Najeeb vs The Sub Inspector Of Police on 8 January, 2020

[Cites 32, Cited by 0]

Kerala High Court

Najeeb vs The Sub Inspector Of Police on 8 January, 2020

Equivalent citations: AIRONLINE 2020 KER 21, (2020) 1 CRIMES 459

These appeals arise from the judgment pronounced by the Additional Sessions Judge-I, Mavelikara in Sessions Case No.989 of 2010. Accused 1 to 3 in the above case are the appellants in Crl.Appeal No.176 of 2015 and accused 4 and 5 are the appellants in Crl.Appeal No.177 of 2015.

2. Heard Shri B.Raman Pillai, learned senior counsel appearing for the appellants and Shri Alex M.Thombra, learned senior Public Prosecutor for the State.

3. In the above Sessions Case, 10 accused persons were tried for offences punishable under Sections 120B, 143, 144, 147, 148, 149, 341 and 302 read with Section 149 of the Indian Penal Code, 1860 (in short, "IPC") for allegedly committing murder of one Vinod on 23.12.2007 at about 7.30 p.m. pursuant to a conspiracy hatched by them. At the close of trial, the trial court found that the prosecution failed to establish allegation of criminal conspiracy and all the accused persons were not found guilty of the offence under Section 120B IPC. Consequently all of them were acquitted for that offence. Court below did not find any reason to convict Crl.Appeal Nos.176 & 177 of 2015 4 accused 6 to 10 for any of the aforementioned offences. Therefore, they were acquitted of all the charges. Placing reliance on the testimony of two eye witnesses, viz., PWs 1 and 2, and some other witnesses, the trial court found the appellants guilty under Sections 143, 144, 147, 148, 341 and 302 IPC with the aid of Section 149 IPC and convicted them to undergo various terms of imprisonment, including life imprisonment and fine of `50,000/- under Section 302 IPC.

4. Prosecution case, in brief, is thus: Deceased Vinod, aged about 23 years, was the son of PW9 Vasudevan. He was an RSS worker. According to the prosecution, the appellants nourished enmity towards deceased Vinod on account of the fact that he had previously trespassed into Kadavinal Mosque and committed murder of one Ashraf. Prosecution alleged that for the said previous enmity, the accused persons hatched a criminal conspiracy on 18.12.2007 at about 6.45 p.m. from a ground on the southern side of Pallikutty Mosque compound to kill Vinod. In furtherance of the said criminal conspiracy, 10 accused persons formed themselves into an unlawful assembly on 23.12.2007 and in prosecution of the common object of the assembly, they collected dangerous weapons such as swords, axe and iron rods to execute their plan. On 23.12.2007 at about 7.30 p.m. while the deceased and PWs 1 and 2 were proceeding towards the house of the deceased, the accused persons came on 5 motor bikes and waylaid the deceased.

Crl.Appeal Nos.176 & 177 of 2015 5

1st accused exhorted to cut Vinod by using lethal weapons and thereafter 2nd accused with a deadly sword struck the deceased on his right elbow causing a deep injury. At that time deceased Vinod and PWs 1 and 2 were riding bicycles. On receiving a cut injury, deceased Vinod abandoned his bicycle and ran for his life towards the house of PW5 Maya. Accused chased Vinod and from the car porch in PW5's house, accused 1 and 2 attacked him with swords and 3 rd accused attacked him with an axe causing fatal injuries. At that time, accused 4 and 5 armed with iron rods also bet the deceased. In the gruesome attack unleashed by the accused with lethal weapons on forehead, neck and all over his body, the victim suffered fatal injuries. He died from the place of attack itself in a short time. Therefore the accused are charged for the aforementioned offences.

5. PW1 Rajesh reached Vallikunnam police station at about 8.15 p.m.on 23.12.2007 and lodged Ext.P1 first information statement (FIS). PW35, Sub Inspector of Police, Vallikunnam police station recorded it and registered Ext.P1(a) first information report (FIR). Even though Section 27 of the Arms Act, 1959 was incorporated, in the final report filed under Section 173(2) of the Code of Criminal Procedure, 1973 (in short, "the Code") the Court did not frame a charge thereunder. Exts.P1 and P1(a) reached the Judicial First Class Magistrate Court, Kayamkulam at 1.00 p.m. on 24.12.2007. PW36, Circle Inspector of Police, Mavelikara conducted the initial investigation including the inquest on the body of Crl.Appeal Nos.176 & 177 of 2015 6 deceased from the crime scene between 9.00 and 10.30 p.m. on 23.12.2007 itself. Ext.P6 is the inquest report. PW36 forwarded the body of deceased for postmortem examination to Medical College Hospital, Alappuzha through PW24, a police constable. On 24.12.2007 the postmortem examination was conducted between 10.45 a.m. and 12.30 noon by PW21, Assistant Police Surgeon, Medical College Hospital, Alappuzha and issued Ext.P16 postmortem certificate. PW36 also prepared Ext.P7 scene mahazar, which the defence would prefer to call an observation mahazar.

6. Thereafter PW37, Circle Inspector of Police, Mannar was entrusted with the investigation by the Superintendent of Police, Alappuzha as PW36 was admitted to a hospital because he was attacked by a mob during the funeral procession. PW37 started investigation at 4.00 p.m. on 24.12.2007. He recorded the statements of PWs 1 to 3 and other witnesses. PW37 arrested the 6th accused on 25.12.2007. Exts.P47 to P49 are the arrest memo, inspection memo and arrest notice of 6 th accused. He submitted Ext.P50 report showing name and address of the 6 th accused. He also submitted Ext.P51 report indicating the names and addresses of accused 7 to 10. Thereafter, the investigation was taken over by the Dy.S.P., Chengannoor. He filed Ext.P52 report before the court. He was cited as CW56 in the final report. It has come out in evidence that CW56 died pending investigation. During his investigation, he submitted Ext.P53 report for including offences under Section 120B, 114 and 144 IPC. Crl.Appeal Nos.176 & 177 of 2015 7 Thereafter PW38, Crime Detachment Dy.S.P., Alappuzha took over the investigation on 15.02.2008. Ext.P57 is the report submitted by him revealing this fact. He verified the investigation previously done and found to be correct. It appears that the appellants surrendered before the court much later. Thereafter PW38 questioned accused 2 and 4 on 28.10.2008 after receiving them in police custody as per orders of the Magistrate concerned. On their confession, he recovered MOs 5 and 6. Ext.P9 is the recovery mahazar and Ext.P9(a) is the confession of 4 th accused which led to the recovery of MOs 5 and 6. He conducted investigation at Ervady in Tamil Nadu and recovered some registers from certain lodges where some of the accused stayed during their abstinence. PW38 submitted a forwarding note for chemical examination which is marked as Ext.P63. After completing the investigation, he filed the final report.

7. Prosecution examined 38 witnesses and marked 67 documents. One witness testified and six documents were marked on the side of defence. Material objects are MOs 1 to 15.

8. Shri B.Raman Pillai contended that the court below seriously erred in mainly relying on the interested testimony of PWs 1 and 2 for convicting the appellants. Although prosecution projected PWs 1 to 5 as eye witnesses to prove the occurrence, except PWs 1 and 2, who are RSS workers and close friends of deceased Vinod, other witnesses did not support the prosecution case. On this premise, it was argued by Shri B.Raman Pillai that foundation of the trial judgment is shaky. Per contra, Crl.Appeal Nos.176 & 177 of 2015 8 Shri Alex M.Thombra contended that testimony of PWs 1 and 2 are creditworthy as they are the natural and probable witnesses to speak about the occurrence. Apart from the testimony of PWs 1 and 2, the prosecutor relied on some other witnesses and materials to support the trial court's judgment.

9. We have carefully gone through the testimony of PWs 1 and 2 who are the eye witnesses to the incident. PW1 Rajesh is the first informant. Ext.P1 FIS would show that he lodged the same at 8.15 p.m. on 23.12.2007, ie., within one hour of the incident. Prosecution would contend that the incident was at about 7.30 p.m. on the said day. Admittedly PWs 1 and 2 are RSS workers. They were close associates of deceased Vinod. On account of the allegation that deceased Vinod was involved in killing one Ashraf, a couple of months prior to the incident, there was threat on Vinod's life and therefore PWs 1 and 2 used to give a protective cover to him. This is their version at the time of evidence.

10. Shri B.Raman Pillai contended that PW1's deposition to establish his presence at the time of occurrence that he along with PW2 proceeded on bicycles to accompany deceased Vinod to his house was not seen mentioned in Ext.P1 FIS. According to him, this is a development made as an afterthought to account for the presence of PWs 1 and 2 at the place of occurrence during the incident. It is also argued that PW1's evidence cannot be believed for the reason that if he had escorted the deceased to his house on account of a threat to the deceased's life, PW1 Crl.Appeal Nos.176 & 177 of 2015 9 would not have omitted to mention so in Ext.P1. Contradicting this argument, Shri Alex M.Thombra relied on a well settled proposition that a first information statement need not be an encyclopedia of all the details relating to the occurrence. It must contain necessary ingredients of the offence as it is the basis on which the police starts investigation. Law is very clear that a report which discloses the commission of a cognizable offence must be treated as the first information report under Section 154 Cr.P.C. It need not be a very detailed document (see State of U.P. v. Ballabh Das - AIR 1985 SC 1384 and K.Ashokan v. State of Kerala - (1998) 3 SCC 570). On going through Ext.P1 FIS, we find that PW1 has described the incident in detail for a police officer to start investigation with immediate effect. Merely for the reason that he did not mention in FIS why he was present along with the deceased at the time of the incident, we cannot reject his evidence, if found to be true otherwise.

11. PW1, at the time of chief examination, narrated the events in tune with Ext.P1 FIS. It is the case of PWs 1 and 2 that deceased was Mandalam Sharirik Shikshak Pramukh of RSS and they are RSS followers. According to PWs 1 and 2, appellants are workers of NDF. It is a fact known to everyone that there were frequent clashes between RSS and NDF at various parts of the State. Both PWs 1 and 2 testified that the incident happened at about 7.30 p.m. on 23.12.2007. Vinod sustained injury firstly from the side of a culvert on a public road starting from Parayantekizhakkethil Junction and at about 100 metres west of the Crl.Appeal Nos.176 & 177 of 2015 10 junction. According to both these witnesses, they were accompanying deceased Vinod on another bicycle. It has come out in evidence that deceased Vinod and PWs 1 and 2 along with others played football on a ground adjacent to Kakkurumbu Junction. PW1 deposed that 2 nd accused and his brother also played football. Accused 1 and 5 were watching the game. According to PWs 1 and 2, accused 1 and 5 were watching the movements of deceased Vinod. At about 6.30 p.m. the game was over. Thereafter PW2 went home. PW1 and Vinod, after taking their bicycles parked in front of a temple, went to Anchuthengil Stores, Kakkurumbu Junction and waited for PW2. They went to the shop for drinking water. Till 7.15 p.m. they were in the shop. When PW2 came, they proceeded to Vinod's house on two bicycles. After proceeding a short distance, the accused persons came on five motor bikes and waylaid Vinod. At that time, 1st accused exhorted to slash Vinod and on hearing this, 2 nd accused jumped out of a motor bike and inflicted a cut injury on Vinod's right elbow by using a sword. Immediately Vinod cried and jumped out of his bicycle. He ran for safety towards a residential compound on the southern side. According to PWs 1 and 2, the incident was seen in the headlight of five motor bikes on which the accused persons came. There is no dispute regarding the fact that the prosecution witnesses had previous acquaintance with the appellants as all of them are residents of the same locality. In other words, identity of the accused was not challenged at the time of trial and therefore, that question does not arise in these appeals. Crl.Appeal Nos.176 & 177 of 2015 11 PWs 1 and 2 identified the appellants and both of them deposed that accused 1 and 2 were wielding swords. 3 rd accused was holding a big- shopper and accused 4 and 5 were armed with iron rods. While Vinod was running for his life, accused 1 to 5 chased him. At that time, 3 rd accused took out a hatchet from the big-shopper and followed Vinod. PW1 deposed that on seeing these happenings, petrified PW2 ran towards west. PW1 also proceeded on his bicycle towards west. They saw Vinod jumping into the car porch from the sit-out of PW5's house. It has come out in evidence that the house was facing towards north. Sit-out and car porch directly faced the gate in front of the compound. According to PWs 1 and 2, height of the compound wall was 3 to 4 ft. PWs 1 and 2 saw the incident standing close to the compound wall by hiding in darkness. According to these witnesses, the accused persons surrounded deceased Vinod and prevented his escape. Thereafter, accused 1 to 3 indiscriminately inflicted cut injuries on Vinod by using swords and hatchet. At that time accused 4 and 5 were beating deceased Vinod with iron rods. Both the witnesses deposed that they could see the incident in the light available in the car porch and in the sit-out. Even though Vinod tried to ward off the blows, he could not resist the fierce attack and he ultimately fell down. After severely cutting and chopping Vinod, accused went out through the gate. PWs 1 and 2 deposed that they saw weapons in the hands of the accused. After that PW1 went to the car porch where Vinod was lying with bleeding injuries. Both the witnesses found Vinod lying in a pool of blood with Crl.Appeal Nos.176 & 177 of 2015 12 multiple severe injuries on head, neck, limbs and all over body. PW1 went to the police station on a motor bike of a known person who came there on receiving information. At about 8.15 p.m. he reached the police station and gave Ext.P1 FIS. PW1 identified the dress materials worn by deceased at the time of occurrence. He also identified the bicycle used by deceased Vinod. He identified MO5 sword and MO6 iron rod. Hatchet (MO7) and big- shopper (MO8) are also identified by PW1. In addition to that, he identified MO9 shirt and MO10 dhothi worn by the 3rd accused at the time of incident. 5th accused was wearing MO11 shirt and MO12 pants as identified by PW1. MO13 motor bike was identified as one of the motor bikes used by the accused. It is pertinent to note that no serious cross examination was done on identification of these material objects by PW1.

12. During cross examination on PW1, attempt was made to elicit answers from him to establish that he was not an eye witness to the occurrence. All the questions relating to this aspect was denied by PW1. Contradictions in his statement under Section 161 Cr.P.C. were also marked. It is a well settled principle that all contradictions may not affect the credibility of a witness unless they are material contradictions affecting the substratum of the prosecution case. In cross examination, PW1 admitted that he was an accused in Ashraf murder case where deceased Vinod was also involved. Deceased Ashraf was an NDF worker. PW1 was convicted by the trial court for an offence of murder and awarded life imprisonment. Although it was argued that he was acquitted in appeal, no Crl.Appeal Nos.176 & 177 of 2015 13 material is produced before us to show that fact. It is an undeniable fact that PW1 and the accused were hostile to each other on account of their ideological orientations.

13. Shri B.Raman Pillai vehementally argued that deceased Vinod being Sharirik Sishyak Pramugh could have extensively travelled throughout his native place and there was no reason for PWs 1 and 2 to escort him for reaching home. Although such questions were put to PW1, he denied the same saying that there was a serious threat to his life and knowing that fact they used to give a protective cover to him. It is true that in cross examination of PW1, some incongruity in the names of some of the accused were brought out. In Ext.P1 FIS he has given only names of the accused persons without their father's name or house address. As mentioned earlier, it may be idle to expect all such details in a statement which led to the registration of Ext.P1(a) FIR. It is all the more noteworthy in the context of this case that these persons are known to each other even much prior to the incident.

14. Testimony of PW1 gets ample support from that of PW2. He also narrated the incident almost in similar terms with the deposition of PW1. It may be futile to expect verbatim reproduction of same statements by two eye witnesses. It is a well recognised principle in the realm of appreciation of evidence that each witness may have his own way of understanding things and each witness may narrate the incident in his own style. What is to be looked into is whether there is any material Crl.Appeal Nos.176 & 177 of 2015 14 contradiction between the account of incident narrated by two eye witnesses. On going through the testimony of PWs 1 and 2, we find on all major aspects their testimony are in perfect agreement. Both these witnesses deposed about the role played by the accused in the incident. They spoke about the weapons used by each accused and there is no incongruity. PWs 1 and 2 deposed about seeing the incident from slightly different places and their narrations are also almost identical.

15. Shri B.Raman Pillai contended that PW1 has deposed that PW2 ran towards west on Vinod receiving the first cut injury from the side of a culvert and PW1 proceeded on his bicycle towards west. These two witnesses have no consistency in their depositions that thereafter they came to the side of the compound wall of PW5's house and witnessed the incident. According to the Prosecutor, there is no incongruity or unnaturality in their testimony because both of them were hiding themselves in darkness close to the compound wall of PW5's house and seeing the incident from two different places. PW2 deposed that PW1 went on a motor cycle to the police station after the accused had left the scene. Merely because they did not see each other at the time and immediately after the incident, we cannot discard their testimony regarding the incident. In the cross examination, PW2 also accounted for his presence at the place as he too was accompanying the deceased to his home as the deceased was having a life threat at the time. We find no fault with the trial court for relying on the testimony of PW2 regarding the events transpired and role Crl.Appeal Nos.176 & 177 of 2015 15 played by each of the accused in unleashing violence on the deceased from the car porch of PW5.

16. Shri Alex M.Thombra relied on the testimony of PW9 Vasudevan, father of deceased Vinod. He was questioned by PW36, Circle Inspector of Police at the time of inquest. His testimony would show that shortly after the incident, he came to the place of occurrence and saw his son's body lying drenched in blood. According to his chief examination, PWs 1 and 2 were also present at that time. He identified the 1 st accused and also other accused. It is his unchallenged deposition that all the accused persons are residing in the locality. PW9 deposed that his son had faced threats from NDF workers 2-3 times before the incident. It is his version that his wife had informed him that some NDF workers had come home and asked for Vinod. When his wife informed them that Vinod was not there, they threatened his wife saying that within 24 hours Vinod would be beheaded. PW9 also deposed that PWs 1 and 2 used to accompany Vinod as he was fearing attack at any time.

17. Although he was cross examined to elicit answers to the effect he did not inform police about the threat on Vinod at the time of inquest, we find no reason to disbelieve his version though his statement at the time of inquest did not reveal such an aspect. First of all, threat was posed to his wife and he knew that fact only through his wife. PW9 also deposed that PWs 1 and 2 informed him as to the role played by each of the assailants in hacking Vinod. This aspect also fortifies the presence of PWs 1 and 2 at Crl.Appeal Nos.176 & 177 of 2015 16 the time of occurrence. In cross examination PW9 could not be shaken regarding these aspects.

18. On going through the testimony of PW9, we find that there is enough material to infer the presence of PWs1 and 2 at the time of occurrence. Another material relied on by the prosecution to substantiate the version of PWs 1, 2 and 9 that Vinod had threat to his life is Exts.P64 to P67. Ext.P64 is the certified copy of FIR in Crime No.39 of 2005 of Vallikunnam Police station. Police registered a case as above under Sections 143, 147, 148, 149, 447, 307, 427, 302 and 153A IPC. This FIR is in respect of the killing of Ashraf in which deceased Vinod also figured in as an accused.

19. Ext.P65 is the copy of FIR in Crime No.1160 of 2006 of Karunagappally Police station registered under Sections 143, 147, 506(II) and 452 read with Section 149 IPC. That was a case registered on the basis of a complaint lodged by deceased Vinod's mother (wife of PW9) on 18.10.2006 at about 1.30 p.m. alleging that about 25 NDF workers armed with sword stick, iron rod, etc. came to her house and asked for her son Vinod. When she informed them that Vinod was not there, they threatened her by saying that they will kill Vinod before sunrise on the next day. It is also mentioned that if Vinod could not be located, his mother and father (PW9) would be burnt alive in their house. This is the incident which PW9 was referring to in his deposition.

20. Ext.P67 is the final report submitted under Section 173(2) Crl.Appeal Nos.176 & 177 of 2015 17 Cr.P.C. in the above crime. The case was registered against 10 accused persons, of which 1st accused was the 10th accused in this case and 9th accused in this case was the 9 th accused in the above crime. It is true that accused 6 to 10 in this case were acquitted and the acquittal has become final. It is relevant to note that Exts.P64 to P67 were admitted in evidence on consent. We cannot find any illegality in the procedure adopted by the trial Judge since all these are public documents. These documents would probabilise that NDF workers had posed a threat on the life of deceased Vinod prior to the incident and his household were aware of this aspect. It is also highly probable that PWs 1 and 2 must have been aware of this fact because they admittedly were very close to deceased Vinod. Having regard to the testimony of PWs 1, 2 and 9 and also Exts.P64 to P67, the trial Judge found that PWs 1 and 2 were present in the company of the deceased just before the incident and they had ample opportunity to witness the incident under the cover of darkness. Therefore, on this ground we find no reason to disbelieve the testimony of PWs 1 and 2.

21. As mentioned above, in the cross examination of PWs 1 and 2, no dent or discredit could be made so as to discard their testimony. Merely for the reason that some of the omissions pointed out by the defence counsel were not mentioned in their previous statements recorded by the police, we are unable to accept the defence case that they embellished the prosecution case in the witness box. They have offered valid explanations for the omissions. Therefore, we agree with the trial court's view that PWs Crl.Appeal Nos.176 & 177 of 2015 18 1 and 2 proved the incident and involvement of the accused in the crime.

22. Prosecution relied on recovery of MO5 sword and MO6 iron rod at the instance of 4th accused while in custody. According to Shri Alex M.Thombra, this incriminating circumstance will clinchingly prove the guilt of the accused. PW38 Dy.S.P. after obtaining police custody of accused 2 and 4, effected recovery of MOs 5 and 6 at the instance of 4 th accused. PW14 Jyothikumar is a witness to Ext.P9 mahazar through which MOs 5 and 6 weapons were recovered. He supported the prosecution to the hilt. According to him, he along with one Sudhakaran had gone to a brick kiln near Vallikunnam Peedikathara Junction for purchasing bricks. At about 4 o' clock on 29.10.2008 while he was about to return, he found a police vehicle coming to the side of the kiln. Out of curiosity, he remained there and understood that the accused in Vinod murder case were being taken for effecting a recovery. He identified accused 2 and 4 from the dock and deposed that 4th accused was known to him earlier. According to his testimony, 4th accused walked in front followed by PW38 towards the side of kiln. After searching in the nearby bush for a while, he took out a sword and an iron rod. The weapons were handed over to PW38. Both were slightly rusted. The sword was sharp on two edges and the end was pointed. He identified the material objects from the dock. Despite strict cross examination, his evidence remains credible. Testimony of PW14 renders ample support to that of PW38 regarding recovery of MOs 5 and 6 at the instance of 4th accused.

Crl.Appeal Nos.176 & 177 of 2015 19

23. Another circumstance pointed out by the prosecution in this regard is the analysis report relating to these weapons. Ext.P63 is the forwarding note submitted by PW38 before the court. MO7 hatchet, MO5 sword and MO6 iron rod along with some dress materials were forwarded to the Forensic Science Laboratory (FSL) for analysis. Ext.P60 is the chemical analysis report submitted from the Chemical Examiner's Laboratory, Thiruvananthapuram. It is pertaining to the viscera and blood of deceased Vinod. Ext.P61 is another report from the Chemical Examiner's Laboratory in respect of material objects sent up for analysis including the dress materials worn by the deceased and accused. The weapons were also sent to FSL. Item No.1 in the list is MO7 hatchet. Item No.9 is MO5 sword and item No.10 is MO6 iron rod. It is seen from the report that item Nos.1, 9 and 10 along with other items contained blood which was insufficient for determining the origin. Crime occurred on 23.12.2007 and recovery of MOs 5 and 6 was effected on 29.10.2008. Going by the testimony of PWs 14 and 38, it can be seen that the weapons were lying in open, exposed to weather. Still, it tested positive for blood though the group could not be detected. We find no reason to discard the reliable testimony of PWs 14 and 38 regarding recovery of MOs 5 and 6 at the instance of 4th accused in the presence of 2 nd accused. This is also a circumstance well established in favour of the prosecution by reliable evidence.

24. According to the prosecution, MO7 hatchet was recovered on Crl.Appeal Nos.176 & 177 of 2015 20 a confession by 3rd accused while in custody. He was arrested on 15.01.2008. When he was questioned, he informed the investigating officer about concealment of MO7 in a bush near Kakkurumbu bridge. At that time, CW56, who died later, was investigating the case. Ext.P8 is the mahazar prepared on 15.01.2008 showing the recovery of MO7 hatchet. PW12 was cited as an independent witness to prove the recovery. He knew 3rd accused previously and also knew that 3rd accused was an NDF worker. According to his chief examination, he saw 3 rd accused in the company of police officers and he was taken to a place near Kakkurumbu bridge in a police jeep. PW12 saw the 3rd accused coming out of the jeep. 3rd accused is also known as Kochumon as per the testimony of PW12. He also submitted that along with CW56, Sub Inspector of Police and policemen were present. Out of curiosity, he went behind them. 3rd accused was found searching for something in a densely grown bush. After searching for a short while, he came out with MO7 hatchet in his hand. He proved his signature in Ext.P8 mahazar.

25. In cross examination, he denied the suggestion that he is a supporter of RSS. Although the defence counsel raised questions that he was involved in attacking one Noushad, PW12 deposed that he was not present at the place and time of occurrence. He deposed that later he was acquitted in that case. He was implicated in S.C.No.257 of 2010 also before the Assistant Sessions Court for an offence under Section 308 IPC in which too he was acquitted. It was suggested in cross examination that Crl.Appeal Nos.176 & 177 of 2015 21 he was residing 8 kms away from the place where MO7 was found concealed. He denied the suggestion by saying that he was staying about 1½ kms away from the place of detection. It is submitted by Shri B.Raman Pillai that this witness was disbelieved by the court below. In this regard we have to consider the testimony of PW34 Sasidharan Nair, who was a constable in Mavelikkara Police station at the material time. He has been working with PW36, Circle Inspector of Police, Mavelikkara, PW37 Circle Inspector of Police, Mannar and CW56, then Deputy Superintendent of Police, who died later. Admittedly these officers were investigating the case at different times. PW34 was in their team. This aspect in his evidence remains unchallenged. PW34 also deposed that CW56 died during the investigation. He identified the handwriting and signature of CW56. According to the testimony of PW34, CW56 questioned the 3 rd accused while in custody and elicited a confession regarding concealment of MO7 hatchet near Kakkurumbu bridge. PW34 along with CW56 and other police officers went to the place where the 3 rd accused concealed MO7 and at his instance, the hatchet was searched out by 3 rd accused from a bush. He is the 3 rd witness to Ext.P8 mahazar evidencing recovery of hatchet. Learned Sessions Judge though disbelieved PW12, no justification can be seen to disbelieve the testimony of PW34 regarding recovery of MO7 hatchet as per Ext.P8 mahazar. As mentioned above, MO7 also contained traces of blood, despite lying exposed to weather for a long time. Properly proved recovery of MO7 at the instance of 3 rd accused Crl.Appeal Nos.176 & 177 of 2015 22 is also a fact in favour of the prosecution.

26. PWs 3 to 6 are cited by the prosecution to prove the occurrence. PW3 is the husband of PW4. He is a carpenter. In chief examination itself he admitted that 1st accused is his neighbour. It is also admitted that he had close acquaintance with 1 st accused. He flatly denied the prosecution case that he had witnessed the incident. With the permission of the trial court, prosecutor put questions to this witness which might be put in cross examination by the adverse party by invoking Section 154 of the Indian Evidence Act, 1872 (in short, "the Evidence Act"). In the cross examination, prosecution elicited answers from this witness identifying MO4 bicycle used by the deceased lying in his compound. PW3 deposed in cross examination that 2nd accused is also a member of NDF. Prosecution would suggest that PWs 3 and 4 supported the accused because they were afraid of the accused persons and also that they wanted to shield the 1st accused, who was their neighbour.

27. PW4 also refused to support the prosecution case. She also admitted that 1st accused is an immediate neighbour of her.

28. The incident took place in the car porch of PW5's house. Her house name is "Thiruvathira". About 11 months prior to the incident, they started residing in the house. Her husband was working abroad at that time. In chief examination she deposed that when she opened the door on hearing a hullabaloo, she found a person lying in the car porch. Immediately she cried out for help. She knew Vinod from her childhood as Crl.Appeal Nos.176 & 177 of 2015 23 they were hailing from the same locality. She refused to support the prosecution case that she saw the accused hacking Vinod with lethal weapons. She is also neighbour of the 1 st accused. Prosecution declared this witness hostile and cross examined with the permission of the court. It was suggested in cross examination that she deviated from her previous statement on account of threat and influence exerted by the accused persons, which she denied.

29. In the cross examination by the defence counsel, it was attempted to be elicited that PW5's compound wall was having more than 4 ft. height. Defence wanted to establish that PWs 1 and 2 could not have seen the incident standing on the other side of the compound wall since the wall was having about 6 ft. height. It was also brought out that there was no light burning in the car porch at the time of incident. Defence wanted to establish that even if PWs 1 and 2 stood outside the compound wall, they could not have identified the accused on account of insufficiency of light.

30. This witness was again cross examined by the prosecution with the permission of the court. At that time, she deposed that height of the compound wall was about 4ft. She also deposed that light in the sit-out was put on at that time. On a perusal of PW5's testimony, we are unable to accept the defence case that there was no sufficient light to identify the assailants slashing Vinod from her car porch and also that a person standing on the other side of the compound wall could not have seen the Crl.Appeal Nos.176 & 177 of 2015 24 incident because of the height of the wall. These two aspects in the defence case do not get support from the evidence of PW5.

31. PW6 is another witness on which the trial court placed some reliance. He is an autorickshaw driver. According to his testimony, on 23.12.2007 he proceeded in his autorickshaw from Kambissery Junction to his house at about 6.30 p.m. While he was so proceeding, he found two motor bikes and four persons standing by the side of that road. He named accused 1, 3, 4 and 5 as the persons who were standing on the road side at that time. When he proceeded about 100 metres, he found 2nd accused coming towards them. He identified these accused persons from the dock. PW6 alleged that the accused persons are members of NDF and they were enmical towards deceased Vinod.

32. When cross examined, PW6 stated that at about 8.30 p.m. he went to the place of occurrence and remained there for about 1½ hours. He did not see the inquest and preparation of scene mahazar. He went to the investigating officer and informed that he had seen the accused standing by the side of road. In cross examination, it was brought out that he was having only a learner's licence to drive the autorickshaw and had no badge. It is not the case of PW6 that he was plying his autorickshaw as taxi without a badge under the Motor Vehicles Act, 1988 at the material time. He also said that he did not remember the name of autorickshaw owner. Shri B.Raman Pillai argued that PW6 is an artificial witness planted by the prosecution finding that he is an ardent supporter of RSS. The Crl.Appeal Nos.176 & 177 of 2015 25 suggestion by the defence that PW6 is an RSS worker has not fully been denied by him because he was sympathiser of the organisation. According to Shri B.Raman Pillai, he cannot be believed and even if his version is accepted, he can only be a chance witness who could not properly account for his presence. We are not inclined to rely on him to find presence of the accused. But for these aspects, there are other reliable evidence available.

33. PW7 was cited to prove that deceased Vinod and PWs 1 and 2 went to Anchumanakkal Stores after playing football. But he refused to support the prosecution case. According to his testimony, he was unaware whether Vinod and PW2 came to Anchumanakkal Stores for drinking soda on 23.12.2007. PW7's testimony will not improve the case of either side.

34. PW8 deposed that 1st accused along with 8 to 10 persons were found in the premises of the place of occurrence on the date of incident during evening. He knew 1st accused about 20 years prior to the incident and he identified him from the dock. In cross examination he deposed that he cannot say house name of all the accused persons. He adhered to the chief examination in spite of searching cross examination effected on him.

35. PW10 is a witness to Ext.P6 inquest report. PW11 is a witness to Ext.P7 scene mahazar. In cross examination PW11 deposed affirmatively that wall surrounding PW5's compound was having only 4 ft. height.

36. PW13 denied that he is a signatory to Ext.P8 evidencing Crl.Appeal Nos.176 & 177 of 2015 26 recovery of MO7. As mentioned above, the recovery has been amply proved by the aforementioned witnesses. It has been suggested to this witness in cross examination that he is very close to the accused persons and therefore supporting them.

37. PWs 15 to 18, 20 and 25 to 28 are examined to prove the ownership of the motor bikes alleged to have been used by the accused persons on the date of occurrence for following and waylaying the deceased. None of these witnesses support the prosecution case regarding identity and ownership of the motor bikes. Shri Alex M.Thombra would contend that in spite of lack of evidence regarding each motor bike used by each accused, the fact that ten persons came on five motor bikes and attacked the deceased with lethal weapons has been established by reliable evidence. We find no significance to the testimony of these witnesses and their oral evidence will not improve the prosecution case.

38. PW21 conducted autopsy on the body of deceased Vinod on 24.12.2007 and issued Ext.P16 postmortem certificate. The injuries noted in Ext.P6 are as follows:

"Injuries (Antemortem)

1. Incised wound 13x1.5xbone deep oblique over the forehead across the midline, its left upper end 5.5 cm above eye brow and 3 cm outer to midline, and its right lower end 2.5 cm outer to right eye brow. The skull underneath showed a full thickness cut 6 cm long on the left side and a fissured fracture extending downwards from the right end of the cut towards the anterior cranial fossa.

Crl.Appeal Nos.176 & 177 of 2015 27

2. Incised wound 8x1.5xbone deep oblique on right side of top of head, its upper back end 8 cm above root of nose at midline. Skull underneath, showed a full thickness cut 8 cm long on the frontal bone.

3. Incised wound 10x1.5xbone deep, oblique on top of head on right side, upper front end 8 cm above root of nose at midline. The skull underneath showed a full thickness cut, 8 cm long. The upper ends of injury numbers 2nd and 3rd were seen communicating producing a 'V' shaped cut on right side of top of head.

4. Incised wound 7x3 cm xbone deep on top of head on right side, inner end 1 cm outer to midline, and 15 cm above root of nose. A piece of bone 3x1x0.2 cm was seen cut and separated from the outer table.

5. Irregular lacerated wound 7x0.5 to 3 cm x 1 cm on right side of face, lower end 7 cm outer to midline on the jaw margin.

6. Incised wound 8.5x1 to 4 cm x 6 cm oblique on right side of neck and back of head, lower front end 11 cm outer to midline and 1 cm below jaw margin. The wound cut the muscles of the back and right side of neck, and ended by completely cutting through the body of 2nd cervical vertebra and spinal cord.

7. Incised wound 3.5 x 0.8xbone deep on right side of head, upper back end just in front of tip of right mastoid. The wound also cut the lower part of right ear lobe for a length of 3 cm (full thickness)

8. Incised wound 14x1 to 3 cmx 5 cm oblique on right side of neck, its lower front end 3 cm below jaw margin and 1.5 cm outer to midline. The wound cut the muscles of right side of neck, carotid arteries, and right lamina of Crl.Appeal Nos.176 & 177 of 2015 28 thyroid cartilage and ended by cutting on the body of 3 rd cervical vertebra.

9. Incised wound 8x2x0.5 cm oblique on back of head on right side, upper inner end 1 cm outer to midline and 13 cm above occiput.

10. Incised wound 6 x1x0.5 cm oblique on back of right side of head, lower inner end 3 cm outer to midline and 1 cm below occiput. The wound cut through the skull and ended on the surface of the brain making an incision 1 cm deep on the right occipital region.

11. Incised wound 5x1 cm oblique on left side of back of head, upper inner end 4.5 cm above occiput and 1 cm outer to midline. The skull and brain underneath were cut for a length of 5 cm in its whole thickness and for a depth of 0.5 cm respectively. A fissured fracture 5 cm long was extending downwards from its outer end. The brain showed diffuse subarachnoid haemorrhage over the cerebral hemispheres and base, and subdural blood on the occipetal region with flattening of gyri and narrowing of sulci.

12. Incised wound 3x1x1 cm vertical on outer aspect of tip of right shoulder.

13. Incised wound 3.5 x 1x0.5 cm transverse on outer aspect of right upper arm, 14 cm below tip of shoulder.

14. Incised wound 9 x 1 to 4 cm bone deep oblique on outer and front aspects of right upper arm, upper outer end 17 cm below tip of shoulder. The humerus underneath showed a cut 2.5 cm long and 0.1 to 0.2 cm deep.

15. Incised wound 10x4x2 cm transverse on outer aspect of right upper arm 20 cm below tip of shoulder.

16. Incised wound 8x4xbone deep, transverse on outer and back aspects of right forearm, 3 cm below elbow.

Crl.Appeal Nos.176 & 177 of 2015 29

17. Superficial incised wound 2x0.5 cm oblique on back of right elbow.

18. Incised wound 9x1 to 3 cm to 3 cm oblique on back of right forearm, upper outer end 16 cm below elbow. The radius and ulna were seen cleanly cut underneath.

19. Incised wound 2x1x0.5 cm transverse on back of right forearm, 4 cm above wrist.

20. Incised wound 7x2.5xbone deep oblique on back of right hand 3 cm below wrist. Underneath the 3 rd, 4th and 5th metacarpels were seen completely cut and the 2 nd metacarpel was partially cut.

21. Incised wound 8x4xmuscle deep oblique on outer aspect of right thigh lower back end 11 cm above back of knee.

22. Incised wound 15x5x5 cm oblique on back of right thigh, lower end 2 cm above back of knee. The thigh bone underneath showed a cut 4 cm long and 0.2 cm deep.

23. Incised wound 8x1.5x1 cm oblique on back of right thigh, lower end 10 cm above back of knee.

24. Incised wound 3x1.5x1cm oblique on outer and back aspect of right leg, 3 cm below knee.

25. Incised wound 5x3xmuscle deep oblique on back of right leg, inner upper end 10 cm below back of knee.

26. Incised wound 12x5xbone deep oblique on outer aspect of right leg 15 cm below knee. Underneath tibia was found cut 0.2 cm deep.

27. Incised wound 7x1xbone deep oblique on front and outer aspect of right leg, upper front end 77 cm below knee. Underneath tibia was seen partially cut 1.5 cm long and 0.5 cm deep.

Crl.Appeal Nos.176 & 177 of 2015 30

28. Incised wound 15 cm x 2.5 cm vertical involving its full thickness on back of left hand and middle finger seen on the outer aspect of middle finger and extending upwards between the metacarpels of ring and middle fingers upper and 5 cm below wrist.

29. Incised wound 8x3xmuscle deep oblique on front and inner aspects of left thigh, lower inner end 5 cm above knee.

30. Incised wound 1.5x1x1 cm vertical on front of neck, 0.5 cm above the suprasternal notch. The lower end showed a tailing for 3 cm to the left side."

PW21 opined that death was due to multiple injuries sustained, especially injury Nos.1 to 4, 6, 8, 10 and 11. According to his testimony, injury No.6 is independently sufficient to cause death and necessarily fatal. Other injuries are also sufficient in the ordinary course of nature to cause death. To a specific question, PW21 answered that injury No.5, an irregular lacerated wound, could be caused by using MO6 iron rod.

39. Shri B.Raman Pillai contended that there is no reason to think that accused 4 and 5 attacked the deceased with iron rods as stated by the prosecution. According to him, the postmortem certificate will not reveal any injury that could be caused by using iron rod. Per contra, Shri Alex M.Thombra relying on the testimony of PW21 especially with reference to injury No.5 and other observations in his deposition, contended that indiscriminate beating with MO6 iron rod could have caused the contusions referred to in the postmortem certificate. We find force in the argument advanced by the prosecution in this regard. On a perusal of the deposition Crl.Appeal Nos.176 & 177 of 2015 31 of PW21 coupled with Ext.P16 postmortem certificate, we find lethal weapons like MOs 5 and 7 along with MO6 iron rod could have been used in all probability to cause injuries to the deceased by the assailants.

40. PW22 prepared Ext.P18 scene plan. PW23 produced Ext.P19 ownership certificate in respect of the house by name "Thiruvathira" showing that PW5's husband Sajikumar was the registered owner of the house. PW24 took body of the deceased to Alappuzha Medical College for postmortem.

41. Next set of witnesses are PWs 29 to 33. These witnesses were examined to prove that after the incident, some of the appellants absconded and remained hiding at various places. PW29 was a hotel receptionist at Nagore. According to his testimony, on 13.10.2008 at 11.45 a.m. 2nd accused took a room in Hotel Fazeel for staying and vacated at 8.50 p.m.on 14.10.2008. He proved the registers. PW30 did not support the prosecution case that some of the accused met him at Nagore for making a silver ring. PW31 was the Assistant Manager in Deen Lodge at Nagore. He deposed that 2nd accused occupied a room on 15.10.2008. He produced registers to the Crime Detachment Dy.S.P. at the time of investigation. Certain entries are also proved through this witness to show that the register was kept in the regular course of business. PW32 was conducting a rest house near Dargha Sherief, Nagore. He also proved that on 13.10.2008 2nd accused stayed in a room in his rest house. Relevant register was produced by him. PW33 was conducting rituals in the Dargha Crl.Appeal Nos.176 & 177 of 2015 32 Sherief. He also deposed that 2nd accused stayed from 11.10.2008 to 13.10.2008 in the lodge attached to Dargha Sherief. Testimony of these witnesses would signify that the accused persons tried to stay away from their native place after the incident. It has also come out in evidence that other accused were either arrested or surrendered after a long time. According to the prosecution, their conduct is relevant under Section 8 of the Evidence Act.

42. We have already discussed the evidence adduced by the prosecution to establish the allegations against the appellants. Shri Alex M.Thombra summed up the case by arguing that reliable testimony of PWs 1 and 2 supported by PW9 and to some extent by PW6 would show that the appellants are directly involved in the incident. It was also pointed out that recovery of the weapons used for aggression at the instance of accused 3 and 4, which tested positive for blood also indicate their culpability. PWs 1 and 2 have given account of the incident in complete harmony to one another. Their presence at the scene of occurrence cannot be doubted in the light of the fact that they were accompanying Vinod fearing danger to his life or limbs. This contention raised by the prosecution is probabilised by Exts.P64 to P66. It is also contended by Shri Alex M.Thombra that meticulous investigation conducted by various officers is regular in all respects and they have collected all the relevant evidence to bring home the guilt of the accused persons.

43. Per contra, Shri B.Raman Pillai contended that Exts.P64 to Crl.Appeal Nos.176 & 177 of 2015 33 P66 cannot be relied on to infer that there was threat on the life of deceased Vinod since no reference was made about those documents at the time of examination of accused under Section 313 Cr.P.C. Purpose of examination of an accused under Section 313 Cr.P.C. is for enabling the accused to personally explain any circumstance appearing in the evidence against him. These documents per se do not relate to culpability of the appellants. They are relied on by the prosecution only to establish that PWs 1 and 2 used to give a protective cover to Vinod apprehending danger. Moreover, these documents were admitted in evidence with the consent of the appellants as is evident from the proceeding paper maintained by the trial court. Therefore, we find no reason to discard the documentary evidence showing the circumstances under which PWs 1 and 2 might have accompanied the deceased Vinod at the time of occurrence.

44. Shri B.Raman Pillai contended that recovery of MO9 full sleeve shirt and MO10 dhothi at the instance of 3 rd accused especially when PW13, the so-called attester, turned hostile cannot be accepted. Likewise MO11 shirt and MO12 pants allegedly recovered at the instance of 5th accused by CW56 as per Ext.P39 mahazar also cannot be relied on. It may be true that recovery of these articles was not fully supported by independent witnesses. However, the investigating officers and the officers who accompanied them have deposed about the recovery. Besides, the dress materials worn by accused 3 and 5 were sent up for analysis. This can be seen from Ext.P63 forwarding note. It is seen from Ext.P61 report Crl.Appeal Nos.176 & 177 of 2015 34 by the Chemical Examiner that MO9 full sleeve shirt and MO10 dhothi worn by 3rd accused and MO11 shirt and MO12 pants worn by the 5 th accused at the time of incident tested positive for human blood. This is also a circumstance against the case of the appellants.

45. We are unable to accept the argument raised by Shri B.Raman Pillai that PWs 1 and 2 are not reliable as they are highly interested in seeing that the appellants are convicted due to ideological differences. True, their testimony may be viewed from another perspective that they wanted to see the real aggressors brought before justice to vindicate the death of their friend. Testimony of PWs 1 and 2 support each other and therefore found to be reliable. Testimony of other witnesses also render support to the testimony of PWs 1 and 2. Besides, recovery of bloodstained weapons at the instance of accused persons and the dress materials containing human blood also probabilise the prosecution case. Investigation in this case was promptly done and the officers could collect enough materials to implicate the accused persons in the case. As observed in the judgment of the trial court, the conspiracy part of the prosecution case could not be established. Benefit of doubt was extended to accused 6 to 10 and they were acquitted. Acquittal of those accused has become final. But, the same yardstick cannot be adopted in the case of the appellants before us.

46. Shri B.Raman Pillai contended that PW2 cannot be relied on because he himself was involved in Ashraf murder case which led to the Crl.Appeal Nos.176 & 177 of 2015 35 incident in this case. Relying on the decision of the Supreme Court in State of U.P. v. Farid Khan and others (AIR 2004 SC 5050) Shri Alex M.Thombra contended that his testimony cannot be discarded for the sole reason that he was having a criminal background. In the above decision it was held that if the evidence tendered by an eye witness having criminal background gets corroboration from the evidence of other witnesses, there is nothing wrong in accepting such evidence. Here, PW1 amply corroborates the testimony of PW2 and he gets support from the testimony of PW9 as well. Therefore, we find no reason to discard his evidence.

47. Shri B.Raman Pillai relying on the decision in Marudanal Augusti v. State of Kerala (1980 SCC (Cri) 985) contended that Ext.P1 FIS in this case is highly suspicious. According to him, PW1's version that he went to the police station on a motor bike of an acquaintance and lodged Ext.P1 at 8.15 p.m. is unbelievable. Secondly, it is contended that FIR reached the Magistrate Court concerned only at 1.00 p.m. Delay in sending FIR to court would indicate that Ext.P1 was not registered at 8.15 p.m. on the day of occurrence. Per contra, Shri Alex M.Thombra contended that the investigating officers have explained the reasons for delay. Delay could have occurred due to disruption of law and order situation prevailed in the place after the incident. We find no reason to hold that the FIR in this case is fabricated or brought into existence long after the occurrence. Therefore, the prosecution case cannot be thrown overboard merely on the ground of delay in reaching the FIR in court. All Crl.Appeal Nos.176 & 177 of 2015 36 the investigating officers have spoken about the immediate registration of the crime, starting of investigation, conducting inquest at about 9.00 p.m. on the very same day, etc, which shows that there was prompt action in this regard.

48. Having regard to the entire facts and circumstances revealed from the evidence and also considering the legal aspects relevant in this case, we find no reason to interfere with the conviction of the appellants under Sections 143, 144, 147, 148, 341, 302 read with Section 149 IPC. The sentence awarded on the appellants for the aforementioned offences are also legally justifiable. Therefore, we find no reason to interfere with the conviction and sentence.

In the result, the appeals fail and they are dismissed. All pending interlocutory applications will stand dismissed.

A.HARIPRASAD, JUDGE.

N.ANIL KUMAR, JUDGE.

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