Indian Kanoon - Search engine for Indian Law

Kerala High Court

Binu vs State Of Kerala on 3 October, 2012

Author: Sasidharan Nambiar

Bench: M.Sasidharan Nambiar, C.T.Ravikumar

       

  

  

 
 
 IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT:

THE HONOURABLE MR.JUSTICE M.SASIDHARAN NAMBIAR
&
THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR

WEDNESDAY, THE 3RD DAY OF OCTOBER 2012/11TH ASWINA 1934`

CRL.A.No. 198 of 2008 ( )
-------------------------
SC.335/2005 of ADDL. SESSIONS COURT, (ADHOC-II) THRISSUR

APPELLANT(S)/1ST ACCUSED::
-------------------------

         BINU, S/O.NARAYANAN
         VALIYAKATH VEEDU, IRATTAPUZHA DESOM
         ORUMANNAYUR VILLAGE, THRISSUR DISTRICT.

         BY ADVS..

                SRI.P.VIJAYA BHANU (SR.)
                 SRI.JOHN K.GEORGE
                 SRI.HRITHWIK
                 SRI.K.S.ARUN KUMAR
                 SRI.E.C.BENEESH
                 SRI.N.K.SHYJU
                 SRI.P.K.VARGHESE

RESPONDENT(S)/COMPLAINANT::
---------------------------

         STATE OF KERALA, REP. BY PUBLIC PROSECUTOR
         HIGH COURT OF KERALA, ERNAKULAM.

         R1 BY  PUBLIC PROSECUTOR SRI.GIKKU JACOB GEORGE

       THIS CRIMINAL APPEAL  HAVING BEEN FINALLY HEARD  ON  03-10-2012,
ALONG WITH  CRA. 1709/2007,  THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:



            M.SASIDHARAN NAMBIAR &
               C.T.Ravikumar,JJ.
       ================================
            Crl.Appeal No.198/2008
                &1709/2007
       ================================


    Dated this the 3rd day of October,2012


                   JUDGMENT

Sasidharan Nambiar,J.

Appellants the accused in S.C.335/2005 on the file of Additional Sessions Court, Thrissur are challenging their conviction and sentence for the offences under sections 143, 147, 148, 326, 302 and 307 read with section 149 of Indian Penal Code in these appeals.

Crl.A.198/2008 was filed by the first accused and Crl.A.1709/2007 by accused 2 to 7.

2. Prosecution case in short is that deceased Prasad was an accused in a case charged for attacking the father of the second accused PW1 Veeramani and deceased Prasad are members/sympathisers of RSS and the accused are  Crl.A.198/2008 & 1709/2007 2 workers of CPI(M). Due to the said political enemity, on the previous night of Vishu day i.e.13.4.2002 while PW1, deceased Prasad, Sudheer, Narayanan, Sanal, Manoj and Umesh were sitting near the chira, which is situated to the south of Erattupuzha Marananthara Samithi office, by about 10 p.m accused 1 and 4 reached there and asked them about Anandan. PW1 and Prasad questioned it and as a consequence there was a verbal altercation between them. Prasad threw a broken soda bottle on the body of the first accused. Accused 1 and 4 retreated holding out a threat. Later PW7 Shibu and Dinesh came and called PW1 and Prasad to join the vishukani procession which goes to the houses. PW1 and Prasad declined to join them stating that they feel exhausted. PW1 along with Prasad proceeded to their houses, situated towards the east. While so, due to drizzling PW1 and Prasad decided to be in the veranda/footsteps of the Marananthara Samithi office. Because of the exhaustion PW1 slept on the western side and  Crl.A.198/2008 & 1709/2007 3 deceased Prasad on the eastern side of the varandha/foot step. While sleeping, PW1 woke up hearing the sound and found the first accused stabbing on the neck and hip of Prasad. Then second accused slashed M05 sword and inflicted injuries on PW1. Accused 3 to 5 also inflicted injuries on PW1 by beating with M06 series of iron pipes. Accused 6 and 7 were also present there and they abetted the other accused.Sustaining the injuries, Prasad fell on the ground from the step. PW1 due to fear did not move and acted as unconscious. Accused 1 and 2 declaring that everything is over, along with the other accused went away. PW1 stood up and went to the house of Sami, who was examined as DW1, which lies to the west of Marananthara Samithi Office, on the western side of the Erattappuzha Kattilapalli road, with bleeding injuries. On reaching there, before disclosing what happened, PW1 lost consciousness. DW1 sent his brother to call PW6 Singh Lal driver of an autorikshaw who parked his vehicle in the house  Crl.A.198/2008 & 1709/2007 4 compound of DW1. While PW6 reached there, PW7 Shibu, Sudheer and Narayanan also reached there. They took PW1 in the autorikshaw of PW6, to Raja Hospital, Chavakkad. After giving first aid PW1 was advised to be taken to Medical College Hospital, Thrissur. By that time PW2 Subramanian the father of PW1 on getting the information reached there. PW2 along with PW7 Narayanan and Sudheer took PW1 to the Medical College Hospital. PW12 Dr. Ravindran Senior Lecturer in surgery of Medical College Hospital examined PW1 and prepared Ext.P4 wound certificate and admitted him as an inpatient. On 15-4-2002, PW1 was shifted to Aswini Hospital, Thrissur. PW13 Dr.Govindankutty treated him there from 15.4.2002 till he was discharged on 25.4.2002. Finding the injured Prasad, in front of the office of Marananthara Samithy office, Manoj and Anand called PW10 Sathianandan, the brother of PW6, who is also an autorikshaw driver like PW6 to take the injured to the hospital. PW6 along with others took Prasad to  Crl.A.198/2008 & 1709/2007 5 Raja Hospital and doctor found him brought dead. They body was kept in the mortuary of the hospital. The Assistant Sub Inspector of Police, Chavakkad Police Station reached the Medical College Hospital on getting information. As PW1 was not able to speak the Assistant Sub Inspector recorded Ext.P1, F.I. Statement of PW2 who was there in the hospital at 7.30 a.m on 14.4.2002 itself. On reaching the police station, Ext.P25 First Information Report was prepared and Crime 159/2002 was registered for the offences under sections 302 and 307 read with section 34 of Indian Penal Code against the first accused and another identifiable accused. PW24 Dy.Superintendent of Police, Kunnamkulam took over the investigation on 14.4.2002. PW24 on reaching Raja hospital and conducted the inquest on the body of Prasad, at the mortuary of the Hospital and prepared Ext.P2 inquest report. M07 to 11 the dresses found on the body were seized. PW24 submitted the necessary requisitions for post-

mortem       examination.         PW11,   Asst.   Professor

Crl.A.198/2008 & 1709/2007      6

Department of Forensic Medicine, Medical College, Thrissur conducted the autopsy between 3.25 p.m and and 4.30 p.m on 14.4.2002 and prepared Ext.P3 post-mortem certificate recording that Prasad died due to the suberachanoid Haemorrhage, following the stab injury on his neck described in Ext.P3. PW24 reached the scene of occurrence and got it identified by PW10 and prepared Ext.P6 scene mahazar. PW25 took over the investigation on 16.4.2002 and arrested the first accused at 5.30 p.m. On the information furnished by the first accused, M04 knife was recovered under Ext.P20 mahazar, in the presence of PW18 and 19. Under Ext.P21 mahazar, PW25 seized M0s 12 and 13 dresses allegedly worn by the first accused at the time of the incident allegedly produced by a close relative of the first accused. PW25 arrested accused 4 and 5 on 18.4.2002 at 6.30 p.m. He arrested accused 2, 3, 6 and 7 on 29.4.2002. On the information furnished by the second accused, PW25 recovered M05 iron sword under Ext.P8 mahazar in  Crl.A.198/2008 & 1709/2007 7 the presence of PW18 Haridas, the attesting witness. Under Ext.P22 mahazar, M014 to 21 dresses found on the body of the accused 2,3,6 and 7 were seized. On the information furnished by the third accused, under Ext.P9 mahzar, PW25 recovered M06 series of iron pipes in the presence of PW17 Shaji. M0s1 to 3 dresses of PW1 were seized, under Ext.P23 mahazar, when produced by PW9 on 6.5.2002. PW26, Circle Inspector who took over the investigation on 3.1.2009, after completing the investigation laid the charge before Judicial First Class Magistrate's Court, Chavakkad. Learned Magistrate committed the case to Sessions Court. Learned Sessions Judge made over the case for trial to Additional Sessions Court. The accused are defended by counsel of their choice.

3. When charges for the offences under sections 143, 147, 148, 326, 307 and 302 read with section 149 of Indian Penal Code were framed, read over and explained to the accused, they pleaded not guilty. Prosecution examined 26 witnesses and  Crl.A.198/2008 & 1709/2007 8 marked 25 exhibits and identified 21 material objects. When Pws.1 and 10 were cross examined , Ext.D1 and D2 portions of his statements recorded under section 161 of Code of Criminal Procedure. After closing the prosecution evidence, accused were questioned under section 313 of the Code of Criminal Procedure. When the incriminating evidence were put, the accused denied them. Additionally first accused stated that deceased Prasad and PW1 Veeramani are RSS workers and on the previous night of vishu day, they along with other RSS workers consumed liquor and were singing after lighting the waste in the property of Melepura. There was a fight in between them. PW1 and Prasad sustained injuries in that fight. This fact is known to all in the locality. The accused disclosed this fact to the police also. But suppressing the true facts on the influence of RSS workers due to their enemity towards workers of Marxist party, the case was foisted against them and they are innocent.

The other accused           stated that they also adopted

Crl.A.198/2008 & 1709/2007      9

the statement of the first accused.           Finding that

it is not a case without any evidence connecting the accused with the offences alleged, learned Additional Sessions Judge called upon the appellants to enter on their defence and adduce evidence. The accused then examined DW1 who was cited as a prosecution witness but not examined and DW2 whose house is marked in Ext.P17 plan prepared by PW23 the Village Officer which lies to the east of the Marananthara Sahaya Samithi Office claiming that there was light at the scene of occurrence, which came from the wall of the house of DW2 also.

4. Learned Sessions Judge on the evidence found that the death of Prasad was caused by the injury inflicted on his neck and that injury is sufficient in the ordinary course of nature to cause death. It was also found that the said injury sustained by Prasad could be inflicted with M04 knife. Learned Sessions Judge though found that the evidence of PW3 is not satisfactory, applying the  Crl.A.198/2008 & 1709/2007 10 test of ordinary prudent man who had witnessed such an incident found that will his evidence could be relied on to the extent corroborated by the other witnesses. Relying on the evidence of PW4 and PW5, learned Sessions Judge found that all the accused were found together before the incident in the nearby property and later moving away as a group. It was also found that the evidence of Pws.4 and 5 was corroborated by the evidence of PW3, to the extent of presence of the accused at the scene of occurrence and the overt act spoken to by PW3, was corroborated by PW1 who is also the injured. Holding that an injured witness deserves due respect and there is no reason for PW1 to set up a false case, learned Sessions Judge found that evidence of PW1 is to be relied on. Based on his evidence, it was found that all the accused were present at the scene of occurrence and though accused 6 and 7 were not armed, the first accused was armed with M04 knife, second accused was armed with M05 sword and accused 3 to 5 were armed with  Crl.A.198/2008 & 1709/2007 11 M06 series of iron pipes. It was found that evidence of PW1, corroborated by the evidence of PW3 establish that it was the first accused who inflicted the injuries on the neck of deceased Prasad and caused his death and second accused inflicted injuries on PW1 with M05 sword and accused 3 to 5 also inflicted injuries on PW1 with M06 iron pipes and accused 6 and 7 were present there and abetted the other accused to inflict injuries. Accused 3 to 5 were found guilty of the offences under sections 143, 148 and 326 read with section 149 of Indian Penal Code. Second accused was additionally found guilty of the offence under section 307 read with section 149 of Indian Penal Code. Finding that first accused caused the death of Prasad, he was convicted for the offences under sections 143, 148 and 302 read with section 149 of Indian Penal Code. He was sentenced to imprisonment for life and a fine of Rs.25,000/- and in default simple imprisonment for two years for the offence under section 302 read with section 149  Crl.A.198/2008 & 1709/2007 12 of Indian Penal Code, rigorous imprisonment for six months for the offence under section 143, and rigorous imprisonment for one year for the offence under section 148 of Indian Penal Code. Second accused was sentenced to rigorous imprisonment for six months for the offence under section 143, rigorous imprisonment for one year for the offence under section 148 IPC , rigorous imprisonment for seven years and a fine of Rs.5000/- and in default simple imprisonment for one year for the offence under section 307 read with section 149 of Indian Penal Code, rigorous imprisonment for 7 years and a fine of Rs.5000/- and in default simple imprisonment for one year for the offence under section 326 IPC. Accused 3 to 5 were sentenced to simple imprisonment for six months for the offence under section 143, rigorous imprisonment for one year for the offence under section 148,rigorous imprisonment for five years and fine of Rs.5000/- and in default simple imprisonment for one year each for the offence under section 326 and section  Crl.A.198/2008 & 1709/2007 13 149 of Indian Penal Code. Accused 6 and 7 were sentenced to simple imprisonment for one year for the offence under section 147,simple imprisonment for six months for the offence under section 143 and rigorous imprisonment for one year each and a fine of Rs.3000/- and in default simple imprisonment for six months each for the offence under section 326 read with section 149 of Indian Penal Code.

5. Learned senior counsel appearing for the appellants and the learned Public Prosecutor were heard.

6. Learned senior counsel pointed out that even though it was found that evidence of PW3 is not believable because of his conduct, his entire evidence was relied upon by the learned Additional Sessions Judge, for the reason that portions were corroborated by the evidence of PW1 and Pws.4 and

5. It was pointed out that evidence of Pws.4 and 5, even if believed, will not corroborate the evidence of PW3 as PW3 had not spoken anything as  Crl.A.198/2008 & 1709/2007 14 to what was spoken to by Pws.4 or PW5 and PW4 and PW5 did not depose anything, which was spoken to by PW3 at the premise of Marananthara Sahaya Samithi Office. It is therefore argued that evidence of Pws.4 and 5 do not corroborate the evidence of PW3 at all. Learned senior counsel also submitted that evidence of PW3 is artificial and should not have been believed and the evidence of PW1 is insufficient to corroborate the evidence of PW3. It was pointed out that if the version of PW3 is true, he would not have proceeded to Guruvayoor, without informing the incident to others or informing the police, especially when he is also a worker or sympathiser of RSS. It is therefore argued that the evidence of PW3, should have been eschewed. Learned senior counsel argued that evidence of PW1 though he is an injured is unreliable and untrustworthy. It was pointed out that if the evidence of PW1 is to be believed, he had identified each of the assailants and also the overt act of each of the accused and had the  Crl.A.198/2008 & 1709/2007 15 opportunity to disclose it to DW1, when he approached DW1 seeking his assistance to take him to the hospital or would have disclosed the details to PW2 his father and Sudheer who had taken PW1 to the Medical College Hospital, especially when it was disclosed by PW1 that he had unveiled several details of the incident to PW2. It was pointed out that if PW1 had disclosed those facts, when PW2 furnished Ext.P1 First Information Statement on that night itself, PW2 would have disclosed the facts deposed by PW1 from the box and would have named at least some of the assailants. It was pointed out that evidence of PW4 establish that PW1 was conscious and was in a fit state of mind when he was examined by PW12 and prepared Ext.P4 wound certificate and if that be so, the alleged cause of injury recorded in Ext.P4 would have been in consonance with the evidence of PW1 and he would not have stated that he sustained the injuries, when attacked by a group of people. It was pointed out that even if the alleged cause of injury was  Crl.A.198/2008 & 1709/2007 16 not disclosed by PW1 but by Sudheer who was present in the ambulance on the way of Medical College Hospital allegedly when PW1 made the disclosure, the alleged cause of injuries would not have been as recorded in Ext.P4. It was also pointed out that the evidence of PW1 establish that while he was in the hospital, before his statement was recorded, he had opportunity to consult PW4, PW5 and others and in such circumstances his claim that he identified all the assailants and the details of the overt act committed by each of the accused, can never be true and in any case it cannot be relied on without corroboration. It was therefore argued that the evidence of PW1 is also not helpful to prove the charges. Learned senior counsel pointed out that the evidence of PW4, though relied on by the learned Sessions Judge, should not have been believed as he is also an RSS worker. It was also pointed out that in any case there was nothing abnormal in the accused being seated together away from the scene of occurrence  Crl.A.198/2008 & 1709/2007 17 on that night especially when it was admitted by PW1 that they were also sitting as a group on the previous night of vishu day. It was also argued that evidence of PW5 is also unreliable and it cannot be believed that the accused would march in a lane, after the incident, as spoken to by PW5. Learned senior counsel argued that neither PW4 nor PW5 have a case that when they found the accused, any of them was armed. It was pointed out that if the second accused was armed with M05 sword and accused 3 to 5 with M06 iron pipes, it would have been definitely noted by PW4 and PW5, if they had seen them as claimed by them and in such circumstances, their evidence is unreliable. It was also pointed out that though M04 knife was allegedly recovered under Ext.P20 recovery mahazar Pws 18 and 19 the attesting witnesses to the recovery mahazar, turned hostile and did not support the recovery and in such circumstances, the recovery of M04 knife cannot be relied on. It was also pointed out that Ext.P14 report of chemical  Crl.A.198/2008 & 1709/2007 18 analysis do not establish that M04 knife contain human blood, much less the blood group of the deceased and in such circumstances the recovery of M04 was also not helpful. Similarly it was pointed out that M0s. 5 and 6 do not contain any trace of human blood and their recovery is also insufficient to prove that the accused inflicted the injuries on the deceased or PW1. Learned senior counsel also pointed out that when the prosecution case is that all the accused formed an unlawful assembly and in furtherance of the common object of murdering Prasad and committing the murder of PW1 and inflicting grievous hurt on PW1 , when accused 2 to 5 were found not members of an unlawful assembly with the common object of murdering Prasad and were acquitted of the said charges, first accused alone could not have been convicted for the offence under section 302 read with section 149 of Indian Penal Code. It was also pointed out that when the charges framed by the court do not specifically show that first accused inflicted the  Crl.A.198/2008 & 1709/2007 19 injury, much less the injury which caused the death on Prasad, first accused cannot be convicted for the offence under section 302 of Indian Penal Code simpliciter. Learned senior counsel also argued that when accused 1, 6 and 7 were acquitted of the offence under section 307 read with section 149 IPC, finding that there was no common object of attempt to commit murder of PW1,second accused alone could not have been convicted for the offence under section 307, with the aid of section 149 IPC. It was also pointed out that as per the finding of the learned Sessions Judge, accused 2 to 7 were only members of the unlawful assembly with the common object of causing grievous hurt and if that be so, first accused cannot be convicted with the aid of Section 149, for the offence under section

302. It was argued that when there is no evidence to prove that accused 6 and 7 did not inflict injuries on PW1, in any case their conviction is not sustainable. It was also pointed out that though M012 shirt was recovered under Ext.P21  Crl.A.198/2008 & 1709/2007 20 mahazar, there is no evidence to prove that M012 and M013 were the dresses worn by the first accused at the time of the incident as nobody identified it and therefore, presence of human blood in M012 shirt cannot connect the first accused with the offence. It was also pointed out that there is no evidence to prove that M012 and M013 belong to the first accused, as it was allegedly produced by the son of the elder brother of the father of the first accused, and he was not examined.

7. Learned Public Prosecutor submitted that there is no reason to disbelieve either PW1 or PW2. It was pointed out that PW1 is the injured and it cannot be believed that PW1 would falsely depose against the accused and thereby allow the real culprit to escape. Learned Public Prosecutor argued that as PW1 sustained serious injuries, when he reached the house of DW1 he could not disclose the details as deposed by him and he fell unconscious and the evidence of PW1 establish that he regained consciousness only from Aswini Hospital  Crl.A.198/2008 & 1709/2007 21 and even though PW1 had regained consciousness for some time while being taken to Medical College, Thrissur he could not disclose the entire details and therefore PW2 could not furnish the full details while furnishing Ext.P1 First Information Statement and for that reason evidence of PW1 cannot be disbelieved. Learned Public Prosecutor also argued that in any case based on the omissions or contradictions in Ext.P1 First Information Statement of PW2, PW1 cannot be disbelieved and the evidence of PW1 is trustworthy. It was pointed out that the evidence of PW1 establish that due to rain on their way to the house, PW1 and Prasad got into the steps of Marananthara Samithi Office and they slept on the steps and Prasad was sleeping on the eastern side and PW1 on the western side and as Prasad was attacked while they were sleeping, PW1 is a natural witness. It was argued that there is no reason to disbelieve the evidence of PW1 that he found the first accused inflicting injuries on the neck of Prasad with M04 knife and second accused  Crl.A.198/2008 & 1709/2007 22 inflicted the injury with M05 sword on PW1 and accused 3 to 5 inflicted injuries on PW1 with M06 series of iron pipes and accused 6 and 7 were abetting and persuading other accused to inflict the injuries and in such circumstances evidence of PW1 establish that deceased Prasad sustained the fatal injuries from the hands of first accused and PW1 sustained the injuries from the hands of accused 2 to 5 and the injuries inflicted on PW1 with M05 sword was with the intention to cause his death and therefore the finding of the learned Sessions Judge that it was the first accused who inflicted the injuries on deceased Prasad and caused his death and it was the second accused who inflicted the serious injuries on PW1 with M05 sword and accused 3 to 5 inflicted the injuries including the grievous hurt with M06 iron pipes is perfectly correct. Learned Public Prosecutor also pointed out that PW3 is also a natural witness who happened to witness the incident as he was proceeding to the temple at that time and he had  Crl.A.198/2008 & 1709/2007 23 corroborated the evidence of PW1 as to how PW1 and Prasad sustained injuries and for the reason that PW3 did not inform the police on his way to Guruvayoor temple and did not offer any help to PW1 or Prasad, his evidence cannot be disbelieved because PW3 was afraid of offering any help to the injured and the accused were armed with deadly weapons and in such circumstances learned Sessions Judge rightly relied on the evidence of PW3. It was also argued that evidence of PW4 and 5 establish that all the accused were seen together near to the scene of occurrence at about 1.30 a.m on that night and after inflicting injuries on the deceased and PW1 they were moving together as a group one after the other and to that extent evidence of Pws.1 and 3 were corroborated by the evidence of Pws.4 and 5. It was also argued that if there is any defect in the charge framed by the court, it is not a ground to acquit the accused and the proper course is to remand the case to the Sessions Court with a direction to frame proper  Crl.A.198/2008 & 1709/2007 24 charge. It was also argued that there is no reason to disbelieve the recovery of M04 knife, on the information furnished by the first accused under Ext.P20 recovery mahazar, even though PW18 and 19 turned hostile, as the recovery cannot be at the mercy of the attesting witnesses. It was argued that evidence of PW25 establish that M05 sword was recovered on the information furnished by the second accused under Ext.P8 mahazar and M06 series of iron pipes were recovered on the information furnished by the third accused under Ext.P9 recovery mahazar. Ext.P14 establish that blood was found on M04 knife which further corroborates the evidence of Pws.1 and 3 and therefore the conviction of the accused can only be confirmed. It was pointed out that M05 was concealed in the paddy field filled with water and hence failure to detect human blood in M05 is not fatal and therefore on that ground, it cannot be found that second accused did not inflict the injuries on PW1 with M05 sword.

Crl.A.198/2008 & 1709/2007       25

      8.       Learned       Additional   Sessions    Judge

unfortunately          did  not  specifically  formulate  a

point on the alleged unlawful assembly. Instead points were formulated whether the accused committed the offences under sections 143 and 148 read with section 149 IPC and whether all the accused are guilty of the offence under section 302 read with section 149 or 326 and 307 read with section 149 IPC. It resulted in the omission to take note of material facts. The prosecution case is that all the accused are members of an unlawful assembly and in furtherance of the common object committed the murder of Prasadand also inflicted the injuries on PW1 in their attempt to cause his death and also inflicted grievous hurt on PW1. Hence learned Sessions Judge should have specifically considered existence of the common object alleged. Learned Sessions Judge did not consider this most relevant and important aspect, in the light of the evidence on record. It is due to this omission, learned Sessions Judge happened  Crl.A.198/2008 & 1709/2007 26 to convict the first accused alone for the offence under section 302 read with section 149 IPC, while acquitting the remaining six accused of the said offence and also convicting the second accused alone for the offence under section 307 read with section 149 while acquitting accused 1 and 3 to 7 of the said offence and convicting accused 2 to 7 for the offence under section 326 read with section 149 IPC while acquitting first accused of the said offence. If the common object of the unlawful assembly was to commit murder of Prasad and also to cause the death of PW1 and accused 2 to 7 are the other members of the unlawful assembly, along with the first accused, accused 2 to 7 could not have been acquitted of the offence under section 302 read with section 149 IPC. When all the other members of the unlawful assembly were acquitted of the offence under section 302 read with section 149 of Indian Penal Code, first accused alone cannot be convicted for the offence under section 302 read with section 149 IPC when there is no case that  Crl.A.198/2008 & 1709/2007 27 apart from accused 2 to 7, there were any other members in that unlawful assembly. Similarly if the common object of the unlawful assembly was to commit murder of PW1, accused 1 and 3 to 7 could not have been acquitted of the said offence. When the learned Sessions Judge acquitted accused 1 and 3 to 7 for the offence under section 307 read with section 149 IPC, second accused alone could not be convicted, for the offence under section 307 with the aid of section 149 IPC, when there is no case that apart from accused 1 to 7 there were any other member in the alleged unlawful assembly. Similarly if first accused was also one of the members of the unlawful assembly and one of the common object of the unlawful assembly in causing grevious hurt on PW1, first accused could not have been acquitted of that offence. Learned Sessions Judge unfortunately did not specifically consider the question as to what was the common object of the unlawful assembly.

9. Conviction for the offence under section 302  Crl.A.198/2008 & 1709/2007 28 IPC simpliciter as against one of the accused could have been awarded, if the finding is that the common object of the unlawful assembly was not to commit the murder of Prasad and it was also not within the knowledge of the members of the unlawful assembly that murder of Prasad would be committed and the death was caused by one among the accused. Learned Sessions Judge did not enter any such finding. Therefore on the face of the findings, the conviction for the offences under section 302 and 307 with the aid of Section 149 of Indian Penal Code may not stand.

10. True, even if charge framed is not for the offence under section 302 IPC simpliciter, but for Section 302 read with section 149 IPC, conviction for the offence under section 302 simpliciter is possible, if that accused is not prejudiced for non framing of charge for the offence under section 302 IPC simpliciter, as he was having sufficient knowledge from the charge framed that the prosecution case is that he  Crl.A.198/2008 & 1709/2007 29 inflicted that particular injury which caused the death of the deceased. But we find from the charges framed by the learned Sessions Judge, that there is no allegation that any of the particular accused much less the first accused inflicted any injury on the deceased Prasad much less the fatal injury which caused the death. The charge framed on Section 302 IPC reads:-

"And that the same date and time and at the same place, in furtherance of your common intention, you committed murder by intentionally causing the death of Prasad and thereby committed the offence punishable under section 302 IPC r/w section 149 IPC.

Similarly the charges for the offence under section 307 and 326 read with section 149 IPC reads:-

"And that at the same time, date  Crl.A.198/2008 & 1709/2007 30 and place, in furtherance of your common intention using the dangerous weapons, you committed grievous hurt to CW2 and attempted to commit murder of him and thereby you have committed the offences punishable under sections 326 and 307 r/w 149 IPC within the cognizance of this court.

11. A Division Bench of this court considered the legality of a conviction for the offence under section 302 IPC simpliciter, without a specific charge for the offence under section 302 IPC simpliciter, when the charge is only for the offence under section 302 with the aid of section 149 IPC in Crl.A.651/2009. Analysing the decisions of Supreme Court in the light of the Constitution Bench decision in Willie Slaney v. State of Madhya Pradesh (AIR 1956 SC 116) it was held:- 

That exactly is the case herein.        The charge framed

Crl.A.198/2008 & 1709/2007       34

by the learned Sessions Judge does not show that first accused was made aware that he has to face trial on the allegation that he inflicted the injuries on Prasad which caused his death. So also the charge framed by the learned Sessions Judge does not show that the second accused was aware of the fact that he has to face trial on the allegation that he inflicted the injuries on PW1 which are likely to cause his death. Instead all the accused were made known that they have to face trial on the allegation that they are the members of the unlawful assembly and one among the members of the unlawful assembly, in furtherance of the common intention (not even common object) inflicted the injuries which caused the death of Prasad and also inflicted injuries which attract the offence under section 307 and also 326 IPC. In such circumstances when on the charges framed, even if there is evidence, learned Sessions Judge could not have convicted either the first accused for the offence under section 302 simpliciter or the second  Crl.A.198/2008 & 1709/2007 35 accused for the offence under section 307 IPC simpliciter. True, learned Additional Sessions Judge did not convict the first accused for the offence under section 302 simpliciter or the second accused for the offence under section 307 simpliciter and instead convicted them separately with the aid of section 149 IPC, ignoring the fact that the other five accused were already acquitted of the respective offences and only one accused was convicted for the offence under section 302 IPC and the other for the offence under section 307 IPC with the aid of section 149 IPC. Such conviction is legally unsustainable.

12. It is also true that for the failure of the learned Sessions Judge to frame proper charge, conviction cannot be set aside and the accused acquitted. In that event the proper course is to remand the case to the Sessions Court with a direction to try the case after framing proper charge, if the evidence on record warrants such a course.

Crl.A.198/2008 & 1709/2007 36

13. The question is whether there is evidence to establish that the seven accused formed an unlawful assembly and if so whether any of the accused being the member of the unlawful assembly, inflicted injuries on Prasad and caused his death and inflicted the injuries on PW1 as alleged by the prosecution. Learned Sessions Judge relied on the evidence of PW1 and PW3, to hold that it was the first accused who inflicted the injuries on deceased Prasad which caused his death whether accused 2 to 7 inflicted injuries on PW1. The question is how far the evidence of PW1 or PW3 is reliable.

14. PW3 claimed that he was proceeding to Sreekrishna temple, Guruvayoor in the early morning of 14.4.2002 to witness kani. He claimed that he has to pass through the side of the house of Gopi, who was examined by the defence as DW2 and while he was proceeding, he found all the accused proceeding towards Marananthara Samithi Office. PW3 claimed that he identified each of them and they were armed  Crl.A.198/2008 & 1709/2007 37 with knife, sword and iron pipes. PW3 claimed that finding the accused, he hide on the northern side of the house of DW2 Gopi and from there he found PW1 and deceased Prasad sleeping on the veranda of Marananthara Samithi Office. PW3 claimed that on reaching the varandha, first accused took M04 knife and inflicted an injury first on the neck and thereafter on the hip of Prasad. PW1 who was sleeping nearby woke up and then second accused inflicted the injury on his neck and face with M05 sword and accused 3 to 5 beat him with iron pipe and both PW1 and Prasad fell on the ground. PW3 claimed that being afraid, PW3 returned and proceeded to Guruvayoor along another way and returned back to his house by 6.30 a.m and then got information that Prasad died and PW1 was taken to the hospital. Appreciating the evidence of PW3 learned Sessions Judge found that the conduct of PW3 is not natural and reliable. Still learned Sessions Judge relied on the evidence of PW3 based on the alleged corroboration by PW4 and 5 as well  Crl.A.198/2008 & 1709/2007 38 as PW1. Though PW3 denied that he is an RSS worker, from his evidence it is clear that he is at least a sympathiser of RSS. In cross examination PW3 also deposed that he has no need to be afraid of anybody and he did not inform the incident to anybody till he reached the house. That is not the conduct of an ordinary prudent man if he had witnessed the gruesome act as claimed by him. If he had seen the accused inflicting injuries on PW1 and Prasad with deadly weapons, as PW3 claimed that he is not afraid of anybody, he would have at least raised sufficient noise to attract the attention of the neighbours so as to provide necessary help to PW1 and Prasad. At least PW3 would have informed this incident to the police, as he admitted that he had gone to the Guruvayoor temple crossing two police stations on the way. On a proper appreciation of the evidence of PW3, we have no hesitation to hold that PW3 did not witness the incident as claimed by him. His evidence is not at all trustworthy or reliable. Therefore no  Crl.A.198/2008 & 1709/2007 39 portion of the evidence of PW3 could be relied on, based on the corroboration of the other witness. Moreover, evidence of PW3 could be corroborated by PW4 and 5, if they had given any evidence as to the matter disclosed by PW3. PW4 and 5 have no case that they had seen the accused either proceeding to the office of Marananthara Sahaya Samithi or found the accused returning from that office. PW3 had given evidence only on two facts, the accused proceeding towards that office and inflicting injuries on PW1 and Prasad from there. Therefore even if the evidence of Pws.4 and 5 is believed, it will not corroborate the evidence of PW3. PW3 has no case that he had witnessed the facts claimed to have been witnessed by PW4 or PW5.

15. The evidence of PW4 even if believed, would only show that all the accused were together in the nearby paramba around about 1.30 p.m on that night. From the evidence it is clear that group of people had gathered, at different places on that night. The group of PW1 took kani processions to  Crl.A.198/2008 & 1709/2007 40 the houses, though PW1 claimed that Prasad and himself did not join them. Therefore even if the accused were found near to the office of Marananthara Sahaya Samithy, based on that fact alone, it cannot be found that any of the accused inflicted the injuries on PW1 or deceased Prasad. Moreover, on appreciating the evidence of Pws. 4 and 5, who are also sympathisers of RSS, it is clear that they are deposing in favour of the prosecution because of extraneous reasons due to their political affinity and their evidence cannot be relied on. Even according to PW1, he along with Prasad happened to sleep in the varandha of the Marananthara Sahaya Samithi Office only because of rain. If there was no drizzling they would have gone to their houses. If so it is not known how the accused would know that they are available at the varandha of Marananthara Sahayasamithi Office so as to march them as claimed by Pws. 3 to 5. Moreover, even Pws.4 and 5 has no case that when they saw the accused they were armed with weapons. On the  Crl.A.198/2008 & 1709/2007 41 evidence we find it is not possible to believe them or rely on their evidence.

16. What remains is the evidence of PW1. True, PW1 is not the author of Ext.P1 First Information Statement and based on the averments in the First Information Statement, PW1 cannot either be corroborated or contradicted. But that does not mean that while appreciating the evidence of PW1, the factual matrix disclosed in Ext.P1 cannot be looked into. If we are to believe the evidence of PW1, he could identify the assailants on that night, with the light available at the scene of occurrence. It was claimed by the prosecution that there were two bulbs on the eastern wall of the house of PW8 Ramachandran, which is situated to the west of Marananthara Sahaya Samithi office as well as on the western wall of the house of DW2 Gopi, and another light on the motor shed adjacent to the Marananthara Sahaya Samithi Office. First of all neither Ext.P7 mahazar prepared by PW25 or Ext.P6 mahazar prepared by PW24 show the existence  Crl.A.198/2008 & 1709/2007 42 of any motor shed near to the Marananthara Sahaya Samithi Office as claimed by PW1. No other witness had spoken about such a motor shed. Therefore PW1 cannot be believed when he deposed that he could identify the assailants with the light available from the motor shed. Though PW8 was examined to prove that there was light on the eastern wall of his house, evidence of PW8 does not prove the same.. In Ext.P6 mahazar availability of light from the neighbouring buildings is not mentioned. It was in such circumstances PW25 ,who took over the investigation from PW24, prepared Ext.P7 mahazar which shows that there were bulbs on the eastern wall of the house of PW8, as well as western wall of the house of DW2 and also a light outside of the house of Raghavan who was not examined in the case. Evidence of PW8 shows that bulbs were fixed on the eastern wall of his house, immediately above the door on the eastern side as well as on the south northern side. It is strange to note that eventhough PW25 prepared Ext.P7  Crl.A.198/2008 & 1709/2007 43 mahazar, finding the omission in Ext.P6, he did not note the existence of the light on the western wall of the house of PW8. PW8 admitted that the entrance to his house is from the western side, which is natural as the house is near to the western public road. The evidence of PW8 is to be appreciated in that background. Evidence of PW8 is only that he had lighted the bulb on that night. He had answered in singular not plural. If the evidence of PW8 is to be accepted, there were two lights on the eastern side and one light on the western side. It is not known which was the light which was switched on, on that night. Normally the light which would be switched on during the night will be the one, which faces the entranceand not on the back side, especially when it is a case that kani procession had come to his house on that night from the western side.In such circumstances based on the evidence of PW8, it cannot be found that the bulbs which were found on the eastern side of the house of PW8 were switched on, on that  Crl.A.198/2008 & 1709/2007 44 night. Evidence of DW2 is to the effect that there was no light on the western wall of his house. The evidence of PW1 also shows that there was no light on the western wall of the house of DW2. Evidence of PW1 is also that the house of DW2 faces towards the east. If that be so, when there is no evidence that the bulb on the eastern wall of the house of DW2 was lighted on that night, it cannot be found that there was sufficient light for PW1 to identify the assailants.

17. Though PW1 claimed that he woke up hearing the sound and then found the first accused inflicting injuries on the neck and then hip of Prasad and the second accused inflicted injuries on his head and face with M05 sword and accused 3 to 5 inflicted injuries with M06 series of iron pipes and accused 6 and 7 were also present there, if PW1 had identified the assailants as he was conscious and was capable of speaking, in the ordinary human conduct when he was examined by PW12 the doctor, who prepared Ext.P4 wound certificate,  Crl.A.198/2008 & 1709/2007 45 he would have disclosed to the doctor that he sustained injuries when the second accused slashed sword at his face and head and accused 3 to 5 beat him with iron rods. The evidence of PW12 with Ext.P4 wound certificate establish that the alleged cause of injuries disclosed to the doctor was "

inflicted by a group of people at about 3.30 a.m."

If PW1 had identified even one of the assailants, he would have named him, when the alleged cause of the injuries sustained by him was disclosed to PW12. Evidence of PW1 is that he fell unconscious after reaching the house of DW1, before answering the question of DW1 as to what happened, PW1 admitted that on the way to Medical College Hospital, when he was inside the ambulance he could regain conscious and he disclosed the incident to PW2 his father, PW7 Shibu as well as Sudheer who were accompanying him in that vehicle. Though PW1 claimed that he could not disclose the entire facts because of the injuries sustained and loosing consciousness, evidence of PW1 establish that he  Crl.A.198/2008 & 1709/2007 46 had disclosed to PW2, PW7 and Sudheer that first accused inflicted injury on Prasad along with others and the body of Prasad is lying near the Marananthara Sahaya Samithi Office. The evidence of PW2 is that while PW1 was being taken to the hospital along with PW7,he asked PW1 what happened and then PW1 disclosed that on that night he along with his friends were talking near Erattapuzha Marananthara Sahaya Samithi Office and while so first accused and his friends came there and asked where is Anandan. Prasad disclosed that Anandan never used to be with them and then there was a quarrel between Prasad and first accused and Prasad threw a broken soda bottle at the first accused. Thereafter PW1 and Prasad were sleeping in the veranda of Marananthara Sahaya Samithi Office. By 3.30 p.m PW1 woke up hearing the cry of Prasad and then found first accused inflicting injuries on Prasad. PW1 sustained injuries on his head and hands from the hands of accused 2 to 5.

After accused left the place,         PW1 proceeded to the

Crl.A.198/2008 & 1709/2007      47

house of DW1 and then          lost conscious. According to

PW1, when PW2          asked who inflicted the injuries, he

could      not answer.      If so  PW2 could not have known

who inflicted the injuries on PW1. Evidence of PW1 is contradicted by the evidence of PW2. If PW1 did not disclose as to what transpired on that night, when prosecution has no case that neither PW2 nor Sudheer nor PW7 were there on that night along with PW1 or Prasad PW2 could not have furnished those details seen in Ext.P1 First Information Statement. Ext.P1 First Information Statement which was furnished by PW2 at 7.30 a.m on 14.4.2002, establish that PW2 was aware of the incident spoken to by PW1 which took place near the Chira when the first accused along with another person approached PW1 and Prasad. PW2 could have known that fact only if PW1 had disclosed it from the ambulance. If that be so PW2 should have known that it was the first accused along with others, who inflicted the injuries on Prasad and PW1. If that be so, PW2 would not have disclosed  Crl.A.198/2008 & 1709/2007 48 in Ext.P1 that he is not aware as to who inflicted the injuries on Prasad or PW1. Ext.P1 First Information Statement shows that because of the earlier incident that occurred on that night when first accused along with another person approached PW1 and Prasad and Prasad had thrown a broken soda bottle at the first accused, PW2 assumed that the incident which occurred later and the death of Prasad and injuries sustained by PW1 could have been caused by the first accused and another. If PW1 was conscious to disclose the details which occurred at about 10 p.m on the night of 13.4.2002 to PW2,as admitted by PW2 and if PW1 had identified any of the assailants on that night, he would have definitely disclosed it to PW2 and if it was disclosed, it would have found in Ext.P1 First Information Statement. If PW1 had disclosed these facts from the ambulance as claimed by him, he would have definitely disclosed the name of the assailants to PW12. Even if it is taken that the alleged cause of injuries was not disclosed by  Crl.A.198/2008 & 1709/2007 49 PW1, but by Sudheer the bystander, if PW1 had disclosed as to how the incident occurred and who inflicted the injuries on Prasad to PW2, as Sudheer was also present in the ambulance along with PW2 on that night, Sudheer would not have disclosed to the doctor the alleged cause of injury inflicted by a group of persons and instead would have at least named the first accused. The evidence of PW7 who was inside the ambulance along with PW2 and PW1 on that night, is also to the effect that PW1 regained conscious while being taken to the Medical College Hospital and on regaining conscious he disclosed that the injuries were inflicted by the first accused and others. If that be so, it would have been known to PW2 as well as Sudheer and if so what is stated earlier, squarely applies to the version of PW7 also. Moreover what was disclosed from the ambulance by PW1, as deposed by PW7 is contrary to the disclosure made by PW2 and also by PW1. All are mutually contradictory. In such circumstances it  Crl.A.198/2008 & 1709/2007 50 cannot be believed that PW1 had identified the assailants on that night. It was deposed by PW1 that while he was being treated as an inpatient at Aswini Hospital, he got the information that all the accused were found near the scene of occurrence by PW4 and 5. It is thus clear that before the statement of PW1 was recorded by PW25 from Aswini Hospital under section 161 of Code of Criminal Procedure, PW1 had sufficient opportunity to consult others.In such circumstances evidence of PW1 implicating the accused cannot be given much weight.True,normally no injured witness would allege a false case against an innocent person and thereby allow the real culprit to escape.That principle cannot be applied in this case. If PW1 could not and did not identify the assailants at that time on that night, as we have already found earlier,there is no question of allowing the real culprit to escape. When PW1 had no occasion or opportunity to identify the persons who inflicted the injuries either on him or Prasad,PW1 might have  Crl.A.198/2008 & 1709/2007 51 made to believe that accused are the assailants. Hence it is not safe to rely his evidence on the overt acts imputed to the accused at a later stage, after consultation with others. That exactly is the case herein. On the evidence we find it not at all safe to rely on the evidence of PW1, without corroboration to hold that any of the accused was present at the scene of occurrence or inflicted the injuries either on Prasad or PW1. Eventhough M012 shirt showed human blood, evidenced by Ext.P14 report, when nobody identified M012 as the shirt which was worn by the first accused on that night when PW1 and Prasad sustained injuries, based on the presence of blood in M012 shirt also,first accused cannot be implicated. Moreover even according to PW25, M012 along with M013 dress was produced before him by the son of the brother of the father of the first accused, who was not examined. It is also not proved that the blood found in M012, is the blood group of the deceased. So also recovery of M04 knife or M05 sword, even if  Crl.A.198/2008 & 1709/2007 52 believed, by themselves are insufficient to prove that any of the accused inflicted the injuries either on deceased Prasad or PW1. In the light of the evidence, we find it not in the interest of justice to remand the case back to the learned Sessions Judge, for framing fresh charge due to the defect in the charges framed, as it will serve no purpose in the light of the evidence on record. In such circumstances conviction of none of the accused can be sustained, as there is no evidence to prove that the accused either formed an unlawful assembly or the common object was to murder Prasad or attempt to commit murder of PW1 or to cause grievous hurt on PW1. Evidence also do not establish that any of the accused were present at the premises of the office of the Marananthara Sahaya Samithi on the early morning of 13.4.2002 or any of the accused inflicted injuries either on deceased Prasad or PW1. Hence conviction of the appellants can only be set aside.

       Appeals are        allowed. Conviction and sentence

Crl.A.198/2008 & 1709/2007      53

of the appellants           by Additional Sessions Judge,

Thrissur in           S.C.335 of 2005 are set aside. The

appellants are found not guilty of all the offences charged. All accused stand acquitted. As accused 2 to 7 were released on bail, the bail bonds stand cancelled. If the first accused who is undergoing sentence in Central Prison is not wanted in any other case, he shall be released from prison forthwith.

M.SASIDHARAN NAMBIAR JUDGE C.T.Ravikumar Judge tpl/-

M.SASIDHARAN NAMBIAR & C.T.RAVIKUMAR,JJ.

-------------------------

& 1709/2007

------------------------

JUDGMENT 3rd October, 2012  M.SASIDHARAN NAMBIAR, J.

---------------------

W.P.(C).NO. /06

---------------------

JUDGMENT SEPTEMBER,2006