566/1999 DATED 17-02-2005 OF
JUDICIAL MAGISTRATE OF FIRST CLASS ,KATTAKADA
REVISION PETITIONERS/APPELLANTS/ACCUSED 1 TO 3:
1 VELUKUTTY ASSARI
S/O.SIVARAMA ASSARI, AJITHA BHAVAN, NEAR KALLIKAD
MARKET, MUKUNTARA DESOM, KALLIKKAD VILLAGE.
2 ABHAYA KUMAR
S/O. VELUKUTTY ASSARI, AJITHA BHAVAN, NEAR KALLIKAD
MARKET, MUKUNTARA DESOM, KALLIKKAD VILLAGE.
3 AJAYA KUMAR
S/O. VELUKUTTY ASSARI, AJITHA BHAVAN, NEAR KALLIKAD
MARKET, MUKUNTARA DESOM, KALLIKAD VILLAGE.
BY ADVS.
SRI.P.VIJAYA BHANU (SR.)
SRI.M.REVIKRISHNAN
POOJA PANKAJ
RESPONDENT/RESPONDENT/RESPONDNET:
STATE OF KERALA, REPRESENTED BY
PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.
R1 BY PUBLIC PROSECUTOR
OTHER PRESENT:
SR.PP - SRI. M.S.BREEZ
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD
ON 08-06-2020, THE COURT ON 17-06-2020 PASSED THE FOLLOWING:
Crl.R.P.No.229 of 2008 2
M.R.ANITHA, J.
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Crl.R.P.No.229 of 2008
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Dated this the 17th day of June, 2020
ORDER
This Criminal Revision Petition has been filed against the order of conviction and sentence in Crl.A.No.178/2005 of Additional Sessions Judge, Fast Track Court (Adhoc) No.IV, Thiruvananthapuram. Revision petitioners are accused Nos.1 to 3.
2. Prosecution case is brief is that accused had enmity towards PW1 and others in warning them for screening the well of PW1 and others. Out of that in furtherance of their common intention and preparation of voluntarily causing hurt to PW1 and others, on 06.06.1999 at about 7.15 p.m, while PW1 was going through the bylane leading from Kallikkadu Market Junction to Njatukala, first accused wrongfully restrained PW1 and fisted at his chest and back two - three times and caused pain and pushed him down and second accused with a dangerous chopper slashed him on the right side of his head above the ear and caused injury and third accused fisted at right side of his nose with hand and caused injuries and when PW2, his wife, rushed Crl.R.P.No.229 of 2008 3 to the spot, she was kicked by the third accused and caused pain and when PWs 3 and 4 intervened, third accused pushed them down and caused pain and thereby accused committed the offences aforementioned.
3. PW9 Head Constable attached to Neyyar Dam Police Station during the relevant time recorded the FIS of PW1 at Taluk Headquarters Hospital, Neyyattinkara and registered the F.I.R., Ext.P6 and conducted the initial investigation. Thereafter, PW10, who was the S.I. of Police, Neyyar Dam continued the investigation conducted by PW9 and filed the charge against the revision petitioners/accused persons.
4. PWs 1 to 10 were examined and Exts.P1 to P10 were marked from the side of the prosecution. After closure of evidence, accused were questioned under Section 313 Cr.P.C. They denied all the incriminating facts and circumstances put to them. Thereafter, on hearing both sides, trial court found the accused guilty under Sections 323, 324, 341 r/w. Section 34 IPC. First accused was convicted and sentenced to undergo imprisonment till rising of court and to pay fine of Rs.1,000/- under Section 324 IPC and to pay fine at the rate of Rs.500/- each under Sections 323 and 341 IPC. Accused Nos.2 and 3 Crl.R.P.No.229 of 2008 4 were sentenced to undergo simple imprisonment for six months under Section 324 IPC and to undergo simple imprisonment for three months under Section 323 IPC and to pay fine of Rs.500/- each under Section 341 IPC, in default, they were directed to undergo simple imprisonment for a term of 30 days each respectively. All the sentences were directed to run concurrently.
5. Aggrieved by the conviction and sentence passed by the trial court, the accused persons filed Crl.A.No. 178/2005 and as per the impugned judgment the learned Additional Sessions Judge dismissed the appeal confirming the conviction and sentence passed by the trial court. Aggrieved by the same, the revision petitioners/accused came up in revision for various grounds stated in the memorandum of criminal revision petition.
6. Notice was issued to the respondent and respondent appeared through the learned Public Prosecutor. Lower court records were called for and perused and both sides were heard.
7. To prove the occurrence, PWs 1 to 4 the injured persons, and PW5 one eye witness were examined. PW1, the defacto complainant would depose in tune with the statement Crl.R.P.No.229 of 2008 5 given in Ext.P1 F.I.S. According to him, the incident occurred on 06.06.1999 at about 7.15 p.m while he was going through Njattukala bylane for purchasing articles. Accused were standing on the bylane and first accused wrongfully restrained him and fisted on his chest and on fisting at his back he was almost sat down. Then, second accused slashed at his head with a chopper and it touched above the ear. The third accused forcefully beat on the right side of his nose and on hearing his alarm PW2, the wife, rushed to the spot and she was also kicked down and manhandled. The motive behind the incident also stated by him as the removal of screen by the accused persons as per their request. PW1 also stated that the accused were identified in the light.
8. PW2, the wife of PW1, also deposed in corroboration with PW1 and according to her, while she reached the spot she found the second accused slashing PW1 with chopper above the right ear and inflicted injuries and he was fisted at the nose and when she intervened she was kicked down by the third accused. She also stated that they were taken to hospital and the motive behind the incident is also stated by her as the removal of screen put up near the well. She also speaks about the presence Crl.R.P.No.229 of 2008 6 of electric light from their house and the neighbouring houses and identification of the accused persons.
9. PWs 3 and 4 are the sons of PWs 1 and 2. According to PW3, while father was going to the junction for purchasing articles, accused persons wrongfully restrained him at the bylane and manhandled him and when the mother rushed to the spot, she was also pushed down. When himself and PW4 reached there, they were also manhandled. The motive is also as stated by him as the removal of screen near the well. He also stated that he identified the accused from the light illuminating from the nearby houses. PW4, the other son, also stated that, on hearing the alarm of the father - PW1, himself, mother and PW3 rushed to the spot. Then third accused kicked down the mother and when he tried to rescue the father, he was also assaulted. He also stated that the incident was witnessed in the light. The motive behind the incident as the removal of screen near the well is also spoken to by him.
10. PW5, the other witness also stated to have witnessed the incident and according to him, PW1 was walking in front of him through the bylane. Thereupon, first accused wrongfully restrained him and fisted at his chest and PW1 fell down. Then, Crl.R.P.No.229 of 2008 7 the second accused, slashed on the right side of the head above the ear of PW1 with a chopper and caused injury. Then, third accused came and fisted at the nose of PW1 and caused injury. On hearing the alarm, PWs 2, 3 and 4 rushed to the spot and they were kicked down by the third accused. On seeing this, neighbours gathered. Thereupon, accused ran away with the weapons to their house. He also stated to have seen the incident in the electric light.
11. PW6 is the witness cited in the scene mahazar. But he denied to have signed in the mahazar and did not support the prosecution case. PW8 is the another witness cited to prove the occurrence. But he also did not support the prosecution case.
12. PW7, has been the Assistant Surgeon, Taluk Headquarter Hospital, Neyyattinkara, who examined PWs 1 to 4. His evidence is that he examined one Manikandan at 9.30 p.m on 06.06.1999 and PW2 Sumangala at 9.17 p.m and one Anil Kumar at 9.30 p.m and Sunil Kumar at 9.37 p.m and the wound certificates were marked as Exts.P2 to P5 respectively. The injuries with respect to PW1 has been stated as follows:
a. lacerated injury 4x0.5x5 cm on the right parietal area in the sagittal plane Crl.R.P.No.229 of 2008 8 b. contused abrasion on the dorsum of the left hand near wrist c. contusion over left side of chest.
d. contused abrasion over right side of nose The alleged cause noted is on 06.06.1999 at 7.30 p.m on the steps of the house he was slashed with chopper and pushed down and kicked. Doctor further stated that injury No.1 can be caused by cutting with chopper. Injury No.3 and 4 can be caused by fisting also. Injury No.2 can be caused even by a fall.
13. Ext.P3 is the wound certificate pertaining to PW2. PW7 would state that he has noted that there was tenderness over lower abdomen and tenderness over dorsum aspect of left hand over thumb and over Ist and 2 nd metacarpal, compliant of body ache and pain in the left post auricular area. The doctor also stated that the alleged cause stated is assault in front of the house and the injuries could be caused as alleged. In Ext.P4, injuries noted are contused abrasion on the side of upper lip and tenderness over right lateral aspect of chest and left calf. In Ext.P5 contusion over the lateral aspect of right eyebrow and tenderness over left thumb, left side of chest and over back of trunk were noted and spoken to by PW7.
Crl.R.P.No.229 of 2008 9
14. The learned counsel for the revision petitioners/ accused assailed the conviction and sentence on various grounds. According to him there is nothing to indicate the presence of light at the scene of occurrence, as per the scene mahazar. He would contend that none of the witnesses identified the accused in the dock and all the witnesses examined are close relatives and no independent witness has been examined to prove the occurrence. He would further contend that the blood stained clothes of PW1 has not been shown to the police and seized.
15. With regard to the presence of light the learned counsel for the revision petitioners/accused would contend that there is no reference with regard to the electric post or any other means for the presence of light at the place of occurrence as per the scene mahazar and hence the identification of the accused at the time of occurrence which is at 7.15 p.m by the prosecution witnesses is doubtful. It is true that the scene mahazar would not state about the presence of any electric post at the place of occurrence or in the bylane where the incident took place. But, PW1 - the defacto complainant, and PWs 2, 3 and 4 state about the presence of light from the neighbouring Crl.R.P.No.229 of 2008 10 houses. So also, PW1 categorically stated that his house was electrified before 4 - 5 years and no specific question also seems to have been put to him with regard to the presence of light for the identification of the accused. PW2, the wife of PW1, also stated that the incident was witnessed in the electric light from their house and the neighbouring houses. During her cross examination, no question seems to have been put challenging that version given by her during chief examination. So, in effect, the evidence of PW2 about witnessing the incident from the electric light from their house and the neighbouring houses stands unchallenged. PW3 also stated in chief examination that the incident was witnessed from the light in the nearby houses. No question seems to have been put to him challenging that aspect. So also, PW4 also stated that the incident was witnessed from the light of their house and the light from the neighbouring houses. That also remains unchallenged. So the contention regarding presence of light cannot be raised at this stage.
16. The next contention is that all the witnesses examined are close relatives and no independent witnesses were examined. It is true that PWs 1 to 4 are father, mother and sons Crl.R.P.No.229 of 2008 11 and PW5 is also a close relative i.e. the husband of the sister of PW2. The evidence of the prosecution witnesses and the scene mahazar also reveals that there are other houses near the place of occurrence. Though prosecution examined PW8, an independent witness, he did not support the prosecution case. So, as rightly pointed out by the learned counsel for the revision petitioners/accused, all the witnesses are family members and a close relative. But, it is to be noted that PW1 to 4 sustained injuries out of the attack and PW1 deposed about the overt act by the accused persons and in support of the same, there is medical evidence and doctor also stated about the injuries and that have been extracted in the previous paragraphs and the certificate pertaining to PW1 has been marked as Ext.P2 and the lacerated injury 4x0.5x5 cm on the right parietal area in the sagittal plane has been clearly noted as the first injury and the second injury is the contused abrasion on the dorsum of the left hand near wrist and third injury is contusion over left side of chest and the fourth injury is contused abrasion over right side of nose. The doctor also stated about the alleged cause revealed to him as slash with chopper in front of the house and the doctor categorically stated that injury No.1 can be caused by cutting with chopper and injury No.3 and 4 can be caused by fisting and Crl.R.P.No.229 of 2008 12 injury No.2 can be caused by a fall. It has come out from the evidence of the other witnesses that due to the fisting by the first accused, initially PW1 fell down. So, out of that fall, injury no.2 i.e. contused abrasion on the dorsum of the left hand near wrist, might have been caused. So with regard to the slash with chopper by the second accused and fisting at chest by the first accused and hitting at the nose by the third accused, there are corresponding injuries. PWs 1 to 4 also stated about the kicking of PW2 by the third accused at the abdomen and in Ext.P3, the wound certificate of PW2, tenderness over lower abdomen and tenderness over dorsum aspect of left hand over thumb and over 1st and 2nd metacarpal etc are noted. In corroboration with her testimony with regard to the compliant of pain, doctor also stated that injury No.2 can be caused by way of fisting, injury no.3 can be caused by falling and coming in contact with any hard object. With respect to PW3, Ext.P4 wound certificate is marked noting contused abrasion on the side of upper lip and tenderness over right lateral aspect of chest and left calf and in Ext.P5 wound certificate pertaining to PW4 also contusion over the lateral aspect of right eyebrow and tenderness over left thumb, left side of chest and over back side of trunk are noted and the doctor stated that the injuries could be caused as Crl.R.P.No.229 of 2008 13 alleged. During cross examination, it was suggested to the doctor that the injuries noted in Ext.P2 is possible to be caused by hitting against a granite wall and all other injuries can be caused by coming into contact with a hard object. With respect of Ext.P3 wound certificate pertaining to PW2, suggestion put to the doctor was that the injuries are on the left side and it could be possible to be caused if a person fall hitting the left side. No question seems to have been put in respect of Exts.P4 and P5. So, on evaluating the evidence of PWs 1 to 4 and the medical evidence, it can be seen that there are corresponding injuries as per the overt act spoken to by PWs 1 to 4. Though they are father, mother and sons, since all of them are injured witnesses and their injuries are also proved with supporting medical evidence, the fact that all of them are closely related is not at all a ground to discard their evidence.
17. It is true that PW5 was also examined to prove the occurrence, who is a close relative of PWs 1 to 4. But as has been found by the trial court and also the appellate court his presence at the place of occurrence has been explained by him. According to him, his father-in-law was sick and hence he resided in the house of PW1 for a week and he also states about Crl.R.P.No.229 of 2008 14 the overt act of accused 1 to 3. It is true that during cross examination some discrepancy has been brought with regard to the colour of the shirt worn by PW1 in his evidence. During cross examination, on one occasion, a question was put to him with regard to the smearing of blood on the cloth of PW1. In this context, it is to be noted that PW2, wife of PW1, during cross examination stated that PW1 was wearing white dhotti and a coffee colour shirt and at the time when police prepared the body note there was blood on the shirt. But, PW5, during cross examination, deposed that PW1 was wearing white shirt and white dhotti and blood was smeared on that. But nothing could be brought out discrediting his testimony with regard to the overt act by the accused persons. So the fact that he is a close relative of PW1 to 4 itself is not a reason to discard his testimony.
18. Though PWs 1 to 4 are father, mother and sons since they deposed in corroboration with regard to the overt act of the accused persons, which is supported by the medical evidence and more over all of them also sustained injury out of the incident, the fact that no independent witnesses could be examined by the prosecution by itself will not cast any doubt Crl.R.P.No.229 of 2008 15 about the prosecution case. Moreover, PW5 a close relative was also examined. In this context it is relevant to quote Gajoo v. State of Uttarakhand [(2012) 9 SCC 532] wherein it has been held that related witnesses cannot be treated as interested witnesses unless they have direct interest in the conviction of accused because of animosity. There is not even a suggestion that PW5 has got any enimity towards any of the accused persons.
19. The next contention is with regard to the non production of the weapon, though the prosecution alleges that the second accused slash PW1 with a chopper. But, PW8, the investigating officer has stated that after sending search memorandum - Ext.P9 to the court, he conducted search. But the weapon was not seized. Ext.P9 search memorandum would also reveal that search was conducted in the house of the accused. So also, this is a case, in which, injured witnesses state in corroboration about the overt act of the accused persons which is supported by the medical evidence. Non recovery of the weapon is of little significance in a case of direct evidence also.
20. Yet another contention advanced by the learned counsel for the accused is that blood stained clothes were not Crl.R.P.No.229 of 2008 16 seized by the police though it has been deposed by PWs 1 and 2 that blood was smeared on the shirt of PW1. It is true that PW1 and 2 and also PW5 deposed that blood was smeared on the shirt of PW1 and PW1 also deposed that he had shown the blood stained clothe to the police and further that at the time when the body note was prepared he had been wearing the same clothe. PW2 also deposed during cross examination that there was blood on the shirt of Pw1 and body note was also prepared but the shirt was not taken by the police. But PW9 the head constable who conducted the initial investigation during evidence deposed that he had not seen PW1 and 2 wearing blood smeared clothe while preparing the body note. So there appears a slight discrepancy in the evidence of PW1 and 2 and that of PW9 with regard to the blood stains on the clothe of PW1. That does not appear to be material since PW1 to 4 and PW5 deposed about the incident and corresponding medical evidence with regard to the injury sustained by PW1 to 4 had brought in evidence.
21. Yet another contention of the learned counsel for the revision petitioners/accused, is that there is no dock identification of the accused persons by any of the prosecution Crl.R.P.No.229 of 2008 17 witnesses including the defacto complainant and that is a serious lacuna and in the absence of identification of the accused by the witnesses, no liability can be fastened upon the accused in the alleged act. To support the contention, the learned counsel took my attention to Girishan v. State of Kerala [2016 (2) KLT SN 2 (C.No.2)]. In that decision, while dealing with a case charged under Sections 143, 147, 148, 324 and 302 r/w. Section 149 IPC and Sections 3 & 5 of the Explosives Substances Act, 1908 and Section 27(1) of Arms Act, 1959, it has been held that, in a case where prosecution allegation is that the accused were members of the unlawful assembly and they had entertained a common object, it is necessary for the prosecution to lead evidence pointing to the conclusion that all the appellants had done or had committed some overt act in prosecution of the common object of the unlawful assembly. But active participation in actual violence is not necessary.
22. Paragraph No.43 of the said judgment has been highlighted by the learned counsel. It has been stated therein that the evidence of PWs 1 to 4 are convincing as regards the incident and there is no reason to doubt their version with Crl.R.P.No.229 of 2008 18 respect to accused 1, 2, 12 and 15. But, in the case of all other accused, the learned Sessions Judge has adopted a very callous approach. The deposition of witnesses only reveals that the Sessions Judge has merely recorded the rank number of the accused in the charge and no effort is seen undertaken to certify in the deposition, with exactitude and certainly, that the persons referred by witness as one of the members of the unlawful assembly which perpetrated the horrendous act is the person who was standing in the dock. It is also stated that there is no clue available from the deposition either, as the court has not recorded this aspect in the evidence as to the manner in which the particular accused was identified. It is also stated that the Apex Court as well as this Court, time and again, have reminded the trial Courts, the importance of recording in the deposition the most cardinal fact that the witness has specifically identified the accused as the person who was involved in the crime, so that the complicity and presence of the accused at the scene of crime could be fixed with exactitude. It is also stated that it is all the more important where most of the accused are attempted to be roped in for the reason that they were members of the unlawful assembly and they had shared the common object. Crl.R.P.No.229 of 2008 19
23. So, on going through the above decision, it could be seen that in that case, most of the accused are attempted to be roped in for the reason that they were members of the unlawful assembly and they had shared the common object. But, in this case, only three persons are arrayed as accused and they are just neighbours also. I am not justifying the act of the trial court in not recording specifically in the deposition about the identification of the accused persons by the witnesses. But, at any rate, it is to be noted that no argument with regard to the identification of the accused by the witnesses have been raised by the accused either before the trial court or the appellate court. It is only at this stage, when the matter came up in revision, the argument with regard to the dock identification of the accused by the witnesses have been put forward. It is also to be noted that PW1 clearly stated during his evidence that Velukutty (first accused), wrongfully restrained him and the second accused Abhaya Kumar, slashed him with chopper and third accused Ajaya Kumar bet him forcefully on the right side of his nose. So also, PW2 also stated categorically that Velukutty Assari, Abhaya Kumar and Ajaya Kumar (accused Nos.1 to 3) were coming from the opposite direction of PW1. Thereafter she also stated that first accused hit PW1 twice and on hearing the Crl.R.P.No.229 of 2008 20 alarm, she rushed to the spot second accused slashed him with chopper at his head and third accused hit on nose and further that third accused kicked her down. PWs 3 and 4 also stated about the overt act by the third accused and kicking down of the mother. Since only three persons are arrayed as accused and their rank and overt act have been specifically stated by PW1 and 2 before the court, the fact that the dock identification was not specifically recorded in the deposition, cannot be said as fatal in the facts and circumstances of this case. That is more so, because, no argument with regard to the identity of the accused have been raised either in the trial court or in the appellate court. The decision cited by the learned counsel also has no application to the case in hand, because in that particular case, there is finding by this court that most of the accused are attempted to be roped in for the reason that they were members of the unlawful assembly and they had shared the common object. It is also be noted that in paragraph No.44 it has been stated as follows:
"We are afraid that it would result in travesty of justice if we were to hold the accused guilty against whom no specific overt acts are alleged and in respect of whom the identification of court is Crl.R.P.No.229 of 2008 21 extremely sketchy in view of the deficiencies noted above. We note that there are only general allegations against them and we hesitate to convict all of them on such vague evidence."
24. But, in this case, there is evidence in corroboration with regard to the overt act of accused 1 to 3 through PW1 to 5. So, at any rate, the facts and circumstances in the case in hand is quite different from the decision cited by the learned counsel and hence the principles laid down squarely is not applicable to the case in hand.
25. So, on an anxious consideration of the facts and circumstances and the evidence adduced, I am of the considered view that trial court and the appellate court have appreciated the facts and circumstances and the evidence adduced in a correct perspective and rightly found the accused/revision petitioners guilty under Sections 341, 323 , 324 r/w. Section 34 IPC. There seems to have no illegality and impropriety in the concurrent finding of facts arrived at by the trial court and the appellate court. Hence I find no reason to interfere with the conviction passed against the revision petitioners/accused persons.
Crl.R.P.No.229 of 2008 22
26. Next the learned counsel for the revision petitioners pleaded for a lenient view with regard to the sentence in view of the passage of time after the crime. The case is of the year 1999. Accused no.1 is convicted and sentenced to undergo imprisonment till rising of court and to pay fine of Rs.1,000/- under Section 324 IPC and to pay fines at the rate of Rs.500/- each under Sections 323 and 341 IPC. So, taking into account the old age of the first accused, the court below has already given maximum leniency. Accused Nos.2 and 3 were sentenced to undergo simple imprisonment for six months under Section 324 IPC and to undergo simple imprisonment for three months under Section 323 IPC and to pay fine of Rs.500/- each under Section 341 IPC, in default of each of the sentences, the accused were directed to undergo simple imprisonment for a term of 30 days each respectively. Taking into account over all facts and circumstances and the nature of injuries sustained, the sentence passed is modified with respect to Revision petitioners 2 and 3 to that of simple imprisonment for three months each under Sections 324 IPC and to undergo simple imprisonment for one month each under Section 323 IPC and to pay a fine of Rs.500/- each under Section 341 IPC in default to undergo simple imprisonment for 15 days each.
Crl.R.P.No.229 of 2008 23
In the result, Crl.R.P. is allowed in part confirming the conviction and modifying the sentence with respect to the revision petitioners 2 and 3 alone as simple imprisonment for three months each under Section 324 IPC, simple imprisonment for one month each under Section 323 IPC and to pay fine of Rs.500/- each under Section 341 IPC in default to undergo simple imprisonment for 15 days each. The substantive sentences shall run concurrently. Out of the fine amount, if realised, Rs.2,000/- (Rupees two thousand only) shall be given to PW1 as compensation under Section 357(1) (b)Cr.P.C. Bail bond executed by the revision petitioners stand cancelled and they are directed surrender before the court below for undergoing the sentence passed against them.
Sd/-
M.R.ANITHA
Shg JUDGE