Kerala High Court
Sivadas vs State Of Kerala on 12 July, 2011
Author: N.K.Balakrishnan
Bench: Pius C.Kuriakose, N.K.Balakrishnan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL.A.No. 1 of 2007()
1. SIVADAS, AGED 44, S/O.RANGANATHAN,
... Petitioner
2. REJI, AGED 39, S/O.THANKAPPAN,
3. SYAMALA, AGED 44, D/O.PRABHAKARAN,
Vs
1. STATE OF KERALA, REP. BY THE
... Respondent
For Petitioner :SRI.B.RAMAN PILLAI
For Respondent : No Appearance
The Hon'ble MR. Justice PIUS C.KURIAKOSE
The Hon'ble MR. Justice N.K.BALAKRISHNAN
Dated :12/07/2011
O R D E R
PIUS. C. KURIAKOSE & N.K.BALAKRISHNAN, JJ.
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Crl.A Nos.1 & 73 of 2007
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Dated this 12th day of July, 2011
JUDGMENT
N.K.BALAKRISHNAN, J.
Accused Nos.1, 3 and 4 in Sessions Case No.16 of 2005 of Additional Sessions Judge, Thodupuzha, are the appellants in Crl.Appeal. No.1 of 2007. The second accused in that case is the appellant in Crl.Appeal No.73 of 2007. The appellants were convicted by the learned Sessions Judge for offences punishable under Sections 302 and 324 read with 34 IPC and were sentenced to imprisonment for life for the offence under Section 302 r/w 34 IPC and to undergo rigorous imprisonment for one year for the offence under Section 324 read with 34 IPC. Further, they were also sentenced to pay Rs.20,000/- as fine, in default of payment of which they were sentenced to undergo rigorous imprisonment for 6 months each. These appeals are directed against the said conviction and sentence.
2. Deceased Sreedharan, who was then aged 77 years is the father of PW2, Salimkumar. It is alleged that the jeep belonging to PW2 was used for carrying the arrack belonging to the first accused Crl.A.Nos.1 & 73 of 2007 -: 2 :- Sivadas. While so, the jeep was seized by the police. PW2 was also arrayed as accused in that Abkari case. First accused was asked to get release of the jeep from the police station or to purchase another vehicle and to give it to PW2. Accused No.1 did not heed to that demand. On 13/5/2003 at about 6 P.M there was altercation between deceased Sreedharan and his family members on the one side and the accused and his men on the other side. Somebody intervened and the parties were sent back. On the same day at about 8.30-9.P.M PW2 Salim Kumar while returning from the police station saw all the 4 accused persons standing at Amalagiri. Near to that place his father Sreedharan was also standing. When PW2 asked his father why he was standing there all the 4 accused started abusing him. Accused Nos.2 and 4 pelted stones at his father. Accused No.1 struck on the head of deceased Sreedharan with a sword like object (which was later identified as an iron plate-MO2) and inflicted fatal injury. Accused No.3 beat PW2 with a coffee stick (MO1) and caused hurt to him. PW1 who was the President of the Service Co- operative Bank, Thankamony, on getting information reached the place of incident. He accompanied the injured to Medical Trust Hospital, Nedumkandom. Sreedharan was examined by the doctor. The doctor Crl.A.Nos.1 & 73 of 2007 -: 3 :- directed the injured Sreedharan to be removed to the Medical College Hospital, Kottayam. But the injured Sreedharan was removed from Medical Trust Hospital, Nedumkandom, only at 7 A.M on the next day. While Sreedharan was being taken to Medical College Hospital, he was found to be not breathing and so PW2 and others took Sreedharan to St.Johns Hospital, Kattappana. The doctor examined and pronounced Sreedharan dead. On 14.5.2003 PW1 got information that Sreedharan succumbed to the injuries while being transported to Medical College Hospital, Kottayam. He went to Kattappana Police Station and lodged Ext.P1 first information statement, based on which PW14 the Additional Sub Inspector, Kattappana, Police Station registered the FIR, Ext.P25. PW12, the Circle Inspector of Kattappana Police Station took over the investigation, prepared Ext.P5 the inquest report and thereafter went to the place of incident and prepared Ext.P6 scene mahazar. After completing the investigation, PW13 laid the charge sheet against the accused.
3. All the accused pleaded not guilty. PW1 to PW14 were examined and Exhibits P1 to P25 were marked. MO1 to MO6 were identified and marked.
Crl.A.Nos.1 & 73 of 2007 -: 4 :-
4. When the accused were questioned under Section 313 Cr.P.C, they contended that the prosecution version is untrue. They further contended that deceased Sreedharan and his son, PW2, Sreedharan's wife Thankamma, PW2's wife Indira and their children Santhosh and Anoop and Madhu the younger brother of Sreedharan and Prakash the brother in law of PW2, came together to the road near the house of the accused carrying stones, chopper, sticks etc. and they started pelting stones at the accused and also started abusing them. On hearing the hue and cry accused No.1 and 4 came out from their houses to the road. The incident took place near the house of Ramankutty, CW4. When they were attacked by PW1, PW2 and others accused Nos.1, 2 and 4 sustained injuries and accused Nos.1 and 2 were treated at District Hospital, Idukki on the very same day. As there was no power supply there was no light at all at the place of incident.
5. DWs.1 to 5 were examined on the side of the defence. Including the portions of the case diary statement of PW3 marked as contradictions, six documents were marked on the side of the defence as Exts.D1 to D6.
6. The learned Sessions Judge after analysing the evidence did Crl.A.Nos.1 & 73 of 2007 -: 5 :- not accept the defence case that there was a group clash or that because of absence of light deceased Sreedharan happened to sustain some injuries to which he later succumbed. Accepting the prosecution version that accused in furtherance of their common intention attacked Sreedharan and his son PW2 and that because of the fatal blow inflicted by accused No.1 on the head of Sreedharan he died, the accused were found guilty of the offence punishable under Section 302 read with 34 IPC. Since it was also found that in furtherance of the common intention PW2 was beaten by A3 using a coffee stick, all the accused were held guilty of the offence punishable under Section 324 read with 34 IPC. The accused were thus convicted and sentenced as mentioned earlier.
7. Sri.B.Raman Pillai learned counsel appearing for accused Nos.1, 3 and 4 and Sri.C.M.Tomy appearing for accused No.2 and also the learned Public Prosecutor Sri.S.U.Nazar were heard in detail.
8. Following points arise for consideration:-
i. Whether the first accused in furtherance of the common intention of all the accused inflicted fatal blow on the head of deceased Sreedharan with MO2?
ii. Whether Sreedharan as mentioned above died due to the injury so sustained on his head?
Crl.A.Nos.1 & 73 of 2007 -: 6 :- iii. Whether A2 voluntarily caused hurt to PW2 by beating with a coffee stick?
iv. Whether accused numbers 2 and 4 pelted stones and caused hurt to deceased Sreedharan?
v. Whether the conviction and sentence passed against the accused are unsustainable on any of the grounds urged by the accused/appellants?
9. Points 1 and 2: PW7 was the doctor working in Medical Trust Hospital, Nedumkandom. It was stated by him that deceased Sreedharan, who was brought there by PW2 with a history of assault was examined by him at 10.35 P.M on 13.5.2003. Ext.P7 is the wound certificate issued by him. The following 5 injuries were found on the body of Sreedharan as noted by him in Ext.P7:-
"1. A 2cm x 1cm irregular laceration over right front temporal region of scalp.
2. A 8.5 cm x 0.5 cm incised wound on the midline in fronto temporal region over scalp 10cm above the mid point between two eyebrows. Fracture of temporal bone of left side felt.
3. A 1cm x 1cm abrasion over the face below right eye.
4. A 0.75 cm x 0.5 cm abrasion over the bridge of nose.
5. A 0.5 cm x 0.5 cm abrasion over right ankle of nose."
10. It was further stated by him, that when x-ray of skull was taken it showed fracture of temporal parts of left side and, therefore, the Crl.A.Nos.1 & 73 of 2007 -: 7 :- injured was referred to Medical College Hospital, Kottayam for neuro surgical management. It was stated by him that injury No.1 in Ext.P7 could be caused by beating with MO2 which is now described as iron plate. The learned counsel for the accused relied very much on the evidence given by PW7 to canvass for the position that the prosecution case must fall to the ground since it was stated by PW7 that injury No.2 cannot be caused by striking with MO2. Over much importance can not be given to the evidence of PW7 regarding the cause of death of Sreedharan. It is true that when PW7 examined deceased Sreedharan, the injuries were fresh but the postmortem was conducted by an expert. Since the evidence given by that expert witness is found to be more acceptable, the defence cannot bank up the evidence given by PW7 to contend that the prosecution case is unacceptable. PW11 was the Police Surgeon, Medical College Hospital, Kottayam and Professor of Forensic Medicine, who conducted the postmortem examination on the body of Sreedharan on 14.5.2003. In Ext.P12 the postmortem certificate issued by him the following antemortem injuries were noted by him:-
"1. Sutured lacerated wound 3 cm long, bone deep, horizontal, on right side of head. 8cm above ear. Crl.A.Nos.1 & 73 of 2007 -: 8 :-
2. Abrasion 5 x 4 cm. on right side of forehead, 2cm outer to midline and just above eyebrow.
3. Sutured lacerated wound, 8.5 cm long, bone deep, sagittally placed, on the front and top of head, the front end being, 2 cm to right of midline and 9 cm above eyebrow. The scalp around showed contusion over an area 25 x 11x1cm. The skull bone underneath showed depressed communicated fracture over an area 7.5 x 7.5 cm, involving frontal and right parietal bone which extended as fissured fractures to right temporal bone, left parietal and temporal bones and also to floors of left middle cranial fossa and pituitary fossa. Extradural blood clot 10x8x0.5 cm, over left parietal region, Subdural and subarachnoid bleeding on both sides of brain. Intracerebral bleeding over left temporal lobe of brain. Gyri of brain flattened and sulci narrowed.
4. Lacerated wound 2 x 0.8 cm skin deep, on right side of face, 0.5 cm below eye.
5. Abrasion, 4.5 x 0.5 cm on bridge of nose.
6. Abrasion, 1x 1cm, on back of right thumb, 2cm above its tip."
11. It was testified by PW11 that the death of Sreedharan was caused due to the head injury noted as injury No.3. It was further sworn by him that injury No.3 could be caused by beating with MO2. He further stated that the other injuries found on the body of Sreedharan could be caused by beating with MO1 or MO2. It was further stated by Crl.A.Nos.1 & 73 of 2007 -: 9 :- PW11 that incised looking lacerated wounds are possible to be caused on the head with MO2. It was contended by the defence that there was chance for misjudging lacerated wound as incised wound but it was stated by PW11 that if the wounds are not examined thoroughly, chances may be there. It was contended by the defence that since PW7 alone had occasion to see the wounds in its original position, the evidence given by PW7 should be preferred to. But PW11 is an expert. He has given explanation regarding the types of injuries and as to the possibility of causing injury No.3, (the detailed description of which has been given earlier) by striking on the head with MO2. Hence it can be undoubtedly held that the fatal injury (injury No.3) noted in Ext.P12 was caused by striking on the head of deceased with MO2. So many questions were put by the defence regarding the possibility of such an injury being caused in some other manner and by using some other weapon. Such hypothetical suggestions or possibilities can have no relevance since the crucial question is whether by striking at a bony part- skull with MO2, injury No.3 as noted in Ext.P12 can be caused. The evidence given by PW11 on that point is clear, cogent and convincing. It admits of no doubt that death of Sreedharan was caused because of the Crl.A.Nos.1 & 73 of 2007 -: 10 :- fatal blow given on his head with MO2. MO2 has a length of 65 cms. and width of 4.5 cms. and a thickness of half a centimetre. MO2 was brought to the court and it was examined to verify and ascertain whether MO2 was just like a sword so as to appreciate the contention raised by the prosecution that since the incident took place at night, it was likely to be mistaken as a sword. The edges of MO2 are not so sharp as a sword but there could be no difficulty to hold that the nature and weight of MO2 is such that it could certainly produce injury No.3 noted in Ext.P12 and as such we have no hesitation to accept the evidence given by PW11 that the fatal injury No.3 was caused by beating with MO2.
12. The evidence was given by PW7 after examining MO2 in court also. MO2 is just like a sword and so it was likely to be mistaken as sword especially when it was seen during night. Therefore, the argument advanced by the defence that the prosecution had no consistent case as to whether the weapon used by accused No.1 was a sword or an iron plate and on that ground itself the prosecution version has to be disbelieved is untenable. We hold that deceased Sreedharan had a homicidal death. We further confirm the finding of the learned Sessions Judge that the fatal injury was inflicted on the head of Sreedharan by striking on his head Crl.A.Nos.1 & 73 of 2007 -: 11 :- with MO2.
13. Ext.P1 is the First information statement given by PW1. He is the President of the Service Co-operative Bank, Thankamoni. He is stated to be a local leader of a political party. His evidence would show that on getting information that deceased Sreedtharan had sustained injury, he rushed to the place of incident at Thankamoni on the night of 13.5.2003. He accompanied the injured to Medical Trust Hospital, Nedumkandam, where injured Sreedharan was admitted and thereafter, he returned home. On 14.5.2003 he was informed that Sreedharan succumbed to the injuries when he was being taken to Medical College Hospital, Kottayam. Accordingly, he went to Kattappana police station and gave Ext.P1 the first information statement.
14. The learned counsel for the accused would submit that Ext.P1 was actually ante-timed. It is seen that in the FIR portion, in the relevant column, the time of recording of the First Information Statement was originally written as 10.15 am. That was subsequently corrected as 10.30 am. In the body of the F.I.Statement, the time of recording of the F.I.Statement is noted as 10.30 am. It is also seen that Ext.P5 inquest report was prepared from St.John's Hospital, Kattappana on 14/05/2003 Crl.A.Nos.1 & 73 of 2007 -: 12 :- at 10.30 am. Genuine doubt may arise as to how, if the F.I.Statement was recorded by the Additional Sub Inspector of Police at Kattappana Police Station at 10.30 am, the C.I of Police (PW12) could start preparing the inquest report, based on Crime No.204 of 2003 of Kattappana Police Station, at 10.30 am. The prosecution would contend that the time noted by PW 14 as 10.30 am, may be a mistake. But the defence would contend that the benefit of that mistake must certainly go to the accused, as it would probabilise their case. In this connection, it is also submitted by the learned counsel for the accused that though the FIR was shown to have been registered on 14/5/2003 at 10.30 am, it reached the Court of Judicial First Class Magistrate, Kattappana only at 11 am on 15/5/2003. No doubt, only because of the inconsistency pointed out above, the whole prosecution case cannot be brushed aside. But, at the same, that also may have to be taken into account while considering the evidence as a whole.
15. Exts.P2 and P3 are the two portions marked as contradictions in the evidence given by PW1. PW1 is not an eye witness to the occurrence. The statement given by PW1, as contained in Ext.P1, is to the effect that when he reached the place of incident and asked injured Crl.A.Nos.1 & 73 of 2007 -: 13 :- Sreedharan, he told that he was hacked on his head by accused No.1. Regarding the motive also, in Ext.P1, it was stated that accused No.1 was having business in sale of illicit liquor and since, PW2 had given information regarding the same to the Police, accused No.1 had grouse against PW2 and his father. PW1 has denied to have given such statements. Hence he was cross examined by the learned Prosecutor after getting permission of the Court. A similar statement was given by him to the police when questioned under Section 161 of Cr.P.C, That was also denied by him. Hence those contradictions were marked by the prosecution as Exts.P2 and P3.
16. The learned public prosecutor would submit that even otherwise those portions of the statement can carry no conviction or probative force since those portions have to be treated as hearsay information. The evidence of PW1 that he reached the place of incident in the night and then he saw Sreedharan with bleeding injuries on his head and thereafter, he was taken to Medical Trust Hospital, Nedungandam in a jeep, cannot be disputed at all.
17. Since he is not a eye witness to the occurrence, his statement as to how the incident happened may not be of any relevance. PW2, the Crl.A.Nos.1 & 73 of 2007 -: 14 :- son of the deceased has given evidence to the effect that, when he was returning from the police station and reached near the place of incident, he saw his father, near the side of the road and he also saw the four accused present somewhere near that place. When PW2 was asked the deceased, why he was standing there, the accused started abusing him and also started pelting stones at him. He was definite and categoric in his statement that the first accused struck on the head of deceased Sreedharan with MO2. As stated earlier, in the earlier portions of the statement given by the witnesses, the said weapon was described as sword stick. Since, the weapon appeared to be as described in paragraph (11), it was mistaken as a sword and so the discrepancy in the name of the weapon will not in any way affect the case of the prosecution.
18. According to PW2, he was beaten by third accused with MO1 coffee stick and thus he sustained injuries. While accused Nos.1 and 2 pelted stones at the deceased, he (PW2) also sustained injuries due to pelting of stones. According to him, there was light emanating from the bulb situated on the outer side of the house of Ramankutty (CW4), whose house is only about 10 metres away from the place of the incident. Besides, it was also stated that there was burning mercury Crl.A.Nos.1 & 73 of 2007 -: 15 :- lamp a few metres away from the place of incident and so there was sufficient light to identify the assailants. The defence would contend that for about one week prior to the date of incident and also on the date of the incident, there was no power supply and so it was completely dark. Ext.P6 scene mahazar shows the presence of the electric bulb on the outer wall of the house of CW4. It also states about the street light- mercury lamp existing a few metres away from the place of incident. Therefore, there could be no doubt regarding the presence of light, the prosecution contends. There is slight discrepancy as to when deceased Sreedharan fell down. At one place it was stated that first accused, at first beat on the head of the deceased with MO2 and then he fell down, but at another place, it was stated that when he sustained injuries due to pelting of stones, he fell down and it was in that posture, he was beaten at his head by the first accused with MO2. The evidence was given by the witness after about three years of the incident. Witnesses cannot be expected to possess such photographic memory to reproduce the events in the same sequence as if a video tape is replayed on the mental screen of the witnesses. The power of observation, retention and reproduction may vary from person to person. Such discrepancies are quite natural. Crl.A.Nos.1 & 73 of 2007 -: 16 :- The question is whether the evidence given by PW2 that his father was beaten by the first accused with MO2 infuses confidence in the mind of the Court. PW3, another eye witness to the occurrence supported the evidence given by PW2 in all material particulars.
19. It was contended by the defence that PW3 is a henchman or person working under PW2 and his father and so because of the loyalty, PW3 spoke in favour of the prosecution. The contention that PW3 is highly interested and is partisan and so his version is a prejudiced one, is not worthy of acceptance. It is further contended by the defence that the version given by PW3 is contradictory to the evidence given by PW2. As per Ext.P6 scene mahazar, the place of incident is the mud road portion of Amalagiri-Thankamoni Panchayat road. The main tar road is known as Thopramkudi-Ezhukumvayal road. Amalagiri-Thankamoni Panchayat road proceeds towards west from the main road mentioned above. Ext.P11 is the sketch prepared by the Village Officer. As per Ext.P6 scene mahazar, the place of incident is about 10 metres to the west of the main tar road. PW2 has stated that the incident took place on the main tar road. PW3 has stated that when deceased Sreedharan sustained injuries, he was about 10 feet away from the main road. Even Crl.A.Nos.1 & 73 of 2007 -: 17 :- according to the defence, there was mutual pelting of stones. Therefore, it can certainly be inferred that all those persons were not standing at a particular spot. They were moving hither and thither so that one cannot precisely say the exact spot where deceased was at the time when he received the blow with MO2. It would appear that the place of incident was marked by the Investigating Officer as the spot about 10 metres to the west of the main tar road, since that particular spot appeared to be a pool of blood. The evidence would show that deceased Sreedharan was lying there, after he received the fatal blow on his head. The evidence would also show that PW1 is an illiterate person. The incident took place at night. Amalagiri-Thankamoni Panchayat road starts from the main road- Thopramkudi-Ezhukumvayal. The place of incident is almost a junction. There is evidence to show that there was pelting of stones. Persons engaged in the incident would change their position during the attack. So much so, the slight inconsistency in the place of incident cannot be projected out of proportion to contend that the whole prosecution case should be spurned down.
20. The house of CW4 Ramankutty bearing No.KP4/66 is shown in Ext.P6. The place of incident is about 8.50 metres away from the Crl.A.Nos.1 & 73 of 2007 -: 18 :- south eastern corner of the house. There is also evidence to show that for the formation of the road, the level of the road was lowered and houses on the other side were thus on a slightly higher level. It was contended by the prosecution that stones were thrown at from the land lying at the higher level. PW12 would say that there were stones at the place of incident indicating the pelting of stones. From among them he seized the stones which were seen to be bloodstained. A pair of slippers which were seen a few feet away from the place of incident were also seized by him. Besides, bloodstained mud was also seized by him. Though at one place, the house of CW4 was noted as KP4/62, at another place it was correctly shown as KP4/66.
21. It was vehemently argued by the learned counsel for the accused that though prosecution has cited four other eye witnesses to the occurrence, those independent witnesses were not examined. It is contended that CW4 Ramankutty, who is the occupant of the house situated near to the place of incident was not examined for obvious reasons. But the Son of Ramankutty was examined by the accused as DW2. He has stated that his father remained inside the house and did not come out at all. That may be reason why he was not examined by the Crl.A.Nos.1 & 73 of 2007 -: 19 :- prosecution. DW1 is another neighbour. DW1 and 2 stated that deceased Sreedharan and his wife Thankamma and the children of PW2 had pelted stones at the accused. DW1 and 2 were examined by the defence with a specific object of stating before Court that there was no power supply at all and so it was dark at the time of incident. DW1 says that he could identify Thankamma, PW2 and deceased Sreedharan by their voice. Again he says that he could identify the other children of PW2 also. But when he was specifically asked as to the presence of the street light, he stated that there was no street light, on the reason that there was no power supply in his house. But that does not mean that there was no power supply to other houses. At another place he says that he did no see the incident at all. He has only hearsay information. He further says that he heard the incident only from his house and he did no see the fourth accused standing or talking at the place of incident. Therefore, the evidence given by DW1 is not worthy of acceptance.
22. DW2, Chandran who is the son of Ramankutty, also at one place wanted to contend that he could identify the persons by voice. But, during cross-examination, he went to the extent of saying that he actually saw Thankamma (wife of the deceased Sreedharan) and that she Crl.A.Nos.1 & 73 of 2007 -: 20 :- was actually having with her a 'Vakkathi' (chopper). He further says that he witnessed the incident from the courtyard of his house. Thus on going through the evidence given by DW2, it could be certainly found that there was street light and also light which was emanating from the bulb fixed on the outer wall of the house of his father Ramankutty. DW2 was not residing in the house of CW4. Though the attempt made by the defence by examining DW 1 and 2 was to prove that there was no light at the time of the incident, they failed in their attempt. It would appear that there was mutual pelting of stones and that Thankamma wife of first accused was also present at the place of incident.
23. PW12, the Investigating Officer has said that in the course of investigation, blood stained clothes of deceased Sreedharan were seized by him as per Ext.P4. The third accused was stated to have been arrested by him on 19/5/2003 at 2 pm. When questioned, third accused was stated to have given a statement to the effect that he had thrown the stick towards the grassy land by the side of the house of one Kallayikkal Appachan and if he is taken to that place, he would point out the same. Based on that statement, third accused was taken to that place by the police from where third accused took out MO1 stick. It was seized by Crl.A.Nos.1 & 73 of 2007 -: 21 :- PW12 as per a mahazar. The fourth accused, Shyamala was also arrested by PW12 on the same day at 5 pm.
24. The first accused, Sivadasan was arrested by PW12 on 21/5/2003 at 2 pm. The arrest memo and inspection memo were prepared by him for that purpose. PW12 says that when first accused was questioned, he stated that the Iron Plate was thrown by him to a bushy/grassy area lying to the south of Kallayikkal Appachan and that if he is taken to that place, he would take out that Iron Plate. It was testified by PW12 that as led by the first accused, he reached the place referred to above. The Iron Plate was taken out by the first accused from amidst the bushes and grasses. That Iron Plate was identified as MO2. It was seized as per Ext.P10. The relevant and admissible portion of the statement given by the first accused which led to the discovery of the fact of concealment of that weapon at the place mentioned above was separately mentioned in Ext.P10 mahazar and that fact was deposed to by PW12. Though, independent witnesses cited by the prosecution did not fully support the prosecution, the evidence given by PW12 on that point radiates confidence in the mind of the Court.
25. PW3 has given evidence to the effect that when he heard about Crl.A.Nos.1 & 73 of 2007 -: 22 :- the police and the accused reaching that place he reached there and saw accused No.1 taking out MO2, from the grassy/bushy area and handing over the same to the police. Though the place where from, MO2 was taken out, is only few metres away from the main road and few metres to the south of Kallayikkal Appachan (which is the house of Accused No.2), the contention that it was a place accessible to the public cannot be accepted, since the area was fully covered by grasses and bushes. Since MO2 was taken out from that place, it can be held with certainty that first accused alone had the exclusive knowledge regarding the presence or concealment of the weapon (MO2) at that place. Since it was taken out from that place at the instance of and as disclosed by the first accused, the Court below was perfectly justified in relying upon the discovery of that fact. It was testified by PW12 and it could be seen from Ext.P10 seizure mahazar also that dried blood stains were found on MO2, which is an automobile part.
26. All the material objects collected during the investigation were forwarded to the Forensic Science Laboratory. Items 2 to 6 mentioned therein contained human blood. Item-6 is the Iron Metallic Plate (MO2) mentioned above. Since MO2 was seized as per the disclosure statement Crl.A.Nos.1 & 73 of 2007 -: 23 :- given by the first accused, which is admissible under Section 27 of the Evidence Act, that also is a strong piece of evidence which would support the prosecution regarding the complicity of first accused, especially with regard to the overt act of causing the fatal blow with that weapon on the head of deceased Sreedharan.
27. The learned counsel for the accused relied on the decision in Vijayakumar and Others v. State (1994 (2) KLJ 903) in support his contention that when prosecution leads two sets of evidence each one of which contradicts and strikes at the other and shows it to be unreliable, there would be no reliable and trustworthy evidence. The whole argument of the defence proceeds on the premise that there is inconsistency regarding the place of incident. As stated above the persons were not remaining at the very same spot. The nature of the incident would suggest that they were moving from one place to another because of pelting of stones. The difference in the distance is only a few metres. Thus we are not impressed by the argument that the evidence on that point is contradictory.
28. The other contradiction according to the defence is that one witness states that deceased Sreedharan received the fatal blow after he Crl.A.Nos.1 & 73 of 2007 -: 24 :- fell down whereas PW2 stated that he received the blow when he was in a standing posture. That is not a material contradiction to hold that both the witnesses are totally unreliable or to throw overboard the entire prosecution case. In the light of the factual matrix of this case, the decision in Vijayakumar and Others v. State (cited supra) is found inapplicable.
29. The Supreme Court decision in State of U.P v. Jaggo alias Jagdish and others (AIR 1971 Supreme Court 1586) was also relied upon by the learned counsel for the accused in support of his submission that, though the prosecution need not call all the witness to the occurrence, witnesses essential to the unfolding of the prosecution case have to be examined. It is argued that as per the memorandum of evidence, besides CW 2 and 7, CW 3 to 6 were also cited as eye witnesses to the occurrence. But, only CW2 and 7 were examined. The prosecution would contend that since the evidence regarding the actual incident was spoken to by CW 2 and 3, who were examined as PW 2 and 3 there was no necessity of examining other witnesses. That apart, CW5 and 6 were examined by the defence as DW1 and 2. Therefore, even though prosecution did not examine those two witnesses they were Crl.A.Nos.1 & 73 of 2007 -: 25 :- examined on the defence side. Their evidence is before Court. True that DW1 and DW2 gave a difference version, but the defence could not shatter the prosecution case. In view of what has been stated above, the contention that material witnesses were not produced by the prosecution, cannot be sustained.
30. The decision of the apex court in Harchand Singh and Another v. State of Haryana (AIR 1974 SC 344) has also been relied upon by the learned counsel for the accused. It is submitted that according to the defence, the evidence given by PW2 is contradictory to the evidence given by PW3 and as such, it may be hold that there is no reliable and trustworthy evidence upon which conviction can be had. It has already been found that there is in fact, no contradiction in the evidence given by PW2 and 3. Slight difference in the distance to the place of incident from the main road cannot alter the position. Both witnesses are uniform in their statement that it was the first accused who inflicted the fatal blow on the head of deceased Sreedharan with MO2. There is no untrustworthiness in the evidence given by PW 2 and 3. Therefore, the aforesaid decision also has no application to the facts of this case.
Crl.A.Nos.1 & 73 of 2007 -: 26 :-
31. The decision in Ramesh and others v. The State (2004 Crl.L.J. 1877) was also cited by the learned counsel for the accused, to canvass for the position that since the other eye witnesses to the occurrence were not examined, it should be inferred that had they been examined, their evidence, would have gone against the prosecution. Plurality of evidence is not the requirement of law. There is no basic infirmity in the evidence given by PW 2 and 3 with regard to the overt act alleged against the first accused. Though there may be slight variation with regard to the narration of other part of evidence, evidently because of lapse of time that is not sufficient to hold that their evidence should be eschewed as unworthy of credence. We are not persuaded to hold that the non-examination of other witnesses is fatal to the prosecution.
32. It is also pointed out by the prosecution that another eye witness cited by the prosecution is Thankamma, the wife of deceased Sreedharan. She was not examined evidently because it would be contended by the defence that she is an interested or related witness. The decision of this Court in Raghava Kurup v. The State of Kerala (AIR 1965 kerala 44) has no application to the facts of this case. For the Crl.A.Nos.1 & 73 of 2007 -: 27 :- reasons already stated the decision of the apex court in BIR Singh and Others v. State of Uttar Pradesh (1977 SCC (Cri) 640) also has no application to the facts of this case. It is argued that although the prosecution is not obliged to examine each and every witness it is not entitled to withhold any witness where evidence of witness produced by it suffers from infirmities and is not reliable unless properly corroborated. As already stated with regard to the main overt act of the first accused inflicting the fatal blow on the head of deceased Sreedharan, there is no inconsistency at all nor can it be found that the evidence on that point suffers from intrinsic infirmity or inherent improbability. As such, the aforesaid decision is not applicable to this case.
33. It was also argued by the learned counsel for the accused that PW2 is a highly interested and partisan witness and that he was involved in an Abkari case. According to the prosecution PW2 had been arrayed as accused, since his jeep was used for transporting the illicit liquor of the first accused in this case. The allegation made by PW2 is to the effect that his jeep was taken by the driver for carrying liquor of the first accused which PW2 was not aware of. The very case of the prosecution Crl.A.Nos.1 & 73 of 2007 -: 28 :- is that it was because the first accused did not agree to get release of the jeep or to purchase another vehicle so as to give it to PW2, the parties fell apart. Though, it was suggested that PW3 was the driver of the jeep owned by PW2, that was denied by PW3. It was stated by PW3 that he knows driving but he was not working as a driver at all. He is residing in a house near to the place of the incident and as such it cannot be said that his presence at the place of the incident is doubtful. Therefore, his evidence cannot be brushed aside solely on such speculative grounds put forward by the defence.
34. Ext.D8 series are the reports regarding the Abkari case registered against PW2. That has no relevance to the facts of this case, since the incident referred to Ext.D8 series took place in July, 2006, more than three years after the incident in this case. Therefore, it cannot be contended that PW2 is an unreliable witness.
35. The learned Public Prosecutor Shri.Nasar has relied on the decision in Vijay Shankar Shinde & Ors v. State of Maharastra (AIR 2008 Supreme Court 1198) to buttress his submission that the evidence of the injured person who is examined as a witness lends more credence because, normally he would not falsely implicate a person thereby Crl.A.Nos.1 & 73 of 2007 -: 29 :- protecting the actual assailant. PW2 had sustained injury in the incident. He would not spare the real offender who inflicted the fatal blow on the head of his father or would implicate somebody else. Therefore, following the principle laid down by the apex court in the aforesaid decision, the Court can place implicit reliance on the evidence given by PW2.
36. In the light of what has been stated above, we are of the considered view that the court below was perfectly justified in holding that it was the first accused who inflicted the fatal blow on the head of deceased Sreedharan with MO2, which is a deadly weapon.
37. The learned counsel for the accused would submit that even if it is assumed that the evidence given by DW1 and 2 is not accepted as such, still their evidence should also be appreciated in order to visualise the genesis of the incident. There is evidence to show that at about 6 pm on that day, the members of the two groups were engaged in altercations and one of the neighbours who reached there separated and sent them away. The next incident was at about 8.30 -9 pm. The learned counsel for the accused has relied upon the evidence given by DW3, the Assistant Surgeon of District Hospital, Painavu. Ext.D5 is the Wound Crl.A.Nos.1 & 73 of 2007 -: 30 :- Certificate issued by him for having examined the first accused on the same day i.e.13/5/2003. The time of examination noted in Ext.D5 as '8.30' pm cannot be correct. It seems, the learned counsel for the accused did not notice that fact to obtain clarification from the doctor. The allegation was that at about 8.30 pm on 13/5/2003 at Amalagiri, first accused sustained injury as he was hit with a stone. In Ext.D5 he had noted two injuries:-
1. Contusion with abrasion on left gluteal region.
2. Contusion on left shoulder blade.
On the same day, he had examined second accused also. The allegation was that he was beaten with 'stick' and was stamped at 8.30 pm at Amalagiri. Three injuries were noted by the doctor:-
1) Contusion with abrasion on left temporo parietal region 2 in numbers 2 x 1 cm.
2) Abrasion 3 x 3 cm on right forehead.
3) Tenderness present in right shoulder region.
Ext.D6 is the Certificate issued for that purpose. It is true that the name of assailants were not mentioned in Exts.D5 and D6. But, since the incident took place at Amalagiri at about 8.30 pm, it cannot be said that those two persons did not sustain injuries. Therefore, that fact also had to be borne in mind by the Court while appreciating the evidence. It was Crl.A.Nos.1 & 73 of 2007 -: 31 :- contended by the defence that fourth accused Shyamala had also sustained injury due to pelting of stones. When she was arrested and produced before the learned Magistrate, it was alleged that she had sustained injury in the incident. As directed by the learned Magistrate she was taken to Taluk Hospital, Peermade on 22/5/2003, 28/5/2003 and 23/6/2003 respectively for treatment, but, no injury alleged to have been sustained due to pelting of stones or beating, could be noticed by the doctor. Ext.D7 is the Medical Record, pertaining to the treatment given to her. DW5 was the doctor who in fact examined the fourth accused Shyamala for the injuries alleged to have been sustained by her on 13/5/2003. In fact, it was stated by DW5 that Shyamala was treated for abscess at right axilla, which is a simple and common disease. However, the allegation made by the fourth accused to the learned Magistrate that she was assaulted at the time and place of incident, cannot be totally ignored since such an allegation was made at the earliest point of time.
38. Bearing in mind the evidence given by DW1 and DW2 and the fact that first and second accused also had sustained some injuries in the very same incident and the further fact that the fourth accused also might have sustained some injuries in the incident, the defence version that Crl.A.Nos.1 & 73 of 2007 -: 32 :- there was mutual pelting of stones cannot be totally brushed aside. It is true that it will not affect the main part of the incident regarding the inflicting of the fatal blow on the head of deceased Sreedharan. But the fact that there was mutual pelting of stones would assume relevance when the complicity of second and fourth accused are to be adjudged. It cannot be found with certainty as to who actually started pelting of stones. The fact that Thankamma, the wife of deceased Sreedharan was also there, cannot be discarded since she was actually cited as a witness to the occurrence. The definite statement made by DW1 and DW2 was that Thankamma also had abused and pelted stones.
39. It was contended by the defence that the son of PW2 was also present at the time of the incident and he had also pelted stones against the first accused. What ever that be, it could be seen that both sides were engaged in hurling out abuses against each other and started pelting stones against the other group. So far as the role of second and fourth accused is concerned, it can be said that when there was pelting of stones by the other group, accused Nos.2 and 4 also might have 'thrown stones' against the other group. But, it is difficult to hold that they did throw stones at the deceased or PW2. There were so many stones in and Crl.A.Nos.1 & 73 of 2007 -: 33 :- around the place of incident indicating that the parties had thrown several stones against the opposite group. Therefore, the benefit of reasonable doubt must certainly be given to accused Nos.2 and 4.
40. The next aspect to be considered is regarding the role of the third accused. PW2 has stated that when he was beaten by the third accused with a 'stick', he sustained injury on his right hand. The other injuries were not caused by beating with 'stick'. But his evidence would show that he had sustained injuries when he was pelted with stones by the other accused. Ext.P8 is the wound certificate issued with regard to the injuries sustained by him.
41. The learned counsel for the accused would submit that PW9 must have sustained injuries in the commotion that took place at the time of incident. MO1 'stick' was seized by the police at the instance of the third accused. When it was sent for examination it was found to contain human blood. According to the prosecution, when third accused was questioned, a statement was given by him to the effect that he threw that 'stick' towards the compound of the second accused, a place which was covered with bushes and grasses. The learned counsel for the accused would submit that, it is quite unlikely that the wooden stick would Crl.A.Nos.1 & 73 of 2007 -: 34 :- contain human blood and that in all probability it was planted by the police to implicate the third accused. It is contended by the defence that there was no bleeding injury on the body of PW2 and as such MO1 could not have had any blood stains on it. There was bleeding injury on the lower lip of PW2 and as such, the possibility of MO1 getting blood stained cannot be ruled out.
42. The evidence given by PW2 with regard to the overt act, that the third accused beat him with a 'stick' inspired confidence in the mind of the learned Sessions Judge. On a thorough scrutiny, the evidence given by PW2 that he was beaten by the third accused with 'stick' can be accepted as true. Since the injuries sustained by PW2 by beating with that stick were simple in nature it could be found that the third accused has committed the offence punishable under Section 324 IPC.
43. Now the next question for consideration is whether the conviction of the accused for the offence under Section 302 r/w Sec.34 of IPC is sustainable. Before going into the question as to whether accused Nos.2 to 4 can be saddled with the liability for that offence with the aid of Sec.34 of IPC, it has to be seen whether the offence alleged would actually attract Section 302 of IPC. It has already been found that Crl.A.Nos.1 & 73 of 2007 -: 35 :- it was the first accused who caused the fatal injury on the head of deceased Sreedharan with MO2 a sword like 'iron plate'. No doubt, the injury was caused on a vital part, that too, with a deadly weapon. It was sufficient in the ordinary cause of nature to cause the death of the victim.
44. To find whether there was an element of intention to cause the death of deceased Sreedharan, the whole scenario of the incident has to be visualised. The possibility of both sides entering into an altercation by abusing each other, resulting in the pelting of stones cannot be ruled out. If so, it could also be said that the fatal blow was given by the first accused without premeditation in a sudden fight in the heat of passion upon a sudden quarrel. It can also be a case where due to the mutual pelting of stones and abuses, the first accused was deprived of the power of self control by grave and sudden provocation and inflicted the blow on the head of the deceased. So, if viewed in that angle also the offence committed by the accused can only be culpable homicide not amounting to murder.
45. From the totality of the evidence and circumstances we are not inclined to accept the case of the prosecution that the accused had the intention to cause the murder or that he had intention to cause such Crl.A.Nos.1 & 73 of 2007 -: 36 :- bodily injury to deceased Sreedharan which was likely to cause the death of the victim to attract the offence of murder. In all probability, the injury must have been caused by the first accused while deprived of the power of self control by grave and sudden provocation or in the heat of passion upon a sudden quarrel. There is no evidence to show that the first accused had taken undue advantage or acted in a cruel or unusual manner. So much so we are of the considered view that the offence alleged should be culpable homicide not amounting to murder.
46. The learned counsel for the accused has relied upon the decision in Thakarda Lalaji Gamaji v. The State of Gujarat (AIR 1974 Supreme Court 1351) in support of his submission that the offence would not fall under Section 302 IPC. The facts dealt with therein were almost identical. In the aforesaid decision, it was held that in such circumstances, the offence would fall under Part (I) of Section 304 IPC. As such we hold that the first accused should be held guilty of the offence punishable under Section 304 Part (I) instead of Section 302 IPC.
47. The common intention contemplated by Section 34 is anterior in time to the commission of the crime. A mistake by one of the accused Crl.A.Nos.1 & 73 of 2007 -: 37 :- in causing a fatal blow to the deceased may not displace common intention if evidence showed the concerted action in furtherance of prearranged plan. Common intention implies a prearranged plan. No doubt, the said plan may also develop on the spot, during the course of commission of the offence. But, the crucial aspect is that the said plan must precede the act constituting the offence. Therefore, before the Court can convict a person with the aid of Sec.34, the Court should come to a definite conclusion that the said person had prior concert with one or more other persons for committing the said offence. The evidence and circumstances brought out in this case is not sufficient to come to a conclusion that there was a pre-arranged plan and that it was in furtherance of that common intention, the first accused inflicted the fatal blow on the head of deceased Sreedharan. The evidence would only show that there was mutual pelting of stones and in the course of that incident the first accused suddenly gave the fatal blow with MO2 on the head of deceased Sreedharan. There is no acceptable evidence to show that there was a pre-arranged plan, so as to hold that the act of inflicting the blow by the first accused was in furtherance of the common intention. Second, third and fourth accused cannot held guilty of the Crl.A.Nos.1 & 73 of 2007 -: 38 :- offence under Section 304 Part (I) with the aid of Section 34 of IPC.
48. There is evidence to show that the third accused voluntarily caused hurt to PW2 by beating with MO1 stick. With regard to that act also there is no evidence to show that it was done by him in furtherance of a common intention so as to fasten the criminal liability on other accused with the aid of Section 34 of IPC. Therefore, the third accused alone can be found guilty of the offence punishable under Section 324 IPC. For the reasons stated earlier, accused Nos.2 and 4 cannot be found guilty of any of the offences charged against them. The conviction of all the accused for the offence punishable under Section 302 read with Sec.34 of IPC is to be set aside. The first accused should be convicted for the offence punishable under Section 304 Part (I) IPC and third accused has to be convicted for the offence punishable under Section 324 IPC.
49. Since the conviction of the first accused has been altered to Section 304 Part (I), the other question for consideration is regarding the sentence to be imposed. Since, the first accused has been found guilty of the offence punishable under Section 304 Part (I), the proper sentence to be awarded should be Rigorous Imprisonment for 8 (eight) years and a Crl.A.Nos.1 & 73 of 2007 -: 39 :- fine of Rs.20,000/- .
50. In the result:
(a) Crl.A No.73 of 2007 is allowed. The conviction and sentence passed against the appellant/second accused are set aside and he is set at liberty. He shall be released from jail forthwith unless his detention is required in connection with any other case.
(b). Crl.A No.1 of 2007 is allowed in part. The conviction and sentence passed against the third Appellant (fourth accused) are set aside. She is acquitted of all the offences charged against her and she is set at liberty. The bail bond executed by her will stand cancelled.
(c). The conviction and sentence passed against the first accused/first appellant in Crl.A No.1 of 2007 for offence punishable under Sections 302 and 324 read with Sec.34 of IPC are set aside.
Instead, he is convicted for the offence punishable under Section 304 Part (I) IPC and is sentenced to undergo Rigorous Imprisonment for 8 (eight) years and to pay fine of Rs.20,000/- and in default to undergo Rigorous Imprisonment for 6 (six) months. If the fine amount is paid or realised, Rs.15,000/- out of it shall be paid to the widow of deceased Sreedharan. Set off is allowed as provided under Section 428 of Cr.P.C. Crl.A.Nos.1 & 73 of 2007 -: 40 :-
(d). The conviction and sentence passed against appellant No.2 in Crl.A No.1 of 2007 (accused No.3) for the offence punishable under Section 302 read with 34 of IPC are set aside. He is convicted for the offence under Section 324 IPC and is sentenced to undergo Rigorous Imprisonment for six months. As this accused/appellant had already undergone the sentence of imprisonment for six months, he shall be released from jail forthwith unless his detention is required in connection with any other case.
Sd/-
PIUS C. KURIAKOSE JUDGE Sd/-
N.K.BALAKRISHNAN JUDGE krj //True Copy// PA to Judge