Kerala High Court
Sathish vs State Of Kerala on 23 January, 2020
Author: A.M.Shaffique
Bench: A.M.Shaffique
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
&
THE HONOURABLE MR.JUSTICE N.ANIL KUMAR
THURSDAY, THE 23RD DAY OF JANUARY 2020 / 3RD MAGHA, 1941
CRL.A.No.1328 OF 2012(A)
AGAINST THE JUDGMENT IN SC 555/2008 DATED 14-09-2012 OF
SESSIONS COURT,THRISSUR
APPELLANT/ACCUSED NOS.1 & 6:
1 SATHISH
S/O.SADANANDAN, KARUVAN HOUSE, ALOOR VILLAGE,ALOOR
DESOM, THRISSUR DISTRICT.
2 SARATH, S/O.CHANDRAN
THUYATH HOUSE KALLETTUMKARA VILLAGE
PERRUNAMKKUNNU DESOM, THRISSUR DISTRICT.
BY ADVS.
SRI.B.RAMAN PILLAI (SR.)
SRI.R.ANIL
SRI.T.ANIL KUMAR
SRI.M.SUNILKUMAR
SRI.SUJESH MENON V.B.
SRI.THOMAS ABRAHAM (NILACKAPPILLIL)
SRI.E.VIJIN KARTHIK
SRI.P.S.SREEDHARAN PILLAI
SRI.T.K.SANDEEP
SRI.ARJUN SREEDHAR
SRI.ARUN KRISHNA DHAN
RESPONDENT/COMPLAINANT:
STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
SRI.SURESH BABU THOMAS, ADDL.DGP
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 20-08-
2019, ALONG WITH CRA(V).729/2013, THE COURT ON 23-01-2020
DELIVERED THE FOLLOWING:
Crl.Appeal No.1328/12 &
Crl.Appeal (V) No.729/13
-:2:-
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
&
THE HONOURABLE MR.JUSTICE N.ANIL KUMAR
THURSDAY, THE 23RD DAY OF JANUARY 2020 / 3RD MAGHA, 1941
CRA(V).No.729 OF 2013
AGAINST THE JUDGMENT IN SC 555/2008 DATED 14-09-2012 OF
SESSIONS COURT,THRISSUR
AGAINST THE ORDER/JUDGMENT IN CP 18/2008 OF JUDICIAL
MAGISTRATE OF FIRST CLASS - I, CHALAKUDY
CRIME NO.752/2006 OF Chalakkudy Police Station, Thrissur
APPELLANT/PETITIONER/PW13:
SHAHUL HAMEED
S/O. ISMAIL, AGED 62 YEARS, THIRUNELVELIKKARAN
HOUSE, ALOOR.P.O., KALLETTUMKARA, THRISSUR
DISTRICT.
BY ADVS.
SRI.MANSOOR.B.H.
SMT.C.SEENA
RESPONDENT/COMPLAINANT/STATE & ACCUSED NOS:1-8:
1 STATE OF KERALA
REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KEALA,
ERNAKULAM REPRESENTING CIRCLE INSPECTOR OF
POLICE, CHALAKKUDY-680307.
Crl.Appeal No.1328/12 &
Crl.Appeal (V) No.729/13
-:3:-
*2 SATHISH
S/O. SADANANDHAN, KARUVAN HOUSE, ALOOR VILLAGE,
ADOOR DESOM, THRISSUR DISTRICT-680683.
(*DELETED FROM THE PARTY ARRAY AS PER ORDER
DATED 21/1/2013 IN CRL.M.A.NO.411/13 IN
CRL.APPEAL NO...../2013
2 SREEKUMAR
S/O. NARAYANAN,PADATHUPARAMBIL HOUSE, KODAKARA
VILLAGE, PUTHUKAVU DESOM,
THRISSUR DISTRICT-680684.
3 RAMESH
S/O. MADHAVAN, EDATHAN HOUSE, ALOOR,
VALLAKUNNU, THRISSUR DISTRICT-680683.
4 JINEEJ JINU
S/O. MADHAVAN, THIRUKULAM HOUSE, KODAKARA
VILLAGE, CHERUKUNNU DESOM, THRISSUR DISTRICT-
680684.
5 SEBI
S/O. SUKUMARAN, PARAMBIL HOUSE, ALOOR VILLAGE,
PERUNNAMKUNNU DESOM, THRISSUR DISTRICT-680683.
*7 SARATH
S/O. CHANDRAN,THUYATH HOUSE, KALLETTUMKARA
VILLAGE, VALLAKUNNU DESOM, THRISSUR DISTRICT-
680683. (*DELETED FROM THE PARTY ARRAY AS PER
ORDER DATED 21/1/2013 IN CRL.M.A.411/13 IN
CRL.A...../2013)
6 KANNAN @UNNIKRISHNAN
S/O. CHANDRAN, KEEZHATHIL HOUSE, ALOOR VILLAGE,
VELLANCHIRA, PERUNNAMKUNNU DESOM, THRISSUR
DISTRICT-680683.
7 SHIBU @THARIKIDA SHIBU
S/O.KRISHNAN, THEKKOT HOUSE, ALOOR VILLAGE.
PERUMTHAKUNNU DESOM, THRISSUR DISTRICT-680683.
R1, R3 BY ADV. SRI.ARJUN SREEDHAR
R1 BY ADV. SRI.ARUN KRISHNA DHAN
R1 BY ADV. SRI.JOSEPH GEORGEMULLAKKARIYIL
R1 BY ADV. SRI.P.S.SREEDHARAN PILLAI
R1 BY ADV. SRI.T.K.SANDEEP
THIS CRL.A BY DEFACTO COMPLAINANT/VICTIM HAVING BEEN
FINALLY HEARD ON 20-08-2019, ALONG WITH CRL.A.1328/2012(A),
THE COURT ON 23-01-2020 DELIVERED THE FOLLOWING:
Crl.Appeal No.1328/12 &
Crl.Appeal (V) No.729/13
-:4:-
JUDGMENT
Dated this the 23rd day of January, 2020 Shaffique, J.
Crl.Appeal No.1328/2012 is filed by accused Nos.1 and 6 challenging the judgment of conviction and order of sentence passed by the Sessions Judge, Thrissur in SC No.555/2008 dated 14/9/2012. Crl.Appeal (V) No.729/13 is filed by PW13, father of deceased Mahin aggrieved by the order of the trial court acquitting accused 2 to 5, 7 and 8.
2. Accused 1 and 6 were convicted and sentenced to undergo rigorous imprisonment for six months under Section 143 of I.P.C., rigorous imprisonment for three years u/s 148 of I.P.C. , rigorous imprisonment for ten years u/s 449 r/w S.149 of I.P.C., and imprisonment for life u/s 302 r/w S.149 of I.P.C. Since S.147 of I.P.C. could be considered as a minor offence of S.148 of IPC., no separate sentence was imposed u/s 147 of I.P.C. A1 and A6 were directed to pay a sum of `50,000/- each as compensation u/s 357(3) of Cr.P.C., in default, to suffer imprisonment for one Crl.Appeal No.1328/12 & Crl.Appeal (V) No.729/13 -:5:- year. The fine amount, if realised, 25% was directed to be given to the father of the deceased and the balance amount was to be paid to the wife of the deceased. The sentences were directed to run concurrently and the accused were entitled for set off u/s 428 of Cr.P.C.
3. Case of the prosecution against the appellants is as under:-
The accused due to previous enmity decided to do away with Mahin. They conspired together to commit murder, formed themselves into an unlawful assembly, armed themselves with deadly weapons and on 16/12/2006 at about 5.15 a.m, accused 1, 2 and 4 to 6 trespassed into Room No.8 of Ortho Ward of Dhanya Hospital and inflicted severe injuries on Mahin, as a result of which Mahin died.
4. To prove the case, prosecution examined PW1 to PW31 and marked Exts.P1 to P50 documents. MO1 to MO27 were identified. Defence examined DW1 and marked Exts.D1 to D21. Exts. X1 to X2 were marked as court exhibits.
5. The above case, according to the prosecution was the result of a political fight between two political parties, Crl.Appeal No.1328/12 & Crl.Appeal (V) No.729/13 -:6:- Communist Party of India (Marxist) [CPI(M)] on the one hand and Bharatiya Janata Party (BJP) along with Rashtriya Swayamsevak Sangh (RSS) on the other hand. Mahin, the deceased, was a supporter of CPI(M), a worker of CITU, a Trade Union Organization and also DYFI, a Youth Front Organization of CPI(M). He was admitted in Dhanya Mission Hospital. He underwent a surgery meniscectomy on his knee. He was treated by PW28 who produced the case sheet which is marked as Ext.P24. It was while being an in-patient in the hospital that Mahin was inflicted with several injuries by a group of persons which resulted in his death. The incident occurred at about 5.15 a.m. on 16/12/2006. The prosecution tried to establish the case by the oral testimony of eyewitnesses who are PW1 and PW12. That such an incident had occurred in the hospital in the presence of PW1 and PW12 is corroborated by the testimony of PW20. Prosecution has further relied upon the recovery of material objects from the scene of occurrence and also on the basis of the confession statement of the accused and some of the material objects contained bloodstains belonging to group 'A', which is similar to that of the deceased Mahin.
Crl.Appeal No.1328/12 & Crl.Appeal (V) No.729/13 -:7:-
6. Learned Senior counsel Sri.B.Raman Pillai and Sri.P.S.Sreedharan Pillai assisted by Arjun appearing on behalf of the appellants elaborately argued the matter mainly presence of PW1 and PW12 along with the deceased at the relevant time. The conduct of the police in attempting to chase the assailants without even registering FIR clearly demonstrates fabrication of FIR. Though PW30 had gathered information regarding the commission of offence immediately, still FIR was not registered. It is also argued that evidence of PW20 is not at all believable. That apart, the recoveries were all planted and the confession statement cannot be treated as evidence in terms of S.27 of the Evidence Act. It is also argued that none of the eyewitnesses have identified the accused and no identification parade was conducted in the matter. If they had known the accused, their names would have been mentioned to the police, which apparently has not been done in the case. It was also argued that there is delay in registering FIR and the FIR was sent to the Magistrate only after a considerably long period.
7. During post-mortem, it was noticed that there was partially digested food in the stomach of the victim. According to Crl.Appeal No.1328/12 & Crl.Appeal (V) No.729/13 -:8:- prosecution witnesses, Mahin consumed food at 10.30 p.m on the previous day, in which event, the food would have been fully digested which means that the incident did not occur in the manner as spoken to by PW1 and PW12. There was also delay on the part of the investigating officer in sending the name of the accused to the Court. Yet another factor which was highlighted by the counsel for accused is regarding the bloodstains in the knife recovered from the 3rd accused. Even according to the prosecution, the 3rd accused did not enter the room and he was waiting outside. Under what circumstances, the bloodstain appeared in A3's knife has not been explained by the prosecution. Counsel for the accused also argued that some of the accused in the present case were involved in yet another case. If PW1 and PW12 would have identified them, they could have easily stated that those persons were accused in the other case. When they failed to give any such information to the police, it is rather clear that they were totally unaware of the involvement of any of the accused in the case and they were giving a cooked up story.
8. On the other hand, the Additional Director General of Crl.Appeal No.1328/12 & Crl.Appeal (V) No.729/13 -:9:- Prosecution Sri.Suresh Babu Thomas submitted that the motive to the crime has been proved by PW12. That apart, there is nothing to disbelieve the testimony of PW1 and PW12 especially in the light of the independent evidence of PW20 and PW26. They have deposed that other than the patients, they had seen two others in the room. That the eyewitnesses had a criminal background by itself cannot be a reason to discard their evidence. Further, the recovery of the weapons and the other incriminating material objects were proved. It contained 'A' group blood, which is same as that of the deceased. He further submitted that even assuming that there is some infirmity, in the investigation in not recording the FIR immediately, still, the entire prosecution case has to be considered while evaluating as to whether the crime had taken place and whether there is evidence to prove that the accused had committed the crime.
9. As far as the death of Mahin is concerned, there cannot be any dispute that it was a homicide. The inquest was prepared by PW30, in which PW19, who was the Councillor of Ward No.25 of Chalakkudy Municipality, is a witness. Ext.P19 is the inquest report.
Crl.Appeal No.1328/12 & Crl.Appeal (V) No.729/13 -:10:-
10. PW8 was the Senior lecturer and Police surgeon who conducted the autopsy on the body of Mahin. Ext.P8 is the postmortem certificate. He further deposed that the separated portion of right hand which was cut, was brought along with the body in a plastic cover and that portion was found severed from the right hand at a level of 4 cm from the wrist. Tip of right middle finger 2 cm long and whole of left ring finger 8 cm long were also brought along with the body which were found cut and separated from the respective positions, could not be approximated for want of soft tissues. He observed three multiple healing scab formed abrasions over an area 37x8 cm on front of left leg and dorsum of foot with brownish scab in situ. There was a white patch (healed wound) 3x1 cm on inner aspect of right big toe and there were two sutured wound 1 cm each on inner and outer aspect of left knee 5 cm apart sutured with one suture each (surgical) found. He noted 46 ante-mortem injuries. He further deposed that the deceased died due to multiple incised wound sustained and noted as injury Nos. 2, 3, 4, 5, 8 12, 14, 29, 31, 32, 34, 35, 44 to 46 and further deposed that they are sufficient to cause the death either independently or due to the Crl.Appeal No.1328/12 & Crl.Appeal (V) No.729/13 -:11:- combined effect in the ordinary course of nature and further deposed that the injury on the neck, that is injury No.14, was fatal. Following were the ante-mortem injuries:-
"1. Incised wound 5x3cmx0.5cm on left side of back of head, inner margin 2 cm above occipital protuberance and 1cm left to midline. The wound cut the scalp with beveling of the margins downwards, this portion of scalp was found missing.
2. Incised wound 8.5cm long on back of head, upper right margin 12 cm above right ear and 4.5 cm outer to midline, raising a flap of size 8x8cm at the left lower margin exposing dura matter. A piece of parietal bone 5.5x6cm in its full thickness was found cut and attached to the flap. The wound also cut the dura for 2 cm oblique. The wound was directed downwards and to left. The brain just under neath pulverized over an area 2x1cmx0.2cm.
3. Incised wound 19 cm long on right side of head and forehead, oblique, front-end 1.5cm above eyebrow and 8.5cm outer to midline. The wound cut the bone underneath (frontal, temporal, parietal and occipital bones) for 14cm and cut the dura (13cm) exposing pulverized brain matter, which were protruding out through the Wound. The wound was directed downwards and to right. The wound cut the parietal lobe of cerebral hemisphere for a length of 9 cm and depth of 0.5 cm.
4. Incised wound 8 cm long on right side of back of head, oblique, back end 3 cm outer to midline and 2 cm above occipital protuberance. There was a portion of intact skin 8x 1cm separating the wound from the injury No.3. Bones Crl.Appeal No.1328/12 & Crl.Appeal (V) No.729/13 -:12:- underneath (occipital and temporal) were found cut in its full thickness at two places 5 cm each in length and 0.5cm apart. Underneath this the wound cut the dura (5 cm each) and parietal lobe of right cerebral hemisphere at two places each measuring 4 cm in length and 0.3 cm in depth and was 0.5 cm apart. Thickness of skull and scalp was 0.5 cm each. The wound was directed downwards and to right.
5. Incised wound 13cm long, oblique across the injury Nos.3 & 4 on right side of head, front upper end 10 cm above eyebrow and 6 cm outer to midline, The wound cut the bones underneath(parietal, temporal and occipital) in its full thickness and was directed forwards, downwards and to left.
6. Incised wound 6 cm long on right side of head, oblique, upper front end 7 cm above eyebrow and 11 cm outer to midline. The wound cut the skin and subcutaneous tissue only for a depth of 0.4 cm. The front upper end was found merged with the lower margin of injury No.3.
7. Superficial incised wound 2 cm long on right side of face, oblique just outer to eye, 2.5 cm outer to it and 1 cm below eyebrow.
8. Incised wound 1.5 cm on right side of face and chin oblique lower inner end 1 cm outer to midline and I cm above jaw margin. The wound cut the subcutaneous tissue, muscles, vessels, nerves and bone(maxilla) underneath for a depth of 3 cm and enters the oral cavity. The wound was directed downwards, and to left.
9 Incised wound 8 cm long on right side of face and inner aspect of pinna of right ear, oblique lower front-end 10 cm outer to midline and 5 cm above face margin. The wound cut the subcutaneous tissue only for a depth of 0.5 cm. Crl.Appeal No.1328/12 & Crl.Appeal (V) No.729/13 -:13:-
10. Incised wound 18 cm long on left side of neck and under aspect of chin, oblique, upper Inner end at midline jaw margin, lower outer end 4 cm above collarbone and 8 cm outer to midline. A portion of lower part of mandible at centre of chin was found chipped and attached to the lower portion. The wound was directed downwards, backwards and to left.
11. Incised wound 14 cm on the right side of face along the face margin, front-end 1 cm outer to midline and 1.5 cm above jaw margin. The wound cut the skin and subcutaneous tissue for a depth of 0.5 cm.
12. Incised wound 11cm long on right side of neck and under aspect of chin oblique inner upper end 2 cm outer to midline and 2 cm below jaw margin. The wound cut the subcutaneous tissue and superficial vessels underneath. The lower border of mandible found chipped for a length of 2 cm. The wound was directed downwards and to left.
13. Incised wound 2.5 cm long on right side of under aspect of chin, oblique, upper inner end 1.5 cm outer to midline and 1 cm below jaw margin.
14. Incised wound 19 cm long on front and right side of neck, oblique, lower end 2 cm left to midline and 3 cm below left angle of mandible, back end was placed at 1 cm outer to midline back on right side. The wound transected the neck through the body of 6th cervical vertebra above the level of thyroid cartilage except for a length of 8 cm on left side of back of neck, which includes skin, subcutaneous tissue, and some fibers of trapezius muscles. The wound cut the muscles, vessels, nerves, trachea esophagus, body of 6th cervical vertebra and spinal cord completely. The wound was directed downwards, backwards and to left. Crl.Appeal No.1328/12 & Crl.Appeal (V) No.729/13 -:14:-
15. Superficial incised wound 15 cm long on front of neck and upper part of chest, oblique, right upper end 9 cm outer to midline and 3 cm above collarbone.
16. Superficial incised wound 4 cm long on front of right shoulder, oblique, upper inner end 5cm outer to root of neck and 5 cm below top of shoulder.
17. Superficial incised wound 5 cm long on front of right shoulder, oblique, upper inner end 7 cm outer to root of neck and at top of shoulder with tailing at both ends for 3 cm each.
18. Incised wound 3.5 cm long on top of right shoulder transverse, 7 cm outer to root of neck. The wound cut the skin and subcutaneous tissue for a depth of 0.5 cm.
19. Incised wound 6 cm long, oblique on outer side of right upper arm, lower front end 6 cm below shoulder. The wound cut the subcutaneous tissue, triceps muscles, vessels for a depth of 3 cm, exposing shaft of humerus. The wound was directed downwards. Humerus was intact..
20. Superficial incised wound 6 cm long, on outer aspect of right upper arm, upper end at outer end of injury No.19.
21. Incised wound 7 cm long on outer and back aspect of right upper arm, upper margin 9 cm below shoulder with tailing for 8 cm at its lower end. The wound cut the skin and subcutaneous tissue for a depth of 0.5 cm.
22. Incised wound 11 cm long on back of right shoulder and upper arm, oblique, upper back end 5 cm below shoulder and 14 cm outer to midline back with tailing for 6cm at its lower end. The wound cut the subcutaneous and muscles underneath for a depth of 4 cm. The wound was directed downwards and forwards.
23. Incised wound 23 cm long on outer aspect of right Crl.Appeal No.1328/12 & Crl.Appeal (V) No.729/13 -:15:- upper arm, lower end at outer aspect of elbow. The wound cut the subcutaneous tissue and muscles raising a flap of skin including muscle fibers 10x3 cm at its inner border.
24. Incised wound 7cm long on front and outer aspect of right upper arm, outer end merges with inner margins of injury No.23. The wound cut the subcutaneous tissues and muscles underneath for a depth of 2 cm.
25. Incised wound 6.5 cm long on lower part of outer and back of right upper arm, lower back end 3 cm above elbow.
26. Incised wound 5 cm long on outer and back aspect of right forearm, oblique, upper end 5 cm below elbow. The wound cut the subcutaneous tissue and muscles (extensor group) on back of forearm for a depth of 2 cm.
27. Incised wound 7 cm on back and inner aspect of right forearm, oblique, upper end 3 cm below elbow. The wound cut the subcutaneous tissue and muscles underneath (flexor muscles) for a depth of 1 cm.
28. Superficial incised wound 9 cm long, oblique on inner aspect of right forearm, upper end 6 cm below elbow.
29. Incised wound 7 cm long on back and inner aspect of right forearm, oblique upper end 8 cm above wrist. The wound cut the flexor tendons, vessels, nerves and radius (2 cm long and 0.5 cm depth) underneath.
30. Incised wound 4 cm long on back of right forearm, oblique, lower inner end 4 cm above wrist.
31. Incised wound 13 cm long obliquely across the back of right wrist, upper back end 3 cm above wrist. The wound cut the radius in its full thickness and ulna for a depth of 0.5cm. The wound also cut tendons of flexor pollicis longus, extensor pollicis longus, abductor pollicis brevis and extensor digitorum muscles, vessels and nerves Crl.Appeal No.1328/12 & Crl.Appeal (V) No.729/13 -:16:- underneath.
32. Traumatic amputation of right hand by an incised wound 10x6cm, obliquely, outer lower end 4 cm below wrist. All structures were sharply cut.
33. Incised wound 3 cm on front and outer aspect of left thigh, oblique lower end 26 cm above knee.
34. Incised wound 10 cm long on back of left hand oblique, upper outer end 3 cm below wrist. The wound cut the vessels, nerves muscles, (extensor digitorum tendons and outer three metacarpal bones in its full thickness).
35. Incised wound 7 cm long on back of left hand placed in between ring and middle fingers, upper inner end 4 cm below wrist. The wound cut the tendon of extensor digitorum tendons and dorsal interossei muscle in between 3rd & 4th metacarpals for a depth of 2 cm. The wound also cut the vessels and nerves.
36. Incised wound 12 cm long on palm of left hand, upper end 3 cm below wrist. The wound cut the metacarpophalangeal joint of thumb and index finger.
37. Incised wound 5 cm long on back of left wrist, raising a flap of skin 4 x3 cm at its upper part, directed upwards and outwards. The wound cut the lower part of ulna obliquely. 38 Incised wound 4 cm long on back of left forearm oblique, upper outer end 6 cm above wrist.
39. Superficial incised wound 2.5cm long on back of left forearm lower outer end 7 cm above wrist.
40. Superficial incised wound 7cm long on back of left forearm, oblique, upper outer end 9 cm below wrist.
41. Incised wound 7 cm on front of left shoulder, oblique upper inner end 3 cm below top of shoulder and 11 cm outer to root of neck.
Crl.Appeal No.1328/12 & Crl.Appeal (V) No.729/13 -:17:-
42. Superficial incised wound 3 cm on upper part of left side of chest, upper inner end 3 cm below shoulder and 14 cm outer to midline.
43. Superficial incised wound 9cm on top of left shoulder, inner end 3 cm outer to root of neck.
44. Incised wound 25 cm long on back of left side of chest and left upper arm, obliquely placed upper inner end 13 cm outer to midline and 4 cm below shoulder. The wound cut muscles( supraspinatous, lattismus dorsi) vessels, nerves, scapula (wing bone) and entered the chest cavity through the 3rd intercostal space(7 cm). The wound also cut the posterior surface of upper lobe of left lung for a length of 7 cm. The portion on the back of upper arm was superficial.
45. Incised wound 32 cm long on back of chest, across the midline back, right end 7 cm outer to midline and 5 cm below shoulder. The wound cut the muscles (trapezius, supraspinatous, infraspinatous, lattismus dorsi) vessels, nerves, scapula underneath and entered the chest cavity through 4th inter costal space in between 4 th and 5th ribs by cutting the lower border of 4 th rib and inter costal muscles. The wound also cut the posterior surface of lung for a length of 5 cm and depth of 1 cm (both lobes).
46. Incised wound 24 cm on back of left side of chest oblique, upper inner end 2 cm outer to midline and 10 cm below root of neck. The wound cut the muscles (supraspinatous, infraspinatous, lattismus dorsi) vessels, nerves, scapula underneath and entered the chest cavity in between 4th and 5th inter costal space by cutting inter costal muscle. The wound cut the posterior surface of left lung for a length of 5 cm and depth of 1 cm. Underneath the injury Nos.44, 45 and 46, the left side chest cavity Crl.Appeal No.1328/12 & Crl.Appeal (V) No.729/13 -:18:- contained 300gms of clotted blood. Left lung found collapsed".
11. According to the PW8, cause of death is due to multiple incised wounds sustained by the victim. From the aforesaid evidence, there cannot be any doubt regarding the fact that it was a homicide. The only question is who committed the aforesaid offences.
12. Learned counsel appearing for the victim's father argued that in so far as it was a group attack and the accused were found guilty under Sections 143, 147, 148, 302 r/w S.149 of I.P.C. and 449 r/w S.149 of I.P.C., there is no reason to acquit accused 2 to 5, 7 and 8. It is submitted that the very same evidence applies to the other accused also and once it is found that they were part of the unlawful assembly and had the common object to commit the aforesaid crime, they should not be spared.
13. The first contention raised by the accused is regarding the delay in registering the FIR. From the materials placed on record, it is rather clear that immediately on knowing about the incident, PW20, who was the Administrator of the hospital, called the police and Municipal Chairman by about 5.30 a.m. The police Crl.Appeal No.1328/12 & Crl.Appeal (V) No.729/13 -:19:- had come to the scene of occurrence immediately. But the FIR is registered only at 7.00 a.m. The FI statement was recorded by taking the eyewitness to the police station. The FIR reached the Magistrate only at 2.30 p.m. It is true that the police had reached the spot at 6.00 a.m. and on getting the information, the police did not register the FIR. But, the FIR is registered only after getting a statement of the eyewitness at 7.00 a.m. The question to be considered is whether on account of delay in registering the FIR, any prejudice had been caused to the accused. First of all, the incident took place at around 5.15 a.m and the FIR was registered by 7.00 a.m and it reached the Magistrate by 2.30 p.m. on the same day. Therefore, there is not much of a delay as suggested by the defence. Ext.P25 is the FI statement and Ext.P26 is the FIR. FIS was given by Shajahan at 7.00 a.m. on 16/12/2006. In the FIS, he has stated that on 6/12/2006, BJP members had attacked Mahin at about 8.30 p.m. and he suffered an injury on his left leg and he was undergoing treatment in the Government Hospital, Irinjalakuda. While so, he was taken to Dhanya Hospital at Potta on 8/12/2006 and he was an in patient in room no.8 of Ward No.1. Shajahan along with Madhu were Crl.Appeal No.1328/12 & Crl.Appeal (V) No.729/13 -:20:- attending to Mahin in the hospital. On 15/12/2006, by about 10. p.m a friend of Mahin Sri.Jinshad came to meet him in hospital. He did not go back. At about 10.30 p.m, four of them had food and they were talking. By about 1.00 a.m, they went for sleep. They had not switched off the light. At about 5.15 a.m, they heard a sound. When he woke up, he saw about 5 persons whom he knew with swords and uttering to kill Mahin and Mahin was repeatedly inflicted with injuries. Three of the bystanders cried aloud, but nobody came into the room. The assailants left the place immediately. Though they came out, the assailants ran away. He came back and looked at Mahin whose eyes were open and he was bleeding profusely and was not moving. Three of them cried aloud for somebody to come. Nobody came. He also gave the details of persons who had come. According to him, it was on account of political rivalry that Mahin was attacked. The person who gave FI statement, Shajahan was not examined before Court as he was no more. Apparently, none of the names of the accused were specified by Shajahan at the relevant time, but he had given description of a few persons and he has stated that he had seen those persons earlier. The FI statement was Crl.Appeal No.1328/12 & Crl.Appeal (V) No.729/13 -:21:- proved through PW29. At the relevant time, PW29 was the Sub Inspector of Police pursuant to which Crime No.752/2006 was registered, which is marked as Ext.P26. During his cross- examination, he stated that, Assistant Sub Inspector of police who was in GD charge got information at 5.35 a.m but since he was not in the police station at the relevant time, he did not register the FIR. He further deposed that he reached the spot at around 5.45 a.m and after a few minutes, the Circle Inspector of Police came and saw the dead body. When he was questioned as to why there was delay in registering FIR until 7.00 a.m, his answer was that he had requested the police officers in the site to send persons who had witnessed the incident. Though he was extensively cross-examined, nothing has been brought out to indicate that the delay in registering the FIR or sending it to the Magistrate had caused any prejudice to the accused in so far as the names of the accused have not been specifically mentioned in the FIR whereas only their description had been given. The FIR reached the Magistrate at 2.30 p.m on 16/12/2006. The accused were identified based on further investigation by the police after examining the other witnesses. In the said circumstances, we are Crl.Appeal No.1328/12 & Crl.Appeal (V) No.729/13 -:22:- of the view that the delay in registering the FIR or sending the same to the Magistrate immediately has not caused any prejudice to the accused in the present case.
14. As already mentioned, there are two eyewitnesses to the incident, i.e., PW1 and PW12. PW1 Madhu has deposed that he knew Mahin who was a CITU labourer. He was also a DYFI member. Mahin is his friend. There was an incident on 6/12/2006 by which RSS/BJP workers viz., Sathish, Sarath, Ramesh and Ratheesh along with a few other persons had attacked Mahin with an intention to kill him. Mahin suffered an injury on his left leg. He was admitted in Irinjalakuda Taluk Hospital. Since there was threat from BJP/RSS workers, he was shifted to the ortho ward of Dhanya Hospital at Potta on 8/12/2006 to room No.8. Mahin was unable to walk. In order to help Mahin, PW1 along with Shajahan were assisting him. On 15/12/2006 by about 10 p.m, their friend Jinshad also came to the room. They were talking for a while and at midnight, by around 1.00 a.m., they locked the room and PW1 along with Jinshad slept in a bed sheet under the bed of Mahin. Shajahan was lying in a small cot inside the room. By about 5.15 early morning on Crl.Appeal No.1328/12 & Crl.Appeal (V) No.729/13 -:23:- 16/12/2006, they heard somebody stamping on the door. PW1 along with Jinshad got up and proceeded towards the door. Before they reached the door, the door was kicked open and Sathish (A1) and Sarath (A6) came into the room. Sathish had a sword with him and Sarath had a chopper. Behind them were about 3 persons with swords and choppers. PW1 and Jinshad under fear moved towards the door of the toilet. At that time, Shajahan and Mahin got up and were sitting in their respective beds. The person who had a beard uttered to kill, looking at Mahin. At that time, the first accused inflicted two blows on the head of Mahin. Mahin blocked it by his hands. He suffered injury and blood spilled. Another person who was wearing a saffron dhoti and a white shirt with blue lines inflicted further injuries with a sword on Mahin. Blood spilled to their body. Mahin was crying and he fell on to the bed. Since the person who uttered to kill Mahin along with Sarath blocked them, they could not do anything. They stood still. Mahin who was by the time blood soaked and lying in the bed was repeatedly inflicted with cut wounds by the persons who uttered to kill him, Sathish and Sarath. Another person who was wearing a white dhoti and almost a white coloured shirt who was Crl.Appeal No.1328/12 & Crl.Appeal (V) No.729/13 -:24:- dark, fat and short inflicted further injuries on Mahin with a sword. The swords used by the said person and another person fell on the floor. Sathish thereafter shook Mahin to ensure that he was motionless and without taking the swords which fell on the floor, five of them ran way. PW1 along with Jinshad went after them crying and Shajahan was sitting in the room crying. The assailants ran towards the canteen gate where another person by name Ramesh (A3) was standing with a sword. They could see that all the six got into two motorbikes and left the place. Immediately PW1 called Mahin's house and informed the matter. Thereafter, they proceeded in an autorickshaw through the way in which the accused had proceeded. They could not locate the accused. Both of them went to their respective houses, changed their dress and came back to Dhanya Hospital by 7.30 a.m. At that time, police was on guard duty in the room where Mahin was lying. When they enquired about Shajahan, it was informed that he had gone to the police station. Witness identified A1, A2, A3, A5 and A6. He also identified material objects MO1 to MO17. MO7(a) and MO7(b) were the swords that were left in the room. MO8 was the sword used by Ramesh (A3), MO9 by Sarath (A6) Crl.Appeal No.1328/12 & Crl.Appeal (V) No.729/13 -:25:- and MO10 by Sathish (A1). The sword used by Jineej (A4) is MO11. MO13 is the bolt and two screws of room No.8 which were recovered by the police. The shirt which was worn by PW1 is marked as MO14 and his dhothi is MO15. MO16 is the shirt which one of the accused was wearing which he had mentioned as off white.
15. The cross-examination of this witness was basically on the premise that he was also involved in several criminal cases and therefore his evidence cannot be believed. That apart, according to the defence, he was not present in the room at the time when the incident had occurred. It is also the contention urged by the defence that the accused were not known to PW1 and if he had known, he would have given their names or at least that they were involved in attacking Mahin on 6/12/2006. Though he was elaborately cross-examined, nothing has been brought out to discredit the said witness. The question to be considered is whether PW1 was present at the time when the incident had taken place. The counsel for the defence would submit that the manner in which PW1 acted immediately after the incident casts serious doubt regarding his presence at the time of the incident. Crl.Appeal No.1328/12 & Crl.Appeal (V) No.729/13 -:26:- The argument is that no person who had seen the aforesaid incident would try to go after the accused whereas they would have immediately informed the matter to the police. Neither PW1 or PW12 attempted to inform the matter to the police whereas they have chased the accused and could not find them. They went home, changed their dress and came back to the hospital.
16. Before analysing the evidence, it is also better to scan the evidence of PW12. PW12 is Jinshad who was along with PW1 at the time of incident. He also had given the version similar to that of PW1. He identified A1 to A6. He also identified MO7 series which were the swords which were left on the floor of the room, MO10, the sword used by Sathish, MO9 sword used by Sarath, MO11, the sword used by Jineej and other material objects belonging to Mahin. He also identified the screw and the bolt of the room of Room No.8 MO13. He was wearing a red shirt which was marked as MO24 and MO25, the white dhoti which he was wearing. Shajahan's shirt is marked as MO24(b). MO25(a) is the dhoti of Shajahan. In the cross-examination of PW12 also, the main contention urged was that he was involved in several cases and that there was political enmity between the witnesses Crl.Appeal No.1328/12 & Crl.Appeal (V) No.729/13 -:27:- and the accused. Though it was contended that the presence of PW1 and PW12 was highly doubtful, their presence is proved by the evidence of PW20 and PW26.
17. PW20 is Sister Theresa Martin who was working as the Administrator of Dhanya Hospital during the relevant time. She deposed that she used to remain in the hospital at all times. She used to sleep in her office. She goes for sleep by around 11.00- 11.30 p.m, and before that she used to take rounds. She used to go and check with all the patients in the hospital. If a room is closed and if there is no sound, she will not disturb them and she will go to the other rooms. She knew Mahin. For the last time she saw Mahin on 15/12/2006 when she had gone for night rounds. She saw light in the said room and the bystanders were talking. They were three bystanders. It was room No.8 of Ortho Section. She went and asked as to why they were not sleeping and asked whether Mahin was having any pain. She was informed that there is no problem and she cautioned them that they should not sit there talking and they should sleep. She deposed that Mahin was lying there with an operation on his knee. Ext.P15(a) is the registration card of Mahin. She further deposed that hospital gate Crl.Appeal No.1328/12 & Crl.Appeal (V) No.729/13 -:28:- used to be opened at 5.00 a.m and there is a watchman. She used to get up at 5.00 a.m in the morning and after getting ready, she used to go to the church for prayers. She deposed that on 16/12/2006 by 5.00 a.m, after she had brushed her teeth and was about to change her dress, she heard a hue and cry. She immediately changed her dress and came out of the room. Cry was heard from ortho section. She ran to that place. At that time, she saw two bystanders of Mahin crying and running towards the generator room. They were stained with blood. Again she heard a cry. She came to room No.8. At that time, she saw another bystander crying. When she looked inside the room, she saw that Mahin was brutally inflicted with injuries and he was dead. Immediately she came back to the office. She called Chalakudy police station and also the Municipal Chairman. She also knew the bystanders. According to her, police had brought them. She had identified a person named Madhu and Shajahan. She had seen them on several occassions, but she had seen the other person only on the previous day. The watchmen did not open the gate whereas PW12 was insisting to open the gate. A sister in the casualty informed the matter to her and she went there and Crl.Appeal No.1328/12 & Crl.Appeal (V) No.729/13 -:29:- at her instance, the gate was opened for PW12. Ext.D9 is a contradiction marked with reference to her previous statement. According to the defence, she was giving evidence under the threat from the political party. A few omissions had been projected by the defence in order to contend that she is not a person who could be believed.
18. There is yet another witness who supports the presence of the eyewitnesses i.e., PW26. PW26 is Sincy. She was working in Dhanya Mission Hospital, Potta as a Nurse on 15/12/2006. She was on night duty from 6 p.m on that day along with Sini, the Assistant Nurse. She gave medicines to the patient at 9.00 p.m. She had gone to room No.8 in the ortho ward and according to her, along with the patient, there were two persons. After giving medicine, she had come back to the duty room. Next day, by morning at about 5.15 a.m, they heard a sound like a cry from room No.8. She along with Sini and a female ward suddenly became afraid and stood aside. She did not go to that place. Thereafter Sister Martin (PW20) came to the duty room. Theresa Sister and Martin Sister are the same person. She did not go to room No.8. She further deposed that after one month from the Crl.Appeal No.1328/12 & Crl.Appeal (V) No.729/13 -:30:- incident, she knew that persons who were with Mahin were Madhu and Shajahan. She had given evidence stating that she had seen those persons in the room. Ext.D12 is a contradiction marked with reference to her previous statement.
19. From the aforesaid evidence, it is rather clear that there were two bystanders in the room of Mahin at about 9 p.m on 15/12/2006 and according to PW26, it is Madhu (PW1) and Shajahan. PW1 and PW12 have given evidence stating that while Mahin was being attacked, blood spilled over and stained their dresses as well. PW1's dresses have been seized by the police and it was identified as MO14 and MO15. PW12's dresses were identified as MO24 and MO25.
20. PW30 is the investigating officer. He conducted investigation from 16/12/2006 to 31/12/2007. He had prepared Ext.P19 inquest report. MO7(a) and MO7(b) blood stained swords were recovered from the room, mobile phone belonging to Mahin MO3, the tower bolt and screw of the door which were forcibly opened were recovered as MO13, a blood stained towel was recovered and identified as MO2, the blood soaked bed sheet is recovered as MO12, saffron dhoti is recovered as MO1. Another Crl.Appeal No.1328/12 & Crl.Appeal (V) No.729/13 -:31:- mobile phone was recovered as MO4. He had taken the statement of six witnesses. He prepared the scene mahazar Ext.P12 and three eyewitnesses were questioned. On 17/12/2006, 8 witnesses were examined and their statements were recorded. On 21/12/2006, at 5.30 p.m., CW1 Shajahan had produced the dress which was seized as per seizure mahazar Ext.P11. Information was received on 22/12/2006 that the accused were staying in a lodge at Malayatoor and accordingly police party had gone there. They were questioned, identified and accused 1 and 3 were arrested at 9.00 p.m. 2 nd accused was arrested on 23/12/2006 at 4.00 a.m. They were brought to the police station and the witnesses had identified them. A1 had given a confession statement Ext.P30 that the sword, his dhoti and shirt had been concealed in a bushy area in a ground near to the Perambra Church and on the basis of his statement, a bloodstained saffron coloured dhoti and a khaki coloured half sleeve shirt were recovered as per Ext.P2. Sword was also recovered which is identified as MO10, the shirt is marked as MO19 and dhoti as MO20. A2 was arrested as per Ext.P29 arrest memo dated 23/12/2006. His confession statement is Ext.P20. On the basis of Crl.Appeal No.1328/12 & Crl.Appeal (V) No.729/13 -:32:- his statement that he had left his shirt and mundu in a place near his house, he was taken to that place. MO21 saffron coloured bloodstained dhoti was recovered. A full sleeve shirt which was also bloodstained was recovered as MO16. Ext.P3 is the seizure mahazar. The relevant portion of his statement is Ext.P37. Based on confession statement of 3 rd accused, MO8 sword was recovered. Ext.P32 is his confession statement. Accused 4, 5 and 6 were arrested on 5/1/2007. On the basis of confession statement of 4th accused, MO11 chopper was recovered as per Ext.P16 mahazar. Ext.P39 is the confession statement. On the basis of the confession statement of 4th accused, the motor cycle used at the time of commission of crime, KL-7 P 1055, was recovered as per seizure mahazar Ext.P6. On the basis of the confession statement of 6th accused, MO9 chopper was recovered as per Ext.P4 mahazar. Ext.P42 is the confession statement. The motorcycle bearing Regn No.KL-8 G 8071 which was also used for commission of crime was recovered based on the confession statement of 6th accused as per Ext.P5 mahazar. Vehicle was released under kaichit to the 6 th accused, which is marked as Ext.P43. Confession statement is Ext.P44. On the basis Crl.Appeal No.1328/12 & Crl.Appeal (V) No.729/13 -:33:- of confession statement of 5 th accused, MO22 bloodstained shirt was recovered as per Ext.P7 mahazar and MO25(a) bloodstained dhoti was also recovered. The confession statement is marked as Ext.P45. Accused 7 and 8 surrendered before Court on 5/2/2007. They were taken into custody on 12/2/2007. He further deposed that there was an attempt to murder Mahin on 6/12/2006 for which a crime has been registered as 427/2006. Some of the accused were involved in that crime also. The chemical analysis report obtained from the FSL Lab is marked as Ext.P9. Perusal of Ext.P9 would show that 21 items were sent for chemical analysis and except item Nos.7 and 15, all other items contained blood. In respect of item Nos.17 and 21, the group of blood could not be identified. Similarly, with reference to item Nos.1 to 6, 10 and 11(b), the group of blood is inconclusive and with reference to item No.11(a), reason stated is that unstained control sample was not available. Item Nos. 8 , 9, 12, 13, 14, 16, 18, 19 and 20 were found to be stained with 'A' group blood.
21. One of the arguments raised by the defence is that post-mortem report indicates that stomach of the deceased contained partially digested food material and green leafy Crl.Appeal No.1328/12 & Crl.Appeal (V) No.729/13 -:34:- vegetables. Contention is that normally if food is taken between 10.00 p.m and 12.00 p.m, it would have been digested. Therefore, the prosecution case that the incident occurred at 5.15 a.m is absolutely false. The incident had not happened in the manner as spoken to by the prosecution is the contention. We are unable to accept this contention. First of all, PW1 and PW12 eyewitnesses have spoken about the aforesaid fact and even assuming that they are partisan witnesses, evidence of PW20 and PW26 proves that the incident happened at around 5.15 a.m. when they heard a huge cry and sound. There is no reason to disbelieve PW20 and PW26. Therefore, it is apparent that the incident happened at the time spoken to by the prosecution. Immediately thereafter, the police had come to the scene of occurrence as well. Therefore, we have to proceed on the basis that the incident happened at around 5.15 a.m on 16/12/2006. The only question is whether PW1 and PW12 can be believed or not. Of course, they are friends and has political affiliation towards a political party in which Mahin was also a member and even according to them they were in the hospital to assist Mahin as he was unable to do anything by himself. Mahin required Crl.Appeal No.1328/12 & Crl.Appeal (V) No.729/13 -:35:- support. PW20 had categorically given evidence regarding the presence of PW1, PW12 and Shajahan on the previous day. There is no reason to disbelieve PW20. Of course, the defence has a version that she was acting on the dictate of a political party and it is pointed out that she even called the Chairman of the Municipality immediately on calling the police. There is nothing unusual in her conduct as it is quite usual that a resident Administrator will get the assistance of all people concerned when such a gruesome act takes place and that too inside the hospital. Further, the bloodstained clothes of PW1, PW12 and Shajahan were produced before the police which were bloodstained as well which were marked as MO14, MO21, MO23, MO24, MO24(a) and MO25. All these facts tend to show that PW1 and PW12 were very much present at the time when the incident happened. Though they were involved in other cases and were partisan witnesses, that they were present at the relevant time is proved by the testimony of PW20 and in respect of PW1, by PW26 as well. Hence, the trial Court was justified in placing reliance upon the said testimony and convicting accused 1 and 6.Further evidence of PW13, father of the deceased corroborates the Crl.Appeal No.1328/12 & Crl.Appeal (V) No.729/13 -:36:- testimony of PW1 that PW1 called PW13 by around 5.30 p.m. and informed about the incident.
22. In Crl.Appeal (V) No.729/2013, the argument of learned counsel for appellant is that when the other accused were members of an unlawful assembly and accused 1 to 6 were very much present in the hospital and they were identified by PW1 and PW12, there was no reason for the Court below to have acquitted them. The fact that there was a common object to commit the aforesaid crime is rather clear from the evidence of PW1 and PW12.
23. Court below however found that criminal conspiracy has not been proved. Though it could be stated that it was a planned attack on Mahin, there is nothing to indicate that it was preceded by a criminal conspiracy. Under such circumstances, the trial Court was justified in coming to a conclusion that criminal conspiracy was not proved prior to commission of the offence. Trial Court found that PW1 and PW12 had given specific details about the involvement of accused 1 and 6. As far as the other accused are concerned, it is observed that A3 was standing outside holding a sword. He did not participate in the commission Crl.Appeal No.1328/12 & Crl.Appeal (V) No.729/13 -:37:- of offence. The sword which was recovered on the basis of confession statement of A3 also contained blood. In the absence of a valid explanation, Court below felt that benefit of doubt has to be extended to the 3rd accused. Court below observed that as far as other accused 2, 4 and 5 are concerned, PW1 and PW12 had no prior acquaintance with them and since Test Identification Parade was not conducted, their involvement in the crime was not fully established. As far as A7 and A8 are concerned, there is absolutely no evidence. There was recovery of a sword at the instance of A2 and the dresses of A5 were recovered on the basis of his confession statement. Trial Court observed that witnesses to the recovery do not inspire confidence, though blood was found on the dhoti and shirt, they are entitled for the benefit of doubt. When the trial Court had based its finding of acquittal on possible grounds, while considering an appeal against acquittal, it may not be possible for this Court to overturn a decision unless it is found that the judgment is so perverse and unreasonable. Having regard to the acquittal of other accused are concerned, viz., accused, 2, 3, 4, 5, 7 and 8, the acquittal is based on sufficient grounds and in such circumstances, it is not appropriate Crl.Appeal No.1328/12 & Crl.Appeal (V) No.729/13 -:38:- for this Court to interfere with the finding of acquittal.
In the result, Crl.Appeal No.1328/2012 is dismissed confirming the conviction and sentence of the appellants/accused 1 and 6. Crl.Appeal (V) No. 729/13 is dismissed.
Sd/-
A.M.SHAFFIQUE JUDGE Sd/-
N.ANIL KUMAR
Rp True Copy JUDGE
PS to Judge