Kerala High Court
Edakkandi Dineshan @ Pilipp Dineshan vs State Of Kerala - Rep. By on 12 April, 2011
Author: N.K.Balakrishnan
Bench: Pius C.Kuriakose, N.K.Balakrishnan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL.A.No. 1040 of 2006()
1. EDAKKANDI DINESHAN @ PILIPP DINESHAN,
... Petitioner
2. PANNIYODAN SIVADASAN @ SIVATTY,
3. EDAKANDI ASHOKAN @ KOKKODAN ASHOKAN,
4. K.V.MAHESH, S/O. SURENDRAN,
5. K.V.JITHESH,S/O. SURENDRAN,
6. PUTHANPARAMBATH NISHANTH, S/O. KUMARAN,
7. UCHUMMAL SATHYAN, S/O. RAGHAVAN,
8. NADUKKANDY BIJU, S/O. NANU, 28 YRS,
9. MALAYANANDI SURESH BABU @ ETTUKARAN
10. PACHAYAN SASI @ ALLI SASI, S/O. KUMARAN,
11. VELLORA PRADEEPAN @ EDUPPI PRADEEPAN,
12. NADUKKANDI RAVI, S/O. KUNHAMBOOTTY,
14. CHERUVARI PANNIYODAN SREEDHARAN,
Vs
1. STATE OF KERALA - REP. BY
... Respondent
For Petitioner :SRI.M.K.DAMODARAN (SR.)
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice PIUS C.KURIAKOSE
The Hon'ble MR. Justice N.K.BALAKRISHNAN
Dated :12/04/2011
O R D E R
PIUS C. KURIAKOSE &
N.K.BALAKRISHNAN, JJ.
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Crl.A.No.1040 of 2006 &
Crl.R.P.No.1437 of 2007
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Dated this the 12th day of April, 2011
J U D G M E N T
N.K.Balakrishnan, J.
Out of the 15 accused who faced trial, accused Nos.1 to 14 were found guilty and convicted by the learned Sessions Judge, Thalassery for offences punishable under Sections 143, 147, 506(II) and 302 IPC r/w 149 IPC. Accused Nos.2, 3, 11 and 12 were convicted under Section 148 IPC also. Besides accused No.3 was convicted for the offence under Section 5 of the Explosive Substance Act. They were sentenced to undergo imprisonment for life for the offence punishable under Section 302 IPC r/w 149 IPC. Besides, they were sentenced to undergo imprisonment for various terms for other offences mentioned above. They were also directed to pay Rs.2,00,000/- each as Crl.A.No.1040 of 2006 & Crl.R.P.No.1437 of 2007 -:2:- compensation to the legal heirs of the deceased victims. Accused No.15 was acquitted by the learned Sessions Judge.
2. The gist of the prosecution case can be stated thus :- On 1.3.2002 there was a harthal called by VHP/RSS. At about noon, there was an altercation between members of CPI(M) and RSS people at a place near Kalamandhir in Dharmadom Amsom. In connection with that harthal there were clashes during the daytime between those two factions at Dharmadom and other places. Being afraid of CPI(M) people, 11 persons including the two victims - Sujeesh and Sunil decided to stay during night near a shed situated on the bund/'chira' situated by the side of Meloor river. After midnight, at about 1 AM, while those 11 persons were on the bund, they saw about 15 persons coming from the eastern side and also about another 15 persons coming from the northern side towards the place where the aforesaid 11 persons including PW1 were lying or sitting. Crl.A.No.1040 of 2006 & Crl.R.P.No.1437 of 2007 -:3:- In the moonlight PW1 and others saw those assailants approaching towards them carrying deadly weapons. All of them were alerted, but Sujeesh and Sunil were asleep. Others rushed towards the river while the assembly consisting of the assailants inflicted fatal injuries on Sujeesh and Sunil. After a short while, the assailants left the place. PW1 and others went near the shed where they found Sujeesh writhing having been inflicted with fatal injuries. Sunil was not seen there. The body of Sujeesh was taken by PW1 and others to the road near Kalamandhir where there was a police picket. From there, the body of Sujeesh was removed to the Co-operative Hospital, Thalassery in the police jeep. The doctor (PW3) examined and pronounced Sujeesh dead. The dead body of Sujeesh was thereafter removed to the Govt. Hospital, Thalassery. PW1 - Jithesh who had accompanied the dead body to the Co-operative Hospital and thereafter to Govt. Hospital, Thalassery went to the police station and gave the First Information Crl.A.No.1040 of 2006 & Crl.R.P.No.1437 of 2007 -:4:- Statement (Ext.P1), based on which Ext.P1(a), the First Information Report was registered by PW15, the A.S.I. of Police, Dharmadom Police Station. The investigation was conducted by PW19, the C.I. of Police. After completing the investigation the charge sheet was laid against 15 accused persons.
3. The learned Sessions Judge framed charges against the accused alleging commission of offences under Sections 143, 147, 148, 341, 506(II) and 302 IPC r/w 149 IPC and also under Section 5 of the Explosive Substance Act. The accused pleaded not guilty.
4. PW1 to PW20 were examined and Exts.P1 to P22(e) were marked. Besides, MO1 to MO8(a) were also identified and marked on behalf of the prosecution.
5. When examined under Section 313 Cr.P.C., the accused contended that the prosecution case is a fabricated one and that they were falsely implicated in this case. Two witnesses were examined on their side. Including the Crl.A.No.1040 of 2006 & Crl.R.P.No.1437 of 2007 -:5:- portions of the statements of prosecution witnesses marked as contradictions, Exts.D1 to D13(c) were marked. Exts.X1 and X2, the case diaries in two crimes of Dharmadom Police Station were also got marked on behalf of the defence.
6. Learned Sessions Judge found accused Nos.1 to 14 guilty of the offences and convicted and sentenced them for the various offences as mentioned earlier. The accused were found not guilty of the offence u/s 341 IPC.
7. The accused/appellants contend that the evidence adduced by the prosecution is not credible and that the complicity of the accused was not proved by the prosecution beyond reasonable doubt. The defence put up by the accused was not properly considered by the learned Sessions Judge in its correct perspective. The evidence would show that there was shifting of place of occurrence; the place of occurrence shown in Ext.P13 plan is contradictory to the description given in Ext.P7 scene mahazar and the description of the premises mentioned in Crl.A.No.1040 of 2006 & Crl.R.P.No.1437 of 2007 -:6:- Ext.P3 inquest report. There was no proper identification of the accused as there was no proper light. That the alleged place of occurrence is surrounded by thick mangroves and that the witnesses had jumped into the river and so it was not possible for the witnesses to see the incident were not properly considered by the learned trial Judge. The evidence given by Pws.1, 2 and 4 regarding the identity of the assailants should not have been accepted by the learned Sessions Judge. As there was evidence to show that PW20 the Police Officer was informed of the incident that was sufficient to register a case but they waited till 3AM to register the F.I.R. The First Information Report was lodged only after due deliberation and consultation. The FIR was ante-timed. The delay in FIR reaching the court was not properly explained. Since the police was convinced that Ashraf, who was named in the FIR was not actually involved in the crime, it should have been duly taken note of to doubt the entire prosecution version. It should have been found Crl.A.No.1040 of 2006 & Crl.R.P.No.1437 of 2007 -:7:- that the weapons were planted by the police at certain place and so the recovery of the weapons was not in accordance with Section 27 of the Evidence Act. There is no definite finding by the court below that all the accused formed themselves into an unlawful assembly with a common object. No overt act was alleged against the accused other than accused Nos.1 to 3, 11 and 12 to find them guilty with the aid of Section 149 of IPC. There were material contradictions in the evidence given by the three witnesses who were relied upon by the learned Sessions Judge. Hence the accused/appellants contend that the conviction and sentence passed against them are unsustainable.
8. The learned senior counsel Sri.M.K.Damodharan appearing for the appellants and the learned Addl. Director General of Prosecution were heard.
9. As against the verdict of acquittal passed in favour of A15 (M.Sampath Kumar), a criminal revision - Crl.A.No.1040 of 2006 & Crl.R.P.No.1437 of 2007 -:8:- Cr.R.P.No.1437/2007 has been filed by the father of Sujeesh, one of the victims in this case. The learned counsel Sri.S.Rajeev, appearing for the revision petitioner has argued at length assailing the verdict of acquittal passed against accused No.15.
10. The following points arise for consideration:-
(i)What is the cause of death of Sujeesh and Sunil, the victims in this case?
(ii)Whether on 2.3.2002 at about 1.00 AM the accused/appellants and about 15 others formed themselves into an unlawful assembly with the common object of causing the death of Sujeesh, Sunil and others who were on the bund situated by the side of Meloor river?
(iii)Whether the accused and other persons mentioned above in prosecution of the common object of causing the death of the persons mentioned above committed rioting with deadly weapons like dagger, chopper, Crl.A.No.1040 of 2006 & Crl.R.P.No.1437 of 2007 -:9:- axe, crowbar, iron rods etc. at the time and place mentioned above?
(iv)Whether the accused/appellants in prosecution of the common object of the unlawful assembly committed criminal intimidation to the deceased and 9 other persons who were on the bund at the relevant time, by putting them in fear of death?
(v)Whether in prosecution of the common object of the unlawful assembly the accused/appellants and others, all or any of them with the intention to cause death, caused the death of Sujeesh and Sunil by inflicting fatal injuries with dagger, chopper, axe (hatchet) etc.?
(vi)Whether the accused/appellants along with others in prosecution of the common object of the unlawful assembly used (threw) a steel bomb, an explosive substance?
(vii)Whether the conviction and sentence passed against the accused/appellants are unsustainable on any of Crl.A.No.1040 of 2006 & Crl.R.P.No.1437 of 2007 -:10:- the grounds urged by the appellants?
(viii)Whether there is any illegality in the verdict of acquittal passed in favour of accused No.15-Sampath Kumar?
11. Point No.(i) :- Ext.P5 is the postmortem certificate issued by PW7 for having conducted postmortem examination at 12.05 PM on 2.3.2002 on the body of Sunil, one of the victims in this case. The following ante-mortem injuries were noted by PW7:-
"1. Incised wound of 9 x 5 cms obliquely placed over right lower chest lateral side. Fracture of 9 and 10th ribs and incised wound over supero lateral aspect of liver and pinetrating to thoracic cavity and injuring the posterior surface or ventricular wall 2.5 cm long.
2. Incised wound of 3 x 2 cms vertically placed 3 cms below the right costal margin. Small intestine protruding through the wound extending deeply to peritonel cavity injury the lower border of liver and intestine.
3. Incised wound of 3 x 1.5 x 2.5 cms tranversely placed wound extending downwards over the chest not entered into chest cavity.
4. Loss of tissue on left side of face and middle part of both lips on left side and part of cheek was slashed away Crl.A.No.1040 of 2006 & Crl.R.P.No.1437 of 2007 -:11:- and exposing the tooth and gums.
5. Lacerated wound lower lip on right side.
6. Lacerated injury 6 x 5 cms Ulnar aspect or left wrist and forearm with fractured ends of born seen through the wound.
7. Lacerated injury base of left thumb over the extensor aspect.
8. Incised wound over the thenar eminence just distal to wrist left.
9. Incised wound of 4 x 2 x 2 vertically placed on the midline over lumbar spine.
10. Incised wound of 4 x 2 cms vertically placed over left scapular region 3.5 cms depth directed downwards injuring the muscles.
11. Linear abrasion of 12 cm right upper arm over lateral aspect.
Int:Injuries :- Lung : Injury to lower lobe of lung right.
Liver : Injury to liver over the superior aspect and interior border. One litre of blood in the pleural, 0.5 litre of blood in the peritoneal cavity."
It was opined by PW7 that the death of Sunil was due to injuries caused to vital organs like liver, lung, heart and shock resulting from loss of blood. It was stated by him that Crl.A.No.1040 of 2006 & Crl.R.P.No.1437 of 2007 -:12:- injuries 1, 2 and 3 are sufficient in the ordinary course of nature to cause death of the victim. When MO1 axe, MO2 chopper and MO3 dagger were shown to the doctor and a single question was put to him, he simply stated that those weapons could cause the injuries. The way in which the question was put to the doctor by the learned prosecutor and the answer given and recorded by the court was critically commented upon by the learned senior counsel appearing for the accused. The nature of the injuries as can be seen from Ext.P5 would leave no doubt that fatal incised injuries could be caused only by stabbing with MO3 dagger or a dagger like MO3 or a knife. It is inconceivable why the learned Prosecutor did not show each of the weapons separately and why specific reference was not made to each of the injuries as to the possibility of those injuries being caused by MO1, MO2 and MO3 separately. The learned counsel for the accused would submit that the learned Sessions Judge had also a duty to see that an expert witness Crl.A.No.1040 of 2006 & Crl.R.P.No.1437 of 2007 -:13:- gives an opinion specifically with reference to each of the weapons referring to each of the injuries (atleast fatal injuries). But that was not done. Since the fatal injuries 1 to 3 are incised wounds of sufficient depth there can be no doubt that those injuries could be caused by stabbing with MO3 dagger or a weapon like MO3. Some of the injuries could be caused by chopper and other injuries could be caused by striking or cutting with axe/hatchet.
12. Ext.P6 is the postmortem certificate pertaining to Sujeesh. PW8, the doctor who conducted the postmortem examination has testified that the following ante-mortem injuries were found on the body of Sujeesh:-
"1. An incised oblique wound on right lower chest at flank 4 = cm x 2 = cm with fracture of 2 ribs (10th and 11th) and injuring infro lateral aspect of right lobe of liver going deep.
2. An incised wound on right side of back below shoulder blade vertically placed 3 = cm x 2 cm with fracture of one rib and injuring right lung 2 cm at infero lateral aspect.
3. A incised oblique qound on left side of lower chest 3 cm x 1 = cm and injury to spleen 2 cm at lateral aspect.
Crl.A.No.1040 of 2006 & Crl.R.P.No.1437 of 2007 -:14:-
4. A lacerated wound on the right side of face 7 cm x 2 cm extending from middle of upper lip near the right eye 2 cm deep.
5. A lacerated wound upper lip on the right side exposing right upper 2 incisor teeth which are partially broken.
6. Abrasion and contusion 2 cm x 1 cm at the right side of ala of nose.
7. A lacerated wound on right cheek 3 cm x 1 cm x = cm.
8. An incised wound on lower lip extending from middle of lip to right 2 cm x = cm x = cm.
9. An abrasion and contusion just above right eye brow 5 cm x = cm.
10. Two small abrasions on right fore head just above the previous injury.
11. An abrasion and contusion 2 = and = cms on scalp 2 = cms above the right ear.
12. A lacerated wound 3 cm x = cm on scalp 5 cm to the right of wound No.11.
13. A vertical incised wound on occipital area of scalp 7 cm x 2 cm with linear fracture of skull bone.
14. A vertical incised wound 3 cm to the left of wound No.13, 5 cms x 1 = cm and deep with fracture of bone.
15. A vertical incised wound 5 cm x 1 cm x 1 cm just to the left of wound No.14.
16. A horizontal incised wound 1 cm to the left of wound No.15 4 cm x 1 cm x 1 cm.
Crl.A.No.1040 of 2006 & Crl.R.P.No.1437 of 2007 -:15:-
17. A vertical incised wound 3 cm x 1 cm x = cm near wound No.16.
18. An incised wound front of neck on right side near the thyroid cartilage 3 cm x = cm x 1 = cms.
19. An abrasion and contusion 2 = cms below the wound No.18 on right side 4 cms x = cm.
20. Two linear contusion and abrasion 2 cms apart in front of neck on right side. 3 cms x = cm each just below right ear.
21. An incised wound 3 cm x 2 cm x = cm on right shoulder.
22. A horizontal incised wound on right upper arm on back side 2 cm x = cm < cm.
23. Contusion and abrasion on right upper arm 2 cm below wound No.22 each about 6 cm horizontally.
24. Horizontal incised wound 1 cm x = cm x = cm. 5 cm below wound No.23.
25. A lacerated wound back of right elbow joint 8 cm x 4 cms x 2 cms exposing bone.
26. A lacerated wound on right forearm on back 12 cm from elbow joint 8 cms x 5 cms x 2 cms exposing bones.
27. An incised wound 2 cms x 1 = cm x = cm near wound No.26.
28. Abrasion 2 = cms x 1 cm on right forearm on back near the wrist.
29. An incised wound 4 cm x 2 cms x 1cm on the dorsum of right palm.
30. A lacerated wound 1 cm x 1 cm on back near the Crl.A.No.1040 of 2006 & Crl.R.P.No.1437 of 2007 -:16:- right shoulder.
31. A lacerated wound 2 = cms x = cm on right side on back near wound No.30.
32. A contusion and abrasion 5 cms x = cm on right buttock.
33. Contusion and abrasion 12 cms long horizontally near wound No.32.
34. An abrasion and contusion 7 cms long in right thigh on lateral side 5 cms above knee joint.
35. A incised wound 2 = cms x 1 cm x < cm on right leg just below knee joint.
36. An incised wound on left little finger on dorsal aspect 3 cms x = cm x = cm.
37. Abrasion and contusion on left forearm on ventral aspect 7 cms from wrist joint."
It was certified by PW8 that the death of Sujeesh was due to injuries to vital organs like liver, lung, spleen and haemorrhage and shock. It was further stated by him that injury Nos.1, 2 and 3 are fatal in nature. Those injuries are sufficient in the ordinary course of nature to cause the death of the victim.
13. When this witness was examined also the learned Prosecutor showed all the weapons, MO1 to MO3 together Crl.A.No.1040 of 2006 & Crl.R.P.No.1437 of 2007 -:17:- and elicited one answer that the injuries noted in Ext.P6 could be caused by MO1 to MO3. Here also, the learned defence counsel was perfectly justified in commenting upon the way in which question was put by the learned Prosecutor and the way in which answer was given by the expert witness. What has been noted above shows the casual and half-hearted manner, the prosecution was conducted before the trial court, the learned counsel for revision petitioner submits. Some of the injuries were abrasions which could not be caused by stabbing with MO3 dagger or by cutting with chopper. There can be no doubt that all the 37 injuries noted in Ext.P6 could not be caused by stabbing with MO3 dagger. There were lacerated injuries also which could be caused by MO1 axe/hatchet also. The incised injuries 1 to 3 could be caused only by stabbing with a weapon like MO3 dagger. The learned Prosecutor should have asked the doctor by showing each of the weapons as to the injuries that could possibly be caused Crl.A.No.1040 of 2006 & Crl.R.P.No.1437 of 2007 -:18:- by using such weapon. Some of the incised wound could be caused by cutting with axe or chopper also. Based on the evidence given by PW8, we have no hesitation to hold that Sujeesh and Sunil had homicidal death.
14. Point Nos.(ii) to (v) :- It is the definite case of PW1 that after the dead body of Sujeesh was taken to Thalassery Government Hospital he went to Dharmadom Police Station along with CW6 (C.H.Sajith) and gave Ext.P1, F.I.Statement. PW17 was the Head Constable who recorded Ext.P1 statement at 3 AM on 2.3.2002, based on which Ext.P1(a) F.I.R was registered by him as Crime No.53/2002. He has stated that F.I.R was sent to the Magistrate immediately. On the left top corner of Ext.P1, in red ink, it is seen noted as 'express'. But unfortunately the learned Magistrate did not note the time when F.I.R was received by her. At another place the time '3.45 PM' is seen written which is evidently not in the handwriting of the Magistrate. It appears, it was written by the Clerk or Junior Crl.A.No.1040 of 2006 & Crl.R.P.No.1437 of 2007 -:19:- Superintendent of that Court. It is pointed out by the learned Senior counsel for the accused that PW19 the Investigating Officer could not offer any explanation as to the delay in despatching the F.I.R or in the F.I.R. reaching the Court. The learned Magistrate only put the date 2.3.2002. In spite of the directions issued in that behalf the learned Magistrate failed to note the time when this 'express' F.I.R (registered under Section 302 IPC and other sections) was received. Had it been noted by the Magistrate much arguments on that point could have been avoided.
15. It was further submitted by the learned counsel for the defence that it was incumbent upon PW19 to verify when exactly the F.I.R reached the Court or was there any delay in F.I.R reaching the court. The explanation should have been obtained from the police officer who was stated to have despatched it and the officer/constable who carried the F.I.R to the Magistrate. It could have been easily found Crl.A.No.1040 of 2006 & Crl.R.P.No.1437 of 2007 -:20:- out by verifying the despatch register maintained in the police station and the 'passport book' of the police official concerned. But as stated earlier, the investigation was conducted by PW19 in a half hearted manner. He did not even bother to verify when the F.I.R was received in the court. The learned counsel appearing for the revision petitioner Sri.Rajeev submits that investigation was conducted in a most insincere manner evidently to help the accused to the maximum. The learned counsel has pointed out that no attempt was made by PW19 to find who were the other 15 persons in the group of assailants, whose name could not be furnished in Ext.P1 even though it was asserted by all the witnesses that they could identify all the assailants by sight.
16. It is further submitted by the learned counsel for the accused that in Ext.P1(a) - F.I.R, PW17 has made some interpolations. In column No.12 it was noted by him that the accused are 1 to 13 who were named therein and also Crl.A.No.1040 of 2006 & Crl.R.P.No.1437 of 2007 -:21:- 15 other persons. Column No.12 is intended to give a gist of the F.I.S. The gist of the same was written in an insensible manner. A reading of the same would suggest that Sujeesh and Sunil were attacked by the accused persons by throwing bomb, by stabbing and cutting etc. and those two persons succumbed to injuries. It is pertinent to note that when Ext.P1 was given by PW1 the fact that Sunil was lying dead in the nearby area was not known to PW1. In Ext.P1 (F.I.S), PW1 did not say that Sunil also succumbed to the injuries. The gist entered in column No.12 may show that Sunil also died due to the injuries. The learned counsel for the accused would submit that it was subsequently incorporated or introduced and it was long thereafter F.I.R. was sent to the court. Ext.P1, the F.I.Statement was written on the reverse of Ext.P1(a). So much so, the fact that Ext.P1 statement was recorded at 3 AM as deposed to by PW1 and as recorded in Ext.P1 has to be accepted as true. The prosecution would contend that the factum of Crl.A.No.1040 of 2006 & Crl.R.P.No.1437 of 2007 -:22:- death noted in column No.12 was not with reference to Sunil but only with reference to Sujeesh and that the earlier part of that sentence would only suggest that Sujeesh and Sunil were attacked by accused persons. That argument could have been avoided had PW17 written the gist in a properly understandable manner. It is also important to note that in Ext.P1, PW1 stated about 15 persons who were identified; their names were also given by PW1 in Ext.P1. Therefore, it is inconceivable why PW17 did not note in column No.12 that the identified accused were 1 to 15. That also shows that PW17 was not diligent in noting the particulars in the F.I.R portion.
17. It is further submitted by the learned counsel for the accused that similar interpolations are seen in column No.7 of F.I.R also. There also PW17 at first wrote the names of 13 accused and thereafter the names of 14th and 15th accused shown in Ext.P1 were noted. (The rank of A14 and A15 happened to change subsequently as the name of Crl.A.No.1040 of 2006 & Crl.R.P.No.1437 of 2007 -:23:- Ashraf who was originally shown as A13 was deleted). It may be argued that since the F.I.Statement was recorded at 3 AM, A17 might have been almost in a sleepy mood. It is not proper to make suppositions and conjectures regarding the same.
18. It is also contended by the defence that on going through Ext.P1 it would appear that it was A2 who incited or exhorted " " and then inflicted the fatal injuries on Sujeesh and Sunil. Here also the way in which it was written by PW17 would suggest that he did not apply his mind while recording the statement. It was not possible for one person to use three weapons, axe, chopper, crow bar etc. at a time and to inflict injuries with those weapons on two persons at a time. The statement should have been written properly. Be that as it may, the first information statement given by PW1, as recorded in Ext.P1, substantially corroborates the evidence given by him before Court. In Ext.P1 also it was stated by PW1 that the accused Crl.A.No.1040 of 2006 & Crl.R.P.No.1437 of 2007 -:24:- persons could be identified in the moonlight and also by their voice.
19. The prosecution mainly relies upon the evidence of P.Ws.1, 2 and 4 who are the alleged eye witnesses to the occurrence. The place of incident is a bund about 250 mtrs. to the west of Meloor Kalamandir. The incident took place at about 1 a.m. on 02.3.02. There is a small shed put up on the bund where treated coconut husk used to be beaten for taking out fibre. Ancharakandi-Meloor river is on the western side of the bund mentioned above. On 01.03.2002 there was a hartal called by VHP/RSS people. In connection with the same, there were altercations between RSS and CPI(M) men near Kalamandir mentioned above. It was also stated by him that with regard to that incident bombs were thrown at the houses of C.Ws. 4 and 6, (Pramod and Sajith). It was stated that the houses of other RSS men were also attacked by CPI(M) people. In connection with the incident which took place on that date Crl.A.No.1040 of 2006 & Crl.R.P.No.1437 of 2007 -:25:- police party had conducted raid in the houses of RSS people. They were afraid that they would be attacked by CPI(M) people during that night. They were also afraid of the police men. Therefore, PW1 and ten others including Sujeesh and Sunil, in order to take shelter, went to the bund and remained near the shed situated on that bund. While they were near the shed at about 1 a.m., PW1 and others could see a few persons coming from the eastern side and few other persons coming from the northern side carrying dagger, chopper, axe, crow bar, iron rod, steel, bomb etc. According to P.W.1 he could identify the persons and saw those persons approaching towards them in the moonlight. According to him, from among the persons who reached there from the northern side, he could identify A3-Asokan, A2-Sivan, A11-Pradeepan, A12- Ranish, A1 Dineshan, A10 Sasi, A4- Mahesh and one Ashraf. Though Ashraf mentioned above was shown as accused in the First Information Statement, in the course of Crl.A.No.1040 of 2006 & Crl.R.P.No.1437 of 2007 -:26:- investigation, a report (Ext.P18) was filed by P.W.19, the Investigating Officer stating that Vazhayil Ashraf, the person named in the F.I.Statement as one of the assailants was undergoing treatment as an in-patient in a hospital at Mangalore. Accordingly, the name of Ashraf was deleted from the party array. We would be separately dealing with the incorrectness of Ext.P18 later.
20. It was stated by Pws.1, 2 and 4 that they had close acquaintance with the persons mentioned above and that besides some other people who can be identified by sight had also approached towards them from the eastern side. Among them PW1 could identify A8 - Baiju, A13 - Nadukkandi Raveendran, A14 - Sreedharan, A7 - Sathyan, A6 - Nishanth, A9 - Babu, A5 - Jithesh. He did not identify A15. He has stated that all persons who were in Court facing trial were the persons, seen in the group of persons who reached there to attack them. He has further stated that among them Ashraf alone was not arrayed as an Crl.A.No.1040 of 2006 & Crl.R.P.No.1437 of 2007 -:27:- accused to face trial.
21. It was testified by PW1 that when he saw the group of persons approaching them he called others stating that those persons were coming to attack them. According to him, A3 threw a bomb aiming them. It fell on the heap of coconut husk but it did not explode. He says that the persons who reached there attacked Sujeesh and Sunil. A2 - Sivan @ Shivatti incited or exhorted " ". He further says that A2 stabbed Sujeesh and Sunil with a dagger and A11 - Pradeepan cut with an axe and A12 cut Sujeesh and Sunil with a chopper. He says that on seeing this he and others jumped to the river and even at that time the assailants were inflicting injuries on Sujeesh and Sunil. Because it was high-tide time, there was water in the river and so he and others remained a short distance away from where also they could see the incident. According to P.W.1, the accused then stated " , . . .
Crl.A.No.1040 of 2006 & Crl.R.P.No.1437 of 2007 -:28:- ." It was stated by P.W.1 that other accused had also attacked Sujeesh and Sunil. After the accused left the scene, PW1, 2, 4 and others went to the place near the shed where they saw Sujeesh writhing in pain. But they could not see Sunil at that time. So they immediately took Sujeesh in their arms to the road near Kalamandir. A police jeep was there in which Sujeesh was taken to the Co-operative Hospital from where the doctor pronounced Sujeesh dead. Accordingly the dead body of Sujeesh was taken to the Government Hospital, Thalassery. It was testified by P.W.1 that thereafter he and C.W.6 Sajith went to Dharmadam police station; and gave Ext.P1 First Information Statement. Thereafter he returned to the place of incident to search for Sunil who was earlier found missing. According to him, police men were also there. Though searched, the body of Sunil could not be found. At about 7 a.m. when it was low-tide , the body of Sunil was found on the eastern side of the shed Crl.A.No.1040 of 2006 & Crl.R.P.No.1437 of 2007 -:29:- and by the side of the river where there were bushes. It could be quoted in his own words " 7 ".
22. According to PW1, it was he who showed the scene of occurrence to the police. He also identified M.O.1 as the axe. It was found in the possession of A11 at the time of occurrence. He further identified M.O.2 as the chopper which was then held by A12. According to him, M.O.3 was the dagger found in the hands of A2 at the time of the incident. He further says that from the scene of occurrence police had taken a steel bomb, which according to the prosecution was inside the heap of coconut husk. It was sworn by P.W.1 that he and 10 others mentioned earlier were members of CPI(M) and as they defected and joined RSS, the CPI(M) men had enmity towards them. PW1 was definite that A15 was not seen by him among the Crl.A.No.1040 of 2006 & Crl.R.P.No.1437 of 2007 -:30:- assailants. But later he came to know that A15 was also there.
23. It was contended by the defence that admittedly near Kalamandir, there was police picket post and the distance from the scene of occurrence to Kalamandir is only about 250 Mtrs. But the names of the assailants were not told to the police officials who were there. That contention is incorrect. According to PW1, he had stated the names of one or two persons. But he has given a reasonable explanation that he and others were very anxious to see that the injured Sujeesh was taken immediately to the hospital to save his life. When a person in a precarious condition was to be taken to the hospital to save his life, one cannot think of narrating the incident to police men who were seen in the picket post nor could the police men who were in the picket post question persons who had taken the injured persons, to give details regarding the incident or other matters. One cannot Crl.A.No.1040 of 2006 & Crl.R.P.No.1437 of 2007 -:31:- be so unrealistic. It was further contended by the defence that though according to P.W.1, in the police jeep in which Sujeesh was taken to Co-operative Hospital, police men were also there, they were not examined by the prosecution. Plurality of witness is not the requirement of law. Evidence on that point is otherwise available on record. It is also pointed out by the defence that P.W.3, the doctor who sent Ext.P3 intimation to the police did not record anywhere as to who brought the dead body to the hospital. The learned senior counsel Sri.M.K.Damodaran argues that if, as a matter of fact, body of Sujeesh was taken to the hospital in the police jeep in which police men were also there, there was no necessity of sending Ext.P3 intimation to the police as it would have been sufficient that P.W.3, the doctor had noted that the dead body of Sujeesh was brought by persons including the police men. It may be true that the doctor should have made necessary entries in the register concerned as to who Crl.A.No.1040 of 2006 & Crl.R.P.No.1437 of 2007 -:32:- brought the body of Sujeesh to the hospital at that time. But the fault or mistake committed by PW3 who is a doctor attached to the Co-operative hospital cannot cast incredibility on the prosecution case. The question whether PW1, 2 and others had taken the body of Sujeesh upto Kalamandir and from there to the Co-operative hospital in the police jeep is to be independently analysed to see whether that version is true. The acceptability of that version cannot depend upon the omission on the part of PW3 in noting the same. Be that as it may, the evidence given by PW3 would also show that when he examined the body of Sujeesh at 1.30 a.m. on 02.3.2002, he was dead. That evidence is unimpeachable.
24. PW2 - C.K.Sumesh who is the elder brother of deceased Sujeesh has corroborated the evidence given by P.W.1 in all material particulars. He says that he thought that his house also would be attacked at night and so he and others, in order to escape from being attacked by Crl.A.No.1040 of 2006 & Crl.R.P.No.1437 of 2007 -:33:- CPI(M) workers, went to the place near the shed on the chira (bund). He says that at about 1 a.m. he was awakened by PW1 stating that some persons were approaching to attack them. When he woke up he could see some persons coming from the northern and eastern sides. He has stated regarding the identity of those persons. All those persons who were present in court were identified by him. With regard to the overt act, he says that A2 stabbed Sujeesh and Sunil with a dagger; A11 hacked with an axe and A12 cut with a chopper and that A2 exhorted " ". He says that on seeing this incident he jumped into the river. Since the aforesaid overt acts were seen by him after he woke up and before he jumped to the river the contention raised by the defence that it was impossible for PW2 to see the incident must necessarily fall to the ground. PW2 had occasion to see the remaining part of the incident from a distance of about 10 Mtrs. He says, before jumping into the river, he hid slightly beside Crl.A.No.1040 of 2006 & Crl.R.P.No.1437 of 2007 -:34:- the heap of coconut husk and thus witnessed the incident from there also. But he did not say so to the police.
According to him, the incident was over within 4-5 minutes and then he heard A11 saying "
" and thereafter accused left the scene. He then went to the place of incident. Sujeesh was seen writhing. Since at that time Sujeesh was not dead, he was taken to the road near Kalamandiram from where he was taken to Co-operative Hospital in the police jeep. He has corroborated the evidence given by P.W.1 that after examination, the doctor (PW3) pronounced Sujeesh dead and from there the body of Sujeesh was taken to the Government Hospital, Thalassery. P.W.4 Punchayil Sumesh, another eye witness to the occurrence, has substantially corroborated the evidence given by PW1 and PW2. It was sworn by PW4 that at about 1 a.m. (i.e. on 02.3.02) PW1 alerted him and told that about 30 people were coming to attack them; some of them were coming Crl.A.No.1040 of 2006 & Crl.R.P.No.1437 of 2007 -:35:- from the east and others were coming from the north and they were carrying deadly weapons. It was asserted by PW4 that A2 was having a dagger, A11 was having axe and A12 was having chopper. He has deposed regarding the overt acts of some of the accused as testified by PW1 and PW2. He has also identified other accused persons who were in the group. According to him, including Vazhayil Ashraf he could identify 16 persons. According to PW4 all the aforesaid 15 persons were known to him personally. He was born and brought up in that locality and the accused were his close friends and associates till he left CPM a few months prior to the incident. According to him, A3 threw a bomb at the complainants party, but it did not explode but fell on the heap of coconut husk. It was argued by the learned counsel for the accused that if bomb was actually thrown at as deposed by Pws.1, 2 and 4 why it did not explode; in all probability the bomb must have been planted or concealed by PW1 and others who had Crl.A.No.1040 of 2006 & Crl.R.P.No.1437 of 2007 -:36:- been to that bund, the learned counsel argues. It is further submitted that there was no possibility for the bomb to go inside the coconut husk. But it may be remembered that when coconut husks are heaped up, there would be holes/gap in between the coconut husks and so it cannot be said that there was no possibility for the bomb to be seen beneath the coconut husks.
25. It was contended by the defence that Ext.P1 and the evidence given by PW1, 2 and 4 would show that PW1 and others jumped into the river and it was from the river they saw the incident but when they were examined before Court, they gave a twist to their version that they hid behind the heap of coconut husks for some time and from there they saw the accused inflicting fatal injuries on Sujeesh and Sunil. PW4 also says that he had jumped into the river and remained at that place, about 10 meters away from the place of incident. According to the defence the evidence given by P.W.1, 2 and 4 as to the manner in Crl.A.No.1040 of 2006 & Crl.R.P.No.1437 of 2007 -:37:- which or as to the place from where they could see the incident is totally contradictory to the statement given by them to the police and to the Magistrate when they were examined under S.164 Cr.P.C. We could see no material contradiction with regard to the same. On a reading of the evidence given by P.W.1, 2 and 4 it can be well discerned that when they saw a group of persons approaching them from the east and north, they tried to wake up Sujeesh and Sunil who were asleep but they could not make them awake. By that time the accused had almost reached there. It was not possible for the witnesses aforesaid to move towards any of the three sides and so the only way for them was to jump into the river. It may be remembered that there were eleven persons in their group including Sujeesh and Sunil. As the purpose of the group of persons who reached there was to attack them, it is quite natural that Pws.1, 2 and 4 did watch the acts of the assailants. The consistent version given by P.W.1, Crl.A.No.1040 of 2006 & Crl.R.P.No.1437 of 2007 -:38:- 2 and 4 is that before jumping into the river they could see Sujeesh and Sunil being attacked by A2, A11 and A12. They could also see A3 throwing bomb at them, though it did not explode. PW4 has stated that A2 stabbed Sujeesh and Sunil who were lying there and that A11 inflicted cut injuries with an axe. He further stated that A12, by using a chopper inflicted cut injuries on Sujeesh and Sunil mentioned above.
26. According to PW4 he could also hear A11 making a comment, " " (to mean that two among the 11 persons were finished off). The evidence given by PW4 corroborates the evidence given by Pws.1 and 2 that A11 had made such a comment immediately after the incident and that it was thereafter the accused left the scene. There is also evidence to show that after the assailants reached there, A1 had incited or exhorted to kill PW1 and others.
Crl.A.No.1040 of 2006 & Crl.R.P.No.1437 of 2007 -:39:-
27. It is important to note that PW4 was a witness to Ext.P4, the inquest report prepared by PW19. Even if the details of overt acts played by each of the accused were not narrated at the time of inquest that does not mean that he did not see the incident. He was subsequently questioned by the Investigating Officer. No material contradictions could be brought out in his evidence. It is true that the police officer (PW19) had recorded a senseless statement, a reading of which may mean that it was A2 alone who inflicted the fatal injuries with three weapons (chopper, axe, crow bar) on the two deceased. The fact that the injuries could have been inflicted with chopper, axe, crow bar only by different persons among the assailants could not have been lost sight of by the Investigating Officer who wrote that sentence in that line. That portion of sentence was marked as Ext.D3. It is quite evident that it was only the handy work of that police officer . One cannot think of one person using three weapons at a time, to inflict injuries on Crl.A.No.1040 of 2006 & Crl.R.P.No.1437 of 2007 -:40:- two persons at a time.
28. It is argued by the learned counsel for the accused that as it was admitted by the witnesses that the area where the bund is situated is dominated by CPI(M) their case that they went to that place to spend that night is quite undigestible since if they were afraid of CPI(M) people they would have chosen a place where CPI(M) was not dominating or controlling the area but the prosecution says that in Thalassery which takes in Meloor there is no area which is not dominated by CPI(M). That apart they have not chosen a house or building amidst the houses occupied by CPI(M) but a lonely place, a bund situated by the side of a river where there was no house at all.
29. It was argued at length by Sri.M.K.Damodaran, the senior counsel appearing for the accused that there are material contradictions in the evidence given by P.W.1, 2 and 4 and that their statements are contradictory to the statement given by them to the police and also to the Crl.A.No.1040 of 2006 & Crl.R.P.No.1437 of 2007 -:41:- Magistrate when they were examined under S.164 Cr.P.C. It is further argued that evidence given by PW1 is contradictory to the statement given by him to the SDM, the copy of which is marked as Ext.D1. When an incident is witnessed by three or four persons and when they are asked to depose with regard to that incident at a later point of time, there would be inconsistencies in the version given by them since the power of observation, retention and reproduction in the same sequence would vary; it is quite natural. On the other hand, if the evidence given by such witnesses is fool-proof without any inconsistency, then the Court should be all the more cautious to accept such testimonies, since the possibility of those witnesses giving a tutored version cannot be ruled out. The inconsistencies which do not shake the fabric of the prosecution case cannot be projected with over much importance, for such inconsistencies would only vouch for truthfulness of the witnesses and not otherwise. Crl.A.No.1040 of 2006 & Crl.R.P.No.1437 of 2007 -:42:-
30. PW1, PW2 and PW4 have asserted that they could see the incident in the moon light. The evidence would show that it was a full-moon day. Therefore, it was possible for the witnesses to see the incident, if the incident did take place within the range of visibility. According to him, the body of Sunil was then not found and so others were searching for the body of Sunil.
31. It is contended by the defence that even according to P.W.2 his house is the 4th one towards south from the police picket which was situated near Kalamandir, but admittedly he did not complain to the police men at the picket post that there was threat from the CPI(M) men. He says that he had also the apprehension or fear that he would be implicated in false cases by the police and thus he was afraid of CPI(M) workers and the police men also. Learned counsel for the defence submits that since PW2 was residing in a house somewhere near the police picket post there was no reason for him to have any Crl.A.No.1040 of 2006 & Crl.R.P.No.1437 of 2007 -:43:- apprehension that he would be attacked if he was staying in his own house, since police men at the police picket post would have taken care of. That assumption is ill-founded. It is not reasonable to think that 3 or 4 police men in the picket post can prevent about thirty armed CPI(M) people attacking the houses of RSS people. PW2 was afraid of the police also. The contention that it was not reasonable or probable that PW2 would have gone to the bund for taking shelter, cannot be accepted. According to PW2, all the 11 persons including him gathered in his house by about 9 p.m. on 01.03.02 and from there they proceeded to the bund mentioned above. It is submitted by the learned counsel for the accused that after they gathered in the house of P.W.2 at about 9 p.m. they must have proceeded in groups in different directions for committing attack and that Sujeesh and Sunil must have sustained injuries at some other places at the hands of some other persons. The arguments based on imaginations, suppositions and Crl.A.No.1040 of 2006 & Crl.R.P.No.1437 of 2007 -:44:- surmises cannot displace the evidence given by ocular witnesses. The question is whether the evidence given by the eye witnesses to the occurrence inspires confidence in the mind of the Court.
32. The learned senior counsel Sri.M.K.Damodaran would submit that PWs.1, 2 and 4 the witnesses relied upon by the prosecution are partisan or interested witnesses and so their evidence requires scrutiny with more care and caution. It is pointed out that admittedly P.Ws. 1, 2 and 4 are RSS/BJP workers whereas the accused belong to CPI(M). It is also in evidence that there were clashes between those two groups earlier. It is argued that there were crimes registered against PWs.1, 2 and 4 in connection with the attacks made by them against CPI(M) persons, and since PWs. 1, 2 and 4 belong to the opposite political party and as there was faction feud it can be undoubtedly said that they are partisan witnesses. It is also emphasised that P.W.2 is the brother of Sujeesh, the Crl.A.No.1040 of 2006 & Crl.R.P.No.1437 of 2007 -:45:- victim in this case and so he is to be termed as an interested witness also. The learned counsel further submits that since even according to the prosecution the incident occurred out of political animosity the chances of roping in innocent people cannot be ruled out. No doubt, the evidence given by Pws.1, 2 and 4 has to be scanned carefully and cautiously so that neither the guilty escaped nor the innocent convicted. Evidence of a witness cannot be discarded merely on the ground that he is either partisan, interested or closely related to the deceased.
33. The learned counsel for the accused would submit that the whole prosecution case bristles with intrinsic infirmities and inherent improbabilities since going by the nature of the evidence and the factual matrix there is every reason to believe that the three witnesses aforementioned have a motive to falsely implicate the accused and as such their evidence should Crl.A.No.1040 of 2006 & Crl.R.P.No.1437 of 2007 -:46:- get corroboration from independent source.
34. The facts dealt with in the decision in Pulicherla Nagaraju alias Nagaraja Reddy v. State of A.P. [AIR 2006 S.C. 3010] cited by the learned counsel for the accused, are different from the facts of this case. In the decision cited supra, the trial court had rejected the evidence of P.W.1 and P.W.2 as they were interested witnesses, being the brother and father of the deceased. But it was held that the evidence of a witness cannot be discarded merely on the ground that he is either partisan or interested or closely related to the deceased, if it is other wise found to be trustworthy and credible. It was further held that it only requires scrutiny with more care and caution. In the aforesaid decision also it was held that if on such careful scrutiny the evidence is found to be reliable and probable, it can be acted upon and that if it is found to be improbable or suspicious, it ought to be rejected. The aforesaid decision was cited by the learned Crl.A.No.1040 of 2006 & Crl.R.P.No.1437 of 2007 -:47:- counsel for the accused to fortify his submission that when witness has a motive to falsely implicate the accused his testimony should get corroboration in regard to material particulars before it is accepted.
35. The learned counsel for the accused would further submit that since the three witnesses admittedly belong to the opposite political party, they cannot be termed as natural witnesses and as such on that ground also before their evidence is accepted, the Court should ensure that evidence obtainable from independent source corroborates the testimony of such witnesses. The evidence on record is clear and convincing that the incident took place on the bund near the shed described earlier. It is not a place where there was any other building anywhere near the place of incident. The incident took place at 1.30 a.m.. Therefore, there was no possibility of any other person coming to that place or to witness the incident. Since the evidence is to the effect that 11 persons happened to take Crl.A.No.1040 of 2006 & Crl.R.P.No.1437 of 2007 -:48:- shelter on the bund mentioned above, because of the fear or threat from the CPI(M) workers or police, no other person could be present there so as to give evidence relating to the incident. If that be so, the members of the victim group alone can be expected to be present. In short, the argument that PWs.1, 2 and 4 are not natural witnesses and as such their evidence cannot be believed is also devoid of any merit.
36. The Supreme Court decision in Musheer Khan @ Badshah Khan and Another v. State of Madhya Pradesh [2010 KHC 4060] was also cited by the learned counsel for the appellant. There it was held:
"The Court must remember that PW 3 is a highly interest witness, being a very close relative of the deceased. That by itself, of course, is not a ground to discard his evidence. But it is a golden rule that in such a situation, the evidence of PW 3 has to be weighed very carefully and cautiously before accepting the same".
37. Since PWs.1, 2, and 4 were the only persons who could be expected to be present at the time and place of Crl.A.No.1040 of 2006 & Crl.R.P.No.1437 of 2007 -:49:- the incident, their evidence cannot be branded as interested or partisan nor could their evidence be eschewed on that ground as unworthy of acceptance.
38. PW20 was the ASI of Dharmadom Police Station during the relevant period. It was stated by him that there was a harthal called by VHP/BJP on 1.3.2002 and he was on law and order duty till the morning of 2.3.2002. He has deposed that at about 1.15 AM while he was on the road near Kalamandhir mentioned above three or four youngsters were seen carrying in their hands a person and when they reached near him he was told by them that a few persons caused injuries by hacking, stabbing and by throwing bomb etc. and that the injured should be immediately taken to the hospital. PW20 further states that those persons also told that it was done by about 30 CPI(M) workers. He has further stated that the injured was then taken to Co-operative Hospital in a police jeep bearing No.KL-13B-5985 and when examined the doctor pronounced Crl.A.No.1040 of 2006 & Crl.R.P.No.1437 of 2007 -:50:- that person dead. He has further testified that immediately he informed his superiors over phone. He states that though the informants told the names of the persons who had inflicted the injuries on the deceased he does not remember the same. The evidence given by PW1 and PW20 and other witnesses would make it clear that all of them were anxious to take the injured to the hospital to save his life. Much criticism was levelled against the act of PW20 in not recording the names of those accused persons. We find no merit in that contention. He did it as a responsible police officer. He did not waste time for recording statements and finding out reasons for the incident, but rushed to the hospital to save the life of the injured. It was stated by PW20 that he had sent the police constable-PC 4409 and another police man of KAP and another KAP duty police man to the place of incident. Therefore, there is nothing wrong in the prompt action taken by PW20 as mentioned above. The criticism levelled against PW20 by Crl.A.No.1040 of 2006 & Crl.R.P.No.1437 of 2007 -:51:- the defence deserves to be rejected. The learned Sessions Judge, on a marshalling of the evidence placed reliance on PW20. After thoroughly scanning the evidence, it is found that he is a trust worthy witness.
39. According to PW20, from the hospital he later went to the place of incident and saw the body of the other man at about 7.30 AM. Two police men who were sent to the place of incident and other persons belonging to the complainants' group were stated to have searched to find out the body of Sunil, but they could not see the body till about 7.30 AM. This according to the defence raises serious doubt since, if Pws.1, 2 and 4 had actually seen the accused inflicting injuries on the body of Sunil, the body of Sunil must have been some where near to the place of incident and if the aforesaid persons had inspected the place of incident and the near by places they could have seen the body of Sunil lying by the side of the mangroves. If there was no sufficient light to find out the body of Sunil by Crl.A.No.1040 of 2006 & Crl.R.P.No.1437 of 2007 -:52:- the side of the mangroves (as noted in Ext.P3) then it must be stated that it was not possible for Pws.1, 2 and 4 and others to see the incident, the defence contends. Such an assumption could not be drawn. What was said is that the body of Sunil could be found out only in the early morning when there was sufficient day light. The body of Sunil was seen during low tide amidst the mangrove bushes, by the side of that slushy area. The fact that the dead body was not seen by the persons who were stated to have searched will not in any way affect the credibility of PW1, PW2 and PW4 with regard to the incident. The question as to how the body of Sunil happened to be seen at that particular place which is a few meters away from the shed is not something which can be explained by Pws.1, 2 and 4. It can only be inferred. After the assailants left the scene or even before that the injured Sunil might have, in the course of struggling for life made some movements and while so he must have fallen into the slushy area and happened to be Crl.A.No.1040 of 2006 & Crl.R.P.No.1437 of 2007 -:53:- amidst the bushes.
40. Much was argued by the learned counsel for the accused pointing out certain discrepancies in the evidence given by P.W.1 when he was examined before the Sub Divisional Magistrate in a proceeding initiated by the SDM under S.107 Cr.P.C. Ext.D1 is the certified copy of the deposition/statement given by P.W.1 Jithesh. The SDM, examined as D.W.1 has deposed that Ext.D1 was the statement given by P.W.1 in the M.C.Proceedings. He was examined to prove the contradictions in Ext.D1 statement, which were marked as Exts.D1(a) to D1(h). It is important to note that the learned Prosecutor did not put any question with regard to the legality or correctness of the procedure followed by D.W.1. Section 107 Cr.P.C. empowers an Executive Magistrate who received information that any person is likely to commit a breach of peace or disturb the public tranquillity or to do any wrongful act that may probably occasion a breach of Crl.A.No.1040 of 2006 & Crl.R.P.No.1437 of 2007 -:54:- peace or disturb the public tranquillity and if the SDM is of opinion that there is sufficient ground for proceeding, he may, require such person to show cause why he should not be ordered to execute a bond, with or without sureties, for keeping the peace for such period, not exceeding one year, as the Magistrate thinks fit. It was stated that proceedings were initiated against the accused under S.107 Cr.P.C. The order in M.C.79/02 in which P.W.1 was examined as Jithesh has not been produced. It is not known who all were the counter petitioners in that case and at whose instance the proceedings were initiated under S.107 Cr.P.C. Section 107 Cr.P.C. does not say that an eye witness to the occurrence in the Sessions Case can be examined with regard to the incident in respect of which Sessions Case is pending trial. It is not a case where the Sub Divisional Magistrate can probe into the correctness or otherwise of the statement given by the prosecution witnesses in the Sessions Case nor does S.107 Crl.A.No.1040 of 2006 & Crl.R.P.No.1437 of 2007 -:55:- Cr.P.C. empowers the Executive Magistrate to elicit answers which are germane for trial in the Sessions Case. The learned counsel for the accused would also agree that the procedure followed by D.W.1 is unusual and unheard of. There is every reason to believe that such a subtle device was adopted at the behest of an ingenious brain to sabotage the prosecution if possible. The usual procedure is to examine the complainant, the police officer if at all necessary and to mark the F.I.Rs., charge sheets etc. against the counter petitioners therein to convince that the counter petitioners are likely to commit breach of peace or disturb the public tranquility or do any wrongful act that may probably occasion the breach of the peace etc. It does not require the Magistrate to conduct a 'pre-trial' in the sessions case by examining the witnesses in that case. The Magistrate is not empowered to go through the case diary statement or to go through any other record of the Sessions case which is pending trial. Crl.A.No.1040 of 2006 & Crl.R.P.No.1437 of 2007 -:56:- It is a clear case where the Magistrate has usurped the jurisdiction of the Sessions Judge; there was a deliberate attempt to impede the fair trial. It is not known why the learned Prosecutor did not point out these factors when D.W1 was examined or at least at the time when Ext.D1 was pressed into service by the learned counsel for the accused. It may be correct that Ext.D1 can be treated as a former statement that can be used by the defence to bring out contradictions. But answers brought out through illegal procedure or illegal means cannot be used to brand a witness as a liar or to impute incredibility on him. The answers elicited at an unguarded moment, that too, when the Magistrate was not empowered to make use of or peruse the case diary statement and when the sessions case was pending trial cannot be permitted to be let in, for otherwise, it would be the easiest way a fair trial in a sessions case can be torpedoed in which event the whole administration of criminal justice would become a Crl.A.No.1040 of 2006 & Crl.R.P.No.1437 of 2007 -:57:- casualty . The way in which it was done would arouse suspicion as to whether it was masterminded by an ingenious brain. That suspicion gets strengthened when we see the haphazard and perfunctory manner in which the investigation was conducted by P.W.19 and the casual way in which the prosecution case was conducted. The concept of fair trial in a criminal case, which is to be conducted by a judicial officer (Sessions Judge) would be undermined or frustrated, if such an illegal procedure is allowed to be perpetrated.
41. As stated above, M.C.79/02 was only a proceedings initiated under S.107 Cr.P.C. Therefore, there was no necessity for D.W.1 to examine P.W.1 and to elicit evidence pertaining to the incident which is the subject matter of the sessions case. However, the contradictions marked as Ext.D1(a) to D1(h) are only minor contradictions which do not go to the root of the matter so as to shatter the substratum of the prosecution Crl.A.No.1040 of 2006 & Crl.R.P.No.1437 of 2007 -:58:- case. The main thrust of the argument advanced by the learned counsel for the accused is that P.W.1 had stated in Ext.D1 that he and others were lying in the shed. It may be remembered that it is only a general statement and it does not mean that they were inside the shed. P.W.1 was only explaining as to why they had gone to that place during night and in that context it was stated by him that they were afraid of the police also. Even in Ext.D1 P.W.1 had given statement to the effect that among the persons who reached there to attack, 15 persons could be identified. The presence and overt act of A1 to A3, A11 and A12 was specifically mentioned. Ext.D1(f) marked through PW1 would show that specific reference was made about the role of A1 to A3, A11 and A12 even in Ext.D1 proceedings, that too, when PW1 was not assisted by the prosecuting agency to give evidence after refreshing his memory with regard to the facts of this case. Another contradiction marked referring to Ext.D1 is to the effect Crl.A.No.1040 of 2006 & Crl.R.P.No.1437 of 2007 -:59:- that PW1 was an active worker of RSS. The other material contradiction according to the defence was that when PW1 and others were examined in Ext.D1 proceedings it was stated that they were lying in the shed. That does not mean that all those persons were sleeping in the shed even when the accused reached there. Since the place of incident is shown as a place a few meters away from the shed that contradiction cannot in any way scuttle the prosecution case. Another contradiction brought out by the defence through Ext.D1 is to the effect that some of the accused came from the east and others came from the 'south'. The statement that some of them came from the 'south' is evidently a mistake crept in while recording that statement. All the witnesses are uniform in their statements that a group of persons came from the north and the other group came from the east. There was no way from the south to reach the place near the shed. Ext.D1(c) was to the effect that PW1 and another hid beside or behind the heap of Crl.A.No.1040 of 2006 & Crl.R.P.No.1437 of 2007 -:60:- coconut husks. The evidence is to the effect that before jumping into the river, some of them hid behind the coconut husk and from there also they could see the incident. There is nothing unnatural in it.
42. Ext.P7 is the scene mahazar prepared by P.W.19 at 1.30 p.m. on 02.3.02. It was stated that the scene of occurrence was shown to him by P.W.1. It was stated that the place of incident is about 250 mtrs to the west of Meloor Kalamandir. The place of incident is shown to be a place lying about 10 mtrs. to the north of the shed mentioned above. It was noted that the said bund was having a width of 7.50 mtrs. The bund was having an extension towards the north to a distance of about 18 mtrs. It was further noted that at a place about 10 mtrs lying to the north of the shed and 2 = mtrs. to the west of the eastern edge of that bund coconut fibre ('chakirinaru') stacked to a height of 1.250 mtrs. and about 3 mtrs. circumference was seen. It was on that stacked coconut Crl.A.No.1040 of 2006 & Crl.R.P.No.1437 of 2007 -:61:- fibre a few among the complainant's group slept or lay during night. It was stated that on the southern portion of that 'coconut fibre' there were signs or stains indicating oozing out of blood. Blood stained hairs were also seen there. The blood stained fibre, hairs etc. were seized by the police. Another yellow thread of which one edge was blood stained was also seen. That also was taken into custody by P.W.19. It was specifically noted that beneath the coconut fibre mentioned earlier, there was a spot indicating spreading of blood. It was noted in Ext.P7 "
" . At another place about 2 = mtrs to the north of the spoot just mentioned above also an area where blood stained coconut fibres were seen. It is noted as " 21/2 .
Crl.A.No.1040 of 2006 & Crl.R.P.No.1437 of 2007 -:62:- ". From what has been described in Ext.P7, it can be seen that the deceased Sujeesh and Sunil were lying at a place about 10 mtrs to the north of the shed mentioned above. It would also show that they were lying on the coconut fibre mentioned above. It would negative the plea raised by the defence that P.W.1 and others and also deceased Sujeesh and Sunil were inside the shed. The further fact that the bomb was thrown aiming a place where P.W.1 and others were seen would further fortify the fact that complainant's party were lying outside the shed. The steel bomb was seen beneath the coconut fibre mentioned above. The position that can be visualised above would make it clear the incident did take place where coconut fibre was heaped up. The contention that steel bomb could not have been beneath the fibre had it not been kept or concealed there is bereft of any merit. Crl.A.No.1040 of 2006 & Crl.R.P.No.1437 of 2007 -:63:- It was also mentioned in Ext.P7 : "
6 ." Since the distance between the actual place of incident and the place where the dead body of Sunil was found is only about 6mtrs, the possibility of Sunil moving to that place on getting the injuries is quite reasonable and plausible.
42. P.W.13 has proved Ext.P11 issued from the office of the Collectorate, Kannur, which shows that the accused had no license or permission to possess explosive substances. P.W.14 has sworn that he had on 09.3.02 defused the steel bomb from the seashore and handed over the remnants of the same in a sealed packet to P.W.19. M.O.1 series are the remnants of the bomb mentioned above. Ext.P12 is the seizure mahazar prepared for that purpose.
43. It was contended by the defence that according to the prosecution, after the accused left the place when Crl.A.No.1040 of 2006 & Crl.R.P.No.1437 of 2007 -:64:- P.W.1, 2 and 4 and others came to the bund near the shed, they found Sujeesh lying with fatal injuries on his body but body of Sunil was not found there. The evidence is to the effect that immediately body of Sujeesh was taken to the road near Kalamandir and from there to the Cooperative Hospital and then to the Government Hospital. It was stated that others were searching for the body of Sunil. Learned senior counsel for the accused would submit that had there been sufficient light there was no difficulty for other persons to find out the body of Sunil which according to the prosecution was lying only a few meters away from the place of incident. It was also argued that, according to the prosecution, as directed by the S.I./C.I. of Police, a few police men were deputed to guard the scene. Though it was stated that effort was made to find out the body of Sunil, it could not seen till morning. Learned counsel submits that if, as a matter of fact, PW19 was informed of the registration of the FIR at about 3.30 a.m., Crl.A.No.1040 of 2006 & Crl.R.P.No.1437 of 2007 -:65:- there was no reason why he did not go to the place of incident. According to P.W.19, he was informed by P.W.20 regarding this incident at about 1.35 a.m. That is the evidence given by P.W.20, the ASI of Darmadom police station also. Though P.W.19 claims to have gone to Meloor on receipt of that information he did not go to the place of incident. The hear-say information received by PW19 as to the cause of incident is inadmissible in evidence. He says that he had gone to the place of incident after 5 a.m. The evidence would show that from 8.30 a.m till the inquest was completed he was in the Govt.Hospital, Thalassery. The police officials who took the body of Sujeesh to Co- operative Hospital has not been cited as witnesses nor did P.W.19 prepare a mahazar in respect of the police vehicle in which the body of Sujeesh was taken to the Hospital. Pointing out these factors the learned counsel for the accused submits that there was no proper investigation. True, it would appear there was slackness on the part of Crl.A.No.1040 of 2006 & Crl.R.P.No.1437 of 2007 -:66:- P.W.19. But the evidence to the effect that body of Sujeesh was taken to the road near Meloor Kalamandir and from there to the Cooperative Hospital as spoken to by P.Ws.1, 2 and 4 was fully corroborated by P.W.20. That evidence gets further corroboration from P.W.3, the doctor who first saw the body of Sujeesh at about 1.30 a.m. when that body was taken to the Hospital.
44. It is also argued by the learned counsel for the accused that though P.W.3 has given Ext.P2 intimation to the police, P.W.19 did not try to ascertain whether any entry was made in the register concerned maintained by the hospital. The learned counsel is well founded in his submission that when the body of a person was brought dead in a hospital with injuries on his body, the doctor who examined should naturally enter it in the casuality register or other registers. Normally the name of the person who brought the deceased to the hospital would also be noted there. According to the defence, if the Crl.A.No.1040 of 2006 & Crl.R.P.No.1437 of 2007 -:67:- dead body was taken to the hospital by police officials, then certainly that fact would have been noted in the concerned register by the doctor-in-charge of casuality at the relevant time. No attempt was made by P.W.19 to get the documents if any. The learned counsel submits that if admittedly the dead body was taken to that hospital and later sent/referred to the Govt.Hospital there must be entry as to who took back the body from that Cooperative Hospital. Such lapses on the part of PW19 pointed out by the learned counsel for the accused will not in any way affect the credibility of P.Ws.1, 2, 4 and 20.
45. PW19 says that A1, A9 and A11 were arrested by him at 11.30 a.m. on 06.3.02 from Parappuram Kadavu. He says that when A11 was questioned, he gave a disclosure statement to the effect that he had concealed or thrown away the axe at a place called Meloor and if he is taken to that place he will show the place where the axe was kept or concealed and also that axe. Based on that Crl.A.No.1040 of 2006 & Crl.R.P.No.1437 of 2007 -:68:- statement and as led by A11, P.W.19 went to a place near the shed on the bund situated by the side of Meloor- Ancharakandi river and A11 showed the axe having been concealed amidst the forest growth/mangrove bushes. It was stated that the bushes were removed and from that place the axe was taken out by A11 himself. It was deposed by him that M.O.1 was thus seized in the presence of the witnesses. Ext. P8 is the mahazar prepared for the seizure of the axe marked as M.O.1. Ext.P8(a) is the relevant portion of the statement given by the accused pursuant to which the axe was recovered from the place pointed out by A11. Since the axe was found underneath the bushes at the place mentioned above, it can be held with certainty that the information as to the place where the axe was concealed or hidden was in the exclusive knowledge of the accused. So much of information which relates distinctly to the fact thereby discovered is admissible under S.27 of the Evidence Act. Much was Crl.A.No.1040 of 2006 & Crl.R.P.No.1437 of 2007 -:69:- argued by the learned counsel for the accused stating that the witnesses to Ext.P8 are the RSS/BJP workers and so no credence can be given to the same.
46. P.W.10 has testified before court that on 06.3.02 when he was near Kalamandir at about 2 p.m. police came there in a jeep in which A11 was also there. Getting information that accused was leading the police to show the weapon, he also went to that place. It was stated that it was the accused who took out M.O.1 axe from beneath the bushes mentioned earlier. Ext.P8 is the mahazar prepared for that purpose to which P.W.10 is a witness. In cross-examination he has stated that A11 had actually pointed out the place where M.O.1 was kept or concealed. In spite of the incisive cross-examination, the credibility of this witness could not be shaken. It was suggested that he was a co-accused along with other witnesses cited in this case but it was stated by him that those cases arose after this case. What ever that be, there Crl.A.No.1040 of 2006 & Crl.R.P.No.1437 of 2007 -:70:- is no reason to disbelieve P.W.10. As such the evidence given by P.W.19 corroborated by P.W.10 and Ext.P8(a) would prove that M.O.1 axe was recovered consequent to the information given by A11. After thoroughly scanning the evidence the court below has rightly accepted that part of the evidence as true.
47. It was stated by P.W.19 that on 10.3.02 at about 10.30 p.m. A2, A4, A10 and A15 who were seen near Kolad bridge were arrested by him. He says that when A2 was questioned he gave a disclosure statement as to the place where he had concealed the 'dagger' and that if taken to that place, he would show the place where the dagger was concealed and also the dagger. P.W.11 has corroborated the evidence given by P.W.19 regarding the information given and the subsequent discovery of the fact of concealment of dagger. It was stated by P.W.19 that as led by the accused he reached the place which was lying to the south-west of a shed situated by the side of the Crl.A.No.1040 of 2006 & Crl.R.P.No.1437 of 2007 -:71:- 'prawn field' belonging to one Soumini. The very fact that M.O.3 was seen concealed at such a place would make it clear that the place where the dagger was concealed was not at all accessible to anybody else. In other words, it was exclusively known to A2. It was stated by P.W.19 that after removing the cadjan leaves, M.O.3 dagger was taken out by the accused (A2). Since that statement gets corroboration from P.W.11 and Ext.P9 the mahazar prepared contemporaneously, we find no difficulty to act upon the evidence given by P.W.11 and P.W.19 pertaining to the same. Therefore, the court below was perfectly justified in holding that M.O.3 dagger was discovered consequent to the disclosure statement given by A2.
48. It was stated by P.W.19 that on 16.3.02 at about 6 a.m. A3 , A5 to A8 and A12 who were seen near Chekkikuni bridge were arrested by him. It was stated that when A12 was questioned it was stated by him that the 'chopper' (koduwal) was concealed by him at a Crl.A.No.1040 of 2006 & Crl.R.P.No.1437 of 2007 -:72:- particular place and that if taken to that place he would show the place where the chopper was concealed and also the chopper. It was stated that as led by A12, PW19 reached that place at 11.45 a.m. It was stated that the said place shown to him by A12 was beneath the slab put up across the drainage channel and beneath the bushes found underneath the cement slab. The said slab was by the side of Chiraparambu belonging to one Kappirichi. It was noted that M.O.2 was taken out by A12 from the place mentioned above for which Ext.P10 mahazar was prepared by him. P.W.12 who is the witness to Ext.P10 has given evidence supporting the testimony of P.W.19 with regard to the recovery of M.O.2 chopper from beneath the slab mentioned above. The place where M.O.2 was kept or concealed was known only to the accused and it was not accessible to anybody else. The Court could legitimately conclude that M.O.2 was found out based on the disclosure statement given by A12. That part of the evidence given Crl.A.No.1040 of 2006 & Crl.R.P.No.1437 of 2007 -:73:- by P.W.19 and P.W.12 and Ext.P10 and Ext.P10(a) were also rightly accepted by the learned Sessions Judge as true. As regard witness Nos. 8 and 10 it was contended by the defence that all of them are members of BJP/RSS and so their evidence should be disbelieved. But the suggestions put to them to that effect were denied. After careful analysis of the evidence given by P.Ws. 10 to 12, we are of the considered view that the court below was justifed in placing implicit reliance on the testimony of those witnesses.
49. Ext.P13 is the sketch prepared by P.W.16, the Village Assistant of Darmadom Village Office It was stated that Ext.P13 was prepared based on the scene mahazar. When cross-examined he has stated about the presence of mangroves seen by the side of the bund. Ext.P13 is of no help to the prosecution or even to the defence. The particulars required are noted therein in a confusing manner. Since the place of incident was described in Crl.A.No.1040 of 2006 & Crl.R.P.No.1437 of 2007 -:74:- Ext.P7, the scene mahazar and Ext.P3 the inquest report, it is not necessary to refer Ext.P13. But it has to be said that P.W.19, the Investigating Officer should have taken care to see that the plan supplied by the Village Assistant shows the correct particulars as shown in the scene mahazar.
50. The consistent case of the prosecution is that Pws.1, 2 and 4 could identify the assailants and the overt acts of some of the assailants in the moonlight. It was stated by them that it was a full moon day. Verifying the calender the learned Sessions Judge found that it was a full moon day. That was not seriously disputed by the defence. The learned counsel for the accused would submit that even if it was a full moon day and there was moonlight, still the prosecution version that the assailants could be identified by the witnesses at a distance of 15 meters cannot be accepted at all. The decision in Mohammed v. State of Kerala [1962 KLT 120] has been relied upon by the learned counsel to fortify that argument. Relying on the Crl.A.No.1040 of 2006 & Crl.R.P.No.1437 of 2007 -:75:- observations made by the learned author Modi it was held in the aforesaid decision :
"Even going by that distance the situation does not change. Modi (vide Modi's Medical Jurisprudence and Toxicology-13th Edition Page 60) while dealing with the amount of illumination required for identification observes :-
"According to Tidy, the best known person cannot be recognised in the clearest moonlight beyond a distance of seventeen yards. Colonel Barry, I.M.S. is of opinion that at distances greater than 12 yards the stature or outline of the figure alone is available as a means of identification. To define the feature even at a shorter distance-is practically impossible by moonlight".
Dr.Vincent in Legrand and Saule's "Legal Medicine" says that:
"...........................presuming the eyesight to be normal by moon-light one can recognise, when the moon is at the quarter, persons at a distance, of 21 ft., in bright moonlight at from 23 to 33 ft; and at the very brightest period of the full moon, at a distance of from 33 to 36 ft. In tropical countries the distances for moon-light may be increased.
Even making allowance for the increase in the distance in tropical countries, the distance of moonlight recognition cannot go from twelve yards or seventeen yards to 45 yards and 52 yards as in this case."
Crl.A.No.1040 of 2006 & Crl.R.P.No.1437 of 2007 -:76:- Any general standard applicable in all cases was not fixed in the aforesaid case also. It is submitted by the learned counsel that in that case, there was shades of the cashew- nut trees where the incident took place and evidence was to the effect that identification of the accused was had at a distance of 45-52 yards. The learned counsel submits that in this case there were mangroves by the side of the bund and by the side of the river and as such it was not possible for the witnesses to identify the assailants if they were at a distance of more than 10 meters from the place of incident. But it is in evidence that even before jumping to or proceeding to the river the witnesses could identify some of the assailants.
51. The learned counsel for the accused would submit that as in the case cited supra there is intrinsic evidence in this case also to indicate that the occurrence could not have taken place in the manner alleged by the prosecution. The decision in Mohammed's case cited supra was followed by Crl.A.No.1040 of 2006 & Crl.R.P.No.1437 of 2007 -:77:- this Court in Chellappan Nair v. State of Kerala [2006(1) KLT 499]. In that case also the incident did take place more than 50 yards away and so it was held that the possibility of PW2, the eye-witness seeing the accused was remote. It was further held that the witnesses could not have identified the weapon used and so his statements were only exaggerations. In Kunjayyappakutty v. State of Kerala [1993(2) KLT 64] also the learned author Modi was quoted as in Mohammed's case cited supra. That was a case where the witnesses deposed that they witnessed the occurrence from a distance of 20 to 25 meters and so it was held that it would not have been possible for those witnesses to identify the assailants. The Supreme Court decision in State of U.P. v. Ashok Kumar and another [AIR 1979 SC 874] has also been relied upon by the learned counsel for the accused. Referring to the passage appearing in Dr.Hans Gross's Criminal Investigation at page 185, it was held by the Apex Court :
Crl.A.No.1040 of 2006 & Crl.R.P.No.1437 of 2007 -:78:- "By moonlight one can recognise, when the moon is at the quarter, persons at a distance of from 21 feet, in bright moon-light at from 23 to 33 feet; and at the very brightest period of the full moon, at a distance of from 33 to 36 fee. In tropical countries the distances for moonlight may be increased."
4. The opinion of Gross referred to above fully fortifies our conclusions that it was not possible for the witnesses to have identified the respondents even in moonlight from a distance of about 150 yards. In these circumstances, therefore the High Court was fully justified in holding that it was not possible for the eyewitnesses to identify the respondents from such a long distance on the night of the occurrence."
52. On going through the evidence given by Pws.1, 2 and 4 it can be seen that the decisions cited by the learned counsel for the accused have no application. The distance from the actual place of incident to the place where from the witnesses were stated to have witnessed the incident is not beyond 20 feet. It was asserted by the witnesses that even before jumping to the river they did actually see some of the assailants and the overt acts played by them. The evidence is consistent and uniform that the accused were Crl.A.No.1040 of 2006 & Crl.R.P.No.1437 of 2007 -:79:- known to them previously and that the witnesses had close acquaintance with the accused. The accused were not strangers. It was stated that Pws.1, 2 , 4 and other persons who were with them at that particular place were formerly members of CPI(M) and it was because they crossed over to BJP the accused and other party men had grouse against them and it was because of that political enmity they were attacked by the accused. It is further contended by the prosecution that as those accused were known to the witnesses very closely and had close acquaintance with them it was possible for the witnesses to identify atleast some of the accused by their voice as stated by the witnesses. It is true that in Ext.P1 or in the statement given by the witnesses to the SDM or to the Magistrate it was not stated that they could identify the assailants by the voice also. It is not the case of the prosecution that the assailants could be identified only by voice but identification by voice was also relied upon by the prosecution to strengthen its Crl.A.No.1040 of 2006 & Crl.R.P.No.1437 of 2007 -:80:- case regarding the proof of identity of the assailants in the moonlight. In other words, those accused could be identified not only in the moonlight but also by voice.
53. The Supreme Court decision in M.C.Ali & Anr. v. State of Kerala [J.T. 2010 (3) S.C.626] has been relied upon by the learned counsel for the accused to fortify his submission that though in evidence it was stated that they could identify the accused persons in the torch light alleged to have been carried by the accused that torch was not seized by the police. Prosecution did not rely upon the torch light in the hands of some of the accused for proof of identification of the assailants. The learned Sessions Judge also did not rely upon that evidence. Hence it is not necessary to probe further into that aspect. It was held by the Apex Court in the decision in Kedar Singh v. State of Bihar (1998 S.C.C.(Cri) 907):
"It has also to be observed that even on a full dark night there is never total darkness. There can be other means to identify another through the shape of his body, Crl.A.No.1040 of 2006 & Crl.R.P.No.1437 of 2007 -:81:- clothes, gait, manner of walking etc., etc. Identification is possible by voice too."
In fact in this case the unimpeachable evidence is that it was a full moon day and there was bright moon light and so the prosecution is in a better position than the one mentioned in the aforesaid case. In the decision in State of U.P. v. Babu (AIR 2003 SC 3408) it was held by the Supreme Court:
"Apart from the mention about the torchlight, one important aspect which cannot be lost sight of and which is of relevance and great significance is that the accused persons are known to the witnesses. When the persons are known, identification is possible from the manner of speech, manner of walking and gesticulating and special features of a person like the physical attributes."
The above said decision, according to the prosecution, would perforce support its case since the evidence is to the effect that P.Ws.1, 2 and 4 and the accused were known to each other for quite a long time and as such it was all the more possible for P.Ws.1, 2 and 4 to identify the assailants from their manner of speech, manner of walking and other Crl.A.No.1040 of 2006 & Crl.R.P.No.1437 of 2007 -:82:- special features. As there was bright moon light and since the evidence is to the effect that they did see the incident before jumping into the river or the marshy land, the contention raised by the defence that it was not possible for the prosecution witnesses to have a proper identification of the assailants does not gain ground. The decision in Shivraj Bapuray Jadhav v. State of Karnataka (AIR 2003 SC 3578) was rendered in a case where the incident took place two days prior to the new moon day. There also it was found that the parties were used to live in the midst of nature and accustomed to live without light. It was further held that the parties could have been identified easily not only from the voices but from the fact that they were known persons and close relatives and living in the neighbouring huts. The facts dealt with therein, according to the prosecution, are almost identical to the facts of this case. It was contended by the defence that there is discrepancy with regard to the distance from where each of the witnesses did see the Crl.A.No.1040 of 2006 & Crl.R.P.No.1437 of 2007 -:83:- incident. On a marshalling of the entire evidence, it can be seen that the distance in meters spoken to by the witnesses was only a rough estimate. Not only that they are definite and consistent that they did see the over tact played by A1 to A3, A11 and 12 before moving towards the river. As such nothing substantial turns out of the so called discrepancy with regard to the distance stated by them. In other words, it will not in any way corrode the credibility of the three ocular witnesses. In S.Sudershan Reddy v. State of Andhra Pradesh (AIR 2006 SC 2716) it was held:
"So far as the contention of insufficient light is concerned, we may indicate that in an open field on a cloudless starry night, there was no difficulty in identifying the victim by the assailants because of existence of some light with which identification was possible. PW 1 being a close relation of both the accused, there was no difficulty for PW 1 to identify them. The accused were also known to the other witness for which he could also identify them."
54. Bearing in mind the factual scenario and the law enuncited on the point, we have no hesitation to hold that Crl.A.No.1040 of 2006 & Crl.R.P.No.1437 of 2007 -:84:- before jumping into the river itself P.Ws.1, 2 and 4 could identify A1 to A3, A11 and A12 attacking Sujeesh and Sunil in the manner stated above and could also see all or some of the other accused at the scene of occurrence. It was also argued by the learned counsel for the accused that there was delay in the registration of F.I.R. We cannot agree with that submission. According to the witnesses, the incident took place at 1AM. After the accused left the place, the body of Sujeesh was at first taken to the road near Kalamandhir and from there it was taken to the Co- operative Hospital from where the body was examined by PW3. As the victim was dead, his body was taken to Govt. Hospital, Thalassery. It was only thereafter PW1 and CW6 went to Dharmadom Police Station. It is submitted by the learned counsel for the accused that at that point of time, Dharmadom Police Station was housed in Thalassery Town itself, some where near the Govt. Hospital and so since F.I.R. was shown to have been registered at 3 AM, there Crl.A.No.1040 of 2006 & Crl.R.P.No.1437 of 2007 -:85:- was delay in registering the same. PW1 and CW6 who are the closed friends and associates of the deceased cannot be expected to be in that mental condition to immediately rush to the police station. Not only that, for taking the body to the Co-operative Hospital and then to the Govt. Hospital and then to go to the police station it would have taken much time. The Police Officer who has to record the statement must be readily available to record statement. The time is at about 3AM. In any event, since the statement was recorded by PW17 at 3 AM it cannot be found that there was any delay in the registration of crime. The fact that PW17 could not clarify some of the sentences occurring in Ext.P1(a) will not in any way affect the truthfulness of the version contained in Ext.P1.
55. It is also important to note that Ext.P4, the inquest report was prepared by PW19 from 8 AM to 11 AM from the Govt. Hospital, Thalassery. It is stated that a true version was given by PW4 in Ext.P4. We do not mean that Crl.A.No.1040 of 2006 & Crl.R.P.No.1437 of 2007 -:86:- the statement of PW4 contained in Ext.P4 can be made use of. But the prosecution contends that no material contradiction in the evidence of PW4 with reference to Ext.P4 could be brought out by the defence. The learned counsel for the revision petitioner has drawn our attention to that aspect only to enlighten the court that there was no delay in registration of F.I.R as contended by the defence and also to fortify his submission that even the earliest version contained in Ext.P1 was corroborated by PW4 another eyewitness to the occurrence who gave a graphic account of the incident which is in tune with Ext.P1.
56. The decision in M.C.Ali's case [JT 2010 (3) SC- 6266] cited supra was relied upon by the learned counsel to fortify his another submission that the prosecution case has to be doubted for the delay in the FIR reaching the Court. In that case the FIR was registered at 0030 hours. On that day morning it was sent to the Magistrate and the Magistrate signed it on the same day at 3.30 p.m. Crl.A.No.1040 of 2006 & Crl.R.P.No.1437 of 2007 -:87:- According to the defence in that case, FIR was registered later and so the time gap gave an opportunity for the prosecution to manipulate the case and book innocent persons who were thought to be enimical with witnesses and his family. In that context the effect of later receipt of the FIR was scrutinized by the Court. In that case, there were other circumstances also to hold that F.I.R could not have been registered at the time as contended by the prosecution.
57. The learned counsel for the accused would submit that as mentioned in that case, here also the F.I.R [Ext.P1and P1(a)] reached the Court along with the inquest reports and so the possibility of the F.I.R having been concocted at a later point of time cannot be ruled out. But, here, the evidence given by P.W.1 with regard to the lodging of the First Information Statement is found to be credible. That part of the evidence given by P.W.1 was accepted by the learned Sessions Judge as true. We Crl.A.No.1040 of 2006 & Crl.R.P.No.1437 of 2007 -:88:- find no reason to differ from the view so taken by the learned Sessions Judge.
58. The decision in Ramesh Baburao Devaskar v. State of Maharashtra [(2009) 1 S.C.C.(Cri) 212] has also been cited by the learned senior counsel. The F.I.Statement can be lodged by anybody; he need not be an eye witness to the occurrence. It is also trite law that F.I.R need not be an encyclopedia containing all details of the incident. Lodging of F.I.R is to set the criminal law in motion. In the decision cited above, it was held that First Information Report cannot be lodged in a murder case after the inquest has been held. The circumstances which emerged in that case did show that the FIR was registered in a murder case after the inquest was held. That is not the position here. In that case enmity between two groups was accepted by the Court and thus the Apex Court held that in a situation of that nature whether FIR was ante-timed or not requires serious consideration. The Crl.A.No.1040 of 2006 & Crl.R.P.No.1437 of 2007 -:89:- F.I.R in cases of that nature provides valuable piece of evidence although it may not be a substantial evidence. The reason for insisting on lodging of FIR without undue delay is to obtain, earlier information in regard to the circumstances in which crime had been committed; the name of the accused, the parts played by them, the weapons which had been used as also the names of eyewitnesses. It was held by the Apex Court as:
"The Code of Criminal Procedure provides for certain internal and external checks; one of them being the receipt of a copy of the first information report by the Magistrate concerned. It is not in dispute that in a grave case of this nature, the copy of the first information report was received by the Magistrate four days later. No explanation has been offered therefore."
59. Section 157 of the Code of Criminal Procedure mandates that the FIR should be sent to the nearest Magistrate forthwith. The decision in Vijayakumar and others v. State [1994 (2) KLJ 903] has also been cited by the learned counsel for the accused. The learned senior Crl.A.No.1040 of 2006 & Crl.R.P.No.1437 of 2007 -:90:- counsel submits that the facts dealt with in that case are identical to the facts of this case. The argument advanced is that if the evidence given by PWs.1, 2 and 4 is accepted then it can be seen that when the body of Sujeesh was taken to a place near Kalamandir, the police officer was present at the police picket post to whom information was given as to how Sujeesh sustained fatal injuries and if that be so, the police officer present there could have registered the FIR. Undoubtedly, it was only a picket post. It is not a police station as such. It was only a casual information when the body of Sujeesh was taken to the jeep to take it to the hospital that was given to the police officer present there. Non-recording of the FIR at that point of time cannot be a ground to say that there was delay in the registration of the FIR or that the information first in point of time was suppressed by the police. It cannot be said that a statement or information as such was given by P.W.1 to the police official who was present so as to Crl.A.No.1040 of 2006 & Crl.R.P.No.1437 of 2007 -:91:- reduce that statement to writing. The value of the FIR must always depend upon the facts and circumstances of a given case. It is not intended to be treated as the final word of the prosecution in the matter. The Supreme Court in the decision reported in Mehraj Singh v. State of U.P. [JT 1994 (3) S.C.440] held:
"the first information report in a criminal case is a vital and valuable piece of evidence for the purpose of appreciating the evidence led at the trial. The Supreme Court also held that to see whether the first information report was lodged at the time it is alleged to have been recorded, the courts are to look for certain external checks. One of the checks is the receipt of the copy of the first information report by the local Magistrate. If the report is received by the Magistrate late, it can give time rise to an inference that the first information report was not lodged at the time noted in the first information report. To get over this difficulty, the prosecution can offer a satisfactory explanation for the delay in dispatching the report or the receipt of the same by the magistrate. The second external check can be its reference to the inquest report..."
60. It was argued with vehemence that in the inquest conducted by P.W.15 with regard to the body of Sunil, in Crl.A.No.1040 of 2006 & Crl.R.P.No.1437 of 2007 -:92:- the relevant column it was noted that the name of the accused was not known. Ext.P3 is the inquest report prepared by P.W.15, the ASI. He says that it was conducted by him as per the direction given to him by the C.I. of Police.
61. The prosecution contends that the very statement made by P.W.15 in column 6 that the deceased Sunil was not a man of good character itself would reveal that PW15 was biased and that from the very inception he too was in support of the defence. P.W.15 admits that he did not see the FIR when he was preparing inquest report. It was stated in Column No.12(a) which requires to note; if it is a case of violence, whether any person is suspected and if so who and why; to which P.W.15 noted "now not known". The inquest on the body of Sunil was conducted from the place of occurrence, the bund mentioned earlier. It was stated by P.W.15 that he conducted the inquest as instructed or directed by the Crl.A.No.1040 of 2006 & Crl.R.P.No.1437 of 2007 -:93:- C.I. and that Crime number was noted on Ext.P3 as informed by the Circle Inspector. The inquest report should have been prepared with the required seriousness. It is seen that the inquest as per Ext.P3 was conducted by P.W.15 between 8.45 a.m. to 11 a.m. on 02.3.02. The inquest on the body of Sujeesh was conducted by P.W.19 during 8.30 a.m. to 11.30 a.m. from the Government Hospital, Thalassery. Therefore, it is crystal clear that the F.I.R. could have been only with P.W.19 and not with P.W.15. True, a copy of the F.I.R. could have been made available to P.W.15, had he been so sincere and diligent.
62. In Ext.P3 it was noted that the dead body of Sunil was found at a place 6 Mtrs to the east of the shed made up of cadgen leaves. The place where the dead body of Sunil was found was noted as a place near the mangrove and was by the side of the ridge (nadavarambu). It was noted that the place of incident is about 250 Mtrs. to the west of the Meloor Kalamandir referred to earlier. The Crl.A.No.1040 of 2006 & Crl.R.P.No.1437 of 2007 -:94:- shed mentioned above was stated to be of one Krishnan. The place where the dead body was found was a marshy area about 6 Mtrs. to the east of the shed mentioned above. It was stated that there were small pits here and there where coconut husks used to be immersed for treating the same. It was stated that there was a varambu (ridge) leading to the shed mentioned above and that varamba was seen to be slippery. To the south of that varamba there were mangroves. It was specifically noted that near to that place the coconut husk were seen heaped up and on such husks blood stained black hairs were seen. It was taken into custody by the police. It indicated that the incident took place near to that place which is about 6 mtrs. away from the shed. It was also noted that about 10 mtrs to the north of the place, where the dead body was seen lying, a saffron coloured `mundu' was seen. That place was found to be a marshy land. The blood-stained coconut husk, black hairs, mundu Crl.A.No.1040 of 2006 & Crl.R.P.No.1437 of 2007 -:95:- etc. were seized as per Ext.P3. The description of the place of occurrence would indicate that the incident did take place near the shed mentioned above.
63. It was argued by the by the learned counsel for the accused that the ridge noted by P.W.15 in Ext.P3 was slippery in nature and so it was not possible for the accused persons to walk through that varamba (ridge) to reach the bund. But it may noted that the inquest was conducted at about 8.30 a.m. on that day. Evidence is to the effect that since the body of Sunil was not seen people were searching for the same. Naturally, in the course of that search so many persons must have walked along the marshy land and also on the varamba and so it was natural the varamba became slippery. Therefore, the contention that it was not possible for the accused to reach the shed by walking along that varamba cannot be accepted.
64. Ext.P4 is the report prepared by PW19 based on the inquest conducted on the body of Sujeesh from Crl.A.No.1040 of 2006 & Crl.R.P.No.1437 of 2007 -:96:- Govt.Hospital, Thalassery. It was noted that the accused died due to the fatal injuries inflicted on him with chopper, axe and other deadly weapons. It was also noted in Column No.12(d) that accused assailants were known. It is not necessary that names of the assailants should be noted in the inquest report. P.W.4 has stated that he was present at the time when the inquest was conducted and his statement was recorded by P.W.19. No question was put to P.W.4 whether he was present at the time when Ext.P3 inquest was conducted. That apart, it was not possible for P.W.4 to be present when inquest on the body of Sunil was conducted since at that time P.W.4 was in the hospital where P.W.19 was conducting inquest on the body of Sujeesh. P.W.1 did not say that he, PW2 and PW4 were present when Ext.P3 inquest was conducted. Therefore, the fact that their statements were not recorded by P.W.15 in Ext.P3 does not warrant any inference that they were unaware of the cause of death at that time. Crl.A.No.1040 of 2006 & Crl.R.P.No.1437 of 2007 -:97:-
65. It was stated in unambiguous terms by P.W.2 that when the accused reached there, Sujeesh and Sunil were not in the shed but outside the shed on its northern side. It was stated that only when the accused reached there, P.W.2 and others jumbed into the river. It was further stated that he was lying outside the shed where the beaten husks were spread. He denied the suggestion that he was asleep. His evidence would show that before jumping into the river, he could see the incident as he was hiding behind the heap of coconut husks. It was asserted by P.W.1 that he had actually seen the accused inflicting injuries on Sujeesh and Sunil. When cross- examined, it was stated by him "
". Even before jumping into the river they saw the assailants attacking the two persons mentioned above. It can be stated in his own words "
. ." The
inconsistency with regard to the place from where he
Crl.A.No.1040 of 2006 &
Crl.R.P.No.1437 of 2007 -:98:-
actually saw the aforesaid overt act of the accused was projected referring to the statement given by him to the Executive Magistrate where it was stated by him that he saw the overt act by hiding behind the heap of coconut husk. There is infact no inconsistency in it. When the accused persons were seen attacking two persons with dangerous weapons, the natural conduct would be to watch the same by sitting or standing at a place which will not be noticed by the attacking group. We do not find anything unnatural or unusual in it. The fact that all the details were not given by P.W.1 when he was examined by the Executive Magistrate in Ext.D1 cannot come to the rescue of the defence to assail the credibility of P.W.1 since in the proceedings under S.107 Cr.P.C. the evidence regarding the commission of the crime mentioned in this sessions case was not required to be given. Therefore, the challenge against the credibility and acceptability of P.W.1 on that score is unmerited.
Crl.A.No.1040 of 2006 & Crl.R.P.No.1437 of 2007 -:99:-
66. It was stated by P.W.1 that A2 and A3 could be identified by their voice also. It is not a case that they could be identified by their voice alone. It was asserted by P.W.1 that the accused including A2 and A3 could be identified in the moon light. During cross-examination question was put to P.W.1 whether he could identify any other person by his/their voice to which he answered in the positive. But the question was not pursued by the defence. The learned Prosecutor also did not put any question in the re-examination with regard to the same. Confronting the statement contained in Ext.D1, question was put to P.w.1 to the effect that he could identify only A1 to A3, A11 and A12. It was then asserted by P.W.1 that apart from those five accused persons others were also there. But he omitted to give the names. The statement contained in Ext.D1 giving specific reference to the complicity of A1 to A3, A11 and A12 was affirmed by him during cross-examination also.
Crl.A.No.1040 of 2006 & Crl.R.P.No.1437 of 2007 -:100:-
67. It was brought out by the defence that P.W.1, 2 and 4 were counter petitioners in the proceedings initiated under S.107 Cr.P.C. It was initiated only after this incident. Questions were put to P.W.1, 2 and 4 that they were accused in so many cases. The evidence would show that most of the cases were initiated or filed after the incident in this case. One or two cases were there which were filed prior to this incident also. P.W.2 has asserted that he was not convicted by any court till that date. There is no case for the defence that P.W.4 was convicted by any court prior to the incident. Similar is the case with regard to P.W.1 also. It is the admitted fact that P.W.1, 2 and 4 belong to RSS/BJP and that the accused belong to CPI(M). There is evidence to show that prior to the incident also there were clashes between CPI(M) people and RSS men. Even on 01.3.02 there were clashes between the members of the two parties. But, according to the prosecution, all the 11 persons including P.W.1, 2 and 4 Crl.A.No.1040 of 2006 & Crl.R.P.No.1437 of 2007 -:101:- and deceased Sujeesh and Sunil were formerly members or workers of CPI(M) but they later joined RSS. According to the prosecution, Sujeesh and Sunil became RSS only about two months prior to the incident. According to the prosecution these persons including P.W.1, 2 and 4 were attacked by CPI(M) people since they betrayed CPI(M) and joined RSS. Therefore, according to the prosecution there was every reason for the CPI(M) workers to wreck vengeance on PW's group to teach a lesson to such persons who leave CPI(M) and join to RSS, evidently to prevent defection from CPI(M).
68. As is always said motive is a double edged weapon. The alleged motive can be used by the prosecution to say that there was motive for the accused to attack P.W.1's group. On the other, it can also be used by the defence to say that because of enmity P.W.1 and others had motive to rope in all known CPI(M) workers against whom P.W.1, 2 etc. had grudge.
Crl.A.No.1040 of 2006 & Crl.R.P.No.1437 of 2007 -:102:-
69. Another argument put forward by the learned counsel for the defence is that 11 persons including PWs.1, 2 and 4 would not have in the normal course left their houses leaving their women folk in the house. But there is nothing unusual or unnatural in it because the police men or the CPI(M) would normally target the RSS/BJP men and not the women residing in their respective houses. So we find there was nothing unusual in PW1 and others chosing a lonely place to spend that night.
70. The learned counsel for the accused has argued at length regarding the non-mentioning of the names of the accused and the weapons used by them in the commission of the crime in the inquest report Ext.P3 prepared by PW15. It was also pointed out that when questions were put to other witnesses it was stated that at the time of inquest the eye witnesses were also present there. But that contention is found to be fallacious. No question what so ever was put to Pws.1, 2 and 4, suggesting that they were present when Crl.A.No.1040 of 2006 & Crl.R.P.No.1437 of 2007 -:103:- Ext.P3 inquest was prepared by PW15 from the scene of occurrence. On the other hand PW4, the eye witness to the occurrence was actually present when Ext.P4 was being prepared by PW19 almost at the very same time at the Govt. Hospital, Thalassery. Since no question was put to Pws.1, 2 and 4 it is idle for the defence to contend that because they did not actually witness the occurrence they did not give statements to PW15. The very fact that PW1 and CW6 were the persons who had accompanied Sujeesh to the Co- operative Hospital and from there to Govt. Hospital, Thalassery and thereafter to Dharmadom Police Station would make it indubitably clear that they were actually present near the place of occurrence at the time when the incident happened. The decision in Pedda Narayana v. State of A.P. [AIR 1975 SC 1252] can be referred to in this connection. In that case it was held :
"the proceedings under Section 174 have a very limited scope. The object of the proceedings is merely to ascertain whether a person has died under suspicious Crl.A.No.1040 of 2006 & Crl.R.P.No.1437 of 2007 -:104:- circumstances or an unnatural death and if so, what is the apparent cause of the death. The question regarding the details as to how the deceased was assaulted or who assaulted him or under what circumstances he was assaulted is foreign to the ambit and scope of the proceedings under Section 174. Neither in practice, nor in law, was it necessary for the police to mention those details in the inquest report. It is, therefore, not necessary to enter all the details of the overt acts in the inquest report. Their omission is not sufficient to put the prosecution out of Court."
Similarly in Shakila Khader v. Nausheer Cama [AIR 1975 SC 1324] the contention raised by the defence that non- mentioning of a person's name in the inquest report would show that he was not an eyewitness to the incident was repelled on the ground that an inquest under Section 174 Cr.P.C. is concerned with establishing the cause of death and only evidence necessary to establish it need be brought out. The decision in Pedda Narayana's case cited supra was approved by a three-Judge Bench of the Apex Court in Khujji v. State of M.P. [AIR 1991 SC 1853]. It was held :
"the testimony of an eyewitness could not be discarded Crl.A.No.1040 of 2006 & Crl.R.P.No.1437 of 2007 -:105:- on the ground that their names did not figure in the inquest report prepared at the earliest point of time."
In Amar Singh v. Balwinder Singh [2003 SCC (Cri) 641] it was observed that no inference against the prosecution could be drawn for the non-mention of the persons in the inquest report. It was held in Radha Mohan Singh alias Lal Saheb and others v. State of U.P. [(2006) 2 SCC 450] :
"it is well settled by a catena of decisions of this Court that the purpose of holding an inquest is very limited viz. to ascertain as to whether a person has committed suicide or has been killed by another or by an animal or by machinery or by an accident or has died under circumstances raising a reasonable suspicion that some other person has committed an offence. There is absolutely no requirement in law of mentioning the details of the FIR, names of the accused or the names of the eyewitnesses or the gist of their statements, nor is it required to be signed by any eyewitness."
Therefore, the argument advanced by the learned counsel for the accused that prosecution was not sure about its case and that F.I.R has not come into existence at the time when Crl.A.No.1040 of 2006 & Crl.R.P.No.1437 of 2007 -:106:- inquest was prepared is devoid of any merit.
71. Referring to certain guidelines mentioned in the Kerala Police Manual, 1972 the learned counsel for the accused would submit that instruction No.823 therein suggest that the officer conducting the inquest under Section 174 of Cr.P.C. should summon the persons acquainted with the facts of the case and to examine them during the inquest in the presence of the Panchayatdars and the dead body. That instruction further states that only those summoned are bound to give true answers to questions by the Police Officer. There was no case for the defence when Pws.1, 2 and 4 were in the witness box that at the time of Ext.P3 they were summoned by any police officer to be present at the time of inquest. As such there was no occasion for any of them to give statement to PW15. Instructions contained in 835(8) has also been referred to by the learned Senior counsel for the accused, where it is stated that the names of the accused and eyewitnesses Crl.A.No.1040 of 2006 & Crl.R.P.No.1437 of 2007 -:107:- should be mentioned in the inquest report if such names have been disclosed before or at the time of drawing up the inquest and especially if they have not been mentioned in the F.I.R. Here again, it has to be stated that PW15 was unaware of the contents of the F.I.R as PW19 who was having with him the F.I.R. was then conducting inquest on the body of Sujeesh at the Govt. Hospital, Thalassery. Other instructions contained in the Police Manual have also been referred to by the learned Senior counsel for the accused to contend that instructions therein were not complied with or followed by PW15 and PW19 when the inquest was conducted. The object of preparing the inquest as highlighted by the Apex Court in Radha Mohan Singh's case and other cases is clear that the investigation under Section 174 is limited in scope and is confined to the ascertainment of the apparent cause of death and that it is concerned with discovery whether in a given case the death was accidental, suicidal or homicidal. In the light of the Crl.A.No.1040 of 2006 & Crl.R.P.No.1437 of 2007 -:108:- authoritative pronouncements of the Supreme Court cited supra argument to the contrary advanced by the defence is only to be turned down. Even if it is assumed that the Police Officer did not conform to the departmental instructions that cannot militate against the prosecution nor can their procedural lapses overshadow or nullify the effect of the credible testimony given by the ocular witnesses.
72. It is argued by the learned counsel for the accused that Pws.1, 2 and 4 are highly interested witnesses being close friends and associates of the deceased and having animosity towards the accused and workers of CPI (M) and so their evidence has to be viewed very carefully and cautiously before accepting the same. The contention that they are to be treated as highly interested witnesses and so their evidence cannot be relied upon at all is unacceptable, since it is quite unlikely that they would spare the real accused and would implicate somebody else. Since the incident took place on the bund far away from the Crl.A.No.1040 of 2006 & Crl.R.P.No.1437 of 2007 -:109:- residential houses and almost at the dead of night (1 AM) no persons near by could be expected to be present so as to witness the incident. But court has to scrutinise the evidence given by the witnesses who were actually present at that bund, who at the relevant time were stated to have gone there to spend that night as they were afraid of CPI (M) activists and also the police. The learned counsel would further submit that simply because Pws.1, 2 and 4 have stated, showing the persons in the dock that all those persons were seen at the particular time and place it cannot be swallowed as such since it is easy for the witnesses to give such omnibus statement in that fashion when they were not asked to state about any particular overt act of any particular accused to test their credibility. But Pws.1, 2 and 4 have stated about the overt acts of some of the accused. According to the prosecution there was no necessity for other accused to do any overt act as there were only two victims present at that time. According to Crl.A.No.1040 of 2006 & Crl.R.P.No.1437 of 2007 -:110:- the prosecution, there is nothing unusual or unnatural in the evidence given by Pws.1, 2 and 4 regarding the identity of the assailants, because the names of all those accused persons were mentioned in Ext.P1 given at 3 AM on 2.3.2002 itself and since all those accused persons were known to Pws.1, 2 and 4 for quite a long time there was no necessity to conduct any test identification parade.
73. The learned counsel for the accused emphasised on another aspect as well that though in Ext.P1 the name of one Vazhayil Ashraf was also mentioned, but the Investigating Officer himself could find that Vazhayil Ashraf was not involved in the incident and thus, he filed Ext.P18 report to delete the name of Vazhayil Ashraf from the array of accused. The learned counsel submits that in spite of the fact that PW19 had filed Ext.P18 report as mentioned above the three prosecution witnesses mentioned above did not state that Vazhayil Ashraf was not there and that it was only a mistake. This has been projected by the learned counsel Crl.A.No.1040 of 2006 & Crl.R.P.No.1437 of 2007 -:111:- to augment his submission that the possibility of innocent persons being implicated in this case cannot be ruled out for. According to him, only because Ashraf was admitted in a hospital at Mangalore be could convince the Investigating Officer that he was not present at the time of occurrence.
74. It is important to note that according to PW1 and others, Ashraf who was seen by them as one of the assailants was Vazhayil Ashraf, S/o.Khadher, a resident of Meethalepeedika, aged 30 years whereas Ext.P18 report shows the person who according to PW19 was in the hospital was Vadayil Ashraf, S/o.Kunjippakki, aged 42 years, Vadayil House, Dharmadom Amsom. Therefore the person mentioned in Ext.P18 is totally different from Vazhayil Ashraf mentioned by the witnesses. It is pertinent to note that there is no case for PW19 that Ashraf mentioned in Ext.P18 was ever shown to Pws.1, 2 and 4 and other eyewitnesses to the occurrence. It was incumbent upon PW19 to ascertain the identity of Ashraf mentioned in Crl.A.No.1040 of 2006 & Crl.R.P.No.1437 of 2007 -:112:- Exts.P1 and P4 before jumping to the conclusion that Ashraf mentioned above was in the hospital. It is surprising to note that the learned Prosecutor also did not try to ascertain the truthfulness of the prosecution witnesses and the correctness of Ext.P18. The fact that there was nobody to support Pws. 1, 2 and 4 has been taken advantage of by the Investigating Officer and also by the prosecuting agency. Be that as it may, the credibility of Pws.1, 2 and 4 is not something to be adjudged with reference to Ext.P18. It was held by the Supreme Court in Karnel Singh v. State of M.P. [(1995) 5 SCC 518] that in case of defective investigation the court has to be circumspect in evaluating the evidence but it would not be right in acquitting an accused person solely on account of the defect and to do so would tantamount to playing into the hands of the investigating officer. Similarly in Paras Yadav v. State of Bihar [(1999) 2 SCC 126] while commenting upon certain omissions of the investigating agency, it was held by the Crl.A.No.1040 of 2006 & Crl.R.P.No.1437 of 2007 -:113:- Apex Court that such lapse is committed designedly or because of negligence and hence the prosecution evidence is required to be examined dehors such omissions to find out whether the said evidence is reliable or not. Similar view was taken by the Apex Court in Ram Bihari Yadav v. State of Bihar [(1998) 4 SCC 517] where it was held that the story of prosecution will have to be examined dehors such omissions and contaminated conduct of the officials, otherwise, the mischief which was deliberately done would be perpetuated and justice would be denied to the complainant party and this would obviously shake the confidence of the people not merely in the law-enforcing agency but also in the administration of justice. In a case where the prosecution case is fully established by the direct testimony of the eyewitnesses, which is corroborated by the medical evidence, any failure or omission of the investigating officer cannot render the prosecution case doubtful or unworthy of belief. The prosecution having Crl.A.No.1040 of 2006 & Crl.R.P.No.1437 of 2007 -:114:- examined three eyewitnesses there was no necessity of multiplying the number of witnesses. Plurality of witnesses is not the requirement of law. What is scrutable is whether the evidence given by the eyewitnesses examined inspires confidence in the mind of the court.
75. It is also argued by the learned counsel for the accused that in order to ensure the correctness or truthfulness of the statements of PWs.1,2 and 4 that they were actually present at the place of incident at the relevant time the investigating officer should have collected some reliable materials. It was pointed out by the defence that if those witnesses had carried the body of Sujeesh from the place of incident to the road and from there to the Co- operative Hospital in the police jeep, the dresses worn by those witnesses should have been stained with blood oozed out from the incised wounds sustained by Sujeesh and if those dresses were seized by PW19 that could have helped the prosecution to prove the immediate presence of those Crl.A.No.1040 of 2006 & Crl.R.P.No.1437 of 2007 -:115:- witnesses at the place of incident. It was also contended by the defence that PW19 has not prepared any mahazar with regard to the police jeep to indicate whether there were blood stains in the jeep when the body of Sujeesh was taken to Coperative Hospital. It is true, had it been done so by Pw19 it would have more strengthened the prosecution but the lapses on the part of the investigating officer in collecting such materials cannot throw over-board the otherwise credible evidence given by the eyewitness to the occurrence. It was also pointed out by the defence that PW19 did not elicite answeres from PWs.1, 2 and 4 by questioning them as to the exact place from where they could see the incident. That according to the defence was necessary to visualise the position and to give a clear idea as to whether it was possible for those witnesses to identify the assailants in the moonlight. The place where from the witnesses were stated to have seen the incident was not specifically noted by PW19 in the scene mahazar nor did he Crl.A.No.1040 of 2006 & Crl.R.P.No.1437 of 2007 -:116:- require the same to be noted by the Village Officer in the plan prepared by him. Here again, it has to be said that PW19 did not bestow his attention seriously in this matter. There might have been lapses on his part. The evidence given by PWs.1, 2 and 4 inspires confidence in the mind of the court that they were actually present near the shed during the relevant time and they had every occasion to witness the incident inflicting injuries on the body of Sujeesh and Sunil. Hence the omission on the part of PW19 in noting the particulars mentioned above is no reason to brush aside the otherwise trust-worthy statements of those three witnesses.
76. It is also contended by the defence that though the case of the prosecution is that some of the other accused had carried iron rods, crow bar, chopper etc. no attempt was made by PW19 to recover those weapons by questioning those accused persons. Had any material incriminating object used in the commission of the crime Crl.A.No.1040 of 2006 & Crl.R.P.No.1437 of 2007 -:117:- been recovered consequent to any statement given by any of such accused persons that could have been made use of to show the complicity of those accused with the crime alleged against them.
77. The learned counsel for the accused would submit that there are contradictions in the evidence given by the three eyewitnesses as to the place from where the accused persons reached the place of incident. The evidence is to the effect that about 15 persons carrying deadly weapons came from the eastern side walking through the ridge/varamba whereas about 15 other persons came from the northern side. It was contended by the defence that when about 15 persons came through the eastern side and another 15 persons came through the northern side it is quite improbable that the witnesses could have identified the 15 accused persons from among the 30 persons. According to the witnesses among the 15 accused who faced the trial about 7 or 8 persons came from eastern side Crl.A.No.1040 of 2006 & Crl.R.P.No.1437 of 2007 -:118:- and the remaining accused came from the northern side. That part of the evidence according to the prosecution is highly artificial since persons who were on the bund at that time under no circumstance could identify 7 or 8 persons from among 15 persons who came from the eastern side. Similar is the case with regard to the identification of a few from 15 persons who came from the northern side.
78. Referring to the decisions in Mohammad's case and other cases referred to earlier the learned counsel for the accused would submit that the statement given by PW1 and others that it was A2 Shivan @ Shivatty who stabbed Sujeesh and Sunil with MO3 dagger is also quite unbelievable since it was not possible for them to identify the weapon from a distant place in the moonlight. But as has been stated earlier their evidence is to the effect that before jumping into the slushy area or the river they hid behind the heap of husk and could actually see A2 stabbing deceased Sujeesh and Sunil with MO3 dagger. True, it may Crl.A.No.1040 of 2006 & Crl.R.P.No.1437 of 2007 -:119:- not be possible for a witness to identify the weapon whether it was a dagger or knife or to note its size when the incident is seen in the moonlight, even though it may be possible for them to identify the assailants as well as the nature of the attack made by the assailants. But they asserted that they could see the accused stabbing Sujeesh and Sunil. Hence it was all the more possible to state that the accused stabbed Sujeesh and Sunil, whether it be with a knife or a dagger. That the weapon which was actually used by A3 to stab Sujeesh and Sunil was MO3 could be proved otherwise. It was seized from a place as shown by the accused, based on a disclosure statement, which was found admissible under Section 27 of the Evidence Act. Therefore, there is nothing to disbelieve that part of the evidence given by the prosecution. The dagger MO3 which was sent to the FSL, Thiruvananthapuram for examination was found to contain human blood. This dagger was item No.12 in the FSL Report marked as Ext.P19.
Crl.A.No.1040 of 2006 & Crl.R.P.No.1437 of 2007 -:120:-
79. Ext.P19, the FSL Report further shows that one hatchet with metallic handle and hook (the total length of the handle 50.5 cms and the width of the sharp edge 11.5 cms) also contained brown coloured stains (blood) on the blade and handle, as certified therein. Item No.14 in Ext.P19 was a sword with wooden handle, having a total length of 57.5 cms. Its blade was sharp at one edge curved and tapering at the tip and having a width of 4.2 cms. It also contained dark brown stains on the blade portion. That item No.14 also was found to contain human blood. Since item No.14 mentioned above was curved and tapering at the tip it was described as chopper. Therefore, the fact that MO1 to 3 (a hatchet, small axe, chopper and dagger) contained human blood would strengthen the prosecution case regarding the complicity of the three accused A2, A11 and A12 to the hilt. These weapons were recovered consequent to the disclosure statements given by each of the accused as referred to earlier.
Crl.A.No.1040 of 2006 & Crl.R.P.No.1437 of 2007 -:121:-
80. The statements of some of the eyewitnesses were recorded by J.F.C.M., Thalassery. Some of them were examined on 13.5.2002 and others were examined on 14.5.2002; that is; more than 21/2 months after the incident. The statement so recorded by the learned Magistrate is not substantive evidence. Though these statements were marked on the side of the prosecution these statements were not used as such by the prosecution. These statements were confronted to the witnesses Pws.1, 2 and 4 to mark certain contradictions. It could not be disputed that when these witnesses were examined by the learned Magistrate also the overt acts played by accused Nos.1 to 3, 11 and 12 were specifically mentioned. In other words, that part of the evidence given by the eyewitnesses to the occurrence could not be contradicted though certain other minor aspects were confronted. Ext.D2(a) is the contradiction to the effect that they had gone to the shed as they were afraid of CPI(M) men and that PW4 was Crl.A.No.1040 of 2006 & Crl.R.P.No.1437 of 2007 -:122:- awakened since he heard a loud noise at that time and then A3 Asokan threw a bomb at them. It is pointed out by the prosecution that PW4 had also given statement with regard to the overt acts played by some of the accused. Those portions were not contradicted by the defence. This has been referred to by the prosecution to say that there is uniformity and consistency in the statements given by Pws.1, 2 and 4 with regard to the overt acts played by accused Nos.1 to 3, 11 and 12.
81. It was contended by the defence that when PW20 was asked it was stated by him that the information he had received was passed on to the S.I. of Police, Dharmadom and also to the superior officers over phone. According to the learned counsel for the accused, based on that information itself the F.I.R should have been registered. As stated earlier, the information which PW20 could obtain at that point of time could have been only vague. The anxiety of persons who took Sujeesh to that place was to take the Crl.A.No.1040 of 2006 & Crl.R.P.No.1437 of 2007 -:123:- injured Sujeesh to the hospital to save his life. The fact that based on hear-say information F.I.R was not registered by the S.I. will not in any way affect the credibility of the prosecution case.
82. According to the learned counsel for the accused PW20 who was duty bound to take the injured to the hospital to save his life should have taken note of all the particulars in his note book or other record. That contention is unreasonable. The Court cannot be unrealistic to the fact situation. So many questions were put to PW20, which were trivial in nature. The cross examination is not intended to test the erudition or memory power of a witness. Referring to the entries in the G.D. it was pointed out by the defence that PW20 did not immediately go to the scene of occurrence but went to other place. It may be remembered that the situation in Dharmadom and other places were tense as there were clashes on the previous day. The police officials were deployed at several places to Crl.A.No.1040 of 2006 & Crl.R.P.No.1437 of 2007 -:124:- maintain law and order and so the fact that he did not immediately go to the scene of occurrence but to other places cannot be found fault with. In any event those are not matters which would affect the case of the prosecution.
83. A petition was filed by the learned counsel for the accused before this Court to summon the Inward Register/Distribution Register maintained in the Court of J.F.C.M., Thalassery for the relevant period. It was produced accordingly.
84. On the top of Ext.P1(a), there is a number-1057 which appears to be the number put on it by the Clerk who received and entered the same in the tapal/distribution register. Since the learned Magistrate put the date as 2.3.2002 there can be no doubt that it was received by the learned Magistrate on 2.3.2002 itself. The time 3.45 PM was noted on the top. In the absence of anything else it can only be inferred that it was received in the office at 3.45PM. The learned Magistrate herself should have put the time Crl.A.No.1040 of 2006 & Crl.R.P.No.1437 of 2007 -:125:- when the F.I.R. was received. On going through the register it is seen that entries were not made in a chronological order. It is seen that F.I.R which pertains to crime No.53/2002 of Dharmadom Police Station was entered by the Clerk in the register at two places. The aforesaid register has not been marked as it was not proved in the manner required by law. That apart, since the learned Magistrate put the date 2.3.2002 when the F.I.R was seen by her and also since the time 3.45 PM was noted on the F.I.R the contention that it was ante-timed and smuggled into the office of J.F.C.M, Thalassery on another day is rather unsound and unfounded and is hence bereft of any merit.
85. Now the crucial question arises as to whether the prosecution could prove that all the accused who faced the trial were actually involved in the commission of offence. There can be no doubt that there was an assembly of about 30 persons. There can also be no doubt that the common Crl.A.No.1040 of 2006 & Crl.R.P.No.1437 of 2007 -:126:- object of that assembly was to attack BJP/RSS men. The facts and circumstances would also prove that some of the assailants came from the east and other assailants came from the north towards the shed situated on that bund. Since those persons came in two groups as mentioned above at about 1AM there can also be no doubt that the common object of that assembly was to attack BJP/RSS men. Therefore, the prosecution could prove that there was an unlawful assembly and the object of that unlawful assembly was to attack and cause the death of some of the RSS/BJP men. Since the death of Sujeesh and Sunil was caused by some of the members in furtherance of the common object of that unlawful assembly each member of that unlawful assembly would be constructively liable with the aid of Sec.149 IPC for the offence committed by other members of that assembly. On a careful analysis of the evidence given by the occurrence witnesses PWs.1, 2 and 4 it is undoubtedly proved that the members of that unlawful Crl.A.No.1040 of 2006 & Crl.R.P.No.1437 of 2007 -:127:- assembly who came to that bund are liable for the murder of Sujeesh and Sunil. It could also be proved that A3 threw a steel bomb aiming at the group of PW1 and others but it did not hit them or explode but fell into the heap of coconut husk. Though it did not explode the fact that A3 threw that steel bomb could be proved by the prosecution. If it is proved that other accused persons who faced the trial and other persons who were not apprehended by the investigating agency were members of an unlawful assembly and that the object of that unlawful assembly was to cause the murder of the RSS/BJP men, then all the members of the unlawful assembly would be constructively liable for the offence committed by any member of that assembly. It is not a case where other members happened to be present there only as onlookers or reached there out of curiosity to know the incident. The very object of that assembly was to attack RSS/BJP men and to do away with some if not all of them. If that be so, the prosecution is Crl.A.No.1040 of 2006 & Crl.R.P.No.1437 of 2007 -:128:- justified in contending that if the identity of the accused persons, as the persons who were actually present at the spot is proved then certainly all of them can be held liable with the aid of Section 149 IPC.
86. Reiterating ground No.P in the appeal memorandum, it was argued by the learned counsel for the appellants that the court below did not enter a definite finding that all the accused formed themselves into an unlawful assembly with a common object and so the conviction of appellants 4 to 10, 13 and 14 is liable to be set aside. It was further contended that though the court below found the involvement of A1 to A3, A11 and A12, other accused were roped in with the aid of Section 149 IPC only. It is true that the trial court has entered a definite finding with regard to the overt acts of A1 to A3, A11 and A12 only and other accused persons were found liable only with the aid of Section 149 IPC. Section 149 IPC has its foundation on constructive liability for its operation. The crucial point Crl.A.No.1040 of 2006 & Crl.R.P.No.1437 of 2007 -:129:- for consideration is whether there was an unlawful assembly and whether the common object of that assembly was to cause the death of Sujeesh and Sunil or any other BJP/RSS men. The prosecution would contend that the accused other than A1 to A3, A11 and A12 were found guilty by the court below for their presence in the unlawful assembly. In the peculiar fact situation if it is proved that those accused were also present at the relevant time and place there can be no difficulty to fasten criminal liability on them with the aid of Section 149 IPC. The common object of the unlawful assembly having been proved the only other point to be considered is whether the accused other than A1 to A3, A11 and A12 were also actually present in the group of about 30 persons. It was held in the decision in Sunil Kumar v. State of Rajasthan [(2005) 9 SCC 283] :
"The crucial question to determine is whether the assembly consisted of five or more persons and whether the said persons entertained one or more of the common objects, as specified in Section 141. It cannot be laid down as a general proposition of law that unless an overt Crl.A.No.1040 of 2006 & Crl.R.P.No.1437 of 2007 -:130:- act is proved against a person, who is alleged to be a member of unlawful assembly, it cannot be said that he is a member of such an assembly. The only thing required is that he should have understood that the assembly was unlawful and was likely to commit any of the acts which fall within the purview of Section 141. The word 'object' means the purpose or design and, in order to make it 'common', it must be shared by all. In other words, the object should be common to the persons, who compose the assembly, that is to say, they should all be aware of it and concur in it."
The way in which they reached the spot at about 1 AM, some of them carrying deadly weapons like chopper, hatchet, dagger, crow bar etc. would undoubtedly prove that the object of that assembly was to do away with some of the RSS/BJP men. The further fact that A1 to A3, A11 and A12 were actually participated in the commission of crime causing the death of two victims and that all the other persons were actually present at the scene would prove to the hilt that all the members should be held liable for causing the death of Sujeesh and Sunil. In other words, it was in prosecution of the common object of that unlawful Crl.A.No.1040 of 2006 & Crl.R.P.No.1437 of 2007 -:131:- assembly Sujeesh and Sunil were murdered.
87. It is also pointed out by the prosecution that at the starting of the incident A1 and A2 had incited or exhorted " " and that after the fatal injuries were inflicted accused No............. stated that two of them have been finished and that no BJP men should live there are also towering circumstances to hold that all the members of the assembly who reached there had shared the common object of causing the death of BJP men. Thus keeping in view the object of the assembly, the arms carried by the members and the behaviour of the members at or near the scene of incident would certainly help the prosecution to prove that the members of the unlawful assembly had shared the common object of that unlawful assembly. The prosecution would contend that since PWs.1, 2 and 4 have categorically stated that all the appellants and also accused No.15 were actually present at the relevant time and place all of them should be held liable with the aid of Section 149 IPC. Crl.A.No.1040 of 2006 & Crl.R.P.No.1437 of 2007 -:132:-
88. The learned senior counsel appearing for the accused has addressed arguments in extenso pointing out the illegalities or irregularities in the conduct of the investigation and submits that the benefit of doubt in such circumstances must be given to the accused. It was held by the Apex Court in State of Haryana v. Bhagirath and others [1999 SCC (Cri) 658] :
"The pristine doctrine of benefit of doubt can be invoked when there is reasonable doubt regarding the guilt of the accused. It is the reasonable doubt which a conscientious judicial mind entertains on a conspectus of the entire evidence that the accused might not have committed the offence, which affords the benefit to the accused at the end of the criminal trial. Benefit of doubt is not a legal dosage to be administered at every segment of the evidence, but an advantage is to be afforded to the accused at the final end after consideration of the entire evidence, if the Judge conscientiously and reasonably entertains doubt regarding the guilt of the accused."
It was held by the Apex Court that mere faulty investigation cannot be a ground for acquittal of the accused. It was held by the Supreme Court in State of Karnataka v. Crl.A.No.1040 of 2006 & Crl.R.P.No.1437 of 2007 -:133:- K.Yarappa Reddy [(1999) 8 SCC 715] :
"It can be a guiding principle that as investigation is not the solitary area for judicial scrutiny in a criminal trial, the conclusion of the court in the case cannot be allowed to depend solely on the probity of investigation. It is well- nigh settled that even if the investigation is illegal or even suspicious the rest of the evidence must be scrutinized independently of the impact of it. Otherwise the criminal trial will plummet to the level of the investigating officers ruling the roost. The court must have predominance and pre-eminence in criminal trials over the action taken by investigating officers. Criminal justice should not be made a casualty for the wrongs committed by the investigating officers in the case. In other words, if the court is convinced that the testimony of a witness to the occurrence is true the court is free to act on it albeit the investigating officer's suspicious role in the case."
In the decision in State of U.P. v. Jagdeo and others [2003 SCC (Cri) 351] also it was held :
"Assuming the investigation was faulty, for that reason alone the accused persons cannot be let off or acquitted. For the fault of the prosecution, the perpetrators of such a ghastly crime cannot be allowed to go scot-free."
It was also held in the decision in Aqeelahmad v. State of Uttar Pradesh [(2008) 16 SCC 372] even if there has been Crl.A.No.1040 of 2006 & Crl.R.P.No.1437 of 2007 -:134:- lapse in the investigation as contended by the learned counsel for the appellants that cannot affect the credibility of the witnesses. The circumstances obtained in this case would show that the investigating police officials were more loyal to the accused. They recorded the statements of the witnesses and prepared the records in a casual or haphazard manner without bearing in mind the seriousness of the crime. But on that ground accused cannot be let off if the evidence of the ocular witnesses is otherwise found credible.
89. Now the crucial question is whether the accused other than A1 to A3, A11 and A12 were also actually present at the scene of occurrence. In other words, whether the testimony of Pws.1, 2 and 4 that those 10 accused persons (including A15) were also present at the time of commission of offence can be accepted. Pws.1, 2 and 4 would say that altogether there was about 30 assailants and out of the 15 named accused, some of them came from the eastern side Crl.A.No.1040 of 2006 & Crl.R.P.No.1437 of 2007 -:135:- and others came from the northern side. It was vehemently argued by the learned senior counsel for the accused that when about 15 persons were seen coming along the ridge/varamba and since that varamba is not so near to the place of incident, it would be practically impossible to identify about 7 or 8 persons from among about 15 persons who were coming from the eastern side. Similar is the position with regard to other remaining named accused persons who were stated to have been seen coming from the northern side. According to those witnesses the total number of persons who came from the northern side was also about 15. That means, according to them 6 or 7 named accused were seen among about 15 persons. So far as the presence of those 10 accused (other than A1 to 3, A11 and A12) the evidence of Pws.1, 2 and 4 has to be viewed and approached from a different angle. Since they only deposed that they were seen among those group of persons. Was it possible for those three witnesses to identify a few among Crl.A.No.1040 of 2006 & Crl.R.P.No.1437 of 2007 -:136:- them and to say that they were actually seen at the relevant time is the pertinent question. While appreciating that part of the evidence the fact that the incident took place at night may have be borne in mind. Though there was bright moonlight, the possibility of those accused being identified from a distance may not be that much easy. As regards A1 to A3, A11 and A12, they were actually seen at the place of incident itself doing the acts as mentioned earlier. The witnesses Pws.1, 2 and 4 were not asked as to what were the other named accused doing at the relevant time. It does not mean that only if some overt acts are attributed against those accused they can be fastened with the liability invoking Section 149 IPC. But that may be necessary to ensure and satisfy the judicial conscience that those accused were actually present there. According to Pws.1, 2 and 4 those named accused persons were also seen coming towards the place of incident and were at the place of incident at the relevant time. It may be true also. Crl.A.No.1040 of 2006 & Crl.R.P.No.1437 of 2007 -:137:-
90. It was vehemently contended by the defence that the investigating agency could not trace out any of the other unidentified accused persons even when the witnesses did specifically say that those accused persons could be identified by sight. No steps were taken by the investigating agency to find out any of those accused persons and to show him/them to the witnesses. It is also pertinent to note that with regard to the involvement of 10 accused including A15 (other than A1 to A3, A11 and A12) the investigating officer did not venture to recover the weapons if any used by them or carried by them to the place of incident or to collect any other incriminating circumstances. That was necessary to ensure and ascertain their presence and to have evidence to corroborate the prosecution evidence. But when the investigation was conducted in a half hearted manner showing more loyalty to the accused nothing more can be expected from such investigating agency, the prosecution contends. Crl.A.No.1040 of 2006 & Crl.R.P.No.1437 of 2007 -:138:-
91. The contention that the name of A15 was subsequently roped in by the investigating officer because one accused (Ashraf) was deleted from the array of accused does not appeal to us since even in Ext.P4 inquest report the name of A15 was mentioned. The fact that the name of A15 was not mentioned in the F.I.Statement is not a reason to say that he was subsequently implicated due to political animosity or on some other ground. But the fact remains that the learned Sessions Judge was not impressed by the evidence adduced by the prosecution to prove the complicity of A15. It should be borne in mind by this Court that if the view taken by the learned Sessions Judge giving benefit of doubt to A15 is reasonable, this Court should not upset that finding by re-appreciating the evidence especially because the presumption of innocence is strengthened by the order of acquittal recorded by the trial court.
92. So far as the involvement of 9 other accused is Crl.A.No.1040 of 2006 & Crl.R.P.No.1437 of 2007 -:139:- concerned, there is only the omnibus statements of Pws.1, 2 and 4 that all those persons were also members of that unlawful assembly. The fact that the investigating agency did not try to get from the witnesses the circumstance pinpointing their presence at the relevant time and place causes much difficulty to hold that they must have been present or participated in the commission of crime. As said earlier, we do not mean that in order to prove the complicity of the aforesaid 9 accused persons, the prosecution should have produced evidence of their overt acts. It is sufficient if they were actually seen as members of the unlawful assembly, indulged in the commission of crime. But a specific statement as to where actually those accused persons were seen becomes necessary only to hold with certainty those accused persons were actually present. It would not be correct to say that before a person is held to be a member of an unlawful assembly it must be shown that he had committed some illegal overt act or had been guilty Crl.A.No.1040 of 2006 & Crl.R.P.No.1437 of 2007 -:140:- of some illegal omission in pursuance to the common object of the assembly. The circumstance of this case would certainly show that the members of the assembly happened to be present there not as a matter of idle curiosity without intending to entertain the common object of the assembly. There can also be no doubt that mere presence in the unlawful assembly would fasten vicarious criminal liability under Section 149 IPC. The learned Senior Counsel for the accused relied upon the decision in Eknath Ganpat Aher and others v. State of Maharashtra and others [(2010) 6 SCC 519] where it was held :
"It is an accepted proposition that in the case of group rivalries and enmities, there is a general tendency to rope in as many persons as possible as having participated in the assault. In such situations , the courts are called upon to be very cautious and sift the evidence with care. Where after a close scrutiny of the evidence, a reasonable doubt arises in the mind of the court with regard to the participation of any of those who have been roped in, the court would be obliged to give the benefit of doubt to them."
Crl.A.No.1040 of 2006 & Crl.R.P.No.1437 of 2007 -:141:- The learned counsel submits that Pws.1, 2 and 4 belong to the opposite group, admittedly having political rivalry and so simply based on their statements, all the accused persons cannot be held guilty. According to the learned counsel bearing in mind the factual scenario the court can genuinely have a reasonable doubt as to whether it was possible for the three eyewitnesses to identify A4 to A10, A13 and A14 also, for, if they could actually see the presence of those accused persons they would have certainly deposed in court as to what those persons were doing at the relevant time or would have stated that they were simply standing near the bund. That also according to the learned counsel is a strong circumstance to have a genuine doubt regarding the complicity of the aforesaid 9 accused persons.
93. The learned counsel for the accused would submit that Pws.1, 2 and 4 have political animosity towards the accused and so that also should be taken as one of the Crl.A.No.1040 of 2006 & Crl.R.P.No.1437 of 2007 -:142:- circumstances to have a reasonable doubt whether the aforesaid 9 accused persons also could have been actually identified by the aforesaid three witnesses, in the moonlight especially when those accused persons were alleged to have been seen in a group of about 30 persons. It is true that the place of incident is an open space having a diameter of 20 meters. The mangroves and bushes were away from the aforesaid open space. But even then the possibility of identification of all the aforesaid accused persons even at the time when they were coming along the ridge on the eastern side and also from the northern side must certainly be difficult. Only when they reached the open space mentioned above, which is near to the shed, their identity could have been ascertained. Though it might have been possible for Pws.1, 2 and 4 to identify the other 9 accused/appellants also still there is an element of doubt as to whether atleast a few among them might have been wrongly or mistakenly implicated. In other words, there is Crl.A.No.1040 of 2006 & Crl.R.P.No.1437 of 2007 -:143:- an element of doubt with regard to the complicity of atleast a few among the 9 accused persons, A4 to A10, A13 and A14. If that be so, it is not possible to hold with certainty that A4 to A10, A13 and A14, who were convicted by the learned Sessions Judge were actually present, in order to hold beyond any shadow of doubt that they did participate in the commission of the crime or that they were present there to see the accomplishment of the common object of the unlawful assembly. So far as the complicity of A1 to A3, A11 and A12 are concerned, we have absolutely no doubt in our mind that they were present and actively participated in the commission of crime. It was held by the Supreme Court in Sarwan Singh Rattan Singh v. State of Punjab [A.I.R. 1957 SC 637] :
"It is no doubt a matter of regret that a foul cold-blooded and cruel murder should go unpunished. There may also be an element of truth in the prosecution story against the accused. Considered as a whole, the prosecution story may be true; but between 'may be true' and 'must be true' there is inevitably a long distance to travel and the whole Crl.A.No.1040 of 2006 & Crl.R.P.No.1437 of 2007 -:144:- of this distance must be covered by the prosecution by legal, reliable and unimpeachable evidence before an accused can be convicted."
Therefore, considering the whole case of the prosecution, we hold that with regard to the complicity of the appellants A4 to A10, A13 and A14, the case of the prosecution can be treated only as "may be true". But as there is a long distance to travel from 'may be true' to 'must be true', we find that the benefit of reasonable doubt has to be given to those 9 accused, A4 to A10, A13 and A14.
94. When PW1 was asked why it was not specifically stated in Ext.P1 that both deceased persons were attacked by A1, A2 and A11, he stated that he does not remember but he added that he had stated so when he was questioned by the police. There was no case for the defence that PW1 did not state so when PW1 was questioned by the investigating officer. As mentioned earlier, in Ext.D1, the statement given by PW1 to the Sub Divisional Magistrate in the MC proceedings, statement was given pertaining to the Crl.A.No.1040 of 2006 & Crl.R.P.No.1437 of 2007 -:145:- overt acts of some of the accused. When it was put to PW1 referring to Ext.D1 that he had stated only about A1 to A3, A11 and A12 in his statement given to the SDM and that his specific statement in Ext.D1 was to the effect that he had seen only those persons, to mean that he had identified only those persons, it was explained by PW1 that it was an omission on his part to give the names of other accused persons. What emerges from the aforesaid statement is that the consistent version of PW1 is that the persons who could unmistakably be identified are A1 to A3, A11 and A12. Ofcourse, it does not mean that the evidence given by PW1 with regard to the identification of other accused persons is totally unreliable.
95. Exts.D4 and D5 are the F.I.R and charge sheet in crime No.150/2001 which were caused to be produced by the defence to contend that deceased Sunil and some of the witnesses in this case were the accused in that crime. Ext.D9 is the charge sheet in crime No.48/2002 which also Crl.A.No.1040 of 2006 & Crl.R.P.No.1437 of 2007 -:146:- was produced to show that some of the witnesses whose names appear in the memorandum of evidence were the accused in that crime. Ext.D11(b) is the charge sheet in crime No.39/2001 which was produced to show that CW3, who was not examined in this case, was also the accused in that crime. Ext.D12(a) is the charge sheet in crime No.106/2005 which took place long after the incident in this case. Ext.D13(c) is the charge sheet in crime No.217/2004 filed against PW2 and others, which took place long after the incident. Ext.D6 is the F.I.R. in crime No.50/2002 which was produced to show that deceased Sujeesh was an accused in that case for the offences punishable under Section 3 and 5 of the Explosive Substances Act. Ext.D7 is the charge sheet filed in Crime No.62/2005 in which PW1 was stated to have been charged for offences punishable under Section 7 and 8 of Kerala Gaming Act which also took place long after the date of incident in this case. These documents will not in any way affect the credibility of Crl.A.No.1040 of 2006 & Crl.R.P.No.1437 of 2007 -:147:- Pws.1, 2 and 4.
Point No.vi :-
96. The evidence would show that A3 threw a steel bomb at the complainants' party but it did not hit anybody but fell on the heap of coconut husk. The steel bomb could be seen beneath the coconut husk evidently because it went underneath through the gap existed in between the coconut husks. The Investigating Officer and the expert took the same to the seashore and threw it to see whether it explodes. It did not explode. Thereafter its lid was caused to be opened by throwing it to the ground. The contents of the same and steel container were taken into custody. Ext.P12 is the mahazar pertaining to the same. MO7 the steel container, MO7(a) its cap and MO7(b) stone pieces were identified and marked. The contents were sent for examination.
97. The learned Sessions Judge found that A3 is liable to be punished under Section 5 of the Explosive Substances Crl.A.No.1040 of 2006 & Crl.R.P.No.1437 of 2007 -:148:- Act, 1908. Admittedly none of the accused had permit or licence to possess any explosive substance. The required sanction for prosecuting the accused was accorded by the competent authority as evidenced by Ext.P14. Even though the evidence would show that no explosion did take place when steel bomb was thrown still the fact that the steel container contained explosives as certified in Ext........ would prove that A3 had in his possession that explosive substance under such circumstances that it gave rise to reasonable suspicion that he had that steel bomb in his possession for an unlawful object. The further fact that A3 threw it at the group of PW1 would attract the offence under Section 5 of the Act.
98. The upshot of our discussion is that, there was an unlawful assembly of about 30 persons and the common object of that assembly was to cause the murder of BJP men who were on the bund near that shed at the relevant time and in furtherance of that common object they committed Crl.A.No.1040 of 2006 & Crl.R.P.No.1437 of 2007 -:149:- rioting also and as such A1 to A3, A11 and A12 are proved to have committed the offences punishable under Sections 143 and 147 IPC. There is also evidence to show that A2, A3, A11 and A12 carried with them deadly weapons like axe, crow bar, dagger, steel bomb etc. and as such they were rightly found liable for the offence punishable under Section 148 IPC. Even though there is evidence to show that there was such an unlawful assembly of about 30 persons and they were present at the relevant time and place the prosecution could not prove that A4 to A10 and A13 to A15 were actually the members of that unlawful assembly. As the prosecution could not prove their complicity beyond any shadow of doubt they have to be given the benefit of reasonable doubt.
99. But the prosecution could prove that A1 to A3, A11 and A12 were members of that unlawful assembly. Prosecution could even prove beyond reasonable doubt that they actively participated in the commission of crime. Since Crl.A.No.1040 of 2006 & Crl.R.P.No.1437 of 2007 -:150:- the common object of that unlawful assembly was to cause the murder of BJP men or some of them who were on that bund at the relevant time and since the murder of Sujeesh and Sunil was caused in prosecution of the common object of that unlawful assembly, A1 to A3, A11 and A12 are found guilty of the offences punishable under Section 302 r/w 149 IPC.
100. It was vehemently contended by the defence that there was no specific case for PW1 and others that the accused caused criminal intimidation putting PW1 or any other person in fear of death. But the exhortation made by A2 " " and the further fact that A3 threw a bomb aiming at PW1 and others were sufficient to cause reasonable apprehension in the mind of those persons that they would be put to death and as such it could be found that the accused had caused criminal intimidation putting PW1 and others in fear of death. The act of one or some of the accused done in furtherance of the common object of Crl.A.No.1040 of 2006 & Crl.R.P.No.1437 of 2007 -:151:- that unlawful assembly would be sufficient to attract the offence punishable under Section 506(2) r/w 149 IPC. The conviction on that ground also has to be upheld as against those persons whose complicity could be proved by the prosecution.
101. The learned counsel for the accused would submit that charge was framed against the accused to the effect that PW1 and others were wrongfully restrained by the accused persons and so they are liable to be punished under Section 341 IPC. It was pointed out by the learned counsel for the accused that if accused persons wrongfully restrained PW1 and others then the case of the prosecution that on seeing the accused persons approaching them they jumped into the river cannot be accepted. But it was explained by the prosecution that when a group of accused persons came from the east and another group came from the north and since there was no way for them to proceed to the south they had to move towards the river and it was Crl.A.No.1040 of 2006 & Crl.R.P.No.1437 of 2007 -:152:- in that context they stated that their movements were restricted or restrained by the accused. However, since the learned Sessions Judge has acquitted the accused of the charge under Section 341 IPC, it is not necessary to probe further into that question. But the contention raised by the defence that on that ground the whole prosecution case should be disbelieved is devoid of any merit.
102. The definition in Section 2 is as follows :-
"the expression "explosive substance" shall be deemed to include any materials for making any explosive substance; also any apparatus, machine, implement or material used, or intended to be used, or adapted for causing, or aiding in causing, any explosion in or with any explosive substance; also any part of any such apparatus, machine or implement;"
It was held by the Supreme Court in Mohammad Usman Mohammad Hussain Maniyar v. State of Maharashtra [(1981) 2 SCC 443] :
"Explosive substance" has a broader and more comprehensive meaning than the term 'Explosive. 'Explosive substance' includes 'Explosive'."
Crl.A.No.1040 of 2006 & Crl.R.P.No.1437 of 2007 -:153:- In Ext.P19(a), it was certified that the items contained in the steel container is a mixture of an explosive and as such it can be held that MO3 contained explosive substances. Therefore, in view of what has been stated above, there is no hesitation to hold that accused No.3 has committed the offence punishable under Section 5 of the Explosive Substance Act, 1908. As such, the conviction of accused No.3 is only to be confirmed.
103. For the offence punishable under Section 143 IPC, the appellants were sentenced to undergo R.I. for 6 months and for the offence punishable under Section 147 IPC, they were sentenced to undergo R.I. for 2 years. For the offence punishable under Section 506(II) IPC, appellants were sentenced to R.I. for 7 years.
104. For the offence punishable under Section 302 r/w Section 149 IPC the appellants were sentenced to undergo imprisonment for life; besides they were also directed to pay Rs.2 lakhs each as compensation and in default to Crl.A.No.1040 of 2006 & Crl.R.P.No.1437 of 2007 -:154:- undergo simple imprisonment for five years. We find that the default sentence awarded by the Court below has to be reduced to rigorous imprisonment for three years each. Since the substantive sentences awarded for the other offences proved to have been committed by the appellants are to run concurrently, we do not propose to alter or modify the same.
In the result, the appeal is allowed in part. The conviction and sentence passed against A4 to A10, A13 and A14 are set aside and they are acquitted of all the offences charged against them and they are set at liberty. They shall be released from jail forthwith if their detention is not required in connection with any other case. Except to the extent that the default sentence imposed on the appellants; i.e., sentence on failure to pay compensation of Rs.Two lakhs each will stand reduced to simple imprisonment for three years each, in all other respects, the conviction and sentence passed against the Crl.A.No.1040 of 2006 & Crl.R.P.No.1437 of 2007 -:155:- appellants 1 to 3, 11 and 12 are confirmed. If the amount of compensation is paid or realised 50% of the same shall be paid to the legal heirs of deceased Sujeesh and the remaining 50% shall be paid to the legal heirs of deceased Sunil.
Crl.R.P.No.1437 of 2007 is dismissed confirming the verdict of acquittal of A15.
PIUS C. KURIAKOSE, JUDGE.
N.K.BALAKRISHNAN, JUDGE.
Jvt