Noushad and others v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR** **FRIDAY, THE 12[TH] DAY OF AUGUST 2022 / 21ST SRAVANA, 1944** **CRL.A NO. 832 OF 2008** **AGAINST THE JUDGMENT DATED 09.04.2008 IN S.C.NO.140 OF 2006 OF THE I ADDITIONAL DISTRICT COURT, ERNAKULAM** ## **APPELLANTS/ACCUSED 1 TO 5:** - **1 NOUSHAD,** - **VAZHUVELIL HOUSE, CHOONDI, ERUMATHALA, ALUVA EAST VILLAGE.** - **2 SHAJI, AGED 34 YEAR, S/O. AZEEZ, FATHIMA MANZIL, CHOONDI, ERUMATHALA, ALUVA EAST VILLAGE.** - **3 NAVAS, AGED 31 YEARS, S/O. ABDUL RAHIMAN THACHAMPALLATHU HOUSE, CHOONDI, ERUMATHALA, ALUVA EAST VILLAGE.** - **4 NAZEER, AGED 33 YEARS, S/O. ABDUL RAHIMAN, THACHAMPALLATHU HOUSE, CHOONDI, ERUMATHALA, ALUVA EAST VILLAGE.** - **5 BOBY, AGED 32 YEARS, S/O. TOMY, CHEMMADATHU HOUSE, 4 CENT COLONY, CHOONDI.** ## **BY ADV SRI.KALEESWARAM RAJ** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA** **CIRCLE INSPECTOR OF POLICE, ALUVA, THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY SRI.SANAL P.RAJ, PUBLIC PROSECUTOR** 2 Crl.Appeal No.832 of 2008 **THIS CRIMINAL APPEAL HAVING COME UP FOR FINAL HEARING ON 29.07.2022, THE COURT ON 12.08.2022 DELIVERED THE FOLLOWING:** 3 Crl.Appeal No.832 of 2008 ## **JUDGMENT** This is an appeal filed under Section 374(2) of the Code of Criminal Procedure, 1973. 2. The appellants are accused Nos.1 to 5 in S.C.No.140 of 2006 before the I Additional Sessions Court, Ernakulam. They stood trial on a charge alleging offences punishable under Sections 143, 147, 148, 307 and 324 read with Section 149 of the Indian Penal Code, 1860 and under Section 27 of the Arms Act, 1959. After trial, they were convicted and sentenced for the offences under Sections 143, 147, 148, 307 and 324 read with Section 149 of the I.P.C. They were, however, acquitted of the offence under Section 27 of the Arms Act. The sentence imposed is to undergo rigorous imprisonment for two months under Section 143 of I.P.C., six months each under Sections 147 and 148 of I.P.C. and to undergo rigorous imprisonment for three years and to pay fine of Rs.2,000/- each, in default, simple imprisonment for two months under Section 307 read with Section 149 of the I.P.C. 3. The facts constituting the charge against the appellants are the following: PWs.2 and 3 are the injured. They were travelling in an 4 Crl.Appeal No.832 of 2008 autorickshaw bearing Reg.No. KL-07-B-1607 along KalamasseryNAD Road on 27.07.2002 at 9.00 A.M. The appellants came in a jeep bearing Reg.No.KL-10-B-1390 from the opposite direction. The jeep hit against the autorickshaw causing it to be turtled down. PW3, who was driving the autorickshaw, was thrown off and PW2 entangled inside. The appellants and the 6th accused who absconded and was not available for the trial came out of the jeep with swords. They have inflicted injuries to both PWs.2 and 3. The 1[st] appellant uttered to kill them and the 2[nd] appellant attacked PW3 using a sword causing injuries at his hand, legs, stomach and other parts of the body. The 2[nd] accused also had attacked PW2 using the sword, causing injuries at his left knee and other parts of the body. Other appellants also assaulted PWs.2 and 3. They did so with the intention of causing death of the injured. It was alleged that PWs 2 and 3 were attacked since they complained to police about the illegal soil mining by the 1[st] appellant and his brother. 4. The injured were immediately removed to the Ernakulam Medical Centre Hospital, where they have undergone treatment. A statement from PW2 was recorded on the same day by PW9. Based on it, Ext. P3, the crime was registered as per Ext.P8 F.I.R. After investigation, the final report was filed by PW11. 5 Crl.Appeal No.832 of 2008 In the ensued trial, PWs.1 to 11 were examined and Exts.P1 to P15 were marked on the side of the prosecution. MO1 was identified as well. During questioning under Section 313(1)(b) of the Code, the appellants claimed that they were innocent. They denied all the incriminating circumstances that appeared in evidence against them. They did not examine any witness although got marked Exts.D1 to D6. 5. Before the learned Sessions Judge, the appellants took up the contention that PWs.2 and 3 sustained injuries not in their attack, but since PW3 purposefully had hit the autorickshaw against the jeep, it capsized, thereby they sustained injuries. The antecedents of PWs.2 and 3, particularly their involvement in criminal cases as evidenced from Exts.D1 to D5, were highlighted to contend that they are not credible witnesses. Having been involved in several criminal cases, they have a lot of enemies, and therefore, they might have sustained injuries at the hands of some of such enemies. They thereby claimed innocence and sought an acquittal. 6. The learned Sessions Judge did not accept the said contention. The Sessions Court proceeded to find that evidence of PWs.2 and 3 has been corroborated by the medical evidence and 6 Crl.Appeal No.832 of 2008 recovery of MO1 under Section 27 of the Evidence Act, 1872 on the basis of the statement of the 4th appellant. The circumstances that the crime was registered immediately and the indications available at the place of occurrence, which are gatherable from the oral testimony of investigating officer, PW10, as well as the scene mahazar, Ext.P4, were also taken note of by the Sessions Judge to enter a finding that the charge against the appellant has been proved. The appellants assail the said findings in this appeal. 7. Heard the learned Counsel appearing for the appellants and also the learned Public Prosecutor. 8. PWs.2 and 3 deposed regarding the incident almost in the same terms. Brother of PW3 was admitted in the Medical Trust Hospital, following the injuries sustained in a personal attack. In order to buy blood for his treatment, PWs.2 and 3 were proceeding to the Blood Bank of the I.M.A., Aluva. When they reached the place of occurrence, a jeep came opposite and hit their autorickshaw. The autorickshaw capsized. PW3 was thrown away and PW2 fell inside. The assailants came out of the jeep. Both PWs.2 and 3 identified the appellants before the court as the members of the assailants' group. It was said that appellant no. 5 and 6th accused were wearing helmets at that time. PWs.2 and 3, 7 Crl.Appeal No.832 of 2008 however, stated that they could identify all the assailants and they duly had identified the appellants in court also. 9. It is their version that the 1[st] appellant uttered to kill them, and appellant Nos. 2 and 4 mainly had assaulted them using the sword. The other appellants also joined in the attack. They hacked using swords inflicting cut injuries to both PWs 2 and 3. PW2 was lying inside the autorickshaw and PW3 outside. Since another jeep came at that time the appellants left the scene and escaped in their jeep. 10. PW1 is the Doctor, who examined both PWs.2 and 3 at the Medical Centre Hospital, Ernakulam. He deposed in court that he examined both PWs.2 and 3 and after due examination, he had issued Exts.P1 and P2. He noticed the injuries sustained by each of them in the respective certificates. Injury sustained by PW3 as noted in Ext.P1 are the following:- 1. 5 x 4 x 2 cm laceration on the medial aspect of left hand. 2. 8 x 4 x 3 cm laceration on medical aspect of right forearm with open fracture of right ulna. 3. 2.5x 1 x 3 cm stab injury on right upper abdomen. 4. 3 x 1 cm incised wounds on right lip, right thigh, above the right knee. 8 Crl.Appeal No.832 of 2008 5. 5 x 3 cm curvilinear lacerated wound on right knee. 6. 4 x 1 cm laceration just below right knee. 7. 5 x 1 cm laceration just inferior to the above wound with open unicortical fracture of right tibia. 8. 5 x 2 cm laceration above the right ankle, with injury to anterior tibial vessels and extensor tendons of right foot. 9. 5 x 2 cm laceration on the right ankle with open right ankle joint. 10. 5 x 0.5 cm laceration on the medial aspect of right foot. 11. 6 x 2 cm laceration on distal 3[rd] of left leg with injury to anterior tibial vessels and nerve, tibialis anterior and extensor tendons of the left foot. 12. 4 x 1 cm laceration on left leg lower 3[rd] medially 6 x 1 cm laceration on the dorsum of the left foot. 13. 5 x 1 cm laceration on the medial aspect of left foot. 14. Open fractures of both tibia lower 3[rd.] Injury sustained by PW2 as noted in Ext.P2 are the following: 1. Incised wound 6 x 2 x 1 cm on the medial aspect of right wrist, with cut ulnar nerve. 2. Abrasion on left leg 3. Contusion on left leg. 4. Clawing (flexed position) of 4[th] /5[th] fingers of right hand (tendon injury) - The alleged cause mentioned in Exts. P1 and P2 is, assault by some persons with sword stick and knife. PW1 had deposed in court that he noted those injuries on the body of the respective injured. The 9 Crl.Appeal No.832 of 2008 reason for the injury as stated by PW2 was noted in the certificates. It is his opinion that such injuries could be inflicted using such weapons. 11. In order to prove the case of the prosecution, evidence of PWs.2 and 3 alone is available as direct evidence. No other occurrence witness has been examined. The learned counsel appearing for the appellants would contend that there are several contradictions and inconsistencies in their evidence, which make their credibility at stake. It is pointed out that the names of all the assailants were not stated in Ext.P3, the F.I.statement, although PW2 claimed that he had prior acquaintance with all the assailants. Both of them stated that some of the assailants were wearing helmets and that also pointed out as a reason to disbelieve the version of PWs.2 and 3 regarding the identification of the assailants at least, appellants 4 and 5. 12. The incident occurred at about 9.00 A.M. on 27.07.2002. Immediately after the incident, the people thronged there hearing the cry. When those assembled attempted to take PWs.2 and 3 in an autorickshaw to the hospital a police jeep of Flying Squad reached there. Therefore, they were taken in that police jeep to the Ernakulam Medical Centre Hospital. The injuries narrated as seen on their body above would reveal that both of 10 Crl.Appeal No.832 of 2008 them were in a trauma stage while in the hospital. It was in such a situation that Ext.P3 statement was recorded from PW2 by PW9. In that statement, PW2 failed to name all the assailants. But necessary indications to identify the assailants by naming accused Nos.1 to 3 and their brothers were there in Ext. P3. Failure to name all the assailants in Ext.P3 is not a sufficient reason to discard the case of the prosecution altogether. As held by the Apex Court in **Superintendent of Police, CBI v. Tapan Kr. Singh [(2003) 6** **SCC 175]** an FIR is not an encyclopedia of events. In Ext.P3 it was stated that the assailants other than appellants 1 to 3 and their brother were wearing helmets and they were four in number. But it was revealed that there were only six assailants. All the appellants were identified by PWs.2 and 3 before the court. 13. The said inconsistency has been pointed out by the learned Counsel to fortify his contention that both PWs.2 and 3 are not believable. As stated above, Ext.P3 was given at about 1.00 P.M. on the same day. Having sustained extensive injuries all over the body in the attack perpetrated on them at about 9.00 A.M., they were undergoing treatment in the hospital. Although PW2 was discharged after two days from that hospital, he had to undergo continuous treatment in another hospital. PW3 was in that hospital 11 Crl.Appeal No.832 of 2008 for 49 days continuously for treatment. The incident was almost a violent attack and they must have been under its shock. The version in Ext.P3 has to be appreciated taking into account the said aspects. The inconsistency occurred in Ext.P3 while narrating the number of assailants cannot, therefore, be a reason to disbelieve them. Hence, I am of the view that the said contention of the appellants cannot be accepted. 14. PW1 stated that the injuries noted on the body of PWs.2 and 3 could be caused by an attack using a sword and knife. MO1 is a sword recovered by PW10 at the instance of the 4[th] appellant. PW10 deposed that at about 10.30 A.M. on 01.08.2002 he arrested the 4[th] appellant and on the basis of his statement, he was taken to the place pointed out by him which was beside the Kalamassery-HMT Manalikullu Road and, MO1 sword was recovered from among the bushes there, as pointed out by him. It was seized by preparing Ext.P5 mahazar. Of course, PW6, a witness to this document although admitted that he has signed the same, denied to have seen the recovery of MO1. However, the evidence of PW10 stands unimpeached. Therefore, his version that MO1 was recovered on the basis of the statement given by the 4[th] appellant while in custody can be believed. PWs.2 and 3 identified MO1 as 12 Crl.Appeal No.832 of 2008 the sword used by the 4[th] appellant to attack them. Therefore, recovery of MO1 on the basis of the statement of the 4[th] appellant proves the fact that he has used that weapon to inflict injuries to PWs.2 and 3. 15. Ext.P4 is the scene mahazar. It was prepared by PW10, the investigating officer. PW4 is an attestor to it. Ext.P7 is the site plan prepared by Village Assistant, PW8. From Ext.P4 it is seen that there were blood stains at the place of occurrence. The autorickshaw was seen lying capsized there. The said facts also corroborate the oral testimonies of PWs.2 and 3 with reference to the incident. Medical evidence, recovery evidence and the indications from the scene of occurrence thus lend sufficient support to the evidence of PWs.2 and 3. The version in Ext.P3, First Information Statement, regarding the incident, which came soon after the incident, also corroborates what PW2 had deposed in court as provided in Section 157 of the Evidence Act, 1872. Hence, their evidence can well be believed. 16. The appellants are not strangers to PWs.2 and 3. It is in evidence that the brother of PW3 sustained injuries at the hands of the 1[st] appellant. Of course, the assailants other than appellant Nos.1 to 4 were wearing helmets at that time. PWs.2 and 3 13 Crl.Appeal No.832 of 2008 categorically stated that despite wearing helmets they could identify the assailants, being persons having prior acquaintance. The identification of the assailants by PWs.2 and 3 before the court therefore cannot be said to be faulty even in the absence of an identification parade. Hence I hold that the prosecution has succeeded in proving beyond doubt that the appellants were the persons, who attacked PWs.2 and 3 and causing them injuries. I do not find any reason to interfere with the findings of the Additional Sessions Judge in this regard. 17. Extensive and serious injuries were sustained by both the injured. More serious were the injuries of PW3, who had to be in the hospital under treatment for 49 days. The injuries sustained by PW3 are serious in nature. PW1 opined that had timely medical treatment not been provided, the injuries sustained by both the injured would have resulted in their death. Injuries were there on the abdomen as well. When such severe injuries were inflicted at vital parts of the body and all the appellants were privy to the attack, there cannot be any doubt that the intention of the appellants was nothing but to do away with the injured. Therefore, the conviction of the appellants by the Additional Sessions Judge, for the offences under Sections 143, 147, 148, 307 and 324 read 14 Crl.Appeal No.832 of 2008 with 149 of the IPC does not require any interference. I confirm the conviction of the appellants. 18. PW3, Ibrahim, through a learned counsel submitted an affidavit before this Court with the following assertions:- “That I am the injured in S.C.No.140/2006 of the I Addl. Sessions Court, Ernakulam. The above appeal is filed against the order of conviction in the above case. Presently myself and the appellants had talked with each other regarding the dispute and issue pertaining to the above case and the above SC 140/2006 is fully and finally settled and thereby I am ready to condone the illegal acts and deeds done by the accused/appellants herein. And out of court we entered into an amicable settlement and I have received adequate compensation towards the injury and damages sustained to me. And thereby I am not intending and desirous to get the accused punished and to have a verdict of conviction and sentence of imprisonment against the accused. If this Hon'ble Court permits I am ready to give pardon to the accused/appellants and thus to provide an opportunity for them for repentance and refinement through out their whole life. Hence I hereby humbly submits that this Hon'ble Court may be pleased to pass a favourable order to the accused/appellants in the interest of justice.” 19. PW3 is now detained in Central Prison and Correctional Centre, Viyyur. It is submitted that he is undergoing imprisonment 15 Crl.Appeal No.832 of 2008 following a conviction and sentence. PW2 is reported no more now. The learned counsel appearing for the appellants would submit that in the light of the said affidavit of PW3 and taking into account the fact that PW2 is no more, the appellants in fact are entitled to get an acquittal. 20. The Apex court took a consistent view in a slew of decisions that, ordinarily, a non-compoundable offence cannot be allowed to be compounded. If the parties have settled the dispute and the victim does not want to proceed with the criminal prosecution of the accused, the constitutional courts in appropriate cases can quash the proceedings. But the Apex Court cautioned that such a remedy can be resorted only very sparingly and only on taking into account all the aspects ( **See Narinder Singh and others v. State of Punjab and another [(2014) 6 SCC 466], Nanda Gopalan v. State of Kerala [(2015) 11 SCC 137]** and **Ramgopal and another v. State of Madhya Pradesh and another [(2021) 5 KLT 601 (SC** ) **]** ). 21. Considering the facts and circumstances of the case, I am of the view that this is not a fit case where the proceedings can be quashed in the light of the settlement as seen from the affidavit of PW3 in the exercise of the powers of this Court under Section 16 Crl.Appeal No.832 of 2008 482 of the Code. However, the affidavit filed by PW3 can be taken into account to decide whether any interference is required to the sentence. 22. The appellants were sentenced to undergo rigorous imprisonment for a period of three years for the offence under Section 307 of the I.P.C., besides various lesser terms of sentence for the other offences. Taking into account the period lapsed by now after the date of occurrence, the age of the appellants and the fact that PW3 came forward to condone and grant pardon to the assailants, the period of substantive sentence of three years for the offence under Section 307 of the I.P.C. is reduced to a sentence for a period of one year rigorous imprisonment. Sentences for the other offences are maintained as such. The period of substantive sentence shall run concurrently. The appeal is allowed in part to that extent. The appellants-accused Nos.1 to 5 shall surrender before the I Additional Sessions Court, Ernakulam, on 19.09.2022 for the execution of the sentence. **Sd/-** ## **P.G. AJITHKUMAR, JUDGE** dkr