Kerala High Court
K.V.Umesh Babu vs State Of Kerala on 6 September, 2016
Bench: K.T.Sankaran, B.Sudheendra Kumar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.T.SANKARAN
&
THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR
TUESDAY, THE 6TH DAY OF SEPTEMBER 2016/15TH BHADRA, 1938
CRL.A.No. 920 of 2009 (D)
--------------------------
SC 4/2004 of ADDL.DISTRICT COURT (ADHOC)-III, THALASSERY
APPELLANTS/ACCUSED 1 TO 4:
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1. K.V.UMESH BABU, S/O.KUNHIRAMAN
AYIYARAMBATH HOUSE, MUNDAMOTTA,, PADUVILAYI AMSOM,
KAITHERIPOYIL.
2. C.K.ASHOKAN, S/O.CHATHUKUTTY PANIKAR,
CHATHOTHKUNNUMBRAM HOUSE, PADUVILAYI AMSOM, DESOM.
3. PARAMBAN PRAMOD, S/O.NARAYANAN,
PARAMBATH HOUSE, PADUVILAYI AMSOM, KAITHERIPOYIL.
4. K.V.SREEDHARAN, S/O.ONAKKAN,
VELLUVAKANDI HOUSE, PADUVILAYI AMSOM, UDARPALLI.
BY ADVS.SRI.M.K.DAMODARAN (SR.)
SRI.GILBERT GEORGE CORREYA
SRI.SOJAN MICHEAL
RESPONDENT/COMPLAINANT:
---------------------------------------
STATE OF KERALA
BY THE PUBLIC PROSECUTOR, HIGH COURT OF,
KERALA, ERNAKULAM.
PUBLIC PROSECUTOR, SRI. RAJESH VIJAYAN
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 27.5.2016,
ALONG WITH CRA. 1135/2009 AND CRRP. 448/2012, THE COURT ON
6.9.2016 DELIVERED THE FOLLOWING:
K.T.SANKARAN,J.
&
B. SUDHEENDRA KUMAR, J.
.....................................................
Crl.Appeal Nos. 920 of 2009, 1135 of 2009
and
Crl.R.P. No. 448 of 2012
.....................................................
Dated this the 6th day of September, 2016
JUDGMENT
Sudheendra kumar J., The appellants in Criminal Appeal No. 920 of 2009 are accused Nos. 1 to 4 and the appellants in Criminal Appeal No. 1135 of 2009 are accused Nos. 5 to 8 in S.C. 4 of 2004 on the files of the Additional Sessions Court, Thaslassery. The petitioner in Crl.R.P. No. 448 of 2012 is the mother of deceased Vattappara Shaji.
2. Accused Nos. 1 to 8 were convicted by the court below under Sections 143, 147 and 302 read with Section 149 IPC. A1 to A3 and A5 were convicted by the court Crl.Appeal Nos. 920 of 2009, 1135 of 2009 and Crl.R.P. No.448 of 2012 -: 2 :- below under Section 148 IPC also. A7 was convicted by the court below under Sections 3 and 5 of the Explosive Substances Act also. A1 to A8 were sentenced to imprisonment for life and a fine of Rs. 25,000/- each and in default to simple imprisonment for one year each under Section 302 read with Section 149 IPC, rigorous imprisonment for six months each under Section 143 read with Section 149 IPC and rigorous imprisonment for one year each under Section 147 read with Section 149 IPC. A1 to A3 and A5 were further sentenced to rigorous imprisonment for two years each under Section 148 IPC and A7 was further sentenced to rigorous imprisonment for 10 years and a fine of Rs. 20,000/- and in default to simple imprisonment for one year under Section 3 of the Explosive Substances Act and rigorous imprisonment for 5 years and a fine of Rs. 10,000/- and in default to simple imprisonment for six months under Section 5 of the Explosive Substances Act. Aggrieved by the above said conviction and sentence, accused Nos. 1 to 8 have filed the above appeals. The Crl.Appeal Nos. 920 of 2009, 1135 of 2009 and Crl.R.P. No.448 of 2012 -: 3 :- court below acquitted accused Nos. 9 to A15 of all the charges. Aggrieved by the acquittal of A9, the mother of the deceased filed the above Criminal Revision Petition.
3. The prosecution case can be briefly stated as follows:-
The appellants are followers of the political party, namely, Communist Party of India (Marxist). The deceased Vattappara Shaji was a worker of Rashtreeya Swayam Sevaka Sangam. A1 to A9 committed criminal conspiracy in the evening on 17-11-2002 under the leadership of A9 to do away with Vattappara Shaji. On 17-11-2002 at about 9.30 p.m., the accused Nos. 1 to 8, in furtherance of the above said criminal conspiracy formed themselves into an unlawful assembly, in furtherance of their common object, armed with deadly weapons Crl.Appeal Nos. 920 of 2009, 1135 of 2009 and Crl.R.P. No.448 of 2012 -: 4 :- like bill hooks, axe and dagger, committed rioting and wrongfully restrained Vattappara Shaji on the road near to the house of PW18 Savithri while Vattappara Shaji was proceeding along the said road after RSS Sakha and thereafter, A1 Cut Vattappara Shaji with a bill hook on his leg, A2 cut Vattappara Shaji with a bill hook on his neck and head, A3 cut on different parts of the body of Vattappara Shaji with an axe, A5 stabbed Shaji with a dagger on the back and chest of Shaji. A4 and A6 restrained Vattappara Shaji at that time. A6 also beat Vattappara Shaji on his legs. The 7th accused, at that time, caused to explode a bomb at the road creating terror in that locality. Vattappara Shaji sustained grave and serious injuries and he succumbed to the injuries at or about the same time. A10 to A15 harboured A1 to A4, Crl.Appeal Nos. 920 of 2009, 1135 of 2009 and Crl.R.P. No.448 of 2012 -: 5 :- A7 and A8, after the commission of the offence of murder with the knowledge that they had committed the murder.
4. On the basis of Ext. P1 F.I. statement given by PW1 at 12 Night on 17-11-2002, PW30 registered Ext. P20 FIR on 18-11-2002 at 1.30 a.m. The investigation was taken over by PW32, the Circle Inspector of Police, Koothuparamba on 18-11-2002. On that day, he conducted inquest on the body of the deceased from 7.30 a.m. to 10.15 a.m. at the Government Hospital, Thalassery and prepared Ext. P2 inquest report. MO4 to MO6 dresses found on the body of the deceased were seized by PW32 as per Ext. P2 inquest report. On the same day at 3p.m., PW32 visited the place of occurrence and prepared Ext. P3 scene mahazar. He seized MO7 to MO10 from the place of occurrence as per Ext. P3 scene mahazar. The 9th accused was arrested by PW29 at 12 Noon on 18-11-2002 and thereafter, he was produced before PW32. Accused Nos. Crl.Appeal Nos. 920 of 2009, 1135 of 2009 and Crl.R.P. No.448 of 2012 -: 6 :- 1 to 8 surrendered before the Court on 28-11-2002. PW32 obtained the police custody of A1 to A8 for three days from 1-12-2002. A10, A14 and A15 were arrested by PW32 on 4-12-2002. A12 was arrested on 22-12-2002. A11 and A13 were arrested on 24-12-2002. Pursuant to Ext. P9(a) disclosure statement given by the first accused in police custody, PW32 discovered MO1 (a) bill hook from the shed of the house of the first accused at the instance of the first accused. Pursuant to Ext. P10(a) disclosure statement given by the 2nd accused, MO2 axe was discovered by PW32 at the instance of the second accused. Pursuant to Ext. P7 (a) disclosure statement given by the 3rd accused, MO1 bill hook was discovered by PW32 at the instance of the 3rd accused. PW32 also discovered MO3 dagger from a place under a concrete slab put across Pazhassi Project Canal in pursuance to Ext. P8 disclosure statement given by the 5th accused. After completing the investigation, PW32 filed final report before the court.
Crl.Appeal Nos. 920 of 2009, 1135 of 2009 and Crl.R.P. No.448 of 2012 -: 7 :-
5. In the trial, PW1 to PW32 were examined and Exts. P1 to P35 were marked for the prosecution, besides identifying MO1 to MO18(a). DW1 to DW10 were examined and Exts. D1 to D23 were marked for the defence.
6. Heard both sides.
7. PW16 was the doctor who conducted post mortem examination on the body of deceased Vattappara Shaji on 18-11-2002 and issued Ext. P12 postmortem certificate. PW16 noted the following ante mortem injuries on the body of the deceased as per Ext. P12 certificate:
"Injuries: Antemortem
i) incised wound over left side of forehead obliquely placed above the eyebrows about 12x2xbone deep fracture the outer table of skull
ii) Scalp injury (left) temporarl region 7x2x bone deep (incised wound)
iii) Incised tangential wound over vertex 10 x 3 cm.
Fracturing the skull exposing the dura. There is intra - cranial haematoma Crl.Appeal Nos. 920 of 2009, 1135 of 2009 and Crl.R.P. No.448 of 2012 -: 8 :-
iv) Incised wound 5 x 2 cm over occipital scalp bone deep
v) Another incised wound 8 x 1 cm. below injury No. 4.
vi) 2 parallel incised wounds over left cheek 8 x 2 cm. x .5 cm.
and 10 x 1 cm. x .5 cm. not penetrating
vii) incised wound root of pinna vertically placed about 5 x 1 x 0.5 cm.
viii) Incised wound cutting the mandible over lower chin, horizontally placed reaching upto the thyroid cartilage penetrating two trachea about 20 cm. X 5 x 4 cm.
ix) Three incised would obliquely right shoulder region one below the other about 4x1x1 cm.
x) Incised wound 2x1x0.5 cm. over right sterno clavicular joint
xi) Another wound (incised) spindle shaped 3x1x penetrating to just 3 cm. Below the clavicle right side of chest.
xii) Multiple contused aberration over chest and abdomen about 15 cm. Long 3-4 in number.
xiii) Near total amputation of right hand at the level of middle of metacarpels over the dorsal aspect.
xiv) Incised wound spindle shaped over back of wrist 6x 2x 0.5 cm.
xv) Incised gaping wound 10x5x bond deep dorsum of mid forearm.(l) xvi) Incised wound back of chest 2x1 cm. x 0.5 cm. Crl.Appeal Nos. 920 of 2009, 1135 of 2009 and Crl.R.P. No.448 of 2012 -: 9 :- xvii)Oblique incised wound base of 3rd and 4th metacarpel 3x1x.5 cm.(left hand) xviii)Incised gaping wound mid leg 10x5x3 cm. Fracturing both bones of left leg.
xix) Four incised wounds 1-1.5cm. about below the number 18 about 5 x 1x1cm size cutting the muscles. xx) Incised gaping wound 15x5x0.5 cm. over lateral aspect of left knee xxi) Another incised wound lateral aspect of leg just above the ankle 3x1x.5 cm.
xxii) Oblique incised wound spindle shaped 9x3x1cm. Over back of right scapula.
xxiii) Another incised wound 2x1x.5 cm. 3cm below number 22 xxiv) Another incised wound right interangular region at the level of T.7 4x2x1cm."
PW16 opined that the cause of the death of the deceased was the injury to vital organs like brain and right lung (head injury, hemothorax). PW16 stated that all the injuries in Ext. P12 could be caused with MO1 series to MO3. PW16 further stated that injury Nos. 3 and 4 could be caused with MO1 series or MO2 and injury No. 8 could be caused with MO2. It is further in the evidence of PW16 that injury Crl.Appeal Nos. 920 of 2009, 1135 of 2009 and Crl.R.P. No.448 of 2012 -: 10 :- No. 11 in Ext. P12 could be caused with MO3. Injury Nos. 3 , 8 and 11 are independently and in combination with other injuries sufficient to cause death in the ordinary course of nature. There is no material before the court inconsistent with the finding of PW16 that the deceased died due to the injuries sustained to the head and the right lung of the deceased.
8. PW1 to PW3 were the occurrence witnesses examined by the prosecution to prove the occurrence. They supported the prosecution case. PW1 stated that the incident was on 17-11-2002 at about 9 p.m on the road in front of the house of PW18 Savithri. PW1 went to RSS Sakha at Paduvilai Kavu area on 17-11-2002 . Sakha was from 7.30 p.m. to 8.30 p.m. PW1 came to know that his neighbour, namely, Chirutheyi died. Therefore, PW1 and Vattappara Shaji(deceased) decided to go to Chirutheyi's house. PW1 and Vattappara Shaji had to pass through the place of occurrence to reach their houses and also to reach Crl.Appeal Nos. 920 of 2009, 1135 of 2009 and Crl.R.P. No.448 of 2012 -: 11 :- the house of Chirutheyi. While PW1 and Vattappara Shaji were proceeding along the road, PW1 saw A1 to A8 standing on the lane situated on the southern side of the house of Ilachi Manoharan with weapons like Koduval, hatchet etc. PW1 identified A1 to A8 . On seeing A1 to A8 carrying weapons, PW1 and Vattappara Shaji felt that there was something fishy. So, both of them hastily walked towards their house. When looked back, PW1 could find that the said accused persons were coming behind them. When PW1 and Vattappara Shaji reached in front of the house of PW18 Savithri, the above said accused persons encircled PW1 and Vattappara Shaji. Thereafter, A4 Sreedharan exhorted to kill them. Then, PW1 asked them as to why PW1 and Vattappara Shaji were restrained by them. PW1 also said that PW1 and Vattappara Shaji did not do anything against them. At that time, Umesh Babu (A1) flung MO1(a) bill hook carried by him at PW1. Then, the Vattappara Shaji pushed PW1 and hence, PW1 could escape unhurt from the bill hook. Then, Umesh Babu(A1) Crl.Appeal Nos. 920 of 2009, 1135 of 2009 and Crl.R.P. No.448 of 2012 -: 12 :- cut at the left leg of Vattappara Shaji with MO1(a). Then Vattappara Shaji fell down. At that time, C.K.Ashokan (A2) cut at the neck and head of Vattappara Shaji with MO2 hatchet. Then, Pramod (A3) cut all over the body of Vattappara Shaji with MO1 Koduval. Rajesh (A5) stabbed on the chest and back of Vattappara Shaji with MO3 dagger. On hearing the hue and cry of PW1 and Vattappara Shaji, PW18 Savithri, who is the mother of A5, reached there. Then, A4 and some other accused lifted Vattappara Shaji and took him near to the foundation constructed for CPM party Building. At that time, the 7th accused hurled a bomb at PW1. That bomb exploded. PW1 ran away from there to his house.
9. PW2 and PW3 are the other occurrence witnesses who supported the evidence of PW1 in all material aspects. PW2 and PW3 were also proceeding to the house of deceased Chiruthayi, as they received information that Chiruthayi died. The evidence of PW2 and PW3 would show that PW1 and deceased Shaji were proceeding nearly Crl.Appeal Nos. 920 of 2009, 1135 of 2009 and Crl.R.P. No.448 of 2012 -: 13 :- 15-20 metres ahead of PW1 and PW3. PW2 and PW3 also stated about the overt acts committed by the accused in tune with the evidence of PW1. PW2 and PW3 stated that Sreedharan(A4), Rajeevan(A6), Surendran(A7) and Vadavathi Ashokan(A8) dragged Vattappara Shaji to the foundation on the western side of the road and put him on the western side of the foundation. PW3 stated that the 6th accused beat deceased Shaji on his leg with a stick. The evidence of PW2 and PW3 would also show that A4 and A6 also restrained Shaji. The evidence of PW2 and PW3 would show that immediately after the attack on deceased Shaji, A7 hurled a bomb at the road creating a dreadful situation there with sound and smoke. The evidence of PW2 and PW3 would show that they had given water to the deceased. However, it drained through the neck. Therefore, PW2 and PW3 thought that Shaji died. However, they attempted to get some vehicle to take Shaji to the hospital. But, they did not get any vehicle. Thereafter, police vehicles reached there from Crl.Appeal Nos. 920 of 2009, 1135 of 2009 and Crl.R.P. No.448 of 2012 -: 14 :- Kuthuparamba and the police took Shaji to the Government Hospital, Thalassery in their vehicle. Thereafter, PW2 and PW3 went to the Government Hospital, Thalassery in an autorickshaw along with CW4 Chandran. The doctor examined Shaji and declared that Shaji died.
10. It has been argued by the learned counsel for the appellants that even though A6 was the relative of PW1 and A5 was the immediate neighbour of PW1, PW1 did not mention the name of A5 and A6 in Ext. P1 F.I. Statement and in the said circumstances, it has to be held that A5 and A6 were subsequently arrayed in this case falsely as accused and consequently, the entire prosecution case has to be thrown out on that reason alone. It has been further argued by the learned counsel for the appellants that since PW1 did not mention the names of A5 to A8 in Ext. P1 statement, the only inference possible is that PW1 could not either identify A5 to A8 or PW1 was not really an eye witness or A5 to A8 were not actually involved in the Crl.Appeal Nos. 920 of 2009, 1135 of 2009 and Crl.R.P. No.448 of 2012 -: 15 :- incident and they were implicated at the later stage at the instance of PW1 and others and in the said circumstances, the prosecution case, particularly the evidence of PW1, cannot be believed. It is true that A5 was the neighbour of PW1 and A6 is the relative of PW1. PW1 witnessed the gruesome attack on his companion, namely deceased Shaji, by the assailants with deadly weapons like hatchet, billhook etc. PW1 stated that PW1 was in a state of tension and perplexity at the time when he had given Ext. P1 statement. The evidence of PW1 would show that due to fear and perplexity following the incident, he made omission in mentioning the names of all the accused in Ext. P1 statement. His further evidence is that his mental condition was such that he was not able to give the entire details at that time. However, he stated that four other identifiable accused also attacked deceased Shaji. The incident was at about 9.30 p.m. and the FI statement was recorded at 12 night, which was within 2 = hours after the incident. Therefore, it was only natural Crl.Appeal Nos. 920 of 2009, 1135 of 2009 and Crl.R.P. No.448 of 2012 -: 16 :- that PW1 was in a state of tension and fear and hence he could not mention the names of all the accused in Ext. P1 statement. The evidence of PW 1 coupled with Ext. P1 statement would clearly show that PW1 could identify all the accused including A5 to A8. The Apex in Rotash v. State of Rajasthan [(2006) 12 SCC 64] observed in paragraph 14 thus:-
"The first information report, as is well known, is not an encyclopedia of the entire case. It need not contain all the details. We, however, although did not intend to ignore the importance of naming of an accused in the first information report, but herein we have seen that he had been named in the earliest possible opportunity. Even assuming that PW1 did not name him in the first information report, we do not find any reason to disbelieve the statement of Mooli Devi, PW6. The question is as to whether a person Crl.Appeal Nos. 920 of 2009, 1135 of 2009 and Crl.R.P. No.448 of 2012 -: 17 :- was implicated by way of an afterthought or not must be judged having regard to the entire factual scenario obtaining in the case".
The Apex Court in State of Uttar Pradesh v. Naresh and Others [(2011) 4 SCC 324] relied on the observation in Rotash (Supra) and held in paragraph 32 thus:-
"It is settled legal position that an FIR is not an encyclopedia of the entire case. It may not and need not contain all the details.
Naming of the accused therein may be important but not naming of the accused in FIR may not be a ground to doubt the contents thereof in case the statement of the witness is found to be trustworthy. The court has to determine after examining the entire factual scenario whether a person has participated in the crime or has falsely been Crl.Appeal Nos. 920 of 2009, 1135 of 2009 and Crl.R.P. No.448 of 2012 -: 18 :- implicated. The informant fully acquainted with the facts may lack necessary skill or ability to reproduce details of the entire incident without anything missing from this. Some people may miss even the most important details in narration. Therefore, in case the informant fails to name a particular accused in the FIR, this ground alone cannot tilt the balance of the case in favour of the accused".
11. The evidence of PW32 would show that the investigation was commenced by him at 7.30 a.m. on 18- 11-2002. PW32 conducted the inquest on the body of the deceased from 7.30 a.m to 10.15a.m. on 18-11-2002 and prepared Ext. P2 inquest report. At the time of inquest, the investigating officer got necessary information regarding all the eight accused persons who committed the offence. Ext. P2 mentions the names of all the eight Crl.Appeal Nos. 920 of 2009, 1135 of 2009 and Crl.R.P. No.448 of 2012 -: 19 :- accused. Column No. 4 of Ext. P2 relates to the person who had last seen the deceased alive. Corresponding to the said column, the name Pulukki Shaji was shown. Pulukki Shaji is PW1 in this case. This would show that at the time of preparation of Ext. P2 inquest also, the name of PW1 was mentioned as the person with whom the deceased was last scene alive. In the said circumstances, there is no room for doubting that PW1 was present at the place of occurrence at the relevant time. Apart from the evidence of PW 1, there is convincing evidence of PW2 and PW3 to prove the involvement of all the accused, including A5 to A8 in the commission of the offence and in the said circumstances, merely because Ext.P1 statement did not mention about the names of A5 to A8, it cannot be said that A5 to A8 were not involved in the commission of the offence. In view of the clinching evidence of PW1 and also taking into consideration of the panic situation in which PW1 was placed at the time of recording Ext. P1 statement, we are of the view that the non-mentioning of Crl.Appeal Nos. 920 of 2009, 1135 of 2009 and Crl.R.P. No.448 of 2012 -: 20 :- the names of A5 to A8 in Ext. P1 statement is not at all fatal to the prosecution case.
12. PW2 was questioned by the police at the time of inquest. PW2 stated about the names of all the accused when he was questioned during the time of inquest. PW2 had proceeded to the Government Hospital, Thalassery after deceased Shaji was removed to the hospital by the police. After examining the deceased, PW27 declared that the deceased died. The incident in this case was at about 9.30 p.m. on 17-11-2002. PW19 had shifted the deceased to the hospital. PW19 reached the hospital at about 11.30 p.m. with the deceased. PW27 doctor after examining Shaji declared that he died. Ext.P18 is the death intimation issued by PW27. Within short time, the statement of PW1 was recorded by PW30 and thereafter the crime was registered. Ext. P20 FIR was received by the Court at 8.25 a.m. on 18-11-2002. PW32 conducted the inquest on the body of the deceased from 7.30 a.m. to Crl.Appeal Nos. 920 of 2009, 1135 of 2009 and Crl.R.P. No.448 of 2012 -: 21 :- 10.15 a.m. on 18-11-2002 and prepared Ext.P2 inquest report. The inquest report mentions the names of all the accused. Ext. P20 FIR contained the names of only four accused. If Ext. P20 FIR was anti-timed as argued by the learned counsel for the appellants, it would have definitely contained the names of all the eight persons named in Ext. P2 inquest report. This itself would show that there was no manipulation of the FIR. This would further show that the argument of the learned counsel for the appellants that the FIR was anti-timed, does not hold good.
13. The learned counsel for the appellants relied on the decisions of the Apex Court in Ramkumar Pandey v. State of Madhya Pradesh (AIR 1975 SC 1026), Bhimappa Jinnappa Naganur v. State of Karnataka (AIR 1993 SC 1469) and Joseph @ Jose v. State of Kerala [(2003) 11 SCC 223] and argued that since PW1 did not mention in Ext. P1 F.I. Statement that PW2 and PW3 witnessed the occurrence, it has to be held that PW2 and PW3 are Crl.Appeal Nos. 920 of 2009, 1135 of 2009 and Crl.R.P. No.448 of 2012 -: 22 :- witnesses planted by the prosecution to speak in support of the prosecution case. In Ramkumar Pandey (supra), the first information contained the name of only one person as an eyewitness to the incident. The persons who saw the wrapping of chadar on the wound of the deceased as per the FIR also became the eye witness subsequently. In FIR in that case, it was not mentioned that the accused had stabbed the deceased. There was also omission to mention in the FIR regarding any injury inflicted on the deceased by the accused. In the said circumstances, the Apex Court observed that the non-mentioning of the names of the witnesses in the FIR was fatal to the prosecution on the facts of that case. In Bhimappa Ginnappa Naganur (supra), the complaint was given in writing and on the basis of the said written complaint, the FIR was registered. The said written complaint did not mention about the name of the eye-witnesses. On the facts of that case, the Court disbelieved the evidence of the eye-witnesses in the said case. In Joseph (supra), the name of the eye witness was Crl.Appeal Nos. 920 of 2009, 1135 of 2009 and Crl.R.P. No.448 of 2012 -: 23 :- not mentioned in the FIR. The eye-witness in the said case did not talk about the occurrence to anyone after the occurrence till the evening on the next day. Keeping silent for such a long period and not disclosing to the brothers of the deceased and others, who had come to the place next to his house where the deceased was lying injured,about the fact that he was an eye witness to the occurrence, created a serious doubt about the said witness being an eye-witness. In the said circumstances, the court did not believe the evidence of the said occurrence witness on the facts of the said case. A Division Bench of this Court in Sabukhan and Others v. State of Kerala (2014 KHC 758) held that the omission to mention the name of a witness in the first information statement cannot be a ground for rejection of the evidence tendered by a person who gave the F.I. Statement. In the case on hand, PW1 did not mention about the presence of PW2, PW3 and CW4 (not examined) when he had given Ext. P1 statement before the police. The evidence of PW2 and PW3 would show that Crl.Appeal Nos. 920 of 2009, 1135 of 2009 and Crl.R.P. No.448 of 2012 -: 24 :- after the RSS Sakha, PW2, PW3 and Chandran (CW4) proceeded to the house of Chiruthayi, who died on that day. The evidence of PW2 and PW3 would show that PW1 and deceased Shaji were proceeding 15-20 metres ahead of PW2 and PW3 after the Sakha. Therefore, it was natural that PW1 could not notice PW2 and PW3 moving towards the place of occurrence behind PW1. During the course of incident also, it was natural that the attention of PW1 was not diverted from the incident. Therefore, at that time also, PW1 could not notice the presence of PW2 and PW3, who were standing away from the place of occurrence viewing the occurrence. The evidence of PW1 to PW3 would show that immediately after the attack on deceased Shaji, A7 hurled a bomb at the road creating a dreadful situation there with sound and smoke. PW1 ran away from the scene. Therefore, PW1 had no occasion to notice the presence of PW2 and PW3 near to the scene of occurrence. In the said circumstances, it was only natural that PW1 could not mention in Ext.P1 statement about the Crl.Appeal Nos. 920 of 2009, 1135 of 2009 and Crl.R.P. No.448 of 2012 -: 25 :- presence of PW2 and PW3 near to the place of occurrence. PW1 was a 22 year old young man. He witnessed the brutal attack on his companion. On seeing the brutal attack, he ran away to his house. PW1 stated that in his house, PW1 and his mother were alone. In the nature of the incident, it was quite natural that PW1 kept away from the public and also from the police. Therefore, PW1 cannot be blamed for not giving necessary information to the police immediately. The evidence of PW30 would show that Ext. P1 statement was recorded by him at the residence of PW1. Ext. P2 inquest report was prepared by PW32 at 7.30 a.m on 18-11-2002. During the course of inquest, PW2 was questioned by PW32. Ext. P2 would show that PW2 was an eye-witness to the incident. Ext. P2 was received by the Court on 18-11-2002 itself. PW2 did not state that PW1 had any occasion to see the presence of PW2 and PW3 at the place of occurrence. There is absolutely no contradiction in this regard in the evidence of PW2 with the statement of PW2 recorded in Crl.Appeal Nos. 920 of 2009, 1135 of 2009 and Crl.R.P. No.448 of 2012 -: 26 :- Ext. P2. In view of the above reasons, the non-mentioning of the name of PW2 and PW3 in Ext. P1 FI statement cannot be given any significance at all. For the said reasons, the argument in this regard cannot be accepted.
14. The learned counsel for the appellants has argued that eventhough PW1 was present with deceased Shaji at the time of incident, PW1 did not sustain any injury in the incident and in the said circumstances, the only inference possible is that PW1 was not present along with deceased Shaji at the time of occurrence and consequently, his evidence cannot be accepted. The evidence of PW1 to PW3 would show that Vattappara Shaji (deceased) was a CPM worker and shortly before the incident, he joined RSS deserting CPM party. Thereafter, he formed RSS Sakha in that locality. He was helping a lot of people who worked for RSS. He attracted many persons to RSS. Therefore, CPM party had enmity towards deceased Shaji. This is proved to be the motive for the Crl.Appeal Nos. 920 of 2009, 1135 of 2009 and Crl.R.P. No.448 of 2012 -: 27 :- appellants to commit the murder of the deceased. Ext.P1 Statement also mentions about the motive for the incident. It is very much clear from the evidence of PW1 to PW3 and Ext.P1 Statement that the intention of the appellants was to commit the murder of deceased Shaji and not to inflict injuries on PW1. In the said circumstances, they did not incline to inflict any injury on PW1. In view of the above reasons, merely because PW1 did not sustain any injury in the incident, it cannot be said that PW1 was not present in the company of the deceased at the time of incident.
15. The evidence of PW19 and PW32 would show that there was nobody at the place of occurrence when PW19 and PW32 reached the place of occurrence. In the said circumstances, it was argued by the learned counsel for the appellants that if the evidence of PW19 and PW32 is believed, the evidence of PW2 and PW3 that they were present at the place of occurrence when the police party reached there, cannot be accepted. The learned counsel for Crl.Appeal Nos. 920 of 2009, 1135 of 2009 and Crl.R.P. No.448 of 2012 -: 28 :- the appellants also relied on the decisions of the Apex Court in Alil Mollah and Another v. State of W.B. [(1996) 5 SCC 369], Badam Singh v. State of M.P. [(2003) 12 SCC 792]; Shankarlal v. State of Rajasthan (AIR 2004 SC 3559) and Gopal singh and Others v. State of Madhya Pradesh [(2010) 6 SCC 407) and argued that the conduct of PW1 to PW3 in not taking the deceased to the hospital was not a normal conduct of a person and hence the presence of PW1 to PW3 at the place of occurrence is doubtful. In Alil Mollah (supra), the witness was an employee of the deceased. He was present when the deceased was assaulted by the accused. He stated that after committing the offence, the accused fled away. However, he did not raise any alarm when his master was being assaulted. He also did not go near to his employer even after the assailants had fled away. He also did not disclose to anybody at his house or in the village about what he had seen. Though he went to the brick field of the deceased in the morning on the following day where many of his co-employees were Crl.Appeal Nos. 920 of 2009, 1135 of 2009 and Crl.R.P. No.448 of 2012 -: 29 :- present, he admitted that he did not disclose the occurrence to anyone of them. In the said circumstances, it was held by the court that the conduct of that witness was unnatural and created an impression that he had not witnessed the occurrence. In Badam Singh (supra), the three eye-witnesses, who were forest officer and forest guards, started running from the scene of occurrence without even informing the matter to the nearest villagers or the villagers of the villages through which they passed. In the said circumstances, the Apex Court observed that the conduct of the said eye witnesses was not natural conduct. In Shankarlal (supra), eventhough the witness met so many persons after the incident, he did not inform anybody about the incident even when he reached the village, and met the wife of the person who had employed the deceased and it was for the first time he informed about the incident to Khyali Ram at the village square at about 4.50 p.m. On the facts of the case, the court found that the above said witness, namely, Sohan Singh was merely a Crl.Appeal Nos. 920 of 2009, 1135 of 2009 and Crl.R.P. No.448 of 2012 -: 30 :- chance witness whose presence at the place of incident was highly doubtful. In Gopal Singh (supra), the solitary eye-witness Feran Singh rushed to the village, where his father, brothers, cousins and the entire family had been present, from the scene after seeing the incident, but he did not tell them as to what happened. He had, in fact, hidden himself on the plea that he feared for his-own safety. The Court in the said circumstances, found that the evidence of conduct of Feran Singh was against the normal human behaviour and hence he could not be trustworthy. Facts of this case are different from the facts in the above cited decisions. In this case, the evidence of PW1 would show that after attacking the deceased, the accused hurled a bomb. When the bomb was hurled, PW1 ran away from the place of occurrence to his house due to fear and perplexity and thereafter, he did not come out of his house due to fear. PW1 was aged 22 years during the relevant period. On seeing the brutal attack on his companion, he ran away to his house and remained Crl.Appeal Nos. 920 of 2009, 1135 of 2009 and Crl.R.P. No.448 of 2012 -: 31 :- there due to fear till PW30 reached his house at 12 Night to record Ext. P1 statement. It is true that PW19 and PW32 stated that nobody was there at the place of occurrence when PW19 and PW32 reached the place of occurrence. The evidence of PW2 and PW3 would show that they had given water to Shaji (deceased) after the appellants left the place. However, it drained through the neck. Therefore, PW2 and PW3 thought that Shaji died. However, PW2 and PW3 attempted to get some vehicle to take Shaji to the hospital. But, they did not get any vehicle. Thereafter, police vehicles reached there from Kuthuparamba and the police took Shaji to the Government Hospital, Thalassery in their vehicle. Thereafter, PW2 and PW3 went to the Government Hospital, Thalassery in an autorickshaw along with CW4 Chandran. The evidence of PW19 and PW32 would show that the deceased Shaji was taken to the hospital by PW19. On that day, six incidents of more or less the same nature, including the incident in this case, occurred at or about the same time between two groups. Crl.Appeal Nos. 920 of 2009, 1135 of 2009 and Crl.R.P. No.448 of 2012 -: 32 :- In one incident, there was attack on the house of PW2 for which Crime No. 550 of 2002 was registered. In another incident, there was attack on a CPM worker namely Raman, for which Crime No. 555/2002 was registered. In the said case, PW2 was an accused. In another incident, the CPM party office was attacked and in that case also, PW2 was an accused. In another incident, the house of PW18 Savithri was attacked. In yet another incident, A5 was attacked by PW1 and PW3 and in connection with that case, a crime was registered against PW1, PW3 and others. The evidence of PW19 would show that PW32 told him that there were clashes and atrocities at Paduvilai. In all the above crimes, except this crime and the attack on the house of PW2, the RSS people were the accused. The police was searching for the persons involved in the said incidents. Admittedly, PW2 and PW3 belonged to one of the said factions. Therefore, it was only natural that PW2 and PW3 did not come forward when PW19 and PW32 reached the place of occurrence. Ext. P2 inquest report Crl.Appeal Nos. 920 of 2009, 1135 of 2009 and Crl.R.P. No.448 of 2012 -: 33 :- prepared by PW32 at 7.30 a.m. on 18-11-2002 mentions PW2 and PW3 as the occurrence witnesses. In view of the evidence discussed above, the conduct of PW1 to PW3 in not taking the deceased to the hospital can not be said to be unnatural conduct. From the above discussion, it is clear that merely because PW1 to PW3 did not come forward when police reached the place of occurrence, it cannot be said that they did not witness the incident.
16. It has been further argued by the learned counsel for the appellants that the evidence of PW19 would show that PW19 had to flash the torch to see the dead body and in the said circumstances, it is clear from the evidence of prosecution witness itself that there was no light at the place of occurrence and consequently, the evidence of PW1 to PW3 that they witnessed the occurrence in electric light cannot be believed. The evidence of PW19 would show that PW19 did not state that he had to flash the torch to see the dead body. PW19 Crl.Appeal Nos. 920 of 2009, 1135 of 2009 and Crl.R.P. No.448 of 2012 -: 34 :- stated that when PW19 and police party reached the place of occurrence, they found the body of a youngster beside the foundation on the side of the road. The further evidence of PW19 would show that the said body had injuries on his face, hands and legs. There was also bleeding. After seeing the body with bleeding and injuries on his face, hands, legs etc., PW19 flashed the torch and went near to the body. Then PW19 found that the body was having life. Therefore, PW19 and and the police party took him to the Government Hospital, Thalassery in the police jeep. It is very much clear from the evidence of PW19 that PW19 flashed the torch only for the purpose of closely watching the body. Thus, it is clear even from the evidence of PW19 that the body was visible with injuries even without flashing the torch. Therefore, the argument of the learned counsel for the appellant that PW19 had to flash the torch to see the body, indicating that there was no light at the place of occurrence, is unfounded.
17. It has been argued by the learned counsel for the Crl.Appeal Nos. 920 of 2009, 1135 of 2009 and Crl.R.P. No.448 of 2012 -: 35 :- appellants, relying on the decisions of the Apex court in Babu and Others v. State of Uttar pradesh (AIR 1983 SC
308) and Nain Singh and Another v. State of U.P. [(1991) 2 SCC 432], that there was conscious effort to shift the place of occurrence to a place in front of the house of PW18 Savithri at the time of preparation of Ext. P3 scene mahazar with a specific purpose of fixing the place of occurrence near to an electric light and in the said circumstances, the prosecution case has to be thrown out on that reason alone. In Babu (supra), the deadbody and blood were found near the field of Malkhan which was at a distance of more than a furlong from Ramkund Temple. The prosecution case in the initial stage was that the assault had been made near Ramkund temple. The witness Ajudhya stated that the incident was at the field of Malkhan. He further stated that Ramkund temple was also at that very same place. Kashiram also stated that he heard noise near Ramkund temple. The witnesses Arjuna and Kashiram stated that they saw the occurrence from Crl.Appeal Nos. 920 of 2009, 1135 of 2009 and Crl.R.P. No.448 of 2012 -: 36 :- near the Nallah, which was far away from the temple. A person standing at that Nallah could not see the fighting going on near the temple. The nature of injury sustained by the deceased would suggest that the injuries had been caused while the deceased was lying on the ground. On the facts of the said case, the Sessions Court observed that the place of occurrence was perhaps shifted to make it appear that the witnesses standing near the nallah could see the fighting. In view of the various circumstances mentioned in the judgment, the learned Sessions Judge opined that there was doubt on the prosecution case. Eventhough the said finding of the Sessions Court was reversed by the High Court, the Hon'ble Supreme Court restored the judgment of the trial Court setting aside the judgment of the High Court. In Nain Singh (supra), the place of occurrence was mentioned as "jungle village, Ganeshpur" in the first information report. PW1 in his cross-examination admitted that the murder took place in the jungle of village Bhandora and not in the jungle of Crl.Appeal Nos. 920 of 2009, 1135 of 2009 and Crl.R.P. No.448 of 2012 -: 37 :- village Ganeshpur. PW9 in that case also stated that the incident was at Bhandora and not at Ganeshpur. On the facts of that case, the court observed that the place of occurrence in that case was changed or not specifically fixed. The evidence adduced by the prosecution in that case fell short of the test of reliability and acceptability and in the said circumstances, the court found that it was highly unsafe to act upon it. The facts of the case on hand are different from the facts in the above cited decisions. In the case on hand, it was clearly stated in Ext.P1 FI Statement that PW18 Savithri, who was residing nearby, reached the place of occurrence on hearing the hue and cry of PW1 and deceased Shaji. It is clear from Ext. P1 statement that PW18 Savithiri was residing near to the place of occurrence. This aspect was corroborated by the evidence of PW2 and PW3 who were moving behind PW1 and the deceased. There is absolutely nothing on record to show that the incident occurred in front of the house of Ilachi Manoharan. It is true that the house of PW18 Crl.Appeal Nos. 920 of 2009, 1135 of 2009 and Crl.R.P. No.448 of 2012 -: 38 :- Savithri is not mentioned in Ext.P2 Inquest Report. The Apex Court in Madhu @ Madhuranatha and another v. State of Karnataka (AIR 2014 SCC 394) observed in paragraph 13 thus:-
"The object of the inquest proceeding is merely to ascertain whether a person has died under unnatural circumstances or an unnatural death and if so, what is the cause of death. More so, the inquest report is not a piece of substantive evidence and can be utilised only for contradicting the witnesses to the inquest examined during the trial. Neither the inquest report nor the post-mortem report can be termed as basic or substantive evidence and thus, any discrepancy occurring therein cannot be termed as fatal or suspicious circumstance."
In view of the above settled law, merely because Ext.P2 Inquest report did not mention about the house of PW18 Savithri, it cannot be said that the prosecution had shifted the place of occurrence subsequent to the preparation of Ext.P2 Inquest report, as contended by the appellants. The evidence of PW1 would show that when PW1 and deceased Shaji reached near the lane on the southern side of the house of Ilachi Manoharan, they found the accused persons Crl.Appeal Nos. 920 of 2009, 1135 of 2009 and Crl.R.P. No.448 of 2012 -: 39 :- standing at the lane. That lane was in front of the house of Ilachi Manoharan. The evidence of PW1 would further show that when the accused persons were found carrying weapons, PW1 and deceased Shaji walked fast towards the house of PW1. However, the accused chased PW1 and Shaji and encircled them when they reached in front of the house of PW18 Savithri. The evidence of PW2 and PW3 would also clearly show that even though the accused persons were found coming from the lane on the southern side of the house of Ilachi Manoharan, the incident occurred when PW1 and the deceased reached in front of the house of PW18 Savithri. The blood stains and the remnants of bomb could not be found in front of the house of Ilachi Manoharan. However, blood and the remnants of bomb were found in front of the house of PW18 Savithri as per Ext.P3 scene mahazar. In view of the above reasons, it cannot be said that the prosecution had shifted the place of occurrence as argued by the learned counsel for the appellants. The evidence of PW1 is that Crl.Appeal Nos. 920 of 2009, 1135 of 2009 and Crl.R.P. No.448 of 2012 -: 40 :- there was electric light in the house of PW18 Savithri and Street light of Mercury Lamp near to the place of occurrence. On the other side of the road, there was house of Surendran. There was also electric light in the house of Surendran. The evidence of PW1 would show that PW1 had seen the incident in the above light. The evidence of PW2 is that there was electric light in the house of Surendran and PW18 Savithri. There was also street light near to the place of incident. There was also moon light. The evidence of PW2 would show that PW2 could witness the incident in the above light. The evidence of PW3 would show that there was street light, moon light and also electric light from the house of PW18 Savithri and Surendran to witness the occurrence. PW3 could witness the incident and identify the accused with the aid of the said light. Ext. P3 scene mahazar would also show that there was street light near to the place of occurrence. It is seen from Ext. P4 scene plan that the house of Ilachi Manoharan is situated nearly 77 metres away from the Crl.Appeal Nos. 920 of 2009, 1135 of 2009 and Crl.R.P. No.448 of 2012 -: 41 :- place of occurrence and the house of Savithri is situated nearly 3.68 metres away from the place of occurrence. The electric post is situated nearly 63 metres away from the house of Ilachi Manoharan. Both PW1 and PW2 stated during cross-examination that there was electric light in the house of Ilachi Manoharan. The defence examined DW7 and marked Ext. D22 to show that Ilachi Manoharan obtained electric connection only on 19-3-2005. DW7 was the Senior Superintendent of Electrical Section, Kerala State Electricity Board, Vengad. He stated that the application attached to Ext. D22 was for electric connection in Building No. VI-479/A of Vengad Panchayat. The alphabet 'A' was seen given to the building number. The evidence of PW1 and PW2 would clearly show that the house of Illachi Manoharan had electric light during the period in question. From a conjoint reading of the evidence of PW1 and PW2 in the light of the evidence of DW7 and Ext. D22, the only inference possible is that Ext. D22 application pertains to electric connection in the name of Crl.Appeal Nos. 920 of 2009, 1135 of 2009 and Crl.R.P. No.448 of 2012 -: 42 :- Ilachi Manoharan in respect of the newly constructed portion of the already existing building of Ilachi Manoharan and not in respect of the original house of Ilachi Manoharan shown in Ext. P4 scene plan. Even otherwise, it is very difficult to believe that Ilachi Manoharan did not get electric connection till 19-3-2005 eventhough all other surrounding buildings had electric connection during the relevant period. PW18 Savithri is the mother of the 5th accused who did not support the prosecution case. PW18 Savithri stated that she was residing near to the house of Ilachi Manoharan. PW18 Savithri went to the extent of stating that there was no street light at the place of occurrence during the relevant period. However, even PW18 Savithri did not state that there was no electric light in the house of Ilachi Manoharan during the relevant period. The evidence of PW1 and PW2 would clearly show that there was electric light in the house of Ilachi Manoharan during the relevant period. In view of the above reasons, the evidence of DW7 Crl.Appeal Nos. 920 of 2009, 1135 of 2009 and Crl.R.P. No.448 of 2012 -: 43 :- and Ext. D22 cannot be accepted to hold that there was no electric connection in the house of Ilachi Manoharan during the relevant period. The Apex Curt in Jitsingh v. State of Punjab [(1976) 2 SCC 836] observed that from a short distance of 25 ft, the witnesses could unmistakably identify the assailant, who was fully known to them, even in moon night. The Apex Court in Jhagaru v. State [2009 Crl.L.J. 3913] observed that since the witnesses and the accused were known to each other, as they belonged to the same village, there could be no difficulty in identifying the accused at the time of incident even in a dim light. In the case on hand, since PW1 to PW3 and the appellants were known to each other, as they belonged to the same locality, there could be no difficulty in identifying the appellants at the time of incident even in dim light or moon light. However, the evidence of PW1 to PW3 would clearly establish that there was electric light even in the house of Ilachi Manoharan during the relevant period. The evidence of PW1 to PW3 coupled with Ext. P3 scene mahazar would Crl.Appeal Nos. 920 of 2009, 1135 of 2009 and Crl.R.P. No.448 of 2012 -: 44 :- further show that there was Street-light of mercury lamp nearly 63 metres away from the house of Ilachi Manoharan. The evidence on record as discussed above would further show that there was also moon light on the date of occurrence. In view of the above reasons, there would have been hardly any difficulty for the identification of the appellants even if the incident had occurred in front of the house of Ilachi Manoharan as contended by the defence. Therefore, there was hardly any reason for the prosecution to shift the place of occurrence. For the said reasons, the argument of the learned counsel for the appellants that there was no electric light at the house of Illachi Manoharan to witness the occurrence and hence the place of occurrence was shifted by the prosecution with the definite purpose of fixing the place of occurrence near to an electric light, cannot be accepted.
18. The learned counsel for the appellants relied on Exts. D3(a) and D16 and argued that PW2 was present in Crl.Appeal Nos. 920 of 2009, 1135 of 2009 and Crl.R.P. No.448 of 2012 -: 45 :- his house at the relevant time as per Exts. D3 and D16 and hence there was hardly any chance for PW2 to witness the incident. It has been further argued by the learned counsel for the appellants that in view of Ext.D5 contradiction in the statement of PW 2 recorded at the time of Ext.P2 inquest report, the evidence of PW 2 cannot be believed. It is true that PW2 stated during the time of Ext. P2 inquest that the bomb was hurled first before attacking the deceased with other weapons. However, PW2 stated before the Court that the bomb was hurled only after inflicting serious injuries on the deceased by the accused. Therefore, Ext. D5 contradiction in the statement of PW2 in Ext. P2 was marked and proved. Ext. P1 would also show that the bomb was hurled only after inflicting injuries on the deceased. PW1 and PW3 also stated that the bomb was hurled after inflicting injuries on the deceased. It is to be noted that PW2 had given statement immediately after witnessing the gruesome murder of the deceased. After the incident, PW2 went to the hospital Crl.Appeal Nos. 920 of 2009, 1135 of 2009 and Crl.R.P. No.448 of 2012 -: 46 :- along with PW3 after the deceased was shifted to the hospital. Even then, PW2 had stated about the incident in tune with the prosecution version in all material aspects. However, PW2 could not state the sequence events in the order. The evidence on record would show that the bomb was hurled. Ext.P26 report coupled with Ext.P3 scene mahazar would clearly show that the remnants of the bomb were obtained from the scene of occurrence. In the said circumstances, Ext. D5 cannot be said to be a serious contradiction affecting the core of the prosecution case as argued by the learned counsel for the appellants.
19. Ext. D16 is the FI R and Ext.D3 is the statement of PW2 recorded under section 161 Cr.P.C in Crime No. 550 of 2002 of Kuthuparamba Police Station. PW2 was a witness in the said case. The incident in that case was at 9 p.m. on the date of incident in this case as per Exts. D3 and D16. The said case relates to the attack on the house of PW2. PW2 stated before the police that at the time of incident in that case, he was in his house. However, he Crl.Appeal Nos. 920 of 2009, 1135 of 2009 and Crl.R.P. No.448 of 2012 -: 47 :- denied to have stated so before the police. Therefore, Ext. D3 (a) contradiction in his statement was marked and subsequently proved through PW29, who recorded the statement. PW29 admitted that he recorded Ext.D3 on 29- 12-2002. However, the statement of PW2 in the case on hand was recorded during the course of preparation of Ext.P2 inquest report on 18-11-2002, which was on the next day of the incident in this case. However, Ext.D3 was recorded only on 29-12-2002, which was after a period of nearly one month and 10 days from the date of incident. In the said circumstances, Ext.D3(a) cannot be given much significance. PW2 stated that the incident in Crime No. 550 of 2002 was immediately after the incident in the present case. It is in evidence that five incidents including the present incident had taken place in the same locality almost at the same time of the incident in this case. Nobody knows exactly as to which incident took place first. In one incident, there was attack on the house of PW2 for which Crime No. 550 of 2002 was registered. In other Crl.Appeal Nos. 920 of 2009, 1135 of 2009 and Crl.R.P. No.448 of 2012 -: 48 :- incident, there was attack on a CPM worker namely Raman, for which Crime No. 555/2002 was registered. In the said case, PW2 was an accused. In other incident, the CPM party office was attacked and in that case also, PW2 was an accused. In another incident, the house of PW18 Savithri was attacked. In yet another incident, A5 was attacked by PW1 and PW3 and in connection with that case, a crime was registered against PW1, PW3 and others. Ext. P2 inquest report was prepared by the police after conducting the inquest from 7.30 a.m. to 10.15 a.m.. The name of PW2 was mentioned as an occurrence witness in Ext. P2 inquest report. Ext. P2 was received by the court on 18-11-2002 itself. The evidence of PW2 and PW3 would show that both of them went to the hospital in an autorickshaw after the deceased was removed from the place of occurrence to the hospital by the police. The evidence of PW2 would further show that he remained there at the hospital even after learning about the death of the deceased. PW2 was present at the time of inquest. Crl.Appeal Nos. 920 of 2009, 1135 of 2009 and Crl.R.P. No.448 of 2012 -: 49 :- The house of PW2 is also not far away from the place of occurrence. The evidence of PW2 is found to be natural and convincing. In view of the above reasons, we find no reason to disbelieve the evidence of PW2 that he witnessed the occurrence in this case.
20. PW1 to PW3 stated that they witnessed the occurrence on their way to the house of Chiruthayi, who died on that day shortly before the incident. However, the appellants contended that there was no such death. To prove the same, the appellants produced Ext. P15 voters list, which contained Ext. P15 (a) entry, showing that Chiruthayi was alive even during the year 2008. PW31 was a person residing near to the locality where the incident in this case took place. PW31 stated that his aunt Chiruthayi was aged about 80 years at the time of her death. He further stated that the said Chiruthayi died on the date of incident in this case. PW31 further stated that the name of the daughter of the above said Chiruthayi is also Crl.Appeal Nos. 920 of 2009, 1135 of 2009 and Crl.R.P. No.448 of 2012 -: 50 :- Chiruthayi and she is aged about 57 years. It is clear from the evidence of PW31 and Ext.D15(a) that Ext.D15(a) relates to the daughter of Chiruthayi, who died on the date of incident in this case. From the above evidence, it is clear that the person namely, Chiruthayi, died on the date of incident in this case was the mother of the Chiruthayi referred to in Ext.D15(a). Therefore, the contention of the defence in this regard has no basis.
21. The learned counsel for the appellants has argued that even though PW32 did not direct PW30 to record the statement of PW1 as PW32 could not find any person to give information worth to record first information statement, the evidence of PW30 would show that he straight away went to the house of PW1 as directed by PW32 and recorded Ext.P1 F.I.Statement from PW1 and in the said circumstances, the evidence of PW30 and PW32 cannot be believed and consequently, the entire prosecution case has to be doubted. PW32 clearly stated Crl.Appeal Nos. 920 of 2009, 1135 of 2009 and Crl.R.P. No.448 of 2012 -: 51 :- that he came to know about the incident over telephone by about 9.15 p.m. and he reached the place of occurrence by 10 p.m. He enquired about the incident in the neighbourhood of the place of occurrence. However, he did not get sufficient information so as to record a F.I.R. Therefore, he intensified petrol duty to prevent recurrence of incidents and directed PW30, the Additional Sub Inspector of Police, to record the statement of eye witnesses. PW32 further stated that he had enquired about the incident, visiting one or two neighbouring houses. PW30 stated that he recorded the F.I. Statement of PW1 at the house of PW1 at 12 Night, as directed by PW32. To get the whereabouts of PW1, PW30 enquired at Paduvilavu Kavu. Paduvilavu Kavu is on the eastern side of the place of incident. It is clear from the conjoint reading of the evidence of PW30 and PW32 that PW32 directed PW30 to record the statement of persons who had knowledge about the incident. It is also clear from the evidence of PW30 that it was only after making enquiry near to the place of Crl.Appeal Nos. 920 of 2009, 1135 of 2009 and Crl.R.P. No.448 of 2012 -: 52 :- occurrence that he got information regarding the person who could furnish information about the incident. After getting information, he proceeded to the house of PW1 and recorded his statement. PW1 also admitted that his statement was recorded by PW30 at about 12 Night and it was only through PW30 that he came to know that the injured Shaji died. The evidence discussed above would make it clear that there is no contradiction or inconsistency in the evidence of PW30 with the evidence of PW32. For the said reason, the argument in this regard lacks merits.
22. The learned counsel for the appellants has further argued that PW1 to PW3 are interested and partisan witnesses, who maintain hostile animus against appellants and hence no reliance can be made on the testimony of the said witnesses to prove the prosecution case. It is true that PW1 to PW3 belonged to the same faction to which the deceased also belonged. In the said circumstances, the court will be vigilant and cautious in Crl.Appeal Nos. 920 of 2009, 1135 of 2009 and Crl.R.P. No.448 of 2012 -: 53 :- accepting their testimony and their testimony must be tested with the touch-stone of trustworthiness and credibility, before acting upon their evidence. Having meticulously gone through the evidence of PW1 to PW3, we are satisfied that their evidence regarding the incident leading to the sustaining of injury by deceased Shaji is natural, creditworthy and hence acceptable. Apart from minor discrepancies and contradictions, there is no material contradiction or major omission amounting to contradiction in their evidence to render their evidence incredible. In Sukh Dev Singh and Another v. State of Punjab [(2010) 13 SCC 656], the Apex court held that mere marginal variations in the statements of witnesses cannot be dubbed as improvements as the same may be elaborations of the statement made by the witness earlier and the omissions which amount to contradictions in material particulars, affecting the root of the prosecution case, alone render the testimony of the witness liable to be discredited. The Apex Court in State of U.P. v. Naresh Crl.Appeal Nos. 920 of 2009, 1135 of 2009 and Crl.R.P. No.448 of 2012 -: 54 :- and Others (Supra) held in para 30 thus:-
"In all criminal cases, normal discrepancies are bound to occur in the depositions of witnesses due to normal errors of observation, namely, errors of memory due to lapse of time or due to mental disposition such as shock and horror at the time of occurrence. Where the omissions amount to a contradiction, creating a serious doubt about the truthfulness of the witness and other witnesses also make material improvement while deposing in the court, such evidence cannot be safe to rely upon. However, minor contradictions inconsistencies, embellishments or improvements on trivial matters which do not affect the core of the prosecution case, should not be made a ground on which the evidence can be rejected in its entirety. The court has to form its opinion about the credibility of the witness and record a finding as to whether his deposition inspires confidence".
The Apex Court in Bakshish Singh v. State of Punjab and Another [(2013) 12 SCC 187] held that the minor inconsistent versions or discrepancies do not demolish the entire prosecution story, if it is otherwise found to be credit worthy, and only such omissions which amount to contradictions in material particulars can be used to discredit the testimony of the witness. The Apex Court in Crl.Appeal Nos. 920 of 2009, 1135 of 2009 and Crl.R.P. No.448 of 2012 -: 55 :- State of Karnataka v. K. Yarappa Reddy (AIR 2000 SC 185) relied upon the observations in Rana Pratap v. State of Haryana (AIR 1983 SC 680) and Appabhai v. State of Gujrat (AIR 1988 SC 696) and held in paragraph 26 thus:-
"Criminal courts should not expect a set reaction from any eye-witness on seeing an incident like murder. If five persons witness one incident there could be five different types of reactions from each of them. It is neither a tutored impact nor a structured reaction with the eye-witness can make. It is fallacious to suggest that PW11 would have done this or that on seeing the incident. Unless the reaction demonstrated by an eye- witness is so improbable or so inconceivable from any human being pitted in such a situation it is unfair to dub his reactions as unnatural".
It is now settled that minor contradictions, inconsistencies, embellishments or improvements on trivial matters without affecting the core of the prosecution should not be made as a ground to reject the evidence in its entirety. In the depositions of witnesses, there are always normal discrepancies, however honest and truthful they may be. Crl.Appeal Nos. 920 of 2009, 1135 of 2009 and Crl.R.P. No.448 of 2012 -: 56 :- The normal discrepancies are bound to occur in the depositions of witnesses due to normal errors of observation, namely, errors of memory due to lapse of time or due to mental disposition such as shock and horror at the time of occurrence and the like. Material discrepancies are those which are not normal and not expected from a normal person. We have scrutinized the evidence PW1 to PW3 meticulously and we are fully convinced that in spite of minor omissions and contradictions, the evidence of PW1 to PW3 remains within the zone of credibility. In the said circumstances, the argument of the learned counsel for the appellants that since PW1 to PW3 are interested witnesses, their evidence has to be discarded on that reason alone, cannot be accepted. The evidence of PW 1 to PW3 is fully corroborated by the medical evidence of PW16 and Ext. P12 post mortem certificate.
23. There is also evidence regarding the discovery of MO1, MO1(a) , MO2 and MO3 to connect the appellants Crl.Appeal Nos. 920 of 2009, 1135 of 2009 and Crl.R.P. No.448 of 2012 -: 57 :- with the commission of the offence. PW32 was the Investigating Officer in this case. PW32 stated that when arrested and questioned, the first accused had given Ext. P9(a) disclosure statement and pursuant to Ext.P9(a) disclosure statement and as led by the first accused, MO1
(a) billhook was discovered from the shed of the house of the first accused at 2 p.m. on 1-12-2002 as per Ext. P9 mahazar. PW32 further stated that when arrested and questioned, the third accused had given Ext.P7(a) disclosure statement and pursuant to Ext. P7 (a) and as led by the third accused, MO1 billhook was discovered from the shed of the house of A3 at 3.15 p.m. on 1-12-2002 as per Ext. P7 mahazar. The further evidence of PW32 is that MO2 axe was discovered from the heap of the firewood on the western side of the house of the second accused at 4 p.m. on 1-12-2002 on the basis of Ext.P10(a) disclosure statement given by the second accused in custody and as led by the second accused. The further evidence of PW32 is that MO3 dagger was discovered from a place under a Crl.Appeal Nos. 920 of 2009, 1135 of 2009 and Crl.R.P. No.448 of 2012 -: 58 :- concrete slab put across Pazhassi Project Canal at 5.15 p.m. on 1-12-2002 as per Ext.P8 mahazar at the instance of the 5th accused pursuant to Ext.P8(a) disclosure statement given by the 5th accused and as led by him. The learned counsel for the appellants has argued that there was no authorship of concealment in any of the disclosure statements and in the said circumstances, the recovery of MO1series to MO3 effected in this case cannot be said to be a discovery under Section 27 of the Evidence Act. In view of the decision of the Full Bench of this court in Ajayan v. State of Kerala (2011(1) KLT 8) that the authorship of concealment is not sine qua non to make an information received from a person accused of an offence and is in custody of a police officer, admissible under Section 27 of the Evidence Act, the argument in this regard cannot be accepted.
24. The learned counsel for the appellants has argued that since the measurements in respect of MO1, Crl.Appeal Nos. 920 of 2009, 1135 of 2009 and Crl.R.P. No.448 of 2012 -: 59 :- MO1(a) and MO3 shown in the mahazars are different from their measurements in Ext. P26 report of the Forensic Science Laboratory, the prosecution case with the regard to the discovery of MO1, MO1(a) and MO3 is doubtful and consequently, the appellants are entitled to benefit of doubt. The evidence of PW32 coupled with Ext. P9 mahazar would show that the length of MO1 (a) is 59cm and its width is 4.5 cm. However, Ext. P26 report would show that its width is 5cm and its length is the same. In the same way, the length of MO1 is 66 cm. and its width is 5.25 cm. as per the evidence of PW32 and Ext.P7 mahazar. Ext. P26 report would show that the length of MO1 is 65.5cm. and its width is 5.5cm. So also, the length of MO3 is 33.5cm. and its width is 4cm. as per the evidence of PW32 coupled with Ext. P8 mahazar. Ext. P26 would show that the length of MO3 is 34 and its width is 4.5 c.m. The above discussion would show that the difference in dimension is only marginal when the weapons were measured by the expert. It is common knowledge that Crl.Appeal Nos. 920 of 2009, 1135 of 2009 and Crl.R.P. No.448 of 2012 -: 60 :- experts use standard equipments for taking the measurements accurately . That is not the case when the measurement is taken by a non-expert in the filed. There can be no doubt that PW32 is not an expert in taking measurements. Therefore, it was only natural that there occurred marginal difference in the measurement when the weapons were measured by PW32 and the scientific expert. That apart, all the weapons including MO1, MO1 (a) and MO3 were correctly identified by PW1 to PW3. In view of the above reasons, the abovesaid marginal difference in the dimension of MO1, MO1(a) and MO3 does not have any significance at all. Consequently, the argument in this regard does not hold good. The discovery of MO1, MO1(a), MO2 and MO3 is a strong piece of evidence connecting the appellant with the commission of the offence.
25. Ext. P26 report of the Forensic Science Laboratory would show that MO1, MO1(a), MO2 and MO3 Crl.Appeal Nos. 920 of 2009, 1135 of 2009 and Crl.R.P. No.448 of 2012 -: 61 :- contained human blood. The learned counsel for the appellants has further argued that even though MO1 series to MO3 were blood stained as per Ext. P26 report, the evidence of PW32 coupled with the relevant mahazars would show that MO1 series to MO3 did not contain blood and hence it cannot be said that the weapons discovered by PW32 as per Exts. P7 to P10 mahazars were the weapons examined in the laboratory and consequently, the appellants are entitled to benefit of doubt. It is clear from the evidence of PW32 that PW32 did not state that the above said weapons did not contain blood. The evidence of PW32 is that he did not specifically record in the recovery mahazars about the traces of blood stains on the weapons which were seized. Exts. P7 to P10 also do not mention that the above said weapons did not contain blood. It is true that Exts. P7 to P10 is silent with regard to the bloodstains on the weapons. On a conjoint reading of the evidence of PW32 and Exts.P7 to P10 mahazars, it is clear that PW32 did not specifically mention in the above said Crl.Appeal Nos. 920 of 2009, 1135 of 2009 and Crl.R.P. No.448 of 2012 -: 62 :- mahazars about the presence of blood stains on MO1 series to MO3. However, Ext. P26 report of the Forensic Science Laboratory would clearly show that MO1 series to MO3 were stained with human blood. MO1 series to MO3 had been correctly identified by PW1 to PW3, who witnessed the occurrence. In view of the above reasons, the omission on the part of PW32 to specifically mention about the bloodstains on the above weapons, cannot be given much importance. Ext. P26 report of the Forensic Science Laboratory would clearly show that MO1 series to MO3 contained human blood. The presence of human blood on the above said weapons fastens the culpability of the appellants. The evidence of PW16 is that the injuries noted in Ext.P12 post-mortem certificate could be caused with MO1series to MO3. Thus, the evidence of PW1 to PW3 with regard to the injuries sustained by the deceased is corroborated by the medical evidence of PW16 and Ext.P12 post-mortem certificate, which is further corroborated by the evidence of PW32 regarding the Crl.Appeal Nos. 920 of 2009, 1135 of 2009 and Crl.R.P. No.448 of 2012 -: 63 :- discovery of blood stained MO1series to MO3.
26. It has been argued by the learned counsel for the appellants that even though criminal conspiracy was alleged in the charge, the court below disbelieved the charge of criminal conspiracy and in the said circumstances, the entire prosecution case has to be thrown out. It is true that there was allegation that in furtherance of the conspiracy of accused Nos.1 to 9 under the leadership of the 9th accused at the house of the 4th accused in the evening on 17.11.2002 for murdering deceased Shaji, the accused Nos.1 to 8 committed the murder of the deceased at about 9.30 p.m. on 17.11.2002. The court below found that the prosecution could not establish the criminal conspiracy in this case. The prosecution case was that the conspiracy was at the house of the 4th accused in the evening on 17.11.2002. The prosecution examined PW9 and PW31 to prove the conspiracy. They supported the prosecution version and Crl.Appeal Nos. 920 of 2009, 1135 of 2009 and Crl.R.P. No.448 of 2012 -: 64 :- stated that the 9th accused was seen going to the house of the 4th accused. They also stated that accused Nos.1 to 3 and 5 to 8 were also found going to the house of the 4th accused. After some time, accused Nos.4 and 9 came out. While going back, the 9th accused told the 4th accused that the thing had to be materialised. Then the 4th accused replied that the thing could be materialised. The court below disbelieved the evidence of PW9 and PW31 branding it as 'artificial', as normally, the conspiracy would not be hatched in an open place audible to others. The court below correctly observed that if at all PW9 and PW31 had overheard any such conversation between accused Nos.4 and 9, it could not be certain that the reference to their talk was relating to a plan to kill deceased Shaji. The evidence of DW1 is that the 9th accused was attending a meeting of Karshaka Sangham from 7 p.m. to 8 p.m. on 17.11.2002 at a place Ooripally in Payyannur. DW2 proved Ext.D19 Minutes of the Meeting held on 16.11.2002 and 17.11.2002. Ext.D19 was written by DW9, who was a member of Kerala Crl.Appeal Nos. 920 of 2009, 1135 of 2009 and Crl.R.P. No.448 of 2012 -: 65 :- Karshaka Sangham. DW3 also stated that the 9th accused participated in the above said meeting. DW4 stated that the 9th accused went to Payyannur at 7.30 a.m. on 17.11.2002 and came back at 10 p.m. on the same day after attending the meeting. DW10 was the Sub Editor of Desabhimani. He proved Ext.D17 Newspaper dated 18.11.2002. Ext.D17(a) is the relevant entry regarding the meeting, which would show that the 9th accused took part in the said meeting. The evidence of DW1 to DW4, DW9 and DW10 would show that the 9th accused participated in the meeting of Karshaka Sangham held in between 7 p.m. and 8 p.m. on 17.11.2002 at Payyannur. The evidence discussed above would show that the contention of the accused, that the 9th accused was not available at the place to enter into the criminal conspiracy at the residence of the 4th accused in the evening on 17-11-2002, is probable and hence it has to be held that the prosecution could not establish that there was conspiracy by accused Nos.1 to 9 at the house of the 4th accused in the evening on Crl.Appeal Nos. 920 of 2009, 1135 of 2009 and Crl.R.P. No.448 of 2012 -: 66 :- 17.11.2002 under the leadership of the 9th accused, as alleged by the prosecution. Since there was no acceptable evidence as correctly held by the court below to find that there was criminal conspiracy on 17.11.2002 among accused Nos.1 to 9 to murder deceased Shaji, the court below correctly acquitted accused Nos.1 to 9 of the charge of criminal conspiracy. Having meticulously scrutinized the evidence on record, we find no reason to reverse the judgment of the court below acquitting accused Nos.1 to 9 under Section 120B I.P.C. The court below acquitted the accused under Section 120B I.P.C. on the reason that there was no convincing evidence to prove the conspiracy. In the said circumstances, merely because the court below acquitted accused Nos.1 to 9 for the offence under Section 120B I.P.C., it cannot be said that the accused is entitled to acquittal in respect of other offences as well, particularly when there is convincing evidence to prove the other offences.
Crl.Appeal Nos. 920 of 2009, 1135 of 2009 and Crl.R.P. No.448 of 2012 -: 67 :-
27. In this case, the evidence on record would show that accused Nos.1 to 8 came together and encircled PW1 and the deceased. Thereafter, they brutally attacked the deceased. The accused carried weapons with them. After the incident, they had gone together. In such a situation, the sharing of common intention by accused Nos.1 to 8 is proved. For common object, it is not necessary that there should be prior concert in the sense of a meeting of the members of the unlawful assembly. The common object may form on the spur of the moment. It is enough if the common object is adopted by all the members and is shared by all of them. In this case, the evidence discussed above would clearly prove that accused Nos.1 to 8 shared common object in committing the murder of deceased Shaji as correctly held by the court below. The evidence of PW1 to PW3 would prove that the 7th accused hurled a bomb and created a dreadful situation in that locality after inflicting fatal injuries on the deceased. Therefore, the court below correctly convicted the 7th accused under the Crl.Appeal Nos. 920 of 2009, 1135 of 2009 and Crl.R.P. No.448 of 2012 -: 68 :- Explosive Substances Act as well. Having re-appreciated the evidence, we are fully convinced that the conviction and sentence passed by the court below in this case do not warrant any interference by this court. We are further satisfied that the judgment of the court below acquitting the 9th accused for the offence under Section 120B I.P.C. also does not warrant any interference by this court.
In the result, these appeals and the revision petition stand dismissed.
Sd/-K.T. SANKARAN,
JUDGE
Sd/- B. SUDHEENDRA KUMAR,
JUDGE
ani/dixi /truecopy/
P.S. ToJudge
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