State of Kerala v. SASI, S/o Kumaran; SAJEESH @ SATHISH, S/o SASI; SUNDARAN, S/O SATHISH; SAJEEV, S/O SASI; MOHANAN, S/O PARAMESWARAN; HARIDASAN, S/O BALAN; SUNDARAN @ SADANANTHAN, S/O RAMAKRISHNAN; DILIP KUMAR, S/O CHANDRASEKHARAN NAIR; PRADEEPKUMAR, S/O CHANDRAN; SUNDARAN, S/O MADHAVAN

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.BHAVADASAN & THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **WEDNESDAY, THE 10TH DAY OF FEBRUARY 2016/21ST MAGHA, 1937** ## **CRL.A.No. 1061 of 2011 ( )** **--------------------------AGAINST THE JUDGMENT IN SC 331/2007 of ADDITIONAL DISTRICT & SESSIONS COURT, FAST TRACK NO.I, THRISSUR DATED 02-06-2009** ## **APPELLANT/COMPLAINANT:** **--------------------------------------------------------------------** **STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM.** **BY PUBLIC PROSECUTOR SRI. K.K. RAJEEV** ## **RESPONDENTS/ACCUSED NO. 1 TO 8 & 10 AND 11:** **------------------------------------------------------------------------** ## **1. SASI, S/O.KUMARAN,** **NEDUMCHALIL HOUSE, VENNUR VILLAGE DESOM TALAPPILLY TALUK.** ## **2. SAJEESH @ SATHISH, S/O.SASI, NEDUMCHALIL HOUSE, VENNUR VILLAGE DESOM TALAPPILLY TALUK.** ## **3. SUNDARAN, S/O.SATHISH,** **S/O.NARAYANAN, ARIYIKKAL HOUSE, VENNUR VILLAGE DESOM TALAPPILLY TALUK.** **4. SAJEEV, S/O.SASI, NEDUMCHALIL HOUSE, VENNUR VILLAGE DESOM TALAPPILLY TALUK.** **5. MOHANAN, S/O.PARAMESWARAN, MEKKONATH HOUSE, NEDUMCHALIL HOUSE VENNUR VILLAGE DESOM, TALAPPILLY TALUK.** **6. HARIDASAN, S/O.BALAN, PUTHIRAPADATH HOUSE, VENNUR VILLAGE DESOM TALAPPILLY TALUK.** **7. SUNDARAN @ SADANANTHAN, S/O.RAMAKRISHNAN, MEKKONATH HOUSE VENNUR VILLAGE DESOM, TALAPPILLY TALUK.** **CRL.A.No. 1061 of 2011 ( )** ## **8. DILIP KUMAR, S/O.CHANDRASEKHARAN NAIR, PUTHEN VEETTIL HOUSE, VENNUR VILLAGE DESOM TALAPPILLY TALUK.** ## **9. PRADEEPKUMAR, S/O.CHANDRAN,** - **KALLATHUR HOUSE, VENNUR VILLAGE DESOM TALAPPILLY TALUK.** **10. SUNDARAN, S/O.MADHAVAN, MUNDULLY HOUSE, VENNUR VILLAGE DESOM, TALAPPILLY TALUK.** **R1 TO 10 BY ADV. SRI.P.VIJAYA BHANU (SR.) R1 TO 10 BY ADV. SRI.VIPIN NARAYAN R1 TO 10 BY ADV. SRI.UNNI SEBASTIAN KAPPEN** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 10-02-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **ds** ## **P.BHAVADASAN & RAJA VIJAYARAGHAVAN V., JJ** - - - - - - - - - - - - - - - - - - - - - - - - - ## Crl.A. No. 1061 of 2011 - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 10[th ] day of February, 2016 ## **J U D G M E N T** ## P.Bhavadasan, J. Eleven persons were sought to be prosecuted for the offences punishable under Sections 143, 147, 148, 341, 324, 506(ii), 307 and 302 read with Section 149 of IPC. Among them, 9[th] accused died during the pendency of the trial and the charge against him therefore got abated. Others stood the trial. They were found not guilty and hence were acquitted under Section 235 of Cr.P.C. of all the offences levelled against him. The state has come up in appeal. 2. The incident as disclosed from the records available before us is that on 31.3.2004, at about 7.00 p.m., **Crl.A. No. 1061 of 2011** **-2-** PWs 1, 4, 10 and the deceased Mohandas were sitting under the Banyan tree at Vennur Centre talking about various things. The allegation is that at that time, the assailants, who belonged to INTUC group, came near them and unleashed an attack. The second accused is alleged to have inflicted injury on PW1. He claimed that on receiving the injury, he fell down. The first accused using a chopper inflicted injuries on PW10. The third accused is alleged to have inflicted stab injuries on the deceased Mohandas using a knife which he carried with him. The 7[th] accused is alleged to have dealt a blow on PW4 using an iron rod. The other accused persons, initially shown, are alleged to have been watching the incident and encouraging and exhorting as the assailants continued to attack the injured persons. Hearing the cries let out by the injured when people began to gather at the spot, the assailants left the place. According to the prosecution, Raveendran, Dasan, Anandan and Manikantan and a few others who had come to the spot removed PW1 & **Crl.A. No. 1061 of 2011** **-3-** PW10 to the Government Hospital at Pazhayannur and so also the deceased. On reaching the hospital, the doctor pronounced Mohandas dead and after attending to PWs 4 and 10, prepared Exts. P6 and P7 wound certificates. However, PW9 examined PW4 at Thrissur Medical College Hospital and prepared Ext.P8 wound certificate. In the meanwhile, PW1 laid Ext.P1 First Information Statement. That was recorded by PW6 on the basis of which PW7 registered the crime. PW13 took over investigation. He proceeded to the place where the body of Mohandas was retained and prepared Ext.P2 inquest report. He then proceeded to the place of occurrence and prepared Ext.P4 scene mahazar. The various articles found at the place of occurrence were seized by him as per Ext.P4 scene mahazar. They are MOs 5 to 16. The torch recovered was marked as MO17 and the strap of watch was marked as MO18. He recorded statements of witnesses. ## **Crl.A. No. 1061 of 2011** **-4-** 3. On 04.4.2004, according to PW13, though it is stated during his examination that he had filed Ext.P13 report showing the address and details of the accused persons, in fact, Ext.P13 report seeks to delete the names of certain persons from the array of accused persons as shown originally in the FIR. On the very same day itself, he also filed Ext.P14 report adding some others on the party array. He had accused Nos. 2 and 3 arrested on 8.4.2004 and accused Nos. 4, 7, 8, 9, 10 and 11 on 4.4.2004. According to PW13, as per the confession statement given by the second accused, MO2 was recovered as per Ext.P3 mahazar. On 12.4.2004, he had the first accused arrested and accused Nos. 5 and 6 were arrested on 15.4.2004. He also had a forwarding note sent to the court for having the articles seized during investigation sent for chemical examination. PW12, who succeeded PW13 verified the records and laid charge before court. ## **Crl.A. No. 1061 of 2011** **-5-** 4. The court before which the final report was laid, took cognizance of the offence and finding the offences to be exclusively triable by a Court of Sessions, committed the case to Sessions Court, Thrissur under Section 209 of Cr.P.C. after following the necessary procedures. The said court made over the case to Additional District and Sessions Court, Fast Track-I, Thrissur for trial and disposal. 5. The latter court, on receipt of records and appearance of the accused before the said court, framed charges for the offences punishable under Sections 143, 147, 148, 341, 324, 506(ii), 307 and 302 read with Section 149 of IPC. 6. To the charge, the accused pleaded not guilty and claimed to be tried. The prosecution therefore examined PWs 1 to 13 and had Exts.P1 to P16 marked. MOs 1 to 19 were got identified and marked. The defence had Exts. D1 to D10 marked. ## **Crl.A. No. 1061 of 2011** **-6-** 7. After the close of prosecution evidence, the accused were questioned under Section 313 Cr.P.C. They denied all the incriminating circumstances brought out in evidence against them and maintained that they were innocent. In addition to saying so, the first accused filed a statement, wherein, he stated that on the date of incident at about 7.00 p.m., Mohandas @ Kannan, Surendran, Manikantan and Sasi attacked him and others. He suffered serious injuries and in the melee, probably others also suffered injuries. He specifically stated that the incident has not occurred as alleged by the prosecution. 8. 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 adduce no evidence. 9. On appreciation of the evidence in the case, the court below mainly on the basis that the prosecution had no explanation for the injuries suffered by the accused persons evidenced by Exts. D6 to D10 came to the **-7-** ## **Crl.A. No. 1061 of 2011** conclusion that the prosecution had not established the case beyond reasonable doubt and acquitted the accused. The acquittal is challenged by the State. 10. The learned Public Prosecutor contended that the acquittal on the basis that the prosecution has failed to explain the injuries on the accused cannot stand scrutiny since the injuries suffered by the accused persons are minor in nature and it is well settled that the prosecution has no legal obligation to explain the minor injuries suffered by the accused. According to the learned Public Prosecutor, the substratum of acquittal therefore goes and the finding of the court below cannot be justified. Relying on the evidence of PWs 1, 4 and 10 it was contended that they were injured witnesses and the law places their evidence on higher pedestal and their evidence can be discarded only for convincing and cogent reasons. No such reasons have been found by the court below to discard their evidence. ## **Crl.A. No. 1061 of 2011** **-8-** 11. PW5 is an independent witness and he too speaks in favour of the prosecution. His evidence also has not been properly analysed. In short, the contention is that there is no proper appreciation of the evidence in the case and the court below was guided mainly by the fact that some of the accused persons had suffered certain injuries and as long as the prosecution does not come forward with an explanation for the same, the accused are entitled to acquittal. A proposition no long good in law. The learned Public Prosecutor therefore pointed out that there has been a miscarriage of justice in the acquittal of accused persons. 12. Sri. Vijayabhanu, the learned senior counsel appearing for the respondents/accused contended that the fact that the prosecution had no satisfactory explanation for the injuries suffered by some of the accused persons was only one of the grounds for acquittal. If one goes through the evidence in detail, it can be seen that the testimony furnished by PWs 1, 4 and 10 apart from mutually **-9-** ## **Crl.A. No. 1061 of 2011** inconsistent and contradictory, vary considerably from their earlier statements and therefore they are to be termed as unreliable and untrustworthy witnesses. In fact, according to the learned senior counsel, the testimony furnished by PW1 has no comparison to his First Information Statement at all. As far as PW4 is concerned, he deviates a lot from his previous statement to the Police and so is the case of PW10. Apart from these aspects, the learned senior counsel pointed out that there is _inter se_ inconsistency and contradiction between the various acts said to have been committed by the accused persons in the evidence of PWs 1, 4 and 10. To crown it all, the prosecution has no explanation as to why some of the accused were deleted during investigation and a few others were added by PW13. Even though ostensibly, it may appear that the court below was impressed by the fact that prosecution had failed to explain the injuries suffered by the accused persons, in reality, there are various other grounds on which the acquittal can be justified. ## **Crl.A. No. 1061 of 2011** **-10-** 13. The learned senior counsel also reminded this Court that this Court is now dealing with an appeal from an acquittal wherein, interference is considerably limited and relied on the decision reported in **Sundershan Kumar v. State of Himachal Pradesh (** 2014 KHC 5163). It will be useful to understand the context and scope of an appeal against an order of acquittal. In the decision relied on by the learned senior counsel appearing for the accused persons, i.e. **Sundershan Kumar v. State of Himachal Pradesh (** 2014 KHC 5163), it has been held as follows: “29. It has been stated and restated that a cardinal principle in criminal jurisprudence that presumption of innocence of the accused is reinforced by an order of the acquittal. The appellate court, in such a case, would interfere only for very substantial and compelling reason. There is plethora of case laws on this proposition and we need not burden this judgment by referring to those decisions. Out purpose would be served by referring to one **-11-** ## **Crl.A. No. 1061 of 2011** reasoned pronouncement entitled Dhanapal v. State of Public Prosecutor, Madras, 2009 (10) SCC 401 is the judgment where most of the earlier decisions laying down the aforesaid principle are referred to. In para 39, propositions laid down in an earlier case are taken note of as under: “39. In Chandrappa and Ors. v. State of Karnataka, 2007 (4) SCC 415, this Court held: (1) An appellate court has full power to review, re-appreciate and reconsider the evidence upon which the order of acquittal is founded. (2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law. (3) Various expressions, such as “substantial and compelling reasons”, “good and sufficient grounds”, “very strong **-12-** ## **Crl.A. No. 1061 of 2011** circumstances”, “distorted conclusions”, “glaring mistakes”, etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of “flourishes of language” to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion. (4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the **-13-** ## **Crl.A. No. 1061 of 2011** trial court. (5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court.” 30. Thereafter, in para 41, the Court culled out five principles and we would like to reproduce the said para hereunder: “41. The following principles emerge from the cases above: 1. The accused is presumed to be innocent until proven guilty. The accused possessed this presumption when he was before the trial court. The trial court's acquittal bolsters the presumption that he is innocent. 2. The power of reviewing evidence is wide and the appellate court can re-appreciate the entire evidence on record. It can review the trial court's conclusion with **-14-** ## **Crl.A. No. 1061 of 2011** respect to both facts and law, but the Appellate Court must give due weight and consideration to the decision of the trial court. 3. The appellate court should always keep in mind that the trial court had the distinct advantage of watching the demeanour of the witnesses. The trial court is in a better position to evaluate the credibility of the witnesses. 4. The appellate court may only overrule or otherwise disturb the trial court's acquittal if it has “very substantial and compelling reasons” for doing so. 5. If two reasonable or possible views can be reached - one that leads to acquittal, the other to conviction - the High Courts / appellate courts must rule in favour of the accused.”” 14. Bearing the above principle in mind, we shall now attempt to ascertain whether the grievance voiced by **-15-** ## **Crl.A. No. 1061 of 2011** the learned Public Prosecutor is justified. 15. Of course, PWs 1, 4 and 10 are injured witnesses. Therefore, their presence at the place of incident cannot be disputed. The defence has a case that even going by the First Information Statement and the evidence of PW10, it can be seen that the incident has not occurred as alleged by the prosecution. Even though this has not been taken as a ground by the lower court, it is very evident from the prosecution evidence itself and the defence is entitled to take advantage of the same. 16. As far as the independent witness, namely, PW5 is concerned, it is pointed out that he stands discredited by his previous statements to the Police. 17. Since there are three injured witnesses and the prosecution relies considerably on their evidence, it becomes necessary to refer to their evidence in some detail. 18. PW1 is the author of Ext.P1 First Information Statement. The story put forward by the prosecution as **-16-** ## **Crl.A. No. 1061 of 2011** disclosed from the First Information Statement has already been referred to. 19. At the time of evidence, PW1 says about the incident. He says that he, the deceased, PW10 and PW4 were sitting on the Althara when the accused came near them armed. Sensing some trouble when they tried to leave the place, the accused surrounded them and the second accused is said to have inflicted stab injury on PW1. PW1 claims to have fallen down. At that time, Surendran came rushing to ward off further attack, when the first accused turned his attack on Surendran and stabbed him thrice with the knife which he carried. Surendran also fell down. PW1 then says that his brother Mohandas came rushing and then the third accused, after seizing the knife that was being carried by the first accused, inflicted injuries on Mohandas. The role attributed to accused Nos. 4, 5 and 6 is that after the stab injuries were inflicted on him, Mohandas was restrained by these persons. PW1 would further say that the ## **Crl.A. No. 1061 of 2011** **-17-** second accused inflicted two more stab injuries on the deceased. The 7[th] accused dealt a blow with an iron rod on PW4, Manikantan. Hearing the cries, let out by the injured, PW1 would say that the people gathered at the place and they were taken to the hospital. He owns up Ext.P1 First Information Statement. 20. In cross examination, it was brought out that most of what he has stated before court is conspicuously absent or omitted to be stated in Ext.P1 First Information Statement. Even regarding the acts said to have been committed by the various accused persons, there is considerable difference. His version of the third accused having snatched a knife from the first accused is conspicuously absent in the First Information Statement. The act of the second accused stabbing Mohandas spoken to by him at the time of evidence is also conspicuously absent in Ext.P1. It is significant to notice that he has named various assailants in Ext.P1 and it is very clear from the ## **Crl.A. No. 1061 of 2011** **-18-** evidence on record that it is a group clash between two groups and each group was familiar with the members of the other group. Though PW1 has in Ext.P1 named several persons, it turned out that during the investigation some of them had no role to play at all and in fact, there are others who had participated in the incident. This anomaly in the prosecution version stands unexplained. PW13, the Investigating Officer had no explanation as to how he came to the conclusion that some of the persons named by PW1 in Ext.P1 had no role to play whereas, others had role to play. Be as it may, the fact remains that most of the statements given by PW1 at the time of evidence do not find a place in Ext.P1 statement and in fact, there is considerable deviations, developments and embellishments at the time of evidence given by PW1. 21. The next is the evidence of PW4. It is true that the evidence of PW4, to a considerable extent, supports the evidence of PW1 before court. But here again, he ## **Crl.A. No. 1061 of 2011** **-19-** deviates a lot from his previous statements. His version of the 10[th] accused having suffered injuries is conspicuously absent in his 161 statement to the Police. So also his version before court that the second accused stabbed PW1, the first accused stabbed PW10 on his stomach and arm and also the crucial aspect that the third accused had wrested the knife from the first accused and stabbed the deceased thrice and accused Nos. 4, 5 and 6 had restrained the deceased are all conspicuously absent in his previous statement. 22. One cannot omit to note that these are vital omissions amounting to contradictions as contemplated by Section 162 of Cr.P.C.. Therefore, it is very clear that he had developed the case at the time of giving evidence in the case to suit the prosecution case. It will be extremely hazardous to place implicit faith on his evidence to find against the accused persons. ## **Crl.A. No. 1061 of 2011** **-20-** 23. PW5 claims to be an independent occurrence witness. According to him, when he reached the place, he saw the third accused snatching a knife from the hands of the first accused and stabbing Mohandas repeatedly and accused Nos. 4, 5 and 6 holding the deceased Mohandas. He then says that he had occasion to see the second accused inflicting stab injuries on Mohandas. Mohandas fell on the ground. When PW4 rushed to the aid of Mohandas, the 7[th] accused is alleged to have dealt a blow on the head of PW4 using an iron rod. However, in cross examination, it was brought out that the claim made by him that he had occasion to see Mohandas being stabbed on the back is conspicuously absent in his previous statement. Another conspicuous omission in the previous statement of PW5 is the claim made by him that he had occasion to see the second accused inflicting stab injuries on the deceased Mohandas. ## **Crl.A. No. 1061 of 2011** **-21-** 24. It is also pointed out by the learned senior counsel for the respondents that in the evidence of the so called injured witnesses or in Ext.P1 First Information Statement, there is no mention of the presence of PW5. 25. Coming to the evidence of PW10, being an injured witness, his evidence needs to be considered carefully. As regards the origin of the incident, he sails along with PWs 1 and 4. However, then he deviates. He would say that the beginning was when the first accused abused PW1. Then the 7[th] accused tried to hit him with an iron rod which was effectively thwarted by the victims. He then says that the second accused tried to stab PW1 which he tried to prevent, but then the first accused turned his wrath at him and he was injured by the stab injuries inflicted by the first accused. Quite surprisingly PW10 says that the 11[th] accused wrested the knife from the first accused and inflicted three stab injuries on Mohandas, the deceased. He then follows it up by saying that Mohandas was able to ward ## **Crl.A. No. 1061 of 2011** **-22-** off and that the accused Nos. 4, 5 and 6 restrained Mohandas. He then speaks about the second accused inflicting injuries on Mohandas. 26. Obviously, the difference in the testimony of other witnesses when compared with PW1 is quite conspicuous. Nobody had a case that the 11[th] accused had ever attempted to inflict any stab injuries on the deceased. In cross examination, it was brought out that quite a few of the statements made by him at the time of giving evidence in court are conspicuously absent or against the version given by him to the Police. 27. The defence was able to bring out contradictions which are marked as Exts. D1 and D1(a) while cross examining PW10. 28. Even though it may not be of much legal consequence to look at the wound certificate to ascertain the assailants, in the case on hand, it may stand on a slightly different footing. The would certificates which have ## **Crl.A. No. 1061 of 2011** **-23-** already been mentioned of, show the assailants. In Ext.P6 it is stated as follows: “ºßÜV çºVKí ÎÞøµÞÏáÇB{áÎÞÏß ¦dµÎߺîÄßW” 29. In Ext.P7, the same is repeated. In Ext.P8, which is in respect of PW4, all that is stated is “assault by persons identifiable on sight”. 30. It must be remembered here that the assailants and the victims were very familiar to each other and if that be so, it is inconceivable that at least some of the assailants would not have been named to the Doctor concerned. This also casts suspicion regarding the prosecution version of the incident. 31. The anomaly in deleting the names of some of the persons who are shown in the FIR and incorporating the names of others without any justifiable reason has already been referred to adds to the agony of the prosecution. ## **Crl.A. No. 1061 of 2011** **-24-** 32. We are not forgetting the fact that Mohandas had lost his life in the incident. 33. The post-mortem certificate, Ext.P9 drawn up by PW11 and his evidence would clearly show that Mohandas died as a result of the injuries suffered by him in the incident. 34. As already noticed, even in Ext.P1, First Information statement and also in the evidence of PW10, it is seen that there was some scuffle between the two groups. Though as rightly pointed out by the learned Public Prosecutor, it could not be said that the injuries suffered by the accused are so grievous in nature that the prosecution was under an obligation to explain them, the fact remains that the narration of incident given by the prosecution does not appear to be true and correct and the deviations made by the various witnesses referred to above from their previous statements cast doubt about the veracity of their testimony and also about origin, development and **Crl.A. No. 1061 of 2011** **-25-** culmination of the incident. 35. Even though we may not quite agree with the finding of the court below that merely because the prosecution has not explained the minor injuries found on the accused persons, we on an independent analysis of the evidence, come to the conclusion that the prosecution has failed to establish the case beyond reasonable doubt and especially, being an appeal against acquittal, as it could not be said that the finding of the court below is perverse or contrary to the evidence on record, even if a different view is possible, interference may not be justifiable. For the above reasons, we dismiss this appeal. Sd/- **P.BHAVADASAN JUDGE** Sd/- **RAJA VIJAYARAGHAVAN V JUDGE** ds //True copy// P.A. to Judge