Sujeesh vs The State Of Kerala on 25 October, 2024

[Cites 18, Cited by 0]

Kerala High Court

Sujeesh vs The State Of Kerala on 25 October, 2024

All these appeals are filed against the judgment dated 13.7.2020 in Sessions Case No.775/2016 on the file of the I Additional Sessions Judge, Thrissur. Crl.Appeal No.665/2020 was filed by the 2 nd accused, Crl.Appeal No.606/2020 was filed by the 3rd accused, Crl.Appeal No.727/2020 was filed by the 8th accused, while Crl.Appeal No.880/2020 was filed by the State.

2. Altogether, there are eight accused persons in the above case. The trial court found the accused persons 1 to 3 guilty under Section 302 of IPC. The 4th accused was found guilty under Sections 202 and 212 of IPC, while the 8th accused was found guilty under Section 212 of IPC. The accused persons 1 to 3 were sentenced to imprisonment for life and fine, while A4 and 8 were awarded various terms of imprisonment. The trial court found the accused persons 5, 6 and 7 not guilty and they were acquitted.

3. As per the prosecution case, PW6-Subinlal, a friend of deceased Crl.App.606, 665, 727 & 880 of 2020 7 2024:KER:79677 Satheesan has a resort at Kodaikanal. On 27.2.2016 Subinlal along with deceased Satheesan, visited flat No.102 in Pinnacle Residency, wherein the 2nd accused Rasheed was residing on rent. On the same day, accused persons 2 and 3 along with Satheesan went to Kodaikanal in Ertiga car No.KL64A 2929 and attended a dance program there. Thereafter, in the early morning on 28.2.2016, they returned to flat No.102 in Pinnacle Residency. While they were returning from Kodaikanal, the 2nd accused offered the job of driver to Satheesan. In return, Satheesan borrowed a sum of Rs.5000/- from his father to entertain accused persons 1, 2, 3 and 7. During the conversation in the party, deceased Satheesan received several informations about the secret deals of accused persons 2 and 3. When the deceased talked to PW5, his lover, he had divulged the above facts to her. When the 2 nd accused happened to attend the telephonic call of PW5, he had suspicion in that respect. At the instance of of the 7th accused, accused persons 1 to 3 interrogated the deceased to disclose about the facts he had divulged to PW5. Since interrogation was not fruitful, the 2nd accused inspected the belongings of the deceased and took out his mobile phone, from which he found the telephone number of PW5 and also the details of the messages sent by him to her. Thereafter, the 1 st accused using a granite pestle and accused persons 2 and 3 using baseball bats, brutally assaulted the deceased to get the details he had divulged to PW5. As a result Crl.App.606, 665, 727 & 880 of 2020 8 2024:KER:79677 of the injuries sustained by Satheesan, he died during the night on 2.3.2016. In the early morning on 3.3.2016, accused persons 2, 3 and 4 went to the 7th accused and informed him about the death of Satheesan. As per the advice given by the 7th accused, 1st accused had taken responsibility for the death and further, as per his advice accused persons 2 and 3 left the place.

4. The evidence in the case consists of the oral testimonies of Pws 1 to 72 and Exts.P1 to P186 on the side of the prosecution. On the side of the accused persons, DWs1 and 2 were examined and Exts.D1 to D10 marked. MOs 1 to 117 were identified. After appreciating the evidence, the trial court found the accused persons 1 to 3 guilty under Section 302 IPC, accused No.4 under Sections 202 and 212 IPC and accused No.8 under Section 212 IPC.

5. Aggrieved by the above judgment of conviction and sentence, accused persons 2, 3 and 8 filed Crl.appeal Nos.665/2020 and 606/2020 and 727/2020 respectively, while against the acquittal of accused persons 5, 6 and 7, the State preferred Crl. Appeal 880/2020. Now the points that arise for consideration are the following :-

(i) Whether the prosecution has succeeded in proving that the accused persons 2 and 3 along with the 1st accused, committed murder of Satheesan as alleged ?

Crl.App.606, 665, 727 & 880 of 2020 9 2024:KER:79677

(ii) Whether the prosecution has succeeded in proving that the accused 5 to 8 intentionally omitted to give information about the commission of the offences and harboured the offenders, as alleged ?

(iii) Whether the impugned judgment of conviction and sentence passed against the accused persons 2, 3 and 8 calls for any interference ?

(iv) Whether the judgment acquitting accused persons 5, 6 and 7 is liable to be interfered with, in the light of the grounds raised in the appeal ?

6. Heard both sides.

7. Points (i) to (iv) - The learned Senior counsel Sri.Raman Pillai who appeared for the 2nd accused and the learned Senior counsel Sri.Vijayabhanu who appeared for the 3rd accused would argue that in this case, the prosecution has miserably failed in proving the charge against the 2 nd and 3rd accused beyond reasonable doubt. Therefore, they prayed for allowing Crl.Appeal Nos.665/2020 and 606/2020 and also prayed for acquitting accused Nos.2 and 3. On the other hand, Sri.E.C.Bineesh, the learned Public Crl.App.606, 665, 727 & 880 of 2020 10 2024:KER:79677 Prosecutor, would argue that in the light of the evidence of PWs7, 8, 51 and 69, the prosecution has succeeded in proving the charge against the accused persons 2 and 3 beyond reasonable doubt. Therefore, he prayed for dismissing the appeals filed by accused persons 2 and 3.

8. The only occurrence witness examined by the prosecution to prove the charge against the accused is PW51 who was aged only 5 years, at the time of the incident. At the time of the examination she was 8 years old. She is the daughter of the 3rd accused as well as PW13. As per the prosecution case, at the time of the incident, the accused 1 to 3 along with PW51, the minor child, was there in flat No.102. Before recording the evidence of PW51, the learned Sessions Judge conducted voir dire and found that the child is capable of understanding things and to give evidence (However, while recording the finding by the Sessions Judge, a mistake crept in, by stating that "witness is found to be prompted capable of understanding things"). The above statement can only be a mistake, for more than one reason. Firstly, if it was found that the witness was not competent to give evidence, the Sessions Judge would not have recorded her evidence. Secondly, on a perusal of the evidence given by PW51 itself it can be seen that she understood the questions put to her, very well and gave rational answers to them. Crl.App.606, 665, 727 & 880 of 2020 11 2024:KER:79677

9. According to PW51, at the time of examination, she was residing at Ammadam. According to her, earlier she was residing at Pinnacle flat. At that time, she along with her mother, as well as the accused persons 1 and 2 were residing in a flat. When she was asked as to what happened in the flat, she in clear terms deposed that the accused persons 1 and 2 along with her mother beat Mani Chettan (Satheesan). According to her, the door of the room in which she was sitting was little opened and it appears that she saw the incident through that slit. According to her, they beat Mani on his hands, legs and on the back of his body. When she was asked, using which things he was beat, she replied that he was beat using bat and a granite pestle ("അമമകകകഴ"). According to her, because of the assault, Mani Chettan cried aloud. She also identified the weapons used by accused 1 to 3 as MOs.15, 16 and 17. According to her, MO15 granite pestle was in the possession of the 1 st accused, MO16 baseball bat was with her mother and MO17 baseball bat was with the 2nd accused. She also deposed that when Mani requested for water, her mother denied the same and told him to take his own urine. She also deposed that thereafter accused persons 1 and 2 along with her mother took Mani to the toilet. According to her, at the time of the incident, Mani was wearing a saffron dhothi. She further deposed that with regard to the incident, she had given statement before the Magistrate (statement under Section 164 Crl.App.606, 665, 727 & 880 of 2020 12 2024:KER:79677 Cr.P.C.), which was marked as Ext.P52. She also identified the accused 1 to 3 before the Court.

10. During the cross-examination, main attempt of the learned counsel for the accused was to show that PW51 was residing with PW13, her father who was in loggerheads with the 3 rd accused and hence, in order to wreck vengeance, she was tutored to give evidence against the 3 rd accused. At the time of evidence, it is revealed that there was matrimonial discord between the 3rd accused and PW13 and ultimately their marriage got dissolved. It is also revealed that at the time of the incident, they were residing separately and there was a case before the Family Court with regard to the custody of PW51. Ultimately, custody of PW51 was given to the 3rd accused for five days in a week and custody for remaining two days was given to PW13. It is also revealed that few days after the incident, the custody of the child was given to PW13 and thereafter, she was residing along with her father. During the cross-examination, PW51 admitted that she loves her father as well as her paternal grandmother and that she does not like to go with her mother. It was also argued by the learned counsel for the accused persons that though at the time of evidence PW51 claimed that the 1 st accused beat on the head of the deceased using granite pestle, no such statement was given by her when her Crl.App.606, 665, 727 & 880 of 2020 13 2024:KER:79677 statement was recorded by the investigating Officer. During the cross- examination of PW72, the Investigating Officer, it is revealed that it is an omission. However, with regard to the remaining evidence of PW51, there is no material omission or contradiction.

11. In support of his argument that the evidence of PW1 requires corroboration, the learned Senior counsel relied upon the decision of the Apex Court in Bhagwan Singh and Ors. v. State of M.P., AIR 2003 SC 1088. In the above decision relying on an earlier decision, in Panchhi and Ors. v. State of U.P. 1998 Cri.LJ 4044, the Apex Court reiterated in paragraph 20 that :

"The law recognises the child as a competent witness but a child particularly at such a tender age of six years, who is unable to form a proper opinion about the nature of the incident because of immaturity of understanding, is not considered by the court to be a witness whose sole testimony can be relied without other corroborative evidence. The evidence of child is required to be evaluated carefully because he is an easy prey to tutoring. Therefore, always the court looks for adequate corroboration from other evidence to his testimony. [See Panchhi & Ors vs. State of U.P : (1998) 7 SCC 177]

12. Therefore, the law is well settled that corroboration of the Crl.App.606, 665, 727 & 880 of 2020 14 2024:KER:79677 testimony of a child witness is not a rule, but a measure of prudence and caution. In the instant case, the prosecution has relied upon the evidence of Pws 7, 8 and 69 in support of the evidence of PW51. Though Pws 7, 8 and 69 have not seen the actual incident, through those witnesses, the prosecution has brought out several circumstances, which according to the learned Public Prosecutor, are sufficient to corroborate the evidence of PW51. Now let us discuss those circumstances one after another.

13. DEAD BODY OF SATHEESAN WAS FOUND IN FLAT No.102 IN PINNACLE RESIDENCY, IN THE MORNING ON 3.3.2016 :

The name of the deceased is Satheesan @ Mani. He was also called by PW5 as Ponnu. PW1 was the security of Pinnacle Residency. He was on duty from 9.00 a.m onwards on 3.3.2016. He would swear that at about 9.00 a.m on 3.3.2016 while he was changing dress at the cabin, an ambulance came into Pinnacle Residency. In addition to the driver, there was another person in the ambulance. They asked about the flat of Rasheed, the 2 nd accused. Since he was changing his dress, he sent electrician Sudhakaran along with the ambulance driver, to show the flat of Rasheed. After changing the dress, he also went to flat No.102 and saw the driver of the ambulance, his helper as well as the 1st accused taking out the body of a person from the toilet of the Crl.App.606, 665, 727 & 880 of 2020 15 2024:KER:79677 above flat, in a stretcher and he was moved from there to the ambulance.

14. PW2, the driver of the ambulance also deposed that on 3.3.2016, as instructed by one Shanto namely PW3, he came to Pinnacle flat belonging to Rasheed and had taken a person from there to West Fort High Tech hospital. When he reached the hospital, the nurse came inside the ambulance, examined the patient and said that the person was dead. Thereafter, the deceased was taken to the hospital in the stretcher of the hospital. PW3 is Shanto referred to by PW2. He deposed that in the morning on 3.3.2016, the 2nd accused Rasheed called him to take his ambulance to Pinnacle flat, in order to remove a person, who was lying there drunk, to the hospital. As he was the ambulance driver at Paliakkara Toll plaza, and he could not go beyond the area allotted to him, he entrusted PW2 to go to Pinnacle flat to take the patient to the hospital. He also deposed that thereafter PW2 called him and informed that he had taken the patient to hospital and that the patient died.

15. Though with regard to the remaining evidence given by PWs1 to 3, there are some omissions, with regard to the evidence that the body of Satheesan was taken from flat No.102 of Pinnacle Residency at about 9.00 a.m on 3.3.2016 to West Fort High Tech hospital, there is no such discrepancy. Their evidence to that effect was also not disputed at the time of arguments. Crl.App.606, 665, 727 & 880 of 2020 16 2024:KER:79677 Therefore, from the evidence of PWs1 to 3, it can be seen that at about 9.00 a.m on 3.3.2016, the body of Satheesan was taken from flat No.102 in Pinnacle Residency to the hospital and when he was brought to the hospital, the hospital authorities found that he was brought dead.

16. FLAT No.102 IN PINNACLE RESIDENCY WAS IN THE POSSESSION OF THE 2ND ACCUSED RASHEED :- The fact that the 2 nd accused Rasheed was the tenant in flat No.102 in Pinnacle Residency was not seriously challenged at the time of evidence. PW1, the security of Pinnacle Residency deposed that the 2nd accused was occupying flat No.102. It is revealed that the owner of flat No.102 is one Suma Sujith. It is also revealed that Suma Sujith and her husband are now abroad. PW60, the father-in-law of Suma Sujith deposed that the above flat was rented out to the 2 nd accused. Ext.P75 is the rent deed executed in that respect. It is true that the period of rent provided in Ext.P75 expired. However, the fact that the 2 nd accused is holding over the said premises as a tenant is not in dispute.

17. PW32, a friend of the husband of Suma Sujith, would also swear that on 3.3.2016, Sujith contacted him from abroad that some untoward incident occurred in building No. 102 of Pinnacle Residency and instructed him to visit the flat and to report about the incident. On 3.3.2016, he could not Crl.App.606, 665, 727 & 880 of 2020 17 2024:KER:79677 visit the flat, but on the next day he went there and came to know about the incident. Therefore, from the evidence of PWs1, 32, 60 and from Ext.P75 it can be safely concluded that at the time of the incident the 2 nd accused was the tenant in possession of flat No.102.

18. 3RD ACCUSED SASWATHY WAS THE TENANT OF FLAT No.G3 IN PINNACLE RESIDENCY:- As per the prosecution case, in the Pinnacle Residency, the 3rd accused Saswathy was occupying another flat having No.G3. The fact that the 3 rd accused was occupying flat No.G3 also was not seriously disputed by her at the time of evidence. Even then in order to prove the same, the prosecution examined the landlord of the 3 rd accused as PW26 and marked Ext.P21 rent deed. PW1, the security of Pinnacle Residency also deposed that building No.G3 belongs to PW26 and also that the 3rd accused was the tenant in the said apartment. Therefore, from the evidence of PWs1 and 26 and from Ext.P21 it can be concluded that the 3 rd accused was the tenant of G3 flat.

19. ACCUSED PERSONS 2 and 3 AND SATHEESAN WERE PRESENT IN FLAT NO.102 DURING THE NIGHT ON 2.3.2016 :- PW6 was the neighbour of deceased Satheesan at Shornur. According to him, he was running a Resort at Kodaikanal along with one Stephen and one Saheer Crl.App.606, 665, 727 & 880 of 2020 18 2024:KER:79677 (PW20). He would swear that the father of Satheeshan requested him to arrange a job to Satheesan. According to him, he along with Satheesan went to Kodaikanal in the Scorpio car belonging to Satheesan. Since he had to return to Kannur, he along with Satheesan, Stephan and Saheer went to Kannur on 26.2.2016. Thereafter as requested by the 2nd accused, they went to flat No.102 in Pinnacle Residency and reached there at 8 a.m. on 27.2.2016 along with Satheesan and Saheer. From there, Satheesan along with Stephen went to Kodaikanal in his Scorpio car, while accused persons 1 to 3 accompanied them to Kodaikanal in the Ertiga car belonging to second accused. At Kodaikanal, they attended a musical fest in Club India and from there they reached the resort of PW6 at 8 a.m. Since the 2 nd accused wanted to urgently go to Thrissur, he sent Satheesan as the driver of the 2 nd accused to drive the Ertiga car belonging to the 2nd accused. According to PW6, thereafter the 2 nd accused has not sent back Satheesan saying that Satheesan had created some problem there.

20. PW6 further claimed that on 3.3.2016, the 2nd accused telephoned him and told that Satheesan had gone. Thereafter the 2 nd accused explained that Satheesan died in a clash with the 1 st accused. However, it can be seen that the evidence of PW6 to the effect the 2 nd accused refused to send back Crl.App.606, 665, 727 & 880 of 2020 19 2024:KER:79677 Satheesan and also that thereafter he informed that Satheesan died in a clash with the 1st accused are not there in the 161 Cr.P.C. statement given to the investigating Officer. Since the above omission is a material one, the evidence of PW6 to that extend could not be relied upon.

21. PW7 would swear that he is running a cement shop. He was also engaged in arranging hypothecation of loans and also in obtaining Pancard, filing IT return etc. According to him, the 2nd accused booked an Eco-Sport car in the Ford Company at Ayyanthol. In order to ascertain whether the papers in that respect were cleared, he went to the Ford's office at Ayyanthol on 2.3.2016 and found that the identity proof of one of the sureties is yet to be given. Therefore, he went to flat No.102 to see the 2 nd accused and the 2nd accused entrusted him Rs.10,000/- and the ID proof. After going to some other places, they returned to the flat in the evening on 2.3.2016. When they reached the flat, the 8th accused Ramdas, Prajanandan (PW8) and one Manoj (PW69) were present there. They went inside the flat and at that time, he saw the 1st accused Krishnaprasad and 3rd accused Saswathy, a child as well as Satheesan in the said flat.

22. According to PW8, in the business conducted by PW9 Jobin and PW69 Manoj, there arose some dispute between them and PW69 owed some amounts to PW9. In the above dispute, the 2nd accused intervened on behalf Crl.App.606, 665, 727 & 880 of 2020 20 2024:KER:79677 of PW9 and on behalf of PW69, PW8 contacted the 2 nd accused. As directed by the 2nd accused, he along with PW69 reached the flat of 2 nd accused between 7 and 8 p.m. on 2.3.2016. When they reached the flat, the 2 nd accused was not there and he was on his way to the flat. As directed by the 2 nd accused, he along with PW69 waited there. When 2 nd accused came along with driver and another person, he accompanied the 2 nd accused to the flat. According to him, he along with Manoj and Biju (PW7) sat on a sofa in the hall and at that time he saw a person sitting on the floor of the house. According to him, the person, who was seen by him sitting on the floor looks like the person present in Exhibit P3, namely Satheesan. However, during the cross examination, PW8 clarified that he is not sure that the person, who was sitting on the floor was deceased Satheesan.

23. PW9 also deposed that in the business with PW69, there was some dispute and that PW69 owed about Rs.20,00,000/- to him. Since the amount was not repaid to him, he approached the 2nd accused for his intervention for realising the above amount from PW69.

24. PW69 would swear that PW9 and his friend invested about Rs.21,00,000/- in his business. In the settlement talks with the police, he had repaid Rs.1,00,000/- and there was a balance amount of Rs.20,00,000/-. On one day, the 2nd accused telephoned him and directed him to repay an amount Crl.App.606, 665, 727 & 880 of 2020 21 2024:KER:79677 due to PW9 and warned him of serious consequences in case of default. Accordingly, he had contacted PW8, as both PW8 and 2 nd accused belong to Congress Party. PW8 told him that he will contact Ramdas, the 8 th accused and thereafter he will revert back to him. After contacting Ramdas, PW8 asked him to go and meet the 2 nd accused in his flat. Accordingly, he along with PW8 went to the flat of 2 nd accused and reached there at about 7 p.m. on 2.3.2016. At about 7.30 p.m., the 2nd accused came with two other persons. Thereafter they went along with the 2 nd accused to his flat and discussed the dealings with PW9. According to PW69, at that time, he saw the 3rd accused near the dining table of that house. Further, he had seen a man sitting on the floor leaning on the wall with his head downwards. Further, according to him, on the next day at about 8.30 a.m., PW8 informed him over telephone that 7 th accused Ramdas told him that the man who was sitting on the floor on the previous day, died.

25. It was argued by the learned counsel that the evidence of PW9 and PW8 are contradictory to each other and as such their evidence is not reliable. According to the learned counsel, while according to PW8, PW7 also sat on the sofa along with PW8, according to PW7, he went to the flat, had water from there and returned from the flat. It is true that when the statement of PW8 was taken, he has not stated to the effect that PW7 also sat Crl.App.606, 665, 727 & 880 of 2020 22 2024:KER:79677 along with him in the sofa. When PW69 was examined, he clarified that the two persons who accompanied the 2nd accused in the car, returned from the flat within two minutes.

26. Similarly, during cross examination of PW8, a contradiction was marked as Exhibit D2, which is to the effect that he did not know the 2 nd accused before 2.3.2016, but only heard about him, till then. However, at the time of evidence, he claimed that he knew the 2 nd accused. In the light of the above omission and contradiction, it was argued that the evidence of PW8 cannot be relied upon. Similarly during the cross examination of PW69, an attempt was made to show that he also has not seen Satheesan in building No.102 during the night on 2.3.2016. At the time of evidence, according to PW69, he saw a man sitting on the floor leaning on the wall with his head downwards. When the investigating officer was examined he clarified that the above evidence given by PW69 as such was not stated by him, but a different version to the effect that he saw a tired man sitting on the floor. Therefore, the version given by PW69 to the investigating officer and before the Court cannot be styled as contradictory to each other. While before the Court he stated that he saw a man sitting on the floor leaning on the wall with his head downward, to the investigating officer he stated that he saw a tired man sitting on the floor. Since the meaning of both those statements are more or less Crl.App.606, 665, 727 & 880 of 2020 23 2024:KER:79677 same, it cannot be stated that the evidence given by PW69 before the court is contradictory to his previous statement.

27. Similarly, the question whether PW8 sat on the sofa along with PW7 is not so crucial in the facts of this case. The question is whether they have gone to the flat of 2nd accused on 2.3.2016 and seen the deceased as well as the 2nd accused in the apartment during the night of 2.3.2016. In that respect, the evidence of PWs 7 and 8 are convincing and it is supported by the evidence of PW69 also. Though with regard to the other evidence given by PW6, 8 and 69, there are some omissions, with regard to the presence of accused No.2 and the deceased in the apartment of the 2 nd accused during the night on 2.3.2016, there is no material contradiction or omission in their evidence. Therefore, we do not find any grounds to disbelieve the evidence of PWs 7, 8 and 69 that during the night on 2.3.2016, the 2 nd accused as well as the deceased were present in building No.102.

28. PW4 is another Watchman of Pinnacle Residency. He would swear that on 2.3.2016 at 9 a.m., he joined for duty as a watchman and remained on duty until 9 a.m on 3.3.2016. According to him, at about 4.00 a.m. on 3.3.2016, the car of 2 nd accused came to the flat and after about 10 minutes it went out of the flat. About 15 minutes thereafter, the same car came to the flat and after another 10 minutes it went out. According to him, Crl.App.606, 665, 727 & 880 of 2020 24 2024:KER:79677 since at that time he was taking bath, there was nobody to open the gate. Therefore, the 2nd accused came out of the car and tried to open the gate and at that time he had seen the 2nd accused. However, during the cross examination, it is revealed that PW4 has not given any statement to the Investigating Officer to the effect that he was taking bath when the car of the 2 nd accused came to the gate and at that time he had seen the 2nd accused trying to open the gate. In the above circumstances, as argued by the learned counsel, the evidence of PW4 claiming that he had identified the 2nd accused in the car at about 4 a.m. on 3.3.2016 could not be believed. However, the evidence of PW4 that the car of the 2nd accused came to the flat at 4 a.m. and after 10 minutes it went out of the flat, again it came to the flat after 15 minutes and again after 10 minutes it went out of the flat could not be disbelieved, as PW4 has given the number of the above car of the 2nd accused as 2929 and the same was not denied by the 2nd accused.

29. PW5 is a nurse attached to Sevana Hospital Pattambi and a friend of Satheesan. She would swear that they are close to each other and that she regularly used to contact Satheesan over phone. According to her, Satheesan informed her about his trip to Kodaikanal and thereafter the visit to flat No.102 of 2nd accused. She would also swear that on 2.3.2016, Satheesan talked to her over phone through nose, from the bathroom of the flat and told Crl.App.606, 665, 727 & 880 of 2020 25 2024:KER:79677 her that his nasal bone and hip bones were broken. He also told her that his mobile phone ending with numbers 69 was with the 2 nd accused and requested her not to call him in that phone. He had also sent messages to her and requested her not to call him in mobile number ending with the numbers 69 and in case she calls him in that phone, they will beat him and even kill him.

30. During the cross-examination of PW5 an attempt was made to show that there are omissions in her testimony. According to PW5, the accused persons tortured Satheesan as he told her about the illegal activities of the 2nd accused in smuggling of black money, gold and business in drugs. However, no such statement is seen given by her to the investigating officer. The medical evidence in respect of the deceased also does not reveal any fracture to his nasal bone or hipbone. During the cross examination, the investigating officer deposed that PW5 had not given statement to the effect that accused persons abused her, intimidated her and also threatened to kill Satheesan. However, he clarified that she had given statement to the effect that the deceased told her that he was trapped by a secret gang and also that she heard the scream of Satheesan not to kill him.

31. The learned Public prosecutor has relied upon Ext. P89, the printout of messages sent by the deceased to PW5 on 2.3.2016. From the above printouts, it can be seen that Satheesan had informed PW5 that his Crl.App.606, 665, 727 & 880 of 2020 26 2024:KER:79677 mobile phone ending with the numbers 69 was kept by the 2 nd accused and also that he is under much tension and scared of assault by accused persons. In the above messages he apprehends that in case PW5 calls him in his mobile phone ending with numbers 69, his life will be in danger. In the above messages, he also complains that he sustained fracture of nasal bone and hipbone and also that he is sending those messages from the toilet of the above flat. It is true that as per the medical evidence, there is no such fracture on his nasal bone or hipbone. However, it is revealed that there are contusions almost all over his body.

32. The learned counsel for the accused persons contended that the contents of Ext. P89 was not put to the accused when they were examined under Section 313 Cr.P.C. It is true that the contents of the above messages were not put to the accused persons when they were examined under Section 313 Cr.P.C. Therefore, as argued by the learned counsel, the contents of Ext.P89 could not be used against the accused persons.

33. At the time of evidence, PW7 in clear terms deposed that he had seen accused persons 1 to 3 as well as Satheesan in flat No.102 during the night on 2.3.2016. He also claimed that he had seen a child also in the said house. During the cross examination of PW7, the presence of the child (PW51) alone was challenged. In other words the evidence of PW7 to the Crl.App.606, 665, 727 & 880 of 2020 27 2024:KER:79677 effect that he had seen accused persons 1 to 3 as well as deceased in the above flat during the night on 2.3.2016 was not challenged and the same remains unchallenged. During the examination of PW69, he claimed that he had seen accused Nos.1 to 3 as well as another person in the above flat. During the cross examination of 3rd accused, presence of 3rd accused in the flat was challenged. However, during the cross examination by the 2 nd accused, the claim of PW69 that he had seen the 2nd accused in the flat was not challenged. It is true that in the 161 Cr.P.C. statement, PW 69 has not claimed that he had seen the 3rd accused in the said flat. Therefore, though the evidence of PW69 to the effect that he had seen the 3 rd accused in the said flat could not be believed, his evidence to the effect that he had seen the 2 nd accused there, can be believed. From the evidence of PW69 as well as PW7, it can be concluded that the prosecution has succeeded in proving the presence of accused persons 1 to 3 as well as deceased in flat No.102 during the night on 2.3.2016.

34. PW51 WAS ALSO PRESENT IN FLAT No.102 DURING THE NIGHT ON 2.3.2016 :- As noted above, the evidence of PW7 that he had seen the child (PW51) in the flat of 2 nd accused during the night on 2.3.2016, was challenged during cross examination. However, PW13, the husband of 3 rd accused and father of PW51 would swear that there was a petition before the Family Court regarding custody of the child and as per the order of the Crl.App.606, 665, 727 & 880 of 2020 28 2024:KER:79677 Family Court, five days' custody of PW51 was given to the 3 rd accused and during the weekends, two days custody was given to him. Accordingly, he was entitled to get custody of the child on 4.3.2016. Though he reached flat No.G3 belonging to 3rd accused on 4.3.2016, the flat remained locked and 3 rd accused was absent. On the next day on 5.3.2016 also he came there and the flat remained locked. Therefore, he had informed the matter to the police. On 7.3.2016, the 3rd accused contacted him over phone and informed that she will bring the child near the tennis court at Puzhakkal. After informing the matter to the Circle Inspector, West Police Station, he waited near the tennis court and at that time the 3rd accused came with the child in an autorickshaw. He received the custody of the child from the 3rd accused, and the 3rd accused was arrested by the police. Further, according to him, prior to the same, the custody of the child was obtained from the 3 rd accused on 26th February and he was supposed to return the child to the 3 rd accused on 28th. However, at the instance of the 3rd accused, the child was returned only on 29 th February, as the 3rd accused was suffering from fever. Thereafter, he got the child only on 7.3.2016, because, in the meantime she was not in station.

35. PW12, the mother of PW13 would also swear in tune with the evidence of PW13. According to her also, the custody of the child was obtained on 26th February 2016 and the child was returned to the 3 rd accused Crl.App.606, 665, 727 & 880 of 2020 29 2024:KER:79677 in the morning on 29th February. Thereafter on 4.3.2016 the child was not returned as the 3rd accused was absent in her flat. Thereafter, according to her also, only on 7.3.2016 the child was handed over to PW13.

36. PW31 is the Receptionist of Hotel EMS Mayoora at Mettupalayam. She would swear that on 3.3.2016 at 3.45 p.m., the accused persons 3 and 4 along with a child came to the hotel and stayed there and they have checked out only at 9 p.m. on 4.3.2016. Exhibit P24 is the Register containing the details of the inmates in the said hotel. Exhibit P24(a) is the relevant page containing the entry regarding the residence of the accused persons in that Hotel. Therefore, from the evidence of PW31 and from Exhibit P24 also, it can be seen that on 3.3.2016 in the evening PW51 was there along with the accused 2,3 and 4 at Mettupalayam in the state of Tamil Nadu. In other words, when the 3rd accused left Thrissur to Tamil Nadu, she had taken along with her the child (PW51) also. The above circumstance corroborates the evidence of PW51 that when accused 1 to 3 attacked Satheesan, she was also present in the Pinnacle flat. Since the body of Satheesan was found in the morning on 3.3.2016 in the bathroom of flat No 102 in Pinnacle Residency, it can be further concluded that during the night on 2.3.2016, PW51 was also present in that flat. In short, during the night on 2.3.2016, in flat No.102, the accused persons 1 to 3, deceased Satheesan as well as PW51 were present. Crl.App.606, 665, 727 & 880 of 2020 30 2024:KER:79677

37. THE ACCUSED PERSONS 2 AND 3 ABSCONDED FROM THE FLAT ON 3.3.2016:- From the evidence on record, it can be seen that in the morning on 3.3.2016, accused persons 2 and 3 absconded from pinnacle flat, went to Tamil Nadu and thereafter to Banglore. PW31, the Receptionist of Hotel EMS Mayoora, Mattupalayam deposed that on 3.3.2016 at 3.45 p.m., accused persons 3 and 4 and a child came to that hotel and stayed in room No.102 and checked out at 9.00 p.m. on 4.3.2016. PW19 would swear that as informed by the 8th accused, he had picked up the 3 rd accused and the child during the night on 4.3.2016 at Banglore in his car and dropped them in a hotel. At the time of evidence, PW51 also deposed that she accompanied accused persons 2 and 3 to Ooty, after the alleged incident. PW72, the investigating Officer also deposed that the 2nd accused absconded on 3.3.2016 till he finally surrendered before the Fast Track Court, Palakkad in Crime No.687/2008. From the evidence of PWs 12 and 13, it is revealed that the 3 rd accused returned from Banglore only on 7.3.2016. Accused persons 2 and 3 have not offered any explanation for absconding from the native place at Thrissur to Tamil Nadu and Karnataka on 3.3.2016, immediately after the death of Satheesan.

38. SECOND ACCUSED - MORE THAN A POLITICIAN:- At the time of evidence, it is revealed that the 2 nd accused is not only a politician, but Crl.App.606, 665, 727 & 880 of 2020 31 2024:KER:79677 he also used to interfere in financial disputes between persons and tries to resolve such disputes out of court, by using/misusing his political image. It appears that people used to approach him for settlement of their disputes and even for arranging jobs. According to PW3, on an earlier occasion, he approached the 2nd accused for getting the amount due under a chitty from another person. The above claim of PW3 was not challenged in cross examination. According to PW7, at the instance of the 2 nd accused, he accompanied him to Aluva and on the way picked one Krishnankutty and went to Thirukochi Co-operative Society to arrange a job to Krishnankutty. From the evidence of PW8, 9 and 69, it is revealed that in order to realise the amount due to PW9 from PW69 in connection with the business carried on by them on partnership basis also the 2nd accused interfered and directed PW69 to pay the amount to PW9.

39. From the evidence of PW72, the investigating officer, it is also revealed that during the interrogation of 2nd accused, on the basis of the information furnished by him, a loaded gun was recovered from another flat in Pinnacle Tower and in that respect, crime No.836/2016 under the Arms Act was also registered. PW10, the father of the deceased, PW11 the wife of the deceased also deposed that the 2nd accused offered to provide a job to Satheesan and it was on the basis of the above job offer, he borrowed a sum of Crl.App.606, 665, 727 & 880 of 2020 32 2024:KER:79677 Rs.5,000/- from PW10 to give a treat to the 2 nd accused in return for the job. Therefore, from the above discussions, it can be seen that 2 nd accused is not just a politician, but a person who used to take the law into his own hands. He also used to interfere in private dispute between others and employs his own method to settle them.

40. EXTENSIVE INJURIES ON THE BODY OF SATHEESAN:-

PW53 was the Assistant Professor Forensic Medicine, Government Medical College, Thrissur, who had conducted the post-mortem examination on the body of the deceased Satheesan on 4.3.2016 at 9.30 a.m and issued Ext.P60 post-mortem certificate. As deposed by PW53, the following antemortem injuries were noticed on the body of the deceased:

1. Contusion of scalp 4x cm, involving its full thickness over the left side of occipital region. Contusion of scalp, 3x 3 cm, involving its full thickness over the right temporial region with contusion of underlying right temporalis muscle. Skull and duramater intact. Thin subarachnoid bleeding over both temporal regions.

2. Multiple small abrasions of sixe ranging from 0.2 x 0.2 cm to 0.5 x 0.5 cm over both cheeks and over the outer aspect of upper eyelid of left eye.

3. Multiple abroaded contusions of sixe ranging 1x1 cm to Crl.App.606, 665, 727 & 880 of 2020 33 2024:KER:79677 2.5 x 2.5 cm, all muscles deep over an area 15 x 15 cm over the top aspect of the left shoulder and adjoining outer aspect of left arm.

"4. Contusion 28x16 cm, muscle deep, vertical, all around the left arm (left axilla being spared)

5. Contusion 18x5 to 7 cm, muscle deep, vertical over the back aspect of left forearm and hand-15 cm below elbow.

6. Contusion 13x8 cm, muscle deep, vertical, over the outer aspect of right arm 9 cm above elbow.

7. Contusion 7x7 cm, muscle deep, over the inner aspect of upper part of right forearm-upper end at the elbow.

8. Contusion 16x6 to 7 cm, muscle deep, vertical, over the back right forearm and hand 16 cm below elbow.

9. Contusion 34x30 cm, muscle deep, vertical, over the back and outer aspect of left buttock and thigh-11 cm above knee. An abrasion 3x3 cm over the lower border of this injury.

10. Contusion 40x28cm, muscle deep, vertical, over the back and outer aspect of right buttock and thigh-10 cm above knee.

11. Intra dermal contusion 5x5 cm over the right side of front of chest-18 cm away from midline and 5 cm above rib margin.

12. Multiple tramline contusions (6 in number), each 1.5 cm broad (with pale area 0.5 cm broad within it) and of length ranging from 4 cm to 11 cm over the back of trunk and left shoulder blade."

41. The opinion as to the cause of death, according to PW53, is due Crl.App.606, 665, 727 & 880 of 2020 34 2024:KER:79677 to the blunt force injuries sustained to the head and limbs. After examining MOs15, 16 and 17, he deposed that all the antemortem injuries noted by him in Ext.P60 could be caused using MOs15, 16 and 17. According to PW53, the death of Satheesan could have occurred 18 hours before the body was refrigerated. According to him, the body was refrigerated at 4.45 p.m on 3.3.2016. Therefore, according to him, the death could have occurred after 10.45 p.m on 2.3.2016. From the evidence of PW53 it is also revealed that the stomach of the deceased contained 300 ml. of light brown watery fluid having smell of alcohol. It is clarified by him that the deceased was not under the influence of alcohol, at the time of death.

42. During the cross-examination of PW53, a question was asked whether injury No.1 could be caused by a fall in a hard blunt surface, to which he replied in the affirmative. He also deposed that injury No.1 can be caused when the head hits against a wall. However, it is to be noted that in Ext.P60 two injuries were included as injury No.1, which includes a contusion 4 x 4 cm over the left side of occipital region and another one is contusion 3 x 3 cm over the right side temporal region with contusion of underlying right temporal muscle. As a result of those contusions, thin subarachnoid bleeding was there over both temporal regions. Since both those injures were on two Crl.App.606, 665, 727 & 880 of 2020 35 2024:KER:79677 opposite sides, one on the left side of occipital region and another on the right temporal region, both those injuries are not possible in a single fall.

43. Injury Nos.3 to 12 are contusions muscle deep of varying size on different places of the body namely, on both cheek, left shoulder, left arm, left forearm and hand, right arm above elbow, inner aspect of upper part of right forearm, back of right forearm and hand, back and outer aspect of left buttock and thigh, back and outer aspect and right buttock and thigh, right side of front of chest, back of trunk and left shoulder blade. Therefore, it can be seen that the deceased sustained contusion in almost all parts of his body and the size of those contusions is very large. The total area of contusion on the body of the deceased comes to more than 3000 square centimeters (28x16 + 18x16 + 13x8 + 7x7 + 16x6 + 34x30 + 40x28 + 5x5 + 7.5 X1.5x6). All those contusions are muscle deep and it is also to be noted that the deceased is an youth having a weight of 85 kg. On a perusal of the above extensive contusions present all over the body and the large extent of body in which contusions were inflicted, it can be seen that those injuries are not at all possible, in a single fall or even in a number of falls. In other words, it can only be because of the use of blunt and hard force, repeatedly, using some rough and hard objects like MOs15,16 and 17.

Crl.App.606, 665, 727 & 880 of 2020 36 2024:KER:79677

44. RECOVERY OF WEAPONS:- MOs15, 16 and 17 are the weapons recovered in this case on the basis of the information furnished by the accused persons 1, 2 and 3 to PW72, the Investigating Officer. MO16 baseball stick was recovered as per Ext.P12 seizure mahazar, on the basis of the information furnished by the 3rd accused. According to PW72, as per the information furnished by the 3rd accused, she was taken to her G3 flat and from the cabin in the hall of that Apartment, she took out MO16 and handed over to him. Ext.P109 is the relevant portion of the information which lead to the recovery of MO16. Further, according to PW72, when the 1 st accused was questioned, he furnished information to the effect that the granite pestle was kept over the rack in building No.102. Accordingly, he was taken to the flat, from where he took out and handed over MO15, which was kept covered using two towels, along with grocery items. Those towels are MO 13 and 14. Ext.P11 is the mahazar prepared in that respect and Ext.P108 is the information furnished by the 1st accused in that respect.

45. Further, according to PW72, when the 2nd accused was questioned, he gave information to the effect that the baseball stick was kept below the floor mat in the dicky of the car bearing No.KL64-A-2929 which was parked at Cantonment RS parking area in Bangalore. The above baseball Crl.App.606, 665, 727 & 880 of 2020 37 2024:KER:79677 stick was seized as per Ext.P16 mahazar. It was argued by the learned counsel for the accused that the above car was already seized by the police as per Ext.P15, on the basis of the information furnished by the 8 th accused and as such, at the time of recovery of MO17, the car was in the possession of the police. It is true that at the time of recovery of MO17, the car was under the custody of the police. It is revealed that both Ext.P15 and 16 were prepared on the same day on 31.3.2016. Since the car bearing No.KL64-A-2929 and MO17 kept below the floor mat in the dicky of the said car which was parked at Cantonment RS parking area in Bangalore were recovered on the same day, one after the other, there was no scope for any manipulation and as such, the above recovery could not be disbelieved.

46. BLOOD ON MOs 15, 16 & 17:- From the evidence of PW66, Scientific Officer, Regional Forensic Science Laboratory, Thrissur and Ext.P81 certificate issued by him, it is revealed that Mos15, 16 and 17 contained blood, insufficient to detect its origin. Even though the origin of the blood could not be detected for want of sufficient quantity of blood in Mos15, 16 and 17, since those MOs were recovered on the basis of the information furnished by the accused persons 1 to 3, they have a duty to explain as to how those MOs contained blood. In this case they have not offered any explanation Crl.App.606, 665, 727 & 880 of 2020 38 2024:KER:79677 for the presence of blood in Mos15, 16 and 17 and as such it is liable to be taken as a circumstance against the accused persons 1 to 3.

47. ABSENCE OF EXPLANATION FROM THE ACCUSED:- As we have already noted above, from the evidence adduced by the prosecution it is revealed that during the night on 2.3.2016 in building No.102 in Pinnacle flat, the accused persons 1 to 3, PW51 and the deceased were present. It was at that time the deceased Satheesan sustained the injuries noted by PW53 in Ext.P60 postmortem certificate. It was on account of the above injuries Satheesan died. Since Satheesan sustained the above injuries while he was in building No.102 Pinnacle flat, occupied by accused persons 1, 2 and 3, they are bound to explain as to how Satheesan sustained those injuries. In this case the accused persons 1 to 3 have not offered any explanation with regard to the manner in which and the circumstances under which Satheesan sustained those injuries. In the absence of any such explanation from the side of accused persons 1 to 3, it is to be presumed in the light of Section 106 of the Evidence Act that the accused persons 1 to 3 are responsible for those injuries.

48. It was argued by the learned Senior counsel that though in this case the trial commenced in December 2017, the star witness namely PW51 was examined only on 9.5.2019. According to them, examination of PW51 Crl.App.606, 665, 727 & 880 of 2020 39 2024:KER:79677 was delayed deliberately so as to tutor her and to see that she became a matured witness. It was further argued that because of the above conduct of the prosecution, the accused were prejudiced. We do not find any merits in the above argument, because, from the records it can be seen that after the examination of PW1 the accused persons moved the High Court and even approached the Supreme Court. It was in the above context that the examination of the remaining witnesses were delayed.

49. It is true that, at the time of commission of the offence, PW51 was aged only 5 years and at the time of her examination she was aged 8. However, it is to be noted that her 164 statement was recorded as early as on 26.4.2016 which was marked as Ext.P52. Even in that statement, she categorically stated almost all details about the incident that occurred during the night on 2.3.2016. The only improvement which could be attributed in her evidence is that in her 164 statement there is no mention about the use of MO15 granite pestle by the 1st accused. Except the above discrepancy, there is no other material omission or contradiction in her statement. Since in Ext.P52 statement also PW51 has stated in detail about the overt acts of the accused 1 to 3, almost in tune with the evidence adduced before the court, there is no merits in the contention of the learned Senior counsel that the delay in her Crl.App.606, 665, 727 & 880 of 2020 40 2024:KER:79677 examination before the court has caused prejudice to the accused.

50. As argued by the learned Senior counsel, at the time of examination, PW51 was with her father and paternal grandmother and was not in good terms with her mother. It was argued that her evidence could not be believed as there was every chance for tutoring. We cannot accept the above argument also, especially in view of the fact that in her 164 Cr.P.C statement also she gave evidence almost in tune with her evidence.

51. It was contended that though the incident was on 2.3.2016, the 164 Cr.P.C statement of PW51 was recorded only on 26.4.2016, more than one and half months after the incident. Therefore it was argued that even the 164 statement was a tutored one. According to PWs12 and 13 since PW51 saw the murder of deceased Satheesan, the same has affected her mental condition and in order to get relief from the same, she was to be taken to various places including temples and also she was to be consulted with a doctor. It is quite natural that when a child of 5 year old witnesses a brutal murder in her presence, the same will definitely affect the mental condition of the child. In her 164 Cr.PC statement, while narrating the incident, she had given hints about the impact of the same on her body and mind. Considering the fact that she was only 5 years at the time of incident and the act of the Crl.App.606, 665, 727 & 880 of 2020 41 2024:KER:79677 accused beating Satheesan to death has affected her tender mind, the delay of about one and half months in recording her 164 Cr.P.C statement cannot be treated as a circumstance to disbelieve her testimony.

52. Though PW51 was cross-examined in detail, nothing material could be brought out to discredit her testimony, except that, in her previous statement there was no mention about the use of MO15 granite pestle by the 1st accused. As argued by the learned Public Prosecutor, it is not easy for a child of 5 years to correctly describe the name of a granite pestle. At the time when she was examined before the court, she described it as " അമമകകകഴ". By the time she was examined before the court, she became more matured and at that time she stated the name of the weapon used by the 1 st accused. In this context it is also to be noted that the 1 st accused has not challenged his conviction. Considering the age of PW51, some leverage is to be given while evaluating her evidence. When the evidence of PW51 is evaluated in the light of the above circumstances, we do not find any grounds to disbelieve her testimony.

53. As we have already noted above, during the night on 2.3.2016, when Satheesan was brutally attacked to death, the accused persons 1 to 3 alone were present in the flat, in addition to PW51. Even then, they have not Crl.App.606, 665, 727 & 880 of 2020 42 2024:KER:79677 offered any explanation for the above injuries sustained by Satheesan in their exclusive presence. In the above circumstances, we do not find any grounds to disbelieve the oral testimony of PW51 regarding the manner in which Satheesan sustained those injuries. The above evidence of PW51 is fully corroborated by the circumstances discussed above, in detail.

54. It was argued by the learned Senior counsel that during the cross- examination, PW51 admitted that she was sitting on the cot inside a bedroom in which there was no bathroom and therefore, there was no chance for her to witness the incident that allegedly occurred inside a bathroom. It is true that during the cross-examination, PW51 stated that she was sitting on a cot in the bedroom in which there was no bathroom. However it is to be noted that the incident occurred mainly in the hall of flat No.102 in Pinnacle Residency and even according to PW51, it was after the accused persons assaulted Satheesan using Mos15, 16 and 17 that he was taken to the bathroom. Moreover, PW51 specifically stated that the door of the room in which she was sitting was little opened, through which she could witness the incident. She also deposed that Satheesan cried when he was assaulted. In such circumstance no child will sit idle on the cot, without watching what is going on around her. Therefore, there is no merit in the contention that PW51 sitting inside the bedroom could Crl.App.606, 665, 727 & 880 of 2020 43 2024:KER:79677 not see the incident. During the cross examination of PW51, there was only a general suggestion that she has not seen the incident and she is stating falsehood at the instance of her father and grandmother.

55. The fact that MO3 mobile phone belonging to the deceased was recovered as per Ext.P19 mahazar from the residence of the 2 nd accused on the basis of the information furnished by the 2nd accused also substantiates the involvement of the 2nd accused in the commission of the above offence. Further, the sims in Mos3 and 19 were seen damaged as deposed by PW72. Those mobile phones belonging to the deceased were present in flat No.102, in which the accused persons 1 to 3 alone were present, in addition to the deceased and PW51. In the absence of any explanation from the side of the accused persons 1 to 3 in that respect, it is to be presumed that those SIMS were damaged by the accused persons.

56. Since blood stains were detected on MOs15, 16 and 17 and those weapons were recovered on the basis of the information furnished by accused persons 1 to 3 , the above circumstance also substantiates the evidence of PW51 that the accused persons used MOs15, 16 and 17 for assaulting the deceased. She also identified Mos15, 16 and 17 as the weapons used by the accused 1 to 3 to attack Satheesan. The above circumstances also compel us to Crl.App.606, 665, 727 & 880 of 2020 44 2024:KER:79677 believe the evidence of PW51 that the 1 st accused attacked the deceased using MO15 and accused persons 2 and 3 attacked the deceased using Mos17 and 16 respectively, which resulted in the brutal injuries noticed on the body of the deceased.

57. From the evidence of PW51 it is revealed that the 1st accused hit on the head of Satheesan using MO15 granite pestle. As deposed by PW53, the subarachnoid bleeding present on the head of the deceased resulted because of the impact of the contusion on that area. Since according to PW53, asphyxia can be caused by subarachnoid bleeding, there is every reason to believe that the death of Satheesan was due to the impact of the contusion on the left and right temporal regions and resultant subarachnoid bleeding as well as consequent asphyxia.

58. It is true that most of the injuries noticed on the body of the deceased are not on his vital parts. However, two injuries mentioned as injury No.1 are on his head. Out of the two injuries mentioned as injury No.1, one is on the left occipital region and the 2nd is on the right temporal region. From the evidence of PW53, it is further revealed that because of the impact of these two injuries suffered on the head, there was subarachnoid bleeding over the left and right temporal regions. During the cross-examination, he deposed Crl.App.606, 665, 727 & 880 of 2020 45 2024:KER:79677 that though there was no fracture in the skull, the injury has affected the brain. It appears that during the cross-examination of PW53, he has deposed that "Asphxia is a cause for subarachnoid bleeding". What was intended by the doctor can only be, "subarachnoid bleeding is a cause for asphyxia". During the further cross-examination he deposed that he do not know whether alcoholic intoxication can cause subarachnoid bleeding.

59. During the cross examination of PW53, a question was asked as to whether there was any internal bleeding to the deceased, to which he replied that there was extensive contusion and also that in every contusion there will be loss of blood. In this case, there is muscle damage also. He clarified that it may affect kidney in 2-3 days. According to PW53, all injuries noted on the body are fresh injuries. According to him, though the injuries individually will not cause death, they collectively would cause death.

60. According to PW53, chemical examination revealed that the blood of the deceased contained 383 milligram percentage of alcohol. Therefore, it was argued by the learned counsel for the accused that the influence of alcohol might have resulted in the death of the deceased. He has also relied upon the following passage from Modi's Medical Jurisprudence and Toxicology (24th Edn.Ch.9,P178) , in support of his argument:

Crl.App.606, 665, 727 & 880 of 2020 46 2024:KER:79677 "Chronic Poisoning:- Habitual drunkards claim that the alcohol as a means of escape from the stresses and strains of life. They have been taking alcohol in one form or another for a long and continuous period and suffer from many organic diseases.

Some develop dipsomania, an irresistible desire to take large amounts of alcohol until they become almost unconscious from its effect. As time passes by, the habit recurs at shorter and shorter intervals. Mostly, there is some psychological basis of some distressing event in the patient's past life that is responsible for this condition.

The patient develops loss of appetite, vomiting, nutritional deficiency and derangement of hepatic function. Alcoholic cirrhosis of the liver is a major problem. There may be cognitive defects, impaired mental functions and neurological damages. Polyneuritis, pellagra, Wernicke's encephalopathy, Korsakoff's psychosis are well-known sequelae. Besides, there may be cardiomyopathy and skeletal myopathy. Incidence of malignancy and infection become high."

61. During the cross-examination, PW53 deposed that in case of intoxication resulting in more than 400 mg alcohol in blood, coma stage is possible. He also deposed that if such a person continues in coma stage for several hours, death may or may not happen. He also deposed that excessive Crl.App.606, 665, 727 & 880 of 2020 47 2024:KER:79677 alcohol is poison. At the same time, he clarified that the patient was not under the influence of alcohol. In this case the percentage of alcohol present in the body was less than 400 mg. There is also no evidence to show that the patient was in coma stage, and even if he was, he remained in that state for several hours. Therefore, in this case, there is no merit in the argument that Satheesan died due to excessive drinking.

62. The learned Senior counsel would argue that there is delay on the part of the Investigating Officer in registering the crime. According to PW47, Casualty Medical Officer, West Fort High Tech hospital, Thrissur, the deceased was brought dead in the hospital at about 9.55 a.m on 3.3.2016. PW58, the additional Sub Inspector, Town West police station would swear that at about 10.05 am he got information from the Casualty Medical Officer, West Fort High Tech hospital that a person was brought dead in an ambulance and that one Krishnaprasad who brought the patient had not given the details of the death of the patient.

63. According to PW58, he immediately reached the hospital and had seen the dead body and found the injuries on the body. Thereafter, he took Krishnaprasad to the police station and then proceeded to Pinnacle flat. Then he inspected the said flat in the presence of PW1, the security and found a Crl.App.606, 665, 727 & 880 of 2020 48 2024:KER:79677 brown purse from the hall room. In the purse he found out the driving licence of Satheesan, a visiting card of the 2 nd accused, Kodaikkanal toll free pass and a vehicle entrance pass. Those articles were seized as per Ext.P2 mahazar. A mobile phone was also seen in the hall and on verification he found that several incoming calls from a number. When he called back in that number, the phone was attended by PW5 Ajitha and she told him that she knows Satheesan. Then he called the CI from that phone and passed the information he received, to him. Thereafter he kept the mobile phone at the same place, locked the flat and two police constables were deputed for surveillance. Then he returned to the police station with PW1, recorded his statement and registered the crime, initially under Section 174 Cr.P.C.

64. The FIR was seen registered at 1.10 p.m on 3.3.2016. However in Ext.P2 seizure mahazar prepared by him at 11.30 a.m, the crime number was entered. When PW58 was asked as to how the crime number of the FIR registered at 1.10 p.m finds a place in Ext.P2 seizure mahazar prepared at 11.30 a.m, he claimed that the next crime number will be ascertained from the police station, after contacting the person in charge of the GD and the number will be noted. However, during the cross-examination, he clarified that previously he had never done so and it was for the first time he had obtained Crl.App.606, 665, 727 & 880 of 2020 49 2024:KER:79677 the crime number in advance and mentioned the same in the seizure mahazar.

65. As argued by the learned Senior counsel, immediately on reaching the hospital and seeing the injuries on the body of the deceased and from the information given by the Casualty Medical Officer, PW48 could have reasonably come to a conclusion that it was a case of homicide. Therefore, immediately he could have registered the crime under Section 302 of IPC. In the above circumstance, the conduct of PW58 in immediately rushing to the Pinnacle flat without registering the crime and preparing Ext.P2 seizure mahazar and thereafter returning to the police station with the security (PW1) and registering the crime at 1.10 p.m. under Section 174 Cr.P.C cannot be justified.

66. It was argued by the learned Public Prosecutor that when PW58 reached the police station, there was nobody there, who witnessed the incident so as to give a reliable information about the commission of a cognizable offence and as such, failure to register the FIR at that time is not fatal to the prosecution case. It is true that when PW58 reached the hospital on getting information that the body of the deceased was brought to the hospital, PW58 had no idea about the accused who had committed the offence. It is also true that no occurrence witness was available at that time. Even then, since prima Crl.App.606, 665, 727 & 880 of 2020 50 2024:KER:79677 facie it is revealed that it was a homicide, he could have suo moto registered the crime, then and there.

67. In support of the argument that the delay in registering the FIR in this case is vital to the prosecution, the learned Senior counsel Sri.Raman Pillai relied upon the decision of the Hon'ble Supreme Court in Kailash Gour & Ors. v. State of Assam, AIR 2012 SC 786. In the above case, a mob comprising 35- 40 people had intruded into the homestead of Taheruddin and committed cold blooded murder of three innocent persons, two of whom were female children of tender age. The Investigating Officer had the opportunity of getting an eye witness and first hand account of the incident within minutes of the commission of the crime. In spite of that, the crime was not registered. Therefore, the court observed that:

"If the prosecution version were to be believed, the Investigating Officer had the opportunity of getting an eye witness and first hand account of the incident within minutes of the commission of the crime. In the ordinary course, the Investigating Officer would have immediately recorded the First Information Report based on the eye witness account of the occurrence given by Md. Hanif and started his investigation in the right earnest. That is not, however, what happened. No effort was made by the Investigating Officer nor is there any Crl.App.606, 665, 727 & 880 of 2020 51 2024:KER:79677 explanation for his failure to ascertain from the alleged eye witness the sequence of events and the names and particulars of those who were responsible for the same. Instead, without the registration of the First Information Report, the Investigating Officer completes the inquest, prepares a site plan and gets the post mortem of the dead conducted on 15th December, 1992, long before the First Information Report was registered at 11.00 p.m. late in the evening on that date."

68. In the above factual situation, in paragraph 27 the Apex Court held that :-

"There can be only two explanations for this kind of a situation. One could be, that the Investigating Officer was so stupid, ill- trained, ignorant of the law and procedure that he did not realize the importance of getting a crime registered in the police station concerned before undertaking any investigation including conduct of an inquest, post mortem etc. The other explanation could be that since neither the Investigating Officer had any clue as to who the perpetrators of the crime were nor did the witnesses now shown as witnesses of the occurrence had any idea, the investigations started without any First Information Report being recorded till late at night on 15th December, 1992. We are inclined to believe that the second explanation is more probable of the two."

69. In the instant case the facts are entirely different. The Crl.App.606, 665, 727 & 880 of 2020 52 2024:KER:79677 Investigating Officer had no first hand account of the incident and no eye witness was also available. On the other hand, there is some latches on the part of PW58 in proceeding to the flat and inspecting the same before registering the case. However, the question to be considered is whether the above irresponsible conduct of the Investigating Officer has caused any sort of prejudice to the accused. The law is well settled that unless and until any prejudice is proved to have been caused to the accused, he cannot take advantage of such defects in the investigation. In this case, the accused persons could not establish that because of the above fault on the part of the investigating agency, they have suffered any prejudice. Even if Ext.P2 mahazar prepared by PW58 and the articles seized as per the said mahazar are eschewed from evidence, the same will not in any way affect the prosecution case. In as much as no prejudice is proved to have been caused, due to the above reason, the accused persons are not entitled to get any benefit on that ground.

70. It is true that MO15 granite pestle was recovered on the basis of the confession given by the 1st accused while the key of the flat was in the custody of the police. Therefore, it was argued that the above recovery could not be used against the accused. It is true that immediately after getting Crl.App.606, 665, 727 & 880 of 2020 53 2024:KER:79677 information about the death of Satheesan, PW58 who reached the hospital, proceeded to the Pinnacle Residency, opened flat No.102, inspected the same, noticed a bag, prepared a mahazar for the contents of the bag, taken a mobile phone found there, dialed in the last incoming number and also in the number of the CI and then replaced the phone in the same place, locked the flat, deputed two police constables for surveillance duty and thereafter returned to the police station. Since then, the key of the flat was with the police.

71. PW72, the Investigating Officer has taken charge of the investigation only on 4.3.2016. Thereafter, he visited the flat on the same day and prepared Ext.P26 scene mahazar. He arrested the 1 st accused at 10 p.m. on 4.3.2016 and produced him before the Magistrate on 5.3.2016. He obtained police custody of the 1st accused on 10.3.2016 and it was thereafter he recovered MO15 on the basis of the information furnished by him. Therefore, technically it can be stated that at the time of recovery of MO15 granite pestle, the flat was in the custody of the police. However, it is to be noted that, though the key of the flat was in the custody of the police, it does not mean that the police was aware of the presence of MO15 inside the said flat. On the basis of Ext.P108 information furnished by the 1 st accused, he was taken to the flat No.102. From the top of the rack on the north-western wall, he took Crl.App.606, 665, 727 & 880 of 2020 54 2024:KER:79677 out MO15, which was kept along with grocery items, covered using two towels, and handed over to the Investigating Officer. Since MO15 was kept along with grocery items, covered using two towels, at the top of the rack on the north-western wall in the flat, for the mere reason that the key of the flat was with the police, the said recovery could not be doubted.

72. Relying upon a statement given by PW1 at the time of evidence, the learned Senior counsel attempted to show that at 9.00 a.m. when Satheesan was taken to the ambulance in a stretcher he was alive and that he died only after he was taken to the hospital. It is true that when PW1 was examined, he stated that one of the persons who came in the ambulance while removing Satheesan to ambulance in a stretcher told him that there was some pulse on his body. However, it was only a hearsay knowledge and nobody examined before the court stated that Satheesan was alive when he was removed from the flat. On the other hand, from the evidence of PW47 it is revealed that Satheesan was brought dead at the hospital at 9.55 a.m. on 3.3.2016. Further, he denied the suggestion that Satheesan was brought alive in the hospital. PW53, the doctor who conducted the post-mortem examination, also deposed that Satheesan died at about 10.45 p.m on 2.3.2016. In the light of the above expert evidence, there is no scope for Crl.App.606, 665, 727 & 880 of 2020 55 2024:KER:79677 believing the version given by PW1 on the basis of some hearsay information. Therefore, we find no merits in the argument that when the body of Satheesan was removed from the flat, he was alive.

73. The reason for beating Satheesan, according to PW51 is that he lied to her mother that he did not call his wife over phone. The above evidence of PW51 was not specifically challenged during the cross- examination. There was no previous enmity between Satheesan and accused 1 to 3. In spite of that, he was mercilessly beaten to death. Therefore, in order to beat Satheesan to such an extent, there will be much for accused 2 and 3 to hide from others. Though the prosecution case is that Satheesan divulged the secrets of accused 2 and 3 to his friend PW5 and he was tortured to find out it's veracity, considering the age of PW51, her above evidence proves the motive alleged against the accused.

74. It was argued by the learned Senior counsel Sri.Raman Pillai that the injuries noticed on the body of the deceased are insufficient in the ordinary course of nature to cause death and as such the finding of the trial court that the above act amounts to offence punishable under Section 302 of IPC is erroneous. In support of his argument that in the instant case the offence under Section 302 IPC is not made out, he has relied upon the decision of the Crl.App.606, 665, 727 & 880 of 2020 56 2024:KER:79677 Hon'ble Apex Court in State of Rajasthan v. Shera Ram @ Vishnu Dutta, 2012 (1) SCC 602. In that case, the respondent had hurled a stone which had caused a lacerated injury on the left side of the forehead of the deceased. On sustaining the injury, the deceased fell on the ground and subsequently collapsed. In the light of the evidence, the Court found that the prosecution failed to prove that the injury caused by the respondent to the deceased was sufficient in the ordinary course of nature to cause death. However, the Court made it clear that the question whether the particular injury was sufficient in the ordinary course of nature to cause death or not, is a question of fact which will have to be determined in the light of the facts, circumstances and evidence produced in a given case.

75. In the decision in Mulavani Kannan and Another v. State of Kerala, 2002 (10) SCC 172, relied upon by the learned Senior counsel, in connection with the particular rivalry, a group of persons armed with deadly weapons barged into the office of the society and attacked their opponents. Two persons died in the incident. After evaluating the medical evidence available, the Court observed in paragraph 8 as follows :

"Learned counsel then adopted an alternative contention that the offence should not have been escalated to S.302 IPC as for A2 Kannan and A5 Krishnan. He invited our attention to the Crl.App.606, 665, 727 & 880 of 2020 57 2024:KER:79677 injuries described in the post mortem certificates issued by the doctor who conducted the autopsy on the dead body of the deceased. We agree with the contention of the leaned counsel that none of the injuries can be terms as individually sufficient in the ordinary course of nature to cause death. The doctor concerned also did not say that any of those injuries would be of that type. But those woulds were likely to cause death as blood vessels on the legs were cut. We therefore agree with the learned counsel that the offence cannot be a first degree murder, but it can be altered to a second degree murder ie, S.304 Part I IPC."

76. Relying upon the decision of the Hon'ble Supreme Court in State of Andhra Pradesh v. Naragudem Papireddy and Others, 2004 (9) SCC 14, the learned Senior counsel Sri.P.Vijayabhanu would argue that if the accused persons had the intention to cause the death of the victim they would have used any sharp edged weapon and would have attacked on vital parts and in the absence of the same, the offence under Section 302 IPC is not attracted in this case. In the above case, the assailants have attacked the victim using lathis and injuries were inflicted only on limbs. In the above background, the Apex Court held that :-

"Keeping in mind the fact that these injuries had been caused by lathis and the assailants have not used any sharp- edged weapon nor have they attacked the victim on any vital Crl.App.606, 665, 727 & 880 of 2020 58 2024:KER:79677 part of the body like head or chest leading to injuries to the internal organs or to haemorrhage, merely from the injuries noted hereinabove, it is extremely difficult for us to accept the argument of the State that the High Court was not justified in coming to the conclusion that the injuries caused to the deceased would not be one attracting the provision of section 302 IPC."

77. In the light of the extensive contusion present on the body of the deceased, it is to be presumed that the accused persons beat on his body using MOs 15, 16 and 17, repeatedly. As we have already noted above, the accused 1 to 3 beat and hit on various parts of his body including his head and chest, using MOs 15, 16 and 17. Since they have attacked and inflicted so much contusions on the body of the deceased using MOs15, 16 and 17 which are, a granite pestle and, two baseball bats, it can be presumed from their conduct that though they had no intention to cause death of Satheesan or intention to cause such bodily injury, which is sufficient in the ordinary course of nature to cause death, they would at least have the knowledge that they are likely by such act to cause his death. In the above circumstances, the above conduct of the accused persons 1 to 3 amounts to culpable homicide as defined under Section 299 of the Indian Penal Code.

78. Since the accused persons attacked the deceased using MOs 15, Crl.App.606, 665, 727 & 880 of 2020 59 2024:KER:79677 16 and 17 in order to compel him to divulge the things which he had conveyed to PW5, it is to be held that accused persons have not committed those acts with the intention of causing such bodily injury, which is sufficient in the ordinary course of nature to cause death. Since most of the injuries were not on the vital parts of the body of the deceased, the acts of the accused persons cannot also be styled as, so imminently dangerous that it must in all probability cause death or such bodily injury as is likely to cause death. In the above circumstance, it is to be held that the act of the accused persons will not amount to murder as defined under Section 300 of IPC. On the other hand, it will only amount to culpable homicide not amounting to murder punishable under Section 304 of IPC. Since they have committed the aforesaid acts without the intention to cause death or cause such bodily injury as is likely to cause death, the provision applicable is, Part II of Section 304 IPC.

79. The punishment provided for culpable homicide coming under Part II of Section 304 IPC is imprisonment of either description for a term which may extend to ten years or with fine or with both. Considering the fact that the 2nd accused, after offering a job to the deceased, took him to his flat and thereafter with the help of accused persons 1 and 3 brutally attacked him to death, they do not deserve any leniency, in the matter of punishment. Therefore, we are of the considered view that for the offence under Section Crl.App.606, 665, 727 & 880 of 2020 60 2024:KER:79677 304 Part II of IPC, the accused persons 2 and 3 are liable to be sentenced to undergo rigorous imprisonment for a period of ten years, in addition to the fine imposed by the trial court.

80. In this case, accused No.8 was found guilty under Section 212 of IPC. In order to prove the offence under Section 212 of IPC, the prosecution has to prove that the accused harboured or concealed a person with the knowledge that he is an offender, with the intention of screening him from legal punishment. In this case, there is no reliable evidence against the 8 th accused to prove that he harboured the accused persons 2 and 3, knowing that they are offenders, with the intention of screening them from legal punishment. In the above circumstances, the conviction entered against the 8 th accused under Section 212 of IPC is liable to be set aside.

81. Crl. Appeal No.880 of 2020 was filed by the State against the acquittal of accused persons 5, 6 and 7. The charge against accused persons 5, 6 and 7 are under Section 202 and 212 of IPC. The allegation is that they have intentionally omitted to inform the commission of offence and also that they have harboured the accused persons 2 and 3. In this case, there is no reliable evidence to prove that accused 5,6 and 7 have intentionally omitted to inform the commission of offence and also that they have harboured the accused 2 and 3 knowing that they are offenders, with the intention of Crl.App.606, 665, 727 & 880 of 2020 61 2024:KER:79677 screening them from legal punishment. The evidence of PW33, the General Manager, Oushadhi that the 7th accused attended the interview held on 1.3.2016, 2.3.2016 and 3.3.2016 from 10 a.m. to 5 p.m. and that he left the office on 1.3.2016 and 2.3.2016 only by 8 p.m. remains unchallenged. In the above circumstance, the trial court was justified in acquitting accused persons 5, 6 and 7. We do not find any irregularity or illegality in the order of acquittal passed by the trial court as against accused persons 5, 6 and 7 and as such Crl. Appeal No.880 of 2020 filed by the State challenging their acquittal is liable to be dismissed. Points answered accordingly.

82. In the result, Criminal Appeal No.665 of 2020 is allowed in part as follows:

Conviction and sentence passed against the 2 nd accused under Section 302 of IPC is set aside. The conviction under Section 302 IPC is modified and altered to Section 304 Part II of IPC. He is sentenced to undergo rigorous imprisonment for a period of ten years under Section 304 Part II of IPC.

Sentence of fine and default sentence are sustained.

83. In the result, Crl. A. No.606 of 2020 is allowed in part as follows:

Conviction and sentence passed against the 3 rd accused under Section 302 of IPC is set aside. The conviction under Section 302 IPC is modified and altered to Section 304 Part II of IPC. She is sentenced to undergo rigorous Crl.App.606, 665, 727 & 880 of 2020 62 2024:KER:79677 imprisonment for a period of ten years under Section 304 Part II of IPC.

Sentence of fine and default sentence are sustained.

84. In the result, Criminal Appeal No.727 of 2020 filed by the 8 th accused is allowed. The conviction and sentence passed against 8 th accused is set aside. 8th accused is set at liberty canceling his bail bond.

85. In the result, Criminal Appeal 880 of 2020 is dismissed, confirming the order of acquittal passed against the accused persons 5, 6 and

7. Sd/-

P.B. Suresh Kumar, Judge Sd/-

C. Pratheep Kumar, Judge Mrcs/sou/15.10.

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