Kerala High Court
Raju @ Kadiyan Raju vs State Of Keral on 1 December, 2009
Author: V.Ramkumar
Bench: V.Ramkumar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL.A.No. 1427 of 2003()
1. RAJU @ KADIYAN RAJU, S/O. MATHEW,
... Petitioner
2. BAIJU @ BAIJU ANNAN S/O. VARGHESE,
3. RATHI @ RATHEESH S/O. KARUNAKARAN,
4. SUDHI S/O. BALAN, VALIYAPARAMBIL HOUSE,
5. BAIJU @ THATHA BAIJU S/O. KUTTAN,
6. SHAJU S/O. BABY, ATHIPPARAMBIL HOUSE,
7. JAISON @ VELLA JAISON S/O. KOCHAPPAN,
Vs
1. STATE OF KERAL, REPRESENTED BY THE
... Respondent
For Petitioner :SRI.P.G.SURESH
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice V.RAMKUMAR
Dated :01/12/2009
O R D E R
V. RAMKUMAR, J.
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Crl.Appeal.No.1427 of 2003
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Dated this the 1st day of December, 2009
JUDGMENT
In this appeal filed under Section 374(2) Cr.P.C, accused Nos.1,2,4 to 6,10 and 12 in S.C. No.284 of 1999 on the file of the Addl. Sessions Judge Fast Track-II(Adhoc), Thrissur, challenge the conviction entered and the sentence passed against them for offences punishable under Sections 143, 148, 323, 324, 325 and 307 read with 149 IPC.
THE PROSECUTION CASE
2. The case of the prosecution can be summarised as follows:-
On the Thiruonam day in the year 1997, CW5 (Ajayan) and CW7 (Sadanandhan) along with A3 (Baijulal) (who died pending trial) were playing cards to make excessive profit out of that. In the dispute arising out of the said game, A1 to A14 formed themselves into an unlawful assembly the common Crl.Appeal.No.1427 of 2003 2 object of which was to take revenge against CW5 and others. Accordingly, A1 to A14 at about 6.30 pm on 16.09.1997 in front of the residential house of Chandran (CW4) father of CW5,CW7,PW1(Vijeendran) and bearing building No.VI/24 of Nadathara Panchayat in Polukara armed with deadly weapons such as swords, criminally trespassed into the courtyard of the said house and A1 uttering to kill PW1, dealt a blow on the right side of his head, cutting his right ear with MO1 sword, A2 cut wounded PW1 on the middle of his head with MO2 sword in the course of which CW3(Ajitha) the wife of PW1 also sustained an injury on her nose and A3 kicked CW4(Chandran) on his right leg and pushed him to the ground on account of which CW4 sustained a fracture to the bone of his right leg and the other accused persons kicked and fisted CW5(Ajayan) and PW8(Ajish) a neighbour. The accused persons have thus committed offences punishable under Sections 143, 147, 148, 447,324, 326 and 307 read with 149 IPC. Crl.Appeal.No.1427 of 2003 3
3. The 3rd accused Baijulal died before trial. He was murdered by somebody. Accused Nos.1,2 and 4 to 14 alone stood trial before the court below.
THE TRIAL
4. On the accused pleading not guilty to the charge framed 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 14 witnesses as P.Ws 1 to 14 and got marked 12 documents as Exts. P1 to P12 and 5 material objects as MOs. 1 to 5.
5. 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 Crl.Appeal.No.1427 of 2003 4 innocence.
A1 had the following to submit before the court:-
Accused persons are all BJP workers. The prosecution witnesses are members of DYFI. The witnesses have political animosity against the accused persons. Radhakrishnan, Circle Inspector of Police (CW6) has personal animosity towards the 1st accused.
One day the Police had taken him into custody from the premises of the Sessions Court. His father had filed a petition before the High Court against the Police. In that case the Police had tendered unconditional apology. At that time a threat was made that he would be falsely implicated in a case. The present case was foisted out of the said enmity and political hostility. He is innocent. The other accused persons also alleged that they were falsely implicated in this case out of political vendetta.
6. Since this was not a case of no evidence for the prosecution, the court below did not record an order of acquittal of the accused under Section 232 Cr.P.C. When Crl.Appeal.No.1427 of 2003 5 the accused were called upon to enter on their defence the accused produced Ext.D2 certified copy of the order dated 12.11.1997 of this Court in Crl.R.P.No.852 of 1997 as per which the Circle Inspector of Police, Town East Police Station, Thrissur tendered unconditional apology for the arrest of the 1st accused herein.
7. The learned Sessions Judge, after trial, as per judgment dated 21.07.2003 acquitted accused Nos.7, 8, 9, 11, 13 and 14 but convicted accused Nos.1, 2, 4 to 6 and 10 to 12 (appellants herein) for the aforementioned offences. For the conviction under Sections 143,148,323,324,325 and 307 IPC, each of the appellants was sentenced to rigorous imprisonment for 1 month, 1 year, 6 months, one year, 2 years and 3 years respectively, in addition to a fine of Rs.10,000/- each for the conviction under Section 307 read with 149 IPC. On default to pay the fine each of the defaulting accused was directed to undergo rigorous imprisonment for one year. From out of the fine amount a Crl.Appeal.No.1427 of 2003 6 sum of Rs.7,500/- each was directed to be paid to PW1 as compensation under Section 357(1)(b) Cr.P.C. It is the said judgment which is assailed in this appeal.
8. I heard Advocate Sri.P.G.Suresh, the learned counsel appearing for the appellants as well as the learned Public Prosecutor.
9. The only point which arises for consideration in this appeal is as to whether the conviction entered and the sentence passed against the appellants are sustainable or not ?
The Point:-
THE PROSECUTION WITNESSES
10. P.W.1 (CW2) (Vichitran) is one of the injured persons in the occurrence. He is not the 1st informant in the case.
11. P.W.2 (CW10) Sudhakaran is an independent eye witness. He is a resident of Polurkara and a friend of PW1. According to him he came to the house of PW1 as the Crl.Appeal.No.1427 of 2003 7 latter was going to Mysore that night. He claims to have seen the occurrence from the paramba situated to the south of PW1's house.
12. PW3(CW1) Thankamani is the mother of PW1. She is the 1st informant in this case. Ext.P1 is the First Information Statement given by her to PW11 the Sub Inspector of Ollur Police Station, at about 7.30 p.m on 16.9.1997 from her residence.
13. PW4 (CW12)(Anthony) is a witness to Ext.P2 scene mahazar prepared by the Investigating Officer. He turned hostile to the prosecution.
14. PW5 (CW14) (Gopalan) is a witness to Ext.P2 Seizure Mahazar. He has proved the recovery of MO3 from the scene of occurrence.
15. PW6 (Dr.Rafeeque of Medical College Hospital, Thrissur) proved Ext.P3 Wound Certificate of PW1 who was examined by him at 7.45 p.m on 17.9.1997. the alleged cause stated to the Doctor was the following:- Crl.Appeal.No.1427 of 2003 8
" "
The following are the injuries noted by PW6.
"Incised wound extending from right Zygotic region involving right pinna extending up to neck 15 cm below mastoid. Wound is one inch deep. 7 cm cut on scalp mid line. 3 to 5 cm lacerated wound on temporal region."
16. PW7 (Dr.Shibu Abraham, Lecturer in Ortho, Medical College Hospital, Thrissur) proved Ext.P4 Wound Certificate of Chandran (CW4) husband of PW3. The said doctor examined CW4 at 8.30 p.m on 16.9.97 with the complaint that he was assaulted by many people. The injury noted was a fracture of 2nd metatarsal of right feet. PW7 also proved Ext.P5 Wound Certificate pertaining to CW5 (Ajayan) who is one of the brothers of PW1. The doctor who had examined CW5 was Dr.Koshy George(CW24) was not available and his handwriting and signature were familiar to PW7. CW5 was examined by Dr.Koshy George at 8 p.m on 16.9.97 and the history stated was alleged assault at Crl.Appeal.No.1427 of 2003 9 about 7.15 p.m on 16.9.1997.
17. PW8 (CW6) Ajish is another injured witness. He is also a resident of Polukara and was allegedly visiting PW1 who was going to Mysore that night. He was allegedly returning from underneath the Banyan tree where they used to play the game of playing cards.
18. PW9 (CW15) (Sathyajith) was an attestor to Ext.P6 seizure mahazar dated 18.9.1997 as per which MO1 sword and MO1(a) sheath were recovered by PW11 at 5.15 p.m consequent on the confession made by A1.
19. PW10(Baiju)(CW16) was cited to prove the recovery of MO5 blood-stained shirt of A8 as per Ext.P8 Mahazar prepared by PW11. However, this witness turned hostile to the prosecution.
20. PW11(Chakunni) is the Sub Inspector of Police, Ollur Police Station. He recorded Ext.P5 First Information Statement of PW3 from her house at 7.30 pm on 16.9.1997 and also took into custody MO3 sword which was lying at Crl.Appeal.No.1427 of 2003 10 the scene of occurrence. It was this officer who recovered MO1 sword and MO1(a) sheath as per Ext.P6 Mahazar pursuant to the confession of A1.
21. PW12 (M.R.Maniyan) (CW27) was the Circle Inspector of Police who questioned A2 and on the strength of his confession recovered MO2 sword as per Ext.P11 search list. He had sent Ext.P11 search memorandum prior to the search of the house of A2.
22. PW13 Baby (CW18) was a witness to Ext.P11 search list prepared for the recovery of MO2 sword from A2. He turned hostile to the prosecution.
23. PW14(Joby)(CW17) was a witness to Ext.P11 search list. He also turned hostile to the prosecution.
EYE WITNESSES' ACCOUNT
24. Out of 14 witnesses examined by the prosecution, PWs 1 to 3 and 8 are the occurrence witnesses of whom PWs 1 and 8 are the injured. The testimony of PW1 who was the main target of attack and who sustained the graver Crl.Appeal.No.1427 of 2003 11 injuries is to the following effect:-
He is a goldsmith by avocation. He belongs to Polukkara. About five months prior to the occurrence, he and his wife Ajitha (CW3) had gone to Mysore for treating their deaf and dumb daughter. They came home to the native place in connection with onam. The occurrence took place on 16.09.1997 which was the third onam day. The time of occurrence was about 6.30 p.m. In their house at Polukkara, his father Chandran (CW4), mother Thankamony (PW3) and brothers Sadanandan (CW7), Ajayan (CW5), himself, his younger brother Vinod are the inmates. Besides them, the wives of his two elder brothers are also residing in that house. PW1, his elder brother Ajayan (CW5) and neighbour Ajeesh (PW8) were engaged in pleasantries in the front varandah of their house. He was supposed to return to Mysore in the bus starting at 9.30 in the night.
His parents were standing in the front courtyard. Their house is facing west. At that time, about 10 or 11 assailants Crl.Appeal.No.1427 of 2003 12 from west came running to their house. They were in a belligerent mood. As soon as they came, Byju Lal (A2) kicked his father Chandran (CW4) on his right leg and his father fell down. Byju Lal is now no more since he was murdered by somebody. As soon as his father fell down, PW1 and others went to the rescue of their father. At that time, A1 to A4 took out this swords which they had hidden under their shirts. He knows all those four accused persons. Seeing the weapons, he got frightened and ran towards the back side of the house through the southern portion of the house. The four persons who are armed with swords(A1to A4), chased him. Immediately behind him was A1 Raju. While running for his life, A1 cut him with MO1 sword on his right ear resulting in a portion of the pinna shearing from its position and dangling. From the back side of the house, he ran eastwards. After jumping over the water channel, he fell into the yam cultivation( ). At that time, A4, A3 and others fisted and kicked him. Crl.Appeal.No.1427 of 2003 13 (witness identified A5, A6 and A8 also) His mother (PW3) and sister Latha (CW8) came to his rescue. At that time, the assailants withdrew from the scene. He was carried to the front portion of the house and made to see there. His wife also came to console him and attended on him. At that time, suddenly A2 emerged there with a sword and cut him on the head twice. One of the blows struck the nose of his wife who sustained an injury to her nose. The sword wielded by A3 was lying on the ground. All the assailants then ran towards the west. Thereafter, PW8 and PW1's brother Ajayan (CW5) came there. The leg of PW8 was seen injured. There was an abrasion on the leg of CW5 as well. His father was complaining of pain at the ankle. Somebody took them to the hospital. A1 had cut him on the right ear by shouting that he will kill him. Sometime prior to the occurrence, there was some quarrel among his brother Ajayan (CW5), (PW8) and few others who were playing cards. The occurrence took place pursuant to the said Crl.Appeal.No.1427 of 2003 14 incident. He had given a statement to the police. MO1 was the sword along with its sheath wielded by A1. MO2 was the sword used by A2. The bigger sword which was lying on the ground at the rescue of crime was MO3. Altogether five persons including him were injured in the occurrence. It is not correct to say that the occurrence took place at 7.15 p.m. or that darkness had set in from 5.30 onwards. All the five injured persons were taken to the hospital together. He might have told the doctor that identifiable persons came to his house and cut him. He cannot remember what he is told the doctor since his mental condition at that time was very precarious. It was not even sure whether he would survive or not. The majority of improvements on the rear side of his house are coconut trees. The distance of the yam cultivation would be around 150 metres from the house. The accused persons used to come to Polukkara even before. They came to his house only on the date of occurrence. He does not know what Crl.Appeal.No.1427 of 2003 15 happened at the place where cards were played. He does not know the persons with whom Ajayan and PW8 picked up quarrels. The first cut was received by him while he was running towards northern direction by the side of his house. After running northwards, he ran towards the east. It was at a point on the eastern side of the house that he received the first cut on the right ear. The second cut was received by him from the front portion on the western side of the house. He does not know whether himself and his family members are sympathisers of Marxist party. He also does not know whether there used to be clashes between the Marxist and the R.S.S people in that locality since he was in Mysore. He does not know as to how his brother Ajayan and neighbour PW8 sustained injuries. He has not shown the assailants to the police nor had the police shown them to him. He had told the doctor that identifiable persons had done this to him. All the four accused persons were wielding swords. He had told the police that A1 to A4 had Crl.Appeal.No.1427 of 2003 16 chased him and it was while running that he was cut on his ear from behind. When his mother and sister came, the assailants had withdrawn. Thereafter, when he was carried to the western side of the house, the assailants re-appeared there and it was while his wife was attending on him that he was cut again with MO2 sword which had struck his wife's nose as well. He sustained two cut injuries on his head. It is only for the past one year that he is a member of the Marxist party. He does not know whether the accused are B.J.P - R.S.S people. Even when the swords were shown to him by the police, there was blood marks on them. It is not correct to say that it was dark at the time of occurrence. It is also not correct to say that he was giving the names of persons as dictated to him by the party people out of political enmity.
25. P.W.2 (Sudhakaran) who is also a goldsmith by avocation is a resident of Polookara. He is a friend of P.W.1 for the past 21 years. The main part of his Crl.Appeal.No.1427 of 2003 17 testimony is as follows:-
The occurrence took place on the third onam day. When he reached P.W.1's house between 6 and 6.30 p.m. the assailants had collected there armed with weapons and so he did not go near them. Then he saw Ajayan (CW5), Sadanandan (CW7) and Ajeesh (P.W.8) running and P.W.1 also running behind them.
A1, A2 and A4 who were armed with weapons chased them shouting that they will kill him. Then A1 cut P.W.1 on his right ear and the ear lobe was cut and a piece was dangling. P.W.1 ran and fell in the yam cultivation. A1, A2 and A4 fisted P.W.1 who was lying in the yam cultivation. P.W.1 was carried to the front courtyard by his mother and sister. His wife came and sat beside him. By that time A2 suddenly emerged with a sword in his hand Crl.Appeal.No.1427 of 2003 18 and cut P.W.1. In that blow the sword struck the nose of P.W.1's wife causing an injury. By the time people gathered there the assailants made good their escape. Sadanandan (C.W.7), Ajesh (PW8) and Vadakkan Sathyan were the persons who came there. There was an injury on the leg of P.W.8 and PW8 told him that it was sustained with the sword of A3. PW2 also identified A12, A6 and A5 also among the assailants. When he went to the house of P.W.1 on that day besides the inmates of the house, there were 5 to 8 persons. He is a Marxist sympathiser for the past 20 years. He was present when P.W.3 the mother of P.W.1 gave statement to the police. After the occurrence he hired a car and took the injured persons to the hospital, He spent the whole night in the hospital. P.W.1's brother Ajayan (CW5) , Crl.Appeal.No.1427 of 2003 19 Ajitha and Ajeesh (P.W.8) were taken to the hospital. Chandran, the father of P.w.1 was not taken to the hospital. All the four injured persons were examined by the doctor. He was present when P.w.1 was examined by the doctor. P.W.1 was in his senses and was able to speak. P.W.1 also told the doctor about the injuries. The house situated to the south of P.W.1's house is that of one Pappan Sankaran . He does not know whether the said Sankaran was at home at that time. He had got into the paramba of the said Sankaran. There are trees like coconut, areacanut, jack fruit etc, in that paramba. It is possible to see the occurrence from the house also. He had remained in that paramba for 10 minutes. At that time, neither P.W.1 nor his family members had seen him. Besides the house of Sankaran, there are Crl.Appeal.No.1427 of 2003 20 several houses in that locality. The house of P.W.1 is facing west. It was a forceful cut. The assailants chased PW1 for about 200 metres. His wife and sister had run behind the assailants. It was seeing the sword that they got scared and ran. C.W.7 and others were running along the side of the house. After P.W.1 was brought the assailants came back. The parents of P.W.1 were on the western side of the house at the beginning of occurrence. Ajayan and P.W.8 had run along with Sadanandan. It was not dark at the time of occurrence. It is only by 7.15 that it would become dark. It was the Sub Inspector who recorded the statement of the mother of P.W.1.
He does not know whether P.W.1 was the Marxist worker. He is a friend of P.W.1 for the past 21 years. He is not telling falsehood in Crl.Appeal.No.1427 of 2003 21 view of his friendship with P.W.1.
26. P.W.3 (Thakamani) is the mother of P.W.1. She is the first informant as well. At the time of her examination of 20-12-2003 she was aged 62 years. Her deposition is to the following effect:-
She is a resident of Polookkara. The occurrence took place at 6.30 p.m. on the 3rd Onam day. Herself and her husband (Chandran - CW4) were standing on the front courtyard. Her sons Sadanandan (CW7), Vichithran (P.W.1), Ajayan (CW5) and her neighbour Ajeesh (P.W.8) were talking in the front veranda. While so, some persons came from the west armed with sticks and swords.
There were about 10-14 assailants. Byjulal
kicked her husband on his leg and he fell
down. Byjulal is now no more. When she
cried aloud her sons came to the courtyard. At Crl.Appeal.No.1427 of 2003 22 that time Byjulal (A3), Rethi (A4), etc, took out their swords. Two more persons took out the swords hidden inside their shirt. Seeing this, her sons got frightened and they started running. The four assailants chased them. She and her daughter also went behind them in a frightened mood. When she reached there her son P.W.1 was lying in the yam cultivation situated near the water channel and about 5 or 8 persons were kicking and beating him. They include A6, A2, A4 and A1. She does not remember others as she was in a perplexed mood. When she and others raised a hue and cry the assailants withdrew from the scene. She and her daughter carried P.W.1 to the foot steps on the western side of the house and made him sit there. By that time P.W.1's wife Ajitha also came to his Crl.Appeal.No.1427 of 2003 23 rescue. Suddenly three or four assailants who had withdrawn earlier emerged there. A2 cut P.W.1 on the head. His wife sustained an injury on her nose. She does not know as to what happened thereafter. The assailants went towards the west. P.W.1's right ear was dangling. The Police came and she uttered something. Ext.P1 is that statement. She does not know as to what all matters were stated to the police. She was not knowing whether her son was alive and what happened to her husband. She was completely put out. It is not correct to say that the statement given to the police was in accordance with the advice given by the local Marxist leaders. No party men had come there. She does not remember whether she had seen A3 alone taking out the sword from inside his shirt. The occurrence Crl.Appeal.No.1427 of 2003 24 was from the yam cultivation. P.W.1 was at the extreme rear. All others had run together. She herself and her daughter had run behind them. While P.W.1 was lying after sustaining the cut he had told that he was cut by Raju (A1). He again repeated the same while he was brought from the yam cultivation. Her son Sadanandan plays cards. She does not know whether on the date of occurrence he had gone for playing cards or whether he had picked up any quarrel. She has not given Ext.D1 statement as per which she was told that Byjulal , Rethi, Kadiyan Raju, Rethilal, Thatha Baiju, Sudhi, Vettikka Raju, Kannan, Dixon, Jobby and Shaju etc. are the persons who had come to her courtyard and assaulted her children. When people started gathering Byjulal (A3) dropped the sword on Crl.Appeal.No.1427 of 2003 25 the courtyard and ran westwards. Her son was not able to speak properly from the hospital. His speech was incoherent. When she saw P.W.1 his ear was hanging and it was bleeding. She does not remember the occurrence fully. The occurrence was at 6.30 p.m. and not at 7.15 p.m. There was sufficient light. The person residing in the southern house is Sankaran who is the younger brother of her husband. The inmates of Sankaran's house were in that house on that day. There is only one house situated close to her house. There are only a few houses in that area and she did not see whether any of them had witnessed the occurrence. Ajitha was in the hospital and she had six stitches.
27. The only other eye witness (P.W.8) was also injured . He along with C.W.5 (Ajayan) were there beneath the Crl.Appeal.No.1427 of 2003 26 banyan tree where people were playing cards. while the card game was going on, A3 and A4 insisted that they also should be allowed to play the game. P.W 8 and others refused. Then A3 and A4 asked them to stop the game. They discontinued the game and disbursed. P.W.8 along with C.W.5 then went straight to the house of P.W.1. They were sitting in the front portion of P.W.1's house. The assailants came there. The parents of P.W.1 were also there. A3 came and kicked C.W.4 (Chandran) on his leg. The bone cracked. C.W.4 fell down. P.W.8 and others went to the rescue of Chandran. At that time A1 and A2 took out the swords which they had concealed in their shirts. Seeing this, all of them ran. P.W.8 was in the front and behind him the brother P.W.1 was running. P.W.1 was the last man. The assailants were chasing them from behind. There were three or four persons. When he looked back, he saw A1 cutting P.W.1 from behind. In the meanwhile P.W.8 stumbled upon the ridge and fell down. At that time A3 and Crl.Appeal.No.1427 of 2003 27 others came running and he sustained an injury on his leg with the tip of the sword in their hands. Seeing that they were fast approaching he got up and ran away. When he reached home after some time he saw P.W.1 had been wounded. P.W.1 told him that A2 had cut him near his ear. They went to the hospital. He had no serious injury which required treatment. MO1 is the weapon used by A1 (Raju). His house is about 200 metres away. P.W.1 was going to Mysore that day and the child of P.W.1 was sick that was the reason why he went there. By the time he returned after the occurrence it was about 7.15 p.m. and darkness had set in. He had run for about 1 km. When he returned P.W.1 was in his senses and was able to walk and speak. There are 7 persons residing on the four sides of P.W.1's house. He knows those neighbours. When he returned, neighbours like Subramonian, Suran, Asokan and Raju were in his house. He does not know whether they are Marxist party workers. That was a card game by Crl.Appeal.No.1427 of 2003 28 name 56. There are altogether 8 players. There was a quarrel between those 8 persons. P.W.1 and his brother were also there. That was at about 5 p.m. The water channel is to the east of the yam cultivation. There is no water channel to its west. P.W.1 sustained the injury from the yam cultivation. It may be about 100 or 150 metres away from the house. The persons who picked up quarrels in the card game were Byju and Ratheesh (A3 and A4). The total extent of P.W.1's property would come to 3-4 acres. There are houses of Sankaran and Kesavan in the neighbourhood.
ARGUMENTS ON BEHALF OF THE APPELLANTS
28. The learned counsel appearing for the appellants made the following submissions before me in support of his fervent plea for acquittal of the appellants:-
A)The specific case of the prosecution is that the Crl.Appeal.No.1427 of 2003 29 occurrence took place at 6.30p.m when there was sufficient light. According to PWs.1 and 2, the occurrence was between 6 and 6.30 p.m and according to PWs.3 and 8 occurrence was at 6.30 p.m. But in Ext.P1 First Information Statement the time of occurrence is stated as 7.30 p.m. There has been a deliberate attempt to prepone the occurrence so that the failure to offer an explanation regarding the source of light could be explained away. There is absolutely no evidence adduced regarding the source of light in which the witnesses had seen the occurrence. From Ext.P5 wound certificate pertaining to Ajayan (CW5), it can be seen that the alleged assault was at 7.15p.m when it would be dark.
The fact that the occurrence took place after dark is also indicated by the testimony of PWs.1 and 8 who say that MO1 sword was shining.
B) The testimony of PW3 (Thankamani) cannot be Crl.Appeal.No.1427 of 2003 30 believed for a moment. Going by Ext.P1 First Information Statement given by her to PW11, it would appear as though she had witnessed the entire occurrence right from the beginning till the end. Her case in Ext.P1 First Information Statement is that it was A3 who cut PW1, CW3 and PW8. But while in the witness box PW3 does not mention about this part of the occurrence as stated in Ext.P1. The testimony of PW3 is fraught with irreconcilable contradictions, omissions and exaggerations. PW3 has denied Ext.D1 contradiction in Ext.P1 First Information Statement wherein the names of A3, A4, A1, A8, A6 and A5 and one Nellikka Baiju, A11, A7,A9 and A10 had been mentioned. But in Court she deposed that she did not mention their names. It will be unsafe to rely on the testimony of such a witness to confirm the conviction against the appellants.
C) While according to PW1 and PW8, A1 to A4 did not Crl.Appeal.No.1427 of 2003 31 initially reveal the weapons which they were hiding in their shirts, according to PW3 a few persons armed with sticks and swords came there from the western side.
D) The testimony of PWs.1,2 and 8 also suffers from contradictions, omissions and embellishments. PWs.1,2 and 8 are all goldsmiths interested in supporting the prosecution at any cost. PW2, who claims to have seen the occurrence from the paramba situated to the south of the house of PW1 could not have seen the occurrence since there were so many trees preventing vision. His presence at the place itself is doubtful. These witnesses who are all active workers of the BJP-RSS in that locality were falsely implicating the appellants from out of political antagonism.
E) The motive put forward by the prosecution is also totally unbelievable. In the final report what is Crl.Appeal.No.1427 of 2003 32 alleged is that the animosity was on account of the dispute at the place where cards were played at 5 p.m on the same day. What exactly was the dispute is not stated. While according to PW1 he was not present at the site below the Banyan tree where the cards were being played, the evidence of PW8 would go to show that PW1 and his brother were also there at the place where the card game was played. According to PW8 while they were playing cards A3 and A4 came there and asked to include them also in the game and they were not allowed. Thereupon, they asked the players to stop the game and the players discontinued the game and went away. At any rate, there is no evidence to show that any of the accused had any motive against PW1 or others so as to proceed to their house armed with deadly weapons and mount an attack against the members of the family. F) PWs.1,2,3 and 8 did not have previous acquaintance Crl.Appeal.No.1427 of 2003 33 with any of the assailants . Hence, dock identification for the first time in court after 6 years of the occurrence is absolutely valueless. Even in Ext.P1 First Information Statement what PW3 had stated is that the assailants are identifiable by sight. Such a woman could not have identified the assailants for the first time in court after 6 years.
G) Ext.P2 Scene Mahazar shows that the house of one Sankaran S/o.Kunjappan is situated only 18.30 meters to the south-east of the house of PW1 and the house of one Subramanian s/o.Velayudhan is situated at a distance of 11.55 meters to the north-west of the house of PW1 and the house of one Shaju s/o.Kesavan is situated at a distance of 23.10 meters to the north of the house of PW1, the house of Subran, son of Kesavan is situated at a distance of 25 metres further north. PW3 deposed that Sankaran residing in the southern house was available in his house. In spite of Crl.Appeal.No.1427 of 2003 34 that none of the nearby residents has been cited as witnesses to the occurrence. Latha (CW8) who was in the company of PW3,Ajitha, (CW3) who was injured during the 2nd attack, Chandran (CW4) who sustained a fracture on his right leg, Ajayan(CW5) another injured witness, Sadanandhan CW7 and 2 independent witnesses Sathyan (CW9) Anil Kumar (CW11) etc. have all been kept out of the witness box. Instead, persons who were either closely related to PW1 or his close friends alone have been examined as witnesses to the occurrence.
H) Eventhough PW1 claims to have known the assailants even before the occurrence what was stated to the doctor at 7.45 p.m on 16.9.1997 as evidenced by Ext.P3 wound certificate is that a person identifiable by sight came to his house and cut him. Failure to mention the names of the assailants to the doctor is a serious flaw.
Crl.Appeal.No.1427 of 2003 35 I) Eventhough, according to the prosecution witnesses, 4 of the assailants were armed with swords, 3 swords alone have been produced before court. MO1 is the sword which was allegedly used by A1 and seized as per Ext.P6 mahazar in which it is recited that there were blood stains on the sword. Likewise, MO5 is the blood stained dress worn by A8 and recovered as per Ext.P8 mahazar. MO2 sword was recovered by PW12 as per Ext.P11 seizure mahazar pursuant to the confession by A2. The said sword is described as smeared with blood. PW1 has admitted that one of the swords shown to him by the Police had blood smears. PW11, the Investigating Officer has admitted that the swords and MO5 dress were not sent for chemical examination to confirm the presence of blood on those material objects. This is also a serious flaw, the benefit of which should undoubtedly go to the accused.
Crl.Appeal.No.1427 of 2003 36 J) The alleged confession made by A1 to PW11 is neither extracted in Ext.P6 Mahazar nor deposed to by PW11 while giving evidence. Likewise, the alleged confession of A2 is neither extracted in Ext.P11 search list in the words of A1 nor was it deposed to by PW12. Hence, the recovery under Exts.P6 and P11 do not fall under Section 27 of the Evidence Act. That apart, the confessions of A1 and A2 recited in third person in Exts.P6 and P11 fall short of the authorship of concealment. A1 and A2 had not stated that they had concealed the weapons at the respective places mentioned. Hence the recovery of MO1 and MO2 swords does not fall under Section 27 of the Evidence Act and cannot be relied on.
JUDICIAL EVALUATION
28. I am afraid that I cannot agree with the above submissions. It is true that all the prosecution witnesses Crl.Appeal.No.1427 of 2003 37 mentioned that the occurrence took place either at 6 pm or 6.30 pm, when there would have been sufficient light for each of them to witness the occurrence. But going by Ext.P5 wound certificate pertaining to Ajayan(CW5) it is stated that the assault was at 7.15 pm. As per the testimony of PW11 (the Sub Inspector) he reached the place of occurrence within 10 mts of getting information about the occurrence and the time of occurrence stated by PW3 was 7.30 pm. If so, it is reasonable to infer that the occurrence might have taken place between 7.15 and 7.30 p.m. It is also true that none of the prosecution witnesses has deposed about the presence of light at the scene of occurrence. Except suggesting that it was dark, nobody was asked by the defence as to whether there was any source of light enabling them to witness the occurrence. It is pertinent to note that if the assailants had enough light to identify their targets and inflict injuries on them using deadly weapons carried by them, it is futile for the defence Crl.Appeal.No.1427 of 2003 38 to contend that it was dark and there was no sufficient light enabling the witnesses to see and identify the assailants. In State of Uttar Pradesh v. Nahar Singh ( 1998 SCC (Crl)
850) the Apex Court observed that when the light was enough to enable the assailants to identify their victims it could not be said that the light was not enough to identify the assailants. In Kalika Tiwari v. State of Bihar (1997 SCC (Crl)600) the Apex Court observed that the visibility capacity of urban people who are acclimatised to fluorescent lights or incandescent lamps is not the standard to be applied to villagers whose optical potency is attuned to country-made lamps. The witnesses in this case are all rustic witnesses and the assailants are also known to them, though not by name. In fact, PW1 has stated that he had seen all of them at Polukara and they were coming to his house for the first time only on the date of occurrence.
30. There is a classic observation by the Supreme Court in Kedar Singh and Others v. State of Bihar (1998 Crl.Appeal.No.1427 of 2003 39 SCC Crl.907) where the incident took place at 8 p.m. This is what the Apex Court observed:-
"Even on a full dark night there is never total darkness. Identification is possible through shape of body, clothes, gait, manner of walking etc. and also by voice."
The assailants in this case are not strangers to the eye witnesses and they were all used to be traditional native habits. Hence, the identification of the assailants by the prosecution witnesses cannot be said to be faulty.
31. No doubt the testimony of PW3 is full of contradictions, as rightly contended by the learned counsel for the appellants. Eventhough, she has narrated the entire occurrence in Ext.P1, F.I.Statement, she has not stated in Ext.P1 that she had seen the entire occurrence. The source of her information about the occurrence can be hearsay as well. For setting the law in motion, one does not have to be an occurrence witness. PW3 did not narrate Crl.Appeal.No.1427 of 2003 40 before court most part of the occurrence in which PW1 sustained cut on his right ear. Evidently she has not seen that part of the occurrence. It must be remembered that it was without any hint or indication that more than 10 assailants suddenly barged into the compound of PW1 armed with deadly weapons. PW3 and her husband were standing in the courtyard when the assailants made their entry. As observed by the Apex Court, every person who witnesses a ghastly crime reacts in his own way. Some may be stunned; some become speechless ; some stand rooted to the spot; some become hysteric and others start wailing. Some start shouting for help. Still others run away to keep themselves as far removed from the spot as possible. Still others rush to the rescue of the victim, even going to the extent of counter-attacking the assailants. None of these witnesses can be said to be unbelievable merely because he or she reacted in a particular way. Everyone reacts in his own specific way. There is no set rule of natural reaction. Crl.Appeal.No.1427 of 2003 41 To discard the evidence of the witnesses on the ground that they did not react in any particular manner is to appreciate evidence in a wholly unrealistic and unimaginative way. See Rana Pratap and others v. State of Haryana (AIR 1983 SC 680)
32. When the assailants in this case made their entry into the compound towards dusk, PW3 and her husband and other family members were in relaxed mood. Seeing the sudden emergence of the assailants she must have been dumb founded and stunned. The occurrence was then taking place in quick succession and PW1 cannot be expected to recall each of the sequence of events, particularly when she was giving evidence 6 years after the occurrence. Even if she were physically present at the spot it may not be possible for her to register each and every episode, retain the same and recapitulate either to the police officer sooner or later or depose before court years thereafter. Hence, the testimony of PW3 cannot decide the Crl.Appeal.No.1427 of 2003 42 fate of the prosecution in this case.
33. PWs.1,2 & 8 who are the other eye witnesses to the occurrence have given a credible account of the occurrence. No doubt, there are contradictions, omissions and exaggerations in their testimony as well. Such contradictions, omissions, exaggerations, embellishments etc. are bound to happen even in the case of the most truthful witnesses. As long as those aspects do not affect the main core of the testimony, such contradictions, omissions, exaggerations and embellishments are liable to be discarded by the courts while appreciating the evidence. The testimony of these 3 witnesses clearly shows that at about day break on that day, more than 10 assailants suddenly barged into the compound of PW1. Among them A2 first set upon Chandran, the father of PW1 by kicking on his right leg. The blow was so heavy that he fell down sustaining a fracture of 2nd metatarsal of right foot as evidenced by Ext.P4 wound certificate proved by PW7. Crl.Appeal.No.1427 of 2003 43 When PW1 and others went to the rescue of their father, A1 to A4 took out the deadly swords which they were hiding in the shirts worn by them. Thereupon sensing danger PW1, his brothers and others including PW8 who was a neighbour talking with them, took to their heels. PW8 was in the front and PW1 was the last man. The assailants, mainly A1 to A4 chased them with the deadly weapons in their hands. PWs.1 and 8 and others were taking a course towards the yam cultivation on the eastern side of the house. On the way A1 cut PW1 on the right ear resulting in PW1 sustaining a bleeding injury. His right pinna was cut and the piece of the pinna was dangling. PW1 after receiving the cut ran further and he jumped over the water channel and fell into the yam cultivation, which going by Ext.P2 scene mahazar, is situated 78.80 metres away at the back of the house. When the mother(PW3) and the sister (CW8) of PW1 came to the spot raising a hue and cry, the assailants withdrew from the spot . Wounded PW1 was Crl.Appeal.No.1427 of 2003 44 brought to the front portion of the house and made to sit there. His wife Ajitha(CW3) came and started bringing succor to him. It was at that time that suddenly A2 and others emerged at the spot and mounted a fresh attack on PW1 again by A2 cutting him with MO2 sword on the head twice in the course of which the tip of the sword hit the nose of his wife Ajitha(CW3). She also sustained an injury. When people started pouring in, the assailants made good their escape through the western side after A3 leaving MO3 sword at the place of occurrence and it was subsequently seized by PW11, the Investigating Officer at the time of preparing Ext.P2 scene mahazar. This aspect of the occurrence is amply proved by the testimony of PW1, 2 and
8.
34. It is true that the prosecution has not examined all the injured persons and all the persons who were witnesses to the occurrence. The prosecution has no duty to examine each and every eye witness and each and every injured Crl.Appeal.No.1427 of 2003 45 person. It is a discretion available to the Public Prosecutor . When the entire occurrence has been unfolded through the testimony of PWs,1,2,3 and 8, the Public Prosecutor in charge of the case might have used his discretion by not examining the rest of the injured persons. It must be remembered that PW1 is the person who sustained the major injuries as revealed by Ext.P3 wound certificate. Hence the prosecution has chosen to examine him. It cannot be said that the discretion was improperly exercised.
35. Failure by PW1 and others to mention the name of the assailants to the doctor also cannot be taken advantage of by the defence to contend that the prosecution case is to be thrown out. Failure by the injured to mention the name of the person who stabbed him does not mean that he was not aware as to who stabbed him. It is a matter of common knowledge that such an entry in the wound certificate does not necessarily amount to a statement. At Crl.Appeal.No.1427 of 2003 46 that stage, the doctor was required to fill up the columns in the wound certificate in a normal manner and it was not the duty of the doctor to enquire from the injured about the actual assailants. Doctor's enquiry is confined to the question as to how the injuries namely the weapon used etc. The paramount duty of the doctor is to save the patient. He is not concerned about who committed the offence etc. (See Venkaiah v. State of Andra Pradesh (1985 SC 1715) and State of Kerala v. Kilakkatha Parambath Sasi and others (2004(2)KLJ606).
36. It is true that neither the weapons nor MO5 dress of A8 were sent for chemical examination to confirm whether they were smeared with human blood. When the occular and other evidence in the case clearly proves that the injuries were caused with the weapons produced, omissions to send the weapon to the serologist to determine whether the blood on the weapon was human blood or not Crl.Appeal.No.1427 of 2003 47 cannot put the prosecution case out of court. (See the last portion of the decision in Ananta Mahanto v/s.State of Orissa- AIR 1979 SC 1433). Even if the weapons were sent it could be argued that the serological test could not locate the origin of the blood or the owner of the blood. There can be no end for such exercise. At the most, as observed by the Apex Court in Surendra Paswan v. State of Jharkand (2003(12)SCC 360) the failure to send the weapon to the serologist may be a defect in the investigation, but it does not corrode the evidentiary value of the eye witnesses. Moreover this is not a flaw in the investigation which the defence can take advantage of (See State of Karnataka vs. Yarappa Reddi - 1999(3) KLT 456 (SC).
37. It may be out of ignorance that the exact confession statements of A1 and A2 have not been extracted in Exts.P6 and P11. PWs.11 and 12 the investigating officers also did not depose before Court about the confession of A1 and A2 in their Crl.Appeal.No.1427 of 2003 48 own words (that is ipsissima verba). But that alone cannot render the evidence of recovery inadmissible. However, in the absence of a statement by A1 and 2 that it was they who had concealed the weapons at the respective places from which the weapons were recovered, the defence can legitimately contend that this statement cannot fall under Section 27 of the Evidence Act, for want of authorship of concealment. Even if those statements would not fall under Section 27 of the Evidence Act, the conduct of A1 and A2 leading the Police party to the respective places and pointing out the weapons will certainly fall under Section 8 of the Evidence Act and can constitute yet another piece of incriminating evidence (Prakash Chand v. State (Delhi Administration (AIR 1979 SC 400) Raveendran v. State (1989(2) KLJ 534)
38. After a careful evaluation of the oral and documentary evidence in the case, I have no hesitation to conclude that there was an unlawful assembly consisting of A1 to A4 and others formed with the common object of committing offences punishable under Sections 323,324,325 and 307 IPC and all the members of the unlawful assembly committed rioting, armed Crl.Appeal.No.1427 of 2003 49 with deadly weapons, such as swords etc. But at the same time except statement by PW1 to the effect that A5,A6 & A8 were also present among the assailants, there is nothing to show that those persons shared the common object of the said assembly or that they committed any overt acts. PW2 added the name of A12 also as one of the persons who was present. PW8, the other eye- witnesses has not implicated anybody specifically except A1 to A3. PW3 has implicated A1 to A4 and A6. Hence, it may not be safe to convict A5,A6,A10 and A12 mainly for their alleged presence for which also there is no unanimous testimony. But the existence of an unlawful assembly though not with A5,A6,A10 and A12 as members was definitely there. Accordingly, I do not think the conviction recorded against A5,A6,A10 and A12 is sustainable. Those accused are, therefore, found not guilty of the offences punishable under Sections 143, 145, 147, 148, 323, 324, 325 and 307 read with 149 IPC and are acquitted of the same. They shall be set at liberty forthwith. Since A3 died pending trial, the charge against him stands abated. In the case of accused Nos.1,2 and 4 who are appellants 1 to 3, they were rightly convicted by the court below Crl.Appeal.No.1427 of 2003 50 for the aforementioned offences. The sentence imposed on them also cannot be said to be harsh or disproportionately excessive. Accordingly, the conviction entered and sentence passed against Accused Nos.1,2 and 4 are hereby confirmed.
In the result, this appeal is allowed in part acquitting accused Nos.5,6,10 and 12, but confirming the conviction entered and the sentence passed against accused Nos.1,2 and 4. Dated this the 1st day of December, 2009.
V. RAMKUMAR, JUDGE sj/rv/ani