Kerala High Court
Golden Satheesan @ Satheesan vs State Of Kerala on 4 August, 2011
Author: V.Ramkumar
Bench: V.Ramkumar, P.Q.Barkath Ali
IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL.A.No. 362 of 2007()
1. GOLDEN SATHEESAN @ SATHEESAN,
... Petitioner
2. RAMESH, S/O.VASUDEVAN,
3. SUDEEP, S/O.CHANDRAN,
4. SUJITH, S/O.CHANDRAN,
5. JOSHY, S/O.DHARMAN, KAVUNGAL HOUSE,
6. BHASKARAN, S/O.DHARMAN,
7. JOY @ BIJOY, S/O.PHALGUNAN,
8. BLACK SHAJI @ SHAJI,
9. SOORYANKUTTAN @ SATHYAN,
10. PANCHABI SATHYAN @ SATHYAN,
11. PAZHACHAKKA SIVAN @ SIVAKUMAR,
12. KUTTAPPAN DADA @ KISHORE,
13. MANOJ, S/O.NALAN, KOZHISSERY HOUSE,
Vs
1. STATE OF KERALA, REPRESENTED BY
... Respondent
For Petitioner :SRI.P.VIJAYA BHANU
For Respondent :SRI.RAINGE KODUVATH
The Hon'ble MR. Justice V.RAMKUMAR
The Hon'ble MR. Justice P.Q.BARKATH ALI
Dated :04/08/2011
O R D E R
V. RAMKUMAR
&
P.Q. BARKATH ALI, JJ.
........................................................
Crl. Appeal No. 362 of 2007
.........................................................
Dated: 04-08-2011
JUDGMENT
V.Ramkumar,J.
In this appeal filed under section 374(2) Cr.P.C. accused 1 to 13 in S.C. No.649 of 2006 on the file of the Addl. Sessions Court (Fast Track Court No.II - Adhoc), Thrissur, challenge the conviction entered and the sentence passed against them for offences punishable under sections 147, 148, 447, 302, 307 and 326 read with section 149 IPC.
PROSECUTION CASE
2. The case of the prosecution can be summarized as follows:-
On 19-6-2006 at 3.30 p.m. Aneesh (deceased in this case), PW2 (Subeesh @ Subin) and PW4 (Suman @ Sumesh) had assaulted one Pandhalam Prasad from the vicinity of Azhekode Jetty, resulting in the said Prasad lodging a complaint before the Kodungallur Police which registered a case against deceased Crl. Appeal No. 362 of 2007 -:2:- Aneesh and others. In retaliation to that occurrence, accused Nos. 1 to 14 formed themselves into an unlawfully and in prosecution of the common object of the said unlawful assembly they committed rioting armed with deadly weapons such as swords, iron pipes etc. After trespassing into the courtyard of the uninhibited building belonging to PW5 ( Subramanian), the father of Aneesh situated about 200 metres to the west of Chamakala - Asarikayattam public road in Kaipamangalam Village where Aneesh and PW2 were sleeping, the accused at about 12.30 mindnight on the aforesaid date assaulted Aneesh and PW2 with deadly weapons like swords, iron pipes etc. Aneesh died on the spot and PW2 sustained serious injuries. PW1, the brother of the deceased, was informed about this at about 6 a.m. on 20-6-2006 by PW4 (Suman) and PW2 was taken to Al-Iqbal Hospital, Chenthrapinny.
PW1 proceeded to the Mathilakam Police Station and gave Ext.P1 F.I. Statement at 8.15 a.m. The accused who voluntarily caused the death of Aneesh and attacked PW2 with deadly weapons in prosecution of the common object of the aforesaid unlawful assembly have thereby committed offences punishable under sections 143, 147, 148, 324, 448, 307 and 302 read with section 149 IPC and section 27 of the Arms Act, 1959.
Crl. Appeal No. 362 of 2007 -:3:-
THE TRIAL
3. Accused Nos. 1 to 13 (the appellants herein) alone faced trial before the court below. Accused No.14 was absconding. On accused Nos.1 to 13 pleading not guilty to the charge framed against them by the court below for offences punishable under sections 143, 147, 148, 448, 326, 307 and 302 read with section 149 IPC and section 27 of the Arms Act, 1959, the prosecution was permitted to adduce evidence in support of its case. The prosecution altogether examined 26 witnesses as PWs.1 to 26 and got marked 81 documents as Exts.P1 to P81 and 45 material objects as MOs.1 to 45.
4. After the close of the prosecution evidence, the accused were questioned under section 313 (1)(b) Cr.P.C. with regard to the incriminating circumstances appearing against them in the evidence for the prosecution. They denied those circumstances and maintained their innocence. The first accused further stated as follows:-
For the past five or six years deceased Aneesh (PW1) and about 30 other youngsters have been continuously assaulting people in that locality and committing murders and other atrocities, including extortion, robbery and eve-teasing of young girls. Crl. Appeal No. 362 of 2007 -:4:-
There were about 60 cases against them within a radius of 30 - 35 kms. The police officials, including higher-ups were hand-in-glove with those goondas. They had even provided a car to the C.I. of Police. When the law and order situation in that area had been under constant threat, youngsters in that area along with politicians had submitted a mass petition to the D.I.G. of Police. Since no tangible results were forthcoming, an all-party meeting was convened in which Mohammadali, Panchayat President, Prathapan, M.L.A., Sureshkumar, C.I. of Police, Raveendran, S.I. of Police, and certain office-bearers of the Communist, Congress and B.J.P. parties and district-level leaders of P.D.P. took part. About 1500 mothers and youngsters, including children, had also taken part in the meeting. Among the 350 youngsters these accused also actively participated in the said meeting. After the murder of Aneesh even though the police had arrested them, the police were convinced that these accused have no role in the occurrence. In spite of that, on the 21st they were arrested from their houses and assaulted. Their plea of innocence was not heeded to by the police. The C.I. of Police, Valakam Crl. Appeal No. 362 of 2007 -:5:- got them under illegal custody for seven days during which period they were allowed to wear only an underwear and they were tortured while in custody. The Circle Inspector was expressing his helplessness due to the pressure from the higher ups. PW1 was financing the whole operation by utilizing goondas at his command. The police were siding them. He was falsely implicated in this case, as in the case of the 13 other accused in this case.
5. The other accused also towed the line of the 1st accused.
6. Since this was not a case of no evidence for the prosecution within the meaning of section 232 Cr.P.C., the learned Judge did not record an order of acquittal at that stage. The accused were, therefore, called upon to enter on their defence and to adduce any evidence which they might have in support thereof. They examined one Paulson as DW1 who is the Standing Committee Chairman of the Kaipamangalam Panchayat. He was cited for proving the agitation by the locals against the goondaism which was rampantly threatening them. The accused also got marked Exts. D1 to D14.
7. The learned Addl. Sessions Judge after trial, as per Crl. Appeal No. 362 of 2007 -:6:- judgment dated 2-2-2007 found the appellants guilty of offences punishable under sections 147, 148, 447, 302, 307 and 326 read with section 149 IPC. Each of the appellants was sentenced to undergo imprisonment for life and to pay fine of Rs.5,000/- and on default of payment of the fine, to undergo rigorous imprisonment for six months under section 302 IPC. For the conviction under section 307 IPC, each of the appellants was sentenced to rigorous imprisonment for eight years and to pay fine of Rs.5,000/- and on default of payment of the fine, to undergo rigorous imprisonment for six months. For the conviction under section 326 IPC, each of the appellants was sentenced to rigorous imprisonment for seven years. Accused Nos. 1 to 7, 11 and 13 who were armed with deadly weapons were sentenced to undergo rigorous imprisonment for two years each under section 148 IPC. Accused Nos. 8 to 10 and 12 were sentenced to undergo rigorous imprisonment for one year each under section section 147 IPC. Each of the appellants was sentenced to undergo rigorous imprisonment for two months under section 447 IPC. No specific finding was recorded with regard to the charge for the offence punishable under Section 27 of the Arms Act, 1959. Set off was allowed to each of the accused under section 433 Cr.P. It is the said judgment which is assailed in this appeal by accused 1 to 13.
Crl. Appeal No. 362 of 2007 -:7:-
THIS APPEAL
8. We heard Senior Adv. Sri. P.Vijaya Bhanu and Adv.Sri.Rainge, the learned counsel appearing for the appellants, and Advocate Sri M.S.Breeze, the learned Public Prosecutor, representing the State.
9. The following points arise for consideration in this appeal:-
1) Whether the conviction entered and sentence passed against the appellants under sections 447, 326, 307 and 302 read with section 149 IPC are sustainable?
2) Whether the conviction entered and sentence passed against accused Nos. 1, 7, 11 and 13 for the offence punishable under section 148 IPC are sustainable?
3) Whether the conviction entered and sentence passed against accused Nos. 8, 9, 10 and 12 for the offence punishable under section 147 IPC, are sustainable?
4) Whether the prosecution established that all or any of the appellants committed any of the offences charged against them?
Crl. Appeal No. 362 of 2007 -:8:-
Points 1 to 4:- For the sake of convenience all these points can be considered together.
PROSECUTION WITNESSES
10. A. PW1(Shijil) is the elder brother of deceased Aneesh. He is not an occurrence witness. On coming to know of the occurrence in the morning of 20-6- 2006, he proceeded to Mathilakam Police Station and gave Ext.P1 F.I. Statement to PW24 Sub Inspector of Police, Mathilakam who registered Ext.P24 F.I.R. for offences punishable under sections 143, 147, 148, 324, 448, 307 and 302 read with section 149 IPC.
B PW2 (Subeesh @ Subin) is an occurrence witness who was also injured in the occurrence. He identified all the accused. He proved Ext.P2 F.I.R in Crime No.297/2006 of Kodungallur Police Station in which one Pandhalam Prasad was allegedly assaulted from the vicinity of the Azheekode Jetty. Ext.P3 is the F.I.Statement in the above case. PW2 also proved Ext.P4 case sheet pertaining to him which was issued from Al-Iqbal Hospital and Ext.P5 series of photographs of deceased Aneesh and their negative Crl. Appeal No. 362 of 2007 -:9:- Ext.P6 series. He identified MO10 sword as the one used by the 1st accused, MO11 sword as the one used by the 3rd accused, MO12 sword as the one used by the 6th accused, MO13 sword allegedly used by the 7th accused, MO14 iron pipe allegedly used by 4th accused, MO15 iron pipe allegedly used by the 2nd accused, MO16 iron pipe allegedly used by the 7th accused, MO17 iron pipe allegedly used by the the 13th accused and MO18 iron pipe allegedly used by the 11th accused. He also identified MO19 shirt and MO20 baniyan which he was wearing and MO21 torch which he was having. He also identified MOs.22, 23, 24 torches allegedly held by accused Nos.1, 3 and 5 respectively, MO25 raincoat said to have been worn by the 1st accused, MO26 dhoti worn by the 1st accused, MOs.27 and 28 shirt and dhoti worn by the 2nd accused, MOs.29 and 30 shirt and dhoti worn by the 3rd accused, MO31 dhoti worn by the 4th accused, MOs.32 and 33 lunki and shirt worn by the 12th accused, MO34 saffron dhoti and MO35 shirt worn by the 7th accused, MOs.36 and 37 shirt and dhoti worn by the 10th accused, MOs.38 and 39 dhoti and shirt worn by the 9th accused, MOs.40 and 41 saffron dhoti and shirt worn by the 6th accused, MO42 saffron dhoti worn by the 5th accused and MO43 T-shirt allegedly worn by the Crl. Appeal No. 362 of 2007 -:10:- 1st accused under MO25 raincoat. Exts.D3 and D4 are the case diary contradictions of PW2. He also mentioned the various parts of the body of the deceased where each of the assailants struck with each of the weapons. C. PW3 (Ganapathi @ Vijeesh) is yet another witness who claims to have seen the occurrence. He also identified MOs.8 and 9 dress worn by deceased Aneesh, MOs. 10 to 18 used by the accused, MOs.19 and 20 dress worn by PW2, MO21 torch held by PW2, MOs.22 to 24 torches held by accused Nos.1, 3 and 5 respectively and MO 25 raincoat worn by the 1st accused. Exts.D5 to D11 are his case diary contradictions.
D. PW4 (Suman @ Sumesh) is the elder brother of PW2. Both PWs.2 and 4 are the sons of PW6. He resides at Koorikuzhi Panniampilly desom. He stated that all the accused are known to him. He identified MOs.19 and 20 shirt and baniyan of PW2 and MO21 torch of PW2.
E. PW5 (Subramanian) is the father of PW1 and the deceased. Even though this witness stated that he can identify each and every accused, he did not in fact identify the accused standing in the dock. According to him, accused Crl. Appeal No. 362 of 2007 -:11:- Nos.5, 6, 9 and 10 got into his house and told him that the deceased, PW4 and PW2 had beaten Prasad at Azheekode. F. PW6 (Sugathan) is the father of PWs.2 and 4. He would say that on 19-6-2006 accused Nos. 5, 6, 7, 9, 10, 11, 13 and 14 got into his house and asked for the whereabouts of PWs.2 and 4. This witness also has not identified any of the accused standing in the dock.
G. PW7 (Lonachan @ Praveen) would say that PW2 told him about the incident that at Azheekal one Prasad was beaten up. He was in the company of PWs. 1, 2, 4 and deceased in the evening of 19-6-2006. MO4 liquor bottle was marked through him and he identified the same as the bottle from which they consumed liquor. According to him, at about 9.30 p.m. on 19-6-2006 he had seen accused Nos.5 to 14 except 8th accused and thereafter he had gone home. H. PW8 (Anandan) is an attester to Ext.P7 inquest report dated 20-6-2006.
I. PW9 (Shinod) is an attester to Ext.P8 scene mahazar dated 20-6-2006, as per which PW25, the Investigating Crl. Appeal No. 362 of 2007 -:12:- Officer, had seized one dagger, which was however, not produced before court by the prosecution.
J. PW10 (Nizar) is a photographer at Chandrapinny. He proved Ext.P9 seizure mahazar dated 27-6-2006 for recovery of MOs.1 to 12 swords and MOs.14 and 17 iron pipes at the instance of the 1st accused. According to him, the 1st accused wanted a car on rent for his use on 18-6- 2006 and he had provided to the 1st accused a Maruthi Zen car bearing registration No.KL-8/AF 4453 belonging to one Hameed and on 20-6-2006 the 1st accused had returned the car which had an abrasion.
20. PW11 (Mohammedali) is an attester to Ext.P9 recovery mahazar dated 27-6-2006, as per which MOs.10 to 12 swords and MOs.14 and 17 iron pipes were recovered, pursuant to Ext.P9 (a) confession given by the 1st accused. The above weapons were seized and recovered from the pond attached to the Dharmasastha Temple, Koorikuzhi.
L. PW12 (Joy) is an attester to Ext.P10 recovery mahazar dated 27-6-2006, as per which shirts, dhothies and Crl. Appeal No. 362 of 2007 -:13:- torch were seized by the Investigating Officer, pursuant to Ext.P10(a) confession by the 3rd accused. These material objects were not identified either by PW12 or by PW25. M. PW 13 (Jose) is an attester to Ext.P11 recovery mahazar dated 27-5-2006 under which 2 shirts, 2 dhotis, 1 T-shirt, 1 overcoat and 1 torch were seized from the house of the 1st accused pursuant to Ext.P11(a) confession by the 1st accused. These properties were not identified either by PW13 or by PW25.
N. PW14 (Riyas) is an attester to Ext.P12 seizure mahazar dated 27-6-2006, as per which a Maruthi Zen car was produced by PW10 before the police.
O. PW15 (Sajeevan) is an attestor to Ext.P13 seizure mahazar dated 29/06/2006 for the seizure of MO 13 sword and MO 16 and 18 iron pipes pursuant to Ext.P13(a) confession by A5.
P. PW16 (Sakkeer) is an attestor to Ext.P14 recovery mahazar dated 29/06/2006 with regard to the seizure of MO 24 torch and other unidentified clothes allegedly worn by Crl. Appeal No. 362 of 2007 -:14:- A5, A6, A7, A9, A10 and A11 from the house of A5 pursuant to Ext.P14(a) confession by A5.
Q. PW17 ( Falgunan) is an attestor to Ext.P16 seizure mahazar dated 5/8/2006 with regard to the seizure of the tempo trax jeep from the house of A5. This witness turned hostile to the prosecution. Ext.P15 is the signed copy of the summons marked for the purpose of proving his signature. R. PW18 ( Dr.Prasannan) was the Associate Professor of Forensic Science in the Medical College Hospital, Thrissur who conducted autopsy over the deadbody of Aneesh. He proved Ext.P18 postmortem certificate dated 20-06-2006 as per which Aneesh had 34 injuries. He opined that Aneesh died due to injury Nos. 7, 12, 13 and 15 which according to him are sufficient in the ordinary course of nature to cause death. PW 18 also proved Ext.P19 Chemical report as per which the deceased had 98 Mg. of Ethyl Alcohol per 100 Ml. of blood.
S. PW19 ( Dr.Sajeev Bhaskaran) was the Orthopedic Surgeon in Al-Iqbal Hospital, Chenthrappinni. He proved Ext.P4 case sheet of PW2 and Ext.P20 wound certificate Crl. Appeal No. 362 of 2007 -:15:- dated 20/06/2006 pertaining to PW2. He had examined PW2 at 6.45 a.m. on 20/06/2006. Ext.P20 wound certificate does not mention the alleged cause which is mentioned in Ext.P4 case sheet wherein it is stated that he was assaulted by ten to fifteen persons with swords and such other weapons at Chamakkuzhi Chamakkala at 1:00 a.m. as told to the doctor by PW4, the brother of PW2. PW2 had the following injuries :
1. Lacerated wound over the posterior aspect of left leg 12 x 3 x 1 cm. over the middle of left leg.
2. Lacerated wound 10 x 2 x 1 cm. between the middle of left leg and ankle with 100% cut tendo achiless with fracture of tibia and fibula.
3. Lacerated wound 7 x 1 x 1 cm. medial aspect of the ankle extending to the medial foot of left leg.
4. Lacerated wound 11 x 3 x 1 cm. over middle of the leg.
5. Lacerated wound middle of left leg and ankle with tendo achiless 100 % cut with fracture of the fibula over right leg.
6. Lacerated wound on the medial aspect of the foot 5 x 1 x 1 cm..
7. Lacerated wound 4 x 1 x 1 cm. over the right arm.
Crl. Appeal No. 362 of 2007 -:16:-
8. Multiple contused abrasions.
T. PW19 (Dr. Sajiv Bhaskaran) deposed before court that all the contusions could be caused by MOs 14, 17, 16, 18 and 15 and that if timely treatment was not given, he would have died, that the blood pressure of PW2 was low at the time of the examination possibly due to bleeding and that PW2 would have gone into shock. Ext.D14 is the case diary contradiction of the doctor.
U. PW20 (Jameela) who is the Special Village Officer of Kaipamangalam village proved Ext.P21 scene plan as also Ext.P22 possession certificate showing that the owner of the house situated in the place of occurrence is PW5 who is the father of PW1 and the deceased.
V. PW21 ( Satheesan) is the second attestor to Ext.P16 seizure mahazar dated 5/08/2006 pertaining to the seizure of the tempo trax jeep from the house of A5. He also turned hostile to the prosecution.
W. PW22 ( Vakkachan) was the Head Constable in the office of the Circle Inspector of Police, Valappad. He is the attestor to Ext.P23 seizure mahazar dated 5/07/2006 Crl. Appeal No. 362 of 2007 -:17:- pertaining to the seizure of a bottle containing the viscera of Aneesh taken from PW18, the Autopsy Surgeon.
X. PW 23 ( Sankarankutty) was the Police Constable in Mathilakam Police station. He had taken the corpse of Aneesh after the inquest to the Medical College Hosptial, Thrissur for autopsy and had later released the dead body to the relatives of the deceased.
Y. PW24 ( Gopakumar) was the Sub Inspector of Police, Mathilakam who recorded Ext.P1 FI statement of PW1 and registered Ext.P24 FIR at 8.15 a.m. on 20/06/2006. The FIR reached the Magistrate at 2.10 p.m. on the same day. Thereafter, PW24 proceeded to guard the scene.
Z. PW25 (Suresh Kumar) who was the Circle Inspector of Valappad conducted the entire investigation of this case. He proceeded to the scene of crime on 20/06/2006 and held inquest over the deadbody of Aneesh from 9.30 a.m. to 12.30 p.m. Ext.P7 is the inquest report to which PW8 is an attestor. MO 8 shirt, MO 9 Saffron lungi and MO 45 underwear found on the body of the deceased Crl. Appeal No. 362 of 2007 -:18:- were seized under Ext.P7. PW27 then proceeded to prepare the scene mahazar. Ext.P8 is the scene mahazar prepared at 1.15 p.m. on 20/06/2006. PW9 is an attestor to the same. MO 1 series of chappels, MO 2 series of chappels, MO 3 series of chappels, MO4 liquor bottle, MO5 series of empty bottles, MO6 glass tumbler and MO 7 mobile phone in addition to a dagger were seized under Ext.P8 scene mahazar. On 24.06.2006, PW25 went to Al-Iqbal Hospital and questioned PW2, who was undergoing treatment there. He seized MO 19 shirt, MO 20 Baniyan and MO 21 torch at 2.30 p.m. under Ext.P25 seizure mahazar. On 27/06/2006 at 12. 30 p.m., A1 to A4 and A8 were arrested from the vicinity of KSRTC bus stop, Guruvayoor. Exts.P26 to P35 are the memos in that connection. On 27/06/2006 at 2.30 p.m., pursuant to Ext.P9 confession given by A1, PW25 recovered MOs 10 to 12 swords and MO 14 and MO 17 iron rods from a pond near the Dharmasastha Temple, Kurikkuzhi. On the same day at 3.15 p.m. pursuant to Ext.P11(a) confession of A1, PW25 recovered two shirts, two lungis , one T-shirt, one overcoat and a torch from the house of A1 situated in Kaipamangalam Panchayat as per Ext.P11 recovery mahazar. These material objects were not identified either by PW25 or by PW13 who is an attestor to Crl. Appeal No. 362 of 2007 -:19:- Ext.P11. On 27/06/2006 at 3.45 p.m. pursuant to Ext.P10
(a) confession given by A3, PW25 recovered a shirt, a lungi, a torch and a dhoti as per Ext.P10 recovery mahazar to which PW12 is an attestor. This was from the house of A3. Here also, the material objects were not identified either by PW24 or by PW12. On 27/06/2006 at 5 p.m., PW10 ( Nizar) produced the Maruthi Zen car before PW25 who seized the same under Ext.P12 seizure mahazar. On 29/06/2006 at 2 p.m., PW25 arrested A5 to A7 and A9 to A11 from the vicinity of Chalakkudy Railway station. Exts.P38 to P49 are the memos in that connection. On 29/06/2006 at 4.30 p.m. pursuant to Ext.P13(a) confession made by A5, PW25 seized MO 13 sword, MO 16 and MO 18 iron pipes and MO 44 plastic sack from the coconut garden of one Preman. On 29/06/2006 at 5.15 p.m. pursuant to Ext.P14(a) confession of A5, PW25 recovered MO 24 torch and other unidentified clothes allegedly worn by A5, A6, A7 , A9, A10 and A11 from the house of A5 as per Ext.P14 recovery mahazar to which PW16 is an attestor. On 7/7/2006 at 8 a.m., PW25 arrested A12 from the vicinity of Kodungalloor temple compound. Exts.P52 and P53 are the arrest memo and remand report. Ext.P56 is the report regarding the address of the accused. PW25 then submitted the original of Ext.P57 Crl. Appeal No. 362 of 2007 -:20:- forwarding note for forwarding the material objects to the Chemical Examiner for analysis. Ext.P58 is the certificate of Chemical Analyst dated 11/10/2006. The first four items in the said certificate are four swords. The measurement of two out of the four swords before court do not agree with the measurements given for items 1 and 2 in Ext.P58. The third sword in Ext.P58 could either be MO 11 or MO 13 which were wielded by A3 and A7 respectively. The fourth sword corresponds to MO 10 allegedly used by A1. Items 5 to 8 in Ext.P58 are MO 25, MO 8, MO 45 and MO 9 of which MO 25 raincoat is allegedly to have been worn by A1. MOs 8, 45 and 9 are the garments of the deceased. Items 9 to 13 in Ext.P58 are the properties which were seized as per Ext.P8 scene mahazar. The blanket and the lungi which are items 9 and 8 have not been identified as belonging to any particular person. Item 14 in Ext.P58 is a packet of hair for which there is no recovery evidence. Items 15 to 19 in Ext.P58 are MOs 14, 17, 16, 18 and 15 respectively were the iron pipes which were allegedly wielded by A4, A13, A7, A11 and A2 respectively. The report of the Analyst is to the effect that MO 8 shirt, MO 45 underwear, MO 9 lungi belonging to the deceased and item No. 9 blanket, item No. 10 lungi, the blood samples, blood Crl. Appeal No. 362 of 2007 -:21:- stained soil and the hair contained human blood and blood was detected on the two unidentifiable swords and the two other swords and also on MO 25 raincoat. But the origin of the blood stains on those items could not be ascertained for want of sufficient quantity. Ext.P58 further concludes by saying that no blood was detected on items 13, 15 and 16 which are the control soil, MO 14 iron pipe and MO 17 iron pipe. PW25 also proved Ext.P23 mahzar dated 5.7.2006 as per which the viscera taken by PW18 was seized. PW 22 is an attestor to the said mahazar. Exts.P59 to P64 are the search lists prepared by PW25 while conducting search of the house of the accused. He proved Ext.P16 seizure mahazar dated 5.8.2006 pertaining to the seizure of the tempo trax jeep from the house of A5. PW17 and PW21 are the attestors to Ext.P16 seizure mahazar. Both of them turned hostile to the prosecution. PW25 admitted that there was a meeting demanding action against the anti-social elements and he himself and the Natika MLA had participated in that meeting and the accused had also played a vital role.
AA. PW 26 ( Balasubrahmanian) was the Circle Inspector of Police, Valappad who succeeded PW 25. He submitted Ext.P81 report for adding Section 27 of the Arms Crl. Appeal No. 362 of 2007 -:22:- Act 1959. On 29/08/2006 at 12. 30 p.m. he arrested A13 from Thriprayar junction. Exts.P77 and 78 are the memos in that regard. Ext.P79 is the remand report filed in respect of A13. After the conclusion of investigation, PW 26 laid the final charge before court.
DEFENCE EVIDENCE
11. DW1 (Paulson) was the Chairman of the Standing Committee of Kaipamangalam Grama Panchayat. Even though he conceded that there was a meeting involving all the political parties and the local people for putting an end to the goondaism in that area, he stated that there are no minutes evidencing such a meeting in the Panchayat office since it was not an official meeting of the Panchayat.
PROSECUTOR'S ARGUMENTS
12. Sri.M.S.Breeze, learned Public Prosecutor who defended the State made the following submissions before us in support of his plea to dismiss the appeal :-
The main witnesses are PWs 1 to 4. PWs 1 and 4 are not occurrence witnesses. PW2 is not only an occurrence witness, but also an injured witness. The motive for the present Crl. Appeal No. 362 of 2007 -:23:- occurrence was the attack on one Panthalam Prasad at Azhekode Jetty at 3.30 p.m. on the same day. This Prasad had lodged a complaint before the Kodungalloor against deceased Aneesh. At 9.30 p.m. on 19.06.2006, A5 to A7, A9 to A11, A13 and A14 had come to the house of PW6, the father of PW 1 and PW4 . Subsequently at 9 p.m., A5, A6, A9, A11 and A10 had gone to the house of PW5, the father of PW1 and the deceased, in search of PW1 and the deceased. They had indicated their mind to PW5. PW1 who is the brother of the deceased had slept during the night of 19/06/2006 in another house situated at about 1 = km. away from the place of occurrence. That house belongs to one Majeed. Even though at the time when PW1 went to bed, PW3 was not in his company. PW3 had joined him at 5.30 a.m. on the next day. PWs 1 and 3 went to Chentrapinni junction from there PW1 got a phone call from PW4. Then PWs 1 and 3 went in an autorickshaw to the place of occurrence to find Aneesh lying dead and PW2 lying wounded. PW2 was then taken to Al-Iqbal Hospital, Chentrappinni in an autorickshaw by PWs 1, 3 and 4. On the way to the hospital, PW2 had narrated the occurrence to PWs 1 and 4. PW2 who is the brother of PW4, is the injured witness who had an opportunity to see the entire incident. He had seen the first part of the incident in which Aneesh was cut with swords and hit with iron pipes. When he intervened A9, A12, A10, A14 wrongly restrained him. At that time the deceased Crl. Appeal No. 362 of 2007 -:24:- was forcibly taken out of the firewood shed by A1 to A5. A1, A6, A7, A3 attacked the deceased with MOs 10, 12, 13, 11 swords and A2, A4, A7, A11 and A13 attacked Aneesh with MO 15, 14, 16, 18 and 17 iron pipes respectively. Since all the accused persons belong to the same area, PW2 had no difficulty in identifying the assailants, the dress worn by each of them and the weapons wielded by each of them. Thereafter, the accused set upon PW2. A1 kicked him on the stomach and he fell down. A1, A3, A7 and A8 attacked him with swords. PW2 has deposed that PW 3 was also there. PW3 is also an occurrence witness who had seen the entire incident. He then left for the unfinished house of Majeed where PW1 was sleeping. There was no occasion for PW1 to mention the presence of PW3 since PW3 did not accompany PW1 during the night of 19.06.2006. Hence there is no contradiction in the testimony of PW1 and PW3 when they say that in the morning of 20/06/2006 both of them together went to Chentrappinni junction. While at that junction, PW1 got a phone call from PW4. PW3 has also deposed that A1, A3, A5 and PW2 had torches. PW3 has also identified the accused as the residents of that locality. In the light of the above evidence and the other evidence adduced by the prosecution, the trial Judge has rightly recorded the conviction which does not call for any interference at the hands of this court.
Crl. Appeal No. 362 of 2007 -:25:-
JUDICIAL EVALUATION
13. We are afraid that we find ourselves unable to agree with the submissions made on behalf of the prosecution.
PLACE OF OCCURRENCE
14. The place of occurrence is the separate bathroom , latrine, firewood shed and their vicinity in the courtyard of the uninhabited old building belonging to P.W.5 (Subramanian) the father of P.W.1 (Shijil) and deceased Aneesh. Ext.P22 is the possession certificate to that effect issued by P.W. 20 Special Village Officer of Kaipamangalam Village. The main house had been partly gutted by fire and it has no roof. The said building is situated about 200 metres to the west of the Chamakkala - Asharikayattam public road in Kaipamangalam Village. That locality is also called Koorikuzhi. It is within the limits of the Mathilakam Police Station. Most of the residents in that area are fishermen.
BACKGROUND FACTS
15. A tense situation was prevailing in and around the place of occurrence. There used to be frequent attacks and Crl. Appeal No. 362 of 2007 -:26:- rioting by goondas in that area and the people of that locality were fed up with such goonda atrocities. The evidence of P.W.25 the Investigating Officer as also that of DW1 the Chairman of the Panchayath Standing Committee will go to show that there had been an all party meeting in which the local people as well as all political parties participated to condemn the frequent gangsterisms and goondaisms in that area . A mass petition had been given to the police demanding stern action against such anti-social activities and requesting police intervention. What they wanted was adequate protection to the people of that locality. The accused persons, particularly, the 5th accused were also among those who revolted against the atrocities unleashed by those goondas . At about 3.30 p.m. on 19-6-2006 deceased Aneesh, P.W.2 (Sudhish) and his elder brother P.W.4 (Suman @ Sumesh) had assaulted one Pandalam Prasad at the Azheekode Jetty resulting in Ext.P2 F.I. statement by the said Pandalam Prasad to the Kodungallur Police and the police registering Ext.P3 F.I.R. as Crime No. 297 of 2006 for offences punishable under Sections 341, 323 and 325 read with Sec. 34 I.P.C. against deceased Aneesh , P.W.2 & P.W.4. In this context, an observation by P.W.25 the Investigating Officer in Ext.P7 inquest report to the effect that deceased Aneesh was of Crl. Appeal No. 362 of 2007 -:27:- such bad antecedents that he was despised by both his own family members as well as the local people, deserves special mention. P.W.5 (Subrahmonian) is the father of the deceased. P.W.1 (Shijil) is another son of P.W.5. P.W.6 (Sugathan) is the father of P.W.4 (Suman @ Sumesh) and P.W.2 (Subhish @ Subin) both of whom aare the friends of P.W.1 and the deceased. The deceased, P.Ws 1,2 & 4 were anticipating a counter attack from the people of Pandalam Prasad . The occurrence in this case took place at about 12.30 midnight on 19-6-2006.
ANALYSIS OF THE MAIN EVIDENCE
16. P.W.1 (Shijil) is the elder brother of deceased Aneesh. The relevant portion of his testimony is as follows:-
On 19-6-2006 at about 5.30 - 6 .p.m. P.W.1 and others including P.W. 7 (Lonjan @ Praveen) consumed liquor from underneath a coconut tree near the place of occurrence. At that time P.W. 2 cautioned Aneesh and Others to be careful as there could be a retaliation to the earlier incident in which Pandalam Prasad was assaulted at Azheekode. P.W.1 instructed them not to go to their houses but to remain there . At about 8 p.m. P.Ws 1, 4 & 7 left the place . P.W.1 went to the house of Majeed Crl. Appeal No. 362 of 2007 -:28:- situated about 1 = kms. away from the place of occurrence and slept there. At about 6 .15 a.m. on 20-6-2006 , he got a call from P.W.4 to his mobile phone asking him to reach the place of occurrence immediately. P.W.1 along with P.W.3 (Ganapathi) then reached the place of occurrence at about 6.25 p.m. in an autorickshaw. There he found his brother Aneesh lying dead and P.W.2 lying wounded . P.Ws 1, 3 & 4 then took P.W.2 in the autorickshaw to Al-Iqbal Hospital, Chenthrappinni. While travelling in the autorickshaw he asked P.W.2 as to what happened and P.W.2 narrated to him the occurrence. They reached the hospital at 6.45 a.m. and P.W.2 was admitted there. P.W.1 then proceeded to Mathilakam Police Station and gave Ext.P1 F.I. statement at 8.15 a.m. on 20-6-2006 to the Sub Inspector. P.W.1 proved MO2 series of chappals of the deceased and MO3 series of chappals of P.W.2 and MO4 liquor bottle, MO5 series of water bottles, MO6 glass, MO7 mobile phone of the deceased and MO8 shirt of the deceased and MO9 dhoti of the deceased.
17. P.W.2 (Subeesh) is the person who, besides Aneesh the deceased , was the target of attack by the assailants in the night of 19-06-2006. The main part of his testimony is as follows:-
Crl. Appeal No. 362 of 2007 -:29:-
On 19-6-2006 his brother Sumesh (P.W.4) had an exchange of words with Pandalam Prasad and the same culminated in an altercation and a quarrel between Pandalam Prasad and deceased Aneesh. Thereafter, P.W.s 3 and 4 and the deceased took their bath from the thodu near the place of occurrence. P.W.1 also joined them. Deceased Aneesh called P.W.7 (Lonjan) and P.W. 7 brought liquor and food and all of them had liquor and food. After that P.W.1 , P.W.4 and P.W.. 7 left the place . P.W.2 , P.W.3 and Aneesh were lying under a coconut tree . When it began to rain P.W.2 and P.W. 3 moved to the bathroom and Aneesh went to the fire-wood shed . When P.W.2 was fast asleep he woke up hearing a heavy noise and found three or four persons standing with torches near the firewood shed and A1 to A5 dragging Aneesh out of the shed . P.W.2 was also having MO21 torch with him. A1 struck Aneesh with MO10 sword on the head and Aneesh fell down . P.W.2 then went to the rescue of Aneesh imploring to the assailants not to harm Aneesh . Then A9, A10, A12 and A14 caught hold of P.W.2 and obstructed him. Then A1 , A3 A6 and A7 repeatedly struck Aneesh on the head, back and legs with MO10, MO11, MO12 and MO13 swords and A2, A4, A7 and A11 & A13 beat Aneesh on different parts of his body with MO15 , Crl. Appeal No. 362 of 2007 -:30:- MO14, MO16, MO18 and MO17 iron pipes respectively. Then A1 kicked P.W.2 on his stomach and P.W.2 fell down by the side of the bathroom. A1 then stuck P.W. 2 below his shoulder with MO10 sword held by him. A8 then took MO12 sword from the hands of A6 and A1, A3, A7 and A8 struck P.W.2 on both his legs with MO10, MO11, MO13 and MO12 swords respectively. At that time A6 was holding the legs of P.W.2 so as to enable A1, A3, A7 and A8 to cut P.W.2 . P.W.2 cried aloud for mercy. A1 then remarked that they really wanted to kill P.W.2 but for the time being his life was being spared. Thereafter the assailants made good their escape with the weapons. P.W.3 who was hiding somewhere escaped from there. At about 6 a.m. the next morning his brother P.W.4 came in an autorickshaw and P.Ws 1, 3 and 4 and Sony of the southern house took him in an autorickshaw to the hospital. On the way he told about the incident to P.Ws 1 and 4 . (Besides identifying the weapons wielded by each of the assailants P.W.2 identified MO23 as the torch held by A3 MO24 as the torch held by A5, MO25 as the raincoat worn by A1, MO43 as the T-shirt worn by A1beneath MO25 raincoat, MO26 dhoti worn by A1, MO 27 shirt worn by A2, MO28 lunki worn by A2, MO29 shirt worn by A3 , MO30 lungi worn by A3 , MO31 dhoti worn by A4, MO32 lungi worn by A12, MO33 shirt worn by A12, Crl. Appeal No. 362 of 2007 -:31:- MO34 Saffron dhoti worn by A7, MO35 shirt worn by A7, MO36 shirt worn by A10, MO37 dhoti worn by A10, MO38 dhoti worn by A9, MO39 shirt worn by A9, MO40 saffron dhoti worn by A6 , MO41 shirt worn by A6 and MO42 saffron dhoti worn by A5. He also mentioned the exact locations on the body of the deceased where each of the assailants had struck with weapons which were also identified by him).
18. P.W.3 Ganapathi who also claims to have seen the occurrence deposed inter alia as follows:-
All the accused are known to him from his childhood. Deceased Aneesh and P.W.2 are his friends and he had seen the incident in which they had sustained injuries. After consuming liquor and eating food from the vicinity of the place of occurrence at about 8 .30 or 9 p.m. on 19-6-2006, P.Ws 1, 4 and 7 had gone away from there and himself, P.W.2 and Aneesh remained there. He spread his lungi and lay there. When it started raining, P.Ws 2 and 3 got into the bathroom and Aneesh moved to the firewood shed. After some time he heard the loud cry of Aneesh and also heard utterances like "kill, finish"( , ). P.W.3 then came out of the bathroom and he saw accused Nos. 1, 3, 6 and 7 striking Aneesh with swords in the torchlight of P.W.2. Crl. Appeal No. 362 of 2007 -:32:-
When P.W.2 went to the rescue of Aneesh imploring to the accused not to harm him, A9, 10,12, and 14 obstructed P.W. 2. At that juncture, P.W.3 moved away and hid himself behind a coconut tree and he saw the rest of the occurrence from there. He saw A1, A4, A5, A11 and A13 beating Aneesh with an iron pipe. The incident was seen by him in the light emanating from the torches as well as in the moon light. A1 stabbed deceased Aneesh twice on his stomach with the sword. A1 then set up on P.W.2 and kicked him on the stomach. When P.W.2 fell down A1 dealt two blows on the hand of P.W.2 with the sword. At that time, A8 took the sword from A6 and while A6 held the legs of P.W.2, A1, 3, 7 and 8 repeatedly struck P.W.2 with the swords. A1, 3 and A5 were also holding lighted torches. The accused moved away for a while and after some time A3 stabbed Aneesh with a sword and they dragged Aneesh to the room. Frightened by the above ghastly sight, P.W.3 went to the house where P.W.1 was sleeping. In the morning at 6 a.m. he came to the place of occurrence in an autorickshaw in the company of P.Ws 1 and 4 then took P.W.1 to Al Iqbal Hospital, Chenthrapini in an autorickshaw. (This witness also identified all the accused persons as well as the weapons wielded by them and also the dress worn by some of the accused).
Crl. Appeal No. 362 of 2007 -:33:-
19. The version of P.Ws 5 and 6 that some of the accused persons came to their houses in search of Aneesh, P.W.2 etc. is nothing but a figment of fertile imagination introduced with the sinister object of making it appear that the very same persons subsequently transformed into the assailants of Aneesh and P.W.2.
20. As noted earlier, the occurrence took place at 12.30 midnight in around the detached bathroom and firewood shed of an uninhabited house which had no electric connection. The only source of light available there, according to the witnesses, was the four torches allegedly wielded by 4 among the assailants and one torch held by P.W.2. Even assuming that the accused persons are belonging to the same locality and not strangers to the witnesses, the meticulous manner in which P.W.2 has identified them and attributed specific overt acts to each of the accused persons and has identified the weapons wielded by each of them and the dress worn by each of them as also the photographic precision with which the parts of the body where each blow was struck, has been given, appears to be highly artificial. Even in broad daylight if one of the 14 assailants was wearing a raincoat it is unlikely that the victim will take special notice of the T-shirt which such Crl. Appeal No. 362 of 2007 -:34:- assailant was wearing underneath the rain coat, not to speak of the dress worn by each and every assailant. If we go by the testimony of P.W.2, A7 attacked not only with MO 13 sword but also with MO16 iron pipe. The testimony of P.W. 19 , the doctor who treated P.W.2 would go to show that having regard to the injuries sustained by P.W.2 he would have been in such a state of shock that whatever he says cannot be taken in its face value. It is such a person who had suffered extensive injuries and who was in a shock, who has given a graphic account of the occurrence identifying each and every accused persons and the weapons wielded by them. It is pertinent to note that even in column 6 of Ext.P7 inquest report, the Investigating Officer who had inspected the place of occurrence has stated that even during day time when he held the inquest, the room was a congested room having no sufficient light. It is from such a room that the 14 assailants are alleged to have dragged the deceased out so as to provide ample opportunity for P.W.2 to see the whole occurrence in torch light. It must be borne in mind that the flashing of torch light will be towards the target of attack and it is not known as to how when the light is so converged on the victim the witnesses could see the face of assailants so as to identify each and every one of them. It is particularly so in the case of P.W.2 who was in a high degree of Crl. Appeal No. 362 of 2007 -:35:- shock. It is pertinent to remember that P.W.4 was the first person who saw P.W.2 lying wounded. At that time, according to P.W.4 there was only a feeble groan emanating from P.W.2 which confirms the medical opinion that he would have been under a shock. It is such a person who is alleged to have narrated the occurrence to P.W.1 and P.W.4 from the autorickshaw on the way to Al Iqbal Hospital. It is such a person who has given such a vivid description of the occurrence from the witness-box with meticulous details regarding the identity of the assailants as well as their weapons and the dress worn by each of the assailants and the location of the body where the blows were struck. P.Ws 1 and 4 are the persons to whom P.W.2 had allegedly narrated the occurrence from the autorickshaw. But they had different versions regarding the occurrence, particularly the number of assailants. The statement of P.W.4 to the doctor (PW.19) was that 15 persons assaulted the deceased and P.W.2. But what P.W.1 (whose source of information also was P.W.2) told the police (PW24) was that the assailants were only 8 (A1 to A7 and A14). As for MO21 torch allegedly held by P.W.2 also , it is pertinent to note that it was not recovered from the place of occurrence but from Al Iqbal Hospital where P.W.2 was admitted and treated. P.W.4 would have it that he found the torch on the veranda of the Crl. Appeal No. 362 of 2007 -:36:- place of occurrence. The place of occurrence has no such veranda. There is no case for the prosecution that MO 21 torch was taken by the police from the place of occurrence . In fact MO21 torch was introduced through a leading question put to P.W.4.
21. The testimony of P.W.2 clearly shows that he is a highly interested, inimical, partisan and tutored witness who has been made to speak about such meticulous details in a parrot-like manner. We are reminded of the following observation of the Apex Court in Sevi and another v. State of Tamil Nadu - 1981 Crl.L.J. 736 :
"Another feature of the case which makes us doubt the credibility of the witnesses is the photographic and some what dramatic account which they gave of the incident with minute details of the attack on each of the victims. According to the account of the witnesses it was as if each of the victims of the attack came upon the stage one after the other to be attacked by different accused in succession, each victim and his assailant being followed by the next victim and the next assailant. Surely the account of the witnesses is too dramatic and sounds obviously invented to allow each witness to give evidence of the entire attack. But the witnesses themselves admit in cross-examination Crl. Appeal No. 362 of 2007 -:37:- that they were all attacked simultaneously. If so, it was impossible for each of them to have noticed the attack on everyone else".
Again in State of Punjab v. Mohri Ram and Others - 1994 Supp (1) Supreme Court Cases 632 - the Apex Court observed as follows:-
"5. According to the prosecution, it was a dark night. P.W.4 was on the terrace and the so-called lantern was hanging on a peg fixed in the wall. The occurrence is said to have taken place in the courtyard and admittedly it was at some distance from the lantern and the place where P.W.4 and his wife were sleeping. In such a situation, it becomes highly doubtful how P.W.4, assuming he has seen the appellants there, could describe the details so minutely in the F.I.R. as are given in the medical evidence and the injuries found on the deceased persons. We have carefully gone through the F>I.R. which runs into a number of pages. In what P.W.4 has given the details of the dispute and the names of the accused in the first page. Then in rest of the three pages, the witness has described the occurrence in such great details which creates suspicion. He describes part played by each of the accused as though they attacked one after the other. What is more important is that he also described each blow given by each of the accused on each part of the body and how they happened to inflict these injuries on each of the three deceased. We find it highly unsafe to accept the version of this Crl. Appeal No. 362 of 2007 -:38:- witness when he says that in the light shed by the lantern he could notice all these details. It is rather surprising that he has also mentioned the blows dealt on the hands of the deceased, on the lower limbs of the deceased and other parts of the deceased total numbering to 18-20 blows. First of all the presence of the lantern itself is a doubtful factor. Even assuming there was a lantern, it is highly unbelievable that the witness could have given so many details of the occurrence. This report in our opinion appears to have been brought into existence with the help of a person well-versed in these matters after noting the injuries on the deceased person and that such a version is doubtful in the initial stages. When the interested witness falls in line verbatim and repeats the same in a parrot-lime manner, naturally that creates some amount of suspicion about is veracity".
P.W.2 clearly fits in the description of the witnesses considered by the Apex Court in the above verdicts.
22. The position of P.W.3 (Ganapathy) is also not better. He is a person who claims to have seen the entire incident and shifted to a place behind a coconut tree. He is a bosom friend of the deceased as well as P.W.2. After allegedly witnessing the gruesome attack on the deceased and P.W.2, he wants the court to believe that he simply walked away and slept with P.W.1 who was sleeping in the house of one Majeed 1 k.m. away from the Crl. Appeal No. 362 of 2007 -:39:- place of occurrence. In Ext.P1 F.I. statement given by P.W.1, there is not even a whisper about the presence of P.W.3 except saying that P.W.2 told him that P.W.3 had fled from the scene at some point of time. Contrary to P.W.3, P.W.1 has no case that P.W.3 slept with him in the night of 19-6-2006. Apart from not giving any succor to the deceased P.W.3 did not even call for help from either the neighbours or from the police. He did not even inform P.W.1. Instead, the next day morning he accompanied P.W. 1 to Chenthrappinni Junction evidently for going for work as if nothing had happened and it was only when P.W.1 got a call from P.W.4 directing him to go to the place of occurrence that P.W.3 meekly accompanied P.W.1 . At that time also he did not utter a word to P.W.1 about the occurrence which he had witnessed in the previous night. In Sonia Bahera v. State of Orissa - (1983) 2 SCC 327 the Apex Court has observed as follows:-
"The evidence of the so-called eye-witnesses P.W.1 and P.W.2 is discrepant as pointed out by the Sessions Judge. Their conduct in not telling anybody about the incident on the date of the incident also makes their evidence not worthy of acceptance".
Crl. Appeal No. 362 of 2007 -:40:-
In Surjit Sing and Another v. State of Punjab - 1993 Crl.L.J. 3901 the Apex Court observed as follows:-
"The conduct of the witness is highly unnatural. When he has seen one of the appellants inflicting injuries one would expect him to raise an alarm or at least inform the kith and kin of the deceased so that they can go for the rescue of the victim. which he did not do".
The conduct of P.W.3 was exactly the same as was considered by the Apex Court in the above decision. In Peddireddy Subbareddy and Others v. State of Andhra Pradesh - AIR 1991 SC 1356 the Apex Court observed as follows:-
"We have gone through the testimony of P.W.1 carefully. As we have pointed out earlier that P.W.1 is none other than the son-in-law of the deceased. After witnessing the occurrence he did not go to the village and inform any one of the villagers, but on the other hand, he went to his village which is said to be at the distance of four furlongs. He states that he informed only his mother-in-law (P.W.3). P.W.1 came with the present version only on the next morning. The conduct of P.W.1 in not reporting to any of the villagers about the occurrence throws a considerable doubt on the Crl. Appeal No. 362 of 2007 -:41:- veracity of his evidence which is incredible".
Again in State of Rajasthan v. Bhanwar Sing - (2004) 13 SCC 147 the Apex Court observed as follows:-
It is quite unnatural that P.Ws 3,4 and 8 remained silent after witnessing the assaults. They have not given any explanation as to what they did after witnessing the assault on the deceased".
23. Hence, it would be unsafe to rely on the testimony of P.Ws 2 and 3 whose evidence appears to be artificial and unreaalistic.
24. The deceased had 34 injuries and P.W. 2 had eight injuries. The weapons used are 4 swords and 5 iron pipes . In none of the four swords sent for chemical examination, human blood was detected. If the deceased and P.W.2 were assaulted with weapons of such kind and in a dastardly manner as the prosecution would have it , then certainly the dress worn by the assailants must have contained human blood. But, for reasons best known to the prosecution, except MO25 rain coat no single Crl. Appeal No. 362 of 2007 -:42:- dress was sent to the Chemical Examiner. On MO25 rain coat also no human blood was detected. In State of M.P. v. Kaiparam -
(2003) 12 Supreme Court Cases 675 the Apex Court observed as follows:-
"9. Ass noticed above, the prosecution has also relied on certain recoveries made at the instance of A-1. Firstly, it is stated that the bloodstained clothes worn by the accused at the time of arrest were seized by the police. In regard to the place from where these were seized, there is contradiction as to whether it was taken off from the person of A-1 or was taken from a place where the clothes were kept in his house. Be that it may, the prosecution case is that these clothes were bloodstained though washed, still the stains were visible hence were sent to chemical examination which has established the stains were of blood. Therefore, the same was sent to serologist who opined that he could not give an opinion as to the origin of the blood meaning thereby that the bloodstain that was noticed by him on the clothes cannot be said to be that of human origin. In such situation, this circumstance of recovery of bloodstained clothes will be of no assistance to the prosecution.
10. Similar is the case in regard to recovery of an axe. In regard to this, witnesses for the recovery say, they found a small stain of blood on it. The serologist in regard to this blood also states that it is not possible to find out the origin of the Crl. Appeal No. 362 of 2007 -:43:- same. Therefore, even this recovery would not in any manner help the prosecution in this case. Even otherwise, if the prosecution case in regard to P.Ws 1 & 3 is not acceptable then these recoveries by themselves would not take the prosecution case any further".
25. Now coming to to the recovery of the weapons and the dress at the instance of some of the accused persons also, it is worthwhile to note that in none of the confessional statements recorded by P.W.25 is there the authorship of concealment so as to induce this Court to accept the recovery as one falling under Sec. 27 of the Evidence Act and thereby connect the respective accused persons with the crime. No doubt, as held by a Full Bench of this Court in Ajayan v. State of Kerala - 2011 (1) KLT 8 (FB) authorship of concealment is not a sine qua non for the admissibility of the statement under Sec. 27 of the Evidence Act. But while evaluating the probative value of the recovery , the said fact certainly looms large and in the absence of any statement by the respective accused that it was they themselves who concealed the weapons or the dress, as the case may be the element of criminality tending to connect the accused with the crime cannot be readily inferred. It only shows that the accused knew that the dress were concealed at the places Crl. Appeal No. 362 of 2007 -:44:- disclosed. (Vide para 16 of Mahabir Biswas and Another v. State of West Bengal - (1995) 2 SCC 25 (3 Judges) Para 15 of Pohalya Motya Valvi v. State of Maharashtra - (1980) 1 SCC 530; Para 15 of Dudh Nath Pandey v. State of U.P. - AIR 1981 SC 911 and para 6 of State of Uttar Pradesh v. Jageshwar and Others - - 1983 (2) SCC 305).
26. We need not labour on the charge under Sec. 27 of the Arms Act since the court below has not dealt with the same notwithstanding the Court charge in that behalf. Therefore, it is to be presumed that the appellants were acquitted of the said charge.
27. After giving our anxious consideration to the entire facts and circumstances of the case and after a careful re-appraisal of the oral and documentary evidence, we are not satisfied that the prosecution has succeeded in establishing that all or any of the appellants had any role in inflicting the injuries on the deceased and P.W.2. The appellants are, therefore, certainly entitled to the benefit arising out of the aforementioned imperfections in the prosecution evidence. They are accordingly found not guilty of the offences punishable under Sections 147, 148, 448, 326, 307 Crl. Appeal No. 362 of 2007 -:45:- and 302 read with Sec. 149 I.P.C. and are acquitted thereunder.
In the result, this appeal is allowed and the appellants are found not guilty of the offences punishable under Sections 147, 148, 448, 326, 307 and 302 read with Sec. 149 I.P.C. and are acquitted thereunder. The conviction entered and the sentence passed against them for the aforementioned offences are set aside. They shall be released from from custody forthwith unless the continued detention of all or any of them is found necessary in connection with any other case against them.
Dated this the 4th day of August, 2011.
V. RAMKUMAR, JUDGE.
P.Q. BARKATH ALI, JUDGE ani/ Crl. Appeal No. 362 of 2007 -:46:- V. RAMKUMAR, & P.Q. BARKATH ALI, JJ.
........................................................ Crl.Appeal No. 362 of 2007 .........................................................
Dated: 04-08-2011 ORDER Crl. Appeal No. 362 of 2007 -:47:- Crl.A. 362 of 2007