Kerala High Court
Jaison vs State Of Kerala Through Circle ... on 6 December, 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
THURSDAY, THE 6TH DAY OF DECEMBER 2012/15TH AGRAHAYANA 1934
CRL.A.No. 870 of 2011 ( )
-------------------------
SC.363/2008 of I ADDL.SESSIONS COURT, ERNAKULAM
APPELLANT(S)/ACCUSED NO.1::
--------------------------
JAISON, S/O.ANTONY,
CHEMMANAM VEETIL, UDAYAMPEROOR KARA
MANAKKUNNAM VILLAGE (THEKKE VALIYAPARAMPATHU
VEETIL, CHEMMUNATHU KARA, VAIKKOM TALUK).
BY ADVS.SRI.SOORAJ T.ELENJICKAL
SRI.K.NIRMALAN
RESPONDENT(S)/COMPLAINANT::
---------------------------
STATE OF KERALA THROUGH CIRCLE INSPECTOR
OF POLICE, HILL PALACE, REPRESENTED BY
PUBLIC PROSECUTOR, HIGH COURT OF KERALA.
BY PUBLIC PROSECUTOR SRI.K.K.RAJEEV
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 06-12-2012,
ALONG WITH CRA.870/11 & 1434/11THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
M.SASIDHARAN NAMBIAR & C.T.RAVIKUMAR,JJ.
-----------------------------------------------------
CRL.A.NOs.870/11, 871/11 & 1434/11
----------------------------------------------------
Dated 6th December, 2012
JUDGMENT
Sasidharan Nambiar,J.
The sole accused in S.C.No.363 of 2008 on the file of the Additional Sessions Judge, Ernakulam is the appellant in Crl.Appeal No.870 of 2011. The first accused in S.C.No.465 of 2008 on the file of the same court is the appellant in Crl.Appeal No.1434 of 2011. Second accused therein is the appellant in Crl.Appeal No.871 of 2011. They were respectively the accused 1, 4 and 6 in crime No.137 of 2006 of Hill Palace Police Station, Tripunithura. As presence of the appellants in Crl.Appeal No.871 of 2011 and Crl.Appeal No.1434 of 2011 and accused No.9 could not be procured, the case as against accused 1, 2, 3, 5, 7, 8, 10 and 11 were CRA 870, 871 & 1434/11 2 committed to Sessions Court by Additional Chief Judicial Magistrate, Ernakulam in C.P.16 of 2006 splitting up the case against accused 1, 4, 6 and 9. That case was taken on file by Sessions Court as S.C.No.436 of 2006. While so, the presence of accused No.9 could be procured and his case was separately committed in C.P.25 of 2006 which was taken on file as S.C.No.518 of 2006. The learned Sessions Judge clubbed both the cases together and tried in S.C.No.436 of 2006. While so, the first accused absconded and the case against him was split up and refiled as S.C.No.363 of 2008. Accused 2, 3, 5 and 7 to 11 were tried separately. By judgment dated 9.7.2008, accused 8, 10 and 11 were acquitted and the others were convicted in S.C.No.436 of 2006. Accused 2, 5 and 7 were convicted and sentenced for the offence under section 120B of Indian CRA 870, 871 & 1434/11 3 Penal Code. Second accused was convicted for the offence under section 302 and accused 3, 5, 7 and 9 were convicted for the offence under section 302 r/w section 149 IPC and accused 2, 3, 5, 7 and 9 were convicted for the offence under sections 143, 148 and section 449 r/w section 149 IPC, section 324 r/w section 149 IPC, section 326 r/w section 149 IPC, section 307 r/w section 149 IPC, section 427 r/w section 149 IPC and section 27(1) of Arms Act, section 3(a) and 4(a)(1) of Explosive Substances Act. While so, the presence of accused 4 and 6 were procured and their cases were committed to the Sessions Court by Additional Chief Judicial Magistrate in C.P.43 of 2008 on 12.12.2008 after the conviction in S.C.No.436 of 2006. Those cases were taken on file as S.C.No.465 of 2008. While so, the presence of first accused, the sole accused in CRA 870, 871 & 1434/11 4 S.C.No.363 of 2008 was also procured. The learned Sessions Judge, instead of clubbing the two cases together, tried them jointly. As a result, while recording the evidence, some confusion has arisen on the array of the accused, which could have been avoided if both the cases were clubbed together and evidence was recorded showing the accused as they figure in the crime. The convicted accused in S.C.No.436 of 2006 filed Crl.Appeal No.1677 of 2008 challenging the conviction. It was heard and disposed by separate judgment, as the evidence in S.C.No.363 of 2008 and S.C.No.465 of 2008 were separately recorded and the evidence in S.C.No.436 of 2006 cannot be looked into in these appeals. But as all the appeals relate to one crime, though evidence was recorded separately, these appeals were heard immediately after hearing Crl.A.No.1677 of 2008 CRA 870, 871 & 1434/11 5 and the judgments in all the appeals are pronounced separately, one after the other. For convenience sake parties are referred to as they figure in the crime unless otherwise specifically mentioned.
2. The prosecution case is that PW2 Ajeesh and his father Rajappan were close to the family of deceased Vidyadharan who was murdered by a group under the leadership of the first accused. It is the case that Vidyadharan was opposing the drug trade of the first accused and his group and due to that enmity, Vidyadharan was kidnapped and killed. It is admitted that subsequent to the conviction in S.C.436 of 2006 and before the evidence in S.C.No.363 and 465 of 2008 were recorded, the sessions case relating to the murder of Vidyadharan was disposed and the accused therein including the first accused were CRA 870, 871 & 1434/11 6 convicted. It is also submitted that the appeal filed against the said conviction is pending. Prosecution case is that because of the assistance given by PW2 Ajeesh and his father Rajappan to the family of Vidyadharan and the investigation of that murder case, the first accused along with the remaining accused hatched a conspiracy to commit murder of PW2 in the house belonging to PW30 Raveendran and taken on rent under Ext.P26 rent deed and all the 11 accused formed an unlawful assembly with the common object of murdering PW2 and travelled in Qualis van bearing fake registration No.KL 7 AY/ 8491, which bears the real registration No.KL-13 H 6036 belonging to PW29 Ajith and entrusted by him to PW28 Rajeev and obtained on rent after submitting Ext.P12 driving licence of the first accused and Ext.P13 signed blank cheque of the first CRA 870, 871 & 1434/11 7 accused drawn in the savings bank account opened by the first accused, reached Udayamperoor Kochupalli on the morning of 6.3.2006 at about 10.40 a.m and parked the van on the side of Palli road. PW2 had opened his video shop by name 'Kalalaya Videos' by 10 a.m.on that fateful day. Deceased Kapil, a friend of PW2 reached the shop to invite PW2 for the obsequies of his father who died some days earlier. While PW2 and deceased Kapil were chatting inside the video shop, PW1 Jaimon who is their common friend also reached there. Later, Siju, who was not examined in this case, also reached there and joined them. By about 10.45 a.m., first accused, along with five other members of the unlawful assembly, armed with deadly weapons like sword, Koduwal, hand tool and iron rod smashed the glass door of the video shop and trespassed into the video shop. CRA 870, 871 & 1434/11 8 Finding Kapil, PW1 and Siju inside the video shop, they pushed them out of the room and started attacking PW2 with deadly weapons. Finding it, Kapil tried to enter into the video shop so as to intervene or assist PW2. First accused, finding it directed the other accused, to stab and murder Kapil. Second accused stabbed Kapil on his abdomen with the hand tool and inflicted the fatal injury. Kapil holding the injured part with his hand ran towards west and finally entered the house of Rajappan and fell on the floor. The members of the unlawful assembly who trespassed into the shop by that time inflicted injuries on PW2. Sustaining injuries PW2 ran out of the shop towards the west. He was chased by the accused and inflicted injuries with the deadly weapons. Sustaining the injuries, PW2 fell under the guava tree in the property of Thankappan. PW13 CRA 870, 871 & 1434/11 9 Joy, who is the neighbour of PW14 Kala, the mother of PW2, hearing the cry, proceeded towards the front side of her house and witnessed the attack against PW2. When PW13 cried, PW14 the mother of PW2, rushed near to the scene and she witnessed the first accused inflicting injuries on PW2 with MO1 sword. The members of the unlawful assembly hurled country made bombs on the video shop of PW2 and grocery shop of Rajappan and caused damages. Thereafter, all the accused left the scene in the silver coloured Qualis Van parked on the side of the Palli road. While the Qualis Van was proceeding, it dashed against Sharanya Bus where PW27 Salu was working as the cleaner which was coming from the opposite direction causing damages to the bumper and the indicator of the van. First accused informed PW28 about the accident and PW28 informed PW29 and both of CRA 870, 871 & 1434/11 10 them proceeded to Palakkad where the qualis van was kept and thereafter entrusted the vehicle to a workshop at Thrissur and got it repaired and paid the charges evidenced by Ext.P60 receipt. PW26 Girish a police constable and neighbour of PW2, who was on leave on 6.3.2006, hearing the sound of the explosion of bomb from the shop of PW2 reached there and found the injured PW2. He along with Rajappan the father of PW2 who also reached there, took PW2 to Medical Center, Ernakulam. PW39 Dr.Belraj examined him and prepared Ext.P35 wound certificate. As the condition of PW2 was serious, PW39 referred him to Specialist Hospital, Ernakulam. PW2 was taken to Specialist Hospital. PW42 Dr.Vidhyatharan examined PW2 and prepared Ext.P39 wound certificate and admitted him as an inpatient and treated him. In the meanwhile, information CRA 870, 871 & 1434/11 11 was received at the Control Room, Ernakulam at about 10.55 a.m. about the incident and the flying squad with PW6 ASI reached the spot and took the injured Kapil to RCM Hospital, Tripunithura. The doctor, on examination, declared him dead. PW1 who reached Medical Centre, Ernakulam while PW2 was taken there on getting information that Kapil is already dead, reached Hill Palace Police Station, Tripunithura and furnished Ext.P1 FI statement. PW41 the Sub Inspector recorded Ext.P1 FI Statement and based on Ext.P1, registered crime No.137 of 2006 of the Hill Palace Police Station under Ext.P1(a) First Information Report. PW43 the Circle Inspector of Police was informed and he took over the investigation, reached the scene of occurrence and made arrangements to guard the scene. PW43 reached the RCM Hospital at 12.45 p.m. and CRA 870, 871 & 1434/11 12 conducted the inquest and prepared Ext.P4 inquest report in the presence of PWs 7 and 8 and MOs 4 and 5 dresses found on the body were seized. PW43 submitted the necessary requisition for autopsy. PW43 thereafter proceeded to the scene of occurrence and prepared Ext.P5 scene mahazar in the presence of PW9. From the scene of occurrence, PW43 collected MO8, MO8(a) chappals of Kapil, MO11 chappals of PW2, MO29, MO30 chappals, MO31 glass pieces, MO32 wooden pieces and MO37 iron rod. PW23 Dr.Abraham Daniel conducted the autopsy on the body of Kapil and prepared Ext.P18 postmortem certificate stating that death was caused by the stab injury involving aorta. PW23 collected samples of viscera and blood and sent for chemcal analysis. He collected blood stained gauze and finger nails of Kapil. They were recovered by PW43 under CRA 870, 871 & 1434/11 13 Ext.P40 mahazar. PW43 got the presence of PW34, the scientific assistant and got examined the scene of occurrence and collected the articles shown in Ext.P28. 8 items were collected from the video shop and 3 items from the shop of Rajappan (MOs 14 to MO 24). They were entrusted to the investigating officer and later produced before the court. On 7.3.2006, PW43 got examined the scene of occurrence by PW24 the Sub Inspector attached to Ernakulam SBCID Bomb detection and disposal squad. PW24 recovered two unexploded bombs from grocery shop of Rajappan which was entrusted to PW43 along with Ext.P19 certificate. Later, PW24 diffused them and prepared Ext.P20 certificate. When Rajappan produced MO6 and MO7 dresses worn by PW2 at the time of the incident, PW43 seized them under Ext.P10 mahazar. PW43 arrested accused No.10 on 18.3.2006 and submitted CRA 870, 871 & 1434/11 14 Ext.P41 report implicating him also as one of the accused. On the information furnished by him, under Ext.P8 mahazar, MO12 sticker purchased by the first accused from PW33 was seized. While so, PW43 got information from Goa that the accused 1 to 5, 7 and 8 were arrested by Goa Police. PW43 along with the police party reached Goa. As the Sub Inspector who arrested the accused informed that MO13 series, the four mobile phones, found in their possession at the time were seized, PW43 under Ext.P17 mahazar seized them. PW43 obtained custody of accused 1 to 5, 7 and 8 and were proceeding to Kerala in two vehicles. When they reached near Mozhappilangat railway bridge, where its construction work was in progress, under the guise of passing urine, accused 1 to 3 got out of the vehicle and escaped from the police custody. Crime No.49 CRA 870, 871 & 1434/11 15 of 2006 by Edakkadu police station was registered under section 225 of IPC on that incident. Station House Officer, Edakkad submitted Ext.P42 report before the committal court. PW43 returned to Ernakulam along with accused 5, 7 and 8. On questioning the accused No.5, on the information furnished, PW43 recovered MO36 chopper under Ext.P43 mahazar. Under Ext.P44 mahazar, PW43 recovered MO37 iron rod, on the information furnished by accused No.7. Getting information that accused 1 to 3 were hiding in a plantation at Kalady, PW43 reached there and arrested them on 29.3.2006. On the information furnished by 1st accused, under Ext.P6 mahazar, MO1 sword was recovered from the building at Muvattupuzha belonging to PW3 Marykutty Thomas, which was taken on rent by him under Ext.P2 rent deed. On the information furnished by the second CRA 870, 871 & 1434/11 16 accused, under Ext.P7 recovery mahazar, MO2 hand tool was recovered. On the information furnished by third accused, under Ext.P48 mahazar, MO38 chopper was recovered. Under Ext.P23 mahazar, PW43 seized Ext.P26 rent deed executed by accused No.8 in favour of PW30 Raveendran, PW32 Ousepachan being the broker. As it was disclosed on investigation that criminal conspiracy was hatched in that building obtained on rent, PW43 prepared Ext.P23 scene mahazar of the said house. PW43 on the information collected, under Ext.P11 mahazar, seized Ext.P12 driving licence and P13 blank signed cheque from PW28 Rajeev. When PW29 produced the qualis van, under Ext.P22 mahazar PW43 seized it. PW43 got the qualis van examined by PW34 from the police station. PW34 collected MOs 25 and 26 portion of the rexin cover of driver's seat and portion of CRA 870, 871 & 1434/11 17 rubber beeding on preparing Ext.P32 list and produced them in court. As presence of the accused 4, 6 and 9 could not be procured after completing the investigation, PW43 laid final report against the other accused, before the Additional Chief Judicial Magistrate. It was taken cognizance in C.P.16 of 2006. It was committed to Sessions Court and taken on file as S.C.No.436 of 2006. Later, accused No.9 was arrested and produced. His case was committed in C.P.No.25 of 2006 and taken on file as S.C.No.518 of 2006. On 11.5.2008, PW43 arrested accused No.4 finding that he is the Kannan referred to by PW28. On the information furnished by accused No.4, under Ext.P34 mahazar recovered MO9 sword. PW43 arrested accused No.6 on the same day. On the information furnished by the said accused, under Ext.P33 mahazar, MO10 iron rod was CRA 870, 871 & 1434/11 18 recovered. PW43 furnished Ext.P54 report showing the full addresses of accused 4 and 6. PW43 then laid final report before the Additional Chief Judicial Magistrate against accused 4 and 6. It was taken cognizance in C.P.43 of 2008. Though the case against the first accused was committed along with other accused in C.P.16 of 2006, and those accused were tried in S.C 436 of 2006, the first accused jumped bail and absconded and therefore, his case was split up and pending before Sessions Court as S.C.No.363 of 2008. The Additional Chief Judicial Magistrate committed the case against accused 4 and 6 in C.P.43 of 2008. The learned Sessions Judge took the case on file as S.C.No.465 of 2008 and made over for trial to Additional Sessions Court. While so, first accused, the sole accused in S.C.363 of 2008, was arrested and CRA 870, 871 & 1434/11 19 produced before the Sessions Court. Learned Additional Sessions Judge framed charges separately for the offences under section 143, 147, 148, 120B, 324, 326, 307, 302, 427, 201 of IPC read with section 149 and section 27 of Arms Act and sections 3 and 4 of the Explosive Substances Act. When charges were read over and explained, all the accused pleaded not guilty. The accused were defended by counsel of their choice.
3. Prosecution examined 43 witnesses and marked 77 exhibits and identified 39 material objects. At the time of cross- examination of the prosecution witnesses, Exts.D1 and D2 portions of the statements of PW5 and PW28 recorded under section 161 Cr.P.C and Exts.D3 to D5 were got marked by the defence. After closing the prosecution CRA 870, 871 & 1434/11 20 evidence, the accused were questioned under section 313 Cr.P.C. After denying the incriminating evidence put to him, first accused contended that he is innocent and Circle Inspector of Tripunithura took him in custody on 7.3.2006 and was kept in an unknown place and later, took him to RCM Hospital and thereafter got him remanded. His statement was not recorded. He was not at the scene of occurrence and he did not know the other accused and he saw them for the first time while in jail. The 4th accused after denying the incriminating evidence contended that he was arrested in May 2008 by Palakkad police and was taken to different police stations and handed over to the Circle Inspector of Police, Kundara and after falsely implicating him in this case, news was given to TV and print media who published his photographs. Because of CRA 870, 871 & 1434/11 21 political influence due to a dispute with his wife and her father, he was falsely implicated. He did not know PW28 Rajeev earlier. He has no acquaintance with first accused or the other accused. Accused No.6 after denying the incriminating evidence contended that he was arrested from Ettumanoor in 2008 and he was falsely implicated in the case. His name is Suresh Mohan and not Suresh.
4. Learned Additional Sessions Judge finding that there is evidence to connect the accused with the offences alleged, called upon the appellants to enter on their evidence and adduce evidence as provided under section 232 of Cr.P.C. Accused No.4 then got marked Exts.D6 to 8 and examined DW1. After closing the prosecution evidence, on evaluating the evidence, learned Additional Sessions Judge CRA 870, 871 & 1434/11 22 found that the appellants along with the convicted accused in S.C.No.465 of 2008, formed an unlawful assembly, with the common object of murdering PW2 Ajeesh and in prosecution of the common object procured qualis van KL 13 H 6036 belonging to PW29, and entrusted to PW28, on rent after furnishing Ext.P12 driving licence and Ext.P13 signed cheque leaf as security. Armed with deadly weapons like sword, choppers, hand tool, iron rods, they reached near the video shop of PW2 on the morning of 6.3.2006 in that qualis van, with fabricated registration No.KL-7 AY 8491. The learned Additional Sessions Judge also found that the first accused along with the other accused formed an unlawful assembly, trespassed into the video shop by smashing the glass door of the shop and pushed PW1 and deceased Kapil out of the video shop and started attacking PW2 with deadly CRA 870, 871 & 1434/11 23 weapons. It was found that deceased Kapil, finding PW2 being attacked, tried to enter the video shop. Then as commanded by the first accused, the second accused inflicted the fatal injury on the abdomen of Kapil. Kapil ran to the house of Rajappan and fell inside the house and breathed his last. Though Kapil was taken to the RCM Hospital, Tripunithura, he was declared dead. Relying on the evidence of PW23 and Ext.P18 postmortem certificate, it was found that Kapil died due to the stab injury sustained on his abdomen. The learned Additional Sessions Judge based on the evidence of PWs 39 and 42 and Exts.P35 and 39 wound certificates found that PW2 sustained grievous injuries and those injuries were inflicted by the members of the unlawful assembly, including the appellants as proved by the evidence of PWs 1, 2, 12 and 14. The learned Additional CRA 870, 871 & 1434/11 24 Sessions Judge also relied on the evidence of PWs 28 and 29 to hold that appellants reached the scene of occurrence in a silver coloured qualis van spoken to by PWs 1 and 2, which was taken on rent from PW28. Relying on the evidence of PW28 and PW29 and Exts.P12 and P13 and the recovery of MO1 sword under Ext.P6 recovery mahazar, it was held that MO1 was recovered on the information furnished by first accused and MO9 on the information furnished by accused No.4 under Ext.P34 and MO10 under Ext.P33 mahazar on the information furnished by accused No.6. It was also found that the building belonging to PW30 Raveendran was taken on rent by accused No.8 and accused 1 and 5 were frequent visitors of the house. It was also found that a criminal conspiracy was hatched in that house by the appellants and first accused. As qualis van was obtained by the first CRA 870, 871 & 1434/11 25 accused, with the assistance of accused No.4, who was known to PW28, it was found that accused No.4 was also a party to the criminal conspiracy. It was therefore, found that accused 1, 4 and 6 are guilty of the offence under section 120B read with section 149 IPC. They were convicted and sentenced to imprisonment for life for the said offence. The learned Sessions Judge also found that the injuries inflicted on PW2, in furtherance of the common object to murder him and found accused 1, 4 and 6 were also members of the unlawful assembly. They were found guilty for the offence under section 307 r/w section 149 IPC. They were convicted and sentenced to imprisonment for life and a fine of Rs.25,000/- and in default, rigorous imprisonment for one year. It was also found that the second accused, a member of the unlawful assembly CRA 870, 871 & 1434/11 26 inflicted the injury on deceased Kapil, when he tried to intervene and when the first accused commanded the second accused to stab him to death and therefore, appellants are guilty of the offence under section 302 read with section 149 IPC. They were convicted and sentenced to imprisonment for life and a fine of Rs.1,00,000/- each and in default, rigorous imprisonment for one year for the offence under section 302 r/w section 149 IPC. Finding that the members of the unlawful assembly caused damages to the video shop and the grocery shop of Rajappan, the father of PW2, it was found that the appellants being members of the unlawful assembly are guilty of the offence under section 449 IPC r/w section 149. They were convicted and sentenced to rigorous imprisonment for 4 years and a fine of Rs.5,000/- each and in default, rigorous CRA 870, 871 & 1434/11 27 imprisonment for 3 months for that offence. Finding that members of unlawful assembly trespassed into the video shop, appellants were found guilty for the offence under section 427 r/w section 149 IPC and were sentenced to rigorous imprisonment for one year. Finding that members of the unlawful assembly inflicted hurt on PW2 with dangerous weapons and also caused grievous hurt, the appellants were convicted for the offences under sections 324 r/w section 149 and 326 r/w section 149. They were sentenced to rigorous imprisonment for 6 months each and three years and a fine of Rs.5000/- and in default, rigorous imprisonment for 6 months respectively for the said offences. Finding that appellants being the members of the unlawful assembly, committed rioting and were armed with deadly weapons, they were found guilty under section 143 and CRA 870, 871 & 1434/11 28 148 of IPC and were sentenced to rigorous imprisonment for 6 months each and one year each respectively. Ext.P74 report received from the Forensic Science Laboratory with the evidence of PWs 1, 2, 12, PW14 and PW24 and PW34 prove that the members of the unlawful assembly used explosive substances which were thrown at the video shop and the grocery shop causing damages. It was found that the accused being the members of the unlawful assembly committed the offence under section 3A and 4(a)
(i) of the Explosive Substance Act. They were sentenced to rigorous imprisonment for 10 years each and a fine of Rs.10,000/- each and rigorous imprisonment for three years and a fine of Rs.5,000/- respectively. Finding that appellants being members of the unlawful assembly committed the offence under section 27 (1) of the Arms Act, they were convicted and CRA 870, 871 & 1434/11 29 sentenced to rigorous imprisonment for three years each and a fine of Rs.5,000/- each and in default, rigorous imprisonment for three months each. The learned Sessions Judge granted set off under section 428 Cr.P.C, subject to the orders passed by the Government. It was also provided that on realisation of the fine, Rs.2 lakhs shall be paid to PW2 as compensation and Rs.2 lakhs to the legal heirs of Kapil as provided under section 357 (1) of Cr.P.C. The appeals are filed challenging the conviction and the sentence.
5. Learned counsel appearing for the first accused (appellant in Crl.A.No.870 of 2011) argued that the learned Sessions Judge did not properly appreciate the evidence. It was argued that the motive is the alleged enmity of first accused against PW2 and his father on CRA 870, 871 & 1434/11 30 account of murder of Vidhyadaran and when either PW2 or his father, was not a prosecution witness in Vidhyadaran murder case, there cannot be a motive to murder PW2 on account of the said case. The learned counsel argued that when prosecution has no case that there was any attack against any of the prosecution witnesses in Vidyadaran murder case, the motive alleged can only be false. Learned counsel argued that though PW2 is the injured, his evidence cannot be relied on. It was argued that if PW2 was being attacked from the video shop by five persons armed with deadly weapons, he could not have looked anywhere else and would only try to avoid the attack and hence, he could not have witnessed what transpired outside the shop including the attack on Kapil or PW1 and Kapil being pushed out of the video shop and therefore, it is clear that PW2 deposed facts CRA 870, 871 & 1434/11 31 which he did not witness and therefore, he is not a trustworthy witness. It was also argued that PW2 deposed the entire incident including the qualis van which was parked on side of the road and three of the accused standing there and also claimed that he had witnessed the accused leaving in the qualis van and that too, while laying on the lap of his mother and in such circumstances, the evidence of PW2 cannot be relied on. The learned counsel argued that the evidence of PW1 is also not reliable and PW1 could not have witnessed what transpired to Kapil and at the same time, witnessed the attack on PW2 from inside the shop. It is also argued that PW1 has given a graphic description of the entire incident claiming to have witnessed, it which is not humanly possible and in such circumstances, the evidence of PW1 is also not reliable. The learned counsel also argued that CRA 870, 871 & 1434/11 32 as per the evidence of PWs 1 and 2, Kapil sustained injury while he attempted to get into the video shop and Ext.P74 report of the Forensic Science Laboratory establish that O group blood which was the blood group of Kapil was found inside the video shop and that does not tally with the evidence of PWs 1 and 2. The learned counsel also argued that the evidence of PW12 and PW14 cannot be relied on because according to PW12, she found PW2 being attacked under the guava tree in front of her house and as per the prosecution case, the guava tree is near to the house of Thankappan which is on the northern side of the video shop, while the house of PW12 is behind the video shop on the southern side and therefore, her evidence that she witnessed the attack on PW2 or identified the assailants cannot be believed. The learned counsel also argued that CRA 870, 871 & 1434/11 33 the evidence show that the property of Thankappan was enclosed by a compound wall and the way leading from the northern road, is to the property of Thankappan and the guava tree where PW2 was lying sustaining the injury is in the said property of Thankappan and therefore, the evidence of PW12 can never be believed. Learned counsel also argued that the evidence of PW12 cannot be believed, evidence of PW14 also cannot be believed. It was argued that even if PW14 had rushed to the scene hearing the cry of PW12, it could only be subsequent to the incident and in that case, PW14 could not have the opportunity to witness the incident and therefore, she could not have identified any of the assailants and therefore, her evidence is also valueless. Learned counsel relying on the decision of the Supreme Court in Sajjan Singh v. State of Madhya Pradesh (AIR CRA 870, 871 & 1434/11 34 1998 SC 2756), argued that to appreciate the evidence of PWs 1, 2, 12 and 14, court has to reconstruct the evidence based on their evidence and on such reconstruction, if it is found that there is no possibility for PWs 1, 2, 12 and 14 to witness the incident as claimed by them, their evidence cannot be relied on. Relying on the decision of the Supreme Court in State of Uttar Pradesh v. Farid Khan and Ors (JT 2004 8 SCC 322), it was argued that the evidence of PW2 establish that he and his father were involved in several criminal cases and subsequent to the incident, swords were recovered from the house of Rajappan and in such circumstances, the evidence of PW2 is to be evaluated with sufficient caution and he can never be believed. Relying on the decision of the Supreme Court in Rai Sandeep v. State of CRA 870, 871 & 1434/11 35 NCTof Delhi (AIR 2012 SCC 3157), it was argued that on proper appreciation of the evidence, it is clear that the evidence tendered by PW2, though injured is not of sterilic quality and in such circumstances, his evidence can never be relied on to convict the appellants. Learned counsel also argued that Ext.D3 remand report with the evidence of PW43 establish that the recovery allegedly made on the information furnished by first accused on 29.3.2006 at 7.30 p.m. under Ext.P6 could never be relied on, especially when the independent attesting witness to Ext.P6 mahazar was not examined. It was submitted that evidence of PW10 show that he did not witness the first accused taking or handing over MO1 sword and instead, his evidence show that it was taken by the police constable. Reliance was also placed on the decision in Peerappa v. Karnataka (2005 6 SCC CRA 870, 871 & 1434/11 36
358). It was argued that the qualis van was got examined by PW34 much after the incident and therefore, the materials collected from the qualis van were stage managed and hence based on Ext.P74 report, it cannot be found that the said qualis van was used for commission of the offences. Learned counsel also argued that though prosecution would allege that first accused handed over Ext.P12 driving licence and Ext.P13 cheque to PW28, Ext.P12 is only a photocopy and it was not produced by the first accused before PW28 as alleged and was procured by the investigating agency to falsely implicate the accused. It was also argued that though PW35 was examined to prove that Ext.P13 cheque was issued by the first accused in the post office savings bank account opened by him, Ext.P13 does not show that it was the cheque issued in the said account opened in the name CRA 870, 871 & 1434/11 37 of the first accused and therefore, based on Exts.P12 and P13 or the evidence of PWs 28 and 29, it cannot be found that the first accused procured the qualis van and used the same for commission of the offence. Learned counsel also argued that though PW27 the cleaner of the Sharanya bus was examined, there is no material to prove that there was an accident involving the qualis van and therefore, based on the oral evidence of PW27, it cannot be found that the accused travelled in the qualis van on the day of incident. The learned counsel argued that there is no evidence to connect the first accused with the murder of Kapil or the injuries sustained by PW2 as the evidence of the occular witnesses cannot be relied on and MO1 was not recovered on the information furnished by first accused and in such circumstances, conviction of the first accused CRA 870, 871 & 1434/11 38 is not sustainable.
6. Learned counsel appearing for accused No.4 argued that, in the final report originally submitted by PW43 after investigation, accused No.4 was not implicated and instead, accused No.4 is shown as Kannan and accused No.4 is Prajeesh and he has no name by Kannan. It was argued that accused No.4 was arrested only on 11.5.2008 and he was implicated only thereafter based on the fabricated evidence and the evidence of PW28 against accused No.4 should not have been relied on. The learned counsel argued that when PWs 1, 2, 12 and 14 had no previous acquaintance with accused No.4 and no test identification parade was conducted, identification of accused No.4 from the witness box is valueless and hence based on the CRA 870, 871 & 1434/11 39 identification, accused No.4 cannot be found guilty. Reliance was placed on the decision in Ravi v. State (2007 Crl.L.J 2740), Shaikh Umar Ahmed Shaikh v. State of Maharashtra [(1998) 6 SCC 103], Subash v. State of U.P (1987 Crl.L.J
991) and D. Gopalakrishnan v. Sadanand Naik (AIR 2004 SC 4965). Learned counsel argued that MO9 was allegedly recovered two years after the incident and if MO9 was concealed under the earth for two years, it should have completely rusted and would not have been found fresh as described in Ext.P34 mahazar and it is therefore clear that MO9 was a weapon which was kept there for the purpose of recovery to falsely implicate accused No.4 and therefore, based on the recovery also, accused No.4 cannot be convicted. Learned counsel also challenged the evidence of ocular witnesses on the same CRA 870, 871 & 1434/11 40 grounds put forth by the first accused and submitted that in any case, on the evidence, it cannot be found that accused No.4 was a party to the conspiracy or was a member of the unlawful assembly or participated in the attack and therefore, his conviction is not sustainable.
7. Learned counsel appearing for accused No.6 also reiterated the submissions already pressed on behalf of accused No.1 and submitted that accused No.6 was implicated two years after the incident and he was falsely implicated. It was also pointed out that in the original final report submitted by PW43, accused No.6 was shown as Unni and it was after his arrest, it was alleged that appellant is Suresh @ Vady Suresh and accused No.6 is Suresh Mohan and not Suresh and when there was no CRA 870, 871 & 1434/11 41 previous acquaintance of accused No.6 with any of the eye witnesses, based on their identification from the witness box, it cannot be found that accused No.6 was a member of the unlawful assembly or participated in the attack and therefore, his conviction is also not sustainable. The learned counsel also argued that though MO10 was allegedly recovered under Ext.P33, based on the information furnished by accused No.6, the evidence of PW37 and Ext.P33 mahazar does not support the prosecution case that recovery was made at the instance of accused No.6. Learned counsel relying on the text "Forensic Science in Criminal Investigation and Trials" page 1075, wherein under the sub heading "Drying", it is stated that "the blood evidence in criminal investigation is always in the form dried stains, temperature, humidity, quantity of CRA 870, 871 & 1434/11 42 blood, surface bearing the stain and atmospheric conditions including rain and wind would accelerate the drying" and argued that in such a case, the origin of the blood, could not be determined after two years and when MO10 was recovered only on 11.5.2008 and it was exposed to rain and sun Ext.P74 report shows the origin of the blood, it is clear that MO10 was subsequently placed there and it was recovered and therefore, based on the recovery, the accused No.6 cannot be convicted. Learned counsel also argued that the court charge does not show the name of Unni and accused No.6 was only shown as Suresh @ Vady Suresh and not Unni and it is clear that, later, instead of Unni, accused No.6 was falsely implicated.
8. Learned Public Prosecutor submitted that the fact that first accused was originally CRA 870, 871 & 1434/11 43 residing near Kochupally spoken to by PWs 1 and 2 was not disputed and even when the first accused was questioned under section 313 Cr.P.C, this aspect was not disputed. It is therefore argued that evidence of PWs 1, 2 and 12 that first accused was known to them previously cannot be disputed and in fact, it was not disputed at the time of their cross- examination and identification of first accused by PWs 1, 2 and 12 can only be believed. It was also argued that when PW2 is the injured, he is the most competent person to identify the assailants and even though no test identification parade was conducted to test his capacity to identify the assailants, when the figures of the assailants would be got imprinted in the mind of the injured, there is no reason to disbelieve the evidence of PW2 on their identification of accused 4 and 6 also CRA 870, 871 & 1434/11 44 and the learned Sessions Judge rightly relied on their evidence to fix the identity of the assailants. The learned Public prosecutor also argued that PW1 and PW12 witnessed the gruesome attack in their presence and therefore, figures of the assailants would be got imprinted in their minds also and in such circumstances, even though the investigating officer failed to hold a test identification parade, there is no reason to disbelieve their identification, when the identification by the witness in court is the substantive evidence. It was argued that evidence of PWs 1, 2 and 4 establish that all the appellants were also members of the unlawful assembly. Learned Public Prosecutor also argued that when PW14 is the mother of PW2 the injured, there is no reason to disbelieve her evidence that she witnessed her son being attacked by the first accused with a sword, CRA 870, 871 & 1434/11 45 especially when she did not venture to give any false evidence that she witnessed or identified the other accused and in such circumstances, there is no reason to disbelieve the evidence of PWs 1, 2, 12 and 14. Learned counsel argued that the evidence of PWs 1 and 2 corroborated by the evidence of PW12 and PW14 establish that all the accused including the appellants herein formed the unlawful assembly with the common object of murdering PW2 and armed with deadly weapons like sword, choppers, hand tool and iron rods reached near the video shop of PW2 on the morning of 6.3.2006 in a qualis van and the members of the unlawful assembly including the first accused, trespassed into the video shop by smashing the glass door and pushed PW1 and deceased Kapil out of the video shop and started attacking PW2. Learned Public Prosecutor pointed out that though the original CRA 870, 871 & 1434/11 46 common object was only to commit murder of PW2, it is clear that each member of the unlawful assembly who were armed with deadly weapons knew that it is likely to cause the death of any person who intervenes or causes obstruction to the attack on PW2. Even after pushing Kapil out of the video shop when Kapil attempted to enter the room and so as to cause obstruction, first accused commanded the other members of the unlawful assembly to stab Kapil and cause his death and it is thereafter, second accused, another member of the unlawful assembly, inflicted the fatal injury on his abdomen and caused his death and therefore, it is clear that the fatal injury inflicted on deceased Kapil was immediately connected to the common object and was in prosecution of the common object and therefore, each and every member of the unlawful assembly is liable for the said CRA 870, 871 & 1434/11 47 murder and therefore, conviction of the appellants for the offence under section 302 with the aid of section 149 IPC is perfectly sustainable. Learned Public Prosecutor also argued that the evidence of PWs 39 and 42 the doctors with Exts.P35 and 39 wound certificates establish that grievous injuries were inflicted on the body of PW2 including a stab injury on back of chest, a vital part and even the arteries were cut and but for the immediate medical assistance received, death of PW2 would have been caused and in such circumstances, it is clear that the injuries inflicted on PW2 was with the intention to cause his death. The evidence of PWs 1, 2, 12 and 14 establish that the injuries were inflicted on PW2 by the members of the unlawful assembly and hence, the appellants were rightly convicted for the offence under section 307 r/w CRA 870, 871 & 1434/11 48 section 149 IPC. Learned counsel also argued that preparation for the commission of the offence and the criminal conspiracy is clear from the fact that the house belonging to PW30 was taken on rent in the name of 8th accused, under Ext.P26 rent receipt and first accused used to visit there along with other accused as proved by the evidence of PW30 and subsequently, along with accused No.4, first accused approached PWs 28 and 29 and obtained a qualis van on rent and the evidence of PWs 28 and 29 with Exts.P12 and P13 establish that the silver coloured qualis van belonging to PW29 was taken on rent by the first accused and on 5.3.2006, first accused informed PW28 that he has to retain the vehicle for some more days due to the marriage of his sister and on 6.3.2006 that vehicle was used for reaching the scene of occurrence and also to escape from CRA 870, 871 & 1434/11 49 there, after exhibiting a fake registration number. It was argued that the evidence of PW33 establish that the first accused purchased stickers 0 to 9 and alphabets A to Z and using that alphabets and figures, MO12 sticker which was later recovered under Ext.P8 mahazar was created and it establishes the criminal conspiracy and preparation for the commission of the offences and first accused was an active participant in the criminal conspiracy as well as the commission of offence. Learned Public Prosecutor also argued that the evidence of PW3 with Ext.P2 rent deed, which was not challenged while cross-examining PW3, would establish that first accused had taken the house belonging to PW3 on rent situated at Muvattupuzha and was residing therein and MO1 was later recovered under Ext.P6 mahazar from the said house and Ext.P74, report of the Forensic Science CRA 870, 871 & 1434/11 50 Laboratory establish that MO1 was used for inflicting the injury on PW2 and in such circumstances, conviction of the first accused is perfectly legal. Learned Public Prosecutor also argued that the evidence of PW28 establish that the first accused approached PW3 along with accused No.4, who was known by name Kannan and there is no reason to disbelieve the evidence of PW28 or his identification of accused No.4 and PWs 1 and 2 also identified accused No.4 as one of the members of the unlawful assembly and from the recovery of MO9 after the arrest of accused No.9, it is clear that accused No.4 was also a member of the unlawful assembly who participated in the incident armed with deadly weapon and in such circumstances, his conviction is also perfectly legal. Learned Public Prosecutor argued that only on further investigation, it was found CRA 870, 871 & 1434/11 51 that accused No.6 Suresh was also known as Unni and also Vady Suresh and there is no reason to disbelieve the identification of accused No.6 by PWs 1 and 2 and in such circumstances, the participation of accused No.4 in the incident, being a member of the unlawful assembly is conclusively proved. Learned Public Prosecutor also argued that evidence of PW43 with Ext.P33 mahazar and recovery of MO10 with Ext.P74 report prove the said conclusion. In such circumstances, there is no reason to interfere with the conviction or the sentence.
9. In Crl.Appeal No.1677 of 2008 filed by accused 2, 3, 5, 7 and 9 challenging their conviction in S.C.No.436 of 2006, which was heard along with this appeal, the entire evidence on the unlawful assembly, the common object and the criminal conspiracy were CRA 870, 871 & 1434/11 52 discussed in detail. On a detailed analysis of the evidence, it was found in Crl.Appeal No.1677 of 2008 that PW2 was attacked and the grievous injuries were inflicted on PW2 by the members of the unlawful assembly and the common object was to cause his death. It was also found on the analysis of the evidence that injury was inflicted on Kapil which caused his death when he attempted to enter into the video shop, when some members of the unlawful assembly were attacking PW2 and the said injury inflicted on Kapil was immediately connected to the initial common object and in prosecution of the common object and prosecution did not succeed in establishing the criminal conspiracy. But, as the evidence relied on in SC.No.436 of 2006 cannot be relied on in these appeals as the appellants were tried separately and the evidence in that case alone can be CRA 870, 871 & 1434/11 53 looked into, it is necessary to consider evidence in this case, to enter a finding on the disputed questions.
10. The fact that PW2 Ajeesh sustained injuries and deceased Kapil sustained fatal injuries on 6/3/2006 at about 10.45 a.m, either inside the Video shop or its premises was not disputed at the time of recording the evidence. The evidence of PW26, a Police Constable and a neighbour is that he was on leave on 6/3/2006 and hearing the explosion sound of country bomb, he reached the scene of occurrence and found PW2 lying there sustaining injuries. Along with Rajappan, father of PW2, he took injured PW2 to Ernakulam Medical Centre, Palarivattom. This fact was not disputed. Evidence of PW6 attached to the Flying Squad that Control Room, Ernakulam received the information of the incident at CRA 870, 871 & 1434/11 54 about 10.55 a.m and they reached the scene of occurrence and found the injured Kapil lying in the house of Rajappan, and Kapil was taken to R.C.M Hospital, Tripunithura and on examination he was declared dead was also not disputed. Evidence of PW43 establish that after getting information of the registration of crime under Ext.P1(a) FIR, he reached R.C.M Hospital and prepared Ext.P4 inquest report and thereafter furnished requisition to conduct the autopsy. Evidence of PW23, the then Associate Professor of Medical College Hospital, Alappuzha establish that he conducted autopsy on the body of Kapil on 6/3/2006 between 5 and 6 p.m and prepared Ext.P18 postmortem certificate. Evidence of PW23 with Ext.P18 establish that deceased Kapil sustained the following ante mortem injuries.
1. Incised penetrating wound 3x1 CRA 870, 871 & 1434/11 55 cm obliquely placed on the left side of front of abdomen. Both ends were pointed. Upper inner end 1 cm outer to midline and 9.5 cm above umblicus in 1 0' clock position. The wound entered abdominal cavity, transfixed the stomach walls and terminated on the aorta and partially cut open the abdominal aorta. The wound was directed backwards, downwards and to the right for a minimum depth of 7 cm. Peritoneal cavity contained 1 litre of blood and retro peritoneal area contained large amount of blood.
2. 5 small contused abrasions over an area 25x8 cm involving front of right knee and front of upper two third of right leg.
3. Contused abrasion 5x5 cm on the front of left knee.
4. Abrasions 16x5 cm on the back of left forearm 10 cm above wrist.
Evidence of PW23 that the incised penetrating injury sustained on the abdomen, caused death of Kapil and that injury is sufficient in the ordinary course of nature to cause the death CRA 870, 871 & 1434/11 56 was not challenged. Evidence of PW23 with the description of the said injury establish that it entered the abdominal cavity, transfixed the stomach walls, and terminated on the aorta and partially cut open the abdominal aorta. In such circumstances, we have absolutely no hesitation to hold that death of Kapil was caused by the said penetrating injury sustained on the abdomen and that injury is sufficient in the ordinary course of nature to cause the death. Evidence of PW23 further establish that said injury could be inflicted with a weapon like MO2.
11. Evidence of PW26 establish that from the scene of occurrence PW2 was immediately taken to Ernakulam Medical Centre. Evidence of PW39, the doctor corroborated by Ext.P35 wound certificate establish that PW2 sustained the injuries recorded in Ext.P35 and CRA 870, 871 & 1434/11 57 considering the seriousness of the injuries PW2 was referred to Specialists Hospital, Ernakulam. Evidence of PW42 establish that PW2 was taken from Ernakulam Medical Center to Specialists Hospital, Ernakulam and PW42 examined PW2 and recorded the following details of the injuries noted in Ext.P39.
"Multiple incised wounds:-
Upper left limb:-
1. Incised wound 5x5 cm on medial aspect of (L) wrist with incomplete amputation, cutting ulnar nerve. Upper arm flexion tendon.
2. Incised wound lower 3rd of arm 3x3 cms cutting radial nerve.
3. Incised wound 3x3 cms on posterior aspect of palm.
4. Compound fracture (L) ulna.
Right upper limb:-
Incised wound 10x3 cms on upper right forearm medial aspect cutting radial artery, Brachoradialis CRA 870, 871 & 1434/11 58 muscle. Extensor carpi radialis muscle. Compound fracture radius(R) Left lower limb:
1. Incised wound 8x3 cms on anterior aspect of (L) thigh.
2. Incised wound 10x4 cms on lateral aspect of (L) knee with injury to lateral popliteal nerve.
3. Incised wound middle of leg 10x3 cms with exposed muscles.
4. Compound fracture both bone (L) leg.
Right lower limb:-
1. Incised wound 10x5 cms on anterior aspect of (R) thigh lower 3rd.
2. Incised wound 2x1 cm on medial side of (R) knee joint.
3. Incised wound 4x2 cms on anterior aspect of leg upper 3rd.
4. Injury wound 6x3 cms on lateral aspect of middle of leg
5. Incomplete amputation of 1st and second toe-second toe non viable.
Incised wound 2x1 cm on back."
CRA 870, 871 & 1434/11 59
12. Though it was argued by the appellants that the injuries sustained by PW2 were not on vital parts of the body and thereafter not inflicted to cause his death, Ext.P35 wound certificate shows that a stab injury was inflicted "on the back of the chest, on the left side at the level of 8-10 ribs having a dimension of 3.5x2.5 cm" and depth was not measured due to the nature of the injury. That injury was described in Ext.P39 only as "incised wound 2x1 cm on back". Even though the other injuries inflicted on both the limbs, it is clear from the evidence of PW39, PW42, Exts.P35 and P39 that the injury inflicted on the left wrist resulted in incomplete amputation and cutting of ulnar nerve. So also the incised wound inflicted on the third arm, resulted in cutting of radial nerve. The CRA 870, 871 & 1434/11 60 injury inflicted on upper right forearm resulted in cutting of radial artery and brachioradialis muscles in addition to the compound fracture of the radius. In such circumstances, it is absolutely clear that the injuries inflicted on PW2 resulted in cutting of radial nerve and radial artery. Hence if immediate medical attention was not rendered to PW2, his death would have been caused. It is clear that when one injury was inflicted on the upper left arm, four injuries each were inflicted on the upper left limb and left lower limb and five injuries were inflicted on the right lower limb. In such circumstances, it is absolutely clear that the intention in inflicting the injuries was not to cause grievous hurt and instead the intention is to cause the death of PW2. Fortunately, due to prompt medical assistance, the life of PW2 CRA 870, 871 & 1434/11 61 could be saved. If the medical assistance was provided and PW2 had succumbed to the injuries, which would have been the natural consequence, the offence would definitely come under Section 299 of Indian Penal Code. As provided under Explanation II to Section 299, in such a case, fact that by proper medical assistance life could have been saved, though not saved, would not have taken the offence out of the ambit of Section 299 of Indian Penal Code. If that be so, it is clear that the injuries inflicted on PW2 would attract the offence under Section 307 of Indian Penal Code as rightly found by the learned Sessions Judge.
13. Ernakulam-Vaikom road lies to East of the Video Shop of PW2 which is housed in the building belonging to Thankappan and taken on rent. House of Thankappan is situated to the north-west of the Video shop. Pally CRA 870, 871 & 1434/11 62 road, which runs east-west, starts from Ernakulam-Vaikom road which runs north-south, at Kochupally junction. It runs to the north of the Video Shop of PW2. A bye-road Puthukulangara colony road starts from the said Pally road and runs towards south. The house of Rajappan lies to the east of the said road. PW14 is the wife and PW2, the son of the said Rajappan. He is admittedly running a grocery shop attached to his residential house. House of PW12, Udaya lies to the east of the house of PW14 and it is to the south-west of the Video Shop. PW12 is a building tenant of Thankappan, who is also the landlord of the Video Shop building. The evidence of PW1 that he runs the Video Shop by name Kalalaya videos and he opened the shop on the morning of 6/3/2006 and at about 10 a.m deceased Kapil came to the Video Shop to invite him for the obsequies of CRA 870, 871 & 1434/11 63 his father who died some days earlier, was not disputed at the time of recording the evidence of PW2. In fact presence of Kapil with PW2 at the video shop is not in dispute. The evidence of PW1 corroborates the said evidence of PW2. The evidence of PW1 that he also was there in the Video shop while Kapil and PW2 was there as spoken to by PW1 was also not disputed. The evidence of PW2 shows that PW1 also reached the Video Shop and was there inside the shop and all of them were inside the shop along with deceased Kapil. The evidence of PW1 that he is a common friend of Kapil and PW2, was also not disputed. The evidence of PW1 and PW2 establish that by 10.30 a.m, Kapil and PW1 were there in the Video Shop and while so, Saji who was not examined in this case, also reached there and while they were talking, a group of assailants trespassed into the Video Shop by smashing the CRA 870, 871 & 1434/11 64 glass door and they were armed with deadly weapons. PW1 and PW2 deposed that first accused was one among the persons who trespassed and those assailants were armed with deadly weapons like sword, hand tool and koduval. As PW2 is the injured, he is the most competent witness to reveal as to what transpired in the shop on that fateful day at the crucial time and how he sustained the injuries. Being an injured, evidence of PW2 deserves due weight. Normally, an injured will not falsely implicate a third person and thereby allow the real culprit to escape. PW2 deposed that he had previous acquaintance with the first accused. The fact that first accused was earlier residing at Kochupally was admitted at the time of questioning under Section 313 of Code of Criminal Procedure and the evidence of PWs.1 and 2 on that aspect was also not challenged CRA 870, 871 & 1434/11 65 also. The evidence of PWs.1 and 2 that they knew the first accused much earlier to the date of the incident was also not challenged. In such circumstances, if PW1 and PW2 are natural witnesses and their evidence is trustworthy and credible, there is no reason to disbelieve them. PW2 is definitely a natural witness. PW1, as he was present at the Video shop, when the assailants trespassed into the shop room is also a natural witness. Though the evidence of PW2 was challenged contending that he could not have witnessed what transpired outside, including how and who inflicted the injuries on Kapil and as PW2 had ventured to disclose all the facts which transpired out of the shop room, till the accused left the scene of occurrence, his evidence is not trustworthy, we cannot agree. We have minutely analysed the evidence of PW2. Even if it is taken that PW2 CRA 870, 871 & 1434/11 66 could not have witnessed what transpired out of the Video shop, when the injuries were being inflicted on him from inside the shop, that is not a ground to disbelieve the evidence of PW2 as to what transpired inside the shop room after the assailants including the first accused trespassed into the shop room. So also, when PW2 after sustaining some of the injuries ran out of the Video Shop and ran towards the west and finally fell under Guava tree in the property of Thankappan, the evidence of PW2 that he was being chased by the group of assailants and injuries were being inflicted till he fell down under the Guava tree. His evidence is that even thereafter he was attacked by the first accused. On the evidence, we cannot say that PW2 is not a person who witnessed either the Qualis van parked on the side of the Pally road and three CRA 870, 871 & 1434/11 67 of the members of the assailants were standing near the Qualis van armed with weapons or those assailants also followed him and inflicted injuries. In such circumstances, we find no reason to disbelieve the evidence of PW2 as to how the incident originated and how he sustained injuries and who were the assailants as identified by him. The evidence of PW2 establish that he identified accused 1,4 and 6 also as members who participated in the attack. Though identification of accused 4 and 6 by PW2 was challenged on the ground that he had no previous acquaintance with accused 4 and 6 and as no test identification parade was conducted, we find that being the injured, when accused 4 and 6 also inflicted injuries on PW2 in broad day light, he is definitely capable of identifying the assailants including accused 4 and 6. When PW2 was CRA 870, 871 & 1434/11 68 subjected to such gruesome attack, the figures of assailants would be imprinted in the psyche of the injured and it will not be obliterated by passage of time. In such circumstances, we find it not necessary to get the assailants identified by a previous test identification parade to accept the identification of accused 4 and 6, as members of the unlawful assembly. As stated earlier, when the figures of assailants of his friends Kapil and PW2 would be got imprinted in the mind of PW1, we find no reason to doubt the genuineness or the capacity of PW1 also to identify the assailants of PW2 and Kapil being the members of the group who attacked and inflicted injuries.
14. The Honourable Supreme Court in Ramanbhai Naranbhai Patel v. State of Gujarat (2000 (1) SCC 358) considered the identification made by the wife of the victim CRA 870, 871 & 1434/11 69 who was murdered, even though no previous test identification parade was conducted by the Investigating Officer and held;
"......there is direct eyewitness account deposed to by the witness Dhirubhai Mohanbhai (brother of the deceased), witness Dhirubhai Premjibhai, PW 5, the tenant residing in the locality and Dilipbhai, the younger brother of the deceased. These witnesses have clearly deposed that they knew the accused. In fact, Dilipbhai was the person who was involved in the incident of the previous day wherein accused 1 and his accomplices had a quarrel with him and his supporters. That part of the evidence of these eye- witnesses had remained well sustained on record. So far as witness Niruben was concerned, she is the wife of the deceased Ramanbhai Mohanbhai. The accused mounted an assault on her husband in her bedroom and even though she might not be knowing the accused earlier, the faces of the accused mounting such an assault and which caused fatal injuries to her husband can easily be treated to have been imprinted in her mind and when she could identify these accused in the Court even in the absence of an identification parade, it could not be said that her deposition was unnatural or she was trying to falsely rope in the present accused by shielding the real assaulters of her husband." (Underline supplied) Following this decision a later Bench in CRA 870, 871 & 1434/11 70 Myladimmal Surendran v. State of Kerala (AIR 2010 SC 3281) finding that the widow of the deceased had witnessed the brutal murder of her husband in front of her in broad day light, observed;
"In such circumstances, it would be difficult, if not impossible, for her to forget the faces of the assailants. They would be imprinted on her psyche for ever. She had come face to face with the assailants. The murder was committed in broad day light. She would have no reason whatsoever to falsely implicate the appellants. In court, she had categorically deposed and identified each of the assailants. She has been absolutely truthful and straight forward. It has come in evidence that the accused (A1) lives very near to the house of the deceased. In such circumstances she could easily have said that she had known A1 earlier. There are no embellishments seen in her evidence throughout. The High Court, in our opinion, rightly rejected the submission that non holding of the test identification parade has caused any prejudice to the accused. The evidence of PW1 is fully supported/corroborated by the evidence of PW2 and PW3 on the point of second assault. " (underline supplied).
Identification of the accused in a test CRA 870, 871 & 1434/11 71 identification parade is not the substantive evidence. Substantive evidence is the identification in Court. Test identification parade serves dual purpose. Firstly, it would give assurance to the Investigating Officer that the investigation is proceeding in the correct direction. Secondly, it would give assurance to the subsequent identification by the witness from the witness box. But that does not mean that in all cases, if a previous test identification parade was not held, the evidence tendered from the witness box is value less. Identification of the appellants by PWs.1 and 2 is not, similar to an identification of an accused in a robbery or dacoity case where the witness could only have a glimpse of the accused. When a gruesome attack on their friends was mounted in their presence in broad day light and injuries were CRA 870, 871 & 1434/11 72 inflicted on PW2, naturally the figures of the assailants would be imprinted in the psyche of PW1 and PW2 as found in Myladimmal Surendran's case (supra). In such circumstances, we find that failure to hold a test identification parade in this case is not fatal and it will not make the identification of the appellants by Pws.1 and 2 value less as canvassed by the learned counsel.
15. Though the learned counsel argued that as it is proved that the blood group of Kapil is 'O' and Ext.P74 report establish that 'O' group blood was found inside the Video shop and as per the evidence of PW1 and PW2 Kapil had not entered the shop room after he was pulled out or sustained injuries from inside the shop room, and if so, 'O' group should not have been there inside the Video shop as the evidence of PWs.1 and 2 only CRA 870, 871 & 1434/11 73 show that Kapil had tried to get into the shop and it is at that time the second accused inflicted injuries on his abdomen. The evidence show that the exact place where Kapil was when he was stabbed on his abdomen is not clear. From the evidence of PWs.1 and 2 it is also possible that the injury was inflicted while Kapil was in the process of getting into the Video shop partly in and partly out and if that be so, possibility of presence of 'O' group blood inside the Video Shop from the injury sustained by Kapil cannot be ruled out. More over, when the assailants of Kapil had entered the Video Shop with the bloodstained weapon and participated in the attack on PW2, blood which was there in the weapon could also be dropped into the Video shop and if that be so, presence of `O' group blood which is proved to be the blood group of Kapil, could be CRA 870, 871 & 1434/11 74 explained. Hence on that ground also the evidence of PWs.1 and 2 cannot be doubted or discarded.
16. Evidence of PWs.1 and 2 would therefore, establish that accused 1, 4 and 6, the appellants herein were also members of group, who trespassed into the Video Shop and attacked PW2 and inflicted injuries on him and the fatal injury on Kapil and caused his death. The evidence conclusively establish that members of the said group numbered more than five. It is clear from the evidence that the common object of the said assembly was definitely not lawful and is coming within the ambit of Section 141 of Indian Penal Code. It is therefore, conclusively proved that all those persons including the appellants were members of unlawful assembly.
17. From the fact that members of CRA 870, 871 & 1434/11 75 the unlawful assembly were armed with lethal weapons like sword, chopper, hand tool and iron rods, the conduct of the members of unlawful assembly in committing trespass into the Video shop by smashing the glass door, inflicting injuries on PW2 and fatal injury on Kapil establish that the common object of unlawful assembly was committing the murder of PW2. Though the initial common object was not committing the murder of Kapil, it is clear from the evidence of PWs.1 and 2 that in spite of pushing PW1 and Kapil out of the Video Shop and when members of unlawful assembly started inflicting injury on PW2, Kapil tried to re- enter the Video Shop, evidently either to provide assistance to PW2 or to prevent the members of unlawful assembly from attacking PW2. It is at that moment injury was inflicted on the abdomen of Kapil by the second accused, CRA 870, 871 & 1434/11 76 who is proved to be one of the members of unlawful assembly. It is true that in Ext.P1 FI statement furnished by PW1 or in the statement of PWs.1 and 2 recorded under Section 161 of Code of Criminal Procedure, they had no case that first accused commanded the second accused to stab Kapil and cause his death. Even if it is taken that, that portion of the evidence of PWs.1 and 2 is an embellishment, as that was not originally disclosed when their statements were recorded during investigation, it is clear that the injury on Kapil was inflicted by one among the members of unlawful assembly. The only question is whether it was in prosecution of the common object of the unlawful assembly.
18. As the evidence of PWs.12 and 14 were challenged by the learned counsel we have minutely analysed their evidence. The discrepancy pointed out in the evidence of PW12 CRA 870, 871 & 1434/11 77 is that as per her evidence PW2 fell under Guava tree in front of her house and as per the prosecution case, PW2 fell under the Guava tree near to the house of Thankappan which lies further to the north of the house of PW2 and therefore, her evidence cannot be believed. Learned counsel also argued that there is a compound wall separating the property of Thankappan and PW12 and therefore, the Guava tree noted in Ext.P5 scene mahazar, can never be the Guava tree deposed by PW12. We have perused Ext.P5, the evidence of PW12, the evidence of PW43 as well as the evidence of PW25, the Village Officer. On the evidence, we cannot accept the submission that compound of Thankappan was enclosed by a compound wall on all the four sides separating the house of PW12 from the remaining property of Thankappan. The evidence only shows that the compound wall was CRA 870, 871 & 1434/11 78 there on the northern side, which is abutting the Pally road. It is also to be born in mind that PW12 is a tenant of the said Thankappan and her house is situated in the property of Thankappan. That house of PW12 is not situated immediately to the south of the Video Shop but it lies further to the south-west of the Video Shop. There is no compound wall to the north of the house of PW12 separating her house from the remaining property of Thankappan. Hence there was no impediment for PW12 to witness the incident that occurred to the north of house and east of the house of Thankappan near and under Guava tree. If the evidence of PW12 is appreciated in that back ground, we find no reason to hold that the Guava tree spoken to by PW12 was a different Guava tree than the one shown in Ext.P5, as canvassed by the learned counsel appearing for the appellants. The fact CRA 870, 871 & 1434/11 79 that PW12 is a neighbour of the Video Shop of PW2 is not disputed. The evidence of PWs.1 and 2 establish that after trespassing into the Video Shop and the members of the unlawful assembly inflicted injuries on PW2 and Kapil. Kapil sustaining injury on his abdomen ran towards the west along the property of Thankappan and finally reached the house of Rajappan, which lies further to the south-west of the Video Shop. The evidence also establish that before the accused left the scene of occurrence, PW12 heard a sound and moved towards the front, which could only be towards north and if so, she could have witnessed PW2 being attacked while he had fallen under the Guava tree. As the house of PW12 lies to south- west of the Video Shop and there is no other building, wall or structure between the Guava tree and the house of PW12, PW12 could CRA 870, 871 & 1434/11 80 definitely witness the incident as claimed by her. On the evidence, it is clear that there is no compound wall separating the house of PW12 and the remaining property. In such circumstances, we find the evidence of PW12 is trustworthy. Evidence of PW12 establish that she identified first accused and fourth accused as members of the assailants who inflicted injuries on PW2. As stated in the case of PW2, when such a gruesome act was enacted in the presence of PW12 and she witnessed the injuries being inflicted on PW2 her neighbor, she would naturally be capable of identifying the assailants as the figures of such assailants would be got imprinted in her mind, which would not be obliterated by passage of two or three years. We find no reason to doubt the genuineness of the identification made by PW12, even though no test identification parade was CRA 870, 871 & 1434/11 81 conducted. The evidence of PW12 further shows that seeing the attack on PW2 she cried aloud and hearing it PW14 the mother of PW2 rushed to the scene. The evidence of PW14 corroborates that portion of the evidence of PW12. PW14 only identified the first accused. Her evidence would establish that she witnessed the first accused inflicting injuries on PW2. The first accused was earlier residing near to the house of PWs.12 and 14. They claimed that they knew the first accused, much earlier to the incident. That fact was not challenged while cross examining the case. Hence identification of first accused by Pws.12 and 14 is definitely reliable.
19. The evidence thus establish that the injuries on PW2 and PW14 were inflicted by members of the unlawful assembly and accused 1,4 and 6 were also members of the unlawful CRA 870, 871 & 1434/11 82 assembly.
20. The evidence of PWs.1,2, 12 and 14 establish that they found a silver coloured Qualis van parked on the side of Pally road near to the Video Shop. Their evidence also establish that it was in that Qualis van all the accused escaped from the scene of occurrence after the incident. The evidence also prove that at that time the registration number of Qualis van was KL-7-AY-8491. We find no reason not to believe that case. The evidence of PW27 cleaner of Saranya bus establish that on 6/3/2006, the said Qualis van hit on Saranya bus causing some damages to the indicator and bumper of the Qualis van. Though it was argued that evidence of PW27 cannot be relied on, as such incident/accident was not reported and no crime was registered, on a proper analysis of the evidence of PW27, we CRA 870, 871 & 1434/11 83 find no reason to disbelieve his version. Ext.P22 the mahazar prepared at the time of seizure of the said Qualis van when it was produced by PW29 along with PW28, corroborates the damages to the Qualis van spoken to by PW27. The evidence of PW29 that the Qualis van KL-13-H-6036 belongs to him was not challenged, though it was contended that the registration certificate was not produced. The evidence of PW29 shows that he had entrusted the said Qualis van to PW28, who is engaged in the business of rent a car. The evidence of PW28 corroborates that evidence. Though it was argued that the evidence of PW29 and PW28 was not corroborated by records evidencing the agreement, we find that for the absence of an agreement, evidencing the transaction, the evidence of PW28 and PW29 is not to be disbelieved. The evidence of PW28 and PW29 CRA 870, 871 & 1434/11 84 establish that the said Qualis van was entrusted by PW29 to PW28 and PW28 was engaged in renting out vehicles to customers. The evidence of PW29 shows that fourth accused was known to him previously as he had repaired his Two wheeler and fourth accused was known to him by name Kannan. Though it was vehemently argued that fourth accused has no name as Kannan and he had no previous acquaintance with PW28, we find no reason to disbelieve the evidence of PW28 on that aspect. When a person is known by a nick name and not in the name shown in the official records, there may not be records to show that he is known by the nick name and not by his name shown in the records. Therefore, for that reason also evidence of PW28 cannot be disbelieved. Apart from suggesting that PW28 falsely deposed that fourth accused approached him along with the CRA 870, 871 & 1434/11 85 first accused, we find no reason why PW28 has to falsely implicate the first accused or the fourth accused, especially when according to the appellants they have no previous acquaintance with PW28 and there is no case that he was on inimical terms with the appellants. The evidence of PW28 establish that first accused along with fourth accused approached him during the last week of February 2006 and obtained Qualis van No.KL-13-H-6036, and first accused was thus in possession of the Qualis van. Their evidence also show that at that time first accused, as security, entrusted Ext.P12 his driving license and Ext.P13 blank cheque to PW28. When PW28 was cross examined, nothing was asked as to how PW28 could be in possession of Ext.P12 the original driving license of the first accused, if it was not entrusted to him by the first accused as CRA 870, 871 & 1434/11 86 deposed by PW28. Even when first accused was questioned under Section 313 of the Code of Criminal Procedure, he has no case that his original driving license was taken away by the Investigating Officer or any Police Officer, after his arrest, so as to get it seized from PW28, to implicate him falsely. It is thus clear that Ext.P12 could have been in the possession of PW28, so as to recover it later under Ext.P11 mahazar, only if it was handed over to PW28 by the first accused as deposed by him. Thus Ext.P12 give sufficient assurance to the evidence of PW28 that first accused had taken the Qualis van on rent in the last week of February 2006. Though Ext.P13 cheque does not show, in which account it was issued, the evidence of PW28 establish that Ext.P13 was also handed over to him along with Ext.P12 by the first accused. The evidence of PW35 CRA 870, 871 & 1434/11 87 Postmaster establish that first accused opened a savings bank account in the Post office and a cheque leaf could be issued in the SB Account. Therefore, though there is no direct evidence to prove that Ext.P13 was a cheque drawn in the savings account as deposed by PW35, it is clear from the evidence of PW28 that Ext.P13 was also handed over by the first accused. The existence of a savings bank account in the name of the first accused from which such a cheque leaf could be issued adds strength to the evidence of PW28.
21. The evidence of PW43 establish that accused 1 to 3 ,5 and 7 were apprehended by Goa Police and when the information was received PW43 proceeded to Goa. As those accused were not wanted in any case in Goa and as they were wanted in a crime registered by Hill Palace Police Station, Kerala, custody of CRA 870, 871 & 1434/11 88 the first accused along with other accused was handed over to PW43. At that time under Ext.P17 mahazar, four mobile phones obtained from the possession of those accused were seized. The evidence of PW36, Manager of Reliance Company establish that from the hand set number of one of the mobile phones, it was found out that its mobile number was 9387513867 and that relates to hand set HS-1008136924. Though prosecution has a case that Ext.P31 call details shows that a call was made to the mobile phone of PW28 from mobile phone 9387513867 on 5/3/2006 informing PW28 that he has to retain the Qualis van for four or five days,under the guise of marriage of his sister and again there was a call on 6/3/2006 and by that call first accused informed PW28 that the Qualis van was involved in an accident. When examined PW28 did not disclose his mobile phone number. CRA 870, 871 & 1434/11 89 Therefore, Ext.P30 is insufficient to establish such a call as alleged by the prosecution.
22. But the evidence of PW28 that he was informed by the first accused that the vehicle taken on rent was involved in an accident and PW28 in turn informed it to PW29 was corroborated by the evidence of PW29. Evidence of PW28 and PW29 further establish that they took possession of the Qualis van from the place where it was kept by the first accused and thereafter got it repaired from a workshop at Thrissur and the repairing charges were paid under Ext.P60 receipt. The evidence of PW28 and PW29 establish that accused 1 and 4, obtained the Qualis van on rent and thereafter the Qualis van was involved in an accident, which corroborated the evidence of PW27 as discussed earlier.
23. Evidence of PW43 establish that CRA 870, 871 & 1434/11 90 after the Qualis van was seized by the Investigating Officer, when it was produced by PW29, PW43 got it examined by PW34, the Scientific Assistant who prepared Ext.P32 list of articles seized from the Qualis van. The evidence of PW43 establish that those materials collected by PW34 were produced before the Court and later forwarded to Forensic Science Laboratory along with MO.33 cotton gauze taken by PW22 at the time of autopsy and on examination it was found that presence of `O' group blood was found in the articles seized from the Qualis van which is proved to be the blood group of Kapil. This further give assurance to earlier finding that said Qualis van was used by the accused to reach the scene of occurrence and also to escape from the scene of occurrence with the weapons after inflicting injuries on PW2 and deceased Kapil. CRA 870, 871 & 1434/11 91
24. PW5 Panchayath member was examined by the prosecution to prove that on getting information of the incident, PW5 reached the scene of occurrence and thereafter went to the hospital where the injured was taken. PW5 deposed that he received a threatening call in his land phone at his residence on 7/3/2006. The evidence of PW5 was challenged on the ground that he is a member of CPI(M) and PW2 and his father and Vidyadaran are all workers of CPI(M) and therefore, his evidence cannot be relied on. It was also argued that PW5 though deposed that he had preferred a complaint about the threatening call, no record was produced in support of the said claim and no crime was registered and in such circumstances, evidence of PW5 cannot be relied on. We have minutely scanned the evidence of PW5. Evidence of PW5 shows that CRA 870, 871 & 1434/11 92 2792416 is the number of the land phone installed in his residential house. PW5 also deposed that the telephone is having caller ID facility and therefore, he could find out from which telephone number the threatening call came to his telephone. The fact that telephone number 2792416 is the telephone number of the house of PW5 was not disputed at the time of his cross examination. There is no case that house of PW5 does not have a telephone connection or its number is not 2792416 or the said telephone has no caller ID facility. The evidence of PW40 the then Divisional Engineer, BSNL Tripunithura establish that telephone No.2792416 is having caller ID facility. Though the record evidencing the name of the customer of the said telephone was not produced, the fact that telephone number 2792416 is having caller ID facility is proved CRA 870, 871 & 1434/11 93 by the evidence of PW40 which is even otherwise not disputed when PW5 deposed about it. The evidence of PW36 with Ext.P30 establish that there was an out going call from 9387513867 on 7/3/2006 to the land phone 2792416 which corroborated the evidence of PW5 that there was a telephonic call on that day. The evidence of PW36 establish that the said mobile phone is one among the four MO22 mobile phones seized under Ext.P17 mahazar when first accused along with accused 2,3,5 and 7 were taken into custody from Goa. Therefore, this fact further corroborates the evidence of PW5.
25. Evidence of PW5 that he knew first accused previously was not even challenged in cross examination. Evidence of PW5 that he received a call on 7/3/2006 from mobile No.9387513867 to his telephone 2792416 which he could find out because of the caller CRA 870, 871 & 1434/11 94 ID facility, was also not challenged in cross examination. Evidence of PW5 further establish that first accused called PW5 and disclosed to him that he committed murder of Kapil and Vidyadaran and he further threatened that if any harm is caused to his uncles, PW5 and his son will be killed. If the first accused had made a call and disclosed to PW5 that he committed murder of Kapil, it would definitely amount to an extra judicial confession. The evidence of PW5 that first accused called him and disclosed that it was he who killed Kapil and if anything happens to his uncles, he will kill PW5 and his son, was not challenged at all. While cross examining PW5 there is no case for the first accused that the said call was made by somebody else in the name of the first accused or that the first accused did not make such a call. It was also not suggested to PW5 CRA 870, 871 & 1434/11 95 that first accused did not make such a threat as disclosed by PW5, after admitting that he committed the murder of Kapil. When the exact words spoken to by the first accused was re- produced by PW5 and it was not challenged in cross examination and it was voluntarily made the said extra judicial confession would further strengthens the earlier finding that first accused was one of the members of the unlawful assembly who caused the murder of Kapil.
26. In the light of these ocular evidence, it is conclusively proved that accused 1,4 and 6 were also members of the unlawful assembly. When the existence of the unlawful assembly with the common object of committing murder of PW2 and the fatal injury inflicted on Kapil and his murder is immediately connected and is in prosecution of CRA 870, 871 & 1434/11 96 the common object, it is not very relevant to consider the recovery of MO.1 under Ext.P6 on the information furnished by the first accused, recovery of MO9 under Ext.P34 mahazar on the information furnished by fourth accused or recovery of MO.10 under Ext.P33 based on the information furnished by the sixth accused. Ext.P74 certificate of chemical analysis shows that human blood was detected in all those weapons, though the blood group could not be ascertained due to insufficiency of blood. On appreciation of the evidence of PW43 with Exts.P33 and 34 mahazars, we find no reason to disbelieve that recovery of Mos.1,9 and 10 on the information furnished by accused 1,4 and 6. It is therefore, conclusively proved by the prosecution that accused 1,4 and 6 were also members of the unlawful assembly who inflicted the injuries on PW2 and also committed murder CRA 870, 871 & 1434/11 97 of Kapil.
27. We have discussed in detail the liability of all the members of the unlawful assembly, apart from the individual liability of the second accused who inflicted the fatal injury on deceased Kapil, and caused his death, in Crl.A.1677/2008 and found that though original common object of the unlawful assembly was to murder PW2, each member of the unlawful assembly was aware and joined and continued in the unlawful assembly, with the knowledge that it is likely to cause murder of any person who intervenes or causes obstruction when PW2 is being attacked and thus the injury inflicted on Kapil was immediately connected to the prosecution of the common object and therefore, each and every member of the unlawful assembly is vicariously liable for the offence under Section 302, with the aid of Section 149 of CRA 870, 871 & 1434/11 98 Indian Penal Code. In such circumstances, we find it not necessary to repeat the discussion on the law again in these appeals.
28. Though learned Additional Sessions Judge found accused 1 and 4 guilty of the offence under Section 120 B of Indian Penal Code, on the evidence we cannot agree with the conviction. According to the prosecution criminal conspiracy was hatched in the house obtained by the accused No.8 from PW30 on rent under Ext.P26 rent deed. Evidence of PW30 shows that he had rented out the house under Ext.P2, and PW32 acted as the agent on a monthly rent of Rs.2,500/- to Mohammed Sali. Mohammed Sali is the second accused. But even prosecution has no case that the building was taken on rent by the second accused. Ext.P26 shows that the tenant thereunder is accused No.8 Rahees. Evidence of PW30 is that he had seen four or CRA 870, 871 & 1434/11 99 five persons residing therein at times and second accused had stayed there for one and one and half months. First accused was also identified as one of the said persons. Evidence of PW32 though corroborates the evidence of PW30 that the house was obtained on rent, he did not identify the tenant or any of the persons who stayed there or used to visit there. When Ext.P26 shows that the tenant is not the second accused as sworn to by PW30, much reliance cannot be placed on the evidence of PW30 to find that a criminal conspiracy was hatched therein. Similarly, for the sole reason that a building was taken on rent and some persons used to visit there, by itself, without identifying those persons and disclosing any material which may indicate a conspiracy hatched therein, the alleged criminal conspiracy cannot be upheld. The only CRA 870, 871 & 1434/11 100 other evidence relied on to find the conspiracy is the evidence of PW28 that it was at the instance of accused No.4 Qualis van was given on rent to the first accused. We find that for that reason alone, there was a criminal conspiracy. In such circumstances, conviction of the appellants for the offence under Section 120 B cannot be sustained.
29. The conviction of all the other accused in Crl.A.1677/2008 for the offence under Section 27(1) of the Arms Act and Section 3(a) and 4(a)(1) of Explosive Substances Act was set aside, finding that the sanction under Ext.P61 by the District Magistrate is not a consent as provided under Section 7 of the Explosive Substances Act and the weapons found in the possession of the accused and recovered by PW43, are CRA 870, 871 & 1434/11 101 not the arms as prescribed under Section 5 of the Arms Act. In view of the said findings, which is applicable to this case also, the conviction of the appellants for the offences under Section 27(1) of the Arms Act and Section 3(a) and 4(a)(i) of the Explosive Substances Act cannot be sustained.
30. The evidence establish that appellants were members of the unlawful assembly and in prosecution of the common object of the unlawful assembly, second accused another member of the unlawful assembly inflicted fatal injury on the abdomen of Kapil and caused his death. Therefore, accused 1,4 and 6 are vicariously liable for the offence under Section 302 read with Section 149 of Indian Penal Code. CRA 870, 871 & 1434/11 102 Conviction of the appellants for the offence under Section 302 read with Section 149 of Indian Penal Code is therefore, confirmed. The evidence also conclusively establish that in prosecution of the common object of causing death injuries were inflicted with deadly weapons on PW2 by members of the unlawful assembly, including the appellants. Therefore, conviction of the appellants for the offence under Section 307 read with Section 34 of Indian Penal Code can only be confirmed. The evidence also establish that including the appellants who were members of unlawful assembly committed rioting and each of them were armed with deadly weapons. Therefore, their conviction for the offences under Sections 143, 147 and 148 of Indian Penal Code can only be confirmed. The CRA 870, 871 & 1434/11 103 evidence also establish that in furtherance of the common object, the members of the unlawful assembly committed trespass into the Video Shop and thereby caused damages to the Video Shop as well as the grocery shop of Rajappan, the father of PW2. Hence conviction of the appellants for the offence under Sections 427 and 449 read with Section 149 of Indian Penal Code can only be confirmed. The evidence also establish that all the members of the unlawful assembly voluntarily caused hurt with dangerous weapons as well as grievous hurt. Hence conviction of the appellants for the offence under Sections 326 read with Section 149 of Indian Penal Code has to be confirmed.
31. Then the only question is regarding the sentence. Substantive sentence CRA 870, 871 & 1434/11 104 awarded for the offence under Section 302 read with Section 149 of Indian Penal Code was only the lesser sentence provided under the Penal Code, in addition to the fine. Considering all the relevant facts, we find that fine awarded for the offence is excessive. The fine awarded to the first accused is modified to Rs.25,000/- and in default rigorous imprisonment for one year and fine awarded to accused 4 and 6 is modified to Rs.10,000/- each and in default rigorous imprisonment for one year. Learned Sessions Judge awarded imprisonment for life for the offence under Section 307 read with Section 149 of Indian Penal Code.
Imprisonment for life was awarded for the offence under Section 302 read with Section 149 of Indian Penal Code. In such CRA 870, 871 & 1434/11 105 circumstances, we find that interest of justice will be met, if the sentence for the offence under Section 307 read with Section 149 of Indian Penal Code is modified to rigorous imprisonment for ten years and a fine of Rs.10,000/- each and in default rigorous imprisonment for one year. We find no reason to interfere with the sentence awarded for other offences.
Appeal is allowed in part. Conviction of the appellants for the offence under Section 120 B of Indian Penal Code, Section 3(a) and 4(a)(i) of Explosive Substances Act and Section 27(1) of the Arms Act are set aside. They are found not guilty of the said offences and are acquitted. The conviction of accused 1,4 and 6 for all the other offences are confirmed. The sentence CRA 870, 871 & 1434/11 106 awarded to the first accused for the offence under Section 302 read with Section 149 of Indian Penal Code is modified to imprisonment for life and a fine of Rs.25,000/- (Rupees Twenty five thousand only) and in default rigorous imprisonment for one year. The conviction of accused 4 and 6 for the offence under Section 302 read with Section 149 of Indian Penal Code is confirmed and the sentence is modified to imprisonment for life each and fine of Rs.10,000/- (Rupees Ten thousand only) and in default rigorous imprisonment for one year each. The sentence awarded for the offence under Section 307 read with Section 149 of Indian Penal Code is modified and they are sentenced to rigorous imprisonment for ten years each and fine of Rs.10,000/- CRA 870, 871 & 1434/11 107 (Rupees Ten Thousand only) and in default rigorous imprisonment for one year each. The sentence awarded for all the remaining offences are confirmed. The appellants are entitled to set off as provided under Section 428 of Code of Criminal Procedure subject to the orders passed by appropriate authority under Section 432 and 433 of the Code of Criminal Procedure.
M.SASIDHARAN NAMBIAR, JUDGE.
C.T.RAVIKUMAR, JUDGE.
Sherly/uj.