FISAL @ KABRU, HARIZ @ CHAKKARA, SUNEER @ KUKULACHA, SHEFIK @ IKKILI v. STATE OF KERALA

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE P.BHAVADASAN & THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V WEDNESDAY, THE 27TH DAY OF JANUARY 2016/7TH MAGHA, 1937 CRL.A.No.1211 of 2011 --------------------------AGAINST THE JUDGMENT IN SC 420/2009 of ADDL.SESSIONS COURT (ADHOC-II), ERNAKULAM DATED 24-05-2011 APPELLANTS/ACCUSED: -------------------------- 1. FISAL @ KABRU, S/O.SHAHIR, C.C.III/64, ERAVELISIDE, MATTANCHERY VILLAGE. 2. HARIZ @ CHAKKARA, S/O.ABDUL RAHMAN, C.C.VII/1016, MEPPARAMBU, CHAKKAMADAM, MATTANCHERY VILLAGE. 3. SUNEER @ KUKULACHA, S/O.MUHAMMED C.C.III/606, MANAGALASSERY PARAMBU, MATTANCHERY VILLAGE. 4. SHEFIK @ IKKILI, S/O.SHEREEF, C.C.V/295, BSS ROAD, MATTANCHERY VILLAGE. BY ADVS.SRI.B.RAMAN PILLAI SRI.R.ANIL SRI.SUJESH MENON V.B. SRI.SHYAM ARAVIND SRI.T.ANIL KUMAR SRI.MANU TOM RESPONDENT: ---------------- STATE OF KERALA REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA (CRIME No.123/06 OF MATTANCHERY POLICE STATION) BY SRI. K. K. RAJEEV, PUBLIC PROSECUTOR. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 27-01-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## P. BHAVADASAN & RAJA VIJAYARAGHAVAN V. JJ - - - - - - - - - - - - - - - - - Crl.Appeal No. 1211 of 2011 - - - - - - - - - - - - - - - Dated this the 27[th] day of January, 2016. ## JUDGMENT ## P. Bhavadasan, J. As many as thirteen persons were put in the dock and tried for the offences punishable under Sections 143, 147, 148, 341, 324, 307 and 302 read with Section 149 of Indian Penal Code and Section 27 of the Arms Act. Among them, accused Nos. 5, 6, 7 and 9 to 13 were acquitted of all charges levelled against them and accused Nos. 1 to 4 were acquitted of the offences under Sections 143, 147, 148 read with Section 149 of I.P.C. and Section 27 of the Arms Act. However, they were unfortunate to have been found guilty of the offence under Sections 341, 324, 307 and 302 read with Section 34 of I.P.C. Those accused who were found guilty were convicted for the said offences and they were sentenced to undergo simple imprisonment for one month each for the Crl.Appeal.1211/2011. 2 offence under Section 341 I.P.C., one year each for the offence under Section 324 I.P.C., five years each and to pay fine of Rs.5,000/- each, in default, to undergo simple imprisonment for one month each for the offence under Section 307 I.P.C. and to undergo imprisonment for life each and to pay fine of Rs.10,000/- each, in default, to undergo simple imprisonment for two months each for the offence under Section 302 I.P.C. 2. Aggrieved by the conviction and sentence, accused Nos. 1 to 4 have come up in appeal. It is significant to notice that State has not preferred appeal as against the persons who were acquitted of all the charges or filed appeal against the acquittal of accused Nos. 1 to 4 for the offences under Sections 143, 147, 148 read with Section 149 of I.P.C. and Section 27 of the Arms Act. Therefore, this appeal is confined to the legality of the conviction and sentence for the offences under Sections 341, 324, 307 and 302 read with Section 34 of I.P.C. as against accused Nos. 1 to 4. Crl.Appeal.1211/2011. 3 ## 3. The prosecution story runs thus: On the date of the incident, i.e., on 2.4.2006, according to the prosecution case, PWs. 1, 3 and the deceased Shahanas @ Shaiju, at about 10.45 p.m. were passing along Puthiyaroad in the autorickshaw driven by PW2 and they were waylaid by accused Nos. 1 and 2 and several others identifiable on sight. The passengers in the autorickshaw were attacked with dangerous weapons. To be precise, the incident occurred at Marakadavu junction. According to the prosecution case, accused Nos. 1 and 2 waylaid the autorickshaw and one of them exhorted to kill the passengers in the autorickshaw and they had surrounded the autorickshaw in which PWs 1 and 2 and the deceased were travelling. The first accused took out a sword stick and attacked the deceased sitting on the left extreme side of the autorickshaw. PW1, who was sitting on the extreme right was attacked by accused Nos. 1 and 2. Repeated assaults were mounted by other assailants. PW1 suffered injuries on both his limbs, right 4 Crl.Appeal.1211/2011. upper limb and lower limb also. Having suffered injuries, they shrieked aloud in pain. The people who gathered at the spot hearing the cries of the deceased and PW1, tried to remove them to the hospital. By that time, the deceased had fallen down from the autorickshaw and seeing people gathering at the place, the assailants took to their heels. Someone along with those who had gathered at the spot removed the deceased in an autorickshaw to Gautham Hospital from where he was referred to Medical Trust Hospital and on his way to Medical Trust Hospital, he breathed his last. PW1, the injured witness, was taken in an autorickshaw to Gautham Hospital from where he was referred to Specialist Hospital. PW26 examined PW1 and issued Ext.P19 wound certificate. PW19 issued Ext.P9 certificate. On getting information about the incident, PW29 reached the Specialist Hospital, Ernakulam and recorded Ext.P1 First Information Statement furnished by PW1. On the basis of the said FIS, crime was registered as per Ext.P22 FIR by PW29. Investigation was taken over by PW30. 5 Crl.Appeal.1211/2011. On the basis of the death intimation received from the Medical Trust Hospital, he went over to the said hospital and conducted inquest over the body of Shahanavas @ Shaiju. The inquest report is Ext.P24. The dress found on the body are recovered as per Ext.P25 mahazar and they are M.Os. 25, 26, 27 and 28 series. He visited the place of occurrence and prepared Ext.P2 scene mahazar as per which he seized M.O.3 series, M.Os.9, 10 glass pieces found at the place of incident. Body of Shaiju was sent for autopsy. Postmortem was conducted by PW23, who issued Ext.P18 certificate. PW30 during investigation seized KL7 N 9480 autorickshaw in which the injured were alleged to have been travelling as per Ext.P7 mahazar. PW28, the Assistant Motor Vehicle Inspector inspected the autorickshaw and issued Ext.P21 report. He had also the samples collected from the vehicle with the aid of PW24. The mahazar prepared for the said purpose is Ext.P26. He also had by Exts. P27 and 28 seized the clothes worn by PWs2 and 3. Accused Nos. 1 to 4 were arrested at 6.30 p.m. Crl.Appeal.1211/2011. 6 from Ernakulam South Railway Station and the memos prepared for the said purpose were marked as Ext.P29 series. After having given other clothes to wear, the clothes worn by them were seized as per Exts.P12 to P15 mahazars and those dresses are marked as M.Os. 11 to 18. On the basis of the confession statement of four of the accused persons, weapons were recovered as per Exts. P6, P3, P4 and P5 mahazars. The relevant portion of the confession statements are Exts. P6(a), P3(a), P4(a) and P5(a). Ext.P31 is the report allegedly submitted by PW30 reporting the death of Shahanavas. As per Ext.P32 he sought to incorporate Section 324 I.P.C. and Section 27 of the Arms Act. For correction of the date shown in the inquest report, he preferred Ext.P33 report. Accused Nos. 5 and 6 were arrested on 19.4.2006 and their clothes were recovered as per Exts.P16 and P17 and those clothes were marked as M.Os. 19 to 22. 11[th] accused surrendered before the Investigating Officer and his arrest was recorded. His clothes were recovered as per Ext.P34 Crl.Appeal.1211/2011. 7 mahazar and they were M.Os. 23 and 24. Accused Nos. 8, 12 and 13 surrendered and their arrest was recorded on 16.5.2006 and the clothes worn by them were seized as per Exts.P35 and 36. The clothes worn by accused No.12 were marked as M.Os.29 and 30 and the clothes worn by accused No.13 were marked as M.Os. 31 and 32. Likewise accused Nos. 9 and 10 appeared in the police station and their arrest was also recorded and accused No.7 had surrendered before the court. PW30 filed requisition before the court to have the blood groups of the accused persons identified. Ext.P37 series is the report. He also had the forwarding note prepared and sent to court to have the materials produced before the court sent for chemical analysis and obtained Exts.P38, P39 and P40 reports. He also filed a detailed report showing the correct address of the accused persons. He also noticed that in the evening of the date of incident, at a place called Puthiyaroad, there was a scuffle between the accused and their friends and deceased and PW1 and a crime has been Crl.Appeal.1211/2011. 8 registered as Crime No. 124 of 2006. PW30 recorded statements of witnesses, completed investigation and laid charge before court. 4. The court before which final report was laid took cognizance of the offences. Finding that the offences are exclusively triable by a court of sessions committed the case to Sessions Court, Ernakulam. The said court made over the case to Additional Sessions Court, (Adhoc-II), Ernakulam for trial and disposal. The latter court, on receipt of records and on appearance of the accused, framed charge for the offences punishable under Sections 341, 324, 307, 302, 143, 147, 148 read with Section 149 of the Indian Penal Code and Section 27 of the Arms Act. To the charge read out to them, the accused pleaded not guilty and claimed to be tried. The prosecution therefore had PWs1 to 31 examined and had Exts. P1 to P45 marked. Exts.D1 to D12 were marked on the defence side. M.Os. 1 to 32 were identified and marked. After the close of the prosecution evidence, the accused were questioned under Crl.Appeal.1211/2011. 9 Sections 313 Cr.P.C. All of them denied the incriminating circumstances put to them. The first accused maintained that he is innocent. The same stand was taken by accused Nos. 2 to 4. Finding that the accused could not be acquitted under Section 232 Cr.P.C., they were asked to enter on their defence. They chose to examine DWs.1 to 3. 5. The court, mainly relying on the evidence of PWs1 to 3 and recovery of weapons on the basis of the confession statement said to have been furnished by accused Nos. 1 to 4, found that the involvement of accused Nos. 1 to 4 had been established beyond reasonable doubt, while the evidence against the rest of the accused was found to be very brittle and not sufficient to come to the conclusion that they had any role to play in the incident. As already stated, accused Nos. 5 to 13 were acquitted of all charges and accused Nos. 1 to 4 were convicted for the offences mentioned above and sentenced as already mentioned followed. 10 Crl.Appeal.1211/2011. 6. Assailing the conviction and sentence of accused Nos. 1 to 4, learned counsel appearing for the appellants, Shri.B.Raman Pillai, contended that an impartial and dispassionate assessment of the evidence will clearly reveal that the incident had not occurred as alleged by the prosecution and there has been embellishments and developments at each stage of the case. Learned counsel did not dispute the proposition that PW1 is an injured witness and his evidence is entitled to considerable weight provided his evidence is found to be without blemish. Assailing his evidence, it is pointed out that there are contradictions between his versions in FIS and in his evidence. In Ext.P1 FIS, the acts were attributed to accused Nos. 1 and 2 and in his evidence, he attributed the acts to various persons. According to the learned counsel, the court below was not justified in accepting the evidence of PW1 since being a witness prone to embellishments and developments, his Crl.Appeal.1211/2011. 11 evidence is of no worth at all. It is significant to notice, according to the learned counsel, that PW1 has categorically stated that all the assailants are very familiar to him and they hail from the same locality. However, strangely enough, he does not mention their names in Ext.P1 FIS and so also to the doctors both in Gautham Hospital and Specialist Hospital later. In fact in Ext.P1, he named only two of the assailants and says that accused Nos. 5 to 8 are identifiable on sight. Learned counsel contended that if as a matter of fact as is now spoken to by PW1, if he was familiar with the accused persons, he would have mentioned their names in the FIS. His non-mentioning of their names in Ext.P1 goes a long way in showing that he has been implicating persons at his will. 7. Assailing the evidence of PW2, learned counsel pointed out that he makes an omnibus statement regarding identification of accused Nos. 1 to 4. Even according to the prosecution, when the attack was unleashed by the assailants, he ran away from the place to return long thereafter. Crl.Appeal.1211/2011. 12 Therefore, he could not have seen any part of the incident and he could not say about the presence of accused Nos. 1 to 4 and his evidence can be taken only with a pinch of salt. His version regarding the incident is also inconsistent with the version given by PWs. 1 and 3. 8. Learned counsel for the appellants pointed out that the court below was greatly impressed by the evidence of PW1 regarding the presence of accused Nos. 1 to 4 and that is the sole reason for holding them guilty. The court below found that his version gets corroboration from the evidence of PWs2 and 3 as regards the presence of the accused and the acts committed by accused Nos. 1 to 4. It can be seen from a reading of the evidence that he has developed the case at a later stage and his evidence is unworthy of credit. If his evidence is eschewed, there is no material to come to the conclusion that accused Nos.1 to 4 were present at the spot. 9. The story put forward by PW3, according to the learned counsel, is stranger than fiction. He sits in the middle Crl.Appeal.1211/2011. 13 of the two injured persons, PW1 on his right side and the deceased on his left side. Repeated attacks were being mounted on the victims from either side. He escapes unhurt. In all probability he was not present at the place and the court below was not justified in accepting a portion of his evidence for the corroboration of evidence given by PW1. It is not clear as to how he managed to escape unhurt and even according to the prosecution, the vehicle was surrounded by the assailants and they were repeatedly inflicting blows and cuts on both the deceased and PW1. It is also significant to notice, according to the learned counsel, that the two injured persons are his close friends and he simply keep watching the assault. As regards what transpired thereafter, there is little consistency between his evidence and the evidence of PW2. Learned counsel went on to point out that the evidence of PW3 cannot be said to be clinching, cogent or convincing enough so as to inspire the mind of the court. Crl.Appeal.1211/2011. 14 10. Assailing the recovery of the weapons alleged to have been used by the accused, learned counsel pointed out as per the evidence of PW30, recovery was made on the basis of the confession statement of accused Nos. 1 to 4. Learned counsel also pointed out that if the initial discovery is on the basis of the alleged confession statement said to have been given by accused No.1, in respect of the other recoveries, it could not be said that Section 27 of the Evidence Act could be attracted as all the weapons were recovered as per the respective confession statements from the very same place from a drainage system. All the weapons were lying near to each other in the same place and in respect of the recovery on the basis of the confession statement of accused No.4, it is criticized on the ground that the investigating officer does not speak about the confession statement which led to the recovery. Learned counsel went on to point out that it is sad that such an incident had taken place but that is no ground to find scapegoats for the incident. According to the appellants, 15 Crl.Appeal.1211/2011. the assault seems impossible for the reason that the prosecution story is that the deceased as well as PW1 received several injuries while sitting in an autorickshaw when the accused mounted an attack on them. Relying on the evidence of PW23, the doctor who conducted autopsy, it was contended that the deceased was attacked both from his right and left sides and the postmortem certificate (Ext.P18) shows as many as 48 injuries, most of which are incised wounds, some on the inner thigh also. Learned counsel pointed out that by no stretch of imagination, the assault of the nature resulting in such injuries could be inflicted if the incident had occurred as alleged by the prosecution. In short the contention is that may be an incident had occurred in which Shahanavas @ Shaiju lost his life and PW1 had injured. But the incident has not occurred as alleged by the prosecution. If that be so, the benefit of doubt should certainly be granted to the accused. On these grounds, it is contended that the conviction and sentence as against accused Nos. 1 to 4 cannot stand. Crl.Appeal.1211/2011. 16 11. Learned Public Prosecutor per contra contended that the court below has analysed the evidence in meticulous detail and found the evidence of PWs 1 to 3 to be acceptable to find accused Nos. 1 to 4 guilty of the offences made mention of in the earlier part of this judgment. Learned Public Prosecutor pointed out that this Court shall not forget the fact that PW1 is an injured witness and going by the decision reported in Abdul Sayeed v. State of M.P. ((2010) 10 SCC 259), State of Uttar Pradesh v. Naresh ((2011) 4 SCC 324) and Atmaram v. State of Madhya Pradesh (AIR 2012 SC 1957). The evidence of an injured witness stands on a higher pedestal and his evidence is entitled to considerable weight unless it is shown that there is material contradiction which makes his evidence vulnerable. Learned Public Prosecutor emphasized that it will be unwise to have this Court to disbelieve the version given by an injured witness. Learned Public Prosecutor, relying on the decisions reported in Bhargavan v. State of Kerala (AIR 2004 SC 1058) and Pattipati Venkaiah v. Crl.Appeal.1211/2011. 17 State of Andhra Pradesh (AIR 1985 SC 1715) contended that the mere non-mentioning of the names of the assailants to the doctor does not help the accused and that is not the purpose of the wound certificate. The wound certificate is prepared for a particular purpose and that need not mention the names of the assailants. 12. Learned Public Prosecutor pointed out that the criticism levelled against Ext.P1 FIS is without any basis whatsoever. The state of mind of the victim at the relevant time cannot be lost sight of and if he has not furnished every meticulous detail at the time of giving FIS, he cannot be found fault with. Presence of accused Nos. 1 and 2 are specifically mentioned in Ext.P1 and he has also stated that there are other assailants along with them. At that point of time he was in deep pain and had suffered several injuries and he could not be expected to give meticulous picture of the incident. If he has omitted to give some details, it could not be given undue importance. Non-mentioning of certain details in Crl.Appeal.1211/2011. 18 Ext.P1 cannot be used to discredit the version given by PW1. For the said purpose, the situation under which he was placed at the time of giving Ext.P1 FIS cannot be lost sight of. Unless it is shown that there are material contradictions evidencing that the testimony of PW1 is totally false, it is imprudent on the part of the court to discard his evidence on the basis of minor contradictions and inconsistencies. 13. The presence of accused Nos. 1 to 4 is spoken to by PW1 and also PW3 and even the FIS makes mention of presence of accused Nos. 1 and 2. It could not be said that they were introduced by the prosecution to serve their own purpose. 14. Learned Public Prosecutor pointed out that the mere fact that PW3 has not suffered any injuries by itself is not sufficient to suspect his evidence and his presence cannot be suspected in the light of the evidence furnished by PWs 1 and 2 and also since his name finds a place in Ext.P1 FIS, a document which came into existence at the earliest point of Crl.Appeal.1211/2011. 19 time, i.e. it came into existence within hours of the incident. It is significant to notice, according to the learned Public Prosecutor, that Ext.P1 FIS reached the court by about 10.20 a.m. on the very next day of the incident. 15. According to the learned Public Prosecutor, if at all there is inconsistency in the evidence, relying on the decisions reported in Chimanbhai v. State of Gujarat (AIR 1983 SC 484) and State of Himachal Pradesh v. Mast Ram (AIR 2004 SC 5056), it is pointed out that ocular evidence gets precedence over medical evidence. Evidence of PWs 1 to 3 cannot be brushed aside. Learned Public Prosecutor pointed out that the evidence of PWs 1 to 3 may suffer from minor infirmities, but one cannot forget the horrendous manner in which the incident had occurred and it is imprudent on the part of the court to analyse the incident in seriatum regarding the injuries inflicted by each of the accused. At any rate, according to the learned Public Prosecutor, the lower court has chosen to accept the evidence of PWs 1 to 3 and also chosen Crl.Appeal.1211/2011. 20 to rely on the recovery of weapons on the basis of the confession statement made by accused Nos.1 to 4 and there is no reason to interfere with the finding as against accused Nos. 1 to 4. In short, the contention is that the conviction and sentence of accused Nos. 1 to 4 need not be interfered with. 16. Before going into the veracity of the testimony of PWs1 to 3 and accepting their evidence, one fact has to be noticed. Thirteen persons were arrayed as accused and they were attributed with the commission of the offences under Sections 143, 147, 148, 324, 307 and 302 read with Section 149 of Indian Penal Code and Section 27 of the Arms Act. It is significant to notice that accused Nos.5 to 13 have been acquitted of all the charges including the one under the Arms Act. As far as accused Nos. 1 to 4 are concerned, they were acquitted of the charges under Sections 143, 147, 148 read with Section 149 of I.P.C and Section 27 of the Arms Act. There is no appeal as against the acquittal of accused Nos. 1 to 4 of those offences. Therefore, the finding of the court 21 Crl.Appeal.1211/2011. below that there was no such offence made out against accused Nos. 1 to 4 has become final and the acquittal cannot be interfered with. 17. In short, this Court is called upon to consider the veracity of the finding regarding the offence as found by the lower court as against accused Nos. 1 to 4. 18. Before going into the question of involvement of accused Nos. 1 to 4 and the acts committed by them, it will be useful to ascertain the cause of death of Shaiju. That Shaiju was travelling in the autorickshaw driven by PW2 on the date of incident and also that he had suffered injuries in the incident which had occurred at about 10.45 p.m. on the date of the incident at a place called Marakkadavu cannot be disputed. He was first removed to Gautham Hospital from where he was referred to Medical Trust Hospital. On the way, he breathed his last. PW30 conducted inquest over the body of Shahanas @ Shaiju and Ext.P2 is the inquest report. Autopsy was conducted by PW23 and Ext.P18 is the Crl.Appeal.1211/2011. 22 ## postmortem report. It shows the following injuries: - “1. Lacerated wound 1x0.5x0.3cm on right half of upper lip 0.5cm inner to angle of mouth at its inner aspect(corresponding to the right upper canine) 2. Contusion 1x0.5cm on left side of face 1cm below and outer to left eye. 3. Abrasion 5x5cm involving the bridge and alae of nose. 4. Contusion 8x4cm horizontal muscle deep on forehead just to the left of midline, 1cm above eye brow. 5. Contusion 7x3.5cm horizontal on forehead 1cm above right eye brow, 0.5cm to right of midline. 6. Contusion 3x3cm on left temporalis muscle just above the root of left arm. 7. Contusion of scalp 4x3x0.5cm on top of head involving the right tempero parietal area 5cm above right ear. - Skull was intact. Brain showed thin film of subarachnoid haemorrhage over both temporo parietal lobes. 8. Incised wound 6x3x3cm slightly oblique on back of left forearm, lower outer end 5 cm Crl.Appeal.1211/2011. 23 below the level of elbow. 9. Incised wound 12x5.5x4cm oblique on back and outer aspect of left fore arm. Lower inner end was 6.5cm below the level of elbow with a tailing 4 cm at its upper outer end with cut fracture fragmentation of outer long bone (radius) underneath. 10. Abrasion 4.5x0.2x0.5cm on back of left forearm extending obliquely downwards from the lower margin of injury No.9. 11. 12. Incised wound 5x2x1.5cm oblique on front of left forearm, lower outer end 9 cm above wrist joint with tailing 1.5cm from the lower outer and 10.5cm on the upper inner end. Incised wound 7.5x2x2 cm horizontal on back of left forearm 4.5cm above the level of wrist, cutting the inner long bone of forearm underneath. 13. Incised wound 2.5x0.5x0.5cm oblique on outer aspect of left forearm with lower front end at 4 cm above the level of wrist with a tailing 3.5cm from the upper back end along the upper margine of injury No.1. 14. Incised wound 6.5x2x1.5cm oblique on back of left wrist and forearm. With lower outer end at the level of wrist with a tailing 3cm Crl.Appeal.1211/2011. 24 downward and outward. The wrist joint underneath was cut and fractured. The superficial veins of back of forearm were severed. 15. Incised wound 4x1.5x0.8cm oblique on back of left hand, the upper outer end was at the level of wrist with tailing 2 cm severing the superficial veins of back of forearm. ## 16. 17. 18. 19. 20. Incised wound 2.5x1.5x1cm horizontal on front of left ring finger 1.5cm below its root cutting the tendons underneath. Incised wound 2.5x1.3x1cm slightly oblique on front of left middle finger 1.2cm below its root, cutting the tendons underneath. Incised wound 2x0.5x0.5cm oblique on front of left index finger 2cm below its root. Incised wound 3x1 cm skin deep oblique on front of left index finger reflecting a skin flap downwards and outwards, 0.5cm below injury No.18. Incised wound 2.5x1x0.3cm on back of left middle finger 6.5cm below its root. 21. Incised wound 3x1x1cm oblique on outer aspect of right forearm, upper outer end 12cm below elbow with tailing 2cm on the upper end and 6.5cm on the lower end. Crl.Appeal.1211/2011. 25 22. Incised wound 5.5x0.5x0.5cm horizontal on front of right forearm 4cm above wrist. 23. Incised wound 5.5x2x1.5cm horizontal the front aspect of right index and middle finger partly amputating the middle finger. 24. Incised wound 2.5x1x0.5cm on the front of right little finger 0.7cm below its root. 25. Abrasion 1x1cm on back of chest 10cm to the left of midline and 23cm below left shoulder. 26. Abrasion 7x0.5cm on front of trunk oblique lower inner end 6.5cm to the left of midline and 23cm above the level of pubic symphysis. 27. Abrasion 2x.05cm on front of abdomen 8cm to the left of midline and 16cm above the level of pubic symphisis. 28. Abrasion 6x3.5cm vertical on front of abdomen 10cm to the right of midline and 8cm above the level of pubic symphysis. 29. Abraded contusion 2x1cm muscle deep on front of left thigh 16cm above knee joint. 30. Abrasion 2x0.6cm oblique on front of left thigh 4cm below and outer to injury No.29. 31. Abrasion 8x0.5cm horizontal on front of left Crl.Appeal.1211/2011. 26 thigh 2cm below injury No.30. 32. Incised wound 3.5x2x0.5cm oblique on outer aspect of left thigh, lower front end 7cm above the level of knee. 33. Abrasion 2.5x0.5cm on front and outer aspect of left thigh and knee in line with injury No.32. 34. Incised wound 1.5x1x0.3cm on front of left thigh 6cm above knee. 35. Abrasion 8x0.5cm on left thigh and knee directed downward and outward, in line with injury No.34. 36. Abrasion 13x0.2cm horizontal on front of left thigh 2 cm above knee. 37. Abrasion 1x1cm on front of left thigh 5cm above knee. 38. Multiple small abrasions over an area 6x4cm on front of left knee leg. 39. Incised wound 2x1x0.5cm horizontal on front of left leg 6cm below knee. 40. Abrasion 6x0.5cm horizontal on front of left leg 10cm below knee. 41. Incised wound 3x1x0.5cm horizontal on front of right thigh 21 cm above knee. 42. Incised wound 9x3x5cm oblique in front of right thigh and knee with cut fracture of knee Crl.Appeal.1211/2011. 27 joint. 43. Incised wound 5.5x2x2.5cm horizontal oblique on inner aspect of right thigh 3cm above the level of knee. 44. Incised wound 3x0.5x0.5cm horizontal on front aspect of right thigh 2.5cm above knee. 45. Incised wound 2.5x1x1.5cm horizontal on outer aspect of right thigh 5cm above knee. 46. Incised wound 2x1x0.5cm on outer aspect of right leg 5cm below knee. 47. Incised wound 2.5x1.5x0.5cm on inner aspect of right leg 6.5cm below knee. 48. Abrasion 5.5x4cm on front of scrotum genital organs were intact”. PW23, who conducted autopsy, has given the opinion as to the cause of death as multiple injuries suffered by the victim. She was also of the opinion that the said injuries could have been inflicted by the weapons of the nature recovered as M.O. 1 series. 19. The evidence of PW30, the Investigating Officer, taken along with Ext.P18, one is no doubt that Shahanas @ Shaiju died as a result of the inflicted injuries. It is a clear Crl.Appeal.1211/2011. 28 case of homicide. 20. The next question that arises for consideration is whether the prosecution is successful in establishing that it was due to the acts committed by accused Nos. 1 to 4 which resulted in the death of Shahanas and also resulted in the injuries caused to PW1. 21. The main item of evidence relied on by the prosecution consists of the testimony of PWs 1 to 3, the evidence of PW26 who prepared Ext.P19 wound certificate and recoveries effected by PW30. 22. PW1 is the author of Ext.P1 FIS. The incident is said to have occurred at about 10.45 p.m. on 2.4.2006 and Ext.P1 FIS was laid at 2.45 a.m. on 3.4.2006. Ext.P1 authored by PW1 shows that he, the deceased and PW3 were travelling in the autorickshaw driven by PW2 and when they reached near Marakkadavu junction, accused Nos. 1 and 2 and about 5-8 persons identifiable on sight armed with weapons surrounded the autorickshaw and mounted an attack on them. PW1 in Crl.Appeal.1211/2011. 29 Ext.P1 stated that accused Nos. 1 and 2 and about 5 - 8 persons after surrounding the autorickshaw, one of them exerted to do away with the passengers in the autorickshaw and attack was unleashed. Accused No.1 is said to have used a sword stick to attack the deceased. Ext.P1 shows that thereafter PW1, who was sitting on the right side of the autorickshaw was also attacked and he warded off several attacks causing injuries on upper limb. Going by Ext.P1 furnished by PW1, due to the injuries caused to PW1 and deceased, they let out cries and that attracted the attention of people residing nearby. Seeing the people coming to the spot, it is stated that the accused took to their heels. Ext.P1 further mentions about PW1 and the deceased being taken to the hospital and the treatment given to him. He also speaks about the motive for the attack. 23. The evidence of PW1 is criticized on th ground that he is prone to embellishments and developments and he is not a reliable witness. On the other hand, learned Public 30 Crl.Appeal.1211/2011. Prosecutor would say that he is an injured witness and his evidence is entitled to considerable weight and cannot be brushed aside on the ground of minor inconsistencies and contradictions in his evidence. To assess the evidence of PW1, it becomes necessary to refer to his evidence in some detail. 24. The fact that PW1 was travelling in the autorickshaw along with PW3 and deceased cannot of much dispute. The contention by the learned counsel for appellants was regarding the manner in which the incident took place and the embellishments and developments said to have been made by PW1 at the time of giving evidence. 25. PW1 at the time of examination in court says that the incident took place at 10.45 p.m. just before reaching Marakkadavu junction and a short distance away from the slaughter house. He, the deceased and PW3 had hired the autorickshaw of PW2 to come to Marakkadavu. PW1 was sitting on the extreme right side and the deceased on the extreme left side with PW3 in the middle. Before the 31 Crl.Appeal.1211/2011. autorickshaw reached the slaughter house, it was surrounded by the accused. He then says that accused No.1 attacked the deceased with a sword and caused cut injuries on both upper and lower limbs. He says that the first accused attacked the deceased with a sword and thereafter he was attacked by the rest of the assailants. As far as he is concerned, he submits that accused Nos. 9, 4, 5, 10, 12 and 7 mounted attack on him. The weapons used by these assailants are swords, pipes and reapers. He would attribute injury on his legs to the first accused. The fourth accused is said to have inflicted injuries on his right hand and left elbow. PW1 would say that receiving the injuries, both he and the deceased fell down. He says that the deceased fell on the road from the autorickshaw and he in the autorickshaw. PW1 then says that he was removed to the Gautham Hospital first and thereafter to the Specialist Hospital. Since the deceased Shaiju could not be managed in Gautham Hospital, he was referred for better management to Medical Trust Hospital. However, he was unfortunate and Crl.Appeal.1211/2011. 32 did not survive for long. 26. We shall come to the acceptability of the evidence of PW1 little later after referring to the evidence furnished by PWs 2 and 3. 27. PW2 is admittedly the person who was driving the autorickshaw on the ill fated day. He says that he knows about the incident in which Shaiju lost his life and PW1 was injured. As regards the time and date of incident, his version is similar to that of PWs 1 and 3. However, he would say that before reaching the Marakkadavu Junction, the auto was surrounded by three to four persons. According to him, the autorickshaw automatically was switched off and that enabled the assailants to attack the passengers. PW1 and the deceased were attacked with an iron pipe and also with a weapon like knife. He identified the weapons in court. In the deposition recorded by the court below, it is seen mentioned that the witness had identified accused Nos.1 to 4 in the dock. It is not clear from the narration found in the deposition whether it was 33 Crl.Appeal.1211/2011. by sight or by name, the identification was made. However, PW2 is definite that he did not bother to find out about the other assailants. He is said to have ran to a place called 'Kappalandimukku' and sought the help of Nazir, Jabbar and Mazood. They returned to the place of occurrence and found the deceased lying in the ground. PW3 was seen standing at the place and PW1 was found lying in the vehicle. Even though PW1 requested PW2 to start the vehicle and take them to hospital, the vehicle did not start. PW2 says that he went to fetch a car and when he returned to the place, none was found at the place of incident. According to his information, a person by name Shabeer had taken PW1 to hospital. He would also say that he got the information that Shaiju was also taken to hospital. 28. Next comes PW3. He is admittedly the person who was travelling with PW1 on the ill fated day. He claims to have been sitting in the middle of two victims namely, PW1 and the deceased. According to him, at an earlier point of Crl.Appeal.1211/2011. 34 time, on the same day i.e. at about 7 p.m CW4 Shefique was attacked by the accused persons and he was taken to the hospital at Karuvelippadi by PW3, PW1 and Shaiju. Since the hospital was overcrowded, Shefique was taken to Fort Kochi Hospital. The patient was admitted in the hospital and according to PW3, they were apprehensive of the attack by the accused persons and therefore they left the place. According to PW3, he hired an auto to go to his house and PW1 and the deceased also returned in the same auto. PW3 would say that before reaching the slaughter house, the accused persons surrounded the auto and he heard someone asking to do away with the passengers. That prompted the first accused to mount an attack on the deceased with a sword. His blow was warded off by the deceased. He would say that the second accused also used a sword to attack the deceased. He further says that accused Nos.4 and 7 beat PW1 with a reaper. Accused Nos.3 and 9 are said to have used an iron pipe to attack PW1. He then very strangely says that the deceased and Crl.Appeal.1211/2011. 35 PW1 were repeatedly attacked by all the assailants. He also says that PW2 run away from the place and fetched Jabbar, Shabeer and two other persons whose names are not familiar. He would say that one Navas and another person whose name is not familiar mounted Shaiju from the auto. PW3 too joined them. There was pool of blood inside the auto. PW3 would say that the wound of deceased Shaiju was tied with torn lunki and by mounting the auto which came along the road, they went to Gautham Hospital. PW3 would say that in the meanwhile, PW1 was also taken to hospital by CWs 5 and 6. Both the injured were taken to hospital at Ernakulam and PW3 would say that since his clothes were soaked with blood, he has not gone anywhere. He changed his clothes and along with one Jiyos, he went to the hospital on his motor vehicle and on the way, he heard that Shaiju was no more. He identified all the accused persons in court. 29. The main attack on the evidence of PW3 is that it is a miracle that he could escape without being attacked 36 Crl.Appeal.1211/2011. when repeated assaults were being mounted on PW1 and deceased Shaiju by the accused persons indiscriminately. Going by P18 and the evidence of PW23, the deceased received injuries both on the left side and the right side. It may be borne in mind that the deceased was sitting on the right side of autorickshaw. PW1 makes mention of only the first accused having mounted attack on the deceased. PW1, in Ext.P1 First Information Statement attributes acts of aggression to first and second accused against him. 30. It is significant to notice that, at the time of evidence, PW1 says that the accused are quite familiar to him and are residents in his neighbourhood. If that be so, especially when PW1 had suffered injuries at the hands of such persons, it is inconceivable that he would not have named all the assailants in Ext.P1 First Information Statement. It is significant to notice that going by the wound certificate, he was conscious at the time when he was in the hospital and except for saying the cause of injury, name of the assailants Crl.Appeal.1211/2011. 37 are conspicuously absent in Ext.P10. Even assuming that non mention of names of assailants to the doctor is of no consequence as has been held in various decisions, the fact that PW1 is definite that the assailants were known to him even previously cannot be lost sight of. If that be so, it is extremely difficult to believe that he would not have named the assailants in Ext.P1. Even assuming that he did not have named the assailants, he would have easily stated that the assailants were known to him and were familiar to him. The conspicuous absence of this aspect in Ext.P1 makes the evidence of PW1 open to doubt. 31. It is true that the involvement of the first and second accused in the incident are specifically mentioned in Ext.P1. Coming to the evidence of PW1, even at the time of giving evidence in court, he does not impute any overt act to third accused. In his evidence which we have already referred to, he attributes the attack on the deceased with sword by first and second accused and thereafter says that all the other Crl.Appeal.1211/2011. 38 assailants followed first and second accused. 32. There is some difficulty in accepting the above version given by PW1. One cannot omit to note that the incident had taken place in an autorickshaw and it is inconceivable that more than one person going by the limited space available could have caused hurt to the deceased and PW1 at the same point of time. 33. This Court is not forgetting the fact that going by Ext.P7 mahazar and the report filed by PW28 namely, Ext.P21, the autorickshaw is seen to have suffered damages including a slash on the metal portion on which the seat of the driver is affixed. Learned Public Prosecutor pointed out that that shows that the attack could have been mounted from the front portion of the auto and that explains the various injuries suffered to the deceased. Even assuming that the injuries could have been inflicted from both the right side and the left side, one must remember that going by the prosecution version, there are 13 persons who simultaneously mounted Crl.Appeal.1211/2011. 39 attack on the deceased and PW1. 34. It is here the fact that the escape of PW3 from the scene assumes importance. Admittedly, PW3 was sitting in the middle, deceased on his left side and PW1 on the right side. The evidence of PW23 regarding the injuries suffered by the victim is to the effect that the injuries could have been inflicted both from the left side and from the right side i.e. from the side where the victim was sitting and also from the right side where PW1 was sitting. One cannot omit to note the nature of injuries suffered by the victim. He has suffered injuries on his inner part of the body and as many as 48 injuries were there and some were incised wounds. It is difficult to visualize a situation where such an attack could have mounted while the deceased was sitting in the autorickshaw. One must remember that the space available for the assailants to enter into the autorickshaw and to mount an attack is very very limited and the possibilities of such acts are very remote. Crl.Appeal.1211/2011. 40 35. The evidence of PW1 becomes suspicious in the light of the fact that he, at the time of evidence, says that the accused persons are very familiar to him. Even assuming that his state of mind could not have been normal at the time of filing Ext.P1 First Information Statement, it is too difficult to believe that PW1, had he known the assailants, could not have named them at the first instance. At any rate, he has not stated the names of first and second accused and characterized the rest of the assailants as persons who would be identifiable on sight. It was probably this reason which prompted the court below not to accept his evidence as against accused Nos.5 to 13. 36. As rightly pointed out by the learned counsel for the appellants, at the time of evidence, PW1 makes considerable changes regarding his stand about the attack mounted on him and the deceased and he attributes cut injuries suffered by the deceased to both the first and second accused. In Ext.P1, the acts said to have been committed by Crl.Appeal.1211/2011. 41 the fourth accused is conspicuously absent. 37. It is also significant to notice that PW1, while giving Ext.P1 First Information Statement, attributes injuries caused to him only to first and second accused. At the time of evidence, he comes forward with his version that apart from others, fourth accused also attacked him. However, his evidence is totally silent regarding any act committed by the seventh accused. It is significant to notice that in Ext.P1 First Information Statement, he has stated about the involvement of first and second accused alone. There is difference in the nature of acts said to have been committed with reference to his testimony in court. A reading of the evidence of PW1, at any rate, establishes the involvement of first and second accused. 38. The evidence of PW2 is of general nature. He, even according to the prosecution case, did not remain at the place on incident when the vehicle was surrounded by the assailants. He escaped from the place of incident. However, 42 Crl.Appeal.1211/2011. he gives an omnibus statement that accused Nos.1 to 4 were present. The court below accepted that portion of evidence regarding accused Nos.1 to 4 and found corroborated the evidence of PW1 in this regard to the extent of involvement of accused Nos.1 to 4 are concerned. 39. When we read the evidence of PW2 as a whole, it is not consistent with the evidence of PWs 1 and 3 regarding the incident and what transpired after the incident was over. It may be recalled that PW2 did not remain at the spot once the assailants had surrounded the vehicle and going by his own evidence, he left the auto and escaped and he returned much later after the incident and found PW1 lying inside the vehicle and the deceased lying outside. This version given by PW2 is inconsistent with the version given by PW3 as to what had happened to the deceased and PW1 after the incident. According to PW3, even after suffering injuries, deceased remained in the auto, and with the aid of an auto which came along at the relevant time, he and a person whose name he did 43 Crl.Appeal.1211/2011. not know removed the deceased to Gautham Hospital. Apart from the inconsistencies regarding the position of deceased and PW1, the evidence of PWs 2 and 3 differ regarding removal of injured and deceased from the place of incident, i.e., PW2 would say that when he reached the place of incident after the incident was over, he found the deceased lying outside the autorickshaw and PW1 lying inside the vehicle. He then says that he went to fetch a car since the auto was not functioning and from the Kappalandimukku he found two persons pushing his auto. He then says that he saw PW1 mounted then in a car by Shabeer to the hospital. This version given by him differs from his earlier version wherein he says that by the time he returned with a vehicle, there was none. His omnibus statement that accused Nos.1 to 4 were present also cannot be taken as such. It is not clear from his testimony as to how he had identified accused Nos.1 to 4, whether by name or by sight. Anyhow, one fact is very clear. That is, he had not seen any portion of the attack either on the Crl.Appeal.1211/2011. 44 deceased or on PW1 while they were in the autorickshaw. His evidence to the extent of presence of accused Nos.1 to 4 alone was accepted. It is also open to serious doubt. 40. As far as PW3 is concerned, as rightly pointed out by the learned counsel for the appellants, it looks like a miracle as to how he escaped unhurt while the assailants repeatedly inflicted injuries on the persons sitting on either side of the autorickshaw. It is not possible to understand how he could get out from the auto. However, his presence cannot be disputed in the sense that his name finds a place in Ext.P1 First Information Statement which was given soon after the incident. But his evidence regarding the acts committed by the accused persons is open to serious doubt. He gives evidence as if sitting in the autorickshaw while the assailants mounted repeated attack on PW1 and deceased. Probably, he was standing outside the auto seeing the incident and then simply named some persons as assailants. It is significant to notice that he implicated accused Nos.7 and 9 also whose Crl.Appeal.1211/2011. 45 participation was seriously doubted by the court below and found against the prosecution. 41. Coming to the acts committed by accused Nos.3 and 4, the only evidence is what is furnished by PW1. His evidence with reference to Ext.P1 has already been referred to above. However, it is significant to notice that PW1, at the time of evidence, does not attribute any act to third accused. His implication of fourth accused with reference to an act against him finds a place in his testimony which is conspicuously absent in Ext.P1. As has already been noticed, it is difficult to believe that if actually the fourth accused had inflicted any injuries on PW1, he would not have named the said person in the First Information Statement even though First Information Statement need not be an encyclopedia of facts. Without considering the fact that the assailant was very well known to him and very familiar to him, it is difficult to believe that he has omitted to name him in the First Information Statement. Crl.Appeal.1211/2011. 46 42. The court below placed reliance on the evidence of PW2 and the recovery of various weapons at the instance of accused Nos.1 to 4. As far as the involvement of first and second accused are concerned, there can be no doubt since their names appear in the First Information Statement. It could not be said that they were falsely implicated because their names find a place in Ext.P1 First Information Statement which came into existence within few hours after the incident. 43. As regards recovery of weapon as against accused Nos.3 and 4 are concerned, they say that the recovery was effected on the basis of the confession statement said to have been furnished by the first accused. Evidence in that regard is furnished by PW30. However, learned counsel for the appellants may be justified in his submission that the weapon alleged to have been used by the first accused is a sword and the weapon recovered at the place of incident on the basis of the confession statement is an iron rod. The involvement of the first accused cannot be doubted merely because of the fact Crl.Appeal.1211/2011. 47 that his name finds a place in Ext.P1 First Information Statement which, as already stated, came into existence soon after the incident. 44. What is significant is that after the recovery made on the basis of the confession statement said to have been given by the first accused, the relevant portion is marked as Ext.P6(a), recovery at the instance of accused Nos.2, 3 and 4 was also made at the same place. That cannot be accepted as discovery under Section 27 of Indian Evidence Act for the simple reason that once place of concealment is disclosed as per the testimony furnished by the first accused, if rest of the weapons have been concealed in the same place at the instance of other accused persons, that cannot be used against them since the place from where the discovery was made on the basis of the confession statement said to have been given by the first accused is no longer a concealed place. In the light of this fact, recovery effected on the basis of confession statement said to have been furnished by accused Crl.Appeal.1211/2011. 48 Nos.2 to 4 cannot be given undue importance and significance. 45. Even though there may be some substance in the contention raised by the learned counsel for the appellants that it is difficult to conceive of a situation where the deceased and PW1 could have suffered injuries on the sitting position inside the auto, the fact remains that the involvement of first and second accused is clearly established by the evidence of PW1 and also mentioning of their name in Ext.P1 whose presence is also spoken to by PWs 2 and 3. It is true that the overt act attributed to them differs from the evidence of PW1 and also from Ext.P1. But, as already noticed, the fact that their presence and mounting of attack on PW1 and the deceased cannot be disputed stands clearly established by Ext.P1 and from the evidence of PWs 1 to 3. 46. In the case of accused Nos.3 and 4, evidence is not very convincing enough and also not cogent inspiring confidence in the mind of court to hold them guilty of the Crl.Appeal.1211/2011. 49 offences alleged against them. Their participation, as already stated, if true, could have been mentioned by PW1 in Ext.P1 itself for the reasons already made mention of. Further, the actual state of act committed by them is spoken to by PW1 differently. 47. It is also significant to notice that even though PW3 makes mention of the overt act committed by the third accused it clubs the act of third accused along with seventh accused while acquitting the charges levelled against him finding that evidence of PW3 as against seventh accused is not reliable. 48. Even though it is not possible to find out the specific injuries having inflicted by first and second accused, it cannot be disputed that 48 injuries were found on the body of the deceased. It is immaterial to find out the specific injuries inflicted by the respective accused and this Court has already found that the injuries inflicted by accused Nos.1 and 2 have been established. A mathematical assessment of specific 50 Crl.Appeal.1211/2011. injuries caused by first and second accused is not possible in the light of the evidence given by PWs 1 and 3, who speak about repeated assault. This Court, for cogent and convincing reasons, finds that evidence is convincing as against first and second accused only and they are therefore responsible for the injuries which caused the death of Shaiju and also injuries to PW1 and that the third and fourth accused cannot be held liable for the injuries caused to the deceased and PW1. 49. For the above reasons, we are unable to accept the finding of the lower court that the evidence on record is sufficient to hold that accused Nos.1 to 4 are guilty of the offences alleged against them. We are of the view that there is want of evidence as regards third and fourth accused to hold them guilty of the offences under Sections 341, 324, 307 and 302 read with Section 34 of Indian Penal Code. For the above reasons, this appeal is partly allowed. The conviction and sentence passed against the third and fourth accused for the offences under Sections 341, 324, 307 Crl.Appeal.1211/2011. 51 and 302 read with Section 34 of Indian Penal Code are set aside. It is held that the prosecution has not succeeded in establishing the case against them beyond reasonable doubt and so they stand acquitted of the above charges. The third and fourth accused shall be released forthwith unless wanted in any other case. We confirm the conviction and sentence passed against the first and second accused. The bail bond executed by the first accused shall stand cancelled and he shall be taken into custody forthwith to undergo the sentence. P.BHAVADASAN JUDGE RAJA VIJAYARAGHAVAN V JUDGE sb/smp.