CRL.A.No.1861 OF 2005 AGAINST THE JUDGMENT IN SC NO. 275/2003 DATED 3.10.2005 ON THE FILE OF THE ADDITIONAL DISTRICT COURT (ADHOC)-III, THALASSERY

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **TUESDAY, THE 24TH DAY OF NOVEMBER 2020 / 3RD AGRAHAYANA, 1942** ## **CRL.A.No.1861 OF 2005** **AGAINST THE JUDGMENT IN SC NO. 275/2003 DATED 3.10.2005 ONT HE FILE OF THE ADDITIONAL DISTRICT COURT (ADHOC)-III, THALASSERY** ## **APPELLANTS/ACCUSED NOS.1 TO 3:** - **1 AREEKARA ARAVINDAN, S/O. GANGADHARAN, SEEMALAYAM, KOOTALI AMSOM, MUTTANNUR,, KANNUR DISTRICT.** - **2 CHIRAYIL CHALIL SUKUMARAN S/O. V.K.GOVINDAN, PUTHANPURA HOUSE, KOOTALI AMSOM, MUTTANNUR, KANNUR DISTRICT.** - **3 MINGON OTHAYOTH GANGADHARAN S/O. RAIRU NAMBIAR, KAMMALANKANDY VEEDU,, KOOTALI AMSOM, MATTANNUR, KANNUR DISTRICT.** **BY ADVS. SRI.M.SASINDRAN SRI.M.B.PRAJITH** ## **RESPONDENT/RESPONDENT:** **STATE REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** ## **OTHER PRESENT:** ## **R1 BY SRI.K.B.UDAYAKUMAR, SR.PP** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 24-11-2020 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **CRL.APPEAL No.1861 of 2005 2** ## **JUDGMENT** ## **Dated this the 24th day of November 2020** … The appellants are the accused in Sessions Case No.275 of 2003 on the file of the Sessions Court, Thalassery. 2. The above case is charge sheeted against the appellants for the offences punishable under Sections 143, 147, 148, 324 and 307 r/w. Section 149 IPC. 3. The prosecution case is that, on 19.5.2000 at 8 p.m., the accused persons along with six other unidentifiable persons formed themselves into an unlawful assembly at Koodali near Mattannur Muslim Jumaat Pally with intention to kill CW2 Jayaprakash and armed with deadly weapons like iron rod, wooden hammers etc. attacked and assaulted CW2 Jayaprakash and caused ## **CRL.APPEAL No.1861 of 2005 3** grievous injuries on him and thereby the accused persons committed the above offences. 4. To substantiate the case, the prosecution examined PW1 to PW13. Exhibits P1 to P10 are the documents marked on the side of the prosecution. Two witnesses were examined as DW1 and DW2 on the side of the defence. 5. After going through the evidence and documents, the trial court found that, the accused committed the offences punishable under Sections 143,147,148,324,326 r/w. Section 149 IPC. But the trial court found that, the accused are not guilty under Section 307 IPC. The sentence was imposed on the accused for the above said offences in which they were found guilty. 6. Aggrieved by the above conviction and sentence this criminal appeal is filed. 7. Heard the learned counsel for the appellants and the learned public prosecutor. 8. The learned counsel for the appellants ## **CRL.APPEAL No.1861 of 2005 4** submitted that, the only evidence available in this case is that of PW8, the injured. The counsel submitted that, he wrongfully implicated the accused in this case. The counsel submitted that, the first version of PW8 to the doctor immediately after the incident is that about 10 persons, who cannot be identified, assaulted. Thereafter, PW8 coming before the court and deposed that, the appellants committed the offence. The counsel submitted that, for that simple reason, the appellants are entitled the benefit of doubt. The counsel submitted that, the prosecution miserably failed to prove the case against the appellants. 9. The learned public prosecutor submitted that, PW8 is the injured witness and there is nothing to disbelieve his evidence. The public prosecutor submitted that, the injuries sustained to PW8 is also proved through PW2, the doctor. The public prosecutor submitted that, there is ## **CRL.APPEAL No.1861 of 2005 5** nothing to interfere with the conviction and sentence imposed by the lower court. 10. The point for consideration in this case is whether the appellants committed the offence under Sections 143, 147, 148, 324, 326 r/w. Section 149 IPC ? 11. Altogether 13 witnesses were examined by the prosecution. PW1 is only a scene mahazar witness. PW2 is the doctor who examined PW8. PW3 is a witness examined by the prosecution to prove that he took PW8 to the hospital after incident. PW4 is cited as an eye witness. But he turned hostile to the prosecution. PW5 is the Village Officer through whom Ext.P4 site plan is marked. PW6 is the Assistant Sub Inspector of Police, who registered F.I.R. PW7 is the Deputy Superintendent of Police who conducted preliminary investigation. PW8 is the injured in this case. PW9 to PW12 conducted preliminary investigation. PW13 submitted the final report. ## **CRL.APPEAL No.1861 of 2005 6** 12. Admittedly, there is only the evidence of PW8, the injured in this case. I perused the evidence adduced by PW8 as far as the incident is concerned. It will be better to extract the evidence adduced by PW8 as far as the incident is concerned which is recorded by the court in English. _“By 8 p.m. I came back from there and reached near Muttannur Muslim Palli. While so one jeep came from Nayattur side ie. from my back and stopped near me and one person in the jeep showed hand and signaled to stop. Then I had torch with me I flashed the torch inside the jeep. Then there were about 9 persons in the jeep. From the jeep A1 Aravindan, c c sukumaran (A2) M O Gangadharan (A3) and 6 other persons who were in the jeep came out of the jeep. Then A1 was shouting “Evanthanneda Aale Adiyada Kollada”. Then A2 Sukumaran and A3 Gangadharan beat me with Iron road and fell down. Then the persons with them hit me on my chest and shoulder with bricks. After I fell down, A1 Aravindan lifted my 2 legs and A2 Sukumaran and A3 beat me on my legs with iron road and broke my legs. When they had started to assault me I was raising hue and cry. People from the mosque and the nearby_ **CRL.APPEAL No.1861 of 2005 7** _tailoring shop started to came. The person with them threatened the people who were coming there and were preventing them from coming to the spot seing more people coming they get into the jeep in which they come and went towards Chalad side in the same jeep while so going they were talking “Eni Aavan Chatholu”. The people who gathered there have seen me. They took me to Govt. Hospital Kannur in a jeep. Doctor treated me there. I was not fully conscious. Then I was taken to Mangalore Hospital. I had told PW1 that is A1 Aravindan and others who assaulted me.”_ 13. According to PW8, he was attacked by the accused in this case. A perusal of the evidence adduced by PW8, it is clear that, he identified accused Nos.1 to 3 from the place of occurrence itself. But when PW8 was examined by the doctor on 19.5.2000 at 9.20 p.m., he stated to the doctor like this: _**"**_ `ഇനനരര` _**(**_ `തത` _**8.15**_ `മണതകകമടനനര പളളതയനടട അടനതനവചക കണരല അറതയരത പതതരളളതപരതചരനകഇരനമനകമതടകരണക അടതചതതനരല` _**"**_ 14. The evidence of PW8 before the court and the first version of PW8 to the doctor will not ## **CRL.APPEAL No.1861 of 2005 8** go together. I think, the accused are entitled the benefit of doubt on this single point itself. The first version of the injured to the doctor is important in this case. He stated before the doctor that, he was not able to identify the assailants. But he deposed before the court that, accused Nos.1 to 3 are the assailants and he identified them from the spot itself. I cannot believe the evidence of PW8 regarding the identification of the accused. In Mohanlal Gangaram Gehani v. State of Maharastra [AIR 1982 SC 839], the Supreme Court observed that, the statement of the injured to doctor being the first statement in point of time must be preferred to any subsequent statement given by him. According to me, the accused in this case are entitled the benefit of doubt. Therefore, this criminal appeal is allowed. The conviction and sentence imposed on the appellants as per the judgment dated 3-10-2005 in **CRL.APPEAL No.1861 of 2005 9** S.C.No.275 of 2003 of the Sessions Court, Thalassery are set aside. The appellants are set at liberty. Bail bond, if any, executed by the appellants are cancelled. ## **Sd/-** ## **P.V.KUNHIKRISHNAN** **pkk** **JUDGE**