Kerala High Court
Nanu vs State Of Kerala To Be Rep. By on 29 August, 2011
Author: V.Ramkumar
Bench: V.Ramkumar, P.Q.Barkath Ali
IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL.A.No. 861 of 2007()
1. NANU, S/O KANNAN, AGED 47, CHATHOTH
... Petitioner
2. SASI, S/O ONAKKAN, AGED 28 YEARS,
3. BALAN, S/O KANNAN, AGED 43,
4. SURENDRAN, S/O KANARAN, AGED 28 ,
Vs
1. STATE OF KERALA TO BE REP. BY
... Respondent
2. CIRCLE INSPECTOR OF POLICE,
For Petitioner :SRI.K.S.MADHUSOODANAN
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice V.RAMKUMAR
The Hon'ble MR. Justice P.Q.BARKATH ALI
Dated :29/08/2011
O R D E R
V. RAMKUMAR & P.Q.Barkath Ali, JJ.
.........................................................
Crl.Appeal No.861 of 2007 ........................................................... Dated this the 29th day of August, 2011 Judgment V.Ramkumar,J.
In this appeal filed under Sec.374(2) Cr.P.C. the appellants, who were accused Nos.1 to 3 and 5 in S.C.No.193/2004 on the file of the II Additional Sessions Court, Kozhikode, challenge the conviction entered and the sentence passed against them by that Court for offences punishable under Sections 143,427,449,435 and 302 read with 149 IPC. A1 to A3 were convicted under Section 147 IPC. A5 was additionally found guilty under Sections 148 IPC as well.
PROSECUTION CASE
2. The case of the prosecution can be summarised as follows:
On 14.01.2001 at about 12.30 noon at Chekkyad Amsom and Thanekottor desom in the vicinity of house No.1/360A of Chekkiyad Panchayath where 64 year old Thaiyullathil Moidu Haji was residing along with his family, about 100 workers belonging to the communist Crl.Appeal No.861 of 2007 -2- party (Marxist) including the 12 accused persons under the leadership of A1 (Chathothu Nanu) formed themselves into an unlawful assembly armed with deadly weapons like billhook, sticks, granite stones etc. and out of the political enmity towards the said Moidu Haji and in furtherance of their common object the aforesaid persons pelted stones at the house of Moidu Haji. Thereafter they cut open the front door of the said house. After gaining entry into the house the assailants set fire to the cot, mattresses etc. in the bed room, motor cycle kept in the work area, canopy of the cow dung pit situated to the north-
eastern part of the said house. They also intentionally and knowingly caused the death of Moidu Haji by cutting on his neck and other parts of the body. The accused have thereby committed offences punishable under Sections 145, 147, 148, 427, 449, 435 and 302 read with 149 IPC.
THE TRIAL
3. Out of the 12 accused persons, the case against A4 was split up, since he was absconding. A7 could not be apprehended, at all and therefore the case against him was not committed to the Sessions court. So the persons who actually faced the trial were A1 to A3, A5, A6 and A8 to A12, totaling to ten. On the aforesaid ten persons pleading not guilty to the charge framed Crl.Appeal No.861 of 2007 -3- against them by the court below for the aforementioned offences, the prosecution was permitted to adduce evidence in support of its case. The prosecution altogether examined 21 witnesses as P.W.s 1 to 21 and got marked 27 documents as Exts.P1 to P27 and 17 material objects as MOs.1 to 17.
4. After the close of the prosecution evidence, the accused were questioned under Sec. 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. They stated before the trial court that all of them are innocent and were falsely implicated due to political enmity.
5. Since this was not a case of no evidence for the prosecution, the learned Sessions Judge did not record an order of acquittal under Section 232 Cr.P.C. The accused were, therefore, called upon to enter on their defence and to adduce any evidence which they might have in support thereof. Besides getting marked the case diary contradictions of PWs.11,18 and 21 as Exts.D2 to D4, the accused got marked marked Ext.D1 statement of A5 before the J.F.C.M, Payyoli and Exts. D5 and Crl.Appeal No.861 of 2007 -4- D15 certified copies of the charge sheets in which PW11 was an accused.
6. The Sessions Judge, after trial, as per judgment dated 28.03.2007 found A1 to A3 and A5 guilty of the offences punishable under Sections 143,427,449,435 and 302 read with 149 IPC, A1 to A3 under Section 147 IPC and A5 under Section 148 IPC. Accused Nos.6 and 8 to 12 were found not guilty of any of the offences and were set at liberty. It is the said judgment which is assailed in this appeal by A1,A3 and A5.
THIS APPEAL
7. We heard Advocate Sri.C.K.Sreedharan, the learned counsel appearing for A5, Advocate Sri.K.S.Madhusoodanan, the learned counsel appearing for A1 to A3 and Advocate Sri. C.S.Hrithwik, the learned Public Prosecutor, who defended the State.
8. The only point, which arises for consideration in this Appeal is as to whether the conviction entered and the sentence passed against the appellant are sustainable or not. Crl.Appeal No.861 of 2007 -5- The Point:-
9. WITNESSES FOR THE PROSECUTION A) PW1(Amina) is the wife of the deceased. She was examined on 2.2.2007 i.e. after nearly six years of the occurrence. She was the resident of the house of the deceased at Thanekottur. She has six sons and a daughter. Four of her sons after marriage were residing with the deceased. Her daughter Ayisha was residing in her matrimonial home at Parad. She is one of the eye witnesses to the occurrence.
B) PW2(Ayisha) who is the daughter of the deceased and PW1 is yet another occurrence witness who was residing in the house from two days prior to the occurrence after she had visited her ancestral home. C) PW3 (Dr.Premraj) who was the Assistant Surgeon of Taluk Head Quarters Hospital, Vadakara proved Ext.P1 Intimation to the Vadakara Police Station. He deposed that the deceased was brought dead by the Police who told him that he died in the riots at Thanekottur. He shifted the dead body to the mortuary. D) PW4 (V.G.Kunhan) was the Sub Inspector of Police, Vadakara Police Station. He deposed that on 14.1.2001 at 2.05 pm, the duty Medical Officer of Government Hospital(PW3) called him over the phone and told him that the dead body of a person in the riot of Thanakottur was kept in the mortuary. PW4 would state that he despatched a police constable to the hospital and get Ext.P1 intimation on the basis of which he registered Ext.P2 FIR in Crime Crl.Appeal No.861 of 2007 -6- No.27 of 2001 under Section 302 IPC. Since the place of occurrence was within the local limits of Nadapuram Police Station. He informed the Nadapuram Police by phone. According to him as authorized by Dy.S.P he started the investigation by proceeding to the Taluk Head Quarters Hospital, Vadakara and holding inquest over the dead body of Moidu Haji from 3.45 pm to 6.30 pm on 14.01.2001. Ext.P3 is the inquest report prepared by him. He seized MOs.1 to 3 garments of the deceased and MO4 cloth pieces found near the dead body On getting information regarding the identity of the deceased he submitted Ext.P4 report showing the name and address of the deceased. He also filed Ext.P5 report to add Sections 143,147,148,449 and 149 IPC. He then transfered the files to the Nadapuram Police Station, since the place of occurrence was within the limits of that police station. Ext.P6 is the property list dated 18.1.2001 sent by PW4 while forwarding MOs.1 to 4 to J.F.C.M, Nadapuram.
E) PW5 (B.Moosa) is the 1st attester to Ext.P3 Inquest report prepared by PW4.
F) PW6 (Ramesan) is an attester to Ext.P7 seizure mahazar pertaining to the seizure of Ext.P11 series of photographs and P12 series of negatives on 15.1.2001.
G) PW7(Ammed) is an attester to Ext.P8 scene mahazar prepared at 9 am (which was corrected as 10 am subsequently) on 15.1.2001 by PW19. MOs.5 to 13 and 17 were seized under Ext.P8 Scene Mahazar.
Crl.Appeal No.861 of 2007 -7- H) PW8 (Raveendran) who was the Head Constable of Nadapuram Police Station re-registered the case as Crime No.43/2001. Ext.P9 is the FIR dated 15.1.2001 registered at 2.05 pm. I) PW9 (C.Sounderesh) was the Munsiffs-Magistrate Payyoli, who conducted the Test Identification Parade for PWs.1 and 2 for the identification of A5 on 1.8.2001. The Test Identification Parade was conducted in his court hall from 2.15 pm onwards. Ext.D1 is the complaint given by A5 to the Magistrate to the effect that he had been shown the witnesses prior to the Test Identification Parade on a previous occasion by the son of PW1. Ext.P10 is the contemporaneous report prepared by PW9 soon after the conduct of the Test Identification Parade. According to PW9 and Ext.P10 report, prepared by him, both PWs.1 and 2 had correctly identified A5 in all the three rounds of parade.
J) PW10 (Premdas) was the Sub Inspector of Police, Perambra. He was on law and order patrol duty at Thanekottur area where there had been clashes between the Muslim League workers and Marxist party workers from three days prior to the occurrence in this case. According to this witness while proceeding along the road situated to the west of the house of the deceased with his patrol party consisting of eight Police Constables, he heard loud screams and saw smoke emanating from the house and saw 50 persons armed with chopper, stick, stones etc. on the courtyard of the house and seeing the Police party the armed persons escaped towards the south. The Police party then claims to have entered the house to find Crl.Appeal No.861 of 2007 -8- deceased Moidu Haji with cut injuries and lying in a pool of blood in the middle room (Dining Room) of the house. He also saw foam bed in the southern bedroom and motor bike in the work area on flames. According to him three families including old women and three children were in the house which was full of flame and smoke. Moidu Haji was brought out from the house for removing to the hospital and while so the Circle Inspector of Nadapuram (PW21) reached there in his jeep and PW10 said that he had sent Moidu Haji to the hospital. Then he deputed Police Constables for guarding the scene of occurrence. Thereafter PW10 resumed his law and order duty without being able to identify the assailants who had made good their escape towards the southern side.
K) PW11(Sidheeq) who is a fish vendor by avocation is residing at Thanekottoor for the past 24 years. He claims to have stumbled upon the assailants while returning home from a place called Nelliyad. His attention was roused by the loud screams emanating from Moidu Haji's house. When he ran towards that house he saw A5 with a chopper on the terrace of the house of Moidu Haji and 75 other persons engaged in causing destruction to the house and movables therein and then he hid behind the staircase of one Kunhammed kutty and identified A1 to A5,A6 ,A8 and A12. According to the witness some of the assailants broke open the front grill and he heard the loud screams of women and some explosions and smoke. Getting frightened he ran for his life to his house and subsequently at 4 pm he came to know the death of Moidu Haji and Crl.Appeal No.861 of 2007 -9- then he left the place for his native place, Palakkad along with his family.
L) PW12 (Suresh) is a photographer who proved Ext.P11 series of photographs of the dead body from the mortuary and also Ext.P12 series of negatives.
M) PW13(Sujith) who was a driver of PW21 had taken the deceased to the Taluk Head Quarters Hospital, Vadakara.
N) PW14(Khalid) is an attester to the additional scene mahazar prepared by PW21 on 18.02.2001. MOs.14 to 16 blood scrapings were seized under Ext.P13 Scene Mahazar.
O)PW15 (Dr.Thomas Mathew) who was the Assistant Professor of Forensic Medicine, Medical College Hospital, Kozhikode conducted autopsy over the dead body of Moidu Haji on 15.1.2001. Ext.P14 is the postmortem certificate as per which Moidu Haji had 10 incised wounds, two linear abrasions and contusions. The opinion as to the cause of death as stated in Ext.P14 was that the deceased died due to cut injury to his neck. The cut injuries to his neck are injury Nos.1,2,5 and 7. PW15 deposed that since the margins of those injuries were contused, a heavy cutting weapon might have been used for causing those injuries.
P) PW16 (O.Balakrishnan) who was the Secretary of Chekyad Grama Panchayath proved Ext.P15 Ownership Certificate which shows that Moidu Haji was the owner of House No.IV/360A.
Q) PW17(Babu Paul) who was the Village Assistant of Kavilumpara village, on deputation to Chekyad Village Office, proved Ext.P16 Crl.Appeal No.861 of 2007 -10- site plan.
R) PW18(Abdul Latheef) is the son of Moidu Haji and PW1. He was in the house of a friend situated about 3 or 4 houses away, when the occurrence took place. He had gone to that house at about 10 am on that day. He was examined to prove that he was using the bedroom on the upstairs portion of that house and for getting out of the house one has to use the stair room for going down the staircase and the the door of the stair room is usually not closed during day time. He had shown the place of occurrence to both PWs.19 and 21 while preparing the scene mahazar and additional scene mahazar. S) PW19 (Velayudhan) who was the Circle Inspector of Police, Perambra on special duty was entrusted with the investigation of the case. He took over the investigation on 15.01.2001. Ext.P8 is the scene mahazar prepared by him on that day at 10 am. PW18 showed him the place of occurrence. MO6 blood stained cotton, MO7, blood in polythene cover , MO5 Billhook taken from the verandha of the house, MO11 partly burnt cotton of mattress, MO13 piece of door frame, MO10 series of two pieces of black glasses, MO8 granite stone, MO9 piece of laterite stone, MO17 burnt paper pieces and MO12 burnt pieces of pepper vine were seized by him under Ext.P8 Scene Mahazar. Besides that he had also seized a partly burnt motor bike which was however disposed of on interim custody pending trial. He submitted Ext.P17 report to the committal court for adding Sections 143,147,148,449,427,435 and 149 IPC. But in the light of Ext.P5 report already submitted by PW4, sections 427 Crl.Appeal No.861 of 2007 -11- and 437 IPC alone were the only new sections. PW19 submitted Ext.P17 report to array A1 to A4 and Ext.P18 report showing the full address of A1 to A5. Ext.P19 is the report submitted by PW19 for correcting the time of preparation of Ext.P8 scene mahazar as 10 am instead of 9 am. He despatched MOs.5 to 13 and 17 to the committal court as per Ext.P20 property list. Ext.P21 is the property list dated 23.1.2001 for sending the motor cycle to the committal court . The said vehicle was later entrusted on Kichit to PW1. On 27.01.2001 at 3 pm PW19 arrested A1 and A2 from Nadapuram bazar. ExtP22 is the copy of the forwarding note dated 05.02.2001 submitted by PW19 for sending MOs.1 to 3 (cloths of the deceased) seized as per Ext.P3 inquest report. Ext.P23 is the copy of the forwarding note dated 5.2.2001 filed by PW19 for sending MO6 cotton smeared with blood and MO7 blood in a plastic cover to the Court.
T) PW20 (C.T.Tom) was the Circle Inspector of Police, Nadapuram. He conducted the investigation from 2.02.2002 onwards. Ext.P7 is the mahazar prepared by him on 31.10.2002 for seizing Ext.P11 series of 10 photographs and their negatives (Ext.P12 series). Ext.P24 chemical analysis report pertaining to MOs.14 and 16 scrapings was proved through him. The said report shows the presence of human blood on those scrapings. Likewise, Ext.P25 Chemical report pertaining to MOs.2,3,6 and 7 respectively was also proved through him. As per the said report human blood was detected on all the items and MOs.1,3 and 7 contained blood of "O" Crl.Appeal No.861 of 2007 -12- group. PW20 got Ext.P15 ownership certificate and Ext.P16 scene plan prepared and produced the same before the court. Since A5 had violated the bail conditions, he got the bail cancelled and re-arrested A5 on 27.10.2002. He finally laid the police report before the Magistrate on 21.07.2003.
U) PW21(V.K.Akbar) who was the Circle Inspector of Police, Nadapuram conducted the investigation of this case from 17.1.2001 to 18.2.2001. He prepared Ext.P13 additional Scene Mahazar as per which he seized MOs.14 and 16 scrapings. He filed Ext.P26 report on 18.2.2001 for arraying accused Nos.8 to 12. A6 and A10 who were already in judicial custody were formally arrested by him on 18.01.2001. PW21 deposed that A5 was arrested by the Sub Inspector of Police, Nadapuram on 08.7.2001. He submitted the original forwarding note (Ext.27 is the copy) for sending MOs.14 to 16 for chemical analysis. On 09.07.2001 he gave application to the J.F.C.M, Kozhikode for conducting Test Identification Parade pertaining to A5. He deposed that since A5 did not co-operate with the interrogation, the weapon of offence could not be recovered. A tense situation was prevailing in Nadapuram area during the period of occurrence.
DEFENCE WITNESSES
10. DW1 (E.M.Vijayakumar) was the Assistant Sub Inspector of Police, who proved Ext.D5 and D6 charge sheets Crl.Appeal No.861 of 2007 -13- against PW11. DW2 (M.Pradeep Kumar) who is the Sub Inspector of Police, Nadapuram proved Exts. D7 to D10 charge sheets also against PW11.
APPELLANTS' ARGUMENTS
11. Adv. Sri. C.K. Sreedharan and Sri. K.S. Madhusoodhanan, the learned Advocates appearing for the appellants made the following submissions before us in support of the appeal:-
The trial Court has overlooked the inherent infirmities in the prosecution case. Ext.P2 transfer F.I.R. registered as Crime No. 27 /2001 by P.W.4 (Sub Inspector of Police, Vadakara Police Station) at 2.30 p.m. on 14-01-2001 is based on the death intimation given by P.W.3 the Assistant Surgeon, Government Hospital Vadakara . The said crime was re-registered by P.W.8 who registered Ext.P9 F.I.R. Even according to the prosecution, there were four inmates namely CWs 1 to 4 including P.Ws 1 and 2 Crl.Appeal No.861 of 2007 -14- besides the two sons of P.W.1 in the house of occurrence.
According to the prosecution those inmates were there in the dining hall. But out of them P.Ws. 1 and 2 were alone examined. Cws 2 and 3 who are Sulekha and Aysha ( the wifes of Ismayil and Ashraf, the other two sons of Moidu Haji) have been kept away from the witness box. PW2 is a lady who was given away in marriage 19 years ago at the tender age of 14 years and she was permanently residing in her matrimonial house at Parad - Puthoor which is 5 kms. away from the place of occurrence. She was planted as a prosecution witness to say that she had come to the house of occurrence just two days prior to the occurrence. There ware four other inmates of the house. P.Ws 10 and 21 are two police officers who reached the scene of occurrence soon after the occurrence. P.W.10 who was allegedly on law-and-order duty in that locality had, on his own admission, seen the assailants armed with weapons and destroying the house-hold articles , cowshed and cow dung shed etc. He had also seen a motor cycle burning Crl.Appeal No.861 of 2007 -15- in the work area of that house. He had seen Moidu Haji with cut injuries lying in a pool of blood in the dining hall and according to him there were about 50 armed culprits who ran towards south. He and seven or eight police constables were in action and claim to have been busy extinguishing the fire within five minutes. P.W21, the local Circle Inspector having jurisdiction under Sec. 36 Cr.P.C. with all the powers of the S.H.O. reached there. While P.W.10 remained there from 12.30 to 1 p.m. P.W.20 also remained there for three hours. Having come to know that cognizable offences have been committed and witnesses who had seen the occurrence were also available on the spot both of them did not record any statement. P.W.10 has admitted that he had narrated to P.W.21 whatever he had seen there. In spite of that P.W.21 did not think it necessary to record the statement of any of the witnesses including P.W.10. P.Ws 1 and 2 may be pardanasin women who might not have seen the actual occurrence as turned out by their testimony which is full of contradictions Crl.Appeal No.861 of 2007 -16- and omissions. It was because P.Ws 1 and 2 had not witnessed the actual assault and did not know the assailants that P.Ws 10 and 21 did not record their statements. P.W.1 would say that she had told the police regarding the occurrence. When P.Ws 1 and 2 had no case that they were not in such a mental condition as to be in a position to give a statement, P.W.21 would come out of such a case. There is absolutely no explanation forthcoming as to the non-recording of the statement from any of the inmates of the house or the non-registration of a crime. P.Ws 10 and 21 were shirking their statutory duty. Ext.P2 F.I.R. registered on the strength of Ext.P1 intimation is a cryptic, vague and defective F.I.R. It was virtually a blank cheque given to the prosecution to subsequently come out with an improved version of the occurrence so as to rope in innocent person out of political enmity. Ext.P2 F.I.R. did not give the identity of the victim. It is supplied only as per Ext.P4 subsequent report. If Moidu Haji was taken from his house to the hospital in the manner spoken by P.Ws 10 and 21, Crl.Appeal No.861 of 2007 -17- then the doctor would have certainly been told about the name of the deceased. But Ext.P1 intimation given by P.W.3 to the Vadakara Police Station says that an unidentified deadbody was brought to the hospital. The cause of the injury was stated to be the riot at Thanakkottur. The exact place is not mentioned, leave alone, the time of occurrence or the name of the assailants. The weapons used are also not mentioned. Eventhough the incident took place within the limits of the Nadapuram Police Station which only 6 kms. away from the place of occurrence,Ext.P2 F.I.R. was registered at the Vadakara Police Station on the strength of a vague report. If these aspects are taken into account there is unexplained delay in registering the F.I.R. attracting the decisions reported in Awadhesh and another v. State of Madhya Pradesh - AIR 1988 SC 1158 and Dorai @ Mariappan v. State of T.N. - (2004) 11 SCC 742. There were, therefore, a conscious and deliberate attempt not to register a case based on the statement of persons knowing about the occurrence. Crl.Appeal No.861 of 2007 -18- P.W.s10 and 21 were abdicating their duty, presumably, at the instance of the Muslim League which is the political party to which the deceased belong. This is further strengthened by Column 16 of Ext.P3 report wherein it is shown that inquest was held in the presence of Soopy Narikkatteri the President of the Panchayath and an active Muslim Leaguer. It also says that the assailants are activists of Marxist Party. There is also unexplained delay in questioning the witnesses. The statement of P.W.1 was recorded only on 16-1-2001. The date of recording the statement of P.W.2 is not shown in the statement. P.W2 says that she had given the statement on 15-1-2001 and her statement contains the name of A5. But her testimony is to the effect that she came to know of the name of A5 (Surendran @ Sura) only two days after the occurrence when the features of the assilants who had cut Moidu Haji was mentioned to Mahamood the eldest son of Moidu Haji and when Mahamood mentioned that it could be Surendran @ Sura (A5). P.W.11 is purely a chance witness Crl.Appeal No.861 of 2007 -19- whose explanation for his presence at the place of occurrence is quite doubtful. He was questioned only on 9-2-2001 i.e. after 25 days of the occurrence. The statement of P.W.10 also was recorded only after one month of the occurrence. The Investigating Agency was evidently taking time to come forward with a false case. This casts a cloud of suspicion in the prosecution case as was held in Ganesh Bhavan Patel and another v. State of Maharashtra - AIR 1979 SC 135. If we go by the testimony of P.Ws 1 and 2 regarding the occurrence it is totally irreconcilable with the medical evidence furnished by Ext.P14 postmortem certificate and the testimony of P.W.15 (the autopsy surgeon). According to P.W.15 different types of weapons should have been used for causing the various injuries which indicates that different persons were involved in inflicting the injuries. According to P.W.15 injury Nos. 1 to 3 and 6 could have been inflicted by a hatchet and injury numbers 4,8 and 10 by sticks. P.W.15 was categoric that four separate acts must have Crl.Appeal No.861 of 2007 -20- been there for causing four cut injuries one while he was in the standing position and the other after he fell down. In contradistinction to the medical evidence, the categoric testimony of P.W.1 is that A5 inflicted only one cut injury on the neck of Moidu Haji. P.W.2 deposed that A5 inflicted only two cut injuries. No weapon was suggested to P.W.15 (autopsy surgeon) for causing any of the injuries. It was not even put to P.W.15 that the cut injuries in the neck could have been inflicted by a bill hook. A mere statement by P.W.15 that a heavy cutting weapon might have caused the cut injuries was not sufficient. If according to P.Ws 1 and 2 who are the only eye witnesses examined by the prosecution, a single blow alone was dealt by A5, then the medical evidence renders the said testimony absolutely impossible if not incredible. This is a case in which the testimony of P.Ws 1 and 2 should not be accepted in preference to the medical evidence which is to be preferred as was held in Purushottam and another v. State of Madhya Pradesh - AIR 1980 SC 1873. Crl.Appeal No.861 of 2007 -21- In AIR 1988 SC SC 1158 the Apex Court had observed that the medical evidence corroborated by other circumstances as in this case indicated that eye-witnesses could not have seen the occurrence. In Mani Ram and others v. State of Uttar Pradesh - 1994 Crl.L.J. 3848 also the Supreme Court observed that where the direct evidence is not supported by the expert evidence then the evidence is wanting in the most material part of the prosecution case and the prosecution evidence has to be rejected. With regard to A1 to A3 no overt acts, much less, any weapons wielded by them has been proved. There are no recoveries also at their instance. Nobody has deposed about any act of causing damage by A1 to A3. With regard to A5, apart from the inherent improbabilities in the testimony of P.Ws 1 and 2 regarding the alleged overt act of inflicting one cut injury which itself is belied by medical evidence, it is the admitted case of the prosecution is that both of them had no prior acquaintance with A5. PW.9 is the Minsiff-Magistrate of Payyoli, who conducted the Crl.Appeal No.861 of 2007 -22- test identification parade (TIP). It is well settled that the success of a TIP depends on the precautions taken. A5 was admittedly having a beard. Ext.P10 report does not mention whether there were other persons having beard among the non-suspects. It does not also mention the dress of the suspect and the eight non- suspects. PWs 1 and 2 and P.W.9 would say that A5 was wearing a dhoti and a shirt. P.W.1 was not able to remember as to how many persons were wearing pants and shirt. P.W.9 has admitted that he cannot deny the suggestion that the seven police men were wearing pants and shirt. In Chander Singh v. State of U.P. - AIR 1973 SC 1200 the Apex Court rejected the T.I.P. for the reason that persons with brown eyes were not mixed in the parade along with the suspect who was having brown eyes. In Yeshwant and Others v. State of Maharashtra - AIR 1973 SC 337 for not including in the T.I. Parade persons whowere similarly bearded as the suspect, the T.I.P. was not accepted. The presence or absence of a curtain on the front grill of the house of Crl.Appeal No.861 of 2007 -23- occurrence has also telling effect on the testimony of witness. According to P.Ws 1 and 2 there was no curtain at all on the front grill. This testimony of the two ladies is belied by Ext.P8 scene mahazar as per which the curtains which had fallen down were seen lying on the floor. While according to P.Ws 1 and 2 the front and rear grill and the locks were broke open by the assailants when gaining their entry in the house, the same is belied by the testimony of P.W.19 who has admitted that even lock was not seen damaged. Even though Exts.P17 and P18 reports for arraying A1 to A5 are claimed to have been sent by P.W.19 only on 16-1- 2001, they reached the court on 19-1-2001 which means that A1 to A5 were arrayed only after 5 days of the occurrence. It is in evidence from the testimony of P.Ws 1 and 2 that the assailants , particularly, A1 to A4 were bearing masks. Even if P.W.1 who claims to know very well A1 to A3 who are stated to be the nearby residents, it is impossible for a person to identify them if they were wearing masks by covering their face beneath their nose. So is Crl.Appeal No.861 of 2007 -24- the case with P.W2 also. If A1 to A3, even according to P.Ws 1 and 2 were wearing masks, then the testimony of P.Ws 1 and 2 of having identified them is nothing but falsehood. A1 to A3 have been implicated only because they are active members of the Marxist Party. So is the case that A5 who is also a Marxist party worker. From the description of A5 by P.W.2 it was Mahamood who mentioned that it could be Surendran @ Sura (A5). So, A5 and his friends and neighbours were falsely implicated.
JUDICIAL EVALUATION
12. After hearing both sides and after a careful re- appraisal of the oral and documentary evidence in the case, we are afraid that we find ourselves unable to agree with the above submissions made on behalf of the appellants. As mentioned earlier, out of the 10 persons who stood trial, A6 and A8 to A12 were acquitted by the trial Judge and A1 to A3 and A5 who are the appellants herein alone were convicted.
Crl.Appeal No.861 of 2007 -25-
THE PLACE OF OCCURRENCE
13. The place of occurrence is the dining hall which is the middle room of the house of Moidu Haji at Thana Kottoor in Chekyad Panchayat and village of Vadakara Taluk. There is no dispute that Moidu Haji was the owner of the said house as was revealed by Ext.P5 ownership certificate proved by P.W.16. Moidu Haji, the deceased had 7 children consisting of six sons and one daughter. One Mahamood is the eldest son of Moidu Haji. P.W.1 Amina is the wife of Moidu Haji and P.W2 Aysha is his daughter. Abdul Latheef examined as P.W.18 is his youngest son. Two of the eye-witnesses namely Sulekha (CW2) and Aysha (CW3) are the wives of two other sons of Moidu Haji, namely, Ismayil and Ashraf. The house of Moidu Haji is situated to the east of the panchayath road running north-south from the Kuruvantheri road running east-west and which leads the Parakkadavu-Panoor road lying further to the west of the panchayath road and running east-west. During the period of Crl.Appeal No.861 of 2007 -26- occurrence, besides Moidu Haji , his wife Amina (PW1) and his four sons Mahamood, Ismayil, Ashraf and Abdul Latheef were residing in the said house along with the wives of Ismayil and Ashraf. Eventhough Aysha (P.W.2) the daughter of Moidu Haji, after her marriage 19 years ago, was residing at Parad-Puthur which is about 5 Kms. away from the place of occurrence, her evidence is to the effect that she had come to her ancestral house two days prior to the occurrence. The date of occurrence was on 14-1-2001 which according P.W.2 was a Sunday. The time of occurrence is 12.30 noon.
14. The testimony of P.W.1 (Amina) the wife of Moidu Haji with regard to the occurrence is as follows:-
The assailants broke open the grills of the front veranda. They then broke open the front door. One person (A5) came down through the staircase from the upstairs with a chopper in his hand and he gave a cut on the neck of Moidu Haji with the chopper. With that cut Moidu Haji fell down. By that time the other assailants Crl.Appeal No.861 of 2007 -27- also entered into the house. She knew A1 to A4 . All of them are their neighbours. Out of them A4 is not before Court. She identified A1 to A3. They set fire to the Scooter of her son kept in the work area and also the thatched roof of the cow dung pit etc. MOs 1 to 3 are the dress worn by the deceased. When somebody said that police are coming, the assailants took to their heels. She had identified A5 in the Court at Payyoli. Her husband and children belonged to Muslim League. She does not know of any political enmity between them. There were clashes between Muslims and Hindus for the past two or three days and they always kept the front grill locked. Some of the assailants were wearing masks below the nose. A5 had a beard. At the time of T.I.P. also he was having a beard.
15. P.W.2 (Aysha) who is the daughter of the deceased inter alia deposed as follows:-
Two days prior to the occurrence she had come to the house of the deceased from Parat-Puthur which is the place where her matrimonial home is situated. 14-1-2011 was a Sunday. She was standing in the courtyard. When she saw Crl.Appeal No.861 of 2007 -28- the assailants coming with chopper and sticks etc. she conveyed this to Aysha (CW3) the wife of Ashraf. When P.W.1 was informed she asked to close the rear grills. The assailants broke open the front grill and the front door. One of the accused (A5) who came down the staircase with a chopper cut the deceased on his neck. The deceased fell down. Thereafter A5 hacked the neck of the deceased with the chopper. The assailants then set fire to the belongings in the said house. When somebody said that the police are coming the assailants made good their escape . The police took the deceased to the hospital. The police also extinguished the fire. At about 3 p.m. on that day she came to know that the deceased was dead. She had identified A5 in the Payyoli Magistrates's Court. ( In court she identified A1 to 3 , A5 and A6 and A8.) After two days of the incident when she described the dark complexioned lean person with a beard whom she had seen cutting Moidu Haji her elder brother Mehmood said that it might be Sura (A5). All the assailants were not wearing masks. The masks worn by some of them had fallen down after some time.
16. Yet another witness whose testimony is relevant is that Crl.Appeal No.861 of 2007 -29- of P.W.11 who, inter alia, deposed as follows:-
He is a fish vendor residing at Thanakkottur for the past 25 years. On 14-1-2001 at 12 noon he had set out to Nelliyad for buying rice. The shop was closed and when he was returning he heard loud screams from Moidu Haji's house. When he ran towards that house he saw A5 with a chopper on the terrace of that house. There were about 75 persons who were engaged in causing destruction to the house. He hid himself behind the staircase of Kunhammed's house. He saw A1 to A3, A5 , A6 and A8 to 12. Some of them broke open the grill. He had heard screams of ladies from inside. He had also heard some explosion. Smoke was emanating from the house. Getting scared he ran to his house. At 4 p.m. he heard that Moidu Haji was dead. He then went to his native place at Palakkad along with his family and was there for nearly 25 days. Eventhough he was convicted for three years in an alleged attempt to murder the said case is pending in appeal. He does not know whether Ext.D5 to D15 cases are pending against him. On 9-2-2011 he went to the Police Station and told the about occurrence until then he had not mentioned about the occurrence to anybody else.
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17. Both P.Ws 10 and 21 have given valid explanation for not registering an F.I.R. It is true that P.W.10 is the first person who reached the place of occurrence. It was soon after the occurrence that he reached there and he had only seen the assailants numbering about 50 armed with deadly weapons making good their escape towards the south. His police party contained only seven constables and if instead of chasing the assailants he had got into the house and attempted to bring succor to the wounded person and extinguish the fire, it cannot be characterised as a conduct which was not expected of him in that situation. With regard to P.W.21 also, he reached after P.W.10 had arrived there. It was in his Jeep that the deceased was taken to the hospital in the company of two police constables. He was busy consoling the inmates of the house who evidently were in a shock. It was an occurrence in which about 50 or more armed assailants barged into the house of Moidu Haji and after gaining their entry into the house by breaking open the front door Crl.Appeal No.861 of 2007 -31- in a broad daylight they mounted a murderous assault on 65 year old Moidu Haji with lethal weapons. It was not something which was anticipated. P.W.11 had seen A5 with a chopper on the terrace of the house. P.Ws 1 and 2 had seen A5 coming down the staircase with a deadly weapon in his hand and inflicting a cut injury on the neck of deceased Moidu Haji. No doubt, while P.W.1 saw only one cut injury being inflicted by A5, P.W.2 saw the first cut injury being inflicted while Moidu Haji was in a standing position and with that blow when Moidu Haji had fallen down P.W.2 had seen A5 hacking the neck of Moidu Haji with the chopper in his hand. No suggestion was put to PW2 that she was not in the house at the time of occurrence. The case that PW2 is a planted witness has been put forward only at the time of arguments. It is true that there were about 10 incised wounds including the four incised injuries in the neck of Moidu Haji besides two linear abrasions and one contusion on the neck of Moidu Haji. When such an occurrence took place unawares in Crl.Appeal No.861 of 2007 -32- broad daylight at an unexpected moment, it is quite possible that the two ladies who were in the dining hall along with Moidu Haji could not be expected to watch the complete occurrence as if they were watching an interesting movie from the beginning to end and later recapitulate the entire occurrence after the lapse of 6 years. Eventhough the occurrence was on 14.1.2001 PWs.1 and 2 were examined only in February 2007. Both P.Ws 1 and 2 have unmistakably identified A1 to A3 and A5 in Court. Both of them identified A5 on all the three rounds of the test identification parade as well. Merely because different weapons might have been used involving different persons, it cannot be said that the overt acts attributed to A5 by P.Ws 1 and 2 are false. It is pertinent to bear in mind that the investigating officer has deposed that on account of the non-co-operation by A5 the weapon wielded by him could not be recovered. There was a faint attempt by the defence to show that MO5 bill hook was the weapon used for the assault and that there was a conscious attempt on the part Crl.Appeal No.861 of 2007 -33- of P.Ws 1 and 2 to disown the said weapon. The submission was that in the face Ext.D3 case diary contradiction of P.W.18 to the police that the said weapon belonged to his house the prosecution case that MO5 chopper did not belong to the house cannot be believed. MO5 was actually recovered from the veranda of the house and it was not found blood stained and that was the reason for not sending the same to the chemical examiner for detection of human blood on the same. We see no reason to disbelieve the prosecution case that the actual weapon used by A5 for cutting Moidu Haji was not MO5 . Merely because P.W.11 is an accused in several cases, it does not follow that his testimony before Court is unworthy of credence. The trial Judge who had the unique advantage of seeing the witnesses and assessing their credibility was fully inclined to accept the testimony of P.Ws 1,2,11 and 18. P.W1 has credibly deposed even during cross- examination that she knows A1 to A3 who are residing in the nearby Chathoth Paramba and eventhough masks were worn by Crl.Appeal No.861 of 2007 -34- some of the assailants, it was only below the nose and she could therefore, clearly identify them. P.W.2 also stated that the masks worn by some of them had fallen down. If so, the identification of A1 to A3 as three among the assailants was not at all difficult for PW2 as well. The testimony of P.W.11 that he had seen A5 with a chopper in the terrace of Moidu Haji's house corroborates the testimony of P.Ws 1 and 2 that it was A5 who came down the staircase with a chopper and inflicted a fatal cut injury on the neck of Moidu Haji. PW21 has clarified that Ext.D3 statement in his application for police custody of A5 to the effect that A5 was located on the terrace of the house by Haneefa was a mistake for PW11, son of Haneefa. When a set of persons suddenly barged into the house quite unexpectedly and assaulted their target Moidu Haji by inflicting injuries in quick succession, it would be unrealistic and too much to expect that the witnesses, particularly, ladies, who had witnessed the occurrence would be in a position to narrate the entire occurrence and state the exact injuries inflicted Crl.Appeal No.861 of 2007 -35- on the deceased. We are fortified in this connection by the decision of the Apex Court in Seeman @ Veeranam v. State by Inspector of Police - 2005 Crl.L.J. 2618, where the Supreme Court observed as follows:-
It is submitted by the learned counsel that no injury was found on the back of the deceased, and therefore, the medical evidence does not corroborate the statement of PW2. It is to be noticed that the duration of the occurrence was short. The injuries on the deceased were inflicted with quick succession and it is too much to expect from a witness in such circumstance to narrate the exact injuries caused on a person of the deceased. The generalised statement as regards the injuries would be more credible than the particularised statement of location of injuries on the body when the injuries were caused in quick succession and in short time.
18. It is true that both P.Ws 1 and 2 had no previous acquaintance with A5 who is a dark complexioned lean person having a beard. A5 was arrested only on 8-07-2001. The Crl.Appeal No.861 of 2007 -36- requisition for his test identification parade was given on 9-07- 2001 that is two days after the arrest. It reached the Chief Judicial Magistrate Court on 10-07-2001 but on 17-7-2007 the C.J.M. directed the Magistrate ,Payyoli (PW9) to conduct the T.I.P. The T.I.P. was conducted in the court hall of PW9 on 1-8- 2001. In the first remand report pertaining to A1 dated 9-7-2001 it is stated that the face of A5 was covered. P.Ws 1 and 2 have categorically denied the suggestion that A5 was shown to them. P.W1 said that she does not know whether A5 was brought in the police Jeep. P.W.9 the Magistrate deposed that he had ensured that there was no communication whatsoever between P.Ws 1 and 2 and A5. He took special care to detain P.W.1 in his chamber. P.W.2 was detained in the record room of the Court. Both P.Ws 1 and 2 identified A5 on all the three rounds of the parade. It is true that P.W.9 deposed that he cannnot remember as to how many persons with beard were included in the parade. But he has emphatically denied the suggestion that the suspect was the only Crl.Appeal No.861 of 2007 -37- person having a beard. He has stated that there were three other persons with beard.
19. The argument that Ext.P2 F.I.R. was a blank cheque give by the prosecution for roping any number of innocent persons subsequently is also devoid of any substance. Ext.P2 F.I.R. reached the Magistrate at 4.30 p.m. on 14-1-2001 itself in spite of the fact that it was a Sunday.
20. Equally misconceived is the contention that P.W.21 abdicated his function in not registering the crime. The situation was very tense in that area. It was in his jeep that Moidu Haji was sent to the hospital. His movements were restricted. His first duty was to rescue the wounded person and extinguish the fire. He was surrounded by the ladies as if they were refugees. So he had to give solace to them. He could leave the place only after 3 pm. When he went to Nadapuram Police Station at 3.30 p.m. he came to know that the Vadakara Police had already registered a crime.
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21. When armed assailants had broken into the house and the inmates were all ladies and their kith and kin was lying wounded in a pool of blood it would be unrealistic to expect the ladies to give a graphic account of the occurrence with all the sequential details and that too after 6 years of the occurrence. The defence contention that there was delay in questioning PWs.1,2 and 11 is also devoid of any merit. The occurrence was on 14.1.2001. PW1 was questioned on 16.01.2001. Eventhough PW2 deposed that she was questioned on the next day of the occurrence, it is unlikely that she would have been in a position to give a statement on 15.1.2001. The shock and anguish of these ladies in front of whom the head of the family was brutally murdered can only be imagined. Whether or not delay in questioning a witness has affected the credibility of the prosecution is a matter on which no straitjacket formula can be evolved nor any thumb rule prescribed for universal application (vide para 23 of Narinder Kumar v. State of Jammu and Kashmir - (2010) 9 SCC 259). Even in cases Crl.Appeal No.861 of 2007 -39- where there has been belated questioning of witnesses, the statements of such witnesses does not become suspicious or concocted when no explanation for the delay is sought from the investigating officer (vide para 55 of Vijay Kumar Arora v. State (Govt. of NCT of Delhi) (2010) 2 SCC 353). In the case of PW11, he was first interrogated on 09.02.2001 i.e. after 25 days for which he has inspiringly stated that after witnessing the above occurrence he was virtually fleeing to his native place at Palakkad along with his family for nearly a month.
22. The conduct of A5 is also relevant in this occasion. After cutting the deceased by inflicting fatal cut injuries on his neck, he joined others to set ablaze the household articles, motorcycle etc.
23. The deceased was not any office bearer of Muslim League nor was he involved in any earlier occurrence so as to impel the appellants to break open into his house and to make a murderous attack on him.
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24. After a careful re-appraisal of the oral and documentary evidence of the case, we have no hesitation to conclude that the conviction entered against the appellants for the offences as aforesaid was fully justified.
25. The sentence imposed on the appellants also cannot be said to be excessive or unduly harsh. The learned Sessions Judge has imposed only the lesser of the two penalties prescribed for the offence punishable under Section 302 IPC. Hence, we do not find any good ground to interfere with the sentence imposed on the appellants as well.
In the result this appeal is dismissed confirming the conviction entered and the sentence passed against the appellants.
Dated this the 29th day of August, 2011
Sd/-V. RAMKUMAR, JUDGE
Sd/-P.Q.BARKATH ALI, JUDGE
/true copy/
ani/sj P.S. to Judge
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