Noushad and others v State of Kerala

``` CRL.A NO. 417 OF 2006 ``` ``` 1 ``` # **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH THURSDAY, THE 9[TH] DAY OF DECEMBER 2021 / 18TH AGRAHAYANA, ``` ## **`1943`** ## **`CRL.A NO. 417 OF 2006`** ## **`AGAINST THE JUDGMENT IN SC 466/2002 OF PRINCIPAL ASSISTANT`** ## **`SESSIONS JUDGE, NORTH PARAVUR`** ## **`APPELLANTS:`** - `1 NOUSHAD, S/O IBRAHIM, KANJIRAPPARAMBU VEEDU,, VEDIMARA, PARAVOOTHARA KARA, PARAVOOR TALUK.` - `2 VINOD, S/O.HASSAN KANJIRAPPARAMBU VEEDU, VEDIMARA, PARAVOOTHARA KARA,, PARAVOOR TALUK.` - `3 ZAKKIR @ ABU, S/O.HANEEFA THOPPILPARAMBU VEEDU, VEDIMARA, PARAVOOTHARA KARA,, PARAVOOR TALUK.` - `4 KAMARUDHIN ,S/O.ABDUL KHADER, THOPPILPARAMBU VEEDU,, VEDIMARA, PARAVOOTHARA KARA,, PARAVOOR TALUK.` - `5 SHAHUL HAMEED ,S/O.KASIM THOPPILPARAMBU VEEDU, VEDIMARA, PARAVOOTHARA KARA,, PARAVOOR TALUK.` - `6 SUDHIR @ SHAJI S/O.PAREED, MADLODIPARAMBU,, THOPPILPARAMBU VEEDU,, VEDIMARA, PARAVOOTHARA KARA,, PARAVOOR TALUK.` ``` BY ADV SRI.S.RAJEEV ``` ## **`RESPONDENT/COMPLAINANT:`** ``` STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, (CRIME NO.94/01 OF PARAVOOR POLICE STATION). ``` ``` SRI SANAL P RAJ,PP ``` ``` THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 09.12.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` CRL.A NO. 417 OF 2006 ``` ``` 2 ``` ## JUDGMENT This appeal has been filed by accused Nos.1 to 6 in S.C.No.466/2002 on the file of the Principal Assistant Sessions Judge, North Paravur, challenging the judgment dated 18.2.2006, convicting them under Sections 143, 147, 148, 341, 324 and 326 r/w. 149 IPC. 2. The prosecution case in short is that on 3.3.2001 at 5.30 pm, the accused formed an unlawful assembly and in prosecution of the common object of the assembly, they wrongly restrained PW5 and assaulted him with MOs1 to 4 deadly weapons with an intention to kill him and thereby committed the offence. 3. Immediately after the incident, PW5 was taken to KMK Hospital, North Paravur where he was examined by PW8 who issued Ext.P6 wound certificate. After giving first aid, he was referred to Medical Centre Hospital, Ernakulam where he ``` CRL.A NO. 417 OF 2006 ``` ``` 3 ``` was treated by PW6 who issued Ext.P4 discharge certificate. PW15, the Head Constable, Paravur Police Station, went to the Medical Centre Hospital at midnight on the date of the incident and recorded Ext.P3 first information statement of PW5. On the basis of Ext.P3, PW15 registered Ext.P12 FIR. PW13, the Circle Inspector of Police, Vadakkekkara Police Station, took up the investigation on the same day. He went to the scene of occurrence and prepared Ext.P1 mahazar. He conducted initial part of the investigation. PW14, the Circle Inspector of Police, North Paravur, took up the investigation from PW13 on 3.8.2001. On 9.10.2001 he arrested the accused. He also seized the motor cycle belonging to the 4[th] accused, allegedly used for the commission of the offence. He recovered MOs 1 to 4 consequent to the disclosure statement given by the 1[st] accused, while in police custody as per Ext.P8 seizure mahazar. He completed the investigation and filed final report before the Magistrate. The learned Magistrate, after complying the statutory formalities committed the case to stand trial to the ``` CRL.A NO. 417 OF 2006 ``` ``` 4 ``` court of Sessions. 4. On receipt of summons, the accused appeared at the court below. After hearing both sides, the court below framed charge against the accused under Sections 143, 147, 148, 341, 323, 324, 326 and 307 r/w 149 of IPC. The charge was read over and explained to the accused who pleaded not guilty. 5. The prosecution examined PWs 1 to 15 and marked Exts.P1 to P12. MOs 1 to 4 were identified. On the side of the defence, Exts. D1 to D5 were marked. 6. Considering the evidence on record, the court below found the accused guilty for the offence punishable under Sections 143, 147, 148, 341, 324 and 326 r/w 149 of IPC and they were convicted for the said offence. The accused were found not guilty for the offence under Sections 323 and 307 r/w 149 IPC and they were acquitted for the said offence. Challenging the conviction and sentence, the accused preferred this appeal. 7. I have heard Sri.Dheerendrakrishnan, the learned ``` CRL.A NO. 417 OF 2006 ``` ``` 5 ``` counsel for the appellants and Sri.Sanal P.Raj, the learned Public Prosecutor. 8. The learned counsel for the appellants impeached the findings of the court below on appreciation of evidence and resultant finding as to the guilt. The learned counsel submitted that PWs 5 and 9, whose evidence were heavily relied on by the court below, are the interested witnesses and that the independent witnesses examined as PWs 10 and 11 did not support the prosecution. The counsel further submitted that the evidence of PWs5 and 9 are full of contradictions and omissions. The counsel also submitted that there is no dock identification, especially, that of the accused Nos.2 to 4 and 6. The counsel added that the court below ought not to have relied on the evidence of PW9 inasmuch as no part of his evidence were put to the accused when they were examined under Section 313 Cr.P.C. Lastly, the counsel submitted that at any rate, the substantive sentence imposed by the court below is excessive. 9. The learned Public Prosecutor, on the other hand, ``` CRL.A NO. 417 OF 2006 ``` ``` 6 ``` supported the findings and verdict handed down by the court below and argued that necessary ingredients of Sections 143, 147, 148, 341, 324 and 326 r/w. 149 IPC had been established and the prosecution has succeeded in proving the case beyond reasonable doubt. 10. As already stated, PWs 5 and 9 are the ocular witnesses. PW5 is the injured. He is the first informant also. Ext.P3 FI statement was marked through him. He is a government servant working as UD Clerk at the Scheduled Caste Development Office at Vypinkara. He is residing at Paravur. He deposed that he used to go to his office by bus from Paravur town and he usually takes his bike for his conveyance from his house to Paravur town and he passes through the place of occurrence, namely Parassery of Vedimara. He further deposed that on 3.3.2001 as usual, in the evening, he reached Paravur town by bus from Vypinkara. He took his motor bike which was kept near the private bus stand, Paravur and proceeded to his house. On the way, PW9 accompanied him. When they ``` CRL.A NO. 417 OF 2006 ``` ``` 7 ``` reached the place of occurrence, the accused Nos.2 to 5 came in front of them in two bikes and the 1[st] accused joined them at the site. He further deposed that thereafter all the accused wrongfully restrained him by stopping their motor bikes in his front. The accused Nos.1 and 5 were carrying iron rods and others were carrying cricket stumps. He further deposed that while he was getting down from his motor bike, the 1[st] accused assaulted him with iron rod and caused injuries on his left knee. He also deposed that the 5[th] accused caused injuries on his right knee with a stick. He added that other accused also caused injuries on him with sticks. He further deposed that, thereafter accused Nos.3 and 4 caught hold on his both hands and accused Nos.2 and 6 caught hold on his legs. On hearing the hue and cry, some of the neighbours came to the spot and on seeing them, the accused escaped from the spot in their motor bikes. He further deposed that he was thereafter taken to KMK Hospital and from where he was referred to Medical Centre Hospital, where he was treated as an inpatient for 12 days. He ``` CRL.A NO. 417 OF 2006 ``` ``` 8 ``` has identified specifically accused Nos.1 and 5 at the court. He has also identified Mos 1 to 4 weapons. PW9 is the eye witnesses to the occurrence. He is the nephew of PW5. He gave evidence in tune with the evidence given by PW5. He identified all the accused at the court as well as MO1. 11. PW8 is the doctor who examined the injured at 5.30 pm. on the date of incident. The wound certificate issued by him was marked as Ext.P6. The injuries sustained by PW5 have been mentioned in Ext.P6. PW8 deposed that the nature of injuries is grievous. She also deposed that all the injuries are possible as alleged by the prosecution. The allegation noted by PW8 in Ext.P6 is assault. PW6 is the doctor, who treated PW5 at the Medical College Hospital, Ernakulam. Ext.P4 is the discharge summary. The injuries are mentioned in Ext.P4. It includes fracture of (L) patella and open fracture of both bones of (L) leg. PW8 opined that fracture of leg and patella is grievous in nature and those injuries are possible as alleged. Mos 1 to 4 were shown to both doctors and they deposed that ``` CRL.A NO. 417 OF 2006 ``` ``` 9 ``` those injuries are possible with material objects. PW8 further deposed in cross examination that all the injuries shown in Ext.P4 are not possible due to a single assault. 12. PWs 5 and 9 were cross examined in length by the learned counsel for the appellants, but nothing tangible could be extracted from their evidence to create any shadow of doubt that they are not the truthful witnesses. PWs 5 and 9 clearly deposed the manner in which the accused attacked PW5 and caused injuries on him. They gave reliable, consistent and credible version of the crime. The learned counsel for the appellants submitted that the very presence of PW9 itself is doubtful. The learned counsel highlighted that in Ext.P3 first information statement, the version of PW5 was that he alone was travelling in the bike and when he reached the place of occurrence, the accused attacked him. Whereas, the evidence of PWs 5 and 9 is that both of them together travelled in the bike and when they reached the place of occurrence, they were voluntarily restrained by the accused and PW5 was assaulted. ``` CRL.A NO. 417 OF 2006 ``` ``` 10 ``` The learned counsel further highlighted the statement of PW5 in the first information statement that PW9 reached the spot on hearing the hue and cry. It is true that such discrepancy is there. But, the first information statement was given by PW5 immediately after the incident at the time when he was brutally attacked and not in a stable state of mind. At any rate, PWs 5 and 9 at the court gave consistent evidence as to the manner in which they came to the spot and the accused attacked them. It is trite that the evidence of the injured witness has to be given much weightage. Where a witness to an occurrence, has himself/herself been injured in the incident, the testimony of such witness is generally considered to be very reliable as he/she is a witness, that comes with a built-in guarantee of his/her presence in the scene of the crime and is unlikely to spare the actual assailant in order to falsely implicate someone. The said legal proposition has been upheld by the Apex Court of India in a catena of decisions. In State of Uttar Pradesh V. Naresh and Others [(2011) 4 SCC 324], it was held that the ``` CRL.A NO. 417 OF 2006 ``` ``` 11 ``` testimony of injured witness must be given due weightage. No vital contradictions or material omissions were brought out in the evidence of PWs 5 or 9. They deposed the manner in which the accused attacked PW5 and the nature of the weapon used by them, especially accused Nos.1 and 5 and part of the body of PW5 whereupon the injuries were inflicted by the accused. They identified Mos 1 to 4 as well. The evidence of the injured and occurrence witnesses gets corroboration from the medical evidence of PWs 6 and 8 discussed above. Both doctors have clearly deposed that the injuries sustained by the accused are grievous in nature and those injuries could be caused by using MO1 to MO4. Thus, I am of the view that the medical evidence also supports the oral evidence adduced by the prosecution. 13. The next piece of evidence relied on by the prosecution is the recovery of Mos 1 to 4 consequent to the disclosure statement made by the first accused while in police custody. The learned counsel for the appellants submitted that ``` CRL.A NO. 417 OF 2006 ``` ``` 12 ``` the evidence regarding recovery cannot be relied on inasmuch as the independent witness examined during the recovery did not support the prosecution. It is true that the independent witness PW4 did not support the prosecution. However, the evidence of PW14, the investigating officer coupled with Exts.P8 and P8(a) would show that while in police custody, the accused gave disclosure statement that MO1 used for the commission of the offence was dumped in a yard and if he were taken there, he will show the place where MO1 was dumped. PW14 deposed that based on the said statement and as led by the 1[st] accused, he along with the 1[st] accused went to the place where MOs1 to 4 were stated to be dumped and when they reached the said place, the accused showed MOs1 to 4 to him which he seized as per Ext.P8 mahazar. MOs1 to 4 were identified by PW14. This evidence falls within the purview of Section 27 of the Evidence Act as against the 1[st] accused. 14. Thus, the oral testimony of PWs 5, 9 and the medical evidence discussed above as well as the evidence regarding ``` CRL.A NO. 417 OF 2006 ``` ``` 13 ``` recovery of MOs1 to 4 could be safely relied on to prove the incident. 15. The learned counsel for the appellants vehemently argued that there is no identification of the accused Nos. 2 to 4 and 6 and hence, the conviction as against them is not sustainable. In support of his submission, the learned counsel relied on two decisions of this Court; Vayalali Girishan and others v. State of Kerala (2016 KHC 204) and Manu G.Rajan and another v. State of Kerala ( 2021 (5) KHC 767). I find force in the said argument. PW5 is the injured. He is the competent person to identify the accused at the court. The identification of the accused at the court is a substantive piece of evidence. It has not come out in evidence that the accused, PW5 and 9 were closely known to each other prior to the incident. PW5 identified accused Nos.1 and 5 only at the court. There is no identification of the accused Nos. 2 to 4 and 6 at all at the court by PW5. It is pertinent to note that in Ext.P3 FI statement only two persons have been named by PW5. One is ``` CRL.A NO. 417 OF 2006 ``` ``` 14 ``` Noushad (the 1[st] accused) and the other one is Shaji. In crossexamination PW5 clarified that in fact he meant Shahul and not Shaji. Shahul is the 5[th] accused. Thus, in the FI statement itself, PW5 has specifically named accused Nos.1 and 5. He had identified them at the court also. Thus, so far as accused Nos.1 and 5 are concerned, there is proper dock identification. But so far as the remaining accused are concerned, there is no identification at all. The Division Bench of this Court in Vayalali Girishan (supra) has held that while recording deposition, the trial judge has to specifically record that accused standing in the dock is identified by the witness and if there is failure thereof, the accused is entitled for the benefit of doubt. It was further held that the identification of the accused in court cannot be done in an omnibus and perfunctory manner. In Manu G.Rajan ’s case (supra), the learned Single Judge of this Court held that when there is failure to properly identify the accused in the dock, it is fatal to the case of the prosecution. It was further held that merely because all the accused persons were directly ``` CRL.A NO. 417 OF 2006 ``` ``` 15 ``` known by the witness, that by itself does not take away the requirement of proper identification in the dock. The next witness is PW9. It is true that PW9 has identified the accused. But a perusal of his evidence would show that it is an omnibus ” . identification. He has only stated that “ഈപ്രതികളാണ്തല്ലിയത് Nothing more, nothing less. That apart, there is yet another impediment in relying on the evidence of PW9. The learned counsel for the appellants invited my attention to the statement of the accused recorded under Section 313 of Cr.P.C. The incriminating part of the evidence of PW9 including the identification made by him at the court were not put to the accused. What was done by the trial judge is that after putting all the incriminating portions of the evidence given by PW5 to the accused, a general statement as regard to the evidence of PW9 was asked. The only question put to the accused regarding the evidence given by PW9 is as follows. “മേൽസംഭവംകണ്ടതായി ” സാക്ഷി അമാൻ അലി പറയുന്നു . The learned counsel for the appellant relying on the latest decision of the Apex Court in ``` CRL.A NO. 417 OF 2006 ``` ``` 16 ``` Pramila v. State of Uttar Pradesh (2021 (3) KLJ 880) submitted that in the absence of any question having been put to the accused about the incriminating part of the evidence given by PW9, his evidence cannot be relied on. The Apex Court held that the procedure under Section 313 Cr.P.C. is a facet of principles of natural justice giving an opportunity to the accused to present his defence and in the absence of any question having been put to the accused with regard to the evidence given by the witness against the accused, the accused has been seriously prejudiced in his/her defence. Hence, the omnibus identification made by PW9 cannot be used against accused Nos.2 to 4 and 6. However, the evidence of PW5, the injured witness alone is strong enough and sufficient to fix the culpability on the accused Nos.1 and 5. As stated already, they were named even in the FIS. They were clearly identified by the 5[th] accused. Their overt act has been clearly spoken to by PW5. The evidence on record would further show that in the incident the accused and PW5 have sustained fracture. The ``` CRL.A NO. 417 OF 2006 ``` ``` 17 ``` injury sustained by PW5 falls within the definition of Section 320 of IPC and it was proved to be caused by means of weapon described under Section 326 of IPC. 16. The next question is in view of the acquittal of the accused Nos. 2 to 4 and 6 whether the conviction of the remaining accused under Sections 324 and 326 r/w 149 and 143, 147, 148, r/w 149 of IPC could be sustained. The question whether acquittal of some of the accused persons reducing the number of those convicted to less than five has the effect of taking the case out of the purview of Section 149 IPC was examined by the Constitution Bench of the Apex Court of India in Mohan Singh and another v. State of Punjab (AIR 1963 SC 174). It was held that one of the essential conditions of unlawful assembly under Section 141 of IPC is that its membership must be five or more and as soon as two of the five named persons are acquitted, the assembly must be deemed to have been composed of only three persons and that cannot be regarded as an unlawful assembly. It was further held that in ``` CRL.A NO. 417 OF 2006 ``` ``` 18 ``` such circumstance the conviction could be altered with the aid of Section 34 IPC, if a case of common intention is made out, in the absence of charge under Section 34 IPC. The said dictum was followed by the Apex Court in K.Nagamalleswara Rao and others v. State of A.P. [(1991) 2 SCC 532]. The Apex Court in Babu and Another v. State rep. by Inspector of Police, Chennai and Another (AIR 2013 SC 1769) relying on Dhanna and others v. State of M.P. (AIR 1996 SC 2478) held that where the court finds that strength of the assembly was insufficient to constitute into unlawful assembly, but the remaining persons who participated in the crime had shared common intention as the main perpetrators of the crime, the court can take the aid of Section 34 of IPC even if the said section was not specifically mentioned in the charge. In Dhaneswar Mahakud and Others v. State of Orissa (AIR 2006 SC 1727), the Apex Court held that even if the accused has not been charged with the aid of Section 34 of IPC and instead charged with the aid of Section 149 of IPC, they can be convicted with the aid of Section 34 of ``` CRL.A NO. 417 OF 2006 ``` ``` 19 ``` IPC when evidence shows that there was common intention to commit the crime and no prejudice or injustice has been caused to the accused therein. The Division Bench of this Court in Sathyan.S and another v. State of Kerala (2015 KHC 819) also held that if prosecution names five or more persons and alleges that they constituted an unlawful assembly and if out of the persons so named, two or more are acquitted leaving before court less than five persons to be tried, Section 149 of IPC cannot be invoked. It was further held in the said decision that if common intention is established, the accused could be convicted with the aid of Section 34 of IPC and in that case, the accused was convicted under Section 302 of IPC with the aid of Section 34 of IPC. 17. Coming to the facts of the case, as stated already, there is concrete evidence to prove the active participation of accused Nos. 1 and 5 in the crime. I have already found that the prosecution has successfully established their role in the act. The evidence would show that both the accused Nos.1 and 5 ``` CRL.A NO. 417 OF 2006 ``` ``` 20 ``` were armed with weapons and they inflicted injuries on the vital part of the body of PW5 with MOs1 to 4 weapons. Therefore, the common intention on their part is evident and stands proved. For these reasons, in view of the above settled legal position discussed above, there is no difficulty in holding that the accused Nos.1 and 5 are guilty of the offences punishable under Sections 324 and 326 r/w Section 34 of IPC. However, as per Section 71 of IPC, where anything which is an offence is made up of parts, any of which parts is itself an offence, the offender shall not be punished with the punishment of more than one of such his offences, unless it be so expressly provided. Hence, the accused Nos. 1 and 5 cannot be convicted under Section 324 IPC separately. 18. So far as the sentence is concerned, considering the entire facts and circumstances of the case and also considering the fact that the accused have been facing the ordeal of the trial for the last 20 years, substantive sentence imposed by the court below under Section 326 of IPC can be reduced to 3 ``` CRL.A NO. 417 OF 2006 ``` ``` 21 ``` years. However, the injured shall have to be adequately compensated. 19. In the light of the above findings, the accused Nos.1 and 5 are found guilty for the offence punishable under Section 326 r/w 34 of IPC. They are found not guilty for the rest of the offences charged against them and they are acquitted for the said offences. The accused Nos. 4 to 6 and 7 are found not guilty for all the offences charged against them and they are acquitted. The accused Nos.1 and 5 are sentenced to undergo rigorous imprisonment for a period of three years each and to pay fine of Rs.50,000/- each, in default to suffer rigorous imprisonment for a period of six months each. Out of the fine amount, Rs.40,000/- each shall be paid to PW5 as compensation under Section 357(1) of Cr.P.C. The appeal is allowed in part as above. Sd/- ## DR. KAUSER EDAPPAGATH ab JUDGE