Kerala High Court
Sabukhan vs State Of Kerala on 7 March, 2009
Author: Thottathil B.Radhakrishnan
Bench: Thottathil B.Radhakrishnan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE THOTTATHIL B.RADHAKRISHNAN
&
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
TUESDAY, THE 21ST DAY OF OCTOBER 2014/29TH ASWINA, 1936
CRL.A.No. 566 of 2009 ( )
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SC 1322/2004 of ADDITIONAL DISTRICT AND SESSIONS COURT (ADHOC - 1),
KOLLAM DATED 07.03.2009
APPELLANTS/ACCUSED:
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1. SABUKHAN
S/O.KAMALUDDEEN, KANNAN KAVIL VENGA VILA VEEDU
THADIKKADU MURI, ARRAKKAL VILLAGE, PATHANAPURAM TALUK.
2. JUNAID, S/O.SAINUDDEEN,
PLAVILA VEEDU, ERAM MURI, ANCHAL VILLAGE
PATHANAPURAM TALUK.
3. MUHAMMAD KUNJU @ MAMMED,
S/O.SULTHAN KUNJU, DARULAMAN VEEDU, ERAM MURI
ANCHAL VILLAGE, PATHANAPURAM TALUK.
BY ADVS.SRI.SUNNY MATHEW
SRI.C.K.SREEDHARAN
RESPONDENT/COMPLAINANT:
----------------------
STATE OF KERALA
THROUGH THE CIRCLE INSPECTOR OF POLICE
ANCHAL POLICE STATION, REP. BY THE PUBLIC, PROSECUTOR
HIGH COURT OF KERALA, ERNAKULAM.
PUBLIC PROSECUTOR SRI.K.K. RAJEEV
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
30.07.2014 ALONG WITH CRA. 630/2009, CRA. 1417/2011 AND CRRP.
1931/2011, THE COURT ON 21.10.2014 DELIVERED THE FOLLOWING:
smv
C.R.
THOTTATHIL B.RADHAKRISHNAN
&
P.B.SURESH KUMAR, JJ.
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Crl. Appeal Nos.566 of 2009, 630 of 2009, 1417 of 2011
and Crl.R.P.No.1931 of 2011
-----------------------------------------------
Dated 21st October, 2014.
J U D G M E N T
P.B.Suresh Kumar, J.
These matters arise out of the judgment in S.C.No.1322 of 2004 on the file of the Additional Sessions Court (Adhoc) 1, Kollam. There were altogether 16 accused in the case. Crl.Appeal No.566 of 2009 is by accused Nos.2, 4 and 5 and Crl.Appeal No.630 of 2009 is by accused Nos.8 and 9. In these appeals, the appellants challenge their convictions. Crl.Appeal No.1417 of 2011 is by the State and Crl.R.P.No.1931 of 2011 is by the defacto complainant. In these matters, the challenge is against the acquittal of the remaining accused.
2. The appellants in Crl.Appeal Nos.566 of 2009 and 630 of 2009 have been found guilty and convicted for the offences punishable under Sections 143, 148, 460 and 302 of the Indian Penal Code, hereinafter, referred to as 'the IPC', for Cra.566/2009 & connected cases 2 short. They were sentenced to undergo simple imprisonment for a period of one year and pay a fine of Rs.5000/- each for the offence punishable under section 143 of IPC. They were also sentenced to undergo simple imprisonment for a period of two years and pay a fine of Rs.10000/- each for the offence punishable under Section 148 of IPC. They were further sentenced to undergo rigorous imprisonment for a period of 3 years and pay a fine of Rs.15000/- each for the offence punishable under Section 460 IPC. They were further sentenced to undergo imprisonment for life and pay a fine of Rs.25000/- each for of the offence punishable under Section 302 IPC. In addition, the second appellant in Crl.Appeal No.566 of 2009, who was accused No.4, was found guilty and convicted for the offence punishable under Section 427 of IPC also. The said appellant was sentenced to undergo simple imprisonment for a period of six months and pay a fine of Rs.5000/- for the said offence. Default sentences were also imposed on the accused.
The Prosecution Case :
3. The accused are members of an organisation called NDF and deceased Ashraf was an active worker of the Cra.566/2009 & connected cases 3 political party CPI(M). The accused maintained ideological conflicts with Ashraf. While so, on 17.7.2002, Ashraf assaulted accused No.3 while dispersing an altercation between him and PW8. The said incident aggravated the enmity of the accused towards Ashraf. Consequently, the accused hatched a conspiracy to commit the murder of Ashraf and in furtherance of the said conspiracy, on 18.7.2002, at about 9.30 p.m., accused Nos.1 to 13 reached the house of Ashraf with deadly weapons, in three vehicles, namely a jeep, an autorickshaw and a bike, and committed riot by exploding a country bomb and destroying the window panes and shutters of the house. It is alleged that accused No.13 was the person who exploded the bomb. Thereafter, it is alleged that accused Nos.1 to 6, 8, 9 and 11 broke open the door of the house which was closed by then, invaded the main room next to the sit out of the house and inflicted injuries on Ashraf with Mos.2, 6, 13, 26, 47 and 48 swords, MO5 knife and MO3 chopper. In the course of the attack, Ashraf wrested MO13 sword from the grasp of accused No.11 and struck blows with it on the right hand of accused No.8 and on the left hand of accused No.9, causing injuries. It is alleged that after some time, accused Cra.566/2009 & connected cases 4 Nos.7, 10 and 12 also entered the main room and inflicted injuries on Ashraf. It is alleged that MO9 sword and MO8 chopper were the weapons used by accused Nos.10 and 12.
After the attack, when the accused left the house, accused No.13 blasted another bomb to keep the public away from the house. According to the prosecution, all the accused flee away from the scene thereafter in the very same vehicles. Ashraf was, though taken to St.Joseph's Hospital, Anchal, he died on the way to the hospital.
The Investigation and trial :
4. PW1, a cousin brother of the wife of Ashraf, informed the occurrence to Anchal police at 11 pm on the same day and a case was registered. Ext.P1 is the First Information Statement lodged by PW1. In Ext.P1, PW1 has stated the names of accused Nos.1 to 6. As far as the remaining accused are concerned, the information furnished in Ext.P1 was that they could be identified on sight. PW64 investigated the case and submitted the final report against the accused.
5. Accused Nos.2, 4, 5, 8 and 9 to 16 appeared before the Court of Session. On appearance, charge was framed against them for the offences punishable under Cra.566/2009 & connected cases 5 Sections 120B, 143, 147, 148, 427, 460, 302 read with section 149 of the IPC and Sections 3 and 5 of the Explosive Substances Act. When the charge was read over and explained, the accused pleaded not guilty. The prosecution, thereupon, examined 65 witnesses as PW1 to PW65, marked 97 documents as Exts.P1 to P97 and caused identification of 56 material objects as Mos.1 to 56, to establish the guilt of the accused. In the course of the proceedings, Exts.D1 to D18 case diary statements of the witnesses were also marked at the instance of the accused. After the evidence of the prosecution, when the accused were questioned under Section 313 of the Code of Criminal Procedure concerning the incriminating circumstances appearing against them, they denied those circumstances. Since this was not a case of no evidence for the prosecution, the accused were called upon to enter on their defence. Thereupon, one witness was examined by the accused as DW1.
The Findings of the Court of Session :
6. The Court of Session found that the prosecution failed to establish the case of conspiracy alleged against the accused. However, the Court of Session found that accused Cra.566/2009 & connected cases 6 Nos.2, 4, 5, 8 and 9 are guilty of the offences punishable under Sections 143, 148, 460 and 302 read with Section 149 of the IPC. As far as the offence punishable under Section 427 of the IPC is concerned, the court found that the fourth accused alone is guilty of the said offence. The Court further found that the prosecution has not established the guilt of accused Nos.10, 11, 12 and 13. A finding as to the guilt of the accused for the offences punishable under Sections 3 and 5 of the Explosive Substances Act is not seen rendered.
The issue :
7. The issue arises for consideration is whether accused Nos.2, 4, 5 and 8 to 13 are guilty of the offences punishable under Sections 120B, 143, 147, 148, 427, 460, 302 read with section 149 IPC and Sections 3 and 5 of the Explosive Substances Act.
8. We have heard the Senior Counsel Sri.B.Raman Pillai for the appellants in Crl.Appeal No.630 of 2009, Adv.Sri.C.K.Sreedharan for the appellants in Crl.Appeal No.566 of 2009, Sri.K.K.Rajeev, the Public Prosecutor for the State and Adv.Sri.T.R.Aswas for the petitioner in Crl.R.P.No.1931 of 2011.
9. The crux of the arguments advanced by the Cra.566/2009 & connected cases 7 learned counsel for the accused is that the evidence tendered by the witnesses who have supported the prosecution was not worthy of credence. The learned counsel have also pointed out the various circumstances, which, according to them make the evidence of the said witnesses unreliable. We shall indicate the circumstances pointed out by the learned counsel, while dealing with their arguments. At this stage, we need only state that the attempt of the learned counsel for the accused was only to establish that the accused were not present at the scene of occurrence at the relevant time. The learned counsel for the accused also contended that the first information report in the case was not written at the time shown and that the same demolishes the entire edifice and fabric of the prosecution case. They have also contended that the witnesses were shown to the accused before their examination in court and therefore, the identification of the accused by the witnesses in court has no significance at all.
The ocular evidence and its analysis:
10. The fact that there was an attack on Ashraf on the relevant day at the relevant time by a group of more than 5 Cra.566/2009 & connected cases 8 persons is not seen disputed by the accused. Ext.P45 is the Post Mortem Certificate. Ext.P45 reveals that Ashraf sustained 30 injuries in the course of the attack. The fact that Ashraf died due to haemorrhage and shock of the injuries sustained by him has been established by the evidence of PW58, the doctor who conducted the post mortem examination. The charge against the accused is that with the common object of committing the murder of Ashraf, they formed themselves into an unlawful assembly, trespassed into the house of Ashraf and murdered him, by inflicting injuries with deadly weapons. Section 149 creates a constructive liability on the members of an unlawful assembly for the unlawful acts committed pursuant to the common object by any member of that assembly. The basis of the constructive guilt is, the membership of the unlawful assembly, with the requisite common object or knowledge. As such, in a case involving an unlawful assembly, the court is not expected to see as to who actually did the offensive act or require the prosecution to prove which of the members of the assembly did which of the offensive acts. It is apposite in this context to refer to a passage of the decision of the Apex Court in Lalji and others v. State of U.P.(1989(1) SCC 437). The Cra.566/2009 & connected cases 9 said passage reads thus :
"Thus, once the court holds that certain accused persons formed an unlawful assembly and an offence is committed by any member of that assembly in prosecution of the common object of that assembly, or such as the members of the assembly knew to be likely to be committed in prosecution of that object, every person who at the time of committing of that offence was a member of the same assembly is to be held guilty of that offence. After such a finding it would not be open to the court to see as to who actually did the offensive act or require the prosecution to prove which of the members did which of the offensive acts. The prosecution would have no obligation to prove it."
It is now fairly settled that for a member of an unlawful assembly, having a common object, what is to be seen is as to whether there was any active participation or presence at the scene of occurrence with an active mind. The decision of the Apex Court in Ramachandran v. State of Kerala, [2011(9) SCC 257] is relevant in the context. Paragraph 24 of the said judgment reads thus :
" 24. In Amerika Rai v. State of Bihar11 this Court opined that for a member of an unlawful assembly having common object what is liable to be seen is as to whether there was any active participation and the presence of all the accused persons was with an active mind in furtherance of their Cra.566/2009 & connected cases 10 common object. The law of vicarious liability under Section 149 IPC is crystal clear that even the mere presence in the unlawful assembly, but with an active mind, to achieve the common object makes such a person vicariously liable for the acts of the unlawful assembly."
In the light of the aforesaid principles, what is to be seen in this case is whether the accused, who faced the trial have actively participated in the attack or were present at the scene of occurrence with an active mind. With the aforesaid focus, we propose to consider the evidence on record.
11. PW1 is the cousin brother of the wife of Ashraf. He is residing near the house of Ashraf. He has lodged the first information statement to the police. PW1 deposed that at about 9.30 p.m on the relevant day, while he was talking with Ashraf at his house, the accused came there all of a sudden, exploded a bomb, broke open the door of the house with a piece of rubble and inflicted injuries on Ashraf with deadly weapons. According to PW1, when the accused entered inside the house, he sheltered under a table and witnessed the attack on Ashraf. PW1 has stated in his deposition that he has seen accused Nos.1 to 12 inflicting injuries on Ashraf, with the weapons Cra.566/2009 & connected cases 11 carried by them. PW1 has identified MO1 piece of rubble used by the accused for breaking open the door and Mos.2 to 5 weapons abandoned by the accused at the scene. He has also identified accused Nos.2, 4, 5, 8, and 9 in court, when he was required to identify the said accused. PW1 has also mentioned in his evidence the presence of Pws.2, 3, 4 and 6 in the house at the time of occurrence. He has also stated that Ashraf was taken to the hospital by him along with PW46 and others.
12. PW2 was the father of Ashraf. He is a retired teacher. At the time of occurrence, he was aged 74 years. He is a person residing with Ashraf in the same house. PW2 deposed that the accused came to the house all of a sudden, created a scene of terror by exploding a bomb, broke open the door of the house with a piece of rubble and inflicted injuries on Ashraf with deadly weapons. According to PW2, when the accused entered inside the house, he sheltered inside the room on the western side of the main room next to the sit out and could witness the occurrence which took place in the main room, through the windows. PW2 mentioned about the presence of PW1 in the house at the relevant time and about his sheltering under the table, when the assailants entered Cra.566/2009 & connected cases 12 inside the house. He has also spoken about the presence of Pws.3 and 6 in the house at the time of occurrence. He has mentioned specifically in his evidence about the overt acts of accused Nos.8 and 9 on Ashraf and the attack made by Ashraf on the said accused. When PW2 was required to identify the accused, he identified accused Nos.8 and 9. PW2 expressed his inability to identify the remaining accused as all of them were dressed alike at the time of his examination and his examination in court was after about five years of the occurrence. He has also stated about the explosion of the bomb at the premises of the house after the occurrence and the sound of starting the vehicles, when the assailants left the scene of occurrence. PW2 has identified MO1 piece of rubble used by the accused for breaking open the door and Mos.2 to 5 weapons abandoned by them at the scene.
13. PW3 was the servant maid in the house of Ashraf, who deposed that she was staying with the family in the house at the relevant time. She has also stated that on the date of occurrence, a few persons came to the house all of a sudden and created a scene of terror by exploding a bomb. According to her, as directed by Ashraf, she took the children of Cra.566/2009 & connected cases 13 Ashraf and sheltered inside a bathroom near the kitchen. She has stated that she heard the sound of breaking the door and windows. She has also stated that she heard the cry of Ashraf and understood that Ashraf was being attacked. PW3 mentioned about the presence of Pws.1, 2, 4 and 6 in the house at the relevant time.
14. PW4 was a person residing on the immediate north of the house of Ashraf. He deposed that when he came out of his house, hearing the sound of explosion, he heard a hue and cry inside the house and after some time, he found accused Nos 4, 8 and 9 coming through the kitchen door of the house of Ashraf. He has also stated that he had seen accused Nos.7, 10 and 12 on the south-western corner of the house at the time with weapons. He has further stated that he heard the sound of explosion and the sound of starting of vehicles when the assailants left the scene. PW4 has also mentioned about the presence of Pws.1, 2, and 6 at the house at the relevant time and said that Ashraf was taken to the Hospital by PW1 and others in a Maruti car.
15. PW5 was the wife of Ashraf. She was not present in the house when the occurrence took place. She Cra.566/2009 & connected cases 14 only spoke in her evidence about the enmity of NDF workers towards Ashraf and the damage caused by the assailants to the house and also the vehicles parked in the house.
16. PW6 is none other than the son of Ashraf. He was 14 years when he was examined in court. He was found competent by the Court of Session to give evidence. He deposed about the presence of Pws.1, 2 and 3 at the house at the relevant time. He said that when the assailants caused the explosion, PW3 took him and his sister to the bathroom near the kitchen, as directed by Ashraf. He has stated that he heard the cry of his father from the main room and the sound of breaking the windows and falling materials in the kitchen. He also heard the cry of PW2 and saw his father badly injured and lying in a pool of blood, after the assailants left the scene. He stated that he gave a glass of water to his father before he was taken to the hospital. PW6 has identified MO1 piece of rubble used by the accused for breaking the door and Mos.2 to 5 weapons abandoned by the accused at the scene.
17. PW7 was a Jeep driver. Though he turned hostile, he has stated in his evidence that he is residing near Cra.566/2009 & connected cases 15 the house of Ashraf and on the relevant day, at about 9 pm, while he was washing his Jeep on the side of the road leading to the house of Ashraf, he saw a Jeep, a Motorcycle and an autorikshaw passing towards the house of Ashraf. According to him, the jeep was driven at that time by accused No.4.
18. PW21 was an employee in the theatre adjacent to the house of Ashraf. He deposed that when he watched as to what is happening in the house of Ashraf on hearing the sound of explosion, he saw accused No 13 threatening people who have rushed to the house. He also deposed that he saw some among the assailants breaking the windows and doors of the house. He identified accused Nos.2, 4, 9 and 11 in court.
19. PW22 is a close relative of Ashraf residing adjacent to the house of Ashraf. Even though he turned hostile, his evidence assumes significance. He stated that he heard the sound of explosion in the premises of the house of Ashraf and when he came outside his house, he was threatened by some among the assailants. He stated that in view of the threat, he had to go inside his house. He, however, deposed that he heard the explosions and the sound of starting of the vehicles, when the assailants left the place. According to him, after the Cra.566/2009 & connected cases 16 assailants left the scene, he went to the house of Ashraf and found him lying in a pool of blood in the main room next to the sit out.
20. PW32 is a person running a tea shop near the residence of Ashraf. He deposed that on the relevant day at about 9.30 p.m., when he was about to close his shop, he heard the sound of explosion and breaking of materials in front of the house of Ashraf and when he rushed towards the house of Ashraf, he saw the assailants in front of the house, breaking open the front door. According to him, when he tried to enter through the gate, one of the assailants threatened him. He also deposed that when he went to the house of Ashraf, after the assailants left the scene, he saw Pws.1 to 3 and the children of Ashraf. He also identified Mos.1 to 5.
21. PW46 is a close relative of Ashraf and a Village Officer. PW 46 is residing about 100 meters away from the house of Ashraf. He deposed that while he was talking with CW10 at Pulimukku junction, he saw a bike, jeep and autorikshaw proceeding towards the house of Ashraf. When he rushed to the house of Ashraf, hearing the sound of explosion, he saw accused No 13 attempting to throw bomb Cra.566/2009 & connected cases 17 towards him. He has stated that he then proceeded to the eastern side of the house of Ashraf and watched the incident. PW46 mentioned about the presence of Pws.1, 2, 3 and 6 at the house at the relevant time.
22. Pws.47 and 48 who were cited to prove the occurrence though turned hostile, they deposed that they saw PW1 at the house of Ashraf, immediately after the occurrence.
23. The allegation against the accused, who are 13 in number, is that all of a sudden, all of them together went to the house of Ashraf, broke open the doors and inflicted about 30 injuries on Ashraf with several weapons and flee away from the scene within a few minutes. One should imagine the state of mind of a person, who is witnessing such an occurrence. The state of mind of the close relatives, as in the instant case, like the father, son etc. is beyond imagination. When such persons reproduce what they saw in an occasion like that after a few years, there will be variations as to the sequence of the overt acts, the seat of injuries, identity of the accused with reference to the injuries caused by them, identity of accused with reference to the weapons used by them etc. One has to keep in mind that the close relatives of the victims in such Cra.566/2009 & connected cases 18 cases, may not falsely implicate others and let leave the real culprits. The view taken by the Apex Court in State of Haryana v. Tek Singh, [(1999) 4 SCC 682] is relevant in the context. The relevant portion of the judgment reads thus:
"It is true that they have failed to locate the exact seat of the injuries but that is natural, when the incident took place all of a sudden within two to three minutes and successive blows were inflicted by the accused, 8 in number. They came all of a sudden armed with the deadly weapons and attacked the victims, who rushed to take shelter in the house. In such a fact situation, some contradictions as to who assaulted whom, with what weapon and whether it was by the sharp edge or blunt side of the gandasa are bound to be there, particularly when the blows are given in quick succession, it would be against the ground reality to expect the witnesses to depose exactly on which part of the body the blow landed. In these circumstances, even if there is some exaggeration with regard to the infliction of blows, it would hardly be a ground for rejecting their testimony. It may be futile to expect an exact description of the details of the attack on the victims by each accused from the widow of one of the deceased who witnessed the dastardly act or from eyewitnesses. The accused were known to the widow and the witnesses. Their names were disclosed immediately. Hence, the presence of the accused at the scene of offence was established. They all were armed with deadly weapons and came together. In such a situation, when the presence of the accused who were armed with deadly weapons is established beyond doubt, Sections 148 and 149 IPC would come into Cra.566/2009 & connected cases 19 operation and they would be liable for the offences. In this view of the matter, there was no warrant at all for the High Court to reverse the judgment of the Sessions Court which is analytical and well reasoned."
A similar view has been taken by the Apex Court in Nagappa Fakirappa Goudar v. State of Karnataka, 1994 Supp (1) SCC 716. The relevant portion of the said judgment reads thus :
"It is true that these witnesses have stated that all the six persons surrounded the deceased and inflicted the injuries. Merely because they could not describe the part played by each of the accused in detail, that does not in any manner affect the prosecution version in a case of this nature".
Coming back to the evidence in this case, the presence of PW2 and PW6 at the house of Ashraf at the time of occurrence is not disputed. Their presence cannot also be disputed as they are none other than the father and son of Ashraf, who were residing with Ashraf. The presence of PW1, who is the cousin brother of the wife of Ashraf, at the house of Ashraf at the time of occurrence was spoken to by Pws.2, 3, 4, 5, 6, 21, 32, 46, 47 and 48. Likewise, the presence of PW3, who is the servant maid in the house, was spoken to by Pws.1, 2 and 6.
Cra.566/2009 & connected cases 20 There is absolutely no reason to disbelieve the consistent evidence tendered by the said witnesses as to the presence of Pws.1 and 3 at the house of Ashraf at the time of occurrence. Among the said witnesses, PW1 has identified accused Nos.2,4,5,8 and 9, when he was required to identify them and gave evidence as to the overt acts attributed against the said accused. He mentioned the names of accused Nos.10, 11 and 12 and gave evidence also of the specific overt acts attributed against the said accused. PW2 has identified accused Nos.8 and 9, when he was required to identify them, despite the fact that all the accused present in court at the time of his examination were dressed alike. PW4 has found accused Nos.4,7,8,10 and 12 in the courtyard of the house of Ashraf and identified them in court. PW21 has spoken about the presence of accused No.13 in the courtyard of the house of Ashraf at the time of occurrence. The accused do not seem to have set up a defence that they were mere spectators in the premises of the house of Ashraf. The defence of the accused, it appears, is only that they were not present at the scene of occurrence at the relevant time. As such, in the light of the evidence of the witnesses referred to above, it has to be taken Cra.566/2009 & connected cases 21 that those who have come to the house of Ashraf on the relevant day to attack him were present at the scene, with an active mind and participated actively in the occurrence. True, there were minor variations in their evidence as to the sequence of overt acts, the seat of injuries, the identity of the accused with reference to the injuries caused by them, identity of accused with reference to the weapons used by them etc. As observed above, the said variations, in a case of this nature, will not affect the prosecution case at all. We are, therefore, of the view that the evidence tendered by the aforesaid witnesses established the active presence of accused Nos.2, 4, 5, 8, 9, 10, 11, 12 and 13 at the scene of occurrence with an active mind.
24. The learned counsel for the accused argued that the evidence of PW1 is not reliable at all as he did not mention in Ext P1 statement the names of accused Nos. 7 to 13 and about the attack made by Ashraf on accused Nos. 8 and 9. It was also argued by the counsel that PW1 did not mention in Ext P1 statement the presence of PW3 at the house of Ashraf at the time of occurrence. As far as the evidence of PW2 is concerned, the ground of attack was that Cra.566/2009 & connected cases 22 he having been sheltered in a room, he could not have witnessed the occurrence at all. The evidence of PW3 was attacked on the ground that she having been gone to the bathroom near the kitchen with the children, she could not have witnessed the occurrence. As far as the evidence of Pws.4, 21 and 46, the general attack was that they are only chance witnesses and therefore, much credence cannot be attributed to their evidence. Individually, the evidence of PW4 was attacked on the ground that what is happening in the house of Ashraf could not be witnessed from his residential property. Likewise, the evidence of PW21 was attacked on the ground that he could not have witnessed the occurrence in the house of Ashraf from the premises of the theatre.
25. The argument that PW1 did not mention the names of all the accused in the FI statement is not a ground at all to reject his evidence. In Ext P1 FI statement, PW1 has stated that all the accused are known to him and he does not know their names to be furnished at that time. The argument that PW1 did not mention in the FI statement the attack made by Ashraf on accused Nos.8 and 9 is also not a ground to reject his evidence. PW1 has explained that he was advised Cra.566/2009 & connected cases 23 by PW46 that if the attack made by Ashraf on accused Nos.8 and 9 is divulged to the police, the accused would escape from the liability and it is on account of the said reason, he did not mention about the attack made by Ashraf on the said accused in the FI statement. The said fact was confirmed by PW46 also. The omission on the part of PW1 to mention about the attack made by Ashraf on accused Nos. 8 and 9, in the said circumstance, in the FI statement, is not a reason to reject his evidence, when we find that his evidences is acceptable otherwise. The argument that PW1 did not mention the presence of PW3 at the place of occurrence is also not a ground to reject his evidence. It is now settled that a First Information Statement need not be an encyclopedic of all the circumstances in relation to the crime. The omission to mention the name of a witness cannot, therefore, be a ground for rejection of the evidence tendered by the person who gave the FI statement. Coming to the evidence of PW2, Ext P47 plan prepared by the Village Officer indicates the position of the room on the western side of the main room. Ext P47 plan indicates that the room on the western side of the main room has two windows facing the main room. As such, the argument Cra.566/2009 & connected cases 24 that PW2 having been sheltered in the room on the western side, he could not have witnessed the occurrence in the main room, cannot be accepted. Coming to the evidence of PW3, to the specific question as to how she could see the assailants, her explanation was that she did not close the door of the bathroom fully and therefore, she could see the accused who were passing through the kitchen door. True, in the situation in which PW3 was placed at the relevant time, she may not peep through the gap of the door to see what is happening outside, but, we think it is not necessary to strain much on this aspect as there is sufficient evidence otherwise to establish the presence of accused Nos.8 and 9, whose presence at the scene of occurrence was spoken to by PW3. The observations made by the Apex Court in Sachchey Lal Tiwari v. State of U.P. [(2004) 11 SCC 410], compel us to reject the arguments of the learned counsel as to the acceptability of the evidence tendered by Pws.4, 21 and 56 also. The said observations read thus:
"Murders are not committed with previous notice to witnesses, soliciting their presence. If murder is committed in a dwelling house, the inmates of the house are natural witnesses. If murder is committed in a street, only passerby Cra.566/2009 & connected cases 25 will be witnesses. Their evidence cannot be brushed aside or viewed with suspicion on the ground that they are mere 'chance witnesses'. The expression 'chance witness' is borrowed from countries where every man's home is considered his castle and everyone must have an explanation for his presence elsewhere or in another man's castle. It is quite unsuitable an expression in a country where people are less formal and more casual, at any rate in the matter of explaining their presence."
PW4 has only stated as to what he had seen in the courtyard of the house of Ashraf. There was no suggestion to this witness that it was not possible to see what is happening in the courtyard of the house of Ashraf, from the northern side of the house of Ashraf. Likewise, PW21 has only stated about what was happening in the courtyard of the house of Ashraf at the relevant time. Ext. P47 plan indicates that the distance between the compound wall of the theatre and the house of Ashraf is only about 10 meters. As such it cannot be said that a person in the compound of the theatre cannot witness what is happening in the courtyard of the house of Ashraf. The evidence of PW46 is categoric that when he rushed to the house of Ashraf hearing the sound of explosion, he was Cra.566/2009 & connected cases 26 threatened by accused No.13 and as such he was waiting outside the house and he could see those who were coming out of the premises of the house. He has identified accused Nos.2,4,5,9 and 13, as persons who were found in the courtyard of the house of Ashraf.
Scientific and other evidence :
26. We shall now refer to the scientific and other evidence relied on by the learned Public Prosecutor to corroborate the evidence tendered by the ocular witnesses. Ext.P38 is the mahazar prepared while effecting recovery of MO26 sword, based on the disclosure statement made by accused No.2. Ext P38(a) is the disclosure statement made by accused No 2 to the police that he has concealed MO26 sword. Ext.P38 recovery is proved by PW51. True, PW51 could not identify accused No 2 in court. The examination of PW51 was after about 5 years of the recovery and the explanation offered by the witness was that as all the accused were dressed alike, he is not able to identify the second accused. The said explanation of PW51 for not identifying accused No.2 in court, according to us, should be accepted, as otherwise, the accused in cases of this nature, would defeat the process Cra.566/2009 & connected cases 27 of law by masquerading themselves in court. Ext.P18 is the mahazar prepared while effecting recovery of MO6 sword based on the disclosure statement made by accused No.9. Ext.P18(a) is the disclosure statement made by accused No.9 to the police that he has concealed MO6 sword. Ext.P18 recovery is proved by PW31. PW31 has identified accused No 9 in court. Ext.P21 is the mahazar prepared while effecting recovery of MO9 sword based on the disclosure statement made by accused No.10. Ext.P21(a) is the disclosure statement made by accused No.10 to the police that he has concealed MO9 sword. Ext.P21 recovery is proved by PW35. PW35 has identified accused No. 10 in court. Ext.P27 is the mahazar prepared while effecting recovery of MO13 stick sword based on the disclosure made by accused No.11. Ext.P27(a) is the disclosure statement made by accused No.11 to the police that he has concealed MO13 stick sword. The independent witness examined to prove Ext.P27 recovery turned hostile to the prosecution. It is settled that hostility of independent witness cited to prove the recovery cannot be a ground to reject the evidence of recovery based on the disclosure of the accused proved by the investigating officer. Cra.566/2009 & connected cases 28 Ext.P20 is the mahazar prepared while effecting recovery of MO8 weapon based on the disclosure made by accused No.12. Ext.P20(a) is the disclosure made by accused No.12 to the police that he has concealed MO8 weapon. Ext.P20 recovery is proved by PW34. PW34 has identified accused No. 12 in court. PW58, the doctor who conducted the post mortem examination of the body of Ashraf, gave evidence that the injuries noted on the body of Ashraf could be inflicted with Mos.6, 8, 9, 13 and 26 weapons. Ext.P42 is the report of the Forensic Science laboratory. Items 54, 55, 56, 57 and 58 referred to in Ext P42 are Mos.6, 8, 9, 26 and 13 respectively. Ext.P42 reports the presence of human blood of group A in the said weapons, which is the blood group of Ashraf as evidenced by Ext.29. The recoveries effected as per Exts.P38, 18, 21, 27 and 20, therefore, corroborates the oral evidence tendered by the ocular witnesses as to the complicity of accused Nos. 2, 9, 10, 11 and 12 in the crime. Likewise, Ext.P42 report of the Forensic Science Laboratory also corroborates the evidence tendered by the ocular witnesses as to the complicity of accused Nos. 2, 9, 10, 11 and 12 in the crime.
27. Ext.P28 is the mahazar prepared in connection Cra.566/2009 & connected cases 29 with the seizure of MO22 and MO23 clothes of accused No.2. The seizure as per Ext.P28 has been proved by PW41. Ext.P26 is the mahazar prepared in connection with the seizure of MO20 and MO21 clothes of accused No 4, which has been proved by PW38. Ext.P79 is the mahazar prepared in connection with the seizure of MO53 cloth of accused No.5. The seizure of MO53 as per Ext.P79 has been proved by PW64. Ext.P67 is the mahazar prepared in connection with seizure of MO11 cloth of accused No.9 which has been proved by PW64. Ext.P19 is the mahazar prepared in connection with the seizure of MO17 and MO18 clothes of accused No.10, which has been proved by PW33. Ext.P73 is the mahazar prepared in connection with the seizure of MO49 cloth of accused No.11, which has been proved by PW64. Ext.P37 is the mahazar prepared in connection with the seizure of Mos.24 and 25 clothes of accused No.12, which has been proved by PW50. Ext.P65 is the mahazar prepared in connection with the seizure of MO12 cloth of accused No.13. The seizure as per Ext.P65 has been proved by PW64. Mos.11, 12, 17, 18, 20, 21, 22, 23, 24, 25, 49 and 53 are items 34, 49, 46, 45, 37, 38, 62, 61, 48, 47, 39 and 40 respectively in Ext P42 report. Ext P42 Cra.566/2009 & connected cases 30 reports the presence of human blood of group A in the clothes seized from the accused 4, 5, 9, 10, 11, 12 and 13, which is the blood group of Ashraf as evidenced by Ext.P29. The seizures effected as per Exts.P26, 79, 67, 19, 73, 37,and 65 mahazars thus corroborate the oral evidence tendered by the ocular witnesses as to the complicity of accused Nos.4,5,9,10,11,12 and 13. Likewise, Ext.P42 report of the Forensic Science Laboratory also corroborates the evidence tendered by the ocular witnesses as to the complicity of accused Nos 4, 5, 9, 10, 11, 12 and 13.
28. PW45 was the doctor who examined accused Nos 8 and 9 at the Medical Trust Hospital, Ernakulam at about 2 am on 19/7/2002. Exts.P31 and 32 are the wounds certificates issued by PW45 to accused Nos 8 and 9. DW1 was examined to explain the cause of injury sustained by accused Nos. 8 and 9 as informed to PW45. The cause of the injury as informed by the accused Nos.8 and 9 to PW45 was that they sustained the injuries due to the fall of material from a lorry while changing its tyre on account of the slip of the jack handle. PW45 has stated in his evidence that it is unlikely to sustain the injuries sustained by the accused on account of the Cra.566/2009 & connected cases 31 cause alleged by them. He has also stated that the injury could only be due to a sharp edged hard object. He has deposed in his evidence that accused No.8 was later found to have been absconded from the hospital. Ext.P33 indicates the time of admission of accused Nos.8 and 9 in the hospital. Exts.P31 to 33 and the evidence of PW45 doctor probabilise the prosecution case that accused Nos.8 and 9 sustained injuries to their hands in the course of the occurrence. The evidence tendered by PW45 and Exts.P31 to 33 documents also corroborate the ocular evidence as far as the complicity of accused Nos 8 and 9 are concerned.
29. In Ext.P1 First Information Statement, PW1 has stated that the accused came to the house of Ashraf in a jeep bearing registration No. KL5/E-1528. PW11 is the registered owner of that vehicle. She deposed in court that accused No.4 is the person engaged by her as driver of the said vehicle. According to her, on 18.07.2002, accused No.4 took the vehicle as usual at about 7.00 p.m. for transporting materials for the flour mill run by PW13, but did not return the vehicle on that day. She has explained that usually the vehicle would be returned by accused No.4 by about 10.00 p.m. PW13 deposed Cra.566/2009 & connected cases 32 that as usual on 18.07.2002, accused No.4 came to his flour mill and took the materials for transportation. PW64, the investigating officer has given evidence that the jeep of PW11 was found abandoned on 19.07.2002 at a place called 'Cheeppuvayal' and accordingly, it was seized as per Ext.P15 mahazar. Ext.P15 mahazar indicates that blood stains were found in the jeep at the time of seizure. MO39 was the rubber sheet fitted on the floor of the said jeep. MO39 also contained blood stains. MO40 was the cap found in the vehicle at the time of seizure. MO39 and MO40 were subjected to forensic examination. Mos. 39 and 40 are items 16 and 17, in Ext. P42 report. Ext P42 reports the presence of human blood of group A in MO39 rubber sheet seized from the jeep entrusted to accused NO.4, on the previous day of the occurrence, which is the blood group of Ashraf as evidenced from Ext P29. As far as MO40 is concerned, Ext.P42 report only recites that it contained human blood. The evidence tendered by PW11 and PW13 and Exts.P42 report of the Forensic Science Laboratory corroborate the ocular evidence as to the complicity of accused No.4 in the crime.
Cra.566/2009 & connected cases 33 The offence of Mischief :
30. The Court of Session found accused No.4 guilty of the offence punishable under Section 427 of the IPC and convicted him. Paragraph 37 of the impugned judgment indicates that the said finding of guilt and the conviction are based on the evidence that accused No.4 committed mischief by destroying the glass of the motor car bearing Registration No.KL-2/J-3915 and the motorcycle bearing Registration No.KL- 20/L-3229, parked in the house of Ashraf. The finding of guilt and the conviction of the fourth accused, as aforesaid, is rendered, without reckoning the fact that accused No.4 was a member of the unlawful assembly and the act of accused No.4 referred to above was an act committed in furtherance of the common object of that unlawful assembly or without reckoning the fact that the said act was an act which the members of that assembly knew to be likely to be committed in prosecution of the common object. It is settled that Section 149 of the IPC creates a constructive liability on the members of unlawful assembly for the act committed pursuant to the common object by a member of the assembly. As stated above, the basis of Cra.566/2009 & connected cases 34 the constructive guilt is membership of the unlawful assembly, with the requisite common object or knowledge. As the Court of Session found that accused Nos.2, 4, 5, 8 and 9 were the members of the unlawful assembly and convicted them for the offences punishable under Sections 143 and 148 of the IPC, acquittal of the accused other than accused No.4 for the offence punishable under Section 427 of the IPC is illegal and liable to be reversed. All the accused, who formed themselves into the unlawful assembly to commit the murder of Ashraf, are liable to be convicted for the offence under Section 427 of the IPC also.
The offence of Criminal conspiracy :
31. It is settled that to establish criminal conspiracy, there must be direct or circumstantial evidence to show that there was an agreement between two or more persons to commit an offence. This clearly envisages that there must be a meeting of minds resulting in an ultimate decision taken by the conspirators regarding the commission of the offence. A conspiracy can be inferred from the circumstances giving rise to a conclusive or irresistible inference of an agreement between two or more persons to Cra.566/2009 & connected cases 35 commit an offence. The case of the prosecution is that on 17.7.02 and 18.7.02, the accused entered into a conspiracy at the family house of accused No.5 to commit the murder of Ashraf. Even though several witnesses were cited by the prosecution to establish the charge of criminal conspiracy, only one among them was examined as PW 49. She turned hostile to the prosecution. As such, there is nothing on record to show that there was a conspiracy at all to commit the murder of Ashraf. We, therefore, find no infirmity in the finding rendered by the Court of Session that the prosecution failed to establish the charge of criminal conspiracy. Acquittal of accused Nos. 10 to 16 :
32. Even according to the prosecution, accused Nos. 14 to 16 did not come to the scene of occurrence. The charge as against them is only that they were parties to the criminal conspiracy hatched to commit the murder of Ashraf.
We have already found that the finding of the Court of Session that there is no reliable evidence to establish the case of conspiracy does not call for interference. As such, the acquittal of accused Nos.14 to 16 of all the charges levelled against them is in order. The question to be examined, in the Cra.566/2009 & connected cases 36 circumstances, is as to the correctness of the order of acquittal of accused Nos. 10 to 13 of the charges levelled against them. The limits of the jurisdiction of this Court to interfere with an order of acquittal have been concisely stated by the Apex Court in Chandrappa v. State of Karnataka [(2007)4 SCC 415]. Paragraph 42 of the judgment reads as follows:
"42.From the above decisions, in our considered view, the following general principles regarding powers of appellate court while dealing with an appeal against an order of acquittal emerge:
(1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded.
(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law.
(3) Various expressions, such as, 'substantial and compelling reasons', 'good and sufficient grounds', `very strong circumstances', 'distorted conclusions', 'glaring mistakes', etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of 'flourishes of language' to emphasize the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion.
Cra.566/2009 & connected cases 37 (4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.
(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court."
The materials on record have to be examined in the light of the aforesaid principles. PW1 has stated the names of accused Nos.10,11 and 12 in his evidence as persons among the accused who have committed the murder of Ashraf. He has also spoken about the overt acts of the said accused. PW2 has named accused Nos.10, 11 and 12 in his evidence as persons among the assailants who have committed the murder of Ashraf. As PW1 and PW2 were not required to identify the said accused, they did not do so. PW4 has identified accused Nos. 10 and 12 in court. PW21 has identified accused No.13. PW46 has identified accused Nos. 10 and 13. The evidence adduced Cra.566/2009 & connected cases 38 by the said witnesses as to the complicity of accused Nos.10 to 13 is corroborated by the evidence adduced by the prosecution as to the recovery of MO9 weapon from accused No.10, MO13 weapon from accused No.11 and MO8 weapon from accused No.12. The blood stains of the same blood group of Ashraf in the weapons recovered from the said accused as evidenced by Ext.P42 report of the Forensic Science Laboratory also corroborate the ocular evidence of the witnesses referred to above as to the complicity of the said accused in the crime. The oral evidence of the said witnesses, as to the complicity of accused Nos.10 to 13, is further corroborated by Ext.P42 report of the Forensic Science Laboratory as to the presence of blood stains of the blood group of Ashraf in Mos.17 and 18 clothes seized from accused No.10, Mos.49 cloth seized from accused No.11. Mos.24 and 25 clothes seized from accused No.12 and MO12 cloth seized from accused No.13. The presence of accused Nos. 10 to 13 at the scene of occurrence as members of the unlawful assembly which committed the murder of Ashraf was thus established by the prosecution.
33. Having come to the conclusion that the presence of accused Nos.10 to 13 at the scene of occurrence Cra.566/2009 & connected cases 39 was established by the prosecution, we have meticulously examined the factual findings rendered by the Court of Session for acquitting accused Nos.10 to 13. In Paragraph 36 of the judgment, the learned Sessions Judge observed that PW1 has stated about the overt acts of accused Nos.10, 11 and 12, and PW58, the doctor who conducted the post mortem examination and Ext.45 post mortem certificate, proved the corresponding injuries on the body of Ashraf. However, the court took the stand that PW1 could identify only accused Nos.2, 4, 5, 8 and 9. This finding of the Court of Session is a perverse understanding of the evidence tendered by PW1. PW1 has named accused Nos. 1 to 12 in his evidence. He has also stated about the overt acts of each of the aforesaid accused. In the course of the examination, he was asked to identify accused Nos.2,4, 5, 8 and 9 and he has identified the said accused. The identity of the remaining accused who were present in court at the time of examination was never challenged. As such, it cannot be said that PW1 has not identified the remaining accused who were present in court. If as a matter of act, he was not sure of the identity of the said accused, one would fail to understand as to how he was able Cra.566/2009 & connected cases 40 to give evidence as to the overt acts of the said accused. Further, it has to be remembered that the version of PW1 at the time of giving Ext.P1 FI Statement was that all the accused are known to him and he could not recollect their names. As such, the finding of the Court of Session that PW1 did not identify the accused other than accused Nos.2, 4, 5, 8 and 9 is against the acceptable evidence on record. The learned Judge observed that even going by the evidence tendered by Pws.1 and 2, accused No.11 did not inflict any injury on Ashraf. As stated above, the view of the Court of Session that accused No.11 did not inflict any injury on Ashraf is irrelevant in the context of the guilt of the said accused, when they are facing charges under Sections 143, 147 and 148 of the IPC. The evidence of PW1 that he saw accused No.11 attempting to inflict injury on Ashraf with a sword has not been noticed by the Court of Session. The Court of Session further observed that there is no material to corroborate the evidence tendered by the witnesses that accused No.11 had driven the motorcycle to the house of Ashraf. The said finding of the Court of Session is also irrelevant in the context of the finding of guilt of accused No.11 as a member of the unlawful Cra.566/2009 & connected cases 41 assembly, when his presence at the scene of occurrence has been spoken to by more than one witness. As far as the complicity of accused No.13, in paragraph 36 of the judgment, the learned Judge observed that accused No.13 was named as Kochansar by the witnesses and there is no accused named Kochansar as per the charge. In this context, we would at once recollect that PW21 and PW26 have identified accused No.13 in court as a person found in the premises of the house of Ashraf at the time of occurrence. Further, the records would indicate that accused No.8 is Ansar and accused No.13 is Anzaruddin. As the names of the said accused are identical, probably the witnesses were referring accused No.13 as 'Kochanzar' as he was the short person among them. Accused No.13 has no case that he is not a short person when compared to accused No.8 nor do the accused have a case that persons referred to by the witnesses as 'Kochanzar' is not accused No.13. As such, the said observations of the Court of Session were unwarranted. As stated above, the ocular evidence tendered by Pws.1, 2, 4, 21 and 46, the recoveries effected as per Exts.P21, P27 and P20 mahazars, and Ext.P42 report of the Forensic Science Laboratory would establish the Cra.566/2009 & connected cases 42 guilt of the said accused. The aforesaid materials are not seen considered by the Court of Session while considering the guilt of accused Nos.10 to 13. We must notice in this connection that it is based on the said ocular evidence, the guilt of the remaining accused, who have faced the trial, have been found by the Court of Session. It is thus evident that the acquittal of accused Nos.10 to 13 by the Court of Session is without adverting to the admissible evidence on record, which were relied on by the Court of Session to convict the remaining accused. The only conclusion possible from the admissible evidence on record is to hold that accused Nos.2, 4, 5, 8, 9 and 10 to 13 are guilty of the charges levelled against them and we are unable to draw an inference of innocence in favour of accused No.10 to 13, on any reason whatsoever. Accused Nos.10 to 13, in the circumstances, are liable to be convicted for the offences committed by the convicted accused. The offences under Sections 3 and 5 of the Explosives Substances Act :
34. One of the grounds raised in Criminal R.P No 1931 of 2011 is that the Court of Session has omitted to render a finding as to the guilt of the accused for the offences Cra.566/2009 & connected cases 43 punishable under the Explosive Substances Act. It is beyond dispute that a charge was framed against the accused for the offences punishable under Sections 3 and 5 of the Explosives Substances Act. In the absence of a finding as to the guilt of the accused for the offences punishable under the said Act, it has to be held that the accused have been acquitted of the said charge. Necessarily, in view of the Criminal Revision Petition referred to above, the question as to the guilt of the accused for the offences punishable under Sections 3 and 5 of the Explosives Substances Act is to be examined. The fact that the assailants had caused explosions in the courtyard of the house of Ashraf twice has been established by the ocular evidence of the witnesses. MO33 is the remnants of the exploded bomb collected with the soil from the courtyard of the house of Ashraf.
35. PW52 is the Sub Inspector of Police attached to the Bomb Detection and Disposal Squad of the police head quarters. He deposed that on 19.07.2002, he went to the house of Ashraf, seized and defused the bombs found in the premises. MO34 are the defused bombs. Ext.39 is the certificate issued by PW52 stating that he has defused two Cra.566/2009 & connected cases 44 country bombs found in the premises of the house of Ashraf. MO33 and 34 are items 26 and 28 in Ext.P42 report of the Forensic Science Laboratory. Ext.P42 reports that the Potassium Chlorate, Aluminium powder and Sulphur were detected in those material objects. Ext.P42 report has been proved by PW55.
36. Exts.P39 and P42 documents and the evidence tendered by Pws.52 and 55 established that the assailants have hurled explosive substances viz., country made bombs, as alleged by the prosecution. The accused are, therefore, guilty of the offence punishable under Section 3 of the Explosive Substances Act.
Legal issues raised :
37. The learned counsel for the accused, relying on the decisions of the Apex Court in Balaka Singh and others v. State of Punjab [(1975) SCC (Crl) 601], Ram Kumar Pande v. State of M.P. (AIR 1975 SC 1026), Mahraj Singh v. State of U.P. [(1994) SCC (Crl) 1390, Bhupinder Singh v. State of Punjab [(1996 SCC (Crl) 103], Thulia Kali v. State of Tamil Nadu [AIR 1973 SC 501], Marudanal Augusti v. State of Kerala"AIR 1980 SC 638, Kunjumuhammed and Cra.566/2009 & connected cases 45 others v. State of Kerala [2014(2) KLJ 860], Jagdip Singh v. State of Haryana [(1975) 3 SCC 133], Khairuddin and others v. State of West Bengal (AIR 2013 SC 2354) and Subal Ghorai and others v. State of West Bengal (2013 Crl.L.J. 3626) argued that the object of insisting upon prompt lodging of the First Information Statement being to obtain the earliest information regarding the circumstances relating to the occurrence, if it is shown that the the First Information Report is not written at the time shown, it will demolish the entire edifice and fabric of the prosecution case. According to him, in the present case, even though the First Information Report is seen registered at 11.00 p.m. on the date of occurrence, the particulars of the registration number of the jeep in which the assailants came to the scene, which PW1 came to know only on the next day, was seen included in the F.I.Statement and therefore, the same is ante-dated and no sanctity can be attributed to it. It was also argued by the learned counsel that accused Nos.8 to 13 were not named in the FI statement and there is no mention in the FI Statement as to the injuries alleged to have been inflicted by Ashraf on accused Nos.8 and 9. As such, a very serious doubt is created Cra.566/2009 & connected cases 46 as to the involvement of the said accused in the occurrence.
38. There cannot be any dispute to the general propositions argued by the learned counsel. As far as the present case is concerned, the occurrence was at about 9.30 p.m. The First Information Report was launched at 11 p.m. As such, it cannot be said that there is culpable delay in lodging the First Information Report. Coming to the issue relating to ante-dating of the First Information Report, the entire argument is developed based on the statement given by PW1 in cross examination that he came to know about the number of the jeep only on the next day. PW1 was examined after about five years of the occurrence. One is not expected to recollect completely all aspects of the information based on which an FI statement was lodged by him before five years. As such, merely for the reason that PW1 has stated in his cross-examination that he came to know of the registration of the vehicle only on the next day morning, we are unable to find that the First Information Report was antedated. There is no material on record to indicate that the First Information Report was not written at the time shown. True, the names of accused Nos.7 to 13 were not mentioned in the First Cra.566/2009 & connected cases 47 Information Report. As observed earlier, PW1 was categoric at the time of giving the FI statement that all the accused are known to him and he is not able to recollect their names. He was also categoric that there were more accused, along with the named accused and he knew all of them. As such, according to us, mere non-mentioning of the names in the FI Statement does not affect the prosecution case at all. Coming to the aspect of non-mentioning of the injuries inflicted by Ashraf on accused Nos.8 and 9, we have already found that the explanation offered by PW1 for the same is acceptable. As such, we do not think that the same would in any way affect the prosecution case at all, especially when there is clinching evidence as to the presence of the accused whose names are not mentioned in the FI Statement. In view the aforesaid factual aspects, we do not think that the judgements relied by the counsel would in any way help the accused.
39. Relying on the decisions of the Apex Court in Mohd. Abdul Hafeez v. State of Andhra Pradesh (1983 SCC Crl.139), Laxmipat Choraria and others v. State of Maharashtra (AIR 1968 SC 938), Mohanlal Gangaram Cra.566/2009 & connected cases 48 Gehani v. State of Maharashtra (AIR 1982 SC 839), Krishan Kumar Malik v. State of Haryana (2011 Crl.L.J.4274), Shaikh Umer Ahmed Shaikh and another v. State of Maharashtra (AIR 1998 SC 1922) and Ravi @ Ravichandran v. State represented by Inspector of Police (AIR 2007 SC 1729), it was argued by the learned counsel that the witnesses are shown to the accused before their examination in court and therefore, their identification in court by the witnesses has no significance at all. It was also argued that in a case where the names of the accused are not mentioned in the FI Statement, in the absence of a test identification parade, identification of the accused in court by the witnesses has to be ignored. It is settled law that the evidence regarding identification is one which the witness gives before the court. Identification tests do not constitute substantive evidence. They are primarily meant for the purpose of helping the investigating agency for ensuring that the investigation is proceeding on the right lines. As such, failure to hold test identification parade does not make the evidence of the identification in court inadmissible. It is also settled that the identification in court need not be proceeded Cra.566/2009 & connected cases 49 by the test identification parade. It will always depend upon the facts and circumstances of a given case. In one case, it may not be necessary to hold the test identification parade, while in the other, it may be essential to do so. The necessity for holding an identification parade can arise only when the accused persons are not previously known to the witnesses. The whole idea of a test identification parade is that witnesses who claim to have seen the culprits at the time of occurrence are to identify them from the midst of other persons without any aid or any other source. (see Mulla and another v. State of Uttar Pradesh [(2010) 3 SCC 508] and Ravi Kapur v. State of Rajasthan [(2012)9 SCC 284]). The principle that test identification is not required in a case where the accused are known to the witnesses has been reiterated by the Apex Court in Sayed Darain Ahsan v. State of W.B. [(2012)4 SCC 352]. Paragraph 30 of the said judgment reads thus:
"We also do not find any merit in the submission of Mr.Sanyal that as no test identification parade was held at the time of investigation, the eyewitnesses could not Cra.566/2009 & connected cases 50 have identified the appellant as one of the persons who fired at the deceased. The appellant, PW3 and PW4 were residents of Iron Gate Road, which was the part of Garden Reach Police Station. PW5 and PW7 were residents of Bichali Ghat road which is also a part of the same police station, Garden Reach. Hence, the appellant and the four eyewitnesses belonged to the same locality and the four eyewitnesses knew the appellant before the incident and were able to immediately identify the appellant at the time of the incident. It is only if the appellant was a stranger to the eyewitnesses that the test identification parade would have been necessary at the time of investigation."
Coming to the case in hand, PW1 has categorically stated in the FI Statement itself that all the accused are known to him. Pws.2, 21 and 46 have also stated that accused are known to them. PW3 has stated that some of the accused are known to her. There was no suggestion at all to the witnesses that the accused were not previously known to them. As such, the absence of test identification parade, will not affect the prosecution case. There is, therefore, no substance in the said argument of the learned counsel also.
Cra.566/2009 & connected cases 51
40. In the result,
(1) Criminal Appeal Nos.566 of 2009 and 630 of 2009 are dismissed and Criminal Appeal No.1417 of 2011 and Crl.R.P. No.1931 of 2011 are allowed in part. (2) The acquittal of accused Nos.10 to 13 are set aside and they are found guilty of the offences punishable under Sections 143, 148, 427, 460 and 302 read with Section 149 of the IPC and Section 3 of the Explosive Substances Act.
(3) The acquittal of accused Nos.2, 4, 5, 8 and 9 under Section 3 of the Explosives Substances Act is set aside and they are found guilty of the said offence also.
(4) The acquittal of accused Nos.2, 5, 8 and 9 under Section 427 of the IPC is set aside and they are found guilty of the said offence also.
(5) Accused Nos. 10 to 13 are sentenced (i) to undergo simple imprisonment for a period of one year and pay a fine of Rs.5000/- (Rupees Five thousand only) each, in default of payment of fine, to undergo simple imprisonment for six months for the offence Cra.566/2009 & connected cases 52 punishable under section 143 of the IPC, (ii) to undergo simple imprisonment for a period of two years and pay a fine of Rs.10000/- (Rupees Ten thousand only) each, in default of payment of fine, to undergo simple imprisonment for six months for the offence punishable under Section 148 of the IPC, (iii) to undergo rigorous imprisonment for a period of six months and pay a fine of Rs.5000/- (Rupees Five thousand only) each, in default of payment of fine, to undergo simple imprisonment for three months for the offence punishable under Section 427 of the IPC
(iv) to undergo rigorous imprisonment for a period of 3 years and pay a fine of Rs.15000/- (Rupees Fifteen thousand only) each, in default of payment of fine, to undergo simple imprisonment for one year for the offence punishable under Section 460 of the IPC, (v) to undergo imprisonment for life and pay a fine of Rs.25000/- (Rupees Twenty five thousand only) each in default of payment of fine, to undergo simple imprisonment for two years for the offence punishable under Section 302 of the IPC and (vi) to Cra.566/2009 & connected cases 53 undergo simple imprisonment for a period of 3 years and pay a fine of Rs.10,000/- (Rupees Ten thousand only) each, in default of payment of fine, to undergo simple imprisonment for six months for the offence punishable under Section 3 of the Explosives Substances Act.
(6) Accused Nos.2,5,8 and 9 are sentenced to undergo rigorous imprisonment for a period of six months and pay a fine of Rs.5000/- (Rupees Five thousand only) each, in default of payment of fine, to undergo simple imprisonment for three months for the offence punishable under Section 427 of the IPC. (7) Accused Nos.2, 4, 5, 8 and 9 are sentenced to undergo simple imprisonment for a period of 3 years and pay a fine of Rs.10,000/- (Rupees Ten thousand only) each, in default of payment of fine, to undergo simple imprisonment for six months for the offence punishable under Section 3 of the Explosives Substances Act.
(8) The sentences of imprisonment imposed on the appellants shall run concurrently.
Cra.566/2009 & connected cases 54 (9) The appellants are entitled to set off, of the period, if any, undergone by them in custody in connection with this case, under Section 428 of the Code of Criminal Procedure.
Sd/-
THOTTATHIL B.RADHAKRISHNAN, JUDGE.
Sd/-
P.B.SURESH KUMAR, JUDGE.
//true copy// P.A. To Judge tgs/smv