Kannan @ Suseelan and Mohandas v. State of Kerala

Crl. Appeal No 805/2007 : 1 : IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE JOHNSON JOHN TUESDAY, THE 4[TH] DAY OF JUNE 2024 / 14TH JYAISHTA, 1946 ## CRL.A NO. 805 OF 2007 JUDGMENT DATED 09.05.2007 IN SC NO.357 OF 2005 OF ADDITIONAL SESSIONS COURT (ADHOC), FAST TRACK COURT-I, THRISSUR ## APPELLANTS/ACCUSED: - 1 KANNAN @ SUSEELAN S/O. CHAKKERI SUBRAN, NJALIKULAM, VELLANI,KARALAM. - 2 MOHANDAS S/O. KOKATHUMPARAMBIL RAMAN, NJALIKULAM, -DO-. BY ADV SRI.BIJU .C. ABRAHAM ## RESPONDENT/COMPLAINANT: STATE OF KERALA REP. BY PUBLIC PROSECUTOR, ERNAKULAM. SRI. VIPIN NARAYAN - SR. PUBLIC PROSECUTOR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 31.05..2024, THE COURT ON 04.06.2024 DELIVERED THE FOLLOWING: Crl. Appeal No 805/2007 : 2 : **JOHNSON JOHN, J.** --------------------------------------------------------Crl. Appeal No. 805 of 2007 -------------------------------------------------------Dated this the 4[th] day of June, 2024. ## **JUDGMENT** This appeal is filed by accused Nos. 1 and 4 in S.C. No. 357 of 2005 on the file of the III Additional Sessions Judge, (Adhoc) Fast Track Court No.I, Thrissur challenging the conviction and the sentence passed against them for the offence under Section 307 r/w 34 IPC. 2. The prosecution case is that the accused persons, 4 in number, in furtherance of their common intention to cause the death of PW9, wrongfully restrained PW9 near Njalikkulam temple at Vellayani on 16.4.2003 at about 8.30 a.m. and accused Nos. 1, 2 and 4 beat PW9 with iron pipe on his head and legs and thereby, caused grievous hurt sufficient in the ordinary course of nature to cause his death and they are thereby alleged to have committed the offence as aforesaid. 3. After commital and appearance of the accused persons before the trial court, charge was framed for the offence under Sections 341, 324, 326 and 307 r/w 34 IPC and when the charge was read over and explained to the accused persons, they pleaded not guilty. From the side of the prosecution, PWs 1 to 12 were examined and Exhibits P1 to Crl. Appeal No 805/2007 : 3 : P13 and MOs 1 and 2 were marked. No evidence was adduced from the side of the defence. 4. After hearing both sides and considering the oral and documentary evidence on record, the learned Additional Sessions Judge, by the impugned judgment dated 09.05.2007 found accused Nos. 1 and 4 guilty of the offence under Section 307 r/w 34 IPC, convicted and sentenced them to undergo rigorous imprisonment for 5 years each and to pay a fine of Rs.15,000/- and in default of payment of fine, to undergo simple imprisonment for 3 months each. 5. Heard Sri. Biju C. Abraham, the learned counsel for the appellants and Sri. Vipin Narayan, the learned Public Prosecutor and perused the records. 6.The point that arises for consideration in this appeal is whether the conviction entered and the sentence passed against the accused is legally sustainable. 7. The learned counsel for the appellants argued that the trial court has not properly appreciated the evidence and that except PW9, all other occurrence witnesses turned hostile to the prosecution and that PW9 failed to properly identify the accused/appellants in dock and therefore, the accused/appellants are entitled for the benefit of Crl. Appeal No 805/2007 : 4 : reasonable doubt. 8. PW2 deposed that he has not witnessed the occurrence alleged in this case. According to PW2, he has not stated to the police that he saw the occurrence. PW3 also deposed that he has not witnessed the occurrence. However, PW3 stated that he saw PW9 lying in an injured condition near Vellayani Temple 9. PW4 is a witness to Exhibit P3 seizure mahazar. Even though PW4 admitted his signature in Exhibit P3, he would say that he has not witnessed the recovery of the weapons. PW5 is also a witness to Exhibit P3 seizure mahazar. But, he also deposed that he has not witnessed the recovery of the iron pipe. PWs 6 and 7 are witnesses to Exhibit P4 seizure mahazar. But, they deposed that they have not witnessed the recovery of the iron pipe or the second accused handing over the iron pipe to the police. 10. The de facto complainant is examined as PW9. He deposed that the accused are known to him and that the incident occurred at 8.15 a.m., on 16.04.2003 on the road near Vellayani Siva temple. According to PW9, while he was proceeding to his workshop in cycle, Pratheep wrongfully restrained him and the 4[th] accused asked him as to why the witness along with his brother beat his son-in-law and then the first accused beat him with a stick on his right leg. The 4[th] accused beat Crl. Appeal No 805/2007 : 5 : him with an iron rod on his left shoulder. The third accused hit him with something on his head and then he fell on the road and thereafter, he was taken to West Fort Hospital, Thrissur. PW9 identified his signature in Exhibit P8, First Information Statement. He also identified MO1, iron rod, and MO2, iron pipe, as the weapons used by the accused persons. 11. In cross examination, PW9 stated that he told the police that Pratheep wrongfully restrained him. According to PW9, several persons witnessed the occurrence. PW9 denied the suggestion that he sustained the injuries when he fell down from the bicycle and that he is falsely deposing against the accused persons because of previous enmity. In another part of the cross examination PW9 stated that when he was wrongfully restrained, there were 3 accused persons and 2 other accused persons came there subsequently. 12. PW1 is the doctor who examined PW9 at West Fort Hospital, Thrissur on 16.04.2003 and issued Exhibit P1 wound certificate noting the following injuries: 1. Lacerated wound 6 x 2 x1 cm on the forehead right side 2. Lacerated wound 4 x 2 x 1 on the left parietal area 3. contusion left shoulder posteriorly and Rt. Ankle 4. Puncture wounds over left anteriorly, proximally and directly and Rt. Leg anteriorly. Crl. Appeal No 805/2007 : 6 : As per Exhibit P1, the alleged cause was assault by 3 known people at Vellayani at about 8.30 a.m. 13. The learned counsel for the appellants cited the decisions of this Court in _**Vayalali Girishan and others v. State of kerala**_ [2016 KHC 204] and _**Manu G. Rajan and Another v. State of Kerala**_ [2021 (5) 767] and argued that PW9 only mentioned the rank of the accused persons in his deposition and there is nothing in the deposition of PW9 to show that the witness specifically pointed out any of the accused by their name or specific feature and the trial court has also not made any endeavour to individually fix the identity of each of the accused. 14. In this connection, the learned counsel for the appellants pointed out that as per Exhibit P8 First Information Statement, the assailants are Suseelan, Mani, Sudeesh and Pratheep. In Exhibit P8, it is specifically stated that it was Pratheep S/o Prabhakaran, who wrongfully restrained PW9. Even though, it is mentioned in Exhibit P8 that one Mohanan also beat him with an iron rod on the shoulder, there is nothing in Exhibit P8 to show that the 4[th] accused, Mohandas, was among the accused persons at the time of occurrence. As per the final report filed by PW8, Circle Inspector, Kannan @ Suseelan, Mani @ Sunil, Sudeesh and Mohandas are arrayed as accused Nos. 1 to 4. The complicity and presence of the accused at the scene of the crime can be established Crl. Appeal No 805/2007 : 7 : only if the witness specifically identifies the particular accused as the person who was involved in the crime at the time of trial and the trial court has also a duty to make specific endorsement in the deposition that the witness has specifically pointed out the accused by their name or specific feature. 15. It is well settled that the identification of the accused in court, which was conducted in an omnibus and perfunctory manner, cannot be held to be reliable to establish the complicity of the accused persons. The deposition of PW9 clearly shows that the witness merely mentioned the rank of the accused persons without mentioning their name or specific features and without pointing out each one with reference to their overt acts and in such a situation, I find that the evidence of PW9 is insufficient to prove the charge against the accused/appellants, especially in view of the fact that the name of the accused in Exhibit P8, First Information Statement, does not tally with the evidence of PW9 before the court. 16. Further, it is not in dispute that there was previous enmity between PW9 and the accused persons and therefore, the possibility of false implication cannot be ruled out. Therefore, in the absence of any other evidence to corroborate the evidence of PW9 regarding the identity of the assailants and in view of the omnibus and perfunctory manner of Crl. Appeal No 805/2007 : 8 : identification at the time of trial, I find that the accused/appellants are entitled for the benefit of reasonable doubt and therefore, the appeal is liable to be allowed. In the result, the appeal is allowed and the conviction and sentence imposed on the appellants/accused Nos. 1 and 4 in S.C. No. 357 of 2005 on the file of the Additional Sessions Judge (Fast Track Court-I, Thrissur) is set aside and they are acquitted of the offence under Section 307 r/w 34 IPC The bail bond executed by the appellants/accused Nos. 1 and 4 shall stand cancelled and they are set at liberty forthwith. sd/- **JOHNSON JOHN, JUDGE.** Rv