Kerala High Court
Ali vs The State Of Kerala on 30 October, 2018
Bench: A.M.Shaffique, P.Somarajan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
&
THE HONOURABLE MR. JUSTICE P.SOMARAJAN
TUESDAY ,THE 30TH DAY OF OCTOBER 2018 / 8TH KARTHIKA, 1940
CRL.A.No. 1546 of 2013
AGAINST THE JUDGMENT IN SC 84/2002 of ADDITIONAL DISTRICT &
SESSIONS JUDGE, NORTH PARAVUR DATED 09-09-2013
APPELLANT/2ND ACCUSED:
ALI, S/O AHAMMED,
AGED 62 YEARS
ANJILIMOOTTIL HOUSE, ADIVARAM BHAGOM, NOCHIMA
KARA, ALUVA EAST VILLAGE, ALUVA EAST P.O.
BY ADVS.
SRI.P.MARTIN JOSE
SRI.M.A.MOHAMMED SIRAJ
SRI.P.PRIJITH
SRI.S.SREEKUMAR (SR.)
SRI.THOMAS P.KURUVILLA
RESPONDENT:
THE STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF
KERALA, ERNAKULAM.
BY ADVS.
PUBLIC PROSECUTOR SRI.S.U.NAZAR (SR)
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
3.9.2018, THE COURT ON 30.10.2018 DELIVERED THE FOLLOWING:
Crl.Appeal No.1546/13
-:2:-
JUDGMENT
Shaffique, J.
This appeal is filed by the 2nd accused in SC No.84/2002 of the Additional District and Sessions Court, North Paravur. The 2 nd accused alone was convicted and he is sentenced to undergo rigorous imprisonment for three years and to pay a fine of `10,000/- and in default to undergo rigorous imprisonment for six months for the offence u/s 324 of I.P.C. He is sentenced to undergo imprisonment for life and to pay a fine of `1 lakhs and in default to undergo imprisonment for three years for offence u/s 307 of I.P.C., to undergo imprisonment for life and to pay a fine of `1 lakh in default to undergo rigorous imprisonment for 3 years for offence u/s 302 of I.P.C.
2. The accused had been convicted for having committed the murder of two persons viz., Aliyar and Abu. The prosecution alleged that accused 1 and 2 and the deceased were first cousins. The family members joined together and contributed money for conducting marriage of Noorjahan, daughter of CW2. The marriage was held on 23/8/1998. In connection with the marriage, they had to conduct a ceremony on 7/9/1998. On the Crl.Appeal No.1546/13 -:3:- previous day, I.e., on 6/9/1998, there was an occasion by which Aliyar who was entrusted with the contributions was asked for accounts. This resulted in an altercation between the first accused and CW2. At that time, 2 nd accused interfered, caught hold of the neck of CW2 and kicked on his abdomen. CW2 informed the matter to the other relatives. At about 7 pm on the same day, Aliyar and his brothers reached the house of his uncle to make enquiries. Since 2 nd accused was not there, they returned. When the 2nd accused came back, two children came to the house of deceased and informed them that Ali had come and they were invited. According to the prosecution, at the relevant time, accused formed themselves into an unlawful assembly. They were armed with dangerous weapons like knife, chopper, sickle and stick. When Aliyar and Abu came, they were attacked on the gravel road in front of the house. Prosecution alleges that all the accused had committed several overt acts and serious injuries were inflicted on CW2 to CW6. The injured were taken to the hospital. Aliyar died on the way and Abu succumbed to the injuries at 7.00 pm on 9/9/1998. Pursuant to the aforesaid incident, crime was registered against five of the accused for Crl.Appeal No.1546/13 -:4:- offence under sections 143, 147, 148, 323, 324, 307 and 302 r/w S.149 of IPC. After conducting investigation, final report was filed before the Judicial First Class Magistrate Court-I Aluva and the matter was committed to the Court of Sessions and made over to the Additional Sessions Court for trial. During the pendency of the case before the Court, A1 died on 23/6/2005 and the case against him got abated. Charge was framed only on 24/1/2011. The prosecution examined PW1 to PW26 and marked Exts.P1 to P30. MO1 to MO11 were produced and identified. After completing the procedural formalities, the 2 nd accused alone was convicted as stated above. Accused Nos.3 to 5 were acquitted.
3. Learned counsel for the appellant submitted that there is absolutely no evidence against the 2 nd accused. The entire case revolved around the fact that the first accused had committed the crime and when it was known that the first accused died before trial, all the witnesses have turned against the second accused. In fact, the 2nd accused had not done any overt act as alleged. That apart, there are several lacuna in the investigation and the prosecution was unable to prove the case Crl.Appeal No.1546/13 -:5:- beyond reasonable doubt against the second accused. Learned counsel therefore sought for an acquittal of the second accused as well.
4. On the other hand, learned Public Prosecutor while supporting the judgment of the Sessions Court submitted that there is enough evidence adduced by the prosecution especially the oral testimony of witnesses who were injured in the very same incident. Therefore, this is a case in which more than enough evidence was adduced to prove the case beyond reasonable doubt against the second accused as well.
5. The First Information Statement was given by PW5. Ext.P3 is the FI Statement on the basis of which Ext.P18 FIR was registered. The FI Statement was recorded by PW24 at 9 p.m. on the very same day. Learned counsel for the appellant argued that in the FIS given by PW5, her allegation was against the first accused. But in evidence she had deposed that she saw second accused waving the knife. In fact, Court below did not believe PW5. She had not witnessed the incident. She in her evidence had deposed that she got the information from PW10, her daughter and on that basis she had given the FIS. She had not Crl.Appeal No.1546/13 -:6:- even seen the injured being taken to the hospital. Apparently, the evidence of PW5 lacks bonafides. PW5 cannot be taken as a credible witness to implicate any of the accused. She had only given FIS so that the investigation process could be initiated by the police officers.
6. Basically, we are concerned with the evidence of witnesses who had suffered injury. PW6, PW7, PW9 and PW13 are the persons who had suffered injuries during the aforesaid incident. PW12 and PW14 are other occurrence witnesses. We have to examine their evidence in order to find out whether the trial Court was justified in implicating A2 in the case.
7. PW6 who is the brother of deceased Aliyar deposed that when he returned home, he had come to know about the incident in which CW2 Khader Pillai was manhandled by A2. He went to the house of Aliyar and discussed the matter. Though his brother wanted to ask them about the issue, he restrained him from doing so. All of them were at the tharavadu house to discuss the ceremony to be conducted on the following day. He further deposed that two children from "Moothappa's house"
(uncle's house) came and told that A1 was calling them. The Crl.Appeal No.1546/13 -:7:- children were the sons of Karim's sister Nazeema. Aliyar alone went to the house of Karim at about 8 p.m. About half an hour later, they heard a hue and cry from the gravel road leading to the house of A2. They went to the said place one by one and saw second accused stabbing Aliyar and A1 hacking him with a chopper. When A2 was questioned, he turned and stabbed him on account of which he sustained injuries on his right arm. He received another stab on his right shoulder. When he was taken to the hospital, the cause of injury was mentioned to the Doctor. Ext.P14 is the wound certificate. He was examined by PW22, the Doctor who had issued the wound certificate. In the history of the alleged cause of injury, it is stated as "assaulted by two persons named Ali and Kareem using sword and knife at 8 pm on 6/9/1998 at Combara, NAD". He also suffered an incised injury on the right scapular region and a lacerated wound on the right forearm. That he saw the 2nd accused inflicting injury on Aliyar was pointed out as an omission. He also denied having given Ext.D8 statement to the Police which indicated that when PW7 and others reached the scene, he saw A2, A1 and Ali's son manhandling his brother and his brother falling down. The Crl.Appeal No.1546/13 -:8:- investigating officer while being examined as PW26, stated that PW6 had not given any statement that he saw A2 stabbing Aliyar. He also deposed that PW6 had not given a statement that he had seen first accused inflicting injury with a chopper. This omission in the evidence is very crucial as PW6 had not given any previous statement to the police regarding the incident by which 2 nd accused had inflicted any injury on Aliyar. But in Ext.P14 wound certificate while being examined by the Doctor, with regard to the history and cause of his injury, he had stated that he was assaulted by two persons named Ali and Kareem (A2 and A1) using swords and knife at 8 pm on 6/9/1998. It is relevant to note that there was no cross examination with reference to the fact that 2nd accused had caused injury on PW6. The omissions that had been brought out is with reference to the incident by which Aliyar was inflicted with injury and subsequently he died. But, no such previous statement was given by this witness to the police. The said being a material omission has to be treated as a contradiction. Therefore, the evidence of PW6 can be considered only for the purpose of involvement of A2 in inflicting injury on PW6.Crl.Appeal No.1546/13
-:9:-
8. PW7 another injured also deposed to the same incident. He also stated that he suffered injuries - a lacerated wound on the left side of neck and an incised wound on the right shoulder. According to him, A1 was armed with a chopper and he saw A2 stabbing Aliyar with MO1 knife. He identified MO1 knife. Ext.P15 is the wound certificate issued by the Doctor who was examined as PW22. PW7 in his evidence stated that when they reached the scene, he saw the accused inflicting injuries on his brother Aliyar and when he tried to interfere, he also suffered injury. He stated that he suffered injury at the instance of A2 and A1 and that A2 and the children of A2 had stabbed Aliyar. During cross examination, the defence denied that he had suffered injury on his neck. The suggestion was that the witness along with others had manhandled A1 and A2 and A2 started bleeding through his nose and he was lying in the courtyard of A1. During examination of PW7, absolutely no omission regarding the inflicting of injuries by A2 on Aliyar has been brought out. While PW26 was examined, nothing material had been brought out regarding the involvement of A2 in inflicting injuries on Aliyar. Therefore, unlike the evidence of PW6, there is absolutely no Crl.Appeal No.1546/13 -:10:- contradiction with reference to the incident by which A2 had inflicted injury on Aliyar. In Ext.P15 wound certificate of PW7, he had given information that he suffered injury at the hands of A1 and A2.
9. PW9 is another injured. He is the son of Aliyar. He also rushed to the road in front of the house of Aliyar when they heard a hue and cry. He saw A2 with a knife stabbing his father and A1 hacking him with a chopper. He also suffered injury as A1 hacked him on his left hand with a chopper. Ext.P16 is the wound certificate. He also witnessed PW6 and PW7 being attacked. In the wound certificate PW22 had recorded that the injury on PW9 was on account of the assault by A1 and A2 with swords and knife. PW9 in his evidence had spoken about the incident. He deposed that when he reached the scene, he saw A2 with a knife and A1 with a chopper inflicting injuries on Aliyar. In cross examination, the omission that was pointed out was that he had not given any statement to the police that he saw A2 stabbing his father. PW9 answered that he does not remember whether he had given such a statement. PW26, the investigating officer when examined stated that PW9 had not given any statement that A2 Crl.Appeal No.1546/13 -:11:- had inflicted any injury on Aliyar. Therefore, the evidence of PW9 cannot be considered to arrive at a conclusion that A2 had inflicted any injury on Aliyar. Ext.P16 is the wound certificate of PW9. Regarding the cause of injury, he stated that he was assaulted by A1 and A2.
10. PW12 another occurrence witness has also given similar evidence. He is the son-in-law of CW2. He also identified MO1 and MO2 weapons. PW12 in his chief examination had stated that he saw A2 stabbing Aliyar and Aliyar fell down. During cross examination, he was asked why the police had not recorded that any incident had happened in the pathway and that he had seen it. He stated that police might have committed a mistake. While PW26 when being examined, no omission had been pointed out regarding the incident spoken to by PW12.
11. PW13 is another injured. He is a relative of both the parties. He deposed that A1 Karim stabbed him and he ran back to the road. Ext.P20 is the wound certificate. He suffered a lacerated wound on the lateral aspect of left shoulder. He was declared hostile by the prosecution. In his chief examination, he deposed that A1 had inflicted injury on him and the incident Crl.Appeal No.1546/13 -:12:- happened near the house of the accused. When he reached the scene, he saw that there was a scuffle between PW9 and the 5 th accused. He tried to interfere and at that time A1 inflicted an injury on him. He thereafter ran away. He also stated that along with A1, Sakkeer, Sainudeen and Ali (A2) were also present.
12. PW14 is another occurrence witness. He is the son-in- law of Aliyar. He deposed that when he saw Aliyar lying down, A1 was holding a chopper and A2 was holding a knife. The other accused were having stick with them. But in the previous statement, he had not given any statement to the police that he saw the chopper in the hand of A1 or the knife in the hand of A2. The Court below did not believe his version. PW14 stated that when he reached the scene, A2 was holding a knife and A1 a chopper. At that time, brothers of Aliyar came to the scene and he saw the accused attacking them. He saw Aliyar lying down and tried to help him. He along with PW12 took Aliyar to the NAD Aluva road. He also identified the weapons which were held by A1 and A2. He however had not stated that he had seen A2 inflicting any injury on Aliyar. But he had stated that A2 was having a weapon with him. This according to the defence was an omission Crl.Appeal No.1546/13 -:13:- as no such statement was given to police that A2 was holding any weapon. When PW26 was examined, he confirmed that PW14 had not given any statement that he saw A2 with a knife and A1 with a chopper. Therefore, the evidence of PW14 will not help the prosecution in any manner.
13. The main contention urged by learned counsel for appellant is that none of these witnesses could be believed and there is no material to indicate that Aliyar was called to the house of A1 or A2 by the two children. Those two children had not been examined and even their names were not mentioned in the case diary. The investigating officer had not conducted any investigation in the said matter. Argument is that the genesis of the incident had been completely changed and a false story had been put forward by the prosecution.
14. But in this case, we are basically concerned with the oral testimony of the injured witnesses. No doubt they are all relatives. This apparently was a fight between members of a family and therefore, the witnesses also will be members of the family. The fact that some of the witnesses have suffered injuries would prove that they were present in the scene of occurrence at Crl.Appeal No.1546/13 -:14:- the relevant time. From the aforesaid evidence, two witnesses PW7 and PW12 have categorically spoken about the involvement of A2 in inflicting injury on Aliyar. Despite effective cross examination, there is no omission or contradiction with reference to the said statement. Of course, in the evidence of PW6, PW9 and PW14, there are material omissions with reference to the question whether they have actually seen A2 inflicting injury on Aliyar. PW13 has not seen A2 inflicting any injury on Aliyar or Abu. He only stated that A2 was also present when he was stabbed by A1. He was declared hostile by the prosecution.
15. Learned counsel for the appellant contended that the prosecution had completely changed the scene of occurrence. According to the prosecution, the incident happened in the pathway, whereas according to the defence, the incident happened in the compound of A1 and A2. That apart, the defence has a contention that it was Aliyar, Abu and the persons who were injured who had attacked A1 and A2 in their house and the allegation that two children had come and invited Aliyar was a cooked up story. Ext.P4 is the site plan. Prosecution states that the incident happened in the pathway. All the witnesses have Crl.Appeal No.1546/13 -:15:- stated so. But, of course, in their earlier statements, they have not stated that the incident happened in the pathway. PW6 had stated that the incident happened in the pathway and he had mentioned that to the police but he does not know why the police had not recorded the same. While PW26 was examined, he deposed that in the statement of PW6, he had mentioned that two children had come and called them and when he was asked whether PW6 had mentioned that the incident happened in the pathway, he answered that no mention was made regarding the pathway. All the witnesses have only stated that they have gone to the scene of occurrence. The contention that the incident happened in the pathway may not be an embellishment as the investigating officer had categorically stated that they have only given a statement that they had proceeded to the scene of occurrence and even in the site plan prepared as Ext.P4, the scene of occurrence is shown as the pathway. We do not think that such omissions can be termed as contradictions to affect the prosecution case. An incident happened by which several persons were injured. This fact is admitted. The presence of the accused as well as the injured witnesses are also admitted in the Crl.Appeal No.1546/13 -:16:- scene. Whether it is in the pathway or a nearby place may not affect the prosecution case and cannot be termed as so material. We are considering the involvement of the appellant in a murder case, and the question is whether A2 had inflicted any injury on the deceased.
16. As far as A2's involvement in causing injury to the injured witnesses viz, PW6, PW7, PW9 and PW13, there is not much cross examination on the point. Even if the evidence of PW6, PW9 and PW13 is to be discarded as an embellishment regarding the involvement of A2, evidence of PW7 and PW12 is clear and categoric. Even in the wound certificates which have been produced as Exts.P14, P15, P16 and P20, they have mentioned to the Doctor that the incident by which they got injured was at the hands of A1 and A2. Therefore, the involvement of A2 in the crime has been proved by the prosecution beyond any reasonable doubt.
17. A contention had been raised by the learned counsel for the appellant stating that initially the case was against A1 and the involvement of A2 was subsequently created when A1 died before the trial started. Though it could be stated that some of Crl.Appeal No.1546/13 -:17:- the witnesses had not given earlier statement to the police regarding the involvement of A2, when one injured eyewitness and another eyewitness have clearly spoken about the incident, even if there is any lacuna in the investigation, when two persons had been murdered and there is clear evidence to show that A2 was involved in the crime and inflicted injuries on the deceased Aliyar, as well as the injured, it is rather established by the prosecution that A2 was involved in the said crime.
18. Evidence of the Doctor who conducted post-mortem would show that Abu suffered two injuries. Ext.P19 is the wound certificate. PW25 is the Doctor who examined him. He suffered an injury to the spinal cord and he collapsed immediately after sustaining the injury. Following were the injuries noted:-
"On admission, patient was comatose and in shock. 2 cm long laceration on (L) ear lobule 4 cm x 3 cm x 3 cm penetrating injury on the upper part of the neck (L) side, near the angle of mandible. Wound was explored and found to be extending posteriorly, to the 4 th cervical vertebral level."
19. The alleged cause of injury was also stated as "by Kareem and some other persons with knife at about 8.30 p.m."
20. PW21 had conducted post-mortem on the body of Abu Crl.Appeal No.1546/13 -:18:- and following were the injuries noted:
"(1)Abrasion 1 x 0.2 cms on the outer end of right eye.
(2) Abrasion 2 x 1 cm, 1 cm above right eye brow. (3) Abrasion 1 x 1 cm, 3 cm above the root of nose. (4) Obliquely placed through and through sutured wound 3.5 cm long on the lower part of pinna of left ear (lobule) (5) Obliquely placed sutured wound 3.2 cm long front lower end 1 cm below left ear and back upper end just behind root of ear.
xxx (6) Muscle deep sutured wound 7 cm long found as a continuation of injury No.5, lower end being 5 cm above the adam's apple.
(7) Tracheotomy wound on the front of neck
(8) Abrasion 6 x 3 cms on left side of back 11 cms
below left shoulder right and
(9) On dissection the cervical vertebra fractured at
C5 level with injury to spinal cord."
21. Doctor opined that death was due to the combined effect of injury Nos. 5 and 9 and consolidation of lung. As far as the death of Abu is concerned, there is no evidence to implicate A2. None of the witnesses had stated anything about the involvement of A2 in the incident by which Abu was murdered.
22. PW23 has conducted the postmortem on Aliyar.
Ext.P17 is the post-mortem certificate. Following were the ante- Crl.Appeal No.1546/13 -:19:- mortem injuries noted by him:-
"(1) Incised wound 5x2 cm vertical on the outer end of left eye brow. Its upper split end was 7 cm above and in front of top of left ear. The other end, pointed was at the level of lower lid of left eye. The wound was directed backwards and downwards for a depth of 4 cm into the soft tissues of face. The margins of the wound at few sites showed lacerated appearance.
2) Incised gaping wound 11x4.5 cm oblique on front at left shoulder. Its upper back end was pointed and was at the level of top shoulder. The other end was split and was at the level of front margin of axilla. The wound was directed downwards and backwards for a depth of 9 cm into the muscles. The wound in its course severed the axillary artery and vein.
3) Incised wound 6x3 cm obliquely placed on the right side of neck close to shoulder. Its front left end showed splitting and was 5 cm behind the medial end of right collar bone. The other end was clear cut and pointed. The wound was directed downwards, backwards and to the left for a depth of 9 cm into the muscles. The wound in its course cut the right subclavious artery and vein, partially.
4) Incised wound 5x1 cm obliquely placed on the back of chest close to the root of neck. Its upper right broad end was 15 cm below external occipital protuberance in the midline. The other end is clean cut and pointed. The wound was directed downwards and to the right for a depth of 3 cm into muscles.
5) Incised wound 6.5x1.5 cm obliquely placed on the right side of back of chest. Its upper left split end was 1.5 Crl.Appeal No.1546/13 -:20:- cm right of midline and 3 cm below the upper end of injury No.4. The other end was clean cut and pointed.
The wound was directed downwards and clean cut and pointed. The wound was directed downwards and left for a depth of 7 cm into the muscles".
23. According to the Doctor, the deceased died due to injury Nos. 2 and 3 and it is independently sufficient to cause death in the ordinary course of nature. He further deposed that injury No.1 could be produced by using MO1 knife. According to the Doctor, the injuries noticed in Ext.P17 could be either caused by MO1 knife or MO2 chopper.
24. When the prosecution witnesses, who were injured were able to prove that on account of the incident on the fateful day two persons died, and the injuries sustained were grievous, it is rather clear that the deceased Aliyar and Abu died due to the injuries sustained by them in the aforesaid incident. As far as the involvement of A2 is concerned, the oral testimony of the injured eye witnesses PW7 and PW12 proves the complicity of A2 in the commission of the crime against Aliyar. As already stated, there is no evidence to prove that A2 had inflicted any injury on Abu.
25. The contention that all the witnesses are on inimical terms against the second accused and therefore the evidence Crl.Appeal No.1546/13 -:21:- cannot be taken for granted, has to be brushed aside on account of the fact that all the injured eyewitnesses have clearly spoken about the involvement of second accused and with regard to the evidence of PW7 and PW12, there is no contradiction relating to the involvement of A2.
26. That apart, MO1 knife was recovered on the basis of the confession statement of second accused as per Ext.P8 seizure mahazar of A2 on 11/9/1998. PW15 is a witness to the recovery of MO1 and he deposed that he was present when the police came and recovered the knife from the house of Ahamed, S/o Kochali.
27. The trial Court had convicted the accused for the murder of Aliyar and Abu. As already stated, there is no evidence to prove that A2 had inflicted any injury on Abu. A few witnesses have indicated that Abu was attacked by accused 3 to 5. They were already acquitted. Therefore, the only evidence available against the second accused is for committing the murder of Aliyar and causing injury to PW6, PW7, PW9 and PW13. Therefore, the finding against the appellant (A2) for having committed murder of Abu is hereby set aside. The conviction and sentence Crl.Appeal No.1546/13 -:22:- of the appellant/2nd accused for committing the murder of Aliyar is sustained. Similarly, the conviction and sentence of the 2 nd accused u/s 324 of I.P.C for having caused injury to PW6, PW7, PW9 and PW13 shall stand confirmed.
28. Though the appellant/2nd accused has been chargesheeted u/s 307 of I.P.C., there is no evidence to indicate that the appellant had any intention to commit murder of PW6, PW7, PW9 and PW13. Therefore, the conviction and sentence of the 2nd accused u/s 307 of I.P.C. stands set aside.
In the result, the appeal is partly allowed setting aside the conviction and sentence of the accused u/s 307 I.P.C. and confirming the conviction and sentence of the appellant u/s 324 of I.P.C. and 302 of I.P.C.
Sd/-
A.M.SHAFFIQUE JUDGE Sd/-
P.SOMARAJAN
Rp //True Copy// JUDGE
PS to Judge