CRL.A NO. 825 OF 2009

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE P.SOMARAJAN`** ``` WEDNESDAY, THE 4[TH] DAY OF OCTOBER 2023 / 12TH ASWINA, 1945 ``` ``` CRL.A NO. 825 OF 2009 ``` ## **`AGAINST THE JUDGMENT IN SC 175/2008 OF ADDITIONAL SESSIONS COURT,`** ``` FAST TRACK COURT NO.III (ADHOC), MANJERI ``` ## **`APPELLANTS/ACCUSED 1-7:`** - `1 BABU, PARAYAMBATT VEEDU, K.PURAM AMSOM, MOOLAKKAL.` - `2 RAMAKRISHNAN, PARAYAMBATT VEEDU, K.PURAM AMSOM, MOOLAKKAL.` - `3 MANI MADATHIL VEEDU, K.PURAM AMSOM, MOOLAKKAL.` - `4 UNNI VADAKKUMBATTUIL VEEDU, K.PURAM AMSOM, MOOLAKKAL.` - `5 SANEESH, PARAYAMBATT VEEDU, K.PURAM AMSOM, MOOLAKKAL.` - `6 HARIDASAN, MENOTTIL VEEDU, K.PURAM AMSOM, MOOLAKKAL.` - `7 UNNI, KARAPPURATH VEEDU, K.PURAM AMSOM, MOOLAKKAL. BY ADV SRI.S.RAJEEV` ## **`RESPONDENT/STATE:`** ``` STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM (CRIME NO. 48 OF 2007 OF TANUR, POLICE STATION). ``` ``` BY ADV. SRI SANAL P RAJ,PUBLIC PROSECUTOR ``` ``` THIS CRIMINAL APPEAL HAVING COME UP FOR HEARING ON 04.10.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` CRL.A NO. 825 OF 2009 ``` ``` 2 ``` ## **`JUDGMENT`** ``` The accused Nos.1 to 7 were found guilty for ``` ``` the offence punishable under Sections 143, 147, 148, 452, 323, 324 and 307 r/w Section 149 IPC ``` ``` and in addition, accused No.4 is also found guilty for the offence under Section 27 of the Arms Act. As such, they were convicted for the abovesaid offences respectively and sentenced to undergo simple imprisonment and fine as follows: ``` ``` “simple imprisonment for 3 months each for ``` ``` the offence punishable under Section 143, 147 ``` ``` IPC, simple imprisonment for 6 months for the offence punishable under Section 323 IPC, ``` ``` Rigorous imprisonment for 3 years each and fine ``` ``` of Rs.2,500/- each, in default rigorous ``` ``` imprisonment for 3 months each for the offence under Section 452 IPC, rigorous imprisonment for 1 year for the offence under Section 324 IPC, ``` ``` rigorous imprisonment for 5 years each and fine ``` ``` CRL.A NO. 825 OF 2009 ``` ``` 3 ``` ``` of Rs.5000/- each, in default rigorous ``` ``` imprisonment for 1 year each under Section 307 IPC, rigorous imprisonment of 1 year for the offence under Section 149 IPC. A1, A3, A4 and A6 ``` ``` are sentenced to rigorous imprisonment for 1 ``` ``` year each for the offence punishable under ``` ``` Section 148 IPC and A4 is further sentenced to ``` ``` rigorous imprisonment for 7 years and fine of ``` ``` Rs.2,500/-, in default rigorous imprisonment for ``` ``` Arms Act. A1 to A3 and A5 to A7 are acquitted ``` ``` of the offence punishable under Section 27 of the ``` ``` Arms Act and A2, A5 and A7 are acquitted of the ``` ``` offence punishable under Section 148 IPC. Fine ``` ``` amount if realized Rs.15,000/- will be paid to PW1 as compensation under Section 357 (1) Cr.PC.” ``` ``` 2. The prosecution has examined PW1 to PW11 ``` ``` CRL.A NO. 825 OF 2009 ``` ``` 4 ``` ``` material objects as MO1 to MO3. ``` ``` 3. The alleged incident happened on ``` ``` 24.01.2007 in and around 7 a.m at the house of ``` ``` PW1 (CW1, the first informant). The prosecution ``` ``` case is that the accused No.1 to 7 with the ``` ``` common object to commit criminal trespass and attack the defacto complainant and others, ``` ``` criminally trespassed into the house of PW1 and ``` ``` unleashed attack. Specific overt act is also pleaded against accused Nos.1,3,4 and 6. The ``` ``` accused No.1 was carrying an iron rod identified as MO2, accused No.4 was carrying a sword ``` ``` carrying another sword, which was not recovered. ``` ``` The prosecution case is that the accused Nos.1 and 6 criminally trespassed into the house of ``` ``` defacto complainant, PW1, through its front door and accused Nos.3 and 4 through the back door and unleashed attack on PW1, CW2 (who was not ``` ``` CRL.A NO. 825 OF 2009 ``` ``` 5 ``` ``` examined), PW3 and PW10, the wife of PW1. At that time, the accused Nos.2,5 and 7 provided sufficient guard to accused Nos. 1,3,4 and 6 and remained outside the building so as to facilitate the commission of offence through accused Nos.1,3, 4 and 6. Hence, they were also found guilty by extending the criminal liability under Section 149 IPC. ``` ``` 4. Ext.P13 is the chemical analysis report, ``` ``` wherein no blood stain was found in MO1 sword. In fact, there is no evidence to show that MO1 sword is an incriminating object. MO1 sword was not identified by any of the witnesses to the ``` ``` prosecution including the victim, who received ``` ``` three incised wounds, PW1, by stating its ``` ``` identifying characters, the nature and its ``` ``` approximate length or width and nature of the weapon whether it is sharp edged one and whether its handle is wooden or metallic and ``` ``` CRL.A NO. 825 OF 2009 ``` ``` 6 ``` ``` its approximate length. What is the approximate length and width of the blade of the sword and whether it is a curved sword or a straight one are also not revealed. Mere identification of the weapon without disclosing any of its identifying characters by the victim or any of the witnesses ``` ``` may not be sufficient to make the weapon an incriminating object especially when no blood stain was detected. There is no sufficient material to show that MO1, the sword is the object used for the commission of offence. It is not an incriminating object and there is utter failure on the part of the prosecution to show any incriminating factor attached with MO1 ``` ``` sword. Necessarily, the detection and recovery of the weapon based on Ext.P8(a) disclosure statement alleged to have been given by accused No.4 is of no use. The legal position is very much settled by a Division Bench of this court ``` ``` CRL.A NO. 825 OF 2009 ``` ``` 7 ``` ``` in Sujatha v. State of Kerala and Others (2018 ``` ``` KHC 659)(see also the decision of the Apex Court in Raju Manjhi v. State of Bihar (AIR 2018 SC 3592)) ``` ``` 5. The very same principle is also ``` ``` applicable to MO2 iron rod alleged to have been used by accused No.1 for inflicting injury below ``` ``` the knee of PW1. But that weapon was not sent for chemical analysis for the reason best known to the prosecution. No expert evidence was adduced in order to show any incriminating factor attached to MO2 iron rod. Necessarily, ``` ``` the detection and recovery under Section 27 of ``` ``` the Indian Evidence Act, based on the disclosure ``` ``` statement given by accused No.1 while in police custody (Ext.P12(a)) may not get any relevancy and cannot be accepted. It will stand outside the purview of Section 27 of the Evidence Act as there is nothing to show any incriminating ``` ``` CRL.A NO. 825 OF 2009 ``` ``` 8 ``` ``` factor attached to MO2 iron rod. The abovesaid ``` ``` weapon used for inflicting injury was not identified by the victim PW1 or any of the ``` ``` witnesses examined by the prosecution with its ``` ``` specification as to approximate length, width etc. Necessarily, it would fall outside the purview of Section 27 of the Evidence Act. No criminal liability can be fastened against the accused under Section 27 of the Indian Evidence Act and disclosure statement thereof, Ext.P8(a) and P12 (a) respectively. ``` ``` 6. The weapon used by the accused No.1 as ``` ``` spoken to by PW1 is the iron rod, MO2. In Ext.P3 ``` ``` wound certificate, there is a corresponding injury and laceration just below the knee. The existence of a corresponding injury in Ext.P3 ``` ``` wound certificate and the user of a weapon like MO2 iron rod as spoken to by PW1 stood corroborated by the oral evidence tendered by ``` ## `CRL.A NO. 825 OF 2009` ``` 9 ``` ``` PW4, who had drawn Ext.P3 wound certificate ``` ``` pertaining to accused No.1. PW1 has revealed the name of accused No.1 at the time when FIS (Ext.P1) was given on the very same day of ``` ``` alleged incident and it has found a place in the FIR (Ext.P10). There is no inordinate delay much less any delay in registering the FIR and it was received by the concerned Magistrate on the next day itself and it is well clear from the endorsement made in the Ext.P10 FIR. ``` ``` Necessarily, it will give sufficient corroboration to the oral evidence tendered by PW1 regarding the involvement of accused No.1 and user of a ``` ``` weapon like MO2 iron rod. The presence of a ``` ``` corresponding injury in Ext.P3 wound certificate would also give sufficient corroboration and support to the oral evidence tendered by PW1, the victim. But the injury sustained by the use of the alleged weapon is only a laceration in ``` ``` CRL.A NO. 825 OF 2009 ``` **==> picture [15 x 9] intentionally omitted <==** ``` the form of an incised wound and it could be possible by the user of a weapon like MO2 as spoken by PW4, the doctor. The specific overt act alleged against accused No.1 is only with respect to the use of an iron rod for inflicting an injury just below the knee, a laceration in the form of an incised wound. ``` ``` 7. Regarding the involvement of other ``` ``` accused, the accused No.4 who criminally ``` ``` trespassed into the house during day time through the front door as spoken to by PW1, cannot be accepted, mainly on two reasons. It is admitted by PW1 that all the accused persons are known to PW1 for the last ten years and they are residing nearby places and they are known to each other and belongs to two fractions of political party. But the version given at the first instance on the very same day by way of FIS goes against the version given by him while in ``` ``` CRL.A NO. 825 OF 2009 ``` ``` 11 ``` ``` the box, wherein what is disclosed with respect to the identity of the accused person is by specifying the name of accused No.1 and 11 other persons who were identifiable onsight. It would show that the identity of other six persons who accompanied the accused No.1 were not disclosed or even whispered by PW1, though they were known to him for the last ten years, being nearby residents belonging to a fraction of a political party, when FIS was given. The FIS need not be a full text of the alleged incident and there may be omissions, sometimes material omissions. But regarding the identity of main assailants, who came up armed with swords, whose identity though known to the victim for the last ten years and omission to reveal their identity in ``` ``` FIS and the substitution that six other persons who could be identified on sight, would be so fatal to the prosecution regarding the ``` ``` CRL.A NO. 825 OF 2009 ``` ``` 12 ``` ``` involvement of accused No.2 to 7. It is quite against the first statement given by PW1 in Ext.P1 FIS, stating that accused No.1 and eleven other persons, who could be identified on sight stands for persons, who can only be identified on sight and not for the persons, who are personally known to the first informant, the victim for the last ten years, the nearby ``` ``` residents who belonged to opposite political fraction. It is well settled that there cannot be subsequent development in so far as ``` ``` commission of offence is concerned. According to the prosecution, accused No.4 is one of the main ``` ``` assailants, who used a sword for inflicting incised wound on the vital part of PW1. Necessarily, there may not have any omission on the part of PW1 not to disclose the name of the main assailant, the accused No.4, while giving the FIS, on the other hand, what he had given to ``` ``` CRL.A NO. 825 OF 2009 ``` ``` 13 ``` ``` the effect that along with eleven other persons who could be identified on sight, goes just contrary to the version given by PW1 regarding the identity of accused No.4 or involvement of ``` ``` accused No.4 in the alleged crime. ``` ``` 8. Regarding accused No.6, there is no ``` ``` specific identification. His name is also not ``` ``` disclosed in the FIS. It is well settled that ``` ``` FIS need not be a full text of what actually happened, but material omissions, especially ``` ``` when the accused persons, are known to the ``` ``` person who had given FIS for the last ten years being the residents of nearby places would be fatal to the subsequent identification as ``` ``` against the accused Nos.3, 4 and 6. This has to be read along with the fact that the weapon ``` ``` alleged to have been used by accused Nos.3 and 6 ``` ``` were not recovered. But, at the same time, the ``` ``` 14 ``` ## `CRL.A NO. 825 OF 2009` ``` concernedrevealsthreeincisedwounds ``` ``` corresponding the allegation and user of a sword, though there is no sufficient material to show or to prove MO1 sword alleged to have been used in the crime. The act of accused No.1 in inflicting an injury just below the knee by using an iron rod should be appreciated in the light of other injuries received by the victim PW1, which are three incised wounds and which would certainly show the necessary mens rea to cause the abovesaid injuries on the victim, PW1. ``` ``` 9.As discussed earlier, regarding the involvement of accused No.2 to 7, the statement given at first before the police (First Information Statement) did not contain even the ``` ``` name of the accused Nos. 2 to 7. On the other ``` ``` hand, what is given in the FIS is totally ``` ``` against the subsequent case developed by the prosecution regarding the involvement of the ``` ``` CRL.A NO. 825 OF 2009 ``` **==> picture [15 x 9] intentionally omitted <==** ``` accused Nos.2 to 7. In the FIS, what is stated is “Babu and eleven persons who could be identified by sight”. The expression “the person who could be identified by sight” always stands for a person with no prior acquaintance with the victim, the first informant. But, accused Nos.2 to 7 are near residents, admittedly, known to the PW1, the first informant, for last more than ten years and they are the persons who belonged to the opposite fraction of the political party. ``` ``` This would take away their involvement in the alleged crime or at the most itwould make it not reliable asis inconsistent with the first version given in the FIS regarding the identity. Further, the recovery of the MO1 sword is of no use as nothing was spoken to with the identity of MO1 in the alleged crime by specifying its nature of handle, nature of edge whether it is two-sided or single-sided weapon. The said ``` ``` CRL.A NO. 825 OF 2009 ``` ``` 16 ``` ``` material object was not sent for chemical analysis in order to show any blood stain. In short, there is utter failure on the part of the prosecution to show that MO1 material object is an incriminating object and as such it will not fall under the ambit of recovery of a fact as envisaged under Section 27 of the Indian Evidence Act. Necessarily, the findings of guilt of accused Nos.2 to 7 for the abovesaid offences cannot be sustained, hence will set aside and the sentence awarded will also stand set aside. The conviction under Section 27 of the Arms Act against accused No.4 will stand set aside. ``` ``` 10. In so far as accused No.1 is concerned, ``` ``` the weapon alleged to have been used is an iron rod. But there is no corresponding injury in the wound certificate and in the treatment records. The doctor, who examined in proof of the wound certificate ruled out the possibility ``` ``` CRL.A NO. 825 OF 2009 ``` ``` 17 ``` ``` of causing the corresponding injury noted by the prosecution, a laceration on the face of the victim by the user of an iron rod, MO1. Even otherwise, the offence than can be fastened against accused No.1 would fall under Section 323 IPC, coupled with Section 452 IPC. Since there is no evidence to show involvement of more than five persons, no offence under Section 143, ``` ``` 147 and 148 can be fastened by applying Section 149 IPC. Hence, the accused No.2 to 7 are not found guilty of the offence under Sections 143, 147, 148 and Section 323, 324 and 307 IPC r/w ``` ``` Section 149 IPC, hence acquitted. The accused ``` ``` No.4 is also not found guilty of the offence under Section 27 of the Arms Act, hence acquitted. Accused No.1 is not found guilty of ``` ``` the offence under Sections 143, 147, 148, 324 and 307 IPC, hence acquitted for the said offences and found guilty of the offences under Sections ``` ``` CRL.A NO. 825 OF 2009 ``` **==> picture [15 x 9] intentionally omitted <==** ``` 323 and 452 IPC and sentenced to undergo simple ``` ``` imprisonment for the abovesaid offences for the period of pre-trial detention, which comes to 65 days. ``` ``` The appeal will stand allowed accordingly. ``` ``` Sd/- ``` ``` P.SOMARAJAN JUDGE ``` ``` msp/SPV ```