Crl.A.No.697 of 2013 and Crl.A.No.768 of 2013

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE & THE HONOURABLE MR. JUSTICE P.SOMARAJAN TUESDAY, THE 3RD DAY OF JULY 2018 / 12TH ASHADHA, 1940 ## **CRL.A.No. 697 of 2013** AGAINST THE JUDGMENT IN SC NO.219 OF 2009 ON THE FILE OF THE COURT OF THE ADDITIONAL SESSIONS JUDE ADHOC - III (FAST TRACK COURT - III), PALAKKAD, DATED 18.4.2013. ## APPELLANTS/ACCUSED NOS.5,6 AND 7 - 1 PUSHPARAJ, S/O.VISWANATHAN, AMBATTUPALAYAM, NATTUKAL, KOZHINJAMPARA. - 2 RADHAKRISHNAN, S/O.CHANTHAMARA, KUNNAMKATTUPATHI, 5TH MILE, CHITTUR. - 3 UNNIKRISHNAN, S/O.VELUCHAMI, AMBATTUPALAYAM, NATTUKAL, KOZHINJAMPARA. BY ADVS.SRI.P.VIJAYA BHANU (SR.) - SRI.P.M.RAFIQ - SRI.VIPIN NARAYAN ## RESPONDENT/COMPLAINANT: STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY SENIOR PUBLIC PROSECUTOR SRI.S.U.NAZAR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 27.6.2018,ALONG WITH CRL.A.NO.768 OF 2013, THE COURT ON 03.07.2018 DELIVERED THE FOLLOWING: ## **A.M.Shaffique & P. Somarajan, JJ.** **----------------------------------------------------** ## **Crl. Appeal No.697 of 2013 and Crl. Appeal No.768 of 2013** **---------------------------------------------------Dated this the 3[rd] day of July, 2018** ## **JUDGMENT** ## **Somarajan, J.** These two appeals are against the judgment of conviction and order of sentence passed under Sections 302, 148 and 341 IPC in S.C.No.219 of 2009 of Additional Sessions Judge Adhoc -III (Fast Track Court- III), Palakkad. Crl.A.No.697 of 2013 was filed by accused Nos.5, 6 and 7 and Crl.A.No.768 of 2013 by accused Nos.1 to 3. 2. The prosecution allegation is that the accused persons, seven in numbers, including accused No.4 who is a juvenile in conflict with law, formed themselves into an unlawful assembly with the intention to do away the victim and armed with deadly weapons (swords, knife, sticks, Nanjack and idikkatta) and in furtherance of their common object, wrongfully restrained the victim who was riding a motor cycle through a ## **Crl. Appeal Nos.697 & 768 of 2013** :: 2 :: public road (Kallandichalla Pirivu-Kallandichalla public road) at 11 p.m. on 8.5.2008 and inflicted injuries on his body. He was removed to Unity Hospital, Kozhinjampara and then to Palana Hospital, Palakkad. He was actually brought dead before Palana Hospital, Palakkad. 3. The incident unfurled through the prosecution witnesses is having three episodes. The first episode happened by 9.00 p.m. on the same day, when annual celebrations in connection with one Mariyammankovil was going on. The deceased along with about 20 persons attended the rituals and while they were staying in the road side accused Nos.2 and 3 came there in a bike ridden by accused No.2. There was some wordily altercations in connection with the manner in which the bike was ridden by accused No.2 and some how, it has resulted in manhandling of accused No.2. It is thereafter accused No.1 came there and unleashed threat against the attackers in connection with the earlier incident. The third episode of the alleged incident happened by 11 p.m. ## **Crl. Appeal Nos.697 & 768 of 2013** :: 3 :: While the victim Suresh was on his way through the road, accused Nos.1 to 7 stopped his vehicle and thereon unleashed attack on him by using the weapons carried on by them, thereby the victim succumbed to the injuries on the same day on his way to Palana Hospital, Palakkad. 4. The prosecution mainly relies on the oral testimony of occurrence witnesses PW6, PW14 and PW15 besides the oral evidence adduced through the Doctor who conducted autopsy on the body of the deceased and recovery of the weapon used for inflicting injury. 5. PW6 is the person who had given Ext.P9 FIS before PW11 Sub Inspector of Police, Kozhinjampara and it was reduced into writing and Ext.P9(a) FIR was registered. The oral testimony of PW6 was brought under a massive attack. Firstly on the ground that there is a material omission/deviation in Ext.P9 FIS regarding the involvement of accused persons and their respective overt acts. In box, he had testified that ## **Crl. Appeal Nos.697 & 768 of 2013** :: 4 :: accused Nos.1 to 3 involved in the alleged incident, who themselves inflicted injuries on the victim by using specific weapons carried on by them. But, in the FIS, specific overt act alleged is only against accused No.1 and nothing was mentioned with respect to the overt act of other persons or the weapons carried on by them or its user. It is at the time of his examination as a witness the specific overt act as against accused Nos.2 and 3 was disclosed by him. Secondly, on the reason that nothing was mentioned either in the FIS or at the time of giving oral evidence regarding involvement of accused Nos.5 to 7, though he pretends to be an eye witness to the occurrence. Thirdly, on the reason that three contradictions were marked during his examination as D1 to D3, which, according to the defence, are material contradictions. The oral evidence tendered by PW14 and PW15 were also brought under challenge on account of the inconsistencies with the oral testimony of PW6. 6. The specific overt act of each and every accused as ## **Crl. Appeal Nos.697 & 768 of 2013** :: 5 :: spoken by PW14 and PW15 are clear and they are in agreement in its all details, the type of weapon used by each and every accused, the manner in which the injuries were inflicted on the victim, place and time in which the incident was happened, the very genesis of the alleged incident and the earlier episodes which were happened before the alleged incident. But the omission to mention the involvement of accused Nos.2 and 3, who are persons known to the first informant at the time of FIS, and the non-mentioning of the user of various weapons, cannot be ignored lightly. The omission is really material, sufficient enough to cast a doubt on the prosecution case regarding the involvement of other accused. But, the omission, though material, would be analysed based on the circumstance under which the alleged incident was happened and its impact on the first informant who had seen the massive attack, he may be in a frightened situation and may not be in a position to give a statement with its precision at the time of FIS. There can be omissions while giving the FIS. It may be minor in nature or material. It is ## **Crl. Appeal Nos.697 & 768 of 2013** :: 6 :: quite normal and possible to have some minor omissions. But when it is material, it has to be assessed in reference to the circumstances prevailed at that time especially when it was given by an eye witness who had witnessed the incident. The gravity of the incident, his relationship with the victim, the manner in which the incident was happened, all are relevant to test the impact on the first informant and whether he is in a frightened stage. Then the court has to look for strong corroboration and unless there is sufficient corroboration it cannot be acted upon. 7. In the instant case, the ocular evidence adduced through PW14 and PW15, two occurrence witnesses, gives a narrative picture about what actually happened on the ill fated day. They had identified accused Nos.1 to 3 and remaining accused Nos.5 to 7 Pushparaj, Unnikrishnan and Radhakrishnan. The oral testimony of these two witnesses reveals the respective overt acts of accused Nos.1 to 3 and 5 to 7 with its details. It is accused No.1 Prabin with the ## **Crl. Appeal Nos.697 & 768 of 2013** :: 7 :: company of other accused confronted with the victim by stopping his vehicle (bike) while he was riding and attacked the victim by using a sword. Accused No.2 Rajesh attacked the victim by using a knife. Accused No.3 attacked the victim by using another sword. It was also deposed by PW14 that accused No.1 Prabin slashed the sword against the victim which hit on his left hand. Accused No.2 inflicted a stab injury on his left shoulder. Accused No.3 also inflicted a cut injury on his left hand. Accused Nos.5 and 6 also joined with them and attacked the victim with wooden stick. Accused No.7 also joined with them with a Nanjak. He had also identified the weapon used by accused No.1 - MO8 and accused No.2 - MO10 knife. 8. PW15, the other occurrence witness also specified the respective overt act of accused Nos.1 to 3 and 5 to 7 by specifying the respective weapons used for the commission of offence, identified as MO8, MO9 and MO10, in tune with what is deposed by PW14. The contradictions which were marked ## **Crl. Appeal Nos.697 & 768 of 2013** :: 8 :: as D8 series, D10 and D11 series are minor contradictions, not material. Their presence in the place of occurrence is also probable as they were proceeding in two bikes. The victim in one bike proceeded at first towards the place of occurrence followed by PW6, PW14 and PW15 who were on another bike and they had seen the occurrence just 10 metres away from the place of occurrence. The credibility of the oral evidence tendered by PW14 and PW15 was also assailed based on the medical evidence adduced. The victim had sustained 18 incised wounds but PW14 and PW15 narrated only about the attack made by accused No.1 with a sword on his left hand, accused No.2 on his left shoulder with a knife and accused No.3 on his left hand with a sword. All others attacked the victim by using wooden sticks and Nanjak. It is submitted that no explanation was forwarded by the prosecution as to how the victim sustained 18 incised wounds noted in the wound certificate as ante-mortem injuries and no satisfactory evidence was adduced in that behalf. The version given by PW14 and PW15 were assailed on that ground also. But, it is quite normal ## **Crl. Appeal Nos.697 & 768 of 2013** :: 9 :: and natural that when there is a massive attack it is not possible to identify each and every blows struck on the victim using various weapons by the accused persons and that too during night time. It was witnessed by them from a distance of ten metres that too during night, in the headlight of their bike. If we visualise the situation under the given circumstance, it can be safely concluded that it is quite impossible to narrate each and every blow struck on the victim that too by seven persons in a massive attack. What is important is the involvement of the accused persons and whether there was a massive attack on the victim by using various weapons in furtherance of the common object and the oral testimony of occurrence witnesses PW14 and PW15 thus cannot be discarded, but it carries high evidenciary value and can safely be accepted. Thus, it gives sufficient corroboration by themselves and to the ocular evidence given by PW3. 9. Further, the injuries alleged to have been caused by accused Nos.1 to 3, as spoken by PW14 and PW15, stands ## **Crl. Appeal Nos.697 & 768 of 2013** :: 10 :: corroborated by the expert evidence tendered by PW12 the Doctor who conducted autopsy on the body of the deceased, who had spoken about the possibility of having those injuries by the user of MO8 to MO10. 10. But, the medical evidence adduced was also brought under challenge as no opinion of the Doctor who conducted autopsy was obtained regarding the user of weapon by accused Nos.5 to 7 and no evidence was adduced to show its corresponding injuries to the victim. At this juncture it has to be borne in mind that the medical evidence adduced through the Doctor who conducted autopsy or the Doctor who attended the victim would prima facie come under the purview of Section 45 of the Evidence Act, being the opinion given by an expert. But the court can rely on any ordinary witness on a particular factual situation even without expert evidence if it is found to be acceptable. It is true that nothing was elucidated through the Doctor who conducted autopsy regarding the user of the weapons alleged to have been used by accused Nos.5 to 7 or ## **Crl. Appeal Nos.697 & 768 of 2013** :: 11 :: any corresponding injury and no question was also put up during the examination of expert witness, PW12, the Doctor who conducted autopsy on the body of the deceased. But at the same time, it is permissible to look at the ante-mortem injuries and if it prima facie satisfies the requirement, the court can definitely act upon it even in the absence of expert evidence. The Doctor who conducted autopsy, PW12, had ruled out the possibility of causing injury Nos.1 and 2 by a fall on a rough surface. The allegation of user of wooden sticks and beating on the victim has to be tested with the origin of the abovesaid injuries and if it prima facie satisfies the requirement and when the oral testimony of occurrence witnesses found to be reliable and truthful, no further enquiry as to its origin is necessary, hence, the non-tender of expert evidence as to how injury Nos.1 and 2 were caused and user of the wooden stick and Nanjak is not fatal to the prosecution. When the witnesses who had seen the incident narrated the incident with its precision it can be safely accepted if it is otherwise found to be credible and truthful. ## **Crl. Appeal Nos.697 & 768 of 2013** :: 12 :: 11. The recovery of blood stained MO8 to MO10 is yet another circumstance which gives corroboration to the oral testimony of occurrence witnesses, PW6, PW14 and PW15. 12. There is no much dispute that the victim died due to the impact of injury Nos.11, 12, 14,15, 16, 17 and 18 as opined by the Doctor who conducted autopsy on the body of the deceased. Injury No.14 is possible by the impact of MO8. Injury Nos.15,16, 17 and 18 are possible by the impact of MO9 and MO10. 13. Then comes the question whether the homicide would satisfy any of the clauses to Section 300 IPC. None of the injuries are on the vital part of the victim though the incised wounds comes to 18 in numbers which are as follows: - “6. Superficial incised wound 0.8x0.5x0.3 cm on left side of lower lip at mucocutaneous junction, oblique inner lower end at midline. 7. Superficial incised wound 2x0.2x0.1 cm on left side of chin, oblique, upper inner end 2 cm outer to midline and 1.5 cm above face margin. ## **Crl. Appeal Nos.697 & 768 of 2013** :: 13 :: 10. Incised wound 6x3x5 cm on front of upper part of left upper arm, oblique upper inner end 5 cm below shoulder. There was a side cut 1 cm long on the upper margin of the wound. The wound cut the muscle (biceps) and muscular vessels underneath. 11. Incised wound 9x4x3 cm on back and outer aspect of left forearm, oblique, lower outer end 7 cm below elbow. The wound cut the extensor group of muscles, vessels and nerves underneath. 12. Incised wound 10x4x3 cm. oblique on back of left forearm, lower outer end 10 cm below elbow. There was a side cut for 2 cm long on the lower margin of the wound. The wound cut the extensor muscles, vessels and nerves underneath. The wound also cut the bone (radius) underneath in its full thickness. The wound was placed 1.5 cm below injury No.11. 13. Incised wound 5x2x1cm on outer and front of left forearm, oblique, lower front-end 4 cm above wrist. 14. Incised wound 5x1.5x2.5 cm on back of left forearm, oblique lower outer end 1 cm above wrist. The wound cut the tendons, vessels, nerves and bones underneath. The radius found cut in its full thickness and ulna for a depth of 1 cm. The wound cut the radial artery too underneath. 15. Incised wound 11x6x3 cm on back of left hand and wrist, oblique, upper inner end just above wrist. The wound cut tendons, vessels and nerves underneath. The wound also cut metacarpal bones of index middle and ring finger, carpal bones (triquitrum trapezium and trapezoid) and lower end of ulna in its full thickness with a beveling inwards (towards little finger). The wound ## **Crl. Appeal Nos.697 & 768 of 2013** :: 14 :: also cut the dorsal deep palmar arch (blood vessels). 16. Incised wound 7x3x3.5 cm on outer and front aspect of left leg, upper end 12 cm above ankle. The wound cut the muscles, vessels and nerves underneath. The wound also cut the bones (tribia and fibula) underneath for a depth of 0.5 cm. 17. Incised wound 6x2x3 cm on outer and front side of left leg, oblique, upper front-end 7 cm above ankle. The wound cut the muscles, vessels and nerves underneath. The tibia and fibula cut for a depth of 0.5 cm and 1 cm respectively. 18. Incised wound 5x1x1 cm on outer and front side of left leg, oblique, lower front-end 2 cm above ankle. The wound cut the muscles and nerves underneath for a depth of 0.5 cm. 19. Superficial incised wound 2x0.5 cm on the outer side of left ankle over the lateral wall of the injury Nos.16, 17, 18 and 19 were placed on the outer and front of left leg, over an area 11x5 cm. 20. Two linear superficial incised wounds 12 cm each on outer side of left upper arm, oblique, 1cm apart, lower front end 15cm below shoulder. 21. Superficial incised wound 8 cm long, oblique on outer and back of left upper arm, lower back end 5 cm above back of elbow. 22. Superficial incised wound 7 cm long on outer side of left thigh, lower end 22 cm above ankle. 23. Superficial incised wound 14 cm long on back of left side of chest (over the wing bone) oblique ## **Crl. Appeal Nos.697 & 768 of 2013** :: 15 :: lower inner end 10 cm outer to midline and 12 cm below shoulder. 24. Superficial incised wound 13 cm long on back of right side of chest, oblique, lower inner end 1 cm outer to midline and 9 cm below root of neck. 25. Superficial incised wound 27 cm long on back of chest obliquely across the midline, lower right end 9 cm outer to midline and 12 cm below root of neck.” The other injuries noted as ante-mortem injury Nos. 1 to 5, 8 and 9 are as follows: . - “1. Abrasion 0.6x0.1 cm on right side of forehead, oblique, upper inner end 2 cm outer to midline and 1.5 cm above eyebrow. 2. Abrasion 1.4x0.8 cm on right side of forehead oblique upper inner end 6 cm outer to midline and 1.5 cm above eyebrow. 3. Abrasion 1.6x0.8 cm on right temple region. 4. Abrasion 1.5x0.5 cm on right cheek, inner end 8 cm outer to midline and 6 cm above jaw margin. 5. Abrasion 1.5x0.3 cm on right side of chin lower inner end 1 cm above jaw margin and 4 cm outer to midline. 8. Abraded contusion 4x3 cm on left side of face, lower inner end 3 cm above jaw margin and 7 cm outer to midline. 9. Two skin contusions 1.5x1.5cm and 1.5x1 cm on ## **Crl. Appeal Nos.697 & 768 of 2013** :: 16 :: outer side of right upper arm 1cm apart, upper one was placed 13 cm below shoulder.” 14. All the incised wounds are on the fore-limb, legs and also on the clavicular area (back of shoulder). It was submitted that since there is no injury on any vital part of the victim, it cannot be brought under the purview of any of the clauses to Section 300 IPC. The oral evidence tendered by the occurrence witness PW6 is relevant as accused No.1 slashed on the victim with a sword by stopping his vehicle, but it hit on the left hand of the victim. The incised wound inflicted over the clavicular area is also brought under the purview of fatal injury by the Doctor, PW12. Further, he is of the opinion that injury Nos.15, 16 and 17 are independently sufficient to cause death in its ordinary course due to bleeding from the cut vessels and bones. Injury Nos.11, 12, 14, 15, 16,17 and 18 are fatal and sufficient to cause death in the ordinary course. The question whether the injury inflicted on a non vital part of the victim would intake application of any of the clauses attached to Section 300 IPC came up before the Apex Court in ## **Crl. Appeal Nos.697 & 768 of 2013** :: 17 :: ## **Gokul Parashram Patil v. State of Maharashtra ((1981) 3** **SCC 331)** . It is a case wherein a single knife blow was inflicted above left clavicle - a non-vital part causing muscle deep incised wound cutting superior venacava and it was contended that the case does not fall within the ambit of Section 300 IPC. The question mooted is whether the particular injury which was found to be sufficient in the ordinary course of nature to cause death would bring the matter within the ambit of S.302 IPC and answered affirmatively. But in the peculiar circumstances involved in that case that there is a solitary blow given by the accused to the left clavicle, a non vital part, without the knowledge that he would cut superior venacava would fall outside the purview of clause thirdly to S.300 IPC. The Apex Court has also considered the proposition laid down in **Virsa Singh v. State of Punjab (AIR 1958 SC 465)** in which the question came up is with respect to a stab injury on the left thigh which had cut the femoral artery and vessels. It was held that the victim may not know about the possibility of cutting superior venacava as a result of that wound and that there is ## **Crl. Appeal Nos.697 & 768 of 2013** :: 18 :: only a single blow with a sharp edged weapon and held that the same could not be said to have been intended and that the only injury which could be regarded as intentional was the superficial wound resulting directly from the blow and the assailant could not be held guilty for the offence under S.302 IPC. But in the instant case it is not a single blow but there are altogether 18 separate blows with sharp edged weapons, out of which injury Nos.11, 12, 14, 15, 16, 17 and 18 are fatal, as opined by the Doctor, PW12, and injury Nos.15, 16 and 17 are independently sufficient to cause death in its ordinary course due to bleeding. None of these injuries are superficial in nature and hence, the ratio applied in **Gokul Parashram Patil's case (supra) and Virsa Singh's case (supra)** cannot be applied in the instant case, but it would fall under the clause thirdly to Section 300 IPC. 15. The accused persons assembled together and joined in the commission of offence by unleashing a massive attack on the victim causing 25 injuries, out of which 18 are incised ## **Crl. Appeal Nos.697 & 768 of 2013** :: 19 :: wounds, seven are fatal in nature and four are independently sufficient to cause death in its ordinary course. The earlier two episodes were also spoken by PW6, PW14 and PW15. In the second episode also accused No.1 unleashed threat on the victim and others on account of the incident happened by 9.00 p.m. at the public road in front of the Mariyammancovil. It is thereafter all the accused formed themselves and confronted with the victim and stopped his vehicle. They were carrying various weapons with them and unleashed indiscriminate attack on him resultantly, he succumbed to the injuries on the same day. The fact that all of them were carrying various weapons with them and caused the victim to stop his vehicle and unleashed attack on him indiscriminately and participated in the attack in connection with the earlier incident happened would sufficiently show the formation of an unlawful assembly with the common object of commission of the offence. A premeditated commission of offence is well evident in furtherance of the common object of unlawful assembly and hence, does not fall under any of the Exceptions to Section 300 IPC. All of ## **Crl. Appeal Nos.697 & 768 of 2013** :: 20 :: them are being participants of the crime with the common object in an unlawful assembly would bind them for the actions and hence all of them are liable for the offence punishable under Sections 302, 148 and 341 IPC and hence deserves no interference to the finding of guilt of accused Nos.1 to 3 and 5 to 7 under Sections 302, 148 and 341 IPC and the conviction thereunder. 16. The sentence awarded strikes a proper balance between the mitigating and aggravating circumstances. Hence deserves no interference by this Court. Both the appeals dismissed. **Sd/A.M. Shaffique Judge** **Sd/P. Somarajan Judge** ahz/