Kerala High Court
Ajayan vs State Of Kerala on 24 January, 2025
Author: V Raja Vijayaraghavan
Bench: V Raja Vijayaraghavan
Crl.Appeal Nos.406,1092 & 1217/ 2018 -: 1 :-
2025:KER:5659
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
&
THE HONOURABLE MR.JUSTICE P. V. BALAKRISHNAN
FRIDAY, THE 24TH DAY OF JANUARY 2025 / 4TH MAGHA, 1946
CRL.A NO. 1217 OF 2018
CRIME NO.775/2010 OF PARIPPALLY POLICE STATION, KOLLAM
AGAINST THE JUDGMENT DATED 21.12.2017 IN SC NO.327 OF
2011 OF SESSIONS COURT, KOLLAM
APPELLANT/ACCUSED:
BINU
AGED 29 YEARS, S/O.THANKACHAN, PADINJAREYIL VEEDU,
KALATHIPACHA, PALLICKAL DESAM, PILLICKAL VILLAGE,
KOLLAM.
RESPONDENT/COMPLAINANT:
STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT
OF KERALA, ERNAKULAM-682031.
OTHER PRESENT:
SRI RANJITH T R, SR. PP
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
22.01.2025, ALONG WITH CRL.A.406/2018, 1092/2018, THE COURT
ON 24.01.2025 DELIVERED THE FOLLOWING:
Crl.Appeal Nos.406,1092 & 1217/ 2018 -: 2 :-
2025:KER:5659
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
&
THE HONOURABLE MR.JUSTICE P. V. BALAKRISHNAN
FRIDAY, THE 24TH DAY OF JANUARY 2025 / 4TH MAGHA, 1946
CRL.A NO. 406 OF 2018
CRIME NO.775/2010 OF PARIPPALLY POLICE STATION, KOLLAM
AGAINST THE JUDGMENT DATED 21.12.2017 IN SC NO.327 OF
2011 OF SESSIONS COURT,KOLLAM ARISING OUT OF THE
ORDER/JUDGMENT DATED IN CP NO.2 OF 2011 OF JUDICIAL FIRST
CLASS MAGISTRATE COURT, PARAVUR
APPELLANT/3RD ACCUSED:
AJAYAN
AGED 29 YEARS, S/O.THULASEEDHARAN,
POOVANATHUMPOIKA VEEDU, KALATHIPACHA, PALLICHAL
DESOM, PALLICHAL VILLAGE, KOLLAM DISTRICT.
BY ADVS.
SRI.RENJITH B.MARAR
SMT.LAKSHMI.N.KAIMAL
SRI.V.KRISHNADAS (K-541)
SMT.SINDHU K.S.
SRI.VIMAL VIJAY
Crl.Appeal Nos.406,1092 & 1217/ 2018 -: 3 :-
2025:KER:5659
RESPONDENT/COMPLAINANT:
STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF
KERALA, ERNAKULAM-682031.
OTHER PRESENT:
SRI RANJITH T R, SR. PP
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
22.01.2025, ALONG WITH CRL.A.1217/2018 AND CONNECTED CASES,
THE COURT ON 24.01.2025 DELIVERED THE FOLLOWING:
Crl.Appeal Nos.406,1092 & 1217/ 2018 -: 4 :-
2025:KER:5659
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
&
THE HONOURABLE MR.JUSTICE P. V. BALAKRISHNAN
FRIDAY, THE 24TH DAY OF JANUARY 2025 / 4TH MAGHA, 1946
CRL.A NO. 1092 OF 2018
AGAINST THE JUDGMENT DATED IN SC NO.327 OF 2011 OF
SESSIONS COURT,KOLLAM ARISING OUT OF THE ORDER/JUDGMENT
DATED IN CP NO.2 OF 2011 OF JUDICIAL FIRST CLASS MAGISTRATE
COURT, PARAVUR
APPELLANT/ACCUSED NO.1:
ANOOP KHAN
AGED 30 YEARS
S/O AYOOB KHAN, MULAMPALLY HOUSE, PALLICKAL DESOM,
PALLIKKAL VILLAGE, KOTTAYAM DISTRICT.
BY ADVS.
P.K.VARGHESE
NAMITHA K.S.(K/2262/2022)
DEVIKA K.R.(K/3339/2023)
CHIPPY AMBUDAS(K/004044/2023)
LLOYD JOHN(K/1875/2021)
Crl.Appeal Nos.406,1092 & 1217/ 2018 -: 5 :-
2025:KER:5659
RESPONDENT/COMPLAINANT:
STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT
OF KERALA, ERNAKULAM, KOCHI-682031.
OTHER PRESENT:
SRI RANJITH T R, SR. PP
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
22.01.2025, ALONG WITH CRL.A.1217/2018 AND CONNECTED CASES,
THE COURT ON 24.01.2025 DELIVERED THE FOLLOWING:
Crl.Appeal Nos.406,1092 & 1217/ 2018 -: 6 :-
2025:KER:5659
RAJA VIJAYARAGHAVAN V,
&
P.V.BALAKRISHNAN,JJ.
-------------------------------------.
Crl.Appeal Nos.406, 1092 & 1217 of 2018
---------------------------------
Dated this the 24th day of January 2025
COMMON JUDGMENT
P.V.BALAKRISHNAN,J Crl.Appeal No.1092 of 2018 is filed by the first accused, Crl.Appeal No.1217 of 2018 is filed by the second accused and Crl.Appeal No.406 of 2018 is filed by the third accused challenging their conviction and sentence imposed under Section 302 r/w Section 34 IPC by the Sessions Court, Kollam in SC No.327 of 2011.
Prosecution Case
2. On 8/7/2010 at about 9.30 pm, the accused three in number in furtherance of their common intention, at a place near Crl.Appeal Nos.406,1092 & 1217/ 2018 -: 7 :- 2025:KER:5659 Nettayam junction, attacked deceased Anoop with dangerous weapons such as a machine saw chain and sword and inflicted serious injuries upon him. The first accused, by using the sharp- edged portion of the machine saw chain, hit the deceased on his head, face, and back, and the second accused inflicted stab injuries on the left and right side of his chest and abdomen thereby, causing serious injuries. At that time, the third accused stamped Anoop and slapped him on his body. Later, while undergoing treatment in the Medical College hospital, Anoop succumbed to his injuries on 9/7/2010 at about 4.25 am. Hence, the prosecution alleges that the accused have committed an offence punishable under Section 302 r/w Section 34 IPC. Proceedings in the trial court.
3. In order to prove the prosecution case, PW1 to PW24 were examined and Exhibits P1 to P32 and Ext.C1 documents and MO1 to MO14 were marked. The accused also marked Exts.D1 to D11 contradictions and documents through the Crl.Appeal Nos.406,1092 & 1217/ 2018 -: 8 :- 2025:KER:5659 prosecution witnesses. On questioning under Section 313 Cr.P.C., all the accused denied the incriminating circumstances brought against them in evidence and contended that they are innocent. The first accused also stated that, it is PW4 and his henchmen along with the father of the deceased, who have colluded together and have implicated him falsely in this case. From the side of the accused, no oral or documentary evidence was adduced. The trial court, on an appreciation of the evidence on record and after hearing both sides, found the accused guilty and convicted them under Section 302 r/w Section 34 IPC. After hearing both sides and considering Exts.D12 to D14 documents produced by the first accused, the trial court sentenced the first accused to undergo life imprisonment with a direction to serve a jail sentence of 25 years without any remission and also to pay a fine of Rs.50,000/- under Section 302 r/w section 34 IPC. In case of default, the first accused was ordered to undergo simple imprisonment for two more years. The second accused was Crl.Appeal Nos.406,1092 & 1217/ 2018 -: 9 :- 2025:KER:5659 sentenced to undergo imprisonment for life with a direction that he shall undergo jail sentence for 20 years and shall pay fine of Rs.25,000/- under Section 302 r/w Section 34 IPC. In case of default, the second accused was ordered to undergo simple imprisonment for a period of one year. The third accused was sentenced to undergo imprisonment for life and to pay a fine of Rs.25,000/- under Section 302 r/w Section 34 IPC. In case of default, he was ordered to undergo simple imprisonment for a period of one year. The fine amount, if realized, was ordered to be paid to the wife and children of deceased Anoop. A conspectus of the prosecution evidence
4. PW1 is the person who lodged Ext.P1 FIS. He has not witnessed the incident and had lodged the FIS on the basis of a telephonic information received by him at 5 am on 9/7/2010.
5. PW2 is an eyewitness to the incident. He deposed that on 8/7/2010 at about 8 p.m he had reached the house of Biju(PW4) for collecting wages. PW3 (Nihaz) and CW2 (Nisam), who were Crl.Appeal Nos.406,1092 & 1217/ 2018 -: 10 :- 2025:KER:5659 also employees of PW4, were present at that time. While they were watching TV in the house of PW4 at about 9.30 pm, they heard a shriek from Nettayam junction. All four ran towards that place and there, he saw the deceased Anoop in a crouched position and the first accused hitting him using the chain of a saw machine. Blood was oozing out from his head and body. When Nisam (CW2) intervened, the first accused swung a sword against him and PW4 caught hold of the first accused. Subsequently, he took the victim in the autorickshaw of PW5 to Safa Hospital, from where he was taken to the Medical College hospital by the father of the victim and one Rajendran Pillai(CW6). On the next day, at about 4.25 a.m, Anoop succumbed to his injuries. He identified the chain used in the attack and stated that the second and third accused were present at the place of occurrence at the relevant time. In his cross- examination, he stated that it was he along with Nisam(CW2) and Nihaz (PW3) who had lifted the victim to the autorickshaw, Crl.Appeal Nos.406,1092 & 1217/ 2018 -: 11 :- 2025:KER:5659 and in that process, his shirt got drenched with blood. The deceased did not talk with the doctors in Safa Hospital and Medical College Hospital and only stated that he was having pain. At that time, the victim was not in a condition to speak and while going to the Medical College, he saw the victim answering some queries put by Rajendra Pillai. In his re-examination, he stated that sufficient light was available from the houses nearby and the electric post, to witness the incident.
6. PW3 is another eyewitness to the incident. He deposed that on 8/7/2010 at about 9.30 pm while he along with Nisam (CW2) and Shaji (PW2) were watching TV in the house of PW4 Biju, they heard a cry from Nettayam junction and ran towards there. There, he saw the deceased Anoop in a crouched position and the first accused hitting him using the chain of a saw machine. At that time, the second and third accused were also present there. He identified the chain used by the first accused and stated that he was not sure whether the other accused were Crl.Appeal Nos.406,1092 & 1217/ 2018 -: 12 :- 2025:KER:5659 possessing weapons. He also did not see who was possessing the sword. The victim stated to him that the accused had assaulted him and requested him to take him to a hospital. Subsequently, the victim was taken to the hospital by PW2 in the autorickshaw belonging to PW5. In his cross examination, Ext.D1 contradiction was marked. He also stated that at the time when he saw the victim, he was not even in a position to get up and was drenched in blood. In his re-examination, he stated that MO2 is the sword shown to him by the police.
7. PW4 is also another eyewitness to the incident. He deposed that the incident took place at about 9.15-9.30 pm on 8/7/2010 at a place called Nettayam junction. He is residing near to the place of occurrence and on the fateful day, while he along with PW2, PW3 and Nisam (CW2) were watching TV, they heard a scream at about 9.30 pm. All of them ran towards the place and there, he saw the first accused hitting the deceased Anoop with a chain used in a saw machine. The second and third accused were Crl.Appeal Nos.406,1092 & 1217/ 2018 -: 13 :- 2025:KER:5659 standing nearby. He and Nisam intervened and later, took the victim in the autorickshaw of PW5 to the hospital accompanied by PW2. He went to Safa Hospital on his bike and understood that in the meantime, the victim had been taken to Medical College hospital. He identified all the accused and the weapon used by the first accused. As regards MO2, he stated that it was shown to him by the police. He added that at the place of occurrence, light was emanating from the electric post. In his cross examination, Exhibits D2 and D3 contradictions were marked. He also stated that when they reached the spot, other than the victim and the accused, no one else was present.
8. PW5 deposed that Nisam (CW2) had approached him to take the victim to the hospital and he had gone along with him to Nettayam. From there he took the victim, who was lying prone with blood all over his body, to the hospital. Nisam, one Ponnus and another person who were present there lifted the victim into his autorickshaw, and Ponnus and the other person accompanied Crl.Appeal Nos.406,1092 & 1217/ 2018 -: 14 :- 2025:KER:5659 the victim. On reaching the hospital, the doctor asked the victim regarding the incident and at that time, the victim stated that the henchmen of Biju had beaten him. In his cross-examination, he stated that there was no light in the place other than the headlight of the autorickshaw and he had seen the doctor taking down the information given by the deceased. Ext.D4 contradiction was also marked from the side of the accused.
9. PW6 is a witness to Ext.P2 scene mahazar, PW7 is a witness to Ext.P3 mahazar and the recovery of MO1. PW 9 is a witness to Ext.P5 mahazar and seizure of MO3 and MO4 dresses of the first accused. PW10 is a witness to Ext.P6 mahazar and seizure of MO5 and MO6 dresses of the second accused. PW11 is a witness to Ext.P7 mahazar and seizure of MO7 to MO9 dresses worn by the deceased.
10. PW12 was the scientific assistant attached to FSL, Thiruvananthapuram, who examined the material objects and issued Ext.P8 report. She deposed that item Nos.10 to 14 Crl.Appeal Nos.406,1092 & 1217/ 2018 -: 15 :- 2025:KER:5659 contained human blood belonging to 'Group O', item No.15 contained human blood and item Nos. 5, 6 & 16 contained blood, which is insufficient for determining the origin and group. She also stated that blood was not detected in other items.
11. PW 13 is a witness to Ext.P9 mahazar and recovery of MO 10 and MO11 dresses of the third accused. PW14 is a witness to Ext.P10 inquest report.
12. PW 15 is the father of the deceased. He deposed that at about 9.30 pm on the fateful day, when he made a call to the mobile phone of the deceased, someone attended it and asked him to come to Safa hospital. When he reached Safa hospital, he saw his son being taken in an ambulance to the Medical College hospital. He along with Shaji and Rajendran Pillai accompanied his son in the ambulance. While so, he saw Rajendran asking his son about the incident and heard his son replying that the first accused had hit him using the chain of a saw machine, the second accused had stabbed him and the third accused had Crl.Appeal Nos.406,1092 & 1217/ 2018 -: 16 :- 2025:KER:5659 stamped him. When he reached the hospital, he told the doctor about the information given by his son. His son died at 4.00-4.30 am on the next day. On 8/7/2010 at about 12 pm, the doctor had handed over the dresses of his son, which are MO7 to MO9, and he handed over the same to the police. During cross- examination, Exts.D6 to D10 contradictions were marked by the defence. He also stated that at about 7 pm on the fateful day, he had seen all the accused together near the house of Biju (PW4) and that while speaking to the doctor, he had not given the names of the accused. He further stated that, at the time when he reached the hospital, he was not aware of the names of the accused and that it was subsequently after returning from the hospital, he got the names from Rajendran and Shaji.
13. PW 16 is the village officer, who prepared Ext.P11 plan. PW 18 is a witness to Ext.P14 mahazar and recovery of MO2. PW 19 is the SI, who recorded Ext. P1 FIS and registered Ext.P15 FIR.
Crl.Appeal Nos.406,1092 & 1217/ 2018 -: 17 :-
2025:KER:5659
14. PW17 is the doctor, who conducted the post-mortem examination of the deceased and issued Ext.P12 certificate. She noted 40 ante-mortem injuries in the body of the deceased. She opined that the cause of death is due to the injury sustained to the head, chest and abdomen. She stated that injury Nos.1 to 17 are sufficient to cause death and injury Nos.1,2,4 to 6 and 8 to 13 can be caused by MO1. Injury Nos.14 to 17 are penetrating injuries and they are independently sufficient to cause death. She further stated that injury Nos.14 to 17 can be caused by MO2.
15. PW20 is the investigating officer in this case. He deposed that he took over the investigation on 9/7/2010 and at about 1.30 pm prepared Ext.P10 inquest report. At 4.30 pm, he visited the site along with the scientific assistant and fingerprint expert, and prepared Ext.P2 scene mahazar. At about 6.30 pm he collected the articles handed over by the expert, as per Ext.P17 mahazar, and forwarded the same to the court as per Ext.P18 property list. On 10/7/2010 at about 4 pm, he seized the dresses Crl.Appeal Nos.406,1092 & 1217/ 2018 -: 18 :- 2025:KER:5659 worn by the deceased as per Ext.P7 mahazar. On 12/7/2010, he arrested the accused after preparing Ext.P20 series and Ext.P21 series documents. Thereafter, on the basis of Ext.P3(a) confession of the first accused, he recovered MO1 by preparing Ext.P3 mahazar. On the basis of Ext.P14(a) confession of the second accused, he recovered MO2 after preparing Ext.P14 mahazar. The dresses worn by the first, second and third accused during the commission of the crime were also seized as per Ext.P5, P6 and P9 mahazars respectively. All the articles thus seized were produced before the court as per Ext.P24 and Ext.P25 series property list. In his cross examination, he stated that the electric post is situated 16 metres away from the place of occurrence.
16. PW22 is the police officer, who conducted further investigation in this case. He stated that he had collected Ext.P4 case records of the victim, and had prepared and sent Ext.P29 forwarding note to the court. PW24 is the police officer who Crl.Appeal Nos.406,1092 & 1217/ 2018 -: 19 :- 2025:KER:5659 completed the investigation and filed the charge sheet. Contention of the appellants
17. Adv.P.K.Varghese, Adv.Ralph Reti John (Legal Aid) and Adv. Renjith B.Marar appearing for the respective appellants contended that, even if the prosecution evidence is accepted in toto, there are no materials to find the accused guilty. They submitted that the evidence of the eyewitnesses are not credible and they are interested witnesses in as much as their attempt is to shield the PW4, who is the mastermind of this crime. They contended that, there is absolutely no evidence to inculpate the second and the third accused in the crime and the identification of the accused by the eyewitnesses is doubtful in the absence of light at the place of occurrence. They argued that the recoveries effected by the prosecution are shabby and have no legal sanctity, since even the information allegedly received from the accused, which led to the recovery, have not been proved. They submitted that scientific evidence is also lacking to connect the Crl.Appeal Nos.406,1092 & 1217/ 2018 -: 20 :- 2025:KER:5659 accused with the crime and the prosecution has suppressed material evidence by not examining Rajendran and the doctor in Safa hospital. They further, by relying upon the evidence of PW5, contended that the statement given by the deceased to the doctor immediately after the incident would show that it is PW4 and his henchmen who have attacked him and the same is not in tune with the other evidence let in by the prosecution. The learned counsel for the first accused added that, since there is no evidence to show that at the time when the serious injuries were inflicted upon the victim, the first accused was present in the scene, the offence under Section 302 is not attracted against him and utmost, only Section 326 may lie. The learned counsel for the second and the third accused also added that accused Nos. 2 and 3 cannot be roped in under Section 34 IPC since there is no evidence to show that they were sharing their mind with the first accused.
Contention of the Prosecutor Crl.Appeal Nos.406,1092 & 1217/ 2018 -: 21 :- 2025:KER:5659
18. Learned senior Public Prosecutor Adv.Ranjith.T.R, contended that the prosecution has proved its case beyond reasonable doubt and there are no grounds to interfere with the impugned judgment.He argued that the evidence of PW2 to PW4 is credible and cogent and are supported by the recovery of the weapons made at the instance of the accused. He also argued that scientific evidence adduced would reveal the presence of blood in MO1 and MO2 and in the dresses worn by the first accused at the time of occurrence. He submitted that the evidence of PW5 is not contrary to the other evidence let in by the prosecution, since the accused themselves are the employees of PW4. He further submitted that the statement given by the deceased to Rajendran was overheard by PW15 and the same clearly shows that it is the accused who have committed the crime. Hence, he prayed that these appeals may be dismissed. Analysis of the evidence
19. In the present case, there is not much dispute Crl.Appeal Nos.406,1092 & 1217/ 2018 -: 22 :- 2025:KER:5659 regarding the fact that the death of Anoop is due to homicide. The evidence of PW17 coupled with Ext.P12 postmortem certificate shows that the victim has suffered 40 ante-mortem injuries, out of which 9 of them are incised wounds on the vital parts of the body such as abdomen, chest and head,etc. PW17 has categorically stated that injury Nos.14 to 17, which are penetrating wounds and which can be caused by MO2, are independently sufficient to cause the death. She has also stated that injury Nos. 1,2, 4, to 6 and 8 to 13, which can be caused by MO1, are also sufficient to cause death. According to her, the cause of death of Anoop is due to the injuries sustained by him in head, chest and abdomen. Ergo, in the light of the afore evidence, we have no hesitation to find that the death of Anoop is by homicide.
20. The prosecution case is that it is the accused who, in furtherance of their common intention, have attacked the deceased with dangerous weapons such as the chain used in a Crl.Appeal Nos.406,1092 & 1217/ 2018 -: 23 :- 2025:KER:5659 saw machine and sword, and has killed him. It is alleged that the first accused has, by using the chain of a saw machine, hit the deceased repeatedly, the second accused has, by using a sword, stabbed him on his chest and abdomen and the third accused has beaten and stamped him causing serious injuries resulting in his death. In order to prove the afore version, the prosecution is heavily relying upon the evidence of PW2 to PW4 who are the eyewitnesses to the incident. An appraisal of the evidence of PW2 would show that when he reached the spot on hearing the cries, he had seen the deceased sitting crouching, with his hands on his head and the first accused repeatedly hitting him using the chain of a saw machine which he identified as MO1. The victim was not even in a position to stand up and he was drenched in blood. His evidence is also to the effect that, at that time the second and the third were present there. The evidence of PW3, who reached the spot along with PW2, is also in the very same lines of PW2. It is discernible from his evidence that on reaching the spot, he had Crl.Appeal Nos.406,1092 & 1217/ 2018 -: 24 :- 2025:KER:5659 seen the victim sitting crouching and the first accused hitting him using the chain of a saw machine (MO1). The second and the third accused were also present at that time. Now coming to the evidence of PW4, his evidence is also to the effect that when he reached the spot along with PW2 and PW3, he saw the first accused hitting the deceased with the chain of a saw machine and the second and the third accused standing nearby. It can thus be seen that evidence of these witnesses are consistent and supportive of each other and reveal that it is the first accused, who had hit the deceased with MO1 and that the other accused were standing nearby. Even though these witnesses have been cross examined in extenso, their evidence on this score remains credible and cogent.
21 It is also perspicuous from the evidence of these witnesses that no overt acts have been committed by the second and the third accused at the relevant time. These witnesses also did not speak about accused Nos.2 and 3 possessing any sort of Crl.Appeal Nos.406,1092 & 1217/ 2018 -: 25 :- 2025:KER:5659 weapons. PW3 specifically stated that he did not notice the second and third accused possessing weapons and also that he had not seen who was possessing the sword. In short, the afore evidence of the eye witnesses, shows that none of them have seen the second and third accused possessing any weapons or committing any overt acts in the crime scene. At this juncture, we would also take note of the fact that MO2 has been identified and marked by the trial court through PW3 & PW4 as the weapon shown to them by the police and not as one identified as a weapon of offence.The afore discussion leads us to conclude that there is absolutely no substantive evidence to link any of the accused with MO2 sword and to prove that the second and third accused possessed weapons and attacked the deceased.
22. Moving further, it is to be seen that the prosecution is also heavily relying upon the recovery of MO1 and MO2 on the basis of the alleged confession given by the accused. The evidence of PW20 is to the effect that after arresting accused Crl.Appeal Nos.406,1092 & 1217/ 2018 -: 26 :- 2025:KER:5659 Nos. 1 and 2, on the basis of the disclosure statements given by them, he had accompanied them and recovered MO1 and MO2 after preparing Exts.P3 and P14 mahazars. But, the evidence on record goes to show that the prosecution has not proved the exact information received from the accused which led to the alleged recovery.PW20 has not specifically deposed the exact information he thus received from both the accused which led him to recover the weapons. It is true that PW20 has stated that the relevant portion of the confessions have been recorded by him in the mahazars as Exts.P3(a) and P14(a). But, it is a settled law that mere marking of the relevant portion of the statement will not tantamount to proof of the same and the investigating officer is bound to depose the exact information he had received from the accused. The statement which is admissible under Section 27 is the one which is the information leading to discovery. What is admissible is thus the information and the same has to be proved as per law. In other words, the exact Crl.Appeal Nos.406,1092 & 1217/ 2018 -: 27 :- 2025:KER:5659 information given by the accused while in custody, which led to the recovery, has to be proved and therefore it is necessary that the information given should be recorded and proved and if not recorded, the exact information must be adduced through evidence.(See Bodhiraj v. State of J & K[(2002) 8 SCC 45], Babu Sahebgouda Rudragoudar v. State of Karnataka [2024 (8) SCC 149] and Ramanand v. State of U.P.(2022 SCC OnLine SC 1396). In the present case, in the absence of PW20 speaking about the exact information he thus received from both the accused, we are of the view that the prosecution has not proved the information received from the accused leading to the recovery. This in turn means that no reliance can be placed upon the circumstances of recovery of MO1 and MO2.
23. Be that as it may, it is also a settled law that even if the recovery of weapon used is not established or proved, the same itself is not a ground to acquit the accused when there is direct evidence of the eye witnesses, which are reliable and Crl.Appeal Nos.406,1092 & 1217/ 2018 -: 28 :- 2025:KER:5659 trustworthy. A conviction can be based on the ocular evidence of the injured or the eye witnesses, even if the recovery was not proved properly. (See State through Inspector of Police v. Laly @ Manikandan (2022 SCC OnLine SC 1424), Brahm Swaroop v. State of U.P. [(2011)6 SCC 288] and Aji v. State of Kerala [2024 KHC 7335].In the present case, as stated earlier, all the eyewitnesses in this case ie; PW 2 to PW4 have in one voice, specifically stated about the first accused attacking the deceased using MO1 and have positively identified it. There is nothing in their evidence, which would enable this Court to disbelieve them on this aspect and if so, we are of the view that even though the recovery is faulty, the same is not a ground to throw the prosecution case aboard.
24. Moving further, the evidence on record goes to show that even though no blood was detected in the dresses worn by the second and third accused at the relevant time, (MO5, MO6, MO10 and MO11), blood was found in the dresses worn by the Crl.Appeal Nos.406,1092 & 1217/ 2018 -: 29 :- 2025:KER:5659 first accused at the relevant time (MO3 & MO4). The evidence of PW20 coupled with the evidence of PW9 and Ext.P5 goes to show that the dresses worn by the first accused (MO3 & MO4) were seized by PW20 on 12/7/2010. The evidence of PW12 coupled with Ext.P8 goes to show that when MO3 and MO4, which are item Nos. 5 & 6 respectively, were examined by her, it contained blood, even though not sufficient for determining the origin and group. It is also discernible from the evidence of PW12 coupled with Ext.P8 that, MO1 which is item No.15 contained blood stains of human origin, even though the blood group could not be ascertained. The afore evidence also corroborates with the evidence of the eye witnesses and lends much support to the prosecution version that the first accused has brutally attacked the deceased using MO1. It is true that the evidence of PW12 would go to show that blood was also detected in MO2 sword. But, in the absence of substantive evidence as to who and in what manner this weapon has been used, we are of the view that Crl.Appeal Nos.406,1092 & 1217/ 2018 -: 30 :- 2025:KER:5659 no much relevance can be attached to the same.
25. Coming to the contention of the appellants regarding the identification of the accused by the eye witnesses in the absence of light, we are of the considered view that there is no merit in it. It is true that both PW2 and PW4 have spoken to about the presence of light emanating from the houses and the electric post nearby. It is also true that the defence has successfully brought out this omission in the statement of these witnesses, which according to us, is material. At this juncture, we will also take note of the evidence of PW5 to the effect that at the time when he reached the place, there was no light available. But, the evidence of PW2 to PW4 and PW15 would go to show that all the eyewitnesses in this case are very much familiar and acquainted with the accused and that accused Nos. 1 and 2 are even the employees of PW4. Further, the evidence of these witnesses would go to show that on reaching the spot they had seen the accused in close quarters and that PW4 and Nisam Crl.Appeal Nos.406,1092 & 1217/ 2018 -: 31 :- 2025:KER:5659 (CW2) had even intervened and prevented the first accused from attacking the victim. Further, it is to be seen that there is no substantial challenge to the evidence of these witnesses on this aspect and their evidence remains credible and cogent. In such circumstances, even in the absence of any light in the place of occurrence, we are inclined to act upon the evidence of these witnesses identifying the accused in the place of occurrence.
26. Coming to the contention of the learned counsel for the appellants that the evidence of PW5 would reveal that the deceased has given a statement to the doctor inculpating the henchmen of Biju (PW4) as his assailants and that the same is fatal to the prosecution case, we are of the considered view that there is no merit in it. It is true that PW5 has given evidence which is to the effect that he had heard the deceased telling the doctor that it is PW4's men who had attacked him and the doctor recording the same. But, it is to be taken note that PW5 has not stated that he had heard the deceased mentioning the names of Crl.Appeal Nos.406,1092 & 1217/ 2018 -: 32 :- 2025:KER:5659 anyone to the doctor. As stated earlier, it has come out in the evidence of PW2 and PW4 that both the first and second accused are the employees of PW4 (like PW2 and PW3) and if so, the alleged statement given by the deceased cannot be stretched to an extent / interpreted to mean and include persons other than the accused, as contended by the learned counsel for the appellants/accused.
27. Coming to the next contention of the appellants that the prosecution has suppressed material evidence by not examining Rajendran (CW6) who was all along with the deceased after the incident, again we are of the considered view that there is no merit in it. First of all, it is to be taken note that admittedly CW6 was not present at the time of occurrence and has joined the deceased only from Safa hospital to the Medical College hospital. Secondly, it is to be seen that Rajendran has been arrayed as a witness by the prosecution, only to prove the events which transpired before the incident, while transporting the deceased to Crl.Appeal Nos.406,1092 & 1217/ 2018 -: 33 :- 2025:KER:5659 the Medical College hospital, and the information he gathered after the incident. At this juncture, we will also take note of the evidence of PW15, which is to the effect that the deceased has given a statement to CW6, inculpating the accused herein, while being taken in the ambulance to the hospital and if so, in any circumstance, it cannot be said that the non examination of CW6 was for the purpose of suppressing the material evidence in favour of the accused. Further in the present case, the prosecution has adduced credible and cogent evidence of the eye witnesses and other witnesses to prove the commission of the crime and in such circumstances, we are of the view that the non examination of CW6 is not fatal.
28. As found earlier, even though the prosecution has adduced convincing evidence to prove the involvement of the first accused in this crime and his overt acts using MO1, no credible evidence has been let in to prove that the second and the third accused were possessing weapons or have attacked the Crl.Appeal Nos.406,1092 & 1217/ 2018 -: 34 :- 2025:KER:5659 deceased at the relevant time. Further, it is also revealed from evidence that no blood stains were found in the dresses worn by them at the relevant time and the recovery of MO2 at the instance of the second accused is faulty. Now the issue, which pirouettes, is whether the second and third accused can be roped in with the aid of Section 34 IPC. The ingredients of common intention to be proved are : (a)There is a common intention on the part of more than one person to commit a particular crime and (b) the crime was actually committed by them in furtherance of that common intention. The essence of liability under Section 34 is simultaneous and conscious mind of the person participating in the criminal action to bring about a particular result. The phrase 'common intention' implies a prearranged plan and acting in concert pursuant to the plan. The 'common intention' can be prior to the commission of the offence in point of time and can also develop on the spot as between a number of persons.(See Mewa Ram v. State of Rajasthan[(2017) 11 Crl.Appeal Nos.406,1092 & 1217/ 2018 -: 35 :- 2025:KER:5659 SCC 272] and Abdul Sayeed v. State of Madhya Pradesh [(2010) 10 SCC 259]. In the present case, the prosecution has not let in any credible evidence to show that there was a pre- concert or meeting of minds between the accused at any point of time. There is also nothing in evidence to show that the second and the third accused have acted in concert to any pre-arranged plan. In other words, there is nothing even to infer that these accused have participated and engaged themselves in furtherance of the common intention which might be of a pre- arranged plan or one manifested at the spur of a moment in the course of commission of the offence. Further, evidence is also lacking to prove that the second and third accused nurtured any animosity with the deceased. Ergo, considering all the afore facts and circumstances, we are of the view that the second and the third accused cannot be roped in this case by invoking Section 34 of IPC.
29. The upshot of the afore discussions on evidence is that, Crl.Appeal Nos.406,1092 & 1217/ 2018 -: 36 :- 2025:KER:5659 even though the prosecution has proved convincingly that the first accused has attacked deceased Anoop with MO1 inflicting fatal injuries, they have failed to prove beyond reasonable doubt that second and the third accused were also involved in the crime. The trial court has erred in appreciating the evidence in a proper perspective and has failed in reaching a correct conclusion as regards the second and the third accused. The appellant in Crl.Appeal No.1092/2018 could not bring out any material which would enable this Court to interfere with the conclusion of guilt reached by the trial court against him. If so, we are of the view that while sustaining the conviction of the first accused (appellant in Crl.Appeal No.1092/2018), the conviction and sentence, as against the second and the third accused (appellants in Crl.Appeal Nos. 1217/2018 & 406/2018 respectively) are to be set aside.
30. Now coming to the sentence imposed on the first accused, as stated earlier, the trial court has sentenced him to Crl.Appeal Nos.406,1092 & 1217/ 2018 -: 37 :- 2025:KER:5659 undergo life imprisonment with a direction that he shall serve a jail sentence of 25 years without any remission and to pay fine of Rs.50,000/- under Section 302 r/w section 34 IPC. It is a settled law, as held by the Apex Court in the decision in Union of India v. V.Sriharan @ Murugan [2016 (7) SCC 1] and by the Full Bench of this Court in State of Kerala v. Unni [2013 (1) KHC 546] and in the decision in Tony @ Thomas v. State of Kerala (2021 (6) KHC 681), that a Session Court has no power to sentence the accused to undergo imprisonment for life with a rider that the accused shall not be released for a period of 20 years and that such special category of sentence can only be imposed by the High Court/Supreme Court. If so, we have no hesitation in finding that the direction given by the Session Court that the first accused has to serve a jail sentence of 25 years without any remission while undergoing life imprisonment cannot be sustained.
In the result:
Crl.Appeal Nos.406,1092 & 1217/ 2018 -: 38 :-
2025:KER:5659
1) Crl.Appeal No.1092/2018 is allowed in part and the sentence imposed on the appellant/accused No.1 is modified and he is sentenced to undergo life imprisonment and to pay a fine of Rs.50,000/- under Section 302 IPC.
2) Crl.Appeals Nos.1217/2018 & 406/2018 will stand allowed and the conviction and sentence imposed against the appellants (second and the third accused) under section 302 r/w 34 I.P.C.
are set aside and they are set at liberty.
Sd/-
RAJA VIJAYARAGHAVAN V Judge Sd/-
P.V.BALAKRISHNAN Judge dpk Crl.Appeal Nos.406,1092 & 1217/ 2018 -: 39 :- 2025:KER:5659 APPENDIX OF CRL.A 1092/2018 PETITIONER EXHIBITS EXHIBIT P1 THE CERTIFIED COPY OF THE JUDGMENT IN S.C. NO. 327/2011 OF THE COURT OF SESSIONS JUDGE, KOLLAM, DATED 21/12/2017.