Kerala High Court
Firoz vs State Of Kerala on 28 November, 2002
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE V.K.MOHANAN
WEDNESDAY, THE 4TH DAY OF DECEMBER 2013/13TH AGRAHAYANA, 1935
CRL.A.No. 1099 of 2002
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[AGAINST THE JUDGMENT IN SC 64/1998 of IIIRD ADDITIONAL SESSIONS
COURT (ADHOC), FAST TRACK COURT NO.I, THRISSUR DATED 28-11-2002]
APPELLANTS(S):
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1. FIROZ,S/O.PALLATH MANAKKALAKAYIL MAJEED,
MATTUMBAL DESOM, ORUMANAYUR VILLAGE, CHAVAKKAD TALUK.
2. NASARUDDIN,S/O.ERAMASAMKAKILLATH
MUHAMMED ALI, MATTUMBAL DESOM, ORUMANAYUR VILLAGE
CHAVAKKAD TALUK.
3. SHAJU,S/O.MATTUPARAMBIL ABDU,
BLANGAD DESOM, KADAPPURAM VILLAGE, CHAVAKKAD TALUK.
4. UMMER,S/O.PUDIAVEETTIL MALIYAKKAL
KUNHUMUHAMMED, MATTUMMAL DESOM, ORUMANAYUR VILLAGE
CHAVAKKAD TALUK.
BY ADVS.SRI.P.VIJAYA BHANU (SR.)
SRI.P.M.RAFIQ
RESPONDENT(S)/COMPLAINANT:
--------------------------
STATE OF KERALA,
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
BY PUBLIC PROSECUTOR SRI.E.M.ABDUL KHADIR.
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 04-12-2013, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
V.K.MOHANAN, J.
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Crl.A.No. 1099 of 2002
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Dated this the 3rd day of December, 2013
J U D G M E N T
The above appeal is directed against the judgment dated 28.11.2002 in S.C.No.64 of 1998 of the court of IIIrd Additional Sessions Judge (ADHOC), Fast Track Court-I, Thrissur at the instance of accused Nos.1,4,7 and 9 in the above sessions case since they are convicted and sentenced for the offences under Sections 143,147,148,452,324,326,427,460 and 307 read with Section 149 of I.P.C.
2. The prosecution case is that on 27.8.1995 at 2.30 a.m., the accused formed themselves into an unlawful assembly and in prosecution of the common object of the unlawful assembly to commit murder of PW2 (CW3) and others due to their enmity with PW2 (CW3), trespassed into the house occupied by PW2 (CW3) and others bearing door No.IX/136 of Kadappuram Panchayat by breaking Crl.A.No. 1099 Of 2002 :-2-:
the door of the house and at that time, the accused were armed with swords, iron rods etc. and PW2 (CW3) was beaten on his head by the second accused with iron rod. He was also beaten by the third accused with an iron rod on his right leg and accused Nos.4 and 5 had beaten at several parts of his body with iron rod and A1 had inflicted grievous injuries at the head of PW1 (CW1) with sword. PWs.2 and 3 (Cws.3 and 4) were beaten by accused Nos.4 and 5 with iron rods causing injuries to them also. It is also the case of the prosecution that the accused has caused loss to the tune of Rupees One Thousand by damaging the door and tiles and thus, the accused altogether 11 in numbers have committed the offences punishable under Sections 143,147,148,452,324,326,427,460 and 307 read with Section 149 of I.P.C.
3. After the incident at about 2.30 a.m., the injured viz., Pws.1,2 and 3 (Cws.1,3 and 4) were admitted at Tahani Hospital, Guruvayur for treatment and thus, the S.I. Of Police, Chavakkad Police Station, Crl.A.No. 1099 Of 2002 :-3-:
who is examined as PW10, reached the hospital and recorded Ext.P1 F.I.statement of PW1 at about 6 a.m. on 27.8.1995 on the basis of which PW10 registered Ext.P1(a) F.I.R. against accused Nos.1 to 11 and other ten identifiable persons.
4. On completing the investigation, a report was laid in the Judicial First Class Magistrate Court, Chavakkad based upon which C.P.No.12 of 1996 is instituted in that court. As accused Nos.6,8 and 11 have not appeared before the committal court, the case against them was split up and registered as C.P.No.6 of 1997. By order dated 19.4.1997 in C.P.No.12 of 1996, the learned Magistrate committed the case to the Sessions Court, Thrissur with respect to accused Nos.1 to 5,7,9 and 10. On receipt of the records, S.C.No.64 of 1998 was instituted in the Sessions Court which is made over to the First Additional Assistant Sessions Court for trial and disposal. When the accused appeared before the said court, the learned Judge of the court of First Additional Assistant Sessions Court framed a charge against Crl.A.No. 1099 Of 2002 :-4-:
accused Nos.1 to 5,7,9 and 10 for the offences punishable under Sections 143,147,148,452,324,326,427,460 and 307 read with Section 149 of I.P.C. and when the said charge was read over and explained to the accused, they denied the same and pleaded not guilty. Thus, when the case was pending in that court, accused Nos.2 and 5 were absconded. Hence, the case against them was split up. Thus, the case against A1,A3,A4,A7, A9 and A10 proceeded during which the prosecution adduced its evidence by examining Pws.1 to 11 and by producing Exts.P1 to P13 documents. Mos.1 to 23 are identified as material objects. The accused were questioned under Section 313 of the Cr.P.C. and they have denied the offences and pleaded innocence.
Thus, the case was heard by the learned Judge of the court of the First Additional Assistant Sessions Judge and when the case was adjourned for judgment, the third accused was absconded and hence, the case against him was split up. Thereafter, while the case was pending for judgment in that court, transferred to the present court viz., the court Crl.A.No. 1099 Of 2002 :-5-:
of Third Additional Sessions Judge (ADHOC), Fast Track Court No.I, Thrissur. Thus, the present trial court found that the prosecution witnesses viz., Pws. 1 and 2 have not identified the tenth accused and hence A10 is acquitted whereas according to the learned Judge, the prosecution has succeeded in proving its case against the other accused viz., accused Nos.1,4,7 and 9 for the offences under Sections 143,147,148,452,324,326,427,460 and 307 read with Section 149 of I.P.C. and accordingly, they are convicted thereunder. On such conviction, the following sentences are ordered. Accused Nos.1,4,7 and 9 are sentenced to undergo rigorous imprisonment for three months for the offence under Section 143 I.P.C., rigorous imprisonment for six months for the offence under Section 147 I.P.C., rigorous imprisonment for one year for the offence under Section 148 I.P.C., rigorous imprisonment for three years for the offence under Section 452 I.P.C., rigorous imprisonment for two years for the offence under Section 324 I.P.C., rigorous imprisonment for four years Crl.A.No. 1099 Of 2002 :-6-:
for the offence under Section 326 I.P.C., rigorous imprisonment for one year for the offence under Section 427 I.P.C., rigorous imprisonment for five years for the offence under Section 460 I.P.C. and rigorous imprisonment for five years for the offence under Section 307 I.P.C. It is ordered that the sentence shall run concurrently. Set off is allowed under Section 428 of the Cr.P.C. It is the above finding, the order of conviction and sentence challenged at the instance of accused Nos.1,4,7 and 9, in this appeal.
5. I have heard Sri.P.Vijaya Bhanu, the learned Senior counsel appearing for the appellants and Sri.E.M.Abdul Khadir, the learned Public Prosecutor for the State.
6. When Pws.1 to 3 were admitted in the Tahani Hospital, Guruvayoor, they were examined by PW9, the Doctor attached to the above hospital and he issued Exts.P5 to P8 wound certificates dated 28.7.1995 with respect to CW2,PW2,PW3 and PW1 respectively.
After registration of Ext.P1(a) FIR, PW10, the then Sub Inspector of Crl.A.No. 1099 Of 2002 :-7-:
Police, Chavakkad Police Station proceeded to the scene of crime and he prepared the scene mahazar, which is marked through PW6, an attestor to Ext.P2 scene mahazar. PW7 is another attestor to Ext.P3 recovery mahazar with respect to Mos.1 to 4 (which are subsequently corrected as Mos.16 to 19). The Village Officer was examined as PW8 through whom Ext.P4 site plan got prepared. PW9 is the Doctor, whom I have referred to above, who examined the injured in the present case and who issued the wound certificates. When PW10 was examined, he had deposed that he went to the Tahani Hospital where the injured was admitted and recorded the First Information Statement of PW1 and he identified the same as Ext.P1 which is already marked through PW1. According to PW10, when he prepared Ext.P2 scene mahazar, he had seized Mos.5 to 13 material objects and he had identified the same. The remaining investigation had been undertaken by PW11, the then C.I.of Police, Chavakkad. When PW11 was examined, he had deposed that he undertook the investigation from Crl.A.No. 1099 Of 2002 :-8-:
PW10 and questioned the witnesses again and their additional statements were recorded and he arrested accused Nos.1,3,9 and 11. During the examination of PW11, Ext.P3 recovery mahazar with respect to the seizure of Mos.16 to 19 is marked through him. He had also deposed that when the second accused was arrested, MO14 was seized as per Ext.P10 mahazar. He had also deposed that as per Ext.P11 mahazar, MO15 was recovered from the fourth accused and similarly, MO16 weapon was recovered from the fifth accused as per Ext.P12 recovery mahazar. Ext.P13 forensic report is also marked through PW11.
7. When PWs.1 to 3, who are the injured witnesses were examined, they have deposed fully in terms of the prosecution allegation. When PW1 was examined, he had stated about the incident under which he sustained injuries and according to PW1, after the incident, himself and others were taken to Tahani Hospital at Guruvayoor and from there, he had given Ext.P1 F.I.statement to Crl.A.No. 1099 Of 2002 :-9-:
PW10 and he had identified Ext.P1 F.I.statement and marked the same. PW1 has also identified MO No.16 iron rod, which was used by A4, MO17 sword used by A1, MO18 iron rod used by A2, MO19 iron rod used by A5 to inflict injuries on them. However, PW1 has also identified Mos.21 to 23, which are respectively iron rod used by A7,A9 and A6 respectively. PW2 is the brother of PW1, who also deposed in terms of the deposition of PW1. PW3 is the wife of PW2 and according to PW3, she had also sustained injury connected with the above incident. Pws.4 and 5 are independent witnesses cited and examined by the prosecution, but they turned hostile. These are the evidence and materials referred to by the learned Judge of the trial court in the impugned judgment in support of his finding and to convict the appellant.
8. Learned counsel for the appellants vehemently submitted that the prosecution has suppressed the First Information Statement obtained by them prior to Ext.P1 and Ext.P1 is the concocted Crl.A.No. 1099 Of 2002 :-10-:
document, in which the accused are implicated falsely by suppressing the real facts. According to the learned counsel, the recovery was not proper and no authorship of concealment can be attributed against the the appellants connected with the so-called recovery effected by PW11. After inviting my attention to the deposition of PW1, the learned counsel submitted that the circumstances under which the names of the accused are implicated in the crime, are doubtful and therefore, the benefit of doubt should be given in favour of the accused. It is also the contention of the learned counsel that though the incident had occurred in the early morning of 28.7.1995 and Ext.P1 F.I.statement was recorded at 6 a.m. on the same day, the F.I.R. reached only at 5.30 a.m. and the said delay is not explained by the prosecution. According to the learned counsel, the delay occurred as a result of time taken for manipulation and to implicate the accused after deliberation. It is also contended that according to PW11, he had questioned the witnesses additionally and their additional statements Crl.A.No. 1099 Of 2002 :-11-:
were recorded, but no such statements are suppressed and the same had not been formed part of the prosecution records and thereby, the appellants are prejudiced. It is also the contention of the learned counsel that there is no explanation from the prosecution as to how Mos.21 to 23 were produced before the court. So, according to the learned counsel, the investigation undertaken by the prosecution is absolutely illegal and improper and it is unsafe to convict the appellant based upon a defective investigation. Thus, the counsel submitted that the appellants are deserved to be given the benefit of doubt and thereby, they are entitled to get an acquittal.
9. Per contra, the learned Public Prosecutor submitted that the evidence of Pws.1 to 3, who are the injured positively prove the involvement of the appellants in the commission of the offence and their evidence remains intact, and the court below rightly accepted their evidence and therefore, there is no illegality in the finding arrived on by the court below. According to the learned Public Crl.A.No. 1099 Of 2002 :-12-:
Prosecutor, though the incident had taken place at 2.30 a.m. on 27.8.1998, Ext.P1(a) FIR was registered at 7 a.m. itself and there is no delay and the negligible delay in reaching the court is properly explained by Pws.10 and 11 and as per the said explanation, it can be seen that connected with the incident, there was a hartal in the locality and since the Police Officers were involved in the law and order duty,the delay occurred is quite natural and therefore, the same will not affect the prosecution in any way. It is also the contention of the learned Public Prosecutor that after the arrest of the accused, based upon their own revealment, the weapons used and concealed by them were recovered and the prosecution has succeeded in establishing the case against the appellants/accused without any doubt and therefore, no interference is warranted with the judgment of the trial court and the finding arrived on by the learned Judge and hence the appeal, according to the learned Public Prosecutor, is liable to be dismissed.
10. I have carefully considered the arguments advanced by the Crl.A.No. 1099 Of 2002 :-13-:
learned counsel for the appellant and the learned Public Prosecutor. I have perused the evidence and materials on record.
11. In the light of the rival contentions and in view of the evidence and materials on record, the question to be considered is whether the conviction recorded by the trial court against the appellants is maintainable.
12. While considering the above case of the prosecution, it is relevant to note that even according to the prosecution version, the incident had taken place at 2.30 a.m. on 27.8.1995 and that too in house of PW1. It has also come out in evidence that the present incident had occurred in retaliation of the incident taken place prior to the present incident in which the brother of PW1 is involved as an accused. So the above circumstances certainly cast a duty upon the court to examine the entire prosecution case cautiously and more carefully. Going by the evidence of Pws.1 to 3, who are the injured, except in the evidence of PW3, there is no much contradiction. When Crl.A.No. 1099 Of 2002 :-14-:
PW3 was examined, she had deposed before the court during her chief examination itself, as follows:-
" .
."
She had also admitted that her husband and other members of the house belong to BJP. During the cross-examination itself, she had admitted that she did not disclose to the Doctor thatt the injury sustained was due to the blow received and she had further stated that " ." She had also admitted that five accused, whose names are given to the Police, are not pointed out to the Police and the Police has also not shown them to her. So, in view of the above deposition of PW3, the trial court itself is not prepared to accept the deposition of PW3.
13. It is also relevant to note that though Pws.1 to 3 claimed that they have got prior acquaintance with the accused, they failed to mention the name of the assailants before PW9, which was the first Crl.A.No. 1099 Of 2002 :-15-:
opportunity for Pws.1 to 3 to disclose the names of the persons, who succumbed injuries on them. In the given facts and circumstances of the case, according to me, the non-mentioning of the names of the aggressors by Pws.1 to 3 before the Doctor ,who examined them, is also a factor to be considered while appreciating the case of the prosecution.
14. As I indicated earlier, Pws.1 and 2 deposed in terms of the prosecution. However, it is relevant to note that when PW1 was examined, he had deposed that when himself and other accused were taken to the hospital and while they were passing through the Police Station, one person attached to him had gone to the Police Station and informed the matter. During the cross-examination, PW1 has stated as follows:-
"
Police Station.
station . 2= - 3
. .
Crl.A.No. 1099 Of 2002
:-16-:
."
The above evidence of PW1 shows that before taking Ext.P1 statement from PW1, the Police has got information about the incident. The said fact is further corroborated by the evidence of PW10, who deposed before the court during his cross-examination, as follows:-
"
.
.(Q) 2.30- 5.30- (A)"
The above admission of PW10 and the evidence of PW1 categorically show that the Police has got information about the incident prior to the recording of Ext.P1 F.I.statement from PW1. Though I have repeatedly gone through Ext.P1 F.I.statement and Ext.P1(a) FIR, nothing mentioned therein as to how PW10 arrived at the hospital to record Ext.P1 F.I.statement. The said facts further show that even before arriving in the hospital, PW10 has got a first hand information Crl.A.No. 1099 Of 2002 :-17-:
about the incident and therefore, according to me, Ext.P1 cannot be treated as the first information. For the above sole reason, according to me, no evidential value can be attached either to Ext.P1 F.I.statement or Ext.P1(a) F.I.R.
15. In this juncture, it is relevant to note that as pointed out by counsel for the appellant, Ext.P1(a) FIR reached before the jurisdictional Magistrate only at 5.30 p.m. on the very same day, in spite of the fact that the same was registered in the Police Station at 7 a.m. No convincing explanation is forthcoming from PW10 or from PW11 for the delay in reaching the F.I.R. before the learned Magistrate. Of course, the time taken between the time of registration of the F.I.R. and reaching the same before the Magistrate normally can be treated as negligible. But, in the present case, even though the delay is negligible, it assumes importance in the given facts and circumstances of the case. First of all, it is relevant to note that the prosecution party and the accused are in inimical terms at the time of Crl.A.No. 1099 Of 2002 :-18-:
the alleged incident for the reason which I have already referred to. PW1 has stated that he had mentioned the address of the accused to PW10, but in Exts.P1 and P1(a), the addresses of the accused are not furnished. No explanation is given for such serious omission. As I indicated earlier, PW10 had already inspected the place of occurrence even before recording Ext.P1 F.I.statement. So, it cannot be ruled out that the names of the accused were incorporated in Exts.P1 and P1(a) after deliberation, that is why the F.I.R. belatedly reached before the jurisdictional Magistrate in spite of the fact that Police persons are being regularly deputed to court duties.
16. It is also relevant to note that when PW1 was examined, he had deposed in an unequivocal term that before recording Ext.P1 F.I.statement, another Police Official visited him and he had conveyed all informations with respect to the incident. During the re-
examination, PW1 has stated which reads as follows:-
" 5 station Crl.A.No. 1099 Of 2002 :-19-:
- police .
."
The said fact also discloses that the statement of PW1 was recorded prior to Ext.P1 statement, but all materials including the statement which are said to have recorded by the Police Official from Chavakkad Police Station prior to Ext.P1, the information received in the Police Station through the assistant of PW1, when himself and other injured were taken to the hospital are suppressed in this case, which fact, causes serious doubt about the veracity of the prosecution allegation including the correctness and admissibility of Ext.P1 and Ext.P1(a) FIR, which are the basic documents upon which the prosecution case rested.
17. No doubt, in a prosecution for a serious offence like the present one, it is the duty of the prosecution to ensure a fair and proper investigation. But, in the present case, besides the serious defect which I pointed out earlier, with respect to suppression of material Crl.A.No. 1099 Of 2002 :-20-:
evidence and fact, the prosecution has got a tendency to introduce the evidence in an improper and illegal way. As pointed out by the learned counsel for the appellants, the prosecution has no claim and case, how MOs.21 to 23 were seized. No documents with respect to the seizure of those material objects have been produced before this Court. No witnesses to the seizure of such material objects are also cited and examined in this case. Still then, when PW1 was examined, he was asked to identify Mos.21 to 23 and the weapons are so identified and marked during the examination of PW1. The trial court, without any proper scrutiny, just marked those MOs.21 to 23. In the absence of any documentary evidence for the seizure of the said material objects or for recovery of the same, particularly without the evidence of any attestor witness, the trial court simply accepted the same in the trial and marked the same. The above improper and illegal approach of the court below cannot be approved.
18. Further, it is relevant to note that PW11 during his Crl.A.No. 1099 Of 2002 :-21-:
examination had deposed before the court that after his assumption of charge of the investigation in the above crime, he had questioned the witnesses again and recorded their additional statements. But, no such statements are formed part of the prosecution records and the same were not furnished to the accused and as such, the accused were denied the opportunity to cross-examine the witnesses on the basis of such additional statements of the witnesses. Certainly, the above lapse on the part of the prosecution prejudiced the accused to a great extent.
19. In the light of the above facts and circumstances and the discussion, I am of the view that the prosecution has deliberately suppressed material facts and evidence including the material documents, which are sufficient to create serious doubt against the prosecution case and due to serious defect in the investigation undertaken by the prosecution, according to me, it is not safe to convict the appellants and by extending the benefit of doubt, according to me, the learned Judge of the trial court ought to have Crl.A.No. 1099 Of 2002 :-22-:
acquitted the accused. Therefore, the finding and conviction recorded by the trial court against the appellants are set aside, extending the benefit of doubt in favour of the accused.
In the result, the above appeal is allowed setting aside the judgment dated 28.11.2002 in S.C.No.64 of 1998 of the court of the Third Additional Sessions Judge (ADHOC), Fast Track Court No.I, Thrissur and the appellants are acquitted of all the charges levelled against them and the bail bond, if any, executed by them shall stand cancelled and they are set at liberty.
V.K.MOHANAN, Judge MBS/ Crl.A.No. 1099 Of 2002 :-23-:
V.K.MOHANAN, J.
CRL.A.No.1099 of 2002 J U D G M E N T Dated:4.12.2013 Crl.A.No. 1099 Of 2002 :-24-: