Criminal Appeal Nos. 753, 953, 954 & 955 of 2012 (State of Kerala v. Sunil Kumar @ Sailan; Sajikumar @ Sindhu; Pradeep; Sreekumar @ Kutttan; Prasanth; Rajesh; Sekhar) in the High Court of Kerala

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** **&** **THE HONOURABLE MR. JUSTICE P.SOMARAJAN** **FRIDAY, THE 23RD DAY OF MARCH 2018 / 2ND CHAITHRA,1940** **CRL.A.No. 753 of 2012** **AGAINST THE ORDER/JUDGMENT IN SC 1790/2008 of ADDL.SESSIONS COURT-I, THIRUVANANTHAPURAM DATED 24-04-2012** **APPELLANTS/ACCUSED NO. 1 TO 3** **1 SUNIL KUMAR @ SAILAN, AGED 37, S/O. SOMAN, MARUTHUVILASOM VEEDU, T.C. 41/527, PUTHENKOTTA, DEVI NAGAR JUNCTION KURIYATHI WARD, MANACAUD VILLAGE.** **2 SAJIKUMAR @ SINDHU, AGED 35, S/O. SOMAN, MARUTHIVILASOM VEEDU, T.C. 41/527, PUTHENKOTTA, DEVI NAGAR JUNCTION KURIYATHI WARD, MANACAUD VILLAGE.** **3 PRADEEP, AGED 43, S/O. RAVEENDRAN, SARASWATHY BHAVAN, MAMMAN THURUTH, NEENDAKARA TALUK, KOLLAM DISTRICT, NOW RESIDING AT MARUTHUVILASOM VEEDU,T.C. 41/527, PUTHENKOTTA, DEVI NAGAR JUNCTION KURIYATHI WARD, MANACAUD VILLAGE.** **BY ADVS.SRI.VIPIN NARAYAN SRI.M.REVIKRISHNAN SRI.P.VIJAYA BHANU (SR.)** ## **RESPONDENT(S)/COMPLAINANT:** **STATE OF KERALA REPRESENTED BY THE C.I. OF POLICE (CRIME NO. 429/05) FORT POLICE STATION REPRESENTED BY THE PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM.** **BY PUBLIC PROSECUTOR SRI.NICHOLAS JOSEPH** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 10-01-2018 ALONG WITH CRL.APPEAL NOS. 953, 954 AND 955/2012,THE COURT ON 23-03-2018 DELIVERED THE FOLLOWING:** **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE &** **THE HONOURABLE MR. JUSTICE P.SOMARAJAN** **FRIDAY, THE 23RD DAY OF MARCH 2018 / 2ND CHAITHRA,1940** **CRL.A.No. 953 of 2012** **AGAINST THE ORDER/JUDGMENT IN SC 1790/2008 of ADDL.SESSIONS COURT-I, THIRUVANANTHAPURAM DATED 24.4.2012** ## **APPELLANT/ACCUSED NO.7** **SREEKUMAR @ KUTTAN, AGED 39, S/O.SOMAN, MARUTHUVILASAM VEEDU, T.C.41/527, PUTHENKOTTA, DEVI NAGAR JUNCTION, KURIYATHI WARD, MANACAUD VILLAGE, PIN 695009.** **BY ADV.SRI.C.P.UDAYABHANU** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA REPRESENTED BY THE C.I. OF POLICE (CRIME NO.429/05), FORT POLICE STATION REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **R1 BY ADV. PUBLIC PROSECUTOR SRI.NICHOLAS JOSEPH** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 10-01-2018 ALONG WITH CRL.APPEAL NOS. 753, 954 AND 955/2012,THE COURT ON 23-03-2018 DELIVERED THE FOLLOWING:** **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE &** **THE HONOURABLE MR. JUSTICE P.SOMARAJAN** **FRIDAY, THE 23RD DAY OF MARCH 2018 / 2ND CHAITHRA,1940** **CRL.A.No. 954 of 2012** **AGAINST THE ORDER/JUDGMENT IN SC 1790/2008 of ADDL.SESSIONS COURT-I, THIRUVANANTHAPURAM DATED 24-04-2012** ## **APPELLANT(S)/6TH ACCUSED** **PRASANTH, S/O MUTHUKRISHNAN, T.C.41/853, VADAKKEKOTTA LANE, BEHND PUTHENCOTTA SIVAN TEMPLE, KURIYATHY WARD, MANACAUD VILLAGE THIRUVANANTHAPURAM DISTRICT.** **BY ADVS.SRI.K.SIJU SRI.S.ABHILASH SMT.BINDU GEORGE SMT.CHITHRA.S.BABU** ## **RESPONDENT(S)/STATE:** **STATE OF KERALA THROUGH CIRCLE INSPECTOR OF POLICE, FORT POLICE STATION, THIRUVANANTHAPURAM, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031.** **R1 BY ADV. PUBLIC PROSECUTOR SRI.NICHOLAS JOSEPH** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 10-01-2018 ALONG WITH CRL.APPEAL NOS. 753, 953 AND 955/2012,THE COURT ON 23-03-2018 DELIVERED THE FOLLOWING:** **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE & THE HONOURABLE MR. JUSTICE P.SOMARAJAN FRIDAY, THE 23RD DAY OF MARCH 2018 / 2ND CHAITHRA,1940 CRL.A.No. 955 of 2012** **AGAINST THE ORDER/JUDGMENT IN SC 1790/2008 of ADDL.SESSIONS COURT-I, THIRUVANANTHAPURAM DATED 24-04-2012 - APPELLANTS/ACCUSED NOS.5 AND 4:** **1 RAJESH S/O.SIVANKUTTY, RESIDING AT ATTUVARAMBU KATTAKKAL VEEDU, T.C.21/1852, NEAR THERAKOM JUNCTION, NEDUMCAUD WARD, MANACADU VILLAGE, THIRUVANANTHAPURAM TALUK. 2 SEKHAR, S/O.ARUMUGHAM, RESIDING AT SIVA BHAVAN, T.C.41/527, PUTHENKOTTA, DEVI NAGAR JUNCTION, KURIYATHI WARD, MANACADU VILLAGE, THIRUVANANTHAPURAM. BY ADVS.SRI.V.AJAKUMAR SRI.T.M.CHANDRAN SRI.SIDHARTH A.MENON SRI.S.SUJITH** ## **- RESPONDENT(S)/COMPLAINANT:** **STATE OF KERALA REPRESENTED BY THE C.I OF POLICE (CRIME NO.429/2005), FORT POLICE STATION, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY PUBLIC PROSECUTOR SRI.NICHOLAS JOSEPH** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 10-01-2018 ALONG WITH CRL.APPEAL NOS. 753, 953 AND 954/2012,THE COURT ON 23-03-2018 DELIVERED THE FOLLOWING:** ## **A.M. SHAFFIQUE & P.SOMARAJAN, JJ.** ========================== Crl.Appeal Nos. 753, 953, 954 & 955 of 2012 ============================= Dated this, the 23[rd] day of March, 2018 ## **J U D G M E N T** ## _**Shaffique, J.**_ Accused 1 to 3 in SC No.1790/2008 decided on 24/4/2012 by the Additional Sessions Court-I Thiruvananthapuram are the appellants in Crl.Appeal No.753/12, accused Nos.4 and 5 are the appellants in Crl.Appeal No.955/2012, 6[th] accused is the appellant in Crl.Appeal No. 954/2012 and 7[th] accused is the appellant in Crl.Appeal No. 953/12. 2. Since all the cases arise out of the same judgment, those are heard and decided together. 3. There were altogether 9 accused in the case and accused 1 to 7 were found guilty and convicted for offence u/s 302 r/w S.149 IPC and for offence u/s 307 r/w 149 IPC. They were also found guilty for offence punishable u/s 143 and 148 of IPC. For the offence u/s 302, accused 1 to 7 were sentenced to undergo imprisonment for life, for the offence u/s 307, rigorous imprisonment for seven years Crl.Appeal Nos. 753, 953, 954 & 955 of 2012 -:2:- each and for offence u/s 143 and 148 of IPC, rigorous imprisonment for 6 months each. Accused 8 and 9 were acquitted. 4. According to the prosecution, the accused with a common object to commit murder formed an unlawful assembly on 5/6/2005 at 7.30 p.m. and committed murder of one Anil Kumar and attempted to murder PW3 Baburaj. They attacked them with deadly weapons like sword, chopper etc., on vital parts of their body inflicting grievous injuries. 5. Accused 1, 2 and 7 to 9 are the children of Soman @ Soman Mastiry, 3[rd] accused is their brother in law and accused 4 to 6 are their friends. A small portion of the property belonging to Soman was assigned in favour of PW10 who constructed a shop and let it out to PW12 to conduct a flour mill. The accused 1, 2 and 7 to 9 found the sound emanating from the flour mill intolerable. They wanted PW12 to be evicted by PW10. PW10 filed a suit for eviction. In the meantime, 8[th] accused offered to purchase the property from PW10. PW10 was not agreeable for selling the property. On account of the nuisance that had been created due to the functioning of the flour mill, accused 1, 2 and 7 Crl.Appeal Nos. 753, 953, 954 & 955 of 2012 -:3:- to 9 along with their friends, deceased Anil Kumar and PW3 formed a Voluntary Association under the name Devi Volunteer Association and they constructed a shed in front of the said shop room and started a reading room. The said shed was constructed in such a manner to block the view of the said shop room. 6. The suit filed by PW10 against PW12 was dismissed. In the year 1997, PW10 sold the said shop room and one cent of land to the 8[th] accused. 8[th] accused demanded PW12 to vacate the building. The deceased Anil Kumar and PW3 intervened in the matter and supported PW12. Since then, they were on inimical terms with Anil Kumar and PW3. However, in October, 2003, 8[th] defendant got vacant possession of the shop room from PW12. At that time, the accused persons wanted to demolish the reading room which was obstructing the shop room. On 21/7/2004, the 8[th] accused along with accused 3, 7 and 9 demolished the shed/reading room, for which a case was registered by Fort police as Crime No.411/2004. The deceased along with PW3 reconstructed the demolished shed. This incident aggravated the vengeance between the accused, deceased and PW3. 7. The Association in which the elder brother of accused 1, Crl.Appeal Nos. 753, 953, 954 & 955 of 2012 -:4:- 2 and 7 to 9 was the President decided to demolish the reading room shed and to shift the same to another place. Anil Kumar and PW3 who were special invitees opposed the said proposal which incident also aggravated the animosity between the parties. 8. On 5/6/2005, at about 5.15 p.m, there was a quarrel between the first accused, the deceased and PW3. A crime was registered as Crime No.428/2005 against the first accused and one Kakka Ani, who was the brother-in-law of PW3. This was followed by another incident at 6.15 p.m where there was a quarrel between deceased, PW3 and Kakka Ani with the sister and brother's wife of first accused. It is thereafter the accused persons formed themselves into an unlawful assembly at their residence with the common object to commit murder of the deceased and PW3. 9. Accused 1 to 6 along with deadly weapons got into an autorickshaw bearing Regn. No.KL-01-D-7223 belonging to the first accused and they proceeded from Puthencotta to Vattavila in search of the victims. They saw PWs 1 to 3 and Anil Kumar standing at the starting point of Vattavila lane near a slab. At the instance of the first accused, 4[th] accused got out of the Crl.Appeal Nos. 753, 953, 954 & 955 of 2012 -:5:- autorickshaw and went back to the house of accused 1, 2, and 7 to 9 to give message to accused 7 to 9 who were also present there. Accused 7 to 9 also reached the spot with weapons. Thereafter, at .7.30 pm, all the 9 accused persons went to the starting point of Vattavila lane. They went towards deceased and PW3. First accused caught hold of the shirt of the deceased and threatened him that he will be killed. Deceased pushed away his hand and ran away from there through Vattavila street. PW3 ran behind him followed by PWs 1 and 2. All the 9 accused followed the deceased and attacked him with weapons in front of the house of one Komalan. The deceased fell down on the street. 8[th] accused also shouted to kill him. In the meantime, after the attack on the deceased and after confirming that he had succumbed to the injuries, the accused ran towards the workshop in search of PW3 and thereafter inflicted injuries on PW3 with the intention to commit murder. PW6 and 7 took the deceased to the hospital. PW3 was also taken to the hospital by PW6 and one Suresh. PW3 was admitted and referred to the Critical Care Unit. Anil Kumar was taken to the Medical College Hospital where he was declared dead. Crl.Appeal Nos. 753, 953, 954 & 955 of 2012 -:6:- 10. FI statement was given by PW1, one of the eye witnesses to the incident. Case was registered against the accused as Crime No.428/2005. Investigation was completed and final charge was submitted before the Court. Necessary charge was framed for offence u/s 143, 147, 148, 307 and 302 r/w 149 IPC. Accused denied having committed any of the offences. Prosecution examined PWs 1 to 34 and marked Exts.P1 to P76. MO1 to MO35 were the material objects produced. After close of the prosecution evidence, the accused were questioned u/s 313 Cr.P.C. and accused 1 to 7 were found guilty and sentenced as stated above. 11. Learned counsel for the appellants raised separate arguments with reference to the accused for whom they were representing. Substantially the argument is that the Court below had committed serious error in finding the accused guilty. There is absolutely no evidence worth mentioning to implicate the accused to the crime right from identification till the alleged recovery. All were done in an unscrupulous manner in order to implicate the accused to the crime. The detailed cross examination of each and every witness will clearly bring about the falsity of the Crl.Appeal Nos. 753, 953, 954 & 955 of 2012 -:7:- evidence adduced and therefore this Court should interfere in the finding of guilt and acquit the accused. 12. On the other hand, learned Public Prosecutor while supporting the judgment of the Court below submitted that the fact of enmity between the accused and the deceased was clearly proved by cogent evidence. Further, the incident had been spoken to by eye witness and one of the eye witnesses is the injured himself. Much credence has to be given to the evidence of an injured eye witness. When the Court below had placed reliance upon such evidence and had arrived at a finding on the basis of sufficient materials, there is no reason why this Court should interfere in the conviction and sentence. Learned Public Prosecutor therefore prayed for sustaining the judgment of the Court below. 13. The first argument is based on the fact that there is delay in submitting the FIR to the Magistrate. It is pointed out that the incident occurred on 5/6/2005 at about 7.30 p.m. and the FIS was given at 10 p.m. The same reached the learned Magistrate only on 6/6/2005 at 10.30 p.m. It is submitted that there was every chance for manipulating the FIS on account of Crl.Appeal Nos. 753, 953, 954 & 955 of 2012 -:8:- the delay and also the delay in sending the same forthwith to the learned Magistrate. It is argued that the FIS was prepared after collecting all the evidence which is further evident from the fact that there was delay in the FIS reaching the Magistrate, whose office was just 2 kms away from the Police Station. Learned counsel for the appellants placed reliance on the judgment in _**Ishwar Singh v. State of U.P.**_ (AIR 1976 SC 2423). He also placed reliance on the judgment of the Apex Court reported in _**Kailash Gour v. State of Assam**_ [(2012) 2 SCC 34]. 14. The second point which has been argued is that the witnesses were all tutored. They have all given minute details about the incident which is highly impossible. The fact that they have given narration of each and every incident clearly indicates that their version is fabricated and therefore they cannot be believed. It is also argued that there is no proper identification of the accused and the scientific evidence adduced in the case was not enough to connect the accused with the crime. It is also submitted that accused 1 to 3 also sustained injuries which has not been properly explained. 15. Yet another argument raised is that the motive behind Crl.Appeal Nos. 753, 953, 954 & 955 of 2012 -:9:- the alleged crime has not been proved. The appellants have also a case that the recovery of the material objects are not proved. 16. Before proceeding further, it would be better to scan the evidence adduced by the prosecution. 17. As far as the cause of death of Anil Kumar is concerned, Exts.P15 and P15(a) are the post mortem certificates. Following were the ante-mortem injuries sustained by the deceased:- _“1. Incised wound 0.6 x 0.5 cm, bone deep obliquely placed on the right side of forehead upper inner end 6.5 cm outer to midline and 1 cm above eye brow._ _2. Incised wound 5 x 0.6 cm, bone deep, obliquely placed on the left side of forehead, the upper inner end in the midline and 8.5 cm above the root of nose._ _3. Contusion 1.5 x 0.6 x 0.2 cm, obliquely placed on the right side of face, the lower inner end 2.5 cm outer to midline and 2.5 cm above the lip margin._ _4. Abrasion 1.5 x 9.5 cm, horizontal, on the right side of face, the inner end 7 cm outer to midline and 1.5 cm above the outer margin of upper lip._ _5. Superficial incised wound 1.5 x 0.3 cm oblique on the right side of face with an abraded contusion 1x0.6 cm and 1x0.4 cm, on the lower and upper margin respectively, the upper inner end 3.5 cm outer to bridge of nose and 1 cm_ Crl.Appeal Nos. 753, 953, 954 & 955 of 2012 -:10:- _below the inner angle of eye._ _6. Abraded contusion 2.2x 1 x 0.5 cm, overlying the prominence of right cheek and adjoining part of outer angle of eye._ _7. Contusion of whole of left temporalis muscle. Anterior cranial fossa showed a fracture in the midline. Brain showed subarachnoid hemorrhage on the tip of frontal lobes and right occipital lobe. Sulci of brain narrowed and gyri flattened._ _8. Incised penetrating wound 9.1 x 2.8 cm vertically placed on the right side of chest, the lower rounded end 9 cm outer to midline, 15 cm below collar bone the upper end was sharp with tailing of 1 cm extending upwards. Chest cavity was found penetrated by cutting the lower border of 5[th] rib, 5[th] intercostal space and costal cartilages of 6[th] rib transfixed the right dome of diaphragm 0.8 x 0.5 cm, involving the whole thickness and 2 cm outer to the central attachment and terminated in the front surface of right lobe of liver 0.5 x 0.5 x 0.5 cm, 7 cm above the lower margin. Wound was directed downwards backwards and to the left for a total minimum depth of 10.8 cm._ _9. Incised penetrating wound 5.1x 2.1 cm, entering the chest cavity, obliquely placed on the left side of upper part of chest and adjoining neck, the lower inner rounded end 7 cm outer to midline and overlying the lower border of collarbone. Chest cavity was found pierced by cutting the 1[st] rib and first intercostal space and terminated at_ Crl.Appeal Nos. 753, 953, 954 & 955 of 2012 -:11:- _the apex of left lung 3x1.5x1 cm. Left chest cavity contained 650 ml of fluid blood. Left lung partially collapsed. Wound was directed downwards backwards and to the right for a total minimum depth of 6.4 cm._ _10. Incised puncture wound 2.5 x 0.2 cm to 0.5 x 4.5 cm, obliquely placed on the left side of chest, its upper inner rounded end 11.5 cm outer to midline and 15 cm below collarbone. Wound track was in the muscle, plane._ _11. Incised wound 8x1.5x0.4 cm oblique on the outer aspect of left side of chest, the upper outer end 22 cm outer to midline and 21 cm below the top of shoulder._ _12. Incised puncture wound 4.8x2x8.3 cm, vertical on the left side of lower trunk, the upper rounded end 18.5 cm outer to umbilicus and overlying the hip bone. Lower end showed a tailing 2.5x0.5 cm extending downwards. Wound track was in the muscle plane._ _13. Incised wound 9.5 x 0.3 cm, superficial, obliquely placed on the right side of lower trunk, its lower inner end 5 cm outer to midline and 11 cm above natal cleft._ _14. Incised puncture wound 6.5x1.8x12.5 cm, obliquely placed on the upper outer quardrant of right buttock, the lower inner sharp end 9 cm outer to natal cleft. Upper outer end was rounded. The upper margin showed two skin tags of size 0.5 x 0.5 cm each 1.5 cm apart, the inner one was at a point 3cm inner to the upper outer end. The_ Crl.Appeal Nos. 753, 953, 954 & 955 of 2012 -:12:- _lower margin showed four skin tags 0.5x0.5cm, 0.2x0.2cm, 0.2x0.1 cm and 0.2x0.1cm, 1.5cm, 0.6 cm and 0.8cm apart and larger one was in the lower inner end. Wound track was in the muscle plane and was found terminated at the side of vertebral column._ _15. Superficial incised wound 4x0.3cm obliquely placed on the left side of abdomen, the lower inner end 16.5cm outer to umbilicus._ _16. Incised wound 4.1x1.2x2 cm, oblique, on the outer aspect of tip of right shoulder the upper outer end showed a tailing of 1.7x0.5 cm and the lower inner end showed a tailing of 3.3x0.3cm extending downwards._ _17. Superficial incised wound 11x0.3cm on the back of right forearm 11.5 cm below elbow._ _18. Multiple small abrasions over an area of 2.5x0.5 cm, on the back of right forearm 5.5cm, below elbow._ _19. Multiple small abrasions over an area of 4.5x4.5cm, on the back of right elbow._ _20. Incised wound 7.2x1.3x7 cm oblique, on the left side of back of neck, its upper inner end 4.5cm outer to midline and 16cm below occiput, and the lower outer end showed a tailing 1.3x0.5 cm, extending downwards and outwards._ _Air passages pale and contained mucoid fluid mixed with blood. Lungs pale. Stomach contained a handful of starchy food particles in a light brown fluid medium having no unusual smell, mucosa was normal. Urinary bladder was empty,_ Crl.Appeal Nos. 753, 953, 954 & 955 of 2012 **==> picture [27 x 9] intentionally omitted <==** _its mucosa was normal. All other internal organs were pale, otherwise normal.”_ 18. PW23, the Doctor who conducted the post mortem has opined that the deceased had died on account of the injuries sustained to his head and chest. Injury Nos.1, 2 and 7 were the head injuries and the chest injury was No.8. The aforesaid scientific evidence clearly points out the fact that Anil Kumar died on account of the said injuries. 19. As far as the injuries on PW3 is concerned, he was immediately taken to the hospital and Ext.P7 is the wound certificate. Ext.P7 indicates that PW3 had multiple wounds all over the body. PW17 is the Doctor who examined PW3. He deposed that the patient was in a critical condition and a detailed examination of the wounds were not noticed at that point of time. Later he issued Ext.P8 wound certificate in which four injuries were noticed. (1) Penetrating injury to the abdomen (2) multiple fracture skull bone (3) fracture tibia and (4) multiple soft tissue injuries. PW3 was discharged from the hospital on 20/6/2005. The aforesaid fact indicates that PW3 was injured along with deceased Anil Kumar during the attack on the fateful day. In the light of the scientific evidence adduced, there cannot be any dispute about Crl.Appeal Nos. 753, 953, 954 & 955 of 2012 -:14:- the fact that PW3 had sustained injuries on the very same day when Anil Kumar was attacked. 20. Now the next question is to consider the involvement of the accused in the crime. To prove the aforesaid facts, prosecution relied upon the oral testimony of PWs 1 to 9, recovery of MOs 1 to 5 and other scientific evidence. 21. Initially, it has to be considered whether the evidence of eye witnesses can be accepted or not. 22. PW1 is an eye witness and he gave First Information Statement (Ext.P1) on the basis of which the First Information Report [Ext.P1(a)] was prepared. In his evidence, he stated that on 5/6/2005 at about 7.30 p.m, he along with Anil Kumar and PW3 was standing near Vattavila lane. The accused came towards them armed with weapons like swords and choppers. PW2 Suresh was also standing near to them. The accused came running towards them, first accused caught hold of the deceased Anil Kumar and uttered that they were in search of him for the last one year and that he will be killed today. Anil Kumar pushed away his hands and ran through Vattavila street and accused ran behind him. PW2 also ran behind him. PW1 saw the accused Crl.Appeal Nos. 753, 953, 954 & 955 of 2012 -:15:- No.1 giving a cut injury on the head of PW3 with the sword. PW3 turned and ran to a sub lane. When Anil Kumar reached in front of the house of one Komalan, the first accused inflicted another cut injury on his head with a sword. Anil Kumar again ran and when he reached in front of the house of Rajan, he fell down. Five of the accused persons stood on one side of Anil Kumar and four of them on the other side. The 8[th] accused caught hold on the left leg of the deceased and shouted to the first accused to kill him. First accused again inflicted a cut injury on the forehead with a sword, the second accused stabbed him on his chest, 3[rd] accused stabbed on his left hip, the 7[th] accused inflicted an injury with a chopper on the back of the waist of the deceased, the 6[th] accused inflicted a cut injury on the right side of his waist, the 4[th] accused stabbed him on the left side of the neck and the 5[th] accused inflicted an injury with a chopper on his right shoulder. The 7[th] accused remained by the side of the deceased Anil Kumar and the other accused went towards the workshop in search of PW3. One of them located PW3 and all the accused except the 7[th] accused rushed towards PW3. On seeing them, PW3 jumped the wall of the workshop and ran away. The accused ran behind him. Witness Crl.Appeal Nos. 753, 953, 954 & 955 of 2012 -:16:- further deposed that one Renjith and Sreekumar came and took Anil Kumar to Medical College Hospital in an autorickshaw. After two-three minutes, PW1 saw PW6 and Suresh bringing PW3. He was also taken in an autorickshaw to Medical College Hospital. 23. One of the main argument raised by the learned counsel for the appellants is that the version of PW1 is not believable in so far as he had not stated anything about accused 7 to 9 in the FI statement. Whereas in the evidence, an attempt had been made to involve accused 7 to 9 also as members of the said gang. Second argument is that he had narrated each and every injury caused on the deceased with specific details regarding the stabbing, inflicting injury on the head of the deceased, cutting with chopper etc., which is humanly not possible. Even according to PW1, all of them were standing together covering the deceased and it is humanly not possible to observe as to who had committed a particular injury and the kind of weapon. It is settled law that FIS is only given for the purpose of initiating appropriate investigation in the matter. The first informant is not expected to give all the details of the incident. At any rate, if there is any embellishment or attempt to give false evidence Crl.Appeal Nos. 753, 953, 954 & 955 of 2012 -:17:- before Court, it is for the Court to decide the matter on a case to case basis. It might be a case where the first informant had identified accused Nos. 1 to 6 immediately and he would not have been familiar with the other accused. In the FIS he has stated that accused 1 to 6 along with few others were involved in the crime. 24. PW2 deposed that on 5/6/2005 at 7.30 p.m, while he was standing in front of a temple near Vattavila lane along with PW1, PW3 and the deceased, he saw accused Nos.1 to 7 rushing towards them. When they came near them, he kept a little bit away. The first accused came towards PW3 and Anil Kumar, caught hold of the shirt of Anil kumar and uttered that he was looking for him for the last one year and that he will be finished today itself. Anil Kumar pushed him away and ran through Vattavila lane. PW3 also ran behind him. PW1 also ran behind them. During that process, he saw first accused inflicting a cut injury on the head of Anil Kumar. Anilkumar fell down and the accused together covered him and he saw them continuously inflicting injuries with deadly weapons. When PW2 saw the accused approaching towards him, he ran towards the front door Crl.Appeal Nos. 753, 953, 954 & 955 of 2012 -:18:- of his house. He then saw the accused turning towards PW3 and threatening to inflict injuries on him. He also identified the accused and the weapons used. No contradiction had been pointed out. He is also an attestor to Ext.P26 inquest report. One of the arguments raised against his evidence is that he was not a person residing in Vattavila and he is a witness who had been planted. 25. PW3 is the injured eye witness. He has also given a statement to the Magistrate in the form of a dying declaration. In his evidence he had clearly stated as already spoken to by PW1 and PW2. There is no serious contradiction to the evidence of PW3. The Judicial First Class Magistrate-II has been examined as PW32. He is the person who had recorded the dying declaration of PW3 and Ext.P25 is the dying declaration. One major contradiction pointed out in the evidence of PW3 is that he did not mention anything about the incident in which Anil Kumar was stabbed and attacked while giving statement to the Magistrate. But, it seems that the learned Magistrate had only asked PW3 as to how he had suffered the injuries which he had explained. Therefore, non mentioning about the details regarding the injuries Crl.Appeal Nos. 753, 953, 954 & 955 of 2012 -:19:- suffered by Anil Kumar in the incident in Ext.P25 statement cannot be taken as a material to discard his evidence. 26. PW9 is also an eye witness. She is a house maid. She deposed that while she was sitting in her house, she heard a hue and cry by about 7.30 p.m. She came out of her house and looked at the street standing near to her compound wall. She saw accused persons stabbing Anil Kumar in the road. After a while, Anilkumar got up and ran towards the front of her house. The accused again inflicted injuries on him. She also identified the accused and had clearly spoken about the incident. 27. PW4 has turned hostile. However, he has deposed that PW9 was residing in the locality and there were electric lines and post in the said street and lights in the house situated on both sides of the lane. He also supported the version of the prosecution in regard to the ownership of the workshop. In the scene mahazar the owner of workshop is noticed as one Sasidharan. But the witnesses deposed that the owner of workshop was Padmaraj. PW4 stated that Padmaraj and Sasidharan are one and the same person. 28. PW5 deposed that he saw Anil kumar and PW3 standing Crl.Appeal Nos. 753, 953, 954 & 955 of 2012 -:20:- on the slab situated near Vattavila street on 5.6.2005 at 7.30 p.m. along with PW1 and PW2. He saw an autorickshaw coming and stopping at the opposite side and also saw accused No.4 getting down. Thereafter he saw accused 1 to 6 getting down from the auto with swords and choppers. He also saw accused Nos. 7 to 9. He also heard the accused uttering that Anil Kmar will be killed. Thereafter, Anil Kumar ran away along with PW2. He heard a hue and cry. After some time, he saw Anil Kumar being taken to the Medical College Hospital and after some time, PW3 was also taken to the hospital. 29. PW6 is the person who took PW3 to Medical College Hospital. He had also stated regarding the involvement of accused 1 to 6 in the crime and they were identified. According to him, while he was sitting in the front of his house, he saw PW3 running through the street requesting for help and he saw accused 1 to 6 running behind him armed with weapons and he also saw accused No.3 inflicting an injury on PW3 with a sword. He also saw accused 1 to 6 following PW3. He followed them and he saw PW3 falling to the ground in front of the house of Sreekantan and he saw accused 1 to 6 inflicting injury on PW3. Crl.Appeal Nos. 753, 953, 954 & 955 of 2012 -:21:- Some women who came to take water from the public tap screamed and hearing the same, all the accused ran away. He went towards PW3. Some people gathered and he along with one Suresh took PW3 to Medical College Hospital. 30. PW7 is a relative of Anil Kumar. She has seen PW3 sustaining injuries. On the fateful day, she went to the spot to collect water from the public tap. Some of her friends were also there. They saw PW3 running towards them holding his hands on his head. Some of the accused followed PW3 and she saw them standing near PW3 and then inflicting injuries. The sister of PW3 was pleading with them not to kill him. The 6[th] accused pushed her away. She also narrated the manner in which each of the accused had inflicted injuries on PW3. PW8 also saw the accused chasing PW3 and the related events. 31. The material objects namely the weapons which had been used for commission of the crime, Mos 1 to 5 were recovered based on the disclosure statement given by accused Nos.1 to 5 to PW33. MO1 weapon used by the first accused was recovered based on the disclosure statement Ext.P5(a). PW15 is the attestor to Ext.P5 the mahazar under which the weapon was Crl.Appeal Nos. 753, 953, 954 & 955 of 2012 -:22:- recovered. Material objects 2 to 4 the weapons used by accused 2 to 4 were recovered based on Exts.P19 to P21 mahazars. The statement given by the accused were marked as Exts.P19(a), P20(a) and P21(a). The weapons were recovered based on the disclosure statement given by the accused in the presence of witnesses. Ext.P6 is the recovery mahazar pertaining to recovery of MO5 and Ext.P6(a) is the confession statement of the fifth accused. PW16 is the witness to the recovery mahazar. 32. Human blood was detected in MO1 and MO6 and blood stains were detected in MOs 2 to 6 as evident from Ext.P10, the FSL report. 33. The dresses of accused Nos.8 and 9 were recovered as MO34, 35, 11 and 12 as per Exts.P16 and P8 mahazar. PW28 and PW33 were the witnesses for recovery of the said dresses. The dresses of the deceased which were recovered also contained blood which was identified as “B” group blood as that of the deceased. 34. Though it was strenuously contended by counsel appearing for accused in these cases that the evidence of the witnesses show that all the witnesses in the case were tutored Crl.Appeal Nos. 753, 953, 954 & 955 of 2012 -:23:- and therefore not believable, the sequence of the events as spoken to by the witnesses and the scientific evidence adduced in the case read with the recovery of the weapons used for the crime proves the prosecution case beyond reasonable doubt. Though there are some contradictions pointed out during examination of witnesses, those are all not so material to discard the prosecution evidence. 35. Yet another argument raised by the defence is that several independent occurrence witnesses were cited, but not examined. The position of law in this regard is well settled. It is for the prosecution to decide the nature of evidence to be adduced. The question would be whether the evidence adduced before Court will be enough to hold the accused guilty of the offences. This is a case in which the prosecution had examined four or five witnesses who had spoken about the incident as well as the injury inflicted on each of the persons. 36. Now to deal with the contentions raised by learned counsel appearing on behalf of the accused, the first contention is that there was delay in registering the FIR. The incident happened on 5/6/2005 at 7.30 p.m. Crime was registered at 10 Crl.Appeal Nos. 753, 953, 954 & 955 of 2012 -:24:- p.m on 5/6/2005. It is stated that the FIR had been sent to the Judicial Magistrate of First Class only at 10.30 p.m on 6/6/2005. According to the learned counsel who appeared for accused 1 to 3, an attempt had been made to fabricate and collect all the evidence before registration of FIR and there is no explanation on the side of the investigating officer. It is seen from Ext.P1 that the FIR was registered at 10.00 pm on 5/6/2005 and it was dispatched to the Court on the same day at 10.45 p.m. But it seems that it was received by the learned Magistrate only at 10.20 p.m on 6/6/2005. In _**Ishwar Singh**_ (supra), the Apex Court had occasion to consider the scope and effect of sending the FIR to the Magistrate within a reasonable time. It was held that the extraordinary delay in sending the FIR is a circumstance which provides a legitimate basis for suspecting that the FIR was recorded much later than the stated date and hour affording sufficient time to the prosecution to introduce improvements and embellishments and set up a distorted version of the occurrence. In _**Tara Singh v. State of Punjab**_ (AIR 1991 SC 63), the Apex Court held that unless there are indications of fabrication, the court cannot reject the prosecution version as given in the FIR. In Crl.Appeal Nos. 753, 953, 954 & 955 of 2012 -:25:- ## _**State of Karnataka v. Bhaskar Kushali Kotharkar and**_ _**Others**_ (AIR 2004 SC 4333), Apex Court held that the evidence of an eye witness could not be rejected merely because of delay in giving the FI statement to the police. 37. As far as this case is concerned, PW1 had given the FI statement within 2½ hours from the time of occurrence. Therefore, there is no delay in registering the FIR. The question would be regarding the delay in sending the FIR to the Magistrate. FIR shows that it was dispatched to the Magistrate at 10.45 p.m on the same day. But it seems that the Magistrate had received it only on the next day and that too at 10.20 p.m. Learned counsel submits that the Court is only 2 kms away from the police station and it is totally unbelievable that if the FIR is dispatched at 10.45 p.m, it would reach only at 10.20 p.m, the next day. At any rate, whether the delay in reaching the FIR to the Magistrate is fatal to the prosecution depends upon the facts and circumstances of each case. 38. Learned counsel also placed reliance upon a judgment in _**Kailash Gour**_ [supra]. That was a case in which the Apex Court observed that in the ordinary course, the investigating officer has Crl.Appeal Nos. 753, 953, 954 & 955 of 2012 -:26:- to record the First Information Report immediately based on the eye witness account of the occurrence. It was further found that, in that case, no effort was made by the investigating officer and there was no explanation for his failure to ascertain from the alleged eyewitness the sequence of events and the names and particulars of those who were responsible for the same and without registering FIR, the investigating officer completed the inquest, prepared a site plan and got the post mortem of the dead conducted and FIR was registered only long thereafter. It was held that either he was an incompetent person or secondly he had no clue as to who were the perpetrators of the crime. In the present case also, the argument is that until the FIR reaches the Magistrate, there is every chance for manipulation and fabrication of the First Information Statement. In Ext.P1 statement, PW1 had given information about the involvement of accused 1 to 6 only. He had in clear terms stated about the weapons carried by each of them. PW33 the investigating officer in his evidence has stated that he received wireless message about the incident and he reached the place of occurrence by about 8 p.m. The situation at the place of occurrence was highly tense. He therefore gave Crl.Appeal Nos. 753, 953, 954 & 955 of 2012 -:27:- importance to maintain law and order and to avoid further attack or retaliation, he called for additional police force and arranged police patrol. The matter was also informed to higher officials. Though he tried to find out a witness, none had turned up. He therefore went to the Medical College Hospital where the deceased and the injured were taken. During that time, PW1 reached the police station and had given the FIS. PW33 had gone to the Medical College Hospital. Therefore, factually there is no delay in registering the FIR. 39. The next argument is that the FIR did not reach the Magistrate forthwith and the said delay is not explained. It is also pointed out that Ext.P22 is the FIR in Crime No.428/2005 which was recorded at 5.00 pm on 5/6/2005. The said FIR reached the Magistrate at 11 am on 6/6/2005. There is justification on the part of the counsel in contending that the FIR ought to have reached the Magistrate immediately after dispatch. Apparently no valid explanation had been given. The question to be considered is whether the prosecution case should be discarded in its entirety on account of delay in sending the FIR to the learned Magistrate. In other words, unless it is shown that there was an attempt by Crl.Appeal Nos. 753, 953, 954 & 955 of 2012 -:28:- the prosecution to fabricate the evidence, and thereafter it is incorporated in the FIR, there is nothing to doubt the genuineness of the said document. 40. PW31 was the Sub Inspector of Police, Fort Police Station. He is also the person who had recorded FIR No.428/2005 which is taken on the basis of statement given by first accused in the case. His allegation was that one Kakka Ani and Azhakan Ani had inflicted injuries on him. In his evidence, he states that the FIR is not taken to the Magistrate's house without the accused who is to be remanded in custody. 41. PW33 is the investigating officer. He was the Circle Inspector of Police during the relevant time. He also deposed that the information was received before 8 p.m through wireless message, but the FIR could not be registered with limited information. People in the locality were afraid and was not coming out. He also stated that he was not in a position to move away from the scene of crime and there was law and order situation in the area. So he had to remain in the spot to make suitable arrangements. Therefore, we are of the view that there is no delay in registering the FIR. But it has to be verified whether any Crl.Appeal Nos. 753, 953, 954 & 955 of 2012 -:29:- prejudice had been caused to the accused on account of the delay in the FIR reaching the Magistrate, and, in between, whether the prosecution had fabricated any evidence. Apparently, what is to be considered is whether the evidence adduced by the witnesses are truthful and can be relied upon. 42. The appellants' counsel argued that all the witnesses are tutored. They have stated the minute details of the incident which is humanly not possible. Reliance had been placed to the judgment in Crl.Appeal No.362/2007 decided on 4/8/2011 ( _**Golden Satheesan and others v. State of Kerala)**_ . In that case, a Division Bench of this Court placing reliance upon _**Sevi and another v. State of Tamil Nadu**_ (1981 Crl.L.J. 736) and _**State of Punjab v. Mohri Ram and Others**_ (1994 Supp (1) SCC 632) held that the testimony of PW2 cannot be relied upon as he is a highly interested, inimical, partisan and tutored witness who has been made to speak about meticulous details in a parrotlike manner. Reliance is also placed on a judgment dated 15/2/2016 in Crl.Appeal No. 859/2011 _**(Vayalali Girishan and others v. State of Kerala)**_ . This judgment is relied upon to emphasise the fact that identification of the accused was not Crl.Appeal Nos. 753, 953, 954 & 955 of 2012 -:30:- proper. That was a case in which the deposition of witnesses revealed that the Sessions Judge had merely recorded the rank number of the accused in the charge and no effort was seen taken to certify in the deposition that the person referred by the witness was one of the members of the unlawful assembly which perpetrated the crime. It was held that when it does not appear from the evidence that the accused was specifically pointed out by their name or specific feature and an endeavour is made by the Court to individually fix each of the accused as being present in the scene of crime to involve them as members of the unlawful assembly, it would amount to a travesty of justice to hold such accused guilty of the crime especially when no specific overt acts are alleged against them. General allegations against the accused are not enough to convict them. 43. In the light of the contentions urged, it has to be once again verified whether the evidence of the eye witnesses lacks probity to discard their evidence as fabricated. PW1 has stated that while he was standing along with Anilkumar and Babu, he saw 5-6 persons coming with weapons in their hands which were choppers and swords. Three of them were coming behind them. Crl.Appeal Nos. 753, 953, 954 & 955 of 2012 -:31:- They were also armed. He gives the names of those persons. When they tried to attack Anilkumar, he and Babu ran away from the scene and all the 9 assailants followed them. PW1 also ran behind them. He saw the first accused Sailan inflicting an injury on the head of Babu. Babu proceeded towards a lane on the right side. Anilkumar ran straight. When he reached the place in front of the house of one Komalan, Sailan again inflicted an injury on his head with his sword. Anilkumar ran further and fell down in front of the house of Rajan. Then he narrated the manner in which Anilkumar was manhandled. He had given the details of overt acts committed by each of them. After taking care of Anilkumar, they went in search of Babu to a workshop. One of them saw Babu and called the others saying that Babu should also be taken care of. Babu climbed up a wall and jumped over it. The assailants followed. He further identified all the accused by “ stating that അന കണ ഒൻപത പപര� ഇപ��ൾ പക�ടത�യ�ലണ�. Witness points out all accused in the box and identify them. പത�കള� എന�ക 15 വർഷമ�യ� അറ�യ��”. PW1 himself had given FI statement Ext.P1. In the FI statement, the contradiction is Ext.D1 by which he denied having given a statement that the three persons who Crl.Appeal Nos. 753, 953, 954 & 955 of 2012 -:32:- were following the other accused were Sreekumar, Sivakumar and Sureshkumar. According to him, he had not given any such statement to the police u/s 161 Cr.P.C.. Ext.D1(a) is another contradiction. During cross examination, few omissions had been brought out. But the contradictions and omissions are not material to discard his oral testimony regarding the incident. Similarly PW3 has also given a narration of what has happened and the other witnesses which we have already considered have clearly spoken about the incident including PW9. This is a case where a group of persons who had clearly been identified had come with deadly weapons. All the witnesses clearly indicated that they have uttered that their intention is to kill Anilkumar. They shouted and uttered that he will be killed. All of them together inflicted injuries. They also inflicted injuries on PW3. The fact that the deceased Anilkumar suffered injuries at the hands of the accused cannot be disbelieved. May be in their over enthusiasm the witnesses would have narrated each and every minute details. But the fact remains that all of them who formed an unlawful assembly had the intention to do away with Anilkumar and PW3. All of them had weapons with them and they Crl.Appeal Nos. 753, 953, 954 & 955 of 2012 -:33:- cornered the deceased and he was stabbed, chopped and made cut wounds which resulted in his death. When the fact of that act is proved, even assuming that there is some embellishment in each of the individual acts committed by any of the accused, all of them forming members of the unlawful assembly had the common object of committing murder which cannot be lightly considered. Therefore, we cannot accept the argument of the learned counsel for the appellants that the delay in sending the FIR to the Magistrate had made a situation enabling the prosecution to fabricate the case. When the fact of injury and death is proved, the only question is who had committed the same. All the witnesses which we have discussed above have categorically stated about the presence of accused with murder weapons and their leaving of the place after the incident. Under such circumstances their complicity in the crime cannot be doubted. 44. Yet another argument raised by the learned counsel for appellants is that accused 1 to 3 sustained injuries as evident from Exts.P24 P34 and P35, but it has not been properly explained. Of course, in a case where the accused also suffered Crl.Appeal Nos. 753, 953, 954 & 955 of 2012 -:34:- injuries, the prosecution is bound to explain the injuries. However, it becomes fatal to the prosecution case only if the court is satisfied that the injury on the person of the accused was of a serious nature and the injuries must have been caused at the time of occurrence in question. From the materials placed on record, there is no evidence to arrive at a conclusion that the accused suffered injuries in the same incident. In the statement u/s 313 filed by the first accused, he had stated that the injuries were sustained by them in an incident which took place at 5.30 p.m. and therefore, it is rather clear that it is not with reference to the same incident. Further, the inspection memo Exts.P24, P34 and P35 would show that the injuries are of a minor nature. Therefore, we do not think that non-explanation of injuries on the accused would be fatal to the prosecution case. 45. Yet another argument raised is that the motive for the incident has not been proved. First of all, in a case where eye witnesses had spoken about the incident, there is no reason to prove any motive. When this being the settled position, absence of any such evidence will not affect the prosecution case. It is also argued that the genesis of the incident is not correctly stated and Crl.Appeal Nos. 753, 953, 954 & 955 of 2012 -:35:- it is a fabricated case. As already stated, when the evidence is clear and categoric, especially regarding the presence of the accused in the scene of crime with deadly weapons and the witnesses have clearly spoken about the intention of the accused and one of the witness is the injured himself. Hence, there is no reason to doubt the credibility of their evidence. It is argued that PW1, PW2 and PW3 had different versions regarding the genesis of the incident. On a perusal of the evidence, we do not think that there is any such difference in the manner in which the crime has been committed and how the prosecution has proved it. 46. Yet another argument raised is regarding the recovery of the murder weapons. In fact the recovery of the weapons was made by the investigating officer based on the disclosure statement given by the accused. On a perusal of those statements and the materials produced, we do not find any error being committed by the investigating officer in conducting the recovery. At any rate, recovery of murder weapon is only an additional piece of evidence to corroborate the oral testimony of witnesses. Taking into consideration the overall factual circumstances and on hearing the learned counsel on either side, Crl.Appeal Nos. 753, 953, 954 & 955 of 2012 -:36:- we do not think that the court below had committed any error in convicting the accused. No grounds had been made out for interfere. Appeals are, therefore, dismissed. Sd/- ## **A.M. SHAFFIQUE, JUDGE** Sd/- **P.SOMARAJAN, JUDGE** Rp //True Copy// PS to Judge