Kerala High Court
Udayan vs State Of Kerala on 10 June, 2011
Bench: Pius C.Kuriakose, N.K.Balakrishnan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL.A.No. 20 of 2007()
1. UDAYAN, S/O.THANKAPPAN,
... Petitioner
Vs
1. STATE OF KERALA,
... Respondent
For Petitioner :SRI.P.K.RAMKUMAR
For Respondent : No Appearance
The Hon'ble MR. Justice PIUS C.KURIAKOSE
The Hon'ble MR. Justice N.K.BALAKRISHNAN
Dated :10/06/2011
O R D E R
PIUS C.KURIAKOSE & N.K.BALAKRISHNAN, JJ.
---------------------------------------------------- Crl.A.Nos.20, 149, 299 & 417 of 2007
---------------------------------------------------- Dated this the 10th day of June, 2011 Judgment Balakrishnan, J.
Crl.A.No.20 of 2007 is the appeal filed by the third accused in Sessions Case No.358 of 2006 of the Additional Sessions Judge, Thodupuzha. Accused Nos.1 and 4 in that case are the appellants in Crl.A.No.149 of 2007. The 5th accused in that case is the appellant in Crl.A.No.299 of 2007. The second accused is the appellant in Crl.A.No.417 of 2007. The appellants were convicted for offences punishable under Sections143, 144, 147, 148 and 302 read with 149 I.P.C and they were sentenced to undergo R.I for three months each for the offence punishable under Section 143 I.P.C, R.I for 6 months each under Section 144 I.P.C, R.I for 6 months each under Section 147 I.P.C, R.I for one year each under Section 148 I.P.C and rigorous imprisonment for life and to pay fine of Rs.10,000/- each in default to undergo simple imprisonment for three months each under Section 302 I.P.C. Besides A5 was convicted for the offence under Section 506 (ii) read with 149 I.P.C also and was sentenced to undergo R.I for Crl.A.20/07 etc. 2 two years. These appeals are directed against the said conviction and sentence as indicated above.
2. Sreekandan Nair, the victim in this case who was a lorry driver was a resident of Thiruvananthapuram District. He was staying in a rented house which belonged to the mother-in-law of the first accused on a monthly rent of Rs.500/-. The said house is situated within the limits of Cumbammettu Police Station in Idukki District. Sreekandan Nair was stated to have defaulted payment of rent. The first accused demanded Sreekandan Nair to vacate the house. He did not heed to it. Thus Sreekandan Nair and accused No.1 were on inimical terms. There was an earlier incident in which A1 was stated to have caused injuries to deceased Sreekandan Nair. There was a counter case also. A1 wanted to get rid of Sreekandan Nair. On 8.7.2004 at about 6.30 P.M., Sreekandan Nair reached the public road at a place called 'Ammavankada' with his lorry for loading mangoes. P.W.1 and others were loading bags of mangoes. While Sreekandan Nair was standing outside the lorry near the driver's seat, all the accused reached there in an autorickshaw. All the accused got Crl.A.20/07 etc. 3 down. The autorickshaw left the place. Thereafter, A1 struck on the head of Sreekandan Nair with the blunt portion of a chopper. Accused Nos.2, 3 and 5 beat with the sticks of coffee plant at several places on the body of Sreekandan Nair. Sreekandan Nair was in fact beaten to pulp by the accused. Accused No.5 attempted to hit Sreekandan Nair with the sword, but the sword happened to strike at the coffee stick of another accused and so no injury with that sword happened to be inflicted on him. Though P.W.1 and C.W.6 tried to intervene, accused No.5 intimidated them by brandishing the sword and since they were put to fear of death, they could not intervene. Thereafter, the accused threw the body of Sreekandan Nair into a pit and left the scene. P.W.1 and C.W.6 thereafter rushed to the shop of one Saly. A few persons reached the place. A jeep was brought to that place in which Sreekandan Nair was at first taken to Arppana hospital and thereafter to the Medical College Hospital, Kottayam. Though P.W.1 and C.W.6 accompanied Sreekandan Nair upto Arppana hospital, they did not go to the Medical College Hospital. Later, Sreekandan Nair succumbed to the multiple Crl.A.20/07 etc. 4 injuries sustained in the incident at the wee hours of 9.7.2004. P.W.1 on getting information went to Cumbumettu Police Station and lodged the First Information Statement at 3.15 A.M on 9.7.2004 based on which P.W.21, the Sub Inspector of Police registered the F.I.R. P.W.22, the Circle Inspector of Police conducted investigation. P.W.23 continued the investigation and laid the charge sheet against the accused. The prosecution alleged that the accused five in number had formed themselves into an unlawful assembly armed with deadly weapons and caused the murder of Sreekandan Nair mentioned above.
3. When charges were framed against the accused, they pleaded not guilty. P.W.1 to P.W.24 were examined and Exts.P1 to P32 were marked. M.O.1 to M.O.18 were also identified and marked. No evidence was adduced on the side of the defence. Ext.D1, the relevant portion of the F.I.Statement was marked as contradiction.
4. After hearing both sides, the learned Sessions Judge, Thodupuzha found the accused/appellants guilty, convicted and sentenced as mentioned earlier.
Crl.A.20/07 etc. 5
5. The appellants would contend that the prosecution has suppressed vital evidence in the case and has only cited interested and partisan witnesses to prove the prosecution case. Their evidence is mutually contradictory and is thus unbelievable. Binu, the driver of the autorickshaw in which the five accused persons were stated to have reached the place was not examined by the prosecution. Though one accused was stated to have been carrying a sword and another accused a chopper, no injury was caused with those weapons and as such the court below was not justified in holding that the accused are guilty of the offence under Section 302 I.P.C. There are contradictions regarding the sticks or 'pathal' stated to have been used by the accused for beating the deceased. The evidence regarding the recovery of the dresses alleged to have been worn by the accused at the time of incident is also suspicious. The fact that P.W.1 did not accompany the deceased to Medical College Hospital should have been considered by the court below to hold that Ext.P1-First Information Statement-was not given by P.W.1 at the time mentioned therein. Thus, the appellants contend that the Crl.A.20/07 etc. 6 conviction and sentence passed against them are liable to be set aside.
6. Heard the learned counsel appearing for all the appellants and the learned Public Prosecutor. The following points arise for consideration:
1. What was the cause of death of Sreekandan Nair, the deceased in this case?
2. Whether the prosecution could prove the motive alleged?
3. Whether the accused/appellants formed themselves into an unlawful assembly with the common object of causing the death of Sreekandan Nair?
4. Whether the accused in prosecution of the common object of unlawful assembly, with the intention of causing death or with the intention of causing such bodily injuries likely to cause the death of Sreekandan Nair, inflicted injuries to Sreekandan Nair and caused his death?
5. Whether A5 caused criminal intimidation to P.W.1 and C.W.6 brandishing a sword and put them in fear of instant death?
6. Whether the conviction and sentence passed against the Crl.A.20/07 etc. 7 accused/appellants are unsustainable on any of the grounds urged by them?
7. Deceased Sreekandan Nair was at first seen by P.W.15, the doctor working at Arppana Hospital, Thookkupalam at 7.45 P.M on 8.7.2004. Ext.P14 is the wound certificate issued by him.
At the time of examination, the patient was conscious. He had noted certain injuries in Ext.P14. Since there was a detailed examination by P.W.16, the Lecturer and Assistant Police Surgeon of Medical College Hospital, Kottayam, it is not necessary to deal with the injuries noted by P.W.15 in Ext.P14. P.W.16, the doctor who conducted post-mortem on the body of Sreekandan Nair has proved Ext.P15 post-mortem certificate. Including the two surgical wounds, altogether 22 injuries were noted by P.W.16. The following are those ante-mortem injuries noted by P.W.16:
1. Sutured incised wound 8 cm long, muscle deep on the right eyebrow, its inner end 1 cm outer, to the root of nose.
2. Abrasion 1.5 x 1 cm on the outer end of upper eye lid.
3. Abrasion 1.5 x 1 cm on the right side of face 1.5 cm outer to Crl.A.20/07 etc. 8 angle of eye lid. The scalp, skull, dura and brain appeared normal.
4. Contusion 16 x 13 cm muscle deep on the outer aspect of right arm its upper extent 15 below top of shoulder.
5. Closed fracture of lower end of right forearm bones with dislocation at wrist joint.
6. Contusion 9 x 6 cm, muscle deep on the front of right fore-arm 4 cm below elbow.
7. Contusion 8 x 4 cm, muscle deep on the back of left elbow. The upper arm and fore arm bones at the elbow joint were fractured and fragmented.
8. Incised wound 2 x 0.5 cm bone deep on the back of left arm 3.5 cm above elbow.
9. Incised wound 1 x 0.5 cm long, muscle deep on the back of left ring finger 4 cm below its root.
10. Incised penetrating wound 2.5 x 0.5 cm on the left side of front chest entering the chest cavity, at the fourth intercostal space, its front end 17 cm outer to midline and 18 cm below outer end of collarbone (surgical thoracostomy wound). Crl.A.20/07 etc. 9
11. Incised penetrating would 2.5 x 0.5 cm on the right side of front of chest entering chest cavity at the inter costal space its front inner end 18 cm out to midline and 20 cm below out end of collar bone (surgical thoracostomy wound).
12. Contusion 16 x 1.5 cm oblique on the right side of front of abdomen, its upper extent 16 cm outer to midline and 5.5 cm below costal margin.
13. Abrasion 3 x 0.2 cm on the right side of back of chest 4 cm outer to midline and 16 cm below root of neck.
14. Abrasion 3 x 0.5 cm and 5 x 0.5 cm, 4.2 cm apart one below the other on the back of trunk, the lower one 21 cm above the natal cleft.
15. Fracture of 10th and 11th ribs on right side at its back aspect. The back aspect of lower lobe of right lungs showed contusion 4 x 3 x 1 cm.
16. Contusion 15 x 2 cm, muscle deep obliquely placed on the outer aspect of right thigh 13 cm below prominence of hip bone.
17. Contusion 15 x 4 cm oblique on the outer aspect of right thigh 11 cm below above injury No.16.
Crl.A.20/07 etc. 10
18. Lacerated wound 4 x 2 cm, bone deep on the front of right leg 9 cm below knee.
19. Lacerated wound 4 x 2 cm, bone deep on the front of right leg 15 cm below knee, through which fragment of tibia bone was seen protruding. The both bones of leg showed comminuted fracture. The muscles and blood vessels were lacerated.
20. Lacerated would 2.5 cm x 1 cm, bone deep 1 cm below the above injury No.19.
21. Lacerated wound 4.5 x 2 cm bone deep on the front of left leg 10 cm below knee. The muscles and soft tissues were crushed.
22. Multiple small abrasion over an area 2.5 x 1 cm on the front of left leg 5.5 below above injury No.21.
Injury Nos.10 and 11 are the surgical wounds. It was testified by P.W.16 that the death of Sreekandan Nair was due to multiple injuries sustained. It was further stated by him that injury Nos.1, 8 and 9 could be caused by M.O.1 series, the coffee sticks and the blunt portion of M.O.3 chopper. It was also stated by him that injury Nos.1, 8 and 9, the incised injuries could be caused in the Crl.A.20/07 etc. 11 scuffle when M.O.3 chopper happened to hit the body of the deceased. So many questions were put to P.W.16 by the learned counsel appearing for the accused to suggest that the injuries noted by him in Ext.P15 could not have been caused by beating with the coffee sticks or with the blunt portion of M.O.3 chopper. Similarly, questions were also put as to the possibility of causing three incised injuries found on the body of Sreekandan Nair.
8. It was stated by P.Ws.1 and 3 that A1 had struck on the head of Sreekandan Nair with the blunt portion of M.O.3 chopper. If A1 had struck with blunt portion of the chopper with sufficient force, it could have fatal injuries, but, no such fatal injury could be noted by P.W.16. Except injury No.1, no other injury was found to have been caused on the head or fore head or back of head of the deceased. Injury No.1 was a sutured incised wound 8 cm long, muscle deep on the right eyebrow, its inner end 1 cm outer to the root of nose. It is important to note that five accused persons had attacked an unarmed man and so which portion of the weapon caused the injury and on which portion of the body of the deceased the blows did actually fall Crl.A.20/07 etc. 12 cannot be so precisely stated by the witnesses. It is a case where other three accused persons were also seen beating deceased with coffee sticks on several parts of the body. It was also stated that when deceased fell down and was lying in a prone position, his head was pulled up by his hair and pushed down to the ground several times and then with the blunt portion of M.O.3, blows were given on the back of deceased Sreekandan Nair. According to P.Ws.1 and 2, Sreekandan Nair was actually beaten to pulp by incessantly and indiscriminately beating with the coffee sticks by the accused mentioned above. The number of injuries found on the body of Sreekandan Nair support the evidence given by P.Ws.1 and 2 regarding the same.
9. It is seen that the learned Public Prosecutor did not ask P.W.16 as to which of the injuries was sufficient in the ordinary course of nature to cause the death of the victim. Anyway, that will not come to the rescue of the defence since during the cross examination, it was stated by P.W.16 that injury Nos.15 and 19 were sufficient to cause the death of the victim and that all other injuries were collectively sufficient to cause the death of victim. Crl.A.20/07 etc. 13 Injury No.19 was a lacerated wound through which fragment of tibia bone was seen protruding. Both bones of leg showed comminuted fracture. The muscles and blood vessels were also lacerated. It was contended by the defence that the injuries noted by P.W.16 did not reconcile with the act of causing injuries deposed to by P.Ws.1 and 3 and as such according to the defence, the whole prosecution case is unreliable. There is no such inconsistency in the evidence given by P.W.16 which would run counter to the evidence given by P.Ws.1 and 3. It is pertinent to note that it is a case where one person was attacked by five accused persons. Three of them were using three different types of coffee sticks. A1 used the blunt portion of a chopper. Therefore, court cannot expect that much accuracy or precision as to which all were the injuries caused by each of the accused or by each of the weapons. The injuries noted by P.W.16, in fact, corroborate the evidence given by P.Ws.1 and 3. In the light of the evidence given by P.W.16, it can be undoubtedly found that the death of Sreekandan Nair was due to the multiple injuries he had sustained in the incident as alleged by the prosecution. It is Crl.A.20/07 etc. 14 thus proved to be a case of homicide.
10. It has come out in evidence that deceased Sreekandan Nair was residing in a house as a tenant under the mother-in-law of accused No.1. It was stated that A1 and deceased Sreekandan Nair were on inimical terms since the latter did not agree to vacate the building he was occupying. It has also come out in evidence that there was an earlier incident in respect of which crime No.129 of 2004 was registered by Nedumkandam police against A1 for offence under Section 324 I.P.C where the allegation was that A1 caused injury to deceased Sreekandan Nair. Ext.P18 is the F.I.R. There was a counter case registered as crime No.130/04 of Nedumkandam Police Station against Sreekandan Nair and another for offences under Sections 324 and 341 r/w 34 I.P.C as evidenced by Ext.P19. Exts.P20 and P21 are respectively the charge sheets filed in those two crimes. Since the prosecution relies upon the ocular testimonies of P.Ws.1 to 3 to sustain the conviction, even if the motive alleged by the prosecution is not proved to the hilt, still the prosecution can succeed. The prosecution could prove that there was Crl.A.20/07 etc. 15 sufficient motive for A1 to brutally attack or to cause the death of deceased Sreekandan Nair.
11. The evidence given by P.Ws.1 and 3 would show that when the mini lorry was parked on the road at a place called 'Ammavankada' and while P.W.6 and others were loading mangoes, all the five accused persons reached there in an autorickshaw driven by one Binu. When all the accused got down, the autorickshaw left the place. It was contended by the defence that Binu, the autorickshaw driver was not examined by the prosecution and so it was fatal. That argument is totally devoid of any merit. The evidence would show that the autorickshaw left the scene immediately and there was no case for the prosecution witnesses or even for the defence that Binu, the autorickshaw driver had actually seen the incident. That apart, the evidence given by P.Ws.1 and 3 that the accused reached there in the autorickshaw mentioned above was not effectively challenged so as to affect the credibility of that version. So, there was no necessity to examine Binu, the driver of the autorickshaw. Therefore, the contention to the contrary advanced by the Crl.A.20/07 etc. 16 defence must fall to the ground.
12. The evidence given by P.Ws.1 and 3 would show that after the accused got down from the autorickshaw, A1 at first struck on the head of Sreekandan Nair with the blunt portion of the chopper which was identified by P.Ws.1 and 3 as M.O.3. It was stated that accused Nos.2 to 4 then beat Sreekandan Nair continuously and indiscriminately with coffee sticks which were identified as M.O.1 series. There is also evidence to show that when the deceased fell down and was lying in a prone position, he was beaten indiscriminately on his back causing fracture of ribs. It was stated that A1 inflicted injuries on the deceased with the blunt portion of M.O.3 chopper. The fact that two ribs of Sreekandan Nair were fractured, as noted in Ext.P15 reconciles with the statements of the eye witnesses as mentioned above. It could also be seen that the upper and fore arm bones were also fractured and fragmented due to the blows sustained by Sreekandan Nair at the hands of the accused. There was comminuted fracture of both bones of leg also. The muscles and soft tissues were crushed by the accused. The nature of injuries Crl.A.20/07 etc. 17 noted by P.W.16 would show that the accused had beaten deceased black and blue and mercilessly fractured and fragmented his hands, legs and ribs.
13. The evidence given by P.Ws.1 and 3 was attacked by the defence contending that P.W.1 is the cleaner of the lorry driven by the accused and P.W.3 is an employee of one Saly who was on inimical terms with the accused. The court below has after scanning the evidence properly accepted the evidence given by P.Ws.1 and 3. The slight inconsistencies or variations in their evidence with the statements contained in Ext.P1 or the statements given to the police cannot in any be a reason to hold that P.Ws.1 and 3 did not see the incident. In fact, no material contradiction was marked or proved by the defence. Since five persons attacked the deceased, it will not be possible for the witnesses to observe so meticulosly the sequence of events and retain and reproduce the same in court in the same sequence after about two years of the incident. On a reappraisal of evidence given by P.Ws.1 and 3, we could find no material contradiction so as to hold that their evidence is unworthy of Crl.A.20/07 etc. 18 credence. The fact that P.Ws.1 and 3 were the labourers engaged in loading mangoes is no reason to say that they are interested or partisan witnesses. As the incident took place on the road and near the lorry while they were loading mangoes and since the incident took place in their immediate presence, they are the most natural witnesses to speak about the incident. It was testified by them that they tried to intervene and prevent the accused from further attacking the deceased. But A5 by brandishing M.O.2 sword threatened that they would be done away with if they intervened and so being afraid of the dire consequence, they did not intervene. Therefore, there was no unusual or unnatural conduct on the part of those witnesses to cast any suspicion.
14. P.W.2 when examined in chief stated that he did not see the incident, but when he was cross-examined by the learned Public Prosecutor after seeking permission of the court, admitted that he had given statement to the police with regard to the incident. When P.W.2 was confronted with the statement given by him to the police, he admitted having given such a statement Crl.A.20/07 etc. 19 to the police which is to the effect that he saw the accused inflicting injuries on the deceased. Relevant portion of the 162 statement can be used only to prove the contradiction. When the statement is admitted as true, then there remains no contradiction to be marked. It cannot be used for corroboration. When the witness admitted having given such a statement, there is no contradiction to be marked. Therefore, the contention raised by the defence that the contradictions should have been marked by the prosecution is bereft of any merit. When the witness admitted having given such a statement, there was no necessity of marking the relevant portion of the statement. It is true that the learned Public Prosecutor did not specifically ask whether the facts relating to those statements as deposed by him are true. But when he was cross examined by the learned counsel for the accused, it was specifically stated by him that what was stated by him to the police was the true statement and that it was because he was afraid of the accused he at first deposed in court that he did not see the incident. That would prove that P.W.2 did actually witness the incident. The statement given by P.W.2 fully Crl.A.20/07 etc. 20 corroborates the evidence given by P.Ws.1 and 3. The fact that the witness was declared hostile at the instance of the Public Prosecutor and the witness was allowed to be cross-examined is no justification to reject the entire evidence given by him. It may be true that the court cannot base a conviction relying solely on the evidence given by such a witness but his evidence can certainly be used to corroborate the statements given by P.Ws.1 and 3. A reading of the evidence given by P.W.2 would make it indubitably clear that he had actually seen the incident and had stated to the police the true facts and that only because he was afraid of the accused, he was disinclined to disclose the truth at the initial stage. But when he was confronted with the statements given by him to the police, he admitted everything to be true and further added that what was stated by him to the police is true. So much so, the court below was perfectly justified in holding that P.W.2 has corroborated the evidence given by P.Ws.1 and 3. P.W.2 could not be further contradicted by the defence to hold that he is totally unworthy of credence. Even if the evidence given by P.W.2 is totally eschewed from consideration, still there Crl.A.20/07 etc. 21 is the unassailable evidence given by P.W.1 and P.W.3 which was rightly accepted by the learned Sessions Judge.
15. It was sworn by P.W.4 that while Sreekandan Nair was taken to Medical College Hospital, Kottayam, he was also in the said vehicle and then Sreekandan Nair had told him that he was attacked by five accused with coffee sticks and blunt portion of the chopper. It was contended by the defence that, that statement given by P.W.4 is only a hearsay information and so it cannot be accepted at all. But it is pertinent to note that the person who gave the statement is dead and so the evidence given by P.W.4 that the deceased had told him as to who caused the injuries as a result of which injured subsequently died can be used to corroborate the evidence otherwise obtained in this case. The prosecution is not mainly relying upon the evidence of P.W.4, but, only contends that the evidence given by P.W.4 also corroborates the prosecution version.
16. It was contended by the defence that though P.W.1 says that because he became fatigue or because of the mental strain, he did not accompany the deceased to the Medical College Crl.A.20/07 etc. 22 Hospital and though he says that he remained in Arppana hospital itself for a quite long time, the evidence so given by P.W.1 cannot inspire confidence as it is not a usual and normal conduct of a person who is a close friend or associate of the injured. Patterned responses or conduct cannot be predicated. Since P.W.1 had accompanied the deceased upto Arppana hospital and since there were other persons to take the body of Sreekandan Nair to the Medical College Hospital, the fact that P.W.1 did not accompany them does not appears to be unusual or unnatural. That does not affect the credibility of his version regarding the actual incident he had witnessed.
17. It was vehemently argued by the learned counsel for the accused that it is quite unlikely that a person who did not accompany the injured to the Medical College Hospital would go to the police station which is far away from the place of incident to lodge the F.I.Statement. The evidence would show that when P.W.1 came to know that the injured Sreekandan Nair succumbed to the injuries, he went to the police station to give the statement. Ext.P1 is the First Information Statement given by Crl.A.20/07 etc. 23 P.W.1 at 3.15 AM. In Ext.P1 it was stated that he came to know that Sreekandan Nair died at Medical College Hospital, Kottayam at 2.30 AM on 9.7.2009. It is seen that the F.I.Statement reached the office of the JFCM, Nedumkandam at 4.45 PM on 9.7.2009. The learned Magistrate was on leave on that day. It was so endorsed on the F.I.Statement. Ext.P2 is the inquest report prepared by P.W.22, the Circle Inspector of Police at about 12.30 PM on 9.7.2004. Since the particulars of the F.I.R are noted in Ext.P3 which was prepared at 12.30 PM, the contention that Ext.P1 was ante-timed and that it did not come into existence at 3.15 AM as noted therein cannot be accepted. The defence could not point out any material contradiction in the facts noted in Ext.P2 so as to contend that the statements contained in Ext.P1 or the evidence given by the eye witnesses are totally contradictory. Therefore, the contention that Ext.P1- F.I.Statement was not recorded promptly and what was produced in court is a document subsequently manipulated by the police is bereft of any merit.
18. The only contradiction which can be brought out by the Crl.A.20/07 etc. 24 defence when P.W.1 was examined is a portion in Ext.P1 statement (marked as Ext.D1) which is to the effect that after inflicting injuries, the accused went towards the place Balagram carrying with them the weapons, whereas two coffee sticks were actually seen at the place of incident itself. The evidence would show that M.O.2 sword, M.O.3 chopper and one of the three coffee sticks were carried by the accused with them. The fact that two of the coffee sticks were left at the scene of occurrence was omitted to be noticed or omitted to be stated in Ext.P1. That will not in any way affect the credibility of Ext.P1. The evidence given by P.W.1 in all other respects was in line with the statement contained in Ext.P1.
19. In Ext.P3 scene mahazar prepared by P.W.21, all the required details are seen mentioned. Blood stained leaves, grass, slippers and sheath of sword (M.O.4) were seen at the place of occurrence. Those objects were seized by P.W.21 as per Ext.P3 mahazar. Besides, the soil soaked in blood found at the place of incident was also seized. The soil, leaves and grass were marked as M.O.6 to M.O.9. There was no contradiction with regard to the Crl.A.20/07 etc. 25 place of incident as spoken to by P.Ws.1 to 3 and the facts noted by P.W.21 in Ext.P3.
20. P.Ws.1 and 3 would state that before leaving the scene, the accused had thrown the injured Sreekandan Nair into a pit, but no such pit was noted by P.W.21 in Ext.P3 mahazar. It could be seen from the scene mahazar that blood stains were seen on the grass, leaves and soil at place away from the road which would indicate that after the incident, the deceased was thrown or pushed down to that place. Even if it is accepted that there was no pit at all, that will not in any way affect the case of the prosecution. The fact that sheath of sword (M.O.4) and so many blood stained articles including two coffee sticks were found at the place of occurrence did corroborate the evidence given by P.Ws.1 and 3 regarding the place of incident. It is also important to note that two coffee sticks found at the place of incident were also blood stained. The thickness of the coffee sticks at the middle portion was seen to be 13 cm which would show that those two sticks were deadly weapons sufficient to cause fatal injuries on the injured.
Crl.A.20/07 etc. 26
21. It was testified by P.W.22, the Circle Inspector who conducted the earlier part of the investigation that on getting information to the effect that accused 1, 2, 4 and 5 were staying in a tourist home situated in Thekkady he went there and arrested those accused on 16.7.2004. The arrest memos and arrest notices were prepared by him. The fact that all the four accused were seen together in the lodge mentioned above, according to the prosecution, is a strong circumstance to hold that all the four accused tried to abscond or avoid being apprehended by the police as they were directly involved in the incident. Ext.P5 is the register maintained by that Tourist Home which was seized by P.W.22 as per Ext.P4 recovery mahazar which was attested by P.W.8, the Manager of the Tourist Home. It was brought out that A1 had taken the room on rent on 16.7.2004. Since A1 and three other accused were arrested from that room on 16.7.2004, there could be no difficulty to hold that all the four persons were staying together in that tourist home from 15.7.2004 onwards. According to P.W.22, when A1 was questioned by him, he disclosed that his shirt and mundu were Crl.A.20/07 etc. 27 kept in the house of one Rajamma, his aunt and if he is taken to that place, he will take out and hand over the same to the police. Based on that statement, P.W.22 went to the house of Rajamma along withA1 from where A1 took out the shirt and mundu which were seized as per Ext.P6 recovery mahazar. M.O.9 is the mundu and M.O.10 is the shirt. It was further stated by P.W.22 that when accused No.2 was questioned, he gave a statement to the effect that his shirt and mundu were kept in the house of his sister Rajamma and when he was taken to that place, he took out the shirt and mundu kept in that house. Ext.P7 is the mahazar prepared for the same. M.O.11 is the mundu and M.O.12 is the shirt seized as per Ext.P7. Ext.P7(a) is the relevant portion of the statement given by A2, admissible under Section 27 of the Evidence Act, pursuant to which M.O.11 and M.O.12 were seized.
22. It was further stated by P.W.22 that A4 had also given a further disclosure statement to the effect that the shirt and mundu were kept in the house of Rajamma, his grand aunt and when he was taken to that place, he took out and handed over the same to the police. Ext.P8 is the mahazar prepared for that Crl.A.20/07 etc. 28 purpose. Ext.P9 is the mahazar prepared by P.W.22 for recovery of lungi (M.O.13) and shirt (M.O.14) as per the disclosure statement made by A4. It was further stated by him that A5 also made similar statement with regard to the pant and shirt worn by him at the relevant time. The statement was to the effect that the pant and shirt were kept by him in the house of Rajamma and that he had also concealed M.O.2 sword in that house and that if taken to that place, he will show where it was concealed. Based on that statement, P.W.22 went to the house of Rajamma along with A5 from where the accused took out the sword which was kept on the floor beneath the steel Alamarah. It was seized as per Ext.P11 mahazar. Ext.P11(a) is the relevant portion of the statement stated to have been given by A5 which led to the recovery of M.O.2 -sword.
23. It was stated by P.W.23 that A3 was arrested by him on 22.7.2004 from the road situated in front of Sangeetha Theatres at Kattappana. Ext.P26 is the arrest memo prepared for that purpose. Ext.P12(a) is the relevant portion of the statement alleged to have been given by A3 to P.W.22 as to the place where Crl.A.20/07 etc. 29 he had kept the coffee sticks and accordingly as led by P.W.22 he went to a place in front of the house of one Gopalakrishnan (who is working in the Fire Force) situated in Balagram. P.W.22 has given evidence that A3 stated that coffee sticks were recovered from the place shown by A3. It was also stated by P.W.22 that A3 had given a disclosure statement that he had concealed the chopper(M.O.3) in a plastic bag kept above the coconut husk kept behind the house of one Vikraman, near Balagram. Based on that statement, P.W.22 went to that place from where the chopper was taken by A3 and handed over the same to the police. Ext.P28(a) is the relevant portion of that statement. The chopper was identified as M.O.3. M.O.17 and M.O.18 the mundu and the shirt worn by A3 at the time of incident were seized as per Ext.P13 mahazar. Exts.P29 and P30 are the lists as per which the Material Objects were sent to the court. It was stated that the requisition for sending the Material Objects were also submitted in court which was marked as Ext.P31. Though it was stated by P.W.22 that the chopper was handed over by A1 to A3, the learned counsel for the accused would submit that except the Crl.A.20/07 etc. 30 inadmissible statement of P.W.22, there is no other evidence to show that M.O.3 was handed over by A1 to A3.
24. Ext.P32 is the FSL Report. 16 items of properties were forwarded for examination. It was certified that human blood was detected on items 1 to 5, 7a, 7b, 8, 9 and 10. Since the blood was insufficient for grouping, comparison of blood group was not possible. Items 1 to 5 include the two coffee sticks which were seized by P.W.21 from the scene of occurrence as per Ext.P3 mahazar. Item Nos.8 and 9 shown in Ext.P32 are the double mundu and shirt which were alleged to have been worn by A1 and which were seized by P.W.2 based on the disclosure statement given by A1. Those two items contained human blood. Item No.10 was the shirt which was stated to have been worn by A2 at the time of occurrence. That shirt was seized by P.W.21 along with mundu as per the mahazar based on the disclosure statement given by A2. Since items 8 to 10 mentioned above contained human blood,that also would lend assurance to the case of the prosecution.
25. It was contended by the defence that if the sharp edged Crl.A.20/07 etc. 31 portion of M.O.3 had not been used by the accused, it was not possible to cause incised injuries whereas P.Ws.1 to 3 are consistent in their version that besides beating with coffee sticks by other accused, A1 struck the deceased with the blunt portion of M.O.3 chopper. But on going through the description of the coffee sticks, it could be seen that those coffee sticks were cut and sharpened. Of course, no witness would state with regard to that aspect. Contradictions between the medical evidence and oral evidence can have no consequence if the ocular testimony of the witnesses inspires confidence in the mind of the court and also if the court finds that it was not possible for the witnesses to specifically say as to which portion of the weapon was used, that too when a group of persons suddenly attacked one person. Witnesses are the eyes and ears of justice. On a marshalling of the entire evidence given by P.W.1 and P.W.3, it could not be found that they had any axe to ground in the matter or that they were giving a distorted or tutored version before the court. In other words, there is a ring of truth in the statement given by those witnesses. The court below was thus perfectly justified in Crl.A.20/07 etc. 32 placing implicit reliance on the evidence of P.Ws.1 and 3. It was to a great extent corroborated by P.W.2 as well. To a limited extent it was corroborated by P.W.4 also.
26. It was argued with vehemence that going by the evidence of P.W.14, the injured Sreekandan Nair was seen by him at Arppana hospital at 7.45 PM and after some time he was removed to Medical College Hospital, Kottayam. Admittedly, P.W.1 did not accompany the injured to the Medical College Hospital, Kottayam. If so, in all probability had he actually witnessed the incident he would have gone to the police station to give the first information statement, but, the first information statement, even according to the prosecution, was given only at 3.15 AM on 9.7.2004. Hence, according to the defence, there is inordinate and unexplained delay in lodging the first information statement. This argument has been taken strong exception to by the learned Public Prosecutor. The injured Sreekandan Nair was not a person of Balagram locality. He belongs to Trivandrum. P.W.1 and others were not close friends or relatives of Sreekandan Nair and as such it can be reasonably inferred that Crl.A.20/07 etc. 33 they were not so anxious to give a statement to the police. The learned Public Prosecutor would submit that normally people would avoid going to the police station lest they should unnecessarily get themselves into trouble, but, P.W.1 was constrained to go to the police station in the early morning when he got reliable information that Sreekandan Nair succumbed to injuries at about 2.30 AM. Since P.Ws.1 and others were not near relatives, it cannot be said that they would have in all probability gone to the police station and given a statement immediately after the body of Sreekandan Nair was removed to the Medical College Hospital.
27. It was also argued by the learned counsel for the appellants that there is material contradiction in the evidence given by P.Ws.1 and 3 regarding the date and time when they had given information to the police. The incident took place between 6 PM and 6.30 PM on 8.7.2004. P.W.1 had given evidence regarding the incident after two years of the incident. Due allowance has to be given as such mistakes are likely to occur due to the lapse of memory. The power of observation and Crl.A.20/07 etc. 34 memorization may differ from person to person. Therefore, slight variation or inconsistency as to the time or date they were questioned by the police also will not shatter their credibility. The fact that some of the witnesses to the scene mahazar and seizure mahazar did not fully support the prosecution also will not in any way affect the case of the prosecution.
28. Yet another argument advanced by the learned counsel for the accused is that it was not specifically stated as to the presence of light to identify the accused. The evidence is clear, cogent and convincing. The accused were known to P.Ws.1 to 3. They have stated that the names of the accused were also known to them. That was not effectively challenged by the defence. Therefore, the contention that no identification was done by the investigating officer to ascertain the identity of the assailants is also devoid of any merit. The definite and consistent version given by P.Ws.1 to 3 is that the incident took place between 6 PM
- 6.30PM. At about 6.30 PM there would be sufficient day light to identify the persons and the weapons used by them to attack the deceased. It is possible for the witnesses who are closely Crl.A.20/07 etc. 35 known to each other to identify them even in twilight. The evidence to that effect given by P.Ws.1 to 3 remains unscathed in spite of the incisive cross-examination made by the three counsel who appeared before the trial court.
29. In the light of the evidence and circumstances delineated earlier, we have no hesitation to hold that the learned Sessions Judge was perfectly justified in holding that all the give accused persons actively participated in the commission of the crime and that Sreekandan Nair was beaten by A2 to A4 with coffee sticks and that A1 struck with the blunt portion of M.O.3 chopper on the heads and other parts of the body of deceased Sreekandan Nair. The finding of the court below that A5, at that time, by holding and brandishing M.O.2 sword prevented P.W.2 and others approaching them to save the injured and that A5 had put P.W.1 and others in fear of instant death is also found to be well justified. The proved fact is that all the five accused reached there in an autorickshaw carrying the weapons, coffee sticks, chopper and sword as mentioned above. They formed themselves into unlawful assembly. The object of that unlawful assembly Crl.A.20/07 etc. 36 was to cause death or to inflict very serious injuries and to make Sreekandan Nair fractured and fragmented. Whether they had actually the intention to cause the death would be dealt with later. The finding entered by the court below that Sreekandan Nair died due to the injuries inflicted on him by the accused is thus confirmed.
30. The other crucial point for consideration is whether the offence alleged against the accused would actually fall under Section 302 I.P.C. or only under part II of Section 304 I.P.C as contended by the defence. In this connection it is argued by the learned counsel for the accused that the fact that the accused persons had no intention to cause the death of Sreekandan Nair is well evident from the fact that admittedly A1 and A5 who were stated to have been carrying M.O.3 chopper and M.O.2 sword did not inflict any cut wounds on Sreekandan Nair. It is argued that since Sreekandan Nair was unarmed and since A1 and A5 had every opportunity to use those two deadly weapons to inflict fatal injuries and since admittedly they did not inflict cut injuries with those weapons, the defence would be perfectly justified in their Crl.A.20/07 etc. 37 contention that the accused had no intention to cause the death of deceased Sreekandan Nair.
31. It was held in Pulicherla Nagaraju alias Nagaraja Reddy v. State of A.P. (AIR 2006 SC 3010):
"The intention to cause death can be gathered generally from a combination of a few or several of the following, among other, circumstances: (i) nature of the weapon used; (ii) whether the weapon was carried by the accused or was picked up from the spot; (iii) whether the blow is aimed at a vital part of the body; (iv) the amount of force employed in causing injury; (v) whether the act was in the course of sudden quarrel or sudden fight or free for all fight; (vi) whether the incident occurs by chance or whether there was any premeditation; (vii) whether there was any prior enmity or whether the deceased was a stranger; (viii) whether there was any grave and sudden provocation, and if so, the cause for such provocation; (ix) whether it was in the heat of passion; (x) whether the person inflicting the injury has taken undue advantage or has acted in a cruel and unusual manner; (xi) whether the accused dealt a Crl.A.20/07 etc. 38 single blow or several blows. The above list of circumstances is, of course, notexhaustive and there may be several other special circumstances with reference to individual cases which may throw light on the question of intention."
The learned counsel has relied upon the decision in Mangesh v. State of Maharashtra (2011(1) SCALE 57) and contended that the offence alleged against the accused will not attract Section 302 I.P.C. As dealt with in that case, it is not a case where the accused, due to loss of self control and in the hit of passion caused injuries to the deceased. It was held that when a person loses his sense he may act violently but that by itself may not be a ground to be considered against him while determining the nature of the offence. Each case is to be considered on its own facts. The entire attending circumstances must be taken into consideration in order to find out the nature of the actual offence committed.
32. The decision in Karuppusamy v. State of T.N. [ (2006) 11 SCC 459] also has to be distinguished on facts. There it was not the case of the prosecution that the accused was Crl.A.20/07 etc. 39 carrying a knife whereas the accused thereof inflicted one blow each on head and chest of the deceased with firewood log as a result of which the deceased died. The case of the defence was that the appellants inflicted those injuries in self defence when the deceased attacked the appellants with a knife. The facts of this case are entirely different. Here the evidence would show that all the five accused persons reached there carrying deadly weapons as mentioned above and began to attack the deceased who was standing unarmed. There was no mutual fight between the deceased and the accused. Since the facts of the case dealt with by the apex court are entirely different, the decision cited supra is not applicable to this case.
33. It was stated by P.W.1 and others that though A5 had attempted to hit or stab the deceased with M.O.2 sword since the sword happened to hit on the coffee sticks (while the other accused were beating the deceased), no stab injury with the sword was caused on the body of the deceased. It is argued by the learned counsel for A5 that if the intention of A5 or other members of the unlawful assembly had been to cause fatal Crl.A.20/07 etc. 40 injury, A5 would have certainly inflicted a stab or cut injury on the vital part of the deceased, but admittedly, no such cut injury was caused on the body of the deceased. The contention raised by the learned counsel for the accused that if proper treatment had be given immediately, the deceased would not have succumbed to injuries and on that ground also offence punishable under Section 302 is not attracted in this case is found to be unmerited since explanation 2 to Section 299 makes it clear that where death is caused by bodily injury, the person who causes such bodily injury shall be deemed to have caused the death, although by resorting to proper remedies and skillful treatment the death might have been prevented. It was noted by P.W.16, (as injury No.15) that there was fracture of 10th and 11th ribs on right side at its back aspect and the back aspect of lower lobe of right lung showed contusion 4 x 3 x 1 cm. That was also fatal in nature. Injury No.19 also,according to P.W.16, was sufficient to cause the death of the deceased in the ordinary course.
34. The learned counsel for the appellants would submit that though the appellants were having chopper and sword, no Crl.A.20/07 etc. 41 cut wounds were inflicted with those weapons. The other three weapons were only coffee sticks. It is not a case where the accused took out those coffee sticks from the scene of occurrence, but, the accused came prepared carrying sticks and other weapons. It is argued that had the appellants the intention to cause the death or to cause such bodily injuries as are sufficient in the ordinary course of nature to cause death, there was no difficulty for them to cause such injuries with M.O.2 or M.O.3. It is also pointed out that admittedly the appellants did not beat the deceased on his head with the coffee sticks. That also, according to the appellants, would negative the contention raised by the prosecution that the accused had the intention to cause such bodily injuries which are sufficient in the ordinary course to cause the death of the victim. The prosecution would contend that it is not a case where the incident occurred by chance, but, it was a pre-medicated act. There is evidence to prove prior enmity between A1 and the deceased.
35. The contention that the intention to cause the death or the intention to cause such bodily injury sufficient in the ordinary Crl.A.20/07 etc. 42 course of nature to cause death can be gathered only if injuries are caused on vital parts of the body by using lethal weapons so as to result in instantaneous death or immediately after the act cannot be a sound principle. If such a view is accepted, a clever criminal can cause the murder of a person without using any weapon but by beating, kicking or fisting continuously or to cause death by slow poisoning. The question is whether there was the element of intention to cause the death, whether the death is to take place immediately or to take place after some time. In other words, the intention need not be to cause instantant death but can also be to cause a slow or gradual death.
36. Now coming to the facts of this case, though the accused had carried such weapons as mentioned earlier, admittedly no cut wounds were inflicted with M.O.2 and M.O.3. No injury alleged to have been caused with M.O.1 series were found on the head of the deceased. The intention that can be gathered is that the accused wanted to cause fracture of the legs and hands of the deceased and also to cause other injuries so Crl.A.20/07 etc. 43 that the deceased should never raise his hand at any time or live in a healthy condition. Though it was contended by the prosecution that the deceased was thrown to a pit, no such pit was seen noted in the scene mahazar. It is also argued on behalf of the defence that though the prosecution contended that each and every limb and rib of the deceased was fractured by the accused, the injuries noted in Ext.P15 do not support that plea. But it is that there was fracture of bones of the hand and leg and also fracture of two ribs. Above all, there is the other circumstance that the accused intentionally did not use the sharp edged portion of M.O.3 chopper nor was any injury caused with M.O.2 sword. Therefore, it would be safer to hold that the conviction of the appellants should be under II Part of Section 304 I.P.C. As such the conviction of the appellants under Section 302 I.P.C is to be altered to Section 304 Part II.
37. It was seriously argued by the learned counsel for the appellants that there is no acceptable evidence to show that the accused had acted in prosecution of the common object. It was also argued that there is no evidence to show that A5 had Crl.A.20/07 etc. 44 actively participated in the commission of the crime. There is no merit in that contention. It is not necessary that there should be a pre-concert in the sense of a meeting of minds of the members of the unlawful assembly as to the common object. It is enough if it is adopted by all the members and is shared by all of them. Once it is established that the unlawful assembly had a common object, it is not necessary that all persons forming the unlawful assembly must be shown to have committed some overt act. The vicarious liability of other members of the unlawful assembly for the offence committed by another member during the continuance of the occurrence, rests upon the fact whether the other members knew before hand that the offence actually committed was likely to be committed in prosecution of the common object (see the decision in Sikandar Singh v. State of Bihar - (2010) 7 SCC 477). The fact that all the accused came to the scene carrying deadly weapons as mentioned above would prove to the hilt that they had the common object of attacking the deceased with those weapons. Knowledge must certainly be imputed to each of the accused that fatal injuries are likely to be Crl.A.20/07 etc. 45 caused by any member of that assembly using any of those deadly weapons. When a group of persons go armed to attack a person, it is reasonable to infer that they had the knowledge that murder is likely to be committed. The conduct of the members of the unlawful assembly would clearly point to such knowledge on the part of all the accused. Though A5 was not proved to have inflicted any injury on the body of the deceased, the evidence would show that he had made an attempt to inflict the injury, but, the injury was not caused as the sword happened to hit against the coffee sticks used by one of the accused. That apart,there is clinching evidence to show that when P.W.1 and others tried to intervene to rescue the deceased, A5 brandished the sword and intimidated P.W.1 and others and thereby prevented those persons from saving the deceased. That is an added circumstance to hold that A5 also did share the common object of the unlawful assembly. Since it is a case where the presence of all the accused was established to the hilt and the prosecution could even prove the overt acts of those accused, all the accused have to be vicariously held guilty for the offence Crl.A.20/07 etc. 46 proved to have committed in this case.
38. In the light of the evidence available, the conviction of the appellants for the offence under Sections 143 and 144 I.P.C is to be confirmed. Similarly, since all the accused committed rioting armed with deadly weapons, their conviction under Sections 147 and 148 IPC is also to be confirmed. The court below found accused No.5 guilty of the offence under Section 506(ii) read with 149 IPC. In fact, all the five accused should have been held guilty and convicted for the offence under Section 506(ii) read with 149 IPC. But, since it is an appeal filed by the accused, this court cannot convict accused Nos.1 to 4 for the offence under Section 506(ii) read with 149 IPC. So much so, while altering the conviction of the appellants from Section 302 to 304 Part II I.P.C, their conviction under Sections 143, 144, 147 and 148 read with 149 I.P.C is confirmed. The conviction of A5 for the offence under Section 506(ii) read with 149 IPC is also confirmed.
39. Since the conviction has been altered to Section 304 Part II, the next question is as to what should be the sentence Crl.A.20/07 etc. 47 imposed for the said offence. It is a case where all the five appellants attacked an unarmed person. It was a pre-planned attack. Therefore, considering the nature of the offence, we find that the appellants should be sentenced to undergo R.I. for ten years and to pay Rs.25,000/- each as compensation payable to the legal heirs of the deceased Sreekandan Nair and in default of payment of the amount as above, they should be sentenced to undergo R.I for six months each.
40. In the result, all these Criminal Appeals are allowed in part. The verdict of guilty and conviction of the appellants and sentence awarded by the court below for the offence under Sections 143, 144, 147 and 148 read with 149 IPC are confirmed. The conviction of accused No.5 for the offence under Section 506
(ii) read with 149 IPC and the sentence imposed on him for that offence are also confirmed. The conviction and sentence passed against the appellants for the offence under Section 302 read with 149 IPC are set aside. Instead the accused-appellants are convicted for the offence punishable under Section 304 Part II read with 149 IPC and they are sentenced to undergo R.I for ten Crl.A.20/07 etc. 48 years each and to pay Rs.25,000/- each as compensation and the same shall be paid to the legal heirs of the deceased and in default of payment of the same, the appellants will undergo R.I for six months each. The substantive sentence will run concurrently. Set off is allowed as provided under Sec.428 Cr.P.C.
PIUS C.KURIAKOSE, JUDGE.
N.K.BALAKRISHNAN, JUDGE.
srd Crl.A.20/07 etc. 49 Crl.A.20/07 etc. 50