Kerala High Court
Ouseph @ Kuttan vs State Of Kerala on 15 October, 2008
Bench: K.Balakrishnan Nair, M.C.Hari Rani
IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL.A.No. 297 of 2005()
1. OUSEPH @ KUTTAN, PANACKKALPURAYIDATHIL,
... Petitioner
2. ZEETUS, MAVELITHAYYIL VEEDU,
Vs
1. STATE OF KERALA, REPRESENTED BY
... Respondent
For Petitioner :SRI.M.SUNILKUMAR
For Respondent : No Appearance
The Hon'ble MR. Justice K.BALAKRISHNAN NAIR
The Hon'ble MRS. Justice M.C.HARI RANI
Dated :15/10/2008
O R D E R
K.BALAKRISHNAN NAIR &
M.C.HARI RANI, JJ.
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CRL.APPEAL NOS. 297 & 298/2005
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Dated 15th October, 2008.
JUDGMENT
Balakrishnan Nair, J.
The accused 1 and 5 in S.C.No.87/97 of the Court of Additional Sessions Judge, Alappuzha are the appellants in Criminal Appeal No.297/2005. The accused 2 to 4 in the very same Sessions Case are the appellants in Criminal Appeal No.298/2005. Since both the appeals are directed against the very same judgment, they are heard and disposed of by this common judgment.
2. The case of the prosecution in brief is as follows: The accused 1 to 5 along with 20 other accused were charge-sheeted by the Circle Inspector of Police, Alappuzha, for the offences punishable under Sections 143, 144, 148, 302, 307 and 324 read with Section 149 of the I.P.C. According to the prosecution, the accused formed themselves into an unlawful assembly with a common object to Crl.A.No.297 & 298/2005 2 murder Baiju and PW2. To achieve the above common object, the members of that unlawful assembly armed with deadly weapons attacked Baiju and PW2 at about 3.30 p.m. on 17.1.1994. The place of occurrence was the courtyard of house No.504 known as Vavakkadu house in Ward No.XIII of Mararikulam South Panchayat in Pathirappally Village. The accused were harbouring previous enmity towards Baiju, PW2 and others, for their role in obstructing a 'Ganamela' which was held in May, 1993 in Amalotbhava Kurisupura at Omanappuzha, which is a place near Alappuzha beach. On 17.1.1994 at about 3.30 p.m. when the deceased and PW2 came for tapping coconut trees in the property of Joseph Kocheekkaran, which is situated on the north of Vavakkadu house, the accused surrounded them from all the four sides and attacked them using sickle, chopper, iron rod, iron pipe, sticks, cycle chain etc. Mr.Baiju was hit on the head by the 1st accused using a glyricidia stick. Thereupon, he fell down and he was attacked by the other accused using the deadly weapons in their hands. PW2 tried to rescue him by waving his knife used for tapping coconut trees. But, he was attacked by the mob and he Crl.A.No.297 & 298/2005 3 took refuge in the near-by house. That house was belonging to PW3 Selin. Though, Selin attempted to prevent the attack, the accused stormed into the house and brutally attacked PW3 also. Under the belief that both were dead, the mob went away.
3. The people of the locality, who came running to the scene, took Baiju and PW2 to the Medical College Hospital, Alappuzha, where Baiju was declared dead. But, PW2 survived the attack. Ext.P1 F.I. Statement was lodged by PW1 Alphonsa. It was recorded by PW22, Additional Sub Inspector of Police, Alappuzha North Police Station, who registered Crime No. 26/94. The investigation was taken over by PW23, Circle Inspector of Police. PW23 conducted the inquest, questioned the witnesses and completed major part of the investigation. PW24, the successor-in-office of PW23, verified the investigation and filed the charge before the Judicial First Class Magistrate's Court-I, Alappuzha. Since there was some defect in the charge, it was returned. It was verified and re-presented by PW25, who was the Circle Inspector of Police at the relevant time. The learned Magistrate committed the case for trial by the Sessions Court. Crl.A.No.297 & 298/2005 4 The learned Sessions Judge made over the case to the Additional Sessions Judge, Alappuzha.
4. The accused pleaded not guilty to the charges framed against them. From the side of the prosecution P.Ws. 1 to 25 were examined and Exts.P1 to P70 were marked. Material objects, M.Os.1 to 24 were also produced and marked. From the side of the defence, Ext.D1, which is a portion of the statement of PW4 made under Section 161 of the Cr.P.C. was also marked. The learned Additional Sessions Judge, after hearing both sides, found accused 1 to 5 guilty of the offences under Sections 143, 144 and 148 of the I.P.C. They were also found guilty under Sections 324, 307, and 302 of the I.P.C., read with Section 149 of the I.P.C. They were convicted for the offences under the above Sections. They were sentenced to undergo imprisonment for life and to pay a fine of Rs.25,000/- each for the offence under Section 302 read with 149 of the I.P.C, and in default to pay the fine, to suffer simple imprisonment for one year each. They were also sentenced to undergo rigorous imprisonment for 10 years for the offence under Section 307 read with Section 149 of the I.P.C., 2 months rigorous Crl.A.No.297 & 298/2005 5 imprisonment for the offence under Section 324 read with Section 149 of the I.P.C, 2 months rigorous imprisonment for the offence under Section 143 and one year's rigorous imprisonment each for the offence under Sections 144 and 148 of the I.P.C. It was also ordered that the terms of imprisonment for the offences under Sections 307, 324, 143, 144 and 148 of the I.P.C. shall run concurrently with the imprisonment for life awarded under Section 302 read with Section 149 of the I.P.C. It was further ordered to grant set off under Section 428 of the Cr.P.C., in respect of the period of detention suffered by them as under-trial prisoners, subject to the provisions contained under Section 433A of the Cr.P.C.
5. The aggrieved appellants/accused have preferred these appeals on various grounds. The learned counsel for the appellants M/s.Sunil Kumar and R.Bindu Sasthamangalam submitted that only PWs 2, 4, 5 and 8 supported the prosecution. All other witnesses were hostile. The trial court only believed the version of PW2 and based on the evidence of the said witness, the appellants were convicted. The appellants would point out that a close reading of the evidence of PW2 Crl.A.No.297 & 298/2005 6 would show that he is a tutored witness and his version lacks credence. They pointed out that the version given by PW2 regarding the occurrence is improbable. Before the court, PW2 submitted that he knows only accused 1 to 5. Though, he is familiar with A6 and A7, he does not know their names. It was also stated that he has seen A11, A14, A15, A18, A19, A20 and A23, but he does not know their names. But, going by his statement under Section 161 of the Cr.P.C., he has named all the 24 persons before the police. The same is proved through the investigating officer. Going by the version of PW2, all the accused, after inflicting a few injuries on Baiju chased PW2 and entered the house where he sought shelter. The above version of PW2 does not tally with the medical evidence regarding the injury on the body of the deceased. The room where PW2 tried to hide himself is a small room, which cannot contain all the 24 accused. Further, the scene mahazar would show that everything in that room remained undisturbed, notwithstanding the entry of so many persons for attacking PW2. It is also pointed out that the versions of PWs.4 and 5, who supported the prosecution, did not corroborate the evidence of Crl.A.No.297 & 298/2005 7 PW2. The learned counsel for the appellants pointed out that PW4 has stated before the police that all the 24 accused entered the building to attack PW2. But, while in the box, he retracted from that. That will be evident from Ext.D1, it is submitted. While in the box, he stated that 10 to 12 persons entered the room, chasing PW2. The learned counsel also pointed out that PW4, who was standing in the neighbouring property, could not have witnessed the attack made on Baiju, the deceased. PW5, before the police, named 23 accused persons. But, while in the box, he stated that he knew only A2 and A3. He did not know the names of others. PW5 has also stated that all the accused chased PW2. So, the learned Additional Sessions Judge has rightly disbelieved PWs.4 and 5, it is submitted. PW8 is the brother of PW2. He was also disbelieved by the learned Additional Sessions Judge. The learned counsel also brought to our notice certain other circumstances in favour of the appellants. In the house of PW3, no blood was detected on the floor. The case of the prosecution is that PW2 was lying flat on the floor and he was attacked several times by the accused using deadly weapons. As a result, he Crl.A.No.297 & 298/2005 8 sustained 14 injuries, of which 12 are incised injuries. If that be so, PW2 must have bleeded profusely and blood must have been detected on the floor of the house. Another circumstance canvassed by the appellants for impeaching the credibility of the prosecution case is regarding the recording of the F.I. Statement. PW1, who sustained injury on her middle finger, index finger and little finger of her left hand, met the Doctor for medical treatment on 18-1-1994 at 9.40 a.m. only. The Assistant Sub Inspector of Police, who recorded the F.I. Statement, noted that the fingers of PW1 were bandaged. So, according to the learned counsel, her F.I.Statement might have been recorded after her treatment in the morning of 18-1-1994. The records were manipulated to appear that it was recorded on the previous day. The appellants also pointed out that the identification of the accused for the first time in court cannot be relied on. Further, at the time of trial, the learned Additional Sessions Judge insisted that all the accused should stand in the dock according to their rank, i.e. A1 should stand first and A25 should stand last. Further, the accused were asked to enter the dock one by one, on calling their respective names. Crl.A.No.297 & 298/2005 9 Therefore, the witnesses got a chance to identify them. For this reason also, the identification of the accused by the witnesses lacks credibility, it is submitted. The learned counsel also submitted that almost all the injuries were caused to the leg of Baiju and not on any vital parts. So, there was no common intention to kill him. The learned counsel pointed out that each accused should be convicted only for the overt act done by him. In this case, A5 only attacked PW2 and not the deceased and therefore, his conviction under Section 302 is not justified. There was no intention to murder Baiju and PW2. If that be so, the vital parts of the deceased and PW2 would have been targeted using the deadly weapons. So, even assuming the case of the prosecution is correct, the offence under the first part of Section 304 of the Indian Penal Code alone is proved, it is submitted.
6. In answer, the learned Public Prosecutor made the following submissions: He submitted that the first information statement was recorded on the very same day. A woman in a village, upon sustaining injury, would immediately bandage her fingers. She would not have awaited till she reached the hospital on the next day. The Doctor Crl.A.No.297 & 298/2005 10 must have examined the injury after removing the bandage put by her. Therefore, the claim of the defence that the F.I. Statement must have been recorded on the next day and the records were manipulated to appear it as one recorded on 17-4-1994, is plainly untenable. PW2 has stated that 10 - 12 persons entered the room. He was attacked by several persons using deadly weapons. Therefore, he cannot be expected to remember all the details accurately. The same cannot be a ground to disbelieve his version. All the accused joined together and surrounded the deceased and PW2. There was a common object harboured by the members of the unlawful assembly to murder them. Therefore, overt act of every individual member of the unlawful assembly is not necessary to sustain the conviction. The learned Public Prosecutor also submitted that the criticism made by the trial court against the evidence of PWs.4 and 5 is unjustified. The crime was committed in broad day light. The presence of the accused have been spoken to by PW2 and other witnesses. Even the hostile witnesses have spoken about the presence of a group of persons, who attacked the deceased and PW2. Therefore, the learned Public Prosecutor prayed Crl.A.No.297 & 298/2005 11 for dismissing the appeals.
7. Before dealing with the rival contentions, we will refer to the evidence on record, including the depositions of the witnesses. PW1 is a house wife. She admits that she suffered injury on 17-1-1994. She has given Ext.P1 F.I. statement before the police. Hearing a hue and cry, she went to the scene. The incident happened in front of the house of her sister-in-law, Selin, who is PW3. When she went there, she heard a hue and cry and also saw beating of some persons. She did not know the persons involved. There were weapons in the hands of many persons. But, she does not say which were the weapons and who were carrying them. She rushed to the scene, asking them to forbear from doing anything. In that incident, she suffered injury on three fingers of her left hand. Though PW1 admitted, giving the F.I. statement and spoke about the incident in general terms, she was declared hostile, as she failed to identify the accused.
8. PW2 is a toddy tapper. He was a friend of Baiju, the deceased. They were attached to T.S.No.40 of Ambalapuzha Taluk. The toddy shop is on the north eastern side of Omanapuzha Church. Crl.A.No.297 & 298/2005 12 He along with Baiju went for tapping coconut trees on the fateful day. He stated that he does not know the names of A6 and A7. He has seen A11, A14, A15, A18, A19 and A20, A22 and A23, but he does not know their names. He knew all other accused. The incident took place at 3.30 p.m. on 17-1-1994. The scene of occurrence was the house belonging to Benchappan (Benjamin -PW6), Bavakattil, Chettikkad. On 17-1-1994 at about 3 p.m., he along with Baiju started for toddy tapping. They travelled in bicycles. The bicycles were placed by the side of the road, going to the Beach and they walked to the south. When they reached in front of the house of Benchappan, all the accused came and surrounded them. A1 was carrying a wooden stick. A2 was having a sickle (used by coconut climbers). A3 was also carrying a sickle. A4, A5, A8, A10, A14 and A25 were respectively carrying sword stick, iron pipes, wooden stick and chopper. The other accused were carrying sticks, iron rods etc. A1 hit on the head of Baiju using a stick. Baiju fell down on the floor. A2 cut on the right leg of Baiju, 3- 4 times. A3 cut on the left leg of Baiju using a sickle, 4-5 times. Again the said accused cut at the ankle of Baiju. A4, using a sword- Crl.A.No.297 & 298/2005 13 stick cut on the ankle of Baiju. Seeing this, PW2 came forward to save him. Thereupon, the second accused, using a sickle, cut on the right hand elbow and forearm. The third accused, using a sickle, cut on his right hand. Those cuts hit above the elbow and also on his palm. PW2 felt that they were going to kill him. So, he unsheathed the tapping knife and waved it at them. Three or four persons were injured. Thereupon, the 5th accused using an iron pipe, hit on the right forearm of PW2. The tapper's knife fell from his hand. On realising that he is going to be killed, PW2 rushed into the house of Benchappan. Benchappan's wife covered him using a mat. The accused rushed into the room through the doors and removed the mat. He was struck on his left hand. A25 cut on his left hand. Others cut and also struck on his head and back. Fearing that he would be killed, he lay down without any motion like a dead man. PW1 came and tried to prevent the attack. She suffered cut injury on her fingers from the sickle used by the second accused. PWs.1 and 3 cried aloud. People came rushing to the scene. Then the accused said he (PW2) is dead and went away. The people assembled there only thereafter. The son of PW1 called an Crl.A.No.297 & 298/2005 14 autorickshaw and they were taken to the Medical College Hospital. PW2 was taken to the operation theatre. Later, he came to know that Baiju was already dead. He was in the hospital for 26 - 28 days. He continued his treatment in his house for 3 = months. Baiju's younger brother Gandhi and his friends went for watching a Ganamela in Amalobhavamatha Kurisupalli, Omanapuzha. Gandhi and his friends danced when the last song was sung. There was a clash between the organizers and Gandhi. It was on 31-5-1993. Next day Gandhi and his family members attacked A3 and A4. Cut injuries were inflicted on them. A crime was registered in connection with the said incident. Baiju, PW2, Gandhi, the brother of Baiju, his father Chellappan and Thyagarajan, the brother of PW2 were accused in that case. On 16-1- 1994 one Mr.Sabu, who was coming after seeing a film was beaten. He did not know Sabu. Alleging that Baiju and PW2 have beaten Sabu and to take revenge, they were attacked on the fateful day. The witness identified MO1 mat used by PW3 to cover him. MO2 sickle was used by A2. MO3 sickle was used by A3. MO4 sword-stick was used by A4. MO5 stick was used by A10. MO6 stick was used by Crl.A.No.297 & 298/2005 15 A25. MO7 sheath of the tapper's knife was used by PW2. MO8 sheath of the tapper's knife was used by Baiju. MO9, the wooden stick was used by A15. MO10 wooden stick was used by A1. MO11 iron pipe was used by A5. MO12, iron stick was used by A14. MO13 iron stick was used by A12. He also identified Mos.14, 15 and 16, which were the iron pipes and iron sticks used by some of the assailants. He also identified MO17. It was a wooden stick in the hands of A1. PW2 corrected that MO10 was not the wooden stick used by A1. It was so stated by mistake. He further identified MO17 and MO17(a). It was a wooden stick, which broke into two pieces. They were marked as MOs.17 and 17(a) respectively. He also identified MO18, a stick which was in the hands of one of the accused. He also identified the blood-stained brick, MO19, recovered from the house of Benchappan. He identified MO20 tapper's knife used by him, MO21, tapper's knife used by Baiju and MO22 cycle chain used by A25. In the cross- examination by the defence, the witness stated as follows: The toddy shop was run by his elder brother Mohandas. Some of the coconut trees tapped by him were on the northern side of the scene of Crl.A.No.297 & 298/2005 16 occurrence. Two of them belong to Chellappan and Joseph. They were near the scene of occurrence. PW2 used to go for tapping along with Baiju. The witness is residing on the eastern side of the toddy shop. The trees have to be tapped at 9 a.m., 3 p.m. and 7 p.m. If the work started at 9 a.m., it would be over by 11 a.m. The coconut trees are at a distance of about 3 - 4 kilometres from his house. On that day, the tapping work was started at noon. They came after tapping one coconut tree. At noon normally, toddy will not be removed. So, they did not carry any pot for taking toddy. The police questioned him 2 or 3 times. He did not remember when he was questioned. There was only one case in which he and Baiju were the accused. Gandhi was an accused in one more case. It was a murder case, which took place in Pattukulam temple. The attack from the accused was unexpected. The time taken to attack Baiju was less than eight minutes. PW2 was all along trying to prevent the attack. The witness was attacked after the attack on Baiju. When he tried to prevent the attack on Baiju, he was beaten from behind using a wooden stick. He does not remember who had beaten him. He does not know the size of Crl.A.No.297 & 298/2005 17 the room into which he entered. Some of the accused also entered the room. About 10 to 12 persons might have entered the room. He did not see the same properly. On being beaten, Baiju fell down and at that time no one was attacking PW2. Baiju was surrounded and attacked. He does not remember the time when he was attacked. He was exhausted. 2 or 3 persons took him to the hospital. He cannot say who took him to the hospital. Axe was not used to attack him. The attack was sudden. It took some time. He does not know how many minutes were taken. The known persons were named before the police. Since six years were already over, the witness stated that he does not remember the names told by him. To a specific question as to how many were named by him, he said that he named eleven persons. He was asked whether he had noted any peculiarities to identify the weapons. He stated that he saw the same in the hands of the accused. He has not stated any particular marks to identify them. He told the police that A25 attacked him while he was in the house of PW3, using a chopper. He told the police about the same. He told the police that A10 and A25 attacked him, while he was in the house of PW3. All of Crl.A.No.297 & 298/2005 18 them attacked. He does not remember whether the accused entered the room from two sides. He has told the police about the entry of A10 and A25 into the room. He has not stated before the police as to who removed the mat. Another question was put to him as to whether Baiju was attacked again, after attacking him. He said that he was inside the room. There were houses on both sides blocking the view. They were taken to the hospital in two autorickshaws. He told the police about the weapons carried by some of the accused. He gave the house names of some of the accused. He remembers that he has told the police about the house names of A3 and A14. The defence pointed out that the witness has not stated the house names of any of the accused before the police. In reply, PW2 said that he was questioned 2/3 times by the police. PW2 further added, he cried stating that he may not be killed. When Baiju was attacked, he tried to prevent the same. He does not remember whether he has told the police that he was also injured when Baiju was being attacked. PW2 was injured after Baiju sustained injuries. While A2 cut him, some persons were beating him. He did not watch the beating. He was watching the Crl.A.No.297 & 298/2005 19 infliction of cut injuries. He has named before the police those accused whom he identified in the court. He was confronted with his statement before the police that he named 24 persons and the weapons used by them. In answer, he stated that the same might have been told by other witnesses. It is not correct to say that PW2 interfered after Baiju was injured. He has not stated before the police that all the accused chased him and caused injury to him. All the accused might have come. Among them, some entered the house. He told the police that he was attacked by A10, while he was in the house of PW3. He has nothing to say, if the police have not written like that. He has also stated before the police that A25 entered the house and caused injury to him. If his statement does not show that A25 was among the accused, the same is not correct. A25 was there in the mob. He denied the suggestion that he had given a false statement regarding the incident on 16-1-1994. The witness does not remember whether he was drunk on the said date. Baiju has not taken any drinks. He has stated before the police that somebody among the accused was carrying a cycle chain. He saw the cycle chain in the hands of A25. Baiju was residing Crl.A.No.297 & 298/2005 20 in his neighbourhood. To a suggestion that Baiju and the witness were accused in several cases, he answered in the negative. He also denied the suggestion that he had made many enemies and he was attacked by unknown persons among them. The accused were his enemies. It is not correct to say that 15 unknown persons attacked them using axe etc. He denied the suggestion that he gave false evidence against the accused. He was confronted with his statement concerning the role of Anil Das, Kunjumon, Ummachan, Jiji, Benny. He replied that he does not know their names. He has stated before the police that persons not known by name were there to attack him.
9. PW3 is an occurrence witness. But, she has turned hostile to the prosecution. She stated that she does not know Baiju or PW2. She heard about the death of a person called Baiju. She was not questioned by the police in connection with the death of Baiju. She has not stated before the police that she has seen the incident. In view of the above stand of the witness, she was declared hostile to the prosecution and cross-examined.
10. PW4 is a loading worker, who is residing on the eastern Crl.A.No.297 & 298/2005 21 side of Omanapuzha Church. He knew Baiju and PW2. He also knew the accused. He saw the incident which took place at 3.30 a.m. on 17- 1-1994. The incident took place at Chettikkadu Beach, near the house of PW3. The police questioned him. He had gone to the house of Chellappan @ Joseph Kochikaran. He went there to sell coir fibre. Chellappan was running a factory. After he reached Chellapan's house, PW5, Chandradas came. When the witness went there, Chellappan was not available in the factory. So, he was waiting for Chellappan. While so, he saw PW2 and Baiju coming for tapping coconut trees. When they reached in front of the house of PW3, some persons came and surrounded them from four sides. It was the accused who surrounded them. A1 hit Baiju on his head using a wooden stick. Using a sickle A2 and A3 cut Baiju. PW2 tried to prevent them from attacking Baiju. Thereupon, A5 beat PW2. Iron pipe was used for beating him. Immediately PW2 unsheathed his tapping knife and waved at the assailants. Thereupon , A2 and A3 attacked PW2 using the weapons in their hands. When the tapping knife fell down from his hand, PW2 ran into the house of PW3. Some of the accused entered Crl.A.No.297 & 298/2005 22 the house of PW3. A2 and A3 were among them. Some persons beat and cut Baiju and thereby inflicted injury on him. When the accused came out, the witness was scared. So he went home. The witness went to the house of Baiju and PW2 to tell about the incident. Later, he went to the hospital during the night. He understood that Baiju was already dead. When there was a Ganamela in the nearby Kurisupally, Baiju along with his younger brother, PW2 and some of his friends created a scene there. Thereupon, there was a quarrel and a case was also registered. He identified the weapons used for the attack. He saw MOs.2 and 3 in the hands of A2 and A3. The other weapons were those which were used by the accused. He cannot say which of the accused used which of the weapons. He saw MO20 in the hands of PW2. He cannot remember the other weapons used by other accused because of the lapse of time. He had told the police what he saw. In the cross-examination, he stated that he is a relative of Baiju. When he came to the house of Chellappan, it was about 3 p.m. He brought the coir fibre from Thumboli. The distance between his house and the scene of occurrence will come to 3 kilometres. PW2 is residing on the Crl.A.No.297 & 298/2005 23 north eastern side of his house. The police questioned him once. It was two days after the incident. He was summoned to the police station and questioned. He watched the incident on hearing a noise from there. He saw the accused encircling the victims and attacking them by cutting and beating. He knew the houses of all the accused. He has forgotten the houses of some people. PW5 is his classmate and friend. He knew Mr. Mohandas, the elder brother of PW2. The said person has come to the court. He also knew PW2, who has come to the court. The toddy shop of Mohandas is at a short distance from his house. He does not know the house name of PW5. He knew Kannadi James. He has not seen the incident, which took place in the house of PW3. When he was unloading fibre and coir, PW5 came. He talked for about five minutes. They were standing on the northern side of the house of Chellappan. He does not know whether the land belongs to Chellappan. When the incident took place, he was standing there. Since the brother of Mohandas was involved, he moved towards them. The attack continued even then. On being hit by a wooden stick, Baiju fell down. The other injuries were inflicted on Baiju at that spot. He Crl.A.No.297 & 298/2005 24 cannot say how much time was taken for the attack on him. The witness further stated that all the accused were standing in a bent position and attacking Baiju, who was lying down. A5 attacked PW2 when he waved his tapper's knife. When PW2 was being attacked inside the room, Baiju was also being attacked. He cannot remember exactly who were the persons attacking Baiju. About 5 to 10 persons were attacking Baiju. Some people were watching, standing here and there. Since the witness was scared, he returned from the scene. Since the strength of the accused was large, he ran away to escape from them. He went to the house of Baiju and told his father about the incident. He went there along with PW8, Mohandas. When PW2 was being attacked, he was not able to say, which portions of the body of Baiju were being subjected to attack. He was standing at a distance with fear. 8 to 10 persons were surrounding him and attacking him. 10 to 24 persons came, creating a huge noise and started beating. The accused came running in groups from here and there. He identified A16, Kalappurakkal Benny. He does not remember what was the weapon used by the said accused. The witness was standing at some Crl.A.No.297 & 298/2005 25 distance from the scene. His house is on the northern side of Pattukulam temple. When he went to the house of Baiju, the said Baiju was lying there (scene of occurrence). He told the people in Baiju's house that Baiju was being attacked. He does not remember whether all the accused entered the house, following PW2. He has not stated before the police that all the accused followed PW2. He told that some persons chased him. If the police have written that he has stated that all the accused ran into the house, he has nothing to say. The said contradiction was marked as Ext.D1. He told about the incident to the mother of PW2. When he went to the hospital it was 6 p.m. He took only 10 to 15 minutes to reach the house of Baiju. Thereafter, he went to raise some funds. Later, he went to the hospital. Before he went to the hospital, people from the house of Baiju or PW2 might have gone to the hospital. He does not know, actually, who were the persons, who went to the hospital. He does not know whether the family members of Baiju and PW2 went to the scene of occurrence. He heard that Baiju and PW2 were taken to the hospital in an autorickshaw. Before PW2 entered the house, he was surrounded by the accused and Crl.A.No.297 & 298/2005 26 was being attacked. Baiju fell down on being hit by the stick. The witness went to his house straight from the scene of occurrence. He does not remember whether he told the police about any identification marks of MOs.2 and 3. After PW2 entered the house, the witness saw him in the hospital only. He knew the names of only some of the accused. He told the names of only those persons before the police. He told the police that he can identify on sight, those persons whose names are not known to him. He has not named 24 persons before the police. He told only the names of a few persons. The remaining names might have been told by PW2. He does not remember whether he has stated before the police that there were persons who could be identified on sight. He does not remember whether he has stated before the police that Baiju was also being attacked, when PW2 was being attacked. He has no direct knowledge regarding the quarrel which led to the incident. He has not noted any particular mark on the tapper's knife. He denied the suggestion that he has not seen anything, but he is swearing falsehood because he is a relative of Baiju and friend of PW2.
Crl.A.No.297 & 298/2005 27
11. PW5 is an eye-witness. He knew Baiju and PW2. He knew the incident in which they were injured. He can identify all the accused on sight. He knew A2 and A3 by name. He does not know the names of other accused. The incident took place at 3 p.m .near the Beach. He told the police what he knew about the incident. Chellappan owed some amount to him. His house was near the scene of occurrence. When PW5 went there, PW4 brought some coir fibre and it was being unloaded. When enquired about Chellappan, the witness was told that he would come soon. He waited for Chellappan on the northern courtyard along with PW4. Then PW2 and Baiju came for toddy tapping from the northern side. When they reached in front of the house of PW3, they heard a cry. They were standing, talking to each other. Baiju was hit on his head by a person using a stick. The witness pointed to A1, as the person who attacked Baiju. He does not know the name of A1. Baiju fell down. Thereupon, A2 inflicted a cut injury on Baiju, using a sickle. The injury was inflicted on his leg. Simultaneously, A3 also attacked Baiju using a sickle. There was a hue and cry. The witness was scared. PW2 intervened, asking them to Crl.A.No.297 & 298/2005 28 forbear from attacking Baiju. He waved his tapper's knife. This created a tense situation. There was counter attack. The tapper's knife fell from the hands of PW2. Simultaneously, Baiju was also being attacked. They were persons, who came along with A2. There were 25 persons. They are the accused standing in the dock. PW2 was beaten and cut injury was inflicted on his body. Then PW2 ran into the house of PW3. PW3 rushed into her house crying and asking the accused not to attack PW2. The witness heard cries from inside the house. After some time, the accused came out, saying that he was already dead. The witness was scared. The reason for the attack was that earlier there was some dispute between Baiju's younger brother and friends with some others. It was in connection with some function in the local Church. The witness identified the weapons used for the attack. M.Os. 2 and 3 appear to be the weapons used by A2 and A3. Tapper's knifes similar to M.Os.20 and 21 were with Baiju and PW2. M.Os.7 and 8 were the sheaths of tapper's knife with PW2 and Baiju. He cannot say, which were the weapons carried by each of the accused. All the accused carried weapons. The witness pointed to A4 and said that he was Crl.A.No.297 & 298/2005 29 carrying a sword stick. That sword stick was M.O.4. On the date of the incident, by evening Baiju died of the injuries sustained by him. In the cross-examination, he stated that he was an employee in Sanghom Textiles for 17 years. The scene of occurrence was at a distance of 4 kms from his house. He was engaged in the business of money lending. Chellappan was his father's friend. He used to lend money to Chellappan for interest. He has lent money to about 30 persons. If Rs.1000/- is requested as loan, he will give Rs.900/-. He will collect Rs.100/- per week for 10 weeks. He was a classmate of PW4. Thyagarajan, the brother of PW2 was also his classmate. The second accused is a friend of him. He was called to the Police Station once and questioned. It was by the end of the week in which the incident took place. He heard the sound of attack. He saw Baiju being beaten. He has stated the names of only two persons before the police. The same was stated by him before the court also. He has stated before the police that he could recognize on sight those who came along with A2 and A3. He has not identified the accused thereafter. He went to the house of Baiju and told about the incident. Baiju fell down crying, on being Crl.A.No.297 & 298/2005 30 beaten up by the accused. Immediately, A2 and A3 inflicted cut injuries. They beat him also. PW2 took the tapper's knife and waved. Thereafter there was mass violence and loud cries. No one went near the assailants. One lady came running. Seeing the incident, the witness and PW4 were frightened and they went away. They went riding a cycle to the house of the victims and informed about the incident. PW8 Mohandas is a friend of him. He did not see him on the said date. He cannot speak about the details of the injuries sustained. When PW2 was being attacked, about 10 persons were attacking Baiju also. Some persons ran after PW2 and entered the house. He cannot say how many persons entered the house. From inside the house, there was a hue and cry. He cannot say who were the persons, who continued to attack Baiju at that time. All the assailants were armed with weapons. Whatever he has stated before the court was stated before the police also. If the police have recorded that he has named 23 persons, the same cannot be correct. He does not know the house name of PW4 and he has not stated about it before the police. He went to the Police Station along with PW8. It appears, he has given the house Crl.A.No.297 & 298/2005 31 name of PW4 as "sarpathil" before the police. He has not stated about Puthenpurackal Unnikrishnan. If the police have recorded like that, he has nothing to say. He stated before the police that there were 24 persons and all of them were carrying weapons. He has not stated that they were not having weapons. The witness took time and then stated that it appears, there were no weapons in the hands of 5 or 6 persons. He has stated that about 5 persons were not carrying any weapons. He does not remember it now. If the police have not written like that, he has nothing to say. He told the police that he does not know the names of all the persons. PW2 gave the names of some persons. Then he was asked whether he knew them. He answered in the affirmative. He knew about the weapons used by four persons. He has not mentioned about the details of the weapons. To a specific question, he answered that he has named the persons who were familiar to him and also the weapons carried by them. He was asked whether he has stated before the police that Kuttan beat Baiju using a stick carried by him. He replied that he did not name the person. But, stated that a person beat Baiju using a stick. He pointed to A1 and stated that it was he who beat Crl.A.No.297 & 298/2005 32 Baiju. To a specific question whether he has stated before the police that Ouseppachan cut Baiju using a sword stick, he replied that he did not name any person. But, stated only that he saw a person attacking Baiju using a sword stick. He pointed to A4 and stated that it was he who attacked PW2. If the police have not recorded like that, he has nothing to say. The accused were simultaneously attacking PW2 and Baiju. He has so stated before the police. If the police have not recorded that, he has nothing to say. He has not stated that all the accused entered the house of PW3, following PW2. He denied the suggestion that he is stating falsehood as requested by his friends.
12. PW6 is the husband of PW3. In his house, the incident relating to the attack on PW2 took place. He is a contractor engaged in the work of sea wall. He was examined, mainly to show that some of the accused working under him on the date of occurrence went away and they did not return on that day, after the incident took place. But, he turned hostile to the prosecution.
13. PW7 also turned hostile to the prosecution. She was one of the witnesses who came to the scene after the assailants left. She was Crl.A.No.297 & 298/2005 33 examined to prove that she saw the accused running away from the scene of occurrence. But she did not support the prosecution case.
14. PW8, who is the brother of PW2, has deposed that on getting information regarding the attack on his brother and his friend, he rushed to the scene of occurrence. He saw the accused going away from the scene, carrying deadly weapons. He has also deposed that he saw the accused soaked in blood. The weapons carried by them were also blood-stained. By the time he reached the scene, the injured were already taken to the hospital. He has spoken about the weapons carried by many of the accused. He stated that A1 was carrying a wooden stick. A2 and A3 were carrying sickles. A4 was carrying a sword stick. A5 was carrying an iron road. A10 was having a chopper. A15 was carrying an iron rod. A25 was found carrying a sickle. He was scared and he watched them from a distance. He added that A14 was carrying an iron rod. The accused went towards the northern direction. The witness ran towards south. The incident took place in the house of PW6. PW6 told him that both the injured appear to be dead and both of them were taken to the hospital. He hired an autorickshaw and reached Crl.A.No.297 & 298/2005 34 the Medical College Hospital. Some of the accused were in the hospital. They were A1, A3, A5 and A21. He stated that it appears MO3 was the sickle carried by A3. MO2 was carried by A2. On reaching the hospital he was told that blood was required. He rushed for procuring blood, By the time blood was brought, Baiju died and PW2 was in a critical stage. In the cross-examination by the defence, he stated that his toddy shop is on the north eastern side of Omanappuzha Church. There is a distance of 2.5 kms between the shop and the scene of occurrence. He was told of the incident by 4 p.m. He did not remember who told him. He was told that PW2 was detained by 25 persons. Riding a cycle he reached the western junction at Pathirappally. He placed the cycle there and ran in the western direction, as directed by the people. He ran for about 12 minutes, covering a distance below 1 km. He stood behind a house. He does not know who was the owner of that house. The police questioned him within 2/3 days. He told the names of persons whom he knew. He was aware that A3 was the brother of A21. At that time he was not aware of the name of A21. He saw the accused running away, by hiding at a Crl.A.No.297 & 298/2005 35 distance of about 40 metres. The accused were moving in a group. He has stated before the police regarding the weapons carried by the accused. He has no animosity towards the accused. He came very close to the house of PW6 Benjamin. He reached there at about 4.30 p.m. He did not have any quarrel with the accused. Near the scene of occurrence some people were assembled. He knew A25 from childhood. The witness knew his place of residence also. The house behind which he hid himself was very close to the house of PW6. The distance will come to about 50 metres. The accused were running away. He watched them and their weapons by standing behind a fence. He does not know the house name and father's name of A5. He has not mentioned about the father's name and house name of A5 before the police. He saw A15 going away with an iron rod. He named the 15th accused as Victoria Franchee before the police. He does not know the father's name of A17. He knew the name of A17. A4 was named as Martin by him before the police. He did not know the house name of the said accused. He knew the house name of A3. He does not know the house name of A4. When he reached Pathirappally junction, based Crl.A.No.297 & 298/2005 36 on the information given by a person, he placed the cycle there and ran towards west for 12 minutes. The distance between his house and the Medical College Hospital will come to 7.5 kms. He knew that the incident took place near the house of PW6. He does not remember who told him about it. He went to the Medical College by 5 O'clock. At that time the injured were already admitted and were being treated there. If A4's name is not seen recorded by the police, it may be for the reason that the police avoided that. He has not stated the name of Koshy, son of Appichi before the police. He has named Naluthai Ouseppachan before the police. If it is recorded that the witness has named the accused and mentioned about the weapons of each of them, he has nothing to say. A few contradictions with reference to the statement before the police were also put to him. He denied the suggestion that he is making false statement before the court.
15. PW9 is the attester to Ext.P5 inquest report. PW10 is the attester to Exts.P6, P7 and P8 recovery mahazars. But, he has turned hostile to the prosecution. PW11 is the attester to Ext.P9 recovery mahazar for recovering MO2, based on the confession statement of A2. Crl.A.No.297 & 298/2005 37 The said witness has also turned hostile to the prosecution. PW12 is the attester to Exts.P10 and P11 recovery mahazars for recovering MO4 and MO14 respectively, on the basis of the confession statement of A4 and A6 respectively. This witness has also turned hostile to the prosecution and did not support the prosecution case. PW13 is the attester to Ext.P16 mahazar for recovering MO11, based on the confession statement of A5. He also turned hostile to the prosecution. PW14 was working as Village Officer at the relevant time. She prepared the scene plan Ext.P12. PW15 is the attester to Exts.P13 to P17 recovery mahazars for recovering M.Os.15, 17, 12, 11 and 18 respectively, based on the confession statements of A9, A8, A7, A5 and A16 respectively. This witness also turned hostile to the prosecution. PW16 is the attester to Exts.P18 and P19 recovery mahazars for recovering Mos.18 and 13 respectively, based on the confession statements of A11 and A12 respectively. The said witness also did not support the prosecution case and turned hostile. PW17 is the attester to Exts.P20 and P21 recovery mahazars for recovering Mos. 22 and 9 respectively, based on the confession statements of A13 and A15 Crl.A.No.297 & 298/2005 38 respectively. The said witness also did not support the case of the prosecution regarding the recovery and turned hostile. PW18 is the attester to Ext.P22 recovery mahazar for recovering MO6, based on the confession statement of A25. This witness also turned hostile to the prosecution and refused to support the case of recovery.
16. PW19 is the doctor who examined Baiju and issued Ext.P23 wound certificate. He also examined PW2 and issued Ext.P24 wound certificate.
17. PW20 is the doctor who conducted the post-mortem examination on the body of the deceased and issued Ext.P25 post- mortem certificate. He stated that he altogether noticed 29 injuries on the body of Baiju. He stated that injury Nos.3, 10, 11, 15 and 16 were independently and collectively sufficient in the ordinary course of nature, to cause death. He has also given opinion regarding the cause of death as the multiple injuries sustained by the deceased.
18. PW21 is the doctor who examined PW1 on 18.1.1994 and issued Ext.P26 wound certificate.
19. PW22 was the Additional Sub Inspector of Police, Crl.A.No.297 & 298/2005 39 Alappuzha North Police Station at the relevant time. He recorded Ext.P1 F.I. Statement given by PW1. He also prepared Ext.P1(a) body note, noticing the injuries found on the body of PW1. Based on the above F.I. Statement, he registered Ext.P27 F.I.R.
20. PW23 was the Circle Inspector of Police, Alappuzha town on 17.1.1994, the date of occurrence. He commenced the investigation of the case. He prepared Ext.P5 inquest report. He also authored Ext.P28, the scene mahazar. He collected blood-stained sand from the scene of occurrence, which was marked as MO23. The material objects, MO24 (blood-stained bath towel), MO7(sheath of tapper's knife), MO8, (sheath of tapper's knife), MO19 (blood-stained brick) seized from the house of PW6, MO1 mat seized from the house of PW6 and MOs.17, the branch of a plant used as a stick, were marked through him. Search memos, Ext.P29 to Ext.P40 and search lists, Exts.P41 to P56 were also marked. Ext.P57 report giving the correct address of the accused and Ext.P58 report arraying A25 also among the accused, were also filed by him before the learned Magistrate. The contradictions in the depositions of PW3, PW6 and PW7 were marked Crl.A.No.297 & 298/2005 40 as Exts.P2, P3,P4 through him. It was he, who arrested the accused, questioned them and recovered the weapons under Section 27 of the Indian Evidence Act. The relevant portions of the confession statements, which led to the recovery of the weapons, were also proved through him. Ext.D1, which is the contradiction in the deposition of PW4 with reference to his statement before the police under Section 161 Cr.P.C., was proved through him. The reports received from the Forensic Science Laboratory were also marked through the said witness. He gave evidence in accordance with the prosecution case and the suggestion of defence that he was giving false evidence concerning recovery etc. was denied by him.
21. PW24, the successor-in-office of PW3, was the Circle Inspector of Police at the relevant time. PW24 verified the investigation and filed the final report under Section 173 of the Cr.P.C., before the Judicial First Class Magistrate, Alappuzha. The charge was returned by the learned Magistrate due to some defects. PW25, who was the next Circle Inspector of Police, cured the defects and re- presented it before the learned Magistrate.
Crl.A.No.297 & 298/2005 41
22. In the light of the evidence on record, we have to examine the rival contentions raised by the appellants and the State. It is not in dispute that Baiju, the deceased had a homicidal death. The members of an unlawful assembly armed with deadly weapons, inflicted multiple injuries on him. The post-mortem report would show that there were 29 injuries sustained by him. The Doctor who conducted autopsy on the body of the deceased stated that injury Nos.3, 10,11,15 and 16 mentioned in the post-mortem report, Ext.P25 were sufficient to cause death in the ordinary course. PW2 also suffered serious injuries at the hands of the very same mob armed with deadly weapons. The case of PW2 is proved by Ext.P24 wound certificate, which would show that he suffered 14 injuries, but for the timely medical treatment, he would also have succumbed to the injuries. The finding on the above points by the trial court is not seriously disputed before us. The point in dispute is regarding the identity of the members of the unlawful assembly, who inflicted the fatal injuries on Baiju and the serious injuries on PW2.
23. The case of the prosecution on the above disputed point is Crl.A.No.297 & 298/2005 42 that it was accused A1 to A25, who inflicted the injuries. To prove this case, it relies on the oral evidence of PWs.2,4,5 and 8, who fully support the prosecution. The prosecution also relies on the medical evidence. The recovery of weapons under Section 27 of the Indian Evidence Act, based on the confession of the accused is also relied on. The prosecution also submitted that the evidence of PWs.1 and 3, to certain extent, supported the case of the prosecution. But, we notice that the trial Judge disbelieved the versions of PWs.4,5 and 8 and has given cogent reasons for the same also. The learned Public Prosecutor submitted that their version was discarded by the trial court without any justification and this Court may re-appreciate the evidence and also rely on the evidence of those witnesses also, to sustain the conviction. But, we find it difficult to accept the said contention of the learned Public Prosecutor. The view taken by the learned Additional Sessions Judge on the credibility of PWs 4, 5 and 8 is a reasonable view. The said view cannot be described as perverse. So, what remains is whether the conviction of the appellants based on the deposition of PW2 and other materials on record, is sustainable or not.
Crl.A.No.297 & 298/2005 43
24. We notice that PW2 was a person who was attacked by the mob. He was grievously hurt. The following injuries were sustained by him as evident from Ext.P24 wound certificate issued by the Doctor, PW19.
"1. Incised wound 15.5.cm over the anterior lateral aspect of right elbow extending to the back of elbow cutting muscles, bone deep and bone cortex is cut, radial nerve is cut and partial injury to nerve.
2. Incised wound 8.4 cm over posterior aspect of right fore-arm cm below elbow joint, bone deep cutting muscles.
3. Incised wound 5x4 cm. over anterior aspect of right upper arm 5 cm above elbow anterior.
4. Incised wound 2x1 cm over metacarpophalangeal region of right little finger cutting the extensor tendon.
5. Incised wound 2x1 cm over middle of back of right fore-arm bone deep with fracture ulna.
6. Incised wound 10x5 cm over anterior aspect of upper part of right leg with injury extensors and peronei muscles and superficial and deep peroneal nerves.Crl.A.No.297 & 298/2005 44
7. Incised wound 1x1 cm skin deep on upper part of outer aspect of left leg.
8. Incised wound 4x3 cm bone deep forehead midline.
9. Incised wound 5x3 cm on frontopariental region mid line.
10. Another incised wound 4x3 cm on the fronto pariental region in the mid line.
11. Incised wound 6x3 cm bone deep on back of the left hand extending from wrist to the base of the thumb.
12. Incised wound 5x3 cm muscle deep on left palm extending proximally from the 2nd inter digital space.
13. Multiple linear abrasions about 5 in number over back of the chest.
14. Another inverted 'V' shaped abarsion over the back of the left shoulder."
He narrowly escaped death. So, he has, normally, no reason to shield the actual culprits and implicate the innocent persons falsely. Baiju, the deceased was his friend. The very same mob which attacked PW2 was responsible for the death of Baiju. The mob turned against him when Crl.A.No.297 & 298/2005 45 he tried to rescue Baiju. Normally, PW2 has also no reason to shield the actual assailants of his friend Baiju and implicate innocent persons. So, the version of PW2 regarding the infliction of injuries on him and Baiju can be believed. His evidence cannot be discarded for the reason that he is a friend of Baiju. We notice that the medical evidence regarding the injuries sustained by Baiju and PW2 corroborate his version. Reghu, who admitted PW2 in the hospital has stated to the Doctor, PW19, regarding the history of the wound which is noticed in Ext.P24, as due to the attack by a mob using axe, chopper etc. Mr.Reghu is not a witness, who saw the incident. Apparently, he gave the statement before the Doctor, based on some information received by him. Though, axe was not used for attacking the injured, the statement regarding the incident, place and time corroborate the prosecution case. This is a contemporaneous statement recorded by the Doctor. Further, the injury on the three fingers of PW1, which is supported by Ext.P26 wound certificate, would also, to certain extent, corroborate the case of the prosecution. The history of the wound given in Ext.P26 is that when PW2 was being attacked by A2 using a Crl.A.No.297 & 298/2005 46 sickle, she tried to prevent it and in that process she sustained injury at 3.30 p.m. on 17.1.1994 near the house of Benjamin (PW6). While PW1 was examined, she feigned ignorance, as to who inflicted the injury on her fingers. Obviously, she was trying to help the accused. It is inherently improbable that a person will not remember the person who caused a cut injury on her three fingers. Her claim is against normal human conduct.
25. We notice that PW2 identified A1 to A5 and A25 with reference to their overt acts. But, A25 was included in the array of accused only at a later stage. The version of PW2 is further supported by PW3, who was hostile to the prosecution. She speaks of the blood- stain found inside her house. The police recovered a blood-stained brick also from there, which is marked as MO19.
26. Going by the materials and other circumstances proved in this case, we find that the court below has rightly found the involvement of accused numbers 1 to 5, in causing injuries to Baiju and PW2. There is no rule of law which says a conviction cannot be sustained, based on the evidence of a single witness. If his deposition Crl.A.No.297 & 298/2005 47 is found trustworthy and the same is corroborated by other materials on record, conviction based on the solitary evidence of a witness can definitely be sustained. The trial Judge after adverting to the materials on record as also the evidence of PW2 found A1 to A5 guilty of the offences charged against them. We find that the above finding of the trial court is supported by materials on record to which, we have already adverted to. We fully agree with the reasons and conclusions of the trial court on the above point.
27. The next point to be considered is whether the offence committed by accused Nos.1 to 5 was only under the first part of Section 304 of the I.P.C. This aspect is canvassed by the defence, pointing out that the injuries were inflicted only on the leg of the accused. But, Baiju was hit on his head and he immediately fell down helplessly without even able to resist the attack. He was brutally cut several times on his legs. Those cut injuries caused his death also. PW2 was also brutally attacked and they left, leaving him, thinking that he was dead. So, the contention of the learned counsel for the appellants on the above point cannot be accepted.
Crl.A.No.297 & 298/2005 48
28. The contradictions in the depositions of PWs 4, 5 and 8 were highlighted by the defence with reference to the version of PW2. Since we affirmed the finding of the trial court regarding lack of credibility of the versions of PWs 4, 5 and 8, we need not further deal with the above aspect. The defence pointed out that if PW2 was attacked by a group of persons as was alleged, the scene of occurrence would not have been as it was found by the investigating officer, while preparing the scene mahzar, which is Ext.P28. Everything inside the room was remaining in their place. There was no sign of any struggle there. So, the version of PW2 that a group of persons entered the room and brutally attacked him is inherently improbable, it is canvassed. The appearance of the scene of occurrence will depend upon many factors. The accused have no animosity towards the owner of the house and therefore, they have no reason to destroy the articles and materials found in the room. They only targeted PW2. Therefore, the other goods or materials in the room were remaining without any dislocation. The same cannot be urged as a ground to attack the credibility of PW2.
29. Now, we will consider certain defects pointed out in the Crl.A.No.297 & 298/2005 49 prosecution case by the appellants. Whether those defects are sustainable and if so, whether they will vitiate the finding of guilt of the accused, has to be examined. One of the basic defects pointed out in the prosecution case is regarding the recording of the F.I.Statement. According to the defence, when the F.I.Statement was recorded, there was bandage on the three fingers of PW1. She was taken to the doctor only on the next day morning. Therefore, it is pointed out that the F.I.Statement was recorded on 18.1.1994, after she underwent treatment, including bandaging of her injured fingers and not on 17.1.1994, as claimed by the prosecution. Normally, a house wife on being injured will use some bandage to cover the injury. Further, the doctor who examined her (PW21) was not sure whether her fingers were in a bandaged condition or otherwise, when he examined her. Any way, there is nothing unusual, if PW1 bandaged her bleeding fingers before she visited the doctor on the next day. There is no reason to disbelieve the statement of PW22 that he recorded the F.I.Statment on the evening of 17.1.1994. He has also recorded the body note of PW1, which is Ext.P1(a). PW1 has deposed before the Crl.A.No.297 & 298/2005 50 court that the F.I.Statement was recorded only on the next day. Obviously, it was an attempt to help the accused .
30. The learned counsel for the appellant also submitted that A5 has attacked only PW2 and not Baiju. So, he can be punished only for the offence under Section 324 or Section 326, it is submitted. But A5 being a member of an unlawful assembly, he is responsible for all the actions of the members of the assembly in furtherance of the common object. A5 was a member of that assembly and he has attacked PW2. Therefore, even if he did not attack the deceased, he cannot escape from the liability for the death of Baiju. The learned counsel also pointed out that the identification of A2, A3 and A4 before the court for the first time cannot be relied on. PW2 and the above accused were local people. He has stated that he has previous acquaintance of them. If a stranger commits an offence and if he could be identified only on sight, then a test identification parade may be necessary. In this case, since the witness knows the accused, the above alleged defect is of no consequence. The learned counsel also pointed out that during trial, the accused were arrayed in a row, according to their rank, when they were Crl.A.No.297 & 298/2005 51 standing in the dock. The names of the accused were called out serially and they were directed to enter the dock accordingly. So, the witnesses had the occasion to identify the accused. But, in this case the learned Additional Sessions Judge has believed only PW2 and acted on his version. Since he is a local man and familiar with the accused, who were found guilty, the above alleged defect in the proceedings is not of any consequence.
In the result, we find no reason to interfere with the conviction and sentence imposed on accused 1 to 5. Accordingly, the Criminal Appeals are dismissed.
K. BALAKRISHNAN NAIR, JUDGE M.C.HARI RANI, JUDGE nm/