Kerala High Court
Firoz.K.K vs Pradeepan Menasseri Veettil on 12 December, 2018
Equivalent citations: AIRONLINE 2018 KER 936
Bench: A.M.Shaffique, P.Somarajan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
&
THE HONOURABLE MR. JUSTICE P.SOMARAJAN
WEDNESDAY,THE 12TH DAY OF DECEMBER 2018 / 21ST AGRAHAYANA,
1940
CRA(V).No. 746 of 2012
AGAINST THE JUDGMENT IN SC 783/2005 of SESSIONS
COURT,THALASSERY DATED 21-04-2012
APPELLANT/PW1:
FIROZ.K.K.
S/O. P.V. MUHAMMED, KEEZHOOR, THALASSERY.
BY ADV. SRI.SUNNY MATHEW
RESPONDENTS/ACCUSED NOS.10 TO 13 AND 15 TO 26:
1 PRADEEPAN MENASSERI VEETTIL
S/O. BALAN, VADAKKAYIL, THILLANKERI AMSOM,
KANNUR DISTRICT -670592.
2 MAVILA HARIHARAN,
S/O. KANNAN NAMBIAR, THILLANKERI AMSOM, KANNUR
DISTRICT -670592.
3 DINESHAN V.,
S/O. DAMODARAN, KIZHAKODU, THILLANKERI AMSOM,
KANNUR DISTRICT -670592.
4 RAJEEV KUMAR @ REJU,
S/O. ACHUTHAN (LATE), PAREMMAL VEEDU,
CHAVASSERI, THILLANKERI AMSOM, KANNUR DISTRICT
-670592.
Crl.A (V).No.746/12 & conn.cases
-:2:-
5 VALLIVANIYAN PRADEEPAN,
S/O. SREEDHARAN, SARANG, THILLANKERI AMSOM,
PADIKKACHAL, KANNUR DISTRICT -670592.
6 MOORKOTH MOHANAN,
S/O. KANNAN, THILLANKERI AMSOM, PADIKKACHAL,
KANNUR DISTRICT -670592.
7 MANOJ N.,
S/O. ANANDAN, CHIRAMMAL VEEDU, THILLANKERI
AMSOM, PADIKKACHAL, KANNUR DISTRICT -670592.
8 NAMBRON MAHESH,
S/O. ANANDAN, CHIRAMMAL VEEDU, THILLANKERI
AMSOM, PADIKKACHAL, KANNUR DISTRICT -670592.
9 NELLYATTERI PRASAD,
S/O. BALAN, NELLYATTERI, THILLANKERI AMSOM,
PADIKKACHAL, KANNUR DISTRICT -670592.
10 M. ANEESH,
S/O. BALAN, MATTAMAL VEEDU, CHAVASSERY AMSOM,
AVILAD, KANNUR DISTRICT - 670592.
11 MANU @ MANOJ,
S/O. RAIRU NAIR, PUTIYAVEEDU, GOKULAM,
KARAKKUNNU, THILLANKERI AMSOM, KANNUR DISTRICT
-670592.
12 K. RAJAN,
S/O. KUNHIRAMAN, KEYINTE PARAMBATHU,
THILLANKERI AMSOM, PADIKKACHAL, KANNUR DISTRICT
-670592.
13 CHAMATHAKKANDY HAREENDRAN,
S/O. KUNHIRAMAN, THILLANKERI AMSOM,
PADIKKACHAL, KANNUR DISTRICT -670592.
14 VANNATHAN VEETTIL DINESHAN,
S/O. KRISHNAN, THILLANKERI AMSOM, PADIKKACHAL,
KANNUR DISTRICT -670592.
Crl.A (V).No.746/12 & conn.cases
-:3:-
15 VILANGERI SANKARAN,
S/O. KUNHIRAMAN NAMBIAR, MEETHALE PUNNAD,
ANAPPARA, KEEZHOOR, KANNUR DISTRICT - 670592.
16 P.K. VALSAN,
S/O. KOCHU BALAN, KUNDUKATTIL VEEDU,
THILLANKERI AMSOM, CHALAPPARAMBU, KANNUR
DISTRICT -670592.
17 THE CIRCLE INSPECTOR OF POLICE,
IRITTY POLICE STATION-670592.
18 STATE OF KERALA,
REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH
COURT OF KERALA, ERNAKULAM-692031.
BY ADVS.
SRI.K.K.DHEERENDRAKRISHNAN
SRI.S.RAJEEV
ADGP SRI.SURESH BABU THOMAS
THIS CRL.A BY DEFACTO COMPLAINANT/VICTIM HAVING BEEN
FINALLY HEARD ON 27.7.2018, ALONG WITH CRL.A.808/2012 &
CRL.A.1516/2012, THE COURT ON 12.12.2018 DELIVERED THE
FOLLOWING:
Crl.A (V).No.746/12 & conn.cases
-:4:-
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
&
THE HONOURABLE MR. JUSTICE P.SOMARAJAN
WEDNESDAY,THE 12TH DAY OF DECEMBER 2018 / 21ST AGRAHAYANA,
1940
CRL.A.No. 808 of 2012
AGAINST THE JUDGMENT IN SC 783/2006 of SESSIONS
COURT,THALASSERY DATED 21-04-2012
CP 309/2004 of J.M.F.C.,MATTANNUR
APPELLANTS/ACCUSED NOS.1, 2 AND 4 TO 9:
1 M.CHANDRAN
S/O. NARAYANAN, AGED 32 YEARS, COOLIE, VANJERI
VEEDU, THILANKERIAMSOM, PADIKKACHAL, KANNUR
DISTRICT.
2 RATNAKARAN.E
S/O. SREEDHARAN, AGRICULTURE, AGED 41 YEARS,
KEEZHURAMSOM, IDAVANA, THILANKERIAMSOM,
PADIKKACHAL, KANNUR DISTRICT.
3 PAYYAMBALLI PRADEEPAN
S/O. KUNHIKANNAN, AGED 38 YEARS, COOLIE,
THILANKERIAMSOM, PARENGAD, KARAKKUNNU,
PADIKKACHAL, KANNUR DISTRICT.
4 BIJU @VIJESH
S/O. BALAN, AGED 30 YEARS, COOLIE,
PAREMMALVEEDU, THILLANKERIAMSOM, PADIKKACHAL,
KANNUR DISTRICT.
Crl.A (V).No.746/12 & conn.cases
-:5:-
5 KIZHAKKEVEETTIL BABU
S/O. KUNHIRAMAN, COOLIE, AGED 33 YEARS,
THILLANKERIAMSOM, KARAKKUNNU, PADIKKACHAL,
KANNUR DISTRICT.
6 K.K. PADMANABHAN @PAPPAN
S/O. SANKARAN, AGED 29 YEARS, COOLIE,
THILLANKERIAMSOM, PARENGAD, KARAKKUNNU,
PADIKKACHAL, KANNUR DISTRICT.
7 V. VINEESH
S/O. PADMANABHAN, AGED 30 YEARS, COOLIE,
VINEESH BHAVAN, PUTHEN VEEDU, THILLANKERI
AMSOM, PARENGAD, KARAKKUNNU, PADIKKACHAL,
KANNUR DISTRICT.
8 PUNCHAYIL SHYJU @UNNI
S/O. VIJAYAN, AGED 29 YEARS, COOLIE,
THILLANKERIAMSOM, CHALLAPPARAMBU, PARENGAD,
KARAKKUNNU, PADIKKACHAL, KANNUR DISTRICT.
BY ADVS.
SRI.P.S.SREEDHARAN PILLAI
SRI.M.REVIKRISHNAN
SRI.ARJUN SREEDHAR
SRI.ARUN KRISHNA DHAN
SRI.JOSEPH GEORGE(MULLAKKARIYIL)
SRI.P.VIJAYA BHANU (SR.)
SRI.T.K.SANDEEP
SRI.VIPIN NARAYAN
RESPONDENT/COMPLAINANT:
STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH
COURT OF KERALA, ERNAKULAM.
BY ADV. ADGP SRI.SURESH BABU THOMAS
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
27.7.2018, ALONG WITH CRL.A.1516/2012 & CRA(V).746/2012,
THE COURT ON 12.12.2018 DELIVERED THE FOLLOWING:
Crl.A (V).No.746/12 & conn.cases
-:6:-
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
&
THE HONOURABLE MR. JUSTICE P.SOMARAJAN
WEDNESDAY,THE 12TH DAY OF DECEMBER 2018/21ST AGRAHAYANA,
1940
CRL.A.No. 1516 of 2012
AGAINST THE JUDGMENT IN SC 783/2005 of SESSIONS COURT
,THALASSERY DATED 21-04-2012
APPELLANT/ACCUSED NO.3:
SHYJU P.V., S/O KUNHIRAMAN,
AGED 38 YEARS
PUTHENPARAMBATH AHOUSE THILLANKERI AMSOM
KARAKKUNNU DESOM, KANNUR DIST.
BY ADVS.
SRI.E.VIJIN KARTHIK
SRI.B.RAMAN PILLAI (SR.)
RESPONDENT/COMPLAINANT:
STATE OF KERALA
REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA.
BY ADV. ADGP SRI.SURESH BABU THOMAS
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
27.7.2018, ALONG WITH CRL.A.808/2012 &CRA(V).746/2012, THE
COURT ON 12.12.2018 DELIVERED THE FOLLOWING:
Crl.A (V).No.746/12 & conn.cases
-:7:-
JUDGMENT
Shaffique, J.
Crl.Appeal No. 808/2012 is filed by accused Nos.1, 2 and 4 to 9, Crl.Appeal No.1516/2012 has been filed by the 3 rd accused and Crl.Appeal (V) No.746/2012 has been filed by PW1 challenging the acquittal of accused Nos. 10 to 13 and 15 to 26.
2. A person named P.V.Mohammed while going to the mosque for his morning prayers on 7/6/2004 at about 5 a.m was attacked by a group of persons with deadly weapons and on account of the injury sustained by the victim, he died. Firoz, son of P.V.Mohammed who was following his father was also attacked and he also suffered an injury. Case was charge-sheeted against 26 accused persons under Sections 143, 147, 148, 341, 302, 307 r/w 149 of the I.P.C., under Sections 120B, 153A and 212 of the I.P.C. and u/s 27(1) of the Arms Act, 1959.
3. The prosecution examined PW1 to PW22 and proved Exts.P1 to P48. MO1 to MO30 series were produced and identified. Court below convicted accused Nos.1 to 9 and accused Nos.10 to 13 and 15 to 26 were acquitted. 14 th accused was absconding and hence the case against him was split up. Crl.A (V).No.746/12 & conn.cases -:8:-
4. Accused Nos.1 to 9 were convicted and sentenced to suffer imprisonment for life for the offence under section 302 r/w S.149 of the I.P.C. They were also convicted and sentenced to undergo imprisonment for 6 months each for offences u/s 143 and 147 r/w 149 I.P.C. and u/s 148 of I.P.C., and simple imprisonment for one month for the offence u/s 341 r/w 149 of the I.P.C. The 3rd accused was convicted and sentenced to undergo rigorous imprisonment for 7 years and to pay a fine of `5,000/- in default of which to undergo simple imprisonment for a period of one month for the offence u/s 307 of I.P.C.
5. The case of the prosecution is that there was communal enmity between RSS workers and NDF workers, on account of a fight between one Vancheri Chandran and Valiyapurayil Faizal belonging to the aforesaid rival factions. Three crimes were registered pursuant to various incidents that occurred on account of the communal disharmony. As a retaliatory measure, the RSS workers hatched a conspiracy to murder P.V.Mohammed. Pursuant to such a conspiracy, accused Nos.1 to 20 formed themselves into an unlawful assembly and accused Nos.1 to 9 proceeded to Punnad and accused Nos.10 to 20 stationed at a place known as Crl.A (V).No.746/12 & conn.cases -:9:- Padikkachal. On the fateful day, when P.V.Mohammed was proceeding to the mosque for his morning prayer, he was wrongfully restrained and brutally attacked by using deadly weapons. He suffered 28 ante-mortem injuries. Son of P.V.Mohammed, Sri.Firoz was behind him and going to the mosque. On seeing the attack, he tried to interfere. The 3 rd accused brandished a sword, which caused grievous injury on the hand of Firoz. After inflicting injury on P.V.Mohammed, the accused ran away. P.V.Mohammed was taken to A.K.G. Hospital, Kannur and thereafter to Medical College Hospital, Pariyaram. He succumbed to the injuries while proceeding to Medical College Hospital Pariyaram and was declared dead at 6.45 am.
6. PW3 had given the first information statement to the police. Ext.P1 is the FIS and Ext.P1(a) is the FIR. PW22 conducted investigation and submitted the final report.
7. The Doctor who conducted post-mortem of the deceased opined that Mohammed died due to bleeding from multiple cut injuries which he had sustained. Court below found that the oral testimony of PW1, PW2, PW4 and PW5 who are eye-witnesses to the incident proves the prosecution case against accused Nos.1 Crl.A (V).No.746/12 & conn.cases -:10:- to 9. Their evidence is corroborated by medical evidence. That apart, the weapons were recovered based on information given by accused Nos.1 to 9 which further proves involvement of the accused in the crime. It is based on the said finding that the Court below convicted and sentenced the accused as stated above.
8. Separate arguments were raised by Sri.P.S.Sreedharan Pillai, learned counsel appearing for accused 1, 2, 6 to 9, Senior counsel Sri.B.Raman Pillai appearing on behalf of the 3 rd accused and senior counsel Sri.Vijayabhanu appearing for accused Nos.4 and 5.
9. The main contention urged by learned counsel for accused Nos.1, 2 and 6 to 9 is regarding the impossibility of any of the witnesses identifying the accused. Learned counsel also referred to various discrepancies in the investigation and also the omissions/contradictions in the evidence of the eye-witnesses. It is contended that the witnesses were examined after a considerable period without knowing the accused in the case. PW3 while giving FIS has named certain persons as accused. Later, the investigating officer found that some of them were not Crl.A (V).No.746/12 & conn.cases -:11:- involved in the crime. Though 10 persons were specifically named in the FIS given by PW3, some of them were deleted from the array of accused and several others were made accused. Further, the evidence is quite contrary to the statements recorded in Ext.P5 inquest report. Proper investigation was not conducted in the case. Unnikrishnan, CW54, the Sub Inspector of Police, who registered the crime was not examined. That apart, a police officer Sri.Prabhakaran, who was on duty in the nearby Police Picket and who is alleged to have reached the scene of occurrence during the crime, was not even cited as a witness. Another argument raised is that the statement of eye-witnesses were taken after a considerable long period. PW1 was examined on 10/6/2004 and PW2 on 23/6/2004. In Ext.P12, wound certificate of PW1, the identity of the assailants is not seen informed to the Doctor, whereas, in evidence, he states that he knew accused Nos.1 to 4 and 6 for the last 10 years and PW2 has stated in evidence that he knew accused Nos.2 to 6. It is submitted that none of the assailants were known either to PW1, PW2, PW4 or PW5. None of them had given the description of any of the assailants to the Police. The investigating officer did not Crl.A (V).No.746/12 & conn.cases -:12:- conduct a fair investigation in the matter. In so far as Test Identification Parade (TIP) was not conducted, the identification before Court cannot be relied upon. It is pointed out that the investigating officer has filed a further report as Ext.P27 on 13/6/2004. At the relevant time, he had examined only PW1. PW1 has not stated about the presence of any of the accused. In the 161 statement of PW4 and PW5, the dates on which they were examined had not been mentioned. Ext.P41 is another report dated 24/7/2004. By the said report, accused 4 to 10 were deleted from the array of accused. Therefore, the argument is that PW1 and PW2 had absolutely no knowledge about the assailants at the relevant time. The only evidence is that of PW4 and PW5. The argument is that they have no reason to come for morning prayers in the mosque at Punnad. PW4 and PW5 reside far away from the place of occurrence and Tavilampally is their nearest mosque. Normally, a person goes for morning prayers to a mosque which is near to their house and there is no reason why PW4 and PW5 should come to the mosque, which is far away and near to the scene of occurrence. No explanation is offered by them to the investigating officer to justify their presence in the Crl.A (V).No.746/12 & conn.cases -:13:- scene of crime. That apart PW4 and PW5 are involved in several crimes and their evidence should not have been accepted. It is submitted that the incident happened at about 5 am and the FIR was lodged at 9 am. There was enough time for PW3 to find out the whereabouts of the accused and in fact he had made mention about several accused with names. Later-on the Police itself found that accused 4 to 10 did not participate in the crime. Several omissions which clearly amounts to contradictions were brought to the notice of this Court in order to disbelieve the version of PW1, PW2, PW4 and PW5. Learned counsel also placed reliance upon the judgment of the Apex Court in Rajeevan v. State of Kerala [(2003) 3 SCC 355], Kailash Gour v. State of Assam [(2012) 2 SCC 34] and the judgment of this Court in Raju v. State of Kerala (2017 KHC 984).
10. Learned counsel appearing for the 3rd accused while supporting the stand taken by the other accused further contended that 3rd accused was not even a member of RSS faction as he follows CPM ideology. Unnecessarily his name has been included as an accused. It is argued that the presence of PW2, PW4 and PW5 was doubtful, as their presence was not Crl.A (V).No.746/12 & conn.cases -:14:- mentioned in the FI Statement. With reference to PW4 and PW5, the date on which they were examined has not been mentioned anywhere. They are workers of NDF and they are planted witnesses. PW22 says that PW4 was questioned on 9/6/2004 and PW5 on 8/6/2004. Counsel argued that if that was the situation, the same ought to have been mentioned in the report dated 13/6/2004 (Ext.P27) and there was no necessity to proceed against A4 to A10 at the relevant time. It is submitted that, in the inquest report also, same version as available in the FIS has been mentioned. It was stated that PW1 and PW2 were in the hospital. When PW1 was questioned, he did not give any statement regarding the description of assailants and he did not identify any of the accused, whereas, before court, he identified accused 1 to 4 and 6. PW2 also did not mention any particulars of identifying features of the accused. PW2 identified A2 to A6 before Court. 3rd accused had been identified by PW1, PW2 and PW5. PW1 and PW2 had not stated anything about the presence of A3 in their 161 statement. Learned counsel placed reliance upon the following judgments:-
(i) Thulia Kali v. State of T.N. (AIR 1973 SC 501). The Crl.A (V).No.746/12 & conn.cases -:15:- relevant portion in paragraph 12 reads thus:-
"12. ......... First information report in a criminal case is an extremely vital and valuable piece of evidence for the purpose of corroborating the oral evidence adduced at the trial. The importance of the above report can hardly be overestimated from the standpoint of the accused. The object of insisting upon prompt lodging of the report to the police in respect of commission of an offence is to obtain early information regarding the circumstances in which the crime was committed, the names of the actual culprits and the part played by them as well as the names of eye witnesses present at the scene of occurrence. Delay in lodging the first information report quite often results in embellishment which is a creature of afterthought. On account of delay the report not only gets bereft of the advantage of spontaneity danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. It is, therefore, essential that the delay in the lodging of the first information report should be satisfactorily explained..." .
(ii) Ram Kumar Pande v. State of M.P. (AIR 1975 SC 1026). Paragraph 8 being relevant reads thus:-
"8. The above mentioned First Information Report was lodged at Police Station Ganj on 23-3-1970 at 9.15 p.m. The time of the incident is stated to be 5 p.m. The only person mentioned as an eye witness to the murder of Harbinder Singh is Joginder Singh. The two daughters Taranjit Kaur, PW 2 and Amarjit Kaur, PW 6, are mentioned in the F. I. R. only Crl.A (V).No.746/12 & conn.cases -:16:- as persons who saw the wrapping of the chadar on the wound of Harbinder Singh. What is most significant is that it is nowhere mentioned in the F. I. R. that the appellant had stabbed Harbinder Singh at all. It seems inconceivable that by 9.15 p.m. it would not be known to Uttam Singh, the father of Harbinder Singh, that the appellant had inflicted one of the two stab wounds on the body of Harbinder Singh."
(iii) Ishwar Singh v. State of U.P. (AIR 1976 SC 2423). In this case, it was held that if the statement by the informant in the FIR, when examined in Court considerably differs on vital aspects, the testimony cannot be accepted at its face value.
11. The learned counsel for accused Nos.4 and 5 also contended that the involvement of accused Nos.4 and 5 was not proved, beyond reasonable doubt. It is pointed out that the 5 th accused was not identified by PW1. PW2 has identified the 5 th accused after 7 years. Identification by PW4 and PW5 suffers from the same infirmities that had already been pointed out.
12. On the other hand, learned Additional Director General of Prosecution Sri.Suresh Babu Thomas, while supporting the judgment of the Court below argued that the prosecution could prove the involvement of accused Nos.1 to 9 in the crime based on the oral testimony of PW1, PW2, PW4 and PW5. In so far as Crl.A (V).No.746/12 & conn.cases -:17:- PW1, PW2, PW4 and PW5 have identified the accused and had clearly stated about the overt acts committed by them, minor omissions or contradictions in the evidence of witnesses cannot be taken as a ground to acquit the accused. It is argued that delay in recording the statement of witnesses by itself cannot be a reason to discard the reliable evidence of witness as held in State of U.P v. Satish [(2005) 3 SCC 114],) Banti @Guddu v. State of M.P (2004 KHC 372), Dr.Krishnapal & Another v. State of U.P (AIR 1996 SC 733), Abdul Sayeed v. State of M.P. (LAWS (SC) 2010 991), Ramlagan Singh & Ors v. State of Bihar (AIR 1972 SC 2593), Malkhan Singh & Another v. State of Uttar Pradesh (AIR 1975 SC 12), Machhi Singh & Others v. State of Punjab (AIR 1983 SC 957), Appabhai and Another v. State of Gujarat (AIR 1988 SC 696), Bonkya @ Bharat Shivaji Mane & Others v. State of Maharashtra [(1995) 6 SCC 447], Mohar and Another v. State of U.P [(2002) 7 SCC 606], Dinesh Kumar v. State of Rajasthan [(2008) 8 SCC 270], Balaraje alias Trimbak v. State of Maharashtra [(2010) 6 SCC 673], Vishnu and Others v. State of Rajasthan (2009 SC 477) and. State of U.P. v. Crl.A (V).No.746/12 & conn.cases -:18:- Kishan Chand and Others (2004 SCC 629). With regard to the argument that the name of the assailants was not mentioned in the wound certificate prepared by the Doctor who examined the injured, he argued that there is no obligation on the part of the Doctor to make such a record in the wound certificate. The Prosecutor placed reliance on the judgments in Rijo v. State of Kerala (2010 (1) KLT SN 9 Case No.9) and State of Kerala v. Kilakkatha Parambath Sasi and Others (2004 KHC 1615). He also relied upon the judgments in Sahadevan v. State of Kerala (1992 (1) KLT 259) and Sucha Singh and Another v. State of Punjab (AIR 2003 SC 3617), for the proposition that the testimony of witnesses who are related to the deceased, cannot be rejected merely for the reason they are relatives. Ratna Pratap and Others v. State of Haryana [(1983) KHC 462], State of U.P. v. Devendra Singh (2004 KHC 1779) and Abu Thakir and Others v. State of Tamil Nadu (2010 KHC 4265) had been cited to emphasize the point that the evidence of the witnesses cannot be discarded on the ground that they did not react in a particular manner. With reference to the acceptance of evidence of PW4 and PW5, it is argued that the evidence of a Crl.A (V).No.746/12 & conn.cases -:19:- witness having criminal background can be taken if it is corroborated by other evidence especially when he is an eye- witness. He relied upon the judgments in State of U.P. v. Farid Khan (2005 KHC 1522), Vikram and Others v. State of Maharashtra (AIR 2007 SC 1893), Vijayan v. State of Kerala (2005 KHC 1066) and Jai Karanand Others v. State of U.P [(2005) SCC (Crl) 812]. With reference to the argument that the accused persons named in the FIR was changed, it is argued that FIR is not a substantive piece of evidence. He relied upon the judgments in Dharma Ram Bhagare v. State of Maharashtra (AIR 1973 476), Victor Immanuel and Others v. State (1991 Crl.L.J.2014 Madras), Kapil Singh v. State of Bihar (1990 Crl.L.J.1248 Patna) and Malkiat Singh and Others v. State of Punjab [(1991) 4 SCC 341]. It is argued that mere irregularity will not affect the prosecution case unless it is substantiated by the accused that same has caused prejudice to the accused. Reliance has been placed on the judgments in Rajan v. State of Kerala (2010 (3) KLT 33 C.No.40), Sheo Shankar Singh v. State of Jharkhand (2011 KLT SN 83 C.No.113), State of Karnataka v. Yarappa Reddy (1993 (3) KLT 456) and Prithi v. Mam Raj and Crl.A (V).No.746/12 & conn.cases -:20:- Others (2005 SCC (Criminal) 198). The learned Public Prosecutor placed emphasis on the deposition of PW1, PW2, PW4 and PW5. It is submitted that witnesses have identified all the accused who were involved in the crime.
13. Learned counsel appearing for PW1, Sri.Sunny Mathew argued that accused 10 to 13 and 15 to 26 also ought to have been convicted as their involvement was proved by the prosecution witnesses.
14. Taking into account the rival contentions urged on either side, it will be appropriate to consider each and every argument raised on behalf of the accused in order to ascertain whether the Court below has committed any error in the appreciation of evidence while finding the appellants guilty and whether the accused who were acquitted are liable to be convicted.
15. As far as the cause of death of deceased is concerned, there cannot be any dispute about the fact that Mohammed died due to the injuries sustained in the said attack. He suffered 26 ante-mortem injuries of which the fatal injuries were injury Nos.10 and 26, which are extracted hereunder:-
"10. Gaping incised wound, 15 x 5 x 5 cm, horizontally Crl.A (V).No.746/12 & conn.cases -:21:- placed on the front and outer aspect of left thigh, at its middle. Underneath, the muscles and blood vessels were severed. The thigh bone showed a superficial cut on it."
"26. Incised wound 5.5x2cm, horizontally placed on the back of left forearm, 3.5 cm above the wrist. Both bones underneath, including the blood vessels were found cut into two."
All the injuries except injury no.1, are incised wounds which proves that sharp weapons were used for committing the aforesaid acts. The fatal injuries would indicate that the blood vessels were severed and cut into two. When the major blood vessels are cut, profuse bleeding would cause death. PW14, who conducted post-mortem has stated that injury No.15 is likely to cause death in the ordinary course of nature.
16. Having heard the learned counsel on either side, the points that require to be addressed are with reference to the disparity in the FIS and the evidence of the eye-witnesses, date of examining the witnesses, identification of the accused, non- examination of crucial witnesses and the legality of the recovery.
17. Hence, before proceeding further, it will be useful to refer to the deposition of PW22, the investigating officer, in order to understand whether there was any deliberate attempt to Crl.A (V).No.746/12 & conn.cases -:22:- implicate the accused and whether there is any lapse in the investigation which can be used by the accused for their benefit. PW22 deposed that the FIR was sent to him and he had undertaken the investigation. He arranged police patrolling in the area. After making arrangements for conducting inquest, he reached the scene of occurrence and scene mahazar was prepared, which is marked as Ext.P6. In the scene, he found a few pair of slippers which were recovered and marked as MO16 series, MO17 series and MO20. A banyan and a towel were recovered and were marked as MO18 and MO19 respectively. He found blood in the scene of occurrence and sample of blood was collected in a cotton which is marked as MO21 and the soil containing blood was collected and marked as MO22. On 8/6/2004, he questioned PW5, and on 9/6/2004, he questioned PW4 and recorded their statements. On the basis of the statements of PW4 and PW5, it was understood that crime was committed by accused Nos.1 to 9. Though enquiry was made, they could not be located. It was noticed that there was disparity in the statement given by PW3 and the description of the incident by eye-witness PW4 and PW5. PW3 was again summoned for Crl.A (V).No.746/12 & conn.cases -:23:- further examination. But he could not be found. PW1 was examined on 10/6/2004 and his statement was recorded. A1, A2 and A3 were arrested on 12/6/2004. They were questioned and their statements were recorded. The confession statement of A1 is Ext.P24(a). A1 had shown him the place where he left his slippers. Ext.P24 is the mahazar for its recovery and those were marked as MO23 series. On the basis of Ext.P25(a) disclosure statement given by A2, his slippers were recovered as per Ext.P25 mahazar and marked as MO24. The dresses the accused 1 and 3 were wearing at the relevant time were also recovered. The accused 1 to 3 were remanded to judicial custody on 13/6/2004. Report dated 13/6/2004 is marked as Ext.P27. On 14/6/2004, accused 5 and 9 were identified and arrested at 1.10 p.m. On the basis of the statement of A9, his slippers were recovered based on Ext.P28 mahazar which are marked as MO25 series. Their dresses were also recovered. A5 and A9 were produced before the Court. A20 and A21 were arrested on 17/6/2004. Accused 10 to 22 were made accused in the case as per Ext.P30 report dated 18/6/2004. He further stated that statements were recorded from CW54, Sub Inspector Crl.A (V).No.746/12 & conn.cases -:24:- Unnikrishnan, the SHO and PC 3488 Prabhakaran, who was on duty in the police picket. During investigation it was noticed that the names given by PW3 in Ext.P1 statement regarding the identity of accused was not correct. Some of the accused were arrested and others surrendered before Court and they were in judicial custody. On the basis of confession statement Ext.P2(a) of A3, a sword was recovered on 22/6/2004 as per Ext.P2 mahazar. On the basis of Ext.P33(a) statement of A1, another sword was recovered as per Ext.P33 mahazar dated 22/6/2004. Another sword was recovered on the basis of Ext.P34(a) statement of A2, as per Ext.P34 mahazar. Another sword was recovered on the basis of Ext.P3(a) statement given by A5 as per Ext.P3 mahazar, on 23/6/2004. A9 had given Ext.P4(a) statement on the basis of which a sword was recovered as per Ext.P4 mahazar. On the basis of Ext.P9(a) statement of A4, sword was recovered as per Ext.P9 mahazar. A6 had given such a statement as Ext.P10(a), on the basis of which sword was recovered as per Ext.P10 mahazar. Similarly, based on Ext.P7(a) statement of A8, sword was recovered as per Ext.P7 mahazar. Recovery of another sword was made based on Ext.P8(a) statement of A7, as per Ext.P8 Crl.A (V).No.746/12 & conn.cases -:25:- mahazar. A5 had given a statement as Ext.P39(a) on the basis of which a sword was recovered as per Ext.P39 mahazar. He further has stated that accused Nos.4 to 10 mentioned in the FIR were questioned and on investigation, it was found that they had no connection whatsoever with the murder of Mohammed. They were therefore deleted from the array of accused. A report to that effect was submitted as Ext.P41 dated 24/7/2004.
18. From the evidence of PW22, it could be discerned that though several persons were named as accused by PW3 in Ext.P1, FI statement, during investigation, it was noticed that accused Nos.4 to 10 mentioned in Ext.P1 have no connection whatsoever with the crime. It is also relevant to note that as per report dated 13/6/2004, which is marked as Ext.P27, the investigating officer had informed the Judicial Magistrate of First Class, Mattannoor that the 9 persons whose names were mentioned were also involved in the case. It is recorded in Ext.P27 that on investigation and on the basis of the evidence of eye-witnesses, it is found that about 9 persons whose names are stated above have committed the crime, and certain other accused are also involved in the conspiracy.
Crl.A (V).No.746/12 & conn.cases -:26:-
19. From the aforesaid evidence, it is rather clear that during investigation, police had come to the conclusion that the accused in the present case are the actual persons who committed the crime. One argument that had been addressed is that while submitting Exts.P27 and P41 reports, nothing has been mentioned by the investigating officer on what basis he got the information about the involvement of the accused in the case. It is argued that, at the relevant time, when the report dated 13.6.2004 (Ext.P27) was filed, PW1 alone was examined who did not depose about the involvement of any of these accused. In the 161 statement of PW4 and PW5, the date on which such statement was recorded is not mentioned. But it is relevant to note that the investigating officer, PW22 in his evidence has stated that PW5 was questioned on 8/6/2004 and PW4 on 9/6/2004 and it is on the basis of their statement that the involvement of the accused could be found out. It is true that in their 161 statements, the date on which the statements were recorded has not been mentioned. But it is relevant to note that police had information about the involvement of these accused at least on 13/6/2004 when Ext.P27 report was filed in Court. Crl.A (V).No.746/12 & conn.cases -:27:- Ext.P27 establishes the fact that the investigating officer had sufficient knowledge about the accused on 13.6.2004, and according to him, by that time, he had already examined PW1, PW4 and PW5. Therefore, absence of mentioning the date on which 161 statements of PW4 and PW5 were recorded by itself may not affect the prosecution case.
20. The moot question to be considered in the case is whether the witnesses were able to identify the accused and whether their evidence can be treated as believable to prove the prosecution case beyond all reasonable doubt. As already stated, according to the prosecution, the eye-witnesses are PW1, PW2, PW4 and PW5. The entire case depends upon their evidence. Of course, the weapons allegedly used for commission of the crime had also been recovered by the police based on the confession statement of the accused. But that by itself may not be enough to arrive at a conclusion that the accused were involved in the crime. Unless, the evidence of the eye-witnesses are found to be credible, it may not be possible for the Court to arrive at a conclusion that the prosecution had proved the case beyond reasonable doubt.
Crl.A (V).No.746/12 & conn.cases -:28:-
21. PW1 in his evidence has stated that about 9 persons had restrained his father and they were inflicting injuries on him with deadly weapons. He identified A1 to A4 and A6. During cross examination, he was questioned on several omissions. When asked, he testified that he had given statement to the police that he had seen 9 persons restraining his father and inflicting injury on him, that he saw a billhook in the hand of one person and swords in the hand of others, that he knew some of the assailants, that he could identify the accused, that he saw A4 and A6 inflicting injuries on his father using sword, that he had mentioned the address of Babu and Pradeep to the police, that the assailants were members of RSS. Questions were also asked regarding the presence of PW3, PW4 and PW5 during the incident. He stated that he had mentioned to police that he saw PW4 and PW5 while he was running away from the scene. Ext. D1 contradiction that has been marked in the evidence of PW1 is regarding the presence of Hameed (PW3). In Ext.D1, he had stated that immediately 'karanavar' (elder member of the family) came in a car to the scene and at that time Ameer, Yahiya and Sathar were also present. He said that he did not inform the Crl.A (V).No.746/12 & conn.cases -:29:- police that Hameed (PW3) was present.
22. During cross-examination of PW1, the contradiction marked was regarding the presence of Ameer, Sathar, Yahiya and Hameed. In the previous statement (Ext.D1) PW1 had stated that when he informed his grandfather about the incident, he immediately came with his car. At that time, Ameer, Sathar, Yahiya and Hameed (PW3) were present. When he was asked whether he had given such a statement to police, his answer was that he had not stated about the presence of Hameed. He does not know why it was recorded by the police. During his evidence, several omissions had been asked and some of the material omissions are with reference to the identity of the accused. He explained that he had informed the police that he saw 9 persons inflicting injuries on his father, one was holding a billhook and the others sword, that he knew the accused, that he could identify them and that he had mentioned the name of Chandran, Retnakaran and Shyju to the police. That he saw A4 and A6 inflicting injuries on his father with sword, and how other three persons had attacked his father and that he had told the police that he saw the incident when he reached the road. With Crl.A (V).No.746/12 & conn.cases -:30:- reference to the identification of the material objects viz, the dresses also, he stated that he had informed the matter to police. With reference to the lights available in the locality, according to him, he had informed the police that there was an electric post with a tube light 5 metres away from the place of incident and there was tube light in the compound wall of the house, that he had seen the incident in the said light, that he had informed the address of Babu and Pradeepan to the police and that he had informed the police that the assailants were members of RSS and that his brother had gone and informed their grandfather who had come in a car and when grandfather came in a car, they saw CW4 to CW6.
23. Basically, the cross examination had proceeded on the basis that in the previous statement of PW1, he had not given any indication regarding the identity of the accused whereas in evidence, PW1 has stated that he knew some of the accused for the last ten years and had identified a few of the accused. The contention of the defence as far as the evidence of PW1 is concerned, is that, his evidence cannot be accepted on two grounds. One is that he is an interested witness. Though he Crl.A (V).No.746/12 & conn.cases -:31:- suffered an injury, he could not identify any of the accused. Even assuming that he had seen the incident, he could not identify any of the accused or could not have identified them since it was dark. Therefore, his evidence has to be rejected as the said evidence is not credible enough to implicate the accused.
24. PW2 is the brother of PW1. He also deposed in the same lines as that of his brother. He identified A2, A3, A4, A5 and A6 and he says that he could not identify the other four. He also stated that A3 had inflicted injury on PW1. On seeing the incident in which his father was being attacked with swords and a billhook, they ran to their grandfather's house. Grandfather came in a car. They came running following the car and they saw their father lying with heavy bleeding. He also identified MO 1 to 9 which were the weapons used for inflicting the injury on Mohammed. During his cross-examination, Exts.D7 to D10 contradictions were marked. Ext.D8 is a contradiction with reference to identity of third accused. In Ext.D8, he had stated to police that he and his brother ran towards the scene crying and at that time one among them has said that "none of the mappilas (local usage for muslims) should be spared". At that time, one person inflicted an Crl.A (V).No.746/12 & conn.cases -:32:- injury on his brother. He and his brother cried and went back home. Another contradiction is Ext.D9 statement. According to him, he had not stated to the Police that the persons who had inflicted injuries on his brother and father were RSS members whereas, he only stated that they were persons whom he knew. The material omissions which had been highlighted by the counsel for appellant is that in his previous statement to Police he had not stated that he saw any particular person inflicting the injury. He deposed that he had stated to the police that one person was using a billhook and his father was injured with the said weapon, that he could identify all the accused within two minutes, that he saw 9 persons with swords and billhook inflicting injury on his father, that the assailants ran away when they heard a whistle, that he had mentioned the name of the person who had inflicted injury on his brother, that the assailants were persons whom he knew earlier, that among the assailants, he knew 5 of them for the last ten years, that he knew the name of some of the assailants, that he knew the name of accused 2 to 6, that before the car came they had seen Hameed, Ameer, Sathar and Yahiya, that he could identify the weapons, that the incident Crl.A (V).No.746/12 & conn.cases -:33:- was seen from the light in their compound wall and car porch, that Shyju had inflicted injury with a sword and that one person was holding the billhook and others sword.
25. Based on the evidence of PW2, the argument on behalf of the appellants is that, if PW2 had identified the accused at the time of the incident, he would have mentioned that in his statement. His statement was recorded only on 20/6/2004. Even at that time, he was totally unaware of the identity of the accused. These material omissions which can be termed as contradictions, clearly indicate that identification by PW2 is only an embellishment.
26. PW3 is the person who had given FIS. He deposed that he gave FIS proceeding on the basis that the accused mentioned therein were the actual assailants. He came to the scene of occurrence, immediately after the incident. He did not see the actual incident. He saw about 8 to 9 persons running away from the scene of occurrence. He saw Mohammed lying there with injuries all over his body and heavily bleeding. At that time, he saw Yahiya, Sathar and Ameer in the spot. At that time, Mayan Haji and Sharaf came there. At the same time, PW1 and PW2 also Crl.A (V).No.746/12 & conn.cases -:34:- came. Mohammed and Firoz (PW1) was taken in the car. He also accompanied them. They proceeded to Mattannoor and from there in a jeep to AKG Hospital. Doctor examined them and stated that they had serious injuries. They were therefore taken to Pariyaram Medical College Hospital in an ambulance. On examining Mohammed, Doctors declared that he was dead. Firoz was taken to the Doctor for treatment. He proceeded to Iritty Police Station and informed the matter to the Police. At that time, he had given Ext.P1. He is also a witness to scene mahazar, which was prepared at 2.30 pm on the said day. Ext.D3 is the contradiction. He denied having given a statement to the police on 7/6/2004. Ext.D6 is another contradiction. He denied having stated that he had doubt that it was RSS people who was responsible for the incident. During further cross-examination, he had stated that he had not stated earlier that Yahiya, Sathar and Ameer were present during the relevant time.
27. PW3's evidence does not have much relevance to the case. He had given FIS indicating the name of about 10 persons on the same day of incident. But in his evidence, he states that he proceeded on the basis that those persons were actually Crl.A (V).No.746/12 & conn.cases -:35:- involved. Further investigation by the Police revealed that the assailants were accused Nos.1 to 9. Accused Nos.4 to 10 who were made accused at the initial stage were deleted from the array of accused. As already mentioned, as per the report submitted by the investigating officer, all the 9 accused who were the appellants herein were made accused in the case.
28. PW4 is another eye-witness. He deposed that the incident had taken place on 7/6/2004 at 5 a.m. in front of Mohammed's house and on the southern road margin. Incident happened when Mohammed was going to the mosque for his morning prayer. When PW4 reached the road, he saw Yahiya and Ameer proceeding towards the mosque. While 3 of them were walking, they saw Mohammed coming out from his house and walking through the southern side of the road, towards the mosque. At that time, about 9 persons came from the side of the road, they restrained Mohammed and they attacked Mohammed with swords and billhook. He was inflicted with injuries. They saw the incident 30-35 metres away, from the northern side of the road without being seen by the assailants. He identified A4, A5, A7, A8 and A9. He said that he does not know the other four Crl.A (V).No.746/12 & conn.cases -:36:- persons. Mohammed was crying loud. At the time, his children PW1 and PW2 came to the road. Firoz (PW1) dashed towards them asking not to do anything to their father. Someone was commanding that "none of the Mappilas should be kept alive, kill them". At that time, one of them inflicted an injury on PW1 with a sword. He suffered an injury on his hand. At that time, Firoz and Fayiz (PW1 and PW2) ran back to their house crying. Mohammed was lying there. They heard a whistle from near the junction and hearing the same, the assailants ran away through the property on the southern side. Three of them ran towards Mohammed. Mohammed was lying blood-soaked with injuries all over his body. He saw PW1 and PW2 running towards their grandfather's house. Sharaf and PW2's grandfather came in a car. Behind them came PW1 and PW2. They took Mohammed and Firoz in the car to the hospital. Thereafter, he heard that Mohammed died and Firoz was admitted in the hospital. He was asked how they had seen the incident. He said that there was an electric post with bulb in the place where Mohammed was lying and there was an electric post with a tube light in front of Mohammed's house and car porch. There was enough light to see the incident. During cross- Crl.A (V).No.746/12 & conn.cases -:37:- examination, the contradiction marked was Ext.D11. He denied having given Ext.D11 statement to the Police that in the scene of occurrence there was an electric post with tube light. According to him the light was from a bulb. In Ext.D13, he denied having stated that 8 to 10 persons had attacked Mohammed. In Ext.D14, he denied having stated that on hearing the Police whistle, Pradeep and others ran away from the scene. The omissions which had been highlighted with reference to his evidence is regarding the source of light. He deposed that he had stated to the police that there was light from Mohammed's house and his car porch. He deposed that he had given statement that there was light in the place where Mohammed was lying. He was asked that other than Ext.D11, (the contradiction which had been marked) he had not stated anything else regarding light and his answer was that he had stated. He further deposed that he had informed the police that he had seen the assailants using sword and billhook. He reiterated that he had informed the police that A4, A5, A7, A8 and A9 had attacked the victim, that he had mentioned to the police that he saw 9 persons attacking Mohammed with swords and billhook, that he saw one person Crl.A (V).No.746/12 & conn.cases -:38:- inflicting injury on PW1, that he saw the accused running away through the property on the southern side, that since the assailants had sword and billhook with them, that they were afraid and therefore they could not help Mohammed and that five of the assailants were RSS members.
29. PW5 is another eyewitness. He was also walking along with PW4. He also deposed in the same line as that of PW4. He however identifies the assailants as A1, A2, A3 and A6. According to him, there were other five persons whom he could not identify. During cross-examination, he denied having heard a police whistle and at that time the assailants had ran away. Ext.D16 is the contradiction. He denied that on 7/6/2004, after the call for morning prayers, between 4.45 and 5.00 am, he proceeded towards the mosque. He also denied having given Ext.D19 statement to the police that he saw 8 to 10 persons attacking Mohammed and inflicting injuries on him. He denied having given Ext.D23 wherein it is recorded that he heard somebody shouting that none of the Mappilas should be left back and they have to be killed. Several omissions have been highlighted by the defence in the statement of PW5. He deposed that he left the house before Crl.A (V).No.746/12 & conn.cases -:39:- hearing the bangu (call for prayer from the mosque). Regarding the source of light, he stated that he had informed the police that he saw the incident with the light from the car porch and the bulb on the electric post and the light from Mohammed's house. He deposed having given statement to the Police that he saw 9 persons attacking Mohammed and that one was holding a billhook and the others swords, that he saw Mohammed being attacked with a sword and the billhook, that he could identify five persons, that 9 of them were RSS members and that the names of A1, A2 and A6 had been informed to the Police.
30. With reference to certain omissions in the testimony of PW1, PW22, stated as under:-
"അക്രമകകാരരികൾ കണ്ടൂ പരരിചയമുള്ളവരകാണണെനന്നും മുൻപരരിചയന്നും ഉള്ളവരകാണണെനന്നും PW1 ണമകാഴരിതനരിടരില. പ്രതരികണളെ വവീണന്നും കണകാൽ തരിരരിച്ചറരിയകാന്നും എനന്ന് PW1 ണമകാഴരി തനരിടരില. 9 പപണര തരിരരിച്ചറരിയകാനുള്ള യണതകാരു വരിവരങ്ങളന്നും അറരിയകാണമനന്ന് PW1 ണമകാഴരി തനരിടരില. (Q) അപത വകാചകതരിൽ ണമകാഴരി തനരിടരില (A). ചന്ദ്രൻ, രതകാകരൻ, ഷഷൈജു എനരിവർ പകസുമകായരി ബന്ധണപ്പെടവർ ആണെന്ന് എനന്ന് കകാണെരിച്ചന്ന് അവരുണടെ പപരുകൾ PW1 പറഞരിരുപനകാ (Q) ഇല (A) 4-ാകാാന്നും പ്രതരിയന്നും 6-ാകാാന്നും പ്രതരിയന്നും ണവട്ടുകയന്നും കുത്തുകയന്നും ണചയ്യുനതന്ന് കണ്ടൂ എനന്നും അവർ വകാൾ ഉപപയകാഗരിച്ചു എനന്നും PW1 ണമകാഴരി തനരിട്ടുപണകാ (Q) അപത വകാചകതരിൽ Crl.A (V).No.746/12 & conn.cases -:40:- തണന ണമകാഴരി തനരിടരില (A)"
Regarding the omissions of PW2, PW22 answered as under:-
"രണന്ന് മരിനരിറന്ന് നരിനന്ന് കണ സമയന്നും പ്രതരികണളെ മനസരിലകാകരിണയനന്നും ഫകായരിസന്ന് (PW2) ണമകാഴരി തനരിടരില "
"ഉപ്പെണയ പറകാഡരിണന്റെ അരരികരിൽ വച്ചു കുറച്ചന്ന് ആളകൾ വകാളണകകാണന്നും മറന്നും കുത്തുനതന്ന് കണ എന PW2 ണമകാഴരി തനരിട്ടുപണകാ (Q) അപത വകാചകതരിൽ ണമകാഴരി തനരിടരില. (A)."
" 9 പപർ ഉപ്പെണയ തടെഞ്ഞു വച്ചു ണവട്ടുനതന്നും കുത്തുനതന്നും കണ എനന്നും വകാളന്നും കതരിയകാളണമകാണക ചരില ആളകളണടെ കയരിൽ കണ എനന്നും ഫകായരിസന്ന് (PW2) ണമകാഴരി തനരിട്ടുപണകാ (Q) ഇല (A) ഇകണയ ണവടരിയ ആളെരിണന്റെ പപരു ഫകായരിസന്ന് (PW2) പറഞ്ഞു തനരിടരില.
ഞകാൻ അവരിണടെ നരിൽക്കുന അവസ്ഥയരിൽ സപഹകാദരണന ണവടരിണയനന്ന് PW2 ണമകാഴരി തനരിട്ടുപണകാ. (Q) അപത വകാചകതരിൽ ണമകാഴരി തനരിടരില. (A)"
"മുൻപന്ന് അറരിയകാവുനവരകാണു കൃതതന്നും ണചയ്തതന്ന് എനന്ന് PW2 ണമകാഴരി തനരിട്ടുപണകാ (Q) അപത വകാചകതരിൽ ണമകാഴരി തനരിടരില (A) അഞ്ചു പപണര 10 ണകകാലന്നും ണകകാണന്ന് അറരിയകാണമനന്ന് PW2 ണമകാഴരി തനരിടരില. ആരുണടെണയങരിലന്നും പപരുകൾ അറരിയകാണമന PW2 ണമകാഴരി തനരിടരില. അഞകാളകളണടെയന്നും പപരുകൾ അറരിയകാമകായരിരുന എനന്നും ഫകായരിസന്ന് (PW2) ണമകാഴരി തനരിടരില. A2 to A6 Crl.A (V).No.746/12 & conn.cases -:41:- ൣ വണരയള്ള പപരുകൾ PW2 പറഞ്ഞു തനരിടരില. അവരുന്നും ഈ കുറകൃതതതരിൽ പണങടുതതകായരി PW2 ണമകാഴരി തനരിടരില. ബകാപ്പെണയ ണവടരിയ അഞന്ന് പപണര പപരുണകകാണന്ന് അറരിയകാണമനന്നും ബകാകരി ഉള്ളവണര കണകാൽ തരിരരിച്ചറരിയകാണമനന്നുംPW2 ണമകാഴരി തനരിടരില."
He further deposed regarding the testimony of PW4 that "വകാപളെകാ കതരിയകാപളെകാ കണതകാപയകാ ആണരങരിലന്നും ആയധങ്ങൾ ഉപപയകാഗരിച്ചന്ന് ആണരണയങരിലന്നും എണന്തെങരിലന്നും ണചയ്യുനതകാപയകാ PW4 ണമകാഴരി തനരിട്ടുപണകാ (Q). അപത വകാചകതരിൽ പറഞരിടരില (A). A4, A5, A7, A8, A9 എനവീ പ്രതരികൾ ആരുന്നും തണന ണവട്ടുനതകാപയകാ , കുത്തൂനതകാപയകാ മുഹമ്മദരികണയ എണന്തെങരിലന്നും ണചയ്യുനതകാപയകാ PW4 ണമകാഴരി തനരിട്ടുപണകാ (Q). അപത വകാചകതരിൽ ണമകാഴരി തനരിടരില. (A). മുഹമ്മദരികകാണന്റെ വവീടെരിണന്റെ മുനരിലള്ള പറകാഡരിണന്റെ ണതക്കു മകാർജരിനരിൽ വച്ചകാണെന്ന് സന്നുംഭവന്നും തടെഞന്ന് നരിർതരിണയനന്നും വളെഞ്ഞു വച്ചന്ന് അക്രമരിച്ചുണവനന്നും PW4 ണമകാഴരി തനരിട്ടുപണകാ (Q). അപത വകാചകതരിൽ ണമകാഴരി തനരിടരില. (A). 9 പപർ അക്രമരിച്ചുണവനന്നും PW4 ണമകാഴരി തനരിട്ടുപണകാ (Q). അപത വകാചകതരിൽ ണമകാഴരി തനരിടരില. (A) അക്രമരികൾ വകാളകളന്നും കതതകാളന്നും ണകകാണന്ന് മുഹമ്മദരിണന ണവട്ടുകയന്നും കുത്തൂകയന്നും ണചയ്തു എനന്ന് PW4 ണമകാഴരി തനരിട്ടുപണകാ (Q). അപത വകാചകതരിൽ ണമകാഴരി തനരിടരില. (A).
ഫരിപറകാസരിണന വകാൾണകകാണന്ന് ഒരകാൾ ണവട്ടുനതന്ന് കണ എനന്ന് PW4 ണമകാഴരി തനരിട്ടുപണകാ (Q). Crl.A (V).No.746/12 & conn.cases -:42:- അപത വകാചകതരിൽ ണമകാഴരി തനരിടരില. (A)"
With regard to testimony of PW5, the following evidence was given:
"ഒരകാളണടെ കയരിൽ കതരിയകാളന്നും ബകാകരി 8 പപരുണടെ കയരിൽ വകാളകളന്നും കണ എനന്ന് PW5 ണമകാഴരി തനരിട്ടുപണകാ (Q). അപത വകാചകതരിൽ ണമകാഴരി തനരിടരില.
(A). വകാൾണകകാണന്ന് ണവട്ടുനതകാപയകാ , കതതകാൾ ണകകാണന്ന് ണകകാത്തൂനതകാപയകാ കണ എനന്ന് PW5 ണമകാഴരി തനരിട്ടുപണകാ (Q). അപത വകാചകതരിൽ പറഞരിടരില (A). ണവട്ടുകയന്നും ണകകാത്തൂകയന്നും കുത്തുകയന്നും ണചയ്തരിരുന എനന്ന് അങ്ങണന 3 തരതരിലകാണെന്ന് മുഹമ്മദരിനന്ന് പരരിപകൽകകാൻ ഇടെയകായതന്ന് എനന്ന് PW5 ണമകാഴരി തനരിടരില."
"കണകാലറരിയകാവുന 5 പപർ അക്രമരികളണടെ കൂടതരിൽ ഉണകായരിരുന എനന്ന് PW5 ണമകാഴരി തനരിട്ടുപണകാ (Q). അപത വകാചകതരിൽ ണമകാഴരി തനരിടരില. (A). 9 പപരുന്നും RSS പ്രവർതകരകായരി അറരിയണപ്പെടുനവരകാണെന്ന് എനന്ന് PW5 ണമകാഴരി തനരിട്ടുപണകാ (Q). അപത വകാചകതരിൽ ണമകാഴരി തനരിടരില. (A)".
"A1, A2, A6 എനരിവരുണടെ അച്ഛണന്റെ പപരുകൾ PW5 പറഞ്ഞു തനരിടരില".
31. PW1, of course is an injured eye-witness. In the court, he identifies A1 to A4 and A6. PW2 identifies A2 to A6. PW4 has Crl.A (V).No.746/12 & conn.cases -:43:- identified A4, A5, A7, A8 and A9 and PW5 has identified A1 to A3 and A6. If any of these witnesses have previous acquaintance with the accused, definitely they would have mentioned the same in their previous statement. One major omission in the evidence of PW1 is regarding the identity of the assailants. Of course, he deposes in his evidence that he had mentioned to the police that he could identify the accused. But when PW22 was examined, he had clearly stated that no such statement was given by PW1. Same is the situation as far as PW2 is concerned. He was specifically asked with reference to his previous statement, whether he had mentioned to the police regarding the involvement of accused 2 to 6. He had given evidence in chief- examination stating that he knew the said five persons for the last ten years whereas no such statement is given to the Police. PW22 has confirmed this fact. Therefore, his evidence also cannot be considered for the purpose of identification of the accused, who were involved in the crime.
32. As far as the evidence of PW4 and PW5 are concerned, the defence has a version that they were basically planted witnesses. The contention urged is that they have a criminal Crl.A (V).No.746/12 & conn.cases -:44:- record, that PW4 and PW5 are residing far away from the scene of occurrence and near their house there was another mosque and there was no reason for them to come to the mosque where Mohammed was going for prayers and that they are NDF workers and their evidence is full of omissions and contradictions. The defence contention that PW4 and PW5 were criminals and that they were NDF supporters, are not supported by any evidence available in the case. Some material had been produced to prove that they were involved in a few crimes. But there is no material to indicate that they were convicted in any of the cases charge- sheeted against them. The said cases were charged subsequent to the incident in the above case. Despite the contentions urged by the defence that PW4 and PW5 had no reason to come to the Mosque near the house of the deceased Mohammed, and a suggestion had been made that there was a Mosque near their place of residence, evidence of PW4 and PW5 only indicates that they were residing near the house of the deceased. Therefore, from the materials placed on record, it is rather clear that presence of PW4 and PW5 in the locality is possible.
33. Yet another argument raised by the defence for Crl.A (V).No.746/12 & conn.cases -:45:- disbelieving the version of PW4 and PW5 is that there is contradiction in respect of the light source which they had mentioned. But it is relevant to note that a witness while seeing an incident of crime may not be in a position to notice that the light source was that of a bulb or tube light or from a nearby building. The question is whether there was some light source by which they could identify the accused. PW16 is the Village Officer who had prepared the site plan Ext.P13. The plan would show that the scene of occurrence was 10.2 metres from the shop rooms of P.V.Mohammed. He was residing in the said compound. The gates of his house were very near to the shop rooms. Three electric posts are mentioned in the scene plan as Sl.Nos.5, 6 and
7. S.No.5 electric post is hardly 4.01 metres from the scene of occurrence. Therefore, despite the minor contradictions in the evidence of PW4 and PW5 regarding the source of light, it cannot be stated that their evidence has to be discarded.
34. Of course, while testifying, PW4 and PW5 denied having given a statement to the Police that they had seen 8-10 persons attacking Mohammed, whereas according to them, there were 9 persons. They also denied having given a statement to the police Crl.A (V).No.746/12 & conn.cases -:46:- that when Mohammed fell down to the road, they heard the police whistle and saw the police coming and at that time Pradeepan and others left the place. These infirmities from the section 161 statement, cannot be treated as major contradictions to discard the evidence of PW4 and PW5. None of these contradictions would affect the main strata of the prosecution case regarding the involvement of the accused to the crime. When PW4 and PW5 had categorically given evidence of having identified the accused before Court, and there is no omission in that regard, their evidence has to be treated as credible enough to sustain the conviction of the accused.
35. There is no dispute about the fact that the crime was committed in the morning hours before sunrise. Muslims in a locality, do hear the call for morning prayers from the mosque, and they proceed to the Mosque for prayers. Therefore, the presence of PW4 and PW5 is probable and cannot be doubted at all and their evidence gives a vivid picture of what happened on the said date. Of course, it may not be possible for an eye- witness, who sees a group attack, to specify as to who were holding the bill-hook, who were holding the swords and each and Crl.A (V).No.746/12 & conn.cases -:47:- every overt act committed by each of them. But, when questioned before Court, they may recollect some or all the overt acts and what they would have witnessed at the relevant time. Once it is found that the evidence of PW4 and PW5 can be treated as creditworthy, it has to be held that the crime against the accused stands proved beyond reasonable doubt.
36. Prosecution has also adduced evidence to prove the recovery of weapons allegedly used for the commission of crime. MO1 sword was recovered on the basis of confession statement of A5 as per Ext.P3 mahazar. PW7 and PW10 has witnessed the recovery. MO2 sword was recovered based on the statement of 4th accused as per Ext.P9 mahazar. PW11 has witnessed the recovery. MO3 sword was recovered on the basis of confession statement of A3 as per Ext. P2 mahazar. PW6 is a witness to Ext.P2 mahazar. PW10 is also a witness to Ext.P8 mahazar by which MO4 sword had been recovered as per the statement of 7 th accused. PW11 is a witness to Ext.P10 mahazar by which MO5 sword was recovered based on statement of A6. Recovery of MO6 and MO7 have been proved by PW22, the Investigating Officer.
37. PW8 is a witness to Ext.P5 inquest report. PW9 is a Crl.A (V).No.746/12 & conn.cases -:48:- witness to Ext.P6 mahazar by which slippers, blood soaked soil, towel, etc. were recovered by the Police. PW18 is a witness to Exts.P14 and P15 mahazars by which the dresses of Shyju and Chandran were recovered. MO12 series and MO13 series were identified by him as their dresses. PW19 is the driver of a jeep. He is examined to prove Ext.P16 mahazar by which lungi and shirt of Vijesh were recovered. MO14 series are the dresses. PW20 is a witness to Ext.P17 mahazar for recovery of MO15 series mundu and shirt of Pradeepan. PW21 is the Head Constable of Iritty police station during the relevant time. He is a witness to Ext.P18 by which the dress worn by A6 was recovered. He is also a witness to Exts.P19 and P20 by which the dresses worn by accused 8 and 7 respectively were recovered.
38. PW12 knew the incident in which Mohammed had died on 7/6/2004. He was an autorickshaw driver at the relevant time. On the previous day, i.e., on 6/6/2004 at about 5.30 p.m, he parked his vehicle in front of C.P.Venu's STD Booth. At that time, he saw Retnakaran entering C.P.Venu's telephone booth and making a call. Thereafter, he came and stood near his autorickshaw. At that time, Sankaran Master came. Sankaran Crl.A (V).No.746/12 & conn.cases -:49:- Master told Retnakaran that they should go to the house of Padikkanchal Pradeep. Some persons from Malapparambu had been sent to the said place, and a decision can be taken there. They should go there with the necessary things. Sankaran Master replied that he is having the necessary things and he will immediately go to that place. He identified A2 Retnakaran and A25 Sankaran Master. This witness had been examined to prove the conspiracy in the house of Pradeepan. Several omissions had been pointed out in his evidence. During cross-examination, he stated that he had said to the police that at about 5.30 p.m, he had parked his vehicle in the autorickshaw stand, that he saw Retnakaran entering the telephone booth of C.P.Venu and making a call, that after Retnakaran finished his phone call, he came near his autorickshaw, that Sankaran Master had asked Retnakaran to proceed to the house of Pradeepan and Retnakaran replied that he would immediately go, but he does not know why the police had not recorded the same.
39. PW13 has been examined to identify accused 15, 18 and
22. He identified A10 as A13. He had been examined to prove that on the previous day, at about 8 pm, he saw some of the Crl.A (V).No.746/12 & conn.cases -:50:- accused proceeding to the house of Pradeep.
40. PW17 deposed that on 6/6/2004 by evening, at about 7.30 pm, he saw 6 to 7 persons coming from Padikkachal school. It was Mohanan, Chandran, Manoj, Biju and Dinesan. Pradeepan and Pappan were behind them. He tried to find out where they were going. They were going to Pradeepan's house. They were members of RSS. By 9 - 9.30 p.m, he went to sleep. Early morning at about 2.30- 3.00 am, he heard a sound. He opened the door and came out and lighted the torch. He saw Mohanan, Pradeepan, Hareendran and 10 other persons going towards the school. They had swords and other weapons. They asked him who he was. He immediately went inside his house. Early morning, when he was proceeding to the mosque at Padikkachal, he heard that a person from Punnad by name Mohammed was murdered. He identified A5, A7, A12, A15, A16 and A17. During cross- examination he stated that he was accused in four criminal cases and in three cases, he was acquitted. Those cases related to NDF- RSS conflicts.
41. PW15 is the Casualty Medical Officer of Medical College Hospital, Pariyaram. He proved the injuries on PW1. Ext.P12 is Crl.A (V).No.746/12 & conn.cases -:51:- the wound certificate. He deposed that such an injury could be caused by a sharp edged weapon like MO3. He further stated during cross-examination that he had wrongly put right(R) mark instead of left (L) mark and correction was done on the same day. During re-examination he further stated that the noting "x-ray R was also a mistake". According to the defence, Ext.P12 was falsely prepared at the instance of the police.
42. As pointed out earlier, the entire case depends upon the identity of the accused involved in the crime. The judgments relied upon by the learned counsel for appellants and the learned Public Prosecutor, no doubt lays down fundamental principles of criminal law. But each case has to be appreciated on its own facts. It is apparently a question of fact whether the evidence of eye-witnesses can be taken as sufficient proof to convict the accused to find the accused guilty.
43. As far as identification of the accused are concerned, though it could be stated that PW1 and PW2 did not identify them immediately after the incident and they had not informed the police about the whereabouts of the accused immediately after the incident, the evidence of PW4 and PW5 clearly proves their Crl.A (V).No.746/12 & conn.cases -:52:- involvement in the crime, which is corroborated by the recovery of weapons, based on the confession statement of some of the accused.
44. PW22 admitted that he had not recorded the dates on which statements of PW5, PW4 and CW5 were recorded, but he deposed that it could be seen from the case diary. He further deposed that though the case proceeded on the basis of statement in FIS, during investigation, it was found that PW3 had given incorrect information regarding the identity of the accused and hence, a report was submitted to the court as Ext.P41. PW22 was also specifically asked about the involvement of Prabhakaran, a Police Constable. Defence relied upon Ex.D40 series which would show that Prabhakaran was given a cash award for bravery for his involvement in the incident, when Mohammed was being attacked and that Prabhakaran had taken the injured to the hospital. PW22 deposed that the Superintendent of Police during the relevant time did not understand the exact state of affairs and had given the award. According to the defence, Prabhakaran was deliberately avoided from being a witness in the case in order to fabricate the case. Crl.A (V).No.746/12 & conn.cases -:53:- We do not think that such arguments would render any assistance to the defence. Evidence of PW1,PW2, PW4 and PW5 would prove that the assailants ran away from the scene on hearing the police whistle. Therefore, there is no possibility for Prabhakaran to have witnessed the incident. That apart, according to the witnesses, the victim was immediately taken to the Hospital by the victim's father and brother.
45. Another contention urged was regarding the non- examination of Sub Inspector Unnikrishnan, who was the Station House Officer on duty. But, we do not think that non-examination of the said Officer would cause any prejudice to the defence, especially when the document prepared by him has been produced and proved in accordance with law.
46. From the above discussions, it is also clear that there is no evidence or any material against the other accused to interfere with their acquittal. Consequently Crl.Appeal(V) No.746/2012 deserves to be dismissed.
47. In the light of the above discussion, we are of the view that the conviction and sentence of the accused do not suffer from any illegality or infirmity warranting interference. Crl.A (V).No.746/12 & conn.cases -:54:- Crl.Appeal Nos.808/12 and 1516/2012 are also dismissed.
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