Of The Additional Sessions Jude Adhoc - ... vs Pushparaj on 18 April, 2013

[Cites 5, Cited by 0]

Kerala High Court

Of The Additional Sessions Jude Adhoc - ... vs Pushparaj on 18 April, 2013

These two appeals are against the judgment of conviction and order of sentence passed under Sections 302, 148 and 341 IPC in S.C.No.219 of 2009 of Additional Sessions Judge Adhoc -III (Fast Track Court- III), Palakkad. Crl.A.No.697 of 2013 was filed by accused Nos.5, 6 and 7 and Crl.A.No.768 of 2013 by accused Nos.1 to 3.

2. The prosecution allegation is that the accused persons, seven in numbers, including accused No.4 who is a juvenile in conflict with law, formed themselves into an unlawful assembly with the intention to do away the victim and armed with deadly weapons (swords, knife, sticks, Nanjack and idikkatta) and in furtherance of their common object, wrongfully restrained the victim who was riding a motor cycle through a Crl. Appeal Nos.697 & 768 of 2013 :: 2 ::

public road (Kallandichalla Pirivu-Kallandichalla public road) at 11 p.m. on 8.5.2008 and inflicted injuries on his body. He was removed to Unity Hospital, Kozhinjampara and then to Palana Hospital, Palakkad. He was actually brought dead before Palana Hospital, Palakkad.

3. The incident unfurled through the prosecution witnesses is having three episodes. The first episode happened by 9.00 p.m. on the same day, when annual celebrations in connection with one Mariyammankovil was going on. The deceased along with about 20 persons attended the rituals and while they were staying in the road side accused Nos.2 and 3 came there in a bike ridden by accused No.2. There was some wordily altercations in connection with the manner in which the bike was ridden by accused No.2 and some how, it has resulted in manhandling of accused No.2. It is thereafter accused No.1 came there and unleashed threat against the attackers in connection with the earlier incident. The third episode of the alleged incident happened by 11 p.m. Crl. Appeal Nos.697 & 768 of 2013 :: 3 ::

While the victim Suresh was on his way through the road, accused Nos.1 to 7 stopped his vehicle and thereon unleashed attack on him by using the weapons carried on by them, thereby the victim succumbed to the injuries on the same day on his way to Palana Hospital, Palakkad.

4. The prosecution mainly relies on the oral testimony of occurrence witnesses PW6, PW14 and PW15 besides the oral evidence adduced through the Doctor who conducted autopsy on the body of the deceased and recovery of the weapon used for inflicting injury.

5. PW6 is the person who had given Ext.P9 FIS before PW11 Sub Inspector of Police, Kozhinjampara and it was reduced into writing and Ext.P9(a) FIR was registered. The oral testimony of PW6 was brought under a massive attack. Firstly on the ground that there is a material omission/deviation in Ext.P9 FIS regarding the involvement of accused persons and their respective overt acts. In box, he had testified that Crl. Appeal Nos.697 & 768 of 2013 :: 4 ::

accused Nos.1 to 3 involved in the alleged incident, who themselves inflicted injuries on the victim by using specific weapons carried on by them. But, in the FIS, specific overt act alleged is only against accused No.1 and nothing was mentioned with respect to the overt act of other persons or the weapons carried on by them or its user. It is at the time of his examination as a witness the specific overt act as against accused Nos.2 and 3 was disclosed by him. Secondly, on the reason that nothing was mentioned either in the FIS or at the time of giving oral evidence regarding involvement of accused Nos.5 to 7, though he pretends to be an eye witness to the occurrence. Thirdly, on the reason that three contradictions were marked during his examination as D1 to D3, which, according to the defence, are material contradictions. The oral evidence tendered by PW14 and PW15 were also brought under challenge on account of the inconsistencies with the oral testimony of PW6.

6. The specific overt act of each and every accused as Crl. Appeal Nos.697 & 768 of 2013 :: 5 ::

spoken by PW14 and PW15 are clear and they are in agreement in its all details, the type of weapon used by each and every accused, the manner in which the injuries were inflicted on the victim, place and time in which the incident was happened, the very genesis of the alleged incident and the earlier episodes which were happened before the alleged incident. But the omission to mention the involvement of accused Nos.2 and 3, who are persons known to the first informant at the time of FIS, and the non-mentioning of the user of various weapons, cannot be ignored lightly. The omission is really material, sufficient enough to cast a doubt on the prosecution case regarding the involvement of other accused. But, the omission, though material, would be analysed based on the circumstance under which the alleged incident was happened and its impact on the first informant who had seen the massive attack, he may be in a frightened situation and may not be in a position to give a statement with its precision at the time of FIS. There can be omissions while giving the FIS. It may be minor in nature or material. It is Crl. Appeal Nos.697 & 768 of 2013 :: 6 ::

quite normal and possible to have some minor omissions. But when it is material, it has to be assessed in reference to the circumstances prevailed at that time especially when it was given by an eye witness who had witnessed the incident. The gravity of the incident, his relationship with the victim, the manner in which the incident was happened, all are relevant to test the impact on the first informant and whether he is in a frightened stage. Then the court has to look for strong corroboration and unless there is sufficient corroboration it cannot be acted upon.

7. In the instant case, the ocular evidence adduced through PW14 and PW15, two occurrence witnesses, gives a narrative picture about what actually happened on the ill fated day. They had identified accused Nos.1 to 3 and remaining accused Nos.5 to 7 Pushparaj, Unnikrishnan and Radhakrishnan. The oral testimony of these two witnesses reveals the respective overt acts of accused Nos.1 to 3 and 5 to 7 with its details. It is accused No.1 Prabin with the Crl. Appeal Nos.697 & 768 of 2013 :: 7 ::

company of other accused confronted with the victim by stopping his vehicle (bike) while he was riding and attacked the victim by using a sword. Accused No.2 Rajesh attacked the victim by using a knife. Accused No.3 attacked the victim by using another sword. It was also deposed by PW14 that accused No.1 Prabin slashed the sword against the victim which hit on his left hand. Accused No.2 inflicted a stab injury on his left shoulder. Accused No.3 also inflicted a cut injury on his left hand. Accused Nos.5 and 6 also joined with them and attacked the victim with wooden stick. Accused No.7 also joined with them with a Nanjak. He had also identified the weapon used by accused No.1 - MO8 and accused No.2 - MO10 knife.

8. PW15, the other occurrence witness also specified the respective overt act of accused Nos.1 to 3 and 5 to 7 by specifying the respective weapons used for the commission of offence, identified as MO8, MO9 and MO10, in tune with what is deposed by PW14. The contradictions which were marked Crl. Appeal Nos.697 & 768 of 2013 :: 8 ::

as D8 series, D10 and D11 series are minor contradictions, not material. Their presence in the place of occurrence is also probable as they were proceeding in two bikes. The victim in one bike proceeded at first towards the place of occurrence followed by PW6, PW14 and PW15 who were on another bike and they had seen the occurrence just 10 metres away from the place of occurrence. The credibility of the oral evidence tendered by PW14 and PW15 was also assailed based on the medical evidence adduced. The victim had sustained 18 incised wounds but PW14 and PW15 narrated only about the attack made by accused No.1 with a sword on his left hand, accused No.2 on his left shoulder with a knife and accused No.3 on his left hand with a sword. All others attacked the victim by using wooden sticks and Nanjak. It is submitted that no explanation was forwarded by the prosecution as to how the victim sustained 18 incised wounds noted in the wound certificate as ante-mortem injuries and no satisfactory evidence was adduced in that behalf. The version given by PW14 and PW15 were assailed on that ground also. But, it is quite normal Crl. Appeal Nos.697 & 768 of 2013 :: 9 ::

and natural that when there is a massive attack it is not possible to identify each and every blows struck on the victim using various weapons by the accused persons and that too during night time. It was witnessed by them from a distance of ten metres that too during night, in the headlight of their bike. If we visualise the situation under the given circumstance, it can be safely concluded that it is quite impossible to narrate each and every blow struck on the victim that too by seven persons in a massive attack. What is important is the involvement of the accused persons and whether there was a massive attack on the victim by using various weapons in furtherance of the common object and the oral testimony of occurrence witnesses PW14 and PW15 thus cannot be discarded, but it carries high evidenciary value and can safely be accepted. Thus, it gives sufficient corroboration by themselves and to the ocular evidence given by PW3.

9. Further, the injuries alleged to have been caused by accused Nos.1 to 3, as spoken by PW14 and PW15, stands Crl. Appeal Nos.697 & 768 of 2013 :: 10 ::

corroborated by the expert evidence tendered by PW12 the Doctor who conducted autopsy on the body of the deceased, who had spoken about the possibility of having those injuries by the user of MO8 to MO10.

10. But, the medical evidence adduced was also brought under challenge as no opinion of the Doctor who conducted autopsy was obtained regarding the user of weapon by accused Nos.5 to 7 and no evidence was adduced to show its corresponding injuries to the victim. At this juncture it has to be borne in mind that the medical evidence adduced through the Doctor who conducted autopsy or the Doctor who attended the victim would prima facie come under the purview of Section 45 of the Evidence Act, being the opinion given by an expert. But the court can rely on any ordinary witness on a particular factual situation even without expert evidence if it is found to be acceptable. It is true that nothing was elucidated through the Doctor who conducted autopsy regarding the user of the weapons alleged to have been used by accused Nos.5 to 7 or Crl. Appeal Nos.697 & 768 of 2013 :: 11 ::

any corresponding injury and no question was also put up during the examination of expert witness, PW12, the Doctor who conducted autopsy on the body of the deceased. But at the same time, it is permissible to look at the ante-mortem injuries and if it prima facie satisfies the requirement, the court can definitely act upon it even in the absence of expert evidence. The Doctor who conducted autopsy, PW12, had ruled out the possibility of causing injury Nos.1 and 2 by a fall on a rough surface. The allegation of user of wooden sticks and beating on the victim has to be tested with the origin of the abovesaid injuries and if it prima facie satisfies the requirement and when the oral testimony of occurrence witnesses found to be reliable and truthful, no further enquiry as to its origin is necessary, hence, the non-tender of expert evidence as to how injury Nos.1 and 2 were caused and user of the wooden stick and Nanjak is not fatal to the prosecution. When the witnesses who had seen the incident narrated the incident with its precision it can be safely accepted if it is otherwise found to be credible and truthful.

Crl. Appeal Nos.697 & 768 of 2013 :: 12 ::

11. The recovery of blood stained MO8 to MO10 is yet another circumstance which gives corroboration to the oral testimony of occurrence witnesses, PW6, PW14 and PW15.

12. There is no much dispute that the victim died due to the impact of injury Nos.11, 12, 14,15, 16, 17 and 18 as opined by the Doctor who conducted autopsy on the body of the deceased. Injury No.14 is possible by the impact of MO8.

Injury Nos.15,16, 17 and 18 are possible by the impact of MO9 and MO10.

13. Then comes the question whether the homicide would satisfy any of the clauses to Section 300 IPC. None of the injuries are on the vital part of the victim though the incised wounds comes to 18 in numbers which are as follows:

b

Unlock Advanced Research with PRISMAI

Kerala High Court