Sunil alias Chunnan vs State of Kerala; Binu alias Kochu Vava & Shibu alias S/Shibu vs State of Kerala (CRL.A.1147/2014 and CRL.A.505/2015)

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** ## **&** **THE HONOURABLE MR. JUSTICE A.M.BABU** **FRIDAY, THE 12TH DAY OF APRIL 2019 / 22ND CHAITHRA, 1941** **CRL.A.No. 1147 of 2014** **AGAINST THE ORDER/JUDGMENT IN SC 1436/2006 of ADDITIONAL SESSIONS JUDGE-FAST TRACK-II, THIRUVANANTHAPURAM DATED 13-08-2013** ## **APPELLANT/S:** **SUNIL @ CHUNNAN AGED 30 YEARS S/O.MIKHAYEL, VAYALARIKATHU VEEDU, S.P.XII/111, RANDAMCHIRA COLONY, CHELLAMANGALAM WARD, ULLIYATHARA VILLAGE, THIRUVANANTHAPURAM.** **BY ADV. SRI.P.S.PRADEEP** ## **RESPONDENT/S:** **STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN - 682 031.** ## **OTHER PRESENT:** **SRI. S.U. NAZAR, SENIOR PUBLIC PROSECUTOR** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 12.04.2019, ALONG WITH CRL.A.505/2015, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** 2 CRL.A 1147/2014 ,CRL.A.505/2015 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** **&** **THE HONOURABLE MR. JUSTICE A.M.BABU** **FRIDAY, THE 12TH DAY OF APRIL 2019 / 22ND CHAITHRA, 1941** **CRL.A.No. 505 of 2015** **AGAINST THE ORDER/JUDGMENT IN SC 1436/2006 of ADDITIONAL SESSIONS JUDGE-FAST TRACK-II, THIRUVANANTHAPURAM DATED 13-082013** ## **APPELLANT/S:** **1 BINU @ KOCHU VAVA, S/O.MADHAVAN PUTHUVAL, PUTHEN VEEDU, SP XII/173,RANDAMCHIRA COLONY, CHELLAMANGALAM WARD,ULIYAZHTHARA VILLAGE.** **2 SHIBU,S/O.DEVANANDAN, SP XII/189,RANDAMCHIRA COLONY, CHELLAMANGALAM WARD,ULIYAZHTHARA VILLAGE.** **BY ADVS. SRI.B.RAMAN PILLAI (SR.)-FOR R1 SRI.E.VIJIN KARTHIK SRI.M.SUNILKUMAR SRI.R.ANIL SRI.SUJESH MENON V.B. SRI.T.ANIL KUMAR SRI.THOMAS ABRAHAM (NILACKAPPILLIL) SRI.THOMAS SABU VADAKEKUT SRI.SHABU SREEDHARAN-FOR R2** ## **RESPONDENT/S:** **STATE OF KERALA,REPRESENTED BY ITS PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM.682 031** **SRI. S.U. NAZAR, SENIOR PUBLIC PROSECUTOR** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 12.04.2019, ALONG WITH CRL.A.1147/2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** 3 CRL.A 1147/2014 ,CRL.A.505/2015 ## **JUDGMENT** ## **A.M.BABU,J.** Charge-sheet was filed against 13 persons. The persons shown in the charge-sheet as accused 1 and 7 were juveniles on the date of incident. Hence the case against them was split up. The 6[th] accused died and the charges against him got abated. The 9[th] accused absconded and therefore the case against him was split up and refiled. The remaining accused persons were tried in SC 1436/2006 by the additional sessions judge, fast track-II, Thiruvananthapuram. Accused 5,8 and 10 to 13 were acquitted of all the charges they faced. Accused 2 to 4 were convicted and sentenced under Secs 302 and 307 of the Indian Penal Code (IPC) read with IPC 34. They were acquitted of the other charges. The 4[th] accused filed Crl A. 1147/2014. Accused 2 and 3 jointly filed Crl A. 505/2015. 2. Prosecution case goes as follows: The incident occurred at 9 a.m on 30.7.2002. The place of occurrence was the tarred portion of Sreekaryam-Powdikonam road in front of the Devi temple at Chellamangalam. A person by name Suresh Babu died in the incident. Two persons were injured who were PWs 1 and 2. The accused persons had enmity towards Suresh Babu. The accused persons formed 4 CRL.A 1147/2014 ,CRL.A.505/2015 themselves into an unlawful assembly with the common object of committing murder of Suresh Babu. The accused persons committed rioting arming themselves with deadly and dangerous weapons such as swords, chopper, iron rods and sticks. Aneesh (juvenile) hit Suresh Babu with a stick on the head. The 3[rd] accused cut on the head of Suresh Babu with a sword. Rajesh (juvenile) and accused 8, 10 and 11 beat Suresh Babu on his legs with sticks and iron rods. The 2[nd] accused cut PW2 with a sword on his hand. The 4[th] accused cut on the back of PW2 with a chopper. He was hit by the 5[th] accused with an iron rod. The 3[rd] accused cut PW2 with a sword. Rajesh (juvenile) and accused 6, 8 and 9 beat PW1 all over his body with sticks. The 12[th] accused stood abetting others to attack the victims. All the victims sustained serious injuries. Suresh Babu succumbed to the injuries. 3. The accused persons who faced trial denied the charges framed against them under Secs 143, 147, 148, 149, 302, 307, 324, 326 and 342 of IPC and under Sec.27 of the Arms Act. PWs 1 to 19 were examined and Exts P1 to P24 and MOs 1 to 12 were marked on the side of the prosecution. Exts D1 to D4 were marked on defence side during the course of prosecution evidence. The accused persons who were tried were examined under Sec.313 of the Code of Criminal 5 CRL.A 1147/2014 ,CRL.A.505/2015 Procedure (Cr.P.C). They denied the incriminating evidence and circumstances relied on by the prosecution. As they were not acquitted under Sec.232 of Cr.P.C, they were called upon to enter on their defence and adduce evidence. DW1 was examined on defence side to prove the alibi pleaded by the 5[th] accused. 4. Accused 2 to 4 who were convicted were sentenced to imprisonment for life under Sec.302 of IPC and rigorous imprisonment for 6 years and a fine of Rs 50,000/- each under Sec.307 of IPC. The sentence in default of payment of fine imposed by the trial court was rigorous imprisonment for 6 months. The substantive sentences were directed to run concurrently only. 5. Heard Sri.B.Raman Pillai, the learned senior counsel for the 2[nd] accused, Sri.Shabu Sreedharan, the learned counsel for the 3[rd] accused and Sri.P.S.Pradeep, the learned counsel for the 4[th] accused. The learned public prosecutor Sri.S.U.Nazar was also heard. 6. Accused 2, 3 and 4 were convicted and sentenced by the trial court under Secs 302 and 307 of IPC read with IPC 34. They were found to have committed murder of Suresh Babu. It was also found that they attempted to commit murder of PW2. The prosecution mainly relies on ocular 6 CRL.A 1147/2014 ,CRL.A.505/2015 evidence to prove the complicity of accused 2, 3 and 4. The witnesses examined for ocular proof were PWs 1 to 4. PWs 1 and 2 sustained injuries in the incident. The trial court did not convict any accused for causing hurt to PW1. The prosecution has no case or evidence that accused 2,3 and 4 caused hurt to PW1. According to the learned counsel appearing for the three convicts, the evidence does not disclose any common intention for the convicts and therefore Sec.34 of IPC is not attracted. The trial court acquitted accused 5, 8 and 10 to 13 because of absence of injuries on the body of Suresh Babu and the person of PWs 1 and 2 corresponding to the overt acts attributed to the acquitted accused persons. Their acquittal has become final as no appeal is filed by the prosecution. In the present appeals we are only concerned with the guilt of accused 2,3 and 4 under Secs 302 and 307 of IPC with or without the aid of Sec.34 of IPC. We therefore need to consider only the overt acts attributed to accused 2,3 and 4. 7. PW1 deposed as follows: The incident was on 30.7.2002. Himself, PW2, PW3 and Suresh Babu were in a conversation sitting on the steps of the temple facing the road. The accused persons gathered at the bus stop on the opposite side of the road. They crossed the road and approached PW1 and others. They rose to a standing position when they saw 7 CRL.A 1147/2014 ,CRL.A.505/2015 the assailants who were persons known to PW1. The third accused uttered “were you not the persons who had beaten Shibu hailing from Randamchira during festival”. The third accused took a sword from behind which he had kept inside the shirt he wore. He struck aiming the neck of Suresh Babu with the sword. The blow hit the hand and head of Suresh Babu as he defended the blow with hand. He sustained injuries on his hand and head. PW1 tried to escape, but he and the other victims were surrounded by the assailants when the second accused made an utterance to stop them. The second accused then cut PW2 with a sword. He defended the blow with his hand. He sustained an injury on his wrist. The 4[th] accused with a chopper cut on the back of PW2 twice and caused him (PW2) injuries. The 3[rd] accused with the sword cut PW2 several times in quick succession. 8. PWs 2 and 3 also stated that the incident occurred on 30.7.2002. The date of incident was not stated by PW4. But he spoke that it happened at around 9 am. The depositions of PWs 1 to 3 also suggest so. PWs 2 and 3 deposed that they, PW1 and Suresh Babu were engaged in a conversation sitting on the steps of the temple. This aspect was not stated by PW4. It must be because, as he said, he was at the bus stop on the other side of the road waiting for 8 CRL.A 1147/2014 ,CRL.A.505/2015 his bus. PWs 2 and 3 spoke that the assailants came near them and that they rose to a standing position seeing the assailants. PWs 2 and 3 deposed to the utterance of the second accused which we mentioned while discussing the evidence of PW1. PWs 2 to 4 deposed to the utterance of the second accused to surround the victims to prevent their escape. The overt acts of accused 2, 3 and 4 were spoken to by PWs 2 to 4. 9. We shall first consider the evidence of PWs 2 to 4 on the overt acts alleged against the third accused. PWs 2 to 4 stated that the third accused took a sword from behind. PWs 2 and 3 spoke that the sword was inserted in the shirt worn by the third accused. According to PWs 2 to 4 , the third accused struck a blow with a sword aiming the neck of Suresh Babu which hit the finger and head of the victim as he defended the blow with his hand. It was also the evidence of PWs 2 to 4 that Suresh Babu sustained an injury on his finger and a severe injury on his head. 10. PW2 deposed that he was cut several times by the third accused with the sword. The witness spoke that consequent to the said attack he sustained injuries on his leg and hand. PW3 also stated that the third accused with the sword cut PW2 several times. PW4 also spoke that the third 9 CRL.A 1147/2014 ,CRL.A.505/2015 accused cut PW2 with a sword. 11. We move on to the evidence of PWs 2 to 4 on the overt acts alleged against the 2[nd] accused. PW2 stated that the second accused struck a blow with a sword aiming his neck. The witness spoke that he warded off the blow with his hand. He deposed that he sustained injuries including a fracture. He showed the scar of the wound to the learned trial judge who recorded it in the deposition of PW2. PW3 deposed that he managed to escape from the scene of occurrence and reached near a nearby tailoring shop. He stated that he saw from there the second accused striking a blow with a sword aiming the neck of PW2. PW3 added that PW2 defended the attack with his hand. It was also stated by PW3 that PW2 sustained an injury on the wrist. PW4 also spoke to the said overt act of the second accused, fending off the blow by PW2 with hand and sustainment of an injury by PW2 on his hand. 12. Onto the overt acts of the fourth accused next. PW2 testified that he was cut on his back by the 4[th] accused twice with a chopper. He showed the scar to the learned trial judge. PW3 deposed to have seen the 4[th] accused cutting on the back of PW2. PW3 did not state what weapon was used by the 4[th] accused. PW4 spoke to the overt acts of the 4[th] accused cutting PW2 with a chopper twice on his back. 10 CRL.A 1147/2014 ,CRL.A.505/2015 13. PWs 1 to 4 identified accused 2,3 and 4 in court . The witnesses spoke that they were able to identify the weapons used by all the accused persons. PW1 identified MO1 to be the sword used by the third accused and MO2 to be the double edged sword used by the second accused. PW1 identified MO3 chopper, but he did not say as to who used it. But his evidence suggests beyond any dispute that the only person who used a chopper was the 4[th] accused. PWs 2 and 3 identified MO1 as the sword used by the third accused, MO2 as the sword used by the second accused and MO3 as the chopper used by the 4[th] accused. The evidence of PWs 2 and 3 suggests that they could distinguish MO 1 and MO2 swords as the former one was a single edged sword and the other one was double edged. Identification of weapons by PW4 cannot be taken into account since what he stated was only that Mos 1 to 7 were the weapons used by the accused persons. 14. We have discussed the evidence of PWs 1 to 4 as would appear in their respective examinations-in-chief. They have given a uniform version of the incident and the overt acts of accused 2,3 and 4. It may be true that one or two aspects stated by one witness was not stated by another. But there was no conflict or any inconsistency in their evidence in their examinations-in-chief while narrating the incident and the 11 CRL.A 1147/2014 ,CRL.A.505/2015 overt acts of any of the accused persons including accused 2,3 and 4. The depositions of PWs 1 to 4 sufficiently and satisfactorily prove the overt acts of accused 2,3 and 4 if not destructed in cross-examination. 15. PWs 1 to 4 were, no doubt, cross-examined on the overt acts attributed to accused 2,3 and 4. But it did not produce any good result for the defence. The attempt was to bring out a few omissions in the statements of PWs 1 to 4 recorded by the investigating officer under Sec.161 of Cr.P.C. One such attempt was that PW1 did not state to the investigating officer that Suresh Babu defended the attack on him with his hand. We cannot consider it since the alleged omission was not put to PW19 who investigated the case and recorded the statement of PW1. Therefore the so called omission was not proved. There was a similar attempt on the same point when PW3 was cross-examined, but the alleged omission was not put to PW19. There were a few more similar attempts on other aspects while cross-examining PWs 2 and 4. We need not go into such attempts since the so called omissions were not proved for the failure to put them to the investigating officer. However, the evidence of PW2 that he defended the blow with his left hand was proved as an omission. The said omission is not sufficient to discard his 12 CRL.A 1147/2014 ,CRL.A.505/2015 evidence. 16. There are of course a few more proved omissions. But most of those omissions are not on any material point. The statements of PWs 2 and 4 that Suresh Babu warded off the blow aimed at his neck with the sword were proved to be omissions. Those omissions do not affect the similar statement given in court by PW1. The evidence of PW1 is sufficient to find that the attack was fended off by Suresh Babu. That apart, the evidence of PWs 2 and 4 proves that the blow hit the hand and head of Suresh Babu and there was no omission or contradiction on that aspect. Where did the blow hit is more important than where was it aimed in a case where the injured died. 17. PWs 1 to 4 identified accused 2 to 4 in court. The defence has no case that accused 2 to 4 were strangers to PWs 1 to 4 before the incident. PWs 1 to 3 identified the weapons used by accused 2 to 4. The overt acts of accused 2 to 4 as deposed to by PWs 1 to 4 could not be shattered in cross-examination. The ocular evidence proves that the second accused inflicted a cut injury on the wrist of PW2 with MO2 sword, that the 4[th] accused inflicted injuries on the back of PW2 with MO3 chopper and that the 3[rd] accused with MO1 sword inflicted cut injuries on the head and hand of Suresh 13 CRL.A 1147/2014 ,CRL.A.505/2015 Babu and on the person of PW2. The prosecution relies on medical evidence to corroborate the ocular evidence. We shall consider the medical evidence. 18. PW14 conducted post-mortem examination on the body of Suresh Babu. Ext P8 is the autopsy report. PW14 noted 11 ante-mortem injuries on the dead. All those injuries shown in Ext P8 were deposed to by PW14. We extract injury no.1 below: Incised wound 5.5 x 0.5 x 0.5 cm obliquely placed on the right side of top of head, its front outer end being 13 cm above the top of ear lobe. The scalp underneath its inner margin was infiltrated with blood over an area 4 x 2.5 x 0.3 c.m. PW14 spoke that the said injury could be caused by a weapon like MO1 sword. His such evidence was not subjected to crossexamination. No suggestion was even put to him challenging his such opinion. The medical evidence thus corroborates the ocular evidence that the 3[rd] accused with MO1 sword inflicted a cut injury on the head of Suresh Babu. 19. The doctor who examined PW2 at the medical college hospital was examined as PW17. He issued Ext P13 wound certificate. The injuries seen by PW17 and noted by him in Ext P13 were deposed to by him in court. Injury nos 1 14 CRL.A 1147/2014 ,CRL.A.505/2015 ## and 2 read thus: - (1) Lacerated wound on the left side of back 3 x 2 x 3 cm size. - (2) do- 2 x 2 x 5cm near the 1[st] injury. The doctor spoke that injury no.1 could be caused by coming into contact with the blunt side of MO3 chopper. His such opinion was not challenged in cross-examination. The public prosecutor did not ask PW17 whether injury no.2 could also be caused by the blunt side of MO3. But, although not specifically stated by PW17, it can be inferred from his evidence and other evidence that injury no.2 could also be caused by the blunt side of MO3. Both injury nos 1 and 2 were lacerated wounds on the back of PW2 as stated by PW17. Those injuries were close to each other as seen from the evidence of PW17, although he did not measure the distance between the two. The said two injuries were more or less of the same size (3x2x3cms and 2x3x5 cms). PWs 1 to 4 were unanimous that the 4[th] accused cut PW2 on his back twice with a chopper. PWs 1 to 3 proved that the chopper used by the 4[th] accused was MO3. The ocular evidence does not suggest the attack on PW2 by any of the assailants other than the 4[th] accused with a chopper. It was elicited from PW17 in cross-examination that 15 CRL.A 1147/2014 ,CRL.A.505/2015 injury nos 1 and 2 which were on the back of PW2 could be caused by a blunt object. The discussion we had above would lead us to the conclusion that injury no.1 as well as injury no.2 could be caused by the blunt side of MO3 chopper. The medical evidence supports the ocular evidence that the 4[th] accused inflicted two injuries on the back of PW2 by attacking him with MO3 chopper twice. 20. The following are injury nos 3 and 4 sustained by PW2: - (3) A lacerated wound on the dorsum of right hand 1 x 1cm - (4) A lacerated wound back of right arm (തതതോളളിനന് തതോഴഴ) 2 x 2 x 1cm PW17 opined that those injuries could be inflicted with MO1. He added that those injuries being at the bony and tender area, a sharp weapon could cause laceration depending upon the area, angle and sharpness of the weapon. No question was put to PW17 in cross-examination touching injury nos 3 and 4. The medical evidence proves that those two injuries could be caused by MO1 sword. Such medical evidence lends corroboration to the ocular evidence that the 3[rd] accused with MO1 sword caused injuries to PW2. 21. PW17 spoke to injury nos 5 and 6 as well. Those 16 CRL.A 1147/2014 ,CRL.A.505/2015 ## injuries are reproduced below: (5) A compound fracture on left wrist with exposed bone. (6) Multiple lacerated wounds on the forearm and right big toe. According to PW17, injury nos 5 and 6 could be caused by an attack with MO2 double edged sword. It was also stated by him that injury no.5 could be caused while defending with hand the attack with sword. His evidence in cross-examination suggests that although he did not note in Ext P13 the nature of injury no.5 and its measurement, skin exposure did occur. He admitted in cross-examination that injury no.6 could be caused by a fall also. His such evidence in cross-examination does not ruin his evidence that injury no.6 also could be caused by MO2 sword. In view of the clear and cogent ocular evidence, the possibility of injury no.6 resulting from a fall should be ruled out. That should be the proper conclusion since PW2 sustained other injuries which could be caused only by weapons. We are satisfied that corroborative medical evidence is available in support of the ocular evidence that the 2[nd] accused inflicted injuries on the person of PW2 with MO2 sword. 22. The prosecution sets up two sets of recoveries of 17 CRL.A 1147/2014 ,CRL.A.505/2015 weapons. One of the recoveries was allegedly effected at the instance of the juvenile who was originally arraigned as the first accused. Any such recovery, if true and proved, binds him alone and not the others. Therefore the said recovery is neither material nor relevant for deciding the complicity of accused 2 to 4. 23. It is alleged that the other recovery was effected at the instance of the second accused and based on the disclosure statement made by him. The trial court did not accept the recovery on the ground that the authorship of concealment was missing in the disclosure statement. The learned public prosecutor Sri.S.U Nazar submitted that the said finding of the trial court was wrong. The learned public prosecutor wanted us to re-appreciate the evidence touching the recovery of MOs 1 to 3 and reverse the finding of the trial court. We in this connection refer to a decision of the division bench in which one of us was a party (A.M.Shaffique, J.) . The decision is **Muhammed Iqbal vs Station House Officer, Manjeswar Police Station (2018 (2) KLD 769** ). The decision holds that it is well within the jurisdiction of the appellate court to go into all the circumstances irrespective of the adverse finding rendered by the trial court on any circumstance. We therefore propose to consider the evidence 18 CRL.A 1147/2014 ,CRL.A.505/2015 on recovery of MOs 1 to 3 weapons. 24. PW19 arrested the second accused on 5.8.2002 and interrogated him. PW19 deposed to the disclosure statement allegedly made by the second accused. The disclosure statement of the second accused as deposed to by PW19 was that he (second accused) had kept the weapons, which were wrapped, in the shrubs near the 110 KV line at Randamchira and that he would show the place and the weapons if he was taken there. PW19 spoke that on getting the said information from the second accused and as led by the said accused he (PW19) reached the said place. PW19 deposed further that from the shrubs in the property of one Appu Pillai the second accused had taken the weapons which were two swords, a chopper and two iron rods which were wrapped in a cloth and that the same were produced before him(PW19). He spoke that he seized those weapons at 10.30 a.m on 6.8.2002 in the presence of CW22(PW11) and prepared Ext P5 seizure mahazar in which the disclosure statement was extracted. The disclosure statement extracted in Ext P5 was marked as Ext P5(a). PW19 identified in court the weapons he seized including MOs 1 to 3. 25. PW19 was cross-examined on his evidence on disclosure statement and recovery. In cross-examination he 19 CRL.A 1147/2014 ,CRL.A.505/2015 spoke that what the second accused stated was about weapons and that the second accused did not state about the types of weapons. It was also stated by PW19 in crossexamination that the second accused did not state that the weapons were wrapped using a cloth. These aspects would not affect the quality, admissibility and acceptability of the disclosure statement. What is relevant under Sec.27 of the Indian Evidence Act is the discovery of an incriminating fact consequent to the recovery. We do not see any reason to reject the evidence of PW19 on recovery of MOs 1 to 3. 26. PW11 attested Ext P5 seizure mahazar. He spoke that he witnessed the recovery and signed Ext P5. According to PW11, the second accused took something wrapped in a cloth and handed it over to the circle inspector of police. It was also the evidence of PW11 that the circle inspector opened it and found in it two swords, a chopper and two iron rods. The witness identified in court the second accused and also the chopper, swords and iron rods. We do not see anything in the cross-examination of PW11 to disbelieve him. The prosecution proved through PWs 11 and 19 the recovery of MOs 1 to 3 at the instance of the second accused. As already stated, PW19 proved the disclosure statement made by the second accused. 20 CRL.A 1147/2014 ,CRL.A.505/2015 27. The learned trial judge stated that the authorship of concealment was missing in the disclosure statement. In order to state so, what the learned judge considered was Ext P5(a) disclosure statement extracted in Ext P5 seizure mahazar. According to the learned trial judge, Ext P5(a) disclosure statement does not state as to who did conceal the weapons in the shrubs from where the weapons were taken by the second accused. Such a view is taken because Ext P5(a) statement does not contain the word 'ഞതോന ' (I or me) . But the disclosure statement of the second accused as deposed to by PW19 in court does contain the word 'ഞതോന ' (I or me) at the beginning. Sec.27 of the Indian Evidence Act reads thus: ## **27. How much of information received from accused may** **be proved** :- Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved. Therefore what is substantive evidence is the disclosure statement deposed to by the investigating officer in court and not what he had extracted in the seizure mahazar. The disclosure statement contained in the deposition of PW19 proves beyond any doubt that the second accused himself had 21 CRL.A 1147/2014 ,CRL.A.505/2015 concealed a few weapons including MOs 1 to 3. The aid of Sec.27 of the Indian Evidence Act cannot be denied to the prosecution only because the word 'ഞതോന ' (I or me) is missing in Ext P5(a). A learned single judge of this court in **Ramachandran vs State of Kerala (2008 (4) KHC 336)** stated as follows: “It is often seen that appropriate evidence regarding the discovery under S.27 of the Indian Evidence Act is not being brought in. The mahazar for the seizure of the material object, the extracted portion of the statement of the accused which lead to the discovery or even the evidence given by the investigating officer regarding that, may not mention the authorship of the sale/concealment of the material object. This often happens either because of ignorance of the relevancy and importance of evidence regarding the authorship of concealment/sale of the material object or inadvertence in recording the statement of the accused. The information leading to the discovery of the fact may be available in the statement of the accused recorded by the Investigating Officer. That statement is being recorded in the first person where, the accused starts by saying what he did in the particular case (which of course is not admissible in evidence) and in the course of that statement, he refers to the concealment/sale, etc. of the material object. At that particular portion of the statement, the accused may not have referred to his concealing/selling the material object. In such situation, it is the responsibility of the investigating officer to state in the evidence about the authorship of the concealment/sale of the material object if done by the accused and as the accused told him, in case it is so. If the investigating officer does not say that, then, certainly the Law Officer who conducts the prosecution for the complainant/State has to elicit that matter from the witness. And, if for any reason the Law Officer also does not do that, then it is the duty of the Trial Court to do that”. 22 CRL.A 1147/2014 ,CRL.A.505/2015 We approve the view taken by the learned single judge. We may also refer to a decision of the full bench of this court in **Ajayan @ Baby vs State of Kerala (2011 (1) KHC 1).** The reference to the full bench was answered as under: “In view of what we have stated above, we hold that authorship of concealment is not sine qua non to make information received from a person accused of an offence while in the custody of the Police Officer admissible under S.27 of the Act and that if the information as deposed to by the investigating officer is otherwise admissible in evidence it would not become inadmissible solely for the reason that the information deposed by the Police Officer does not reveal authorship of concealment. In other words, the view taken in the decisions of this Court that authorship of concealment is sine qua non for admissibility of the statement of the accused under S.27 of the Act is not correct in law”. The learned trial judge did err in rejecting the discovery under Sec.27 of the Indian Evidence Act on the ground that the disclosure statement did not contain the authorship of concealment. The finding of the trial court was wrong both factually and legally. 28. MOs 1 to 3 were subjected to chemical examination at the forensic science laboratory, Thiruvananthapuram. Ext P11 is the report of chemical examination. It proves that human blood of 'O' group was detected in MO2 sword. Ext P8 autopsy report shows that the deceased belonged to the blood 23 CRL.A 1147/2014 ,CRL.A.505/2015 group of 'O' positive. The ocular evidence does not suggest that the second accused who used MO2 sword attacked Suresh Babu. Therefore it was contended that the recovery of MOs 1 to 3 was of no consequence. The trial court did not accept the said contention. It is true that the investigating officer did not do anything to ascertain the blood group of PW2 who was attacked with MO2. The trial court relied on the evidence of PW2 that he was a person of 'O' group blood. He was asked in cross-examination about his driving licence. He spoke that to his memory the entry in the driving licence regarding his blood group was 'O' positive. It was an aspect brought out in crossexamination to the detriment of the second accused. PW2 stated that if necessary he would produce his driving licence. There is no point in contending that PW2 did not produce his driving licence. He did not produce it simply because he was not directed to produce it. His status being only that of a witness, he was unable to produce any document directly in court, particularly after his examination in court except on a summons directing production of any document. The defence which brought out in cross-examination something detrimental to the second accused did not call upon PW2 to produce the driving licence. We agree with the learned trial judge in accepting the available evidence that PW2 is a person of 'O' 24 CRL.A 1147/2014 ,CRL.A.505/2015 group blood. 29. The prosecution could explain the detection of 'O' group blood in MO2 sword used by the second accused. 'O' group blood was detected in MO1 sword used by the third accused who attacked with it Suresh Babu and PW2 who were persons of 'O' group blood. No blood was detected in MO3 chopper as seen from Ext P11 chemical examination report. It could be because the blunt side of it was used by the 4[th] accused to attack PW2. In any event, the ocular evidence proves that accused 2 to 4 used MOs 2,1 and 3 respectively. Those weapons were recovered at the instance of the second accused and based on his disclosure statement made to the investigating officer whilst in custody. We are satisfied of the discovery under Sec.27 of the Evidence Act which is an added incriminating evidence against the second accused. 30. Next we consider the technical arguments urged by the learned advocates appearing for the convicts. The FI statement was recorded and the FIR was registered by PW13 who was the sub-inspector of Kazhakoottam police station. The time of recording of the FI statement is not shown in it. The time of receiving the information in the police station to register the FIR is shown as 11 a.m in it. PW13 spoke that he received information over phone and reached the medical 25 CRL.A 1147/2014 ,CRL.A.505/2015 college hospital at 10 a.m and recorded the FI statement given by PW1. PW13 stated that after recording the FI statement he reached the police station and registered the FIR at 11 a.m. It was submitted by the learned advocates appearing for the convicts that it was impossible to register the FIR at 11 a.m and to record the FI statement at any time before 11.15 a.m. It was argued so on the basis of the time of examination shown in Exts P12 and P13 wound certificates as 11.15 a.m and 11 a.m respectively. It was also argued that the evidence of PW13 and Exts P1(a) and P1(b) body notes pertaining to PWs 1 and 2 respectively would show that they were undergoing treatment even before the recording of the FI statement. The above aspects pointed out by the learned counsel for the convicts would not suggest, in our opinion, anything beyond that the time 11 a.m shown in the FIR could be a mistake. Such a mistake, if a mistake, is not sufficient to reject the prosecution case and the proved overt acts of accused 2 to 4 by ocular evidence. 31. It is in evidence that soon after the incident Suresh Babu, PW1 and PW2 were rushed to the medical college hospital. The evidence of PWs 3 and 4 would show that the incident occurred at 9 a.m . It was in the car driven by PW7 the injured persons including Suresh Babu were taken to the 26 CRL.A 1147/2014 ,CRL.A.505/2015 medical college hospital. PW7 spoke that he came to the temple at 8.45 a.m and came out of the temple at 9 a.m. PW7 deposed that he saw Suresh Babu lying on the ground and PWs 1 and 2 sitting near Suresh Babu. PW7's evidence suggests that immediately thereafter he drove the car to the medical college hospital with all the three injured persons in the car. PW7's evidence in cross-examination proves that he reached the hospital before 9.30 a.m. It may be true that PW17 examined PW1 at 11.15 a.m and PW2 at 11 a.m. But they along with Suresh Babu were rushed to the hospital at around 9.30 a.m . We are unable to conceive that PWs 1 and 2 were left unattended in the hospital till they were examined by PW17 at 11.15 a.m and 11 a.m respectively. In this connection we refer to the evidence of PW17 who examined PWs 1 and 2 at the hospital. PW17 spoke that the day of examination of PWs 1 and 2 was a mass casualty day and that more than one serious cases had to be attended at the same time. PW17 deposed that patients with bleeding wounds would be first sent to get the wounds cleaned and thereafter only such patients would be seen by him. It is not at all probable that the cleaned wounds would be allowed to remain open till the doctor examines the patient. Necessarily first aid will have to be given and the wounds may have to be 27 CRL.A 1147/2014 ,CRL.A.505/2015 bandaged. The evidence of PW13 about the treatment received by PW1 before recording the FI statement and also Exts P1(a) and P1(b) body notes prepared by him (PW13) should not mean more than that. As deposed by PW2, his wounds were cleaned before he was removed from the casualty to the operation theatre. When PW13 prepared Ext P1 (b) body note pertaining to PW2, the latter was in the casualty and was lying in a stretcher. This is a clear indication that PW2 whose wounds were cleaned was not examined by PW17 when the FI statement was given by PW1. We do not see any merit in the contention that Ext P7 FIR was ante timed. We do not see anything even to find that any mistake had crept in the FIR where the time of its registration is shown. 32. Sri.Shabu Sreedharan, the learned counsel for the third accused, submitted that the names of a few accused were mentioned in the FI statement, but those names were not stated in the appropriate column in Ext P3 inquest report. Therefore, according to the learned counsel, the FI statement and the FIR came into existence only after the inquest. It is true that what is stated in column no.12 of the inquest report about the culprits is that 15 persons hailing from Randamchira who could be identified by sight. PW13 spoke that as instructed by the circle inspector of police, the former returned 28 CRL.A 1147/2014 ,CRL.A.505/2015 to the hospital and conducted the inquest at 12.30 p.m. What his evidence suggests is that he left the police station for the medical college hospital after registering the FIR. His evidence suggesting so was not touched in cross-examination. No suggestion was even put to him that he recorded the FI statement and registered the FIR only after preparing the inquest report. It is true that PW13 did not mention in column no.12 of Ext P3 the names of the assailants mentioned in the FI statement. But such omission is not sufficient to upset the prosecution case and the strong ocular evidence adduced on its side. Such omission in the inquest report is not sufficient to find that the FIR is ante timed. The Supreme Court has held so. We shall refer to the said decision in the next paragraph. 33. The learned senior counsel Sri.B.Raman Pillai appearing for the second accused argued that no eyewitness was questioned at the time of inquest. We do not see anything stated in Sec.174 of Cr.P.C insisting on to examine any eyewitness at the time of inquest. The investigation referred to in Sec.174 of Cr.P.C is not an investigation to find out the culprit. What the provision directs is that the police officer shall make an investigation and draw up a report of the apparent cause of death, describing such wounds, fractures, bruises and other marks of injury as may be found on the 29 CRL.A 1147/2014 ,CRL.A.505/2015 body, and stating in what manner, or by what weapon or instrument (if any), such marks appear to have been inflicted. We in this connection refer to **Brahm Swaroop vs State of UP (AIR 2011 SC 280)** . The decision holds that the basic purpose of holding an inquest is to report regarding the apparent cause of death, that is, whether it is suicidal , homicidal , accidental et cetera. It is also held that the evidence of eyewitnesses cannot be discarded if their names do not figure in the inquest report prepared at the earliest point of time. The Supreme Court holds further that the omission to mention the name of the accused in the inquest report will not necessarily lead to the inference that the FIR is ante timed. 34. The FIR was registered at 11 a.m on 30.7.2002. It reached the magistrate at 10.am on the next day. There was delay in forwarding the FIR to the magistrate, but the delay was not inordinate. There is nothing to suspect any manipulation in the FI statement and FIR. Therefore the delay is not fatal to the prosecution in the facts and circumstances of the present case. 35. It is seen from Exts P12 and P13 wound certificates pertaining to PWs 1 and 2 respectively that neither of them stated to the doctor the names of the assailants. We do not consider it to 30 CRL.A 1147/2014 ,CRL.A.505/2015 be fatal to the prosecution. A doctor may not record all details as a police officer does. Column no.9 of the wound certificate where the history and alleged cause of injury are to be stated is basically meant for knowing whether it is a medico-legal case from a doctor's point of view. When there are 13 assailants or more, it may not be possible for a doctor to mention such names. 30.7.2002 was a hectic day for PW17 who prepared Exts P12 and P13 wound certificates. We have already referred to his evidence that 30.7.2002 was a mass casualty day for him and that he had to attend many serious cases at the same time. The prosecution should not lose simply because the names of the assailants are not mentioned in the wound certificates. 36. It was pointed out that the place of incident as shown in Ext P12 wound certificate as stated to PW17 by PW1 was in front of the panchayat office at Sreekaryam. PW1 himself has stated in the FI statement that the place of occurrence was in front of the temple. That exactly was what PW2 stated to PW17 who prepared both Exts P12 and P13 wound certificates. The ocular evidence of four eyewitnesses also suggests so. Therefore what is recorded in Ext P12 could only be a mistake and is not sufficient to ruin the prosecution case. 37. It was argued that there was no drop of blood in the scene of occurrence. Ext P6 scene mahazar is silent about blood stains on the road. PW19 filed Ext P6(a) report stating that it was continuously raining in the area after the incident leaving no traces 31 CRL.A 1147/2014 ,CRL.A.505/2015 of evidence on the ground. According to Adv.Sri.Shabu Sreedharan, rain was introduced by the investigating officer to fill up the lacuna. It is true that PW19 went a bit casual while preparing Ext P6 scene mahazar. What he has stated in Ext P6(a) could have been stated in Ext P6 itself . But his casual approach is not sufficient to rule out the possibility of rains after the incident. PW12 who attested Ext P6 scene mahazar spoke in cross-examination that there were no blood stains in the place of occurrence. The cross-examination on that aspect did not stop there, but it was elicited from him that it was slightly raining at the time of preparation of Ext P6. Therefore the rains washing out the evidence of blood stains on the ground cannot be ruled out in toto. It cannot be disputed that it is rainy season in Kerala during June, July and even August. The defence does not have any case that no incident had taken place on 30.7.2002. What is denied is only the involvement of the accused persons. The defence version has been that a mob wearing masks committed the offences alleged against the accused persons. That means an incident did take place on 30.7.2002, whoever be the culprits. An incident in which one person died and two persons injured had taken place on 30.7.2002, whether or not there were bloodstains on the road. Absence of blood in the scene of occurrence cannot go against the prosecution beyond that it lost an item of evidence. 38 The learned counsel appearing for the convicts submitted that the charge framed by the court was totally defective. It is stated in the court charge that the second accused 32 CRL.A 1147/2014 ,CRL.A.505/2015 voluntarily cut Suresh Babu with a sword on his hand causing grievous injury. The prosecution has no such case. The person whom the second accused cut on the hand with sword was PW2 and not Suresh Babu. Obvriously, the name of Suresh Babu shown in the charge while stating the overt act of the second accused is a mistake for PW2. The charge states that the 4[th] accused cut Suresh Babu with a chopper. The 4[th] accused with a chopper cut PW2 and not Suresh Babu. Again, the name of Suresh Babu is stated instead of PW2. We agree that the expected care was not taken by the court below while framing the charge. But that is not sufficient to destroy the prosecution case. Sec.212 (1) of Cr.P.C provides, inter alia, that the charge shall contain such particulars as to the person against whom the offence was commited. But Sec.215 of Cr.P.C which deals with the effect of errors in the charge should also be read. It states, inter alia, that no error in stating the particulars required to be stated in the charge, and no omission to state those particulars, shall be regarded at any stage of the case as material, unless the accused was in fact mislead by such error or omission, and it has occasioned a failure of justice. We are not shown in what manner accused 2 and 4 were prejudiced for the reason of the errors in the charge pointed out on the defence side. No error in the charge was pointed out to the trial court when it heard the final arguments. Therefore it can be safely said that no prejudice was caused to accused 2 and 4 33 CRL.A 1147/2014 ,CRL.A.505/2015 and that no failure of justice occasioned. 39. Motive. It came out from the horse's mouth. As has been stated already, before commencement of the attack on the victims, the 3[rd] accused made an utterance indicating that the attack was the revenge against beating one Shibu hailing from Randamchira during festival. PWs 1 to 3 spoke to the said utterance made by the 3[rd] accused. We have already discussed such evidence of PWs 1 to 3. The learned senior counsel Sri.B.Raman Pillai drew our attention to an omission in the statement of PW3 recorded under Sec.161 of Cr.P.C. The said omission only suggests that PW3 did not state to the investigating officer that the said Shibu was the friend of the accused. The said omission does not enfeeble the evidence of PW3 that he heard the utterance of the 3[rd] accused indicating the motive. We do not see anything in the cross-examination of PWs 1 to 3 to disbelieve their evidence that they heard the utterance of the 3[rd] accused. The motive came out from the mouth of the 3[rd] accused and it was heard by PWs 1 to 3. No further proof needs to be insisted on to prove the motive. Non-examination of Shibu and the failure to establish his friendship with the accused are of less importance when the 3[rd] accused declared the motive at the time of the incident. And, motive loses its significance when the ocular evidence is 34 CRL.A 1147/2014 ,CRL.A.505/2015 strong. 40. It cannot be disputed, and is not in dispute, that the death of Suresh Babu was a homicide. Of eleven ante-mortem injuries noted by PW14 on the corpse, two were fatal injuries. Those were injury nos 1 and 2. We have extracted injury no.1 at paragraph 18 of this judgment. Injury no.2 is extracted below: Contusion of scalp 13 x 8 x 0.5 cm on the left side of head just above the top of ear lobe. The temporal muscle underneath also was contused in its whole thickness. The parietal and temporal bones underneath showed a fissured fracture 10 cm long, oblique in disposition. Brain showed thick bilateral subarachnoid bleeding, basal subdural bleeding, contusion 4x2x0.1cm on the undersurface of left temporal bone and signs of raised intracranial tension. PW14 opined that the death was due to injury nos 1 and 2 on the head. It was also his opinion that injury nos 1 and 2 were sufficient in the ordinary course to cause death. Injury no.1 was inflicted by the 3[rd] accused by cutting with MO1 sword. Injury no.2 was allegedly inflicted by the juvenile (accused no.1 originally) by beating with a stick. PW14 spoke in crossexamination that injury no.1 or 2 alone might not necessarily be fatal. On the strength of the said statement of PW14, 35 CRL.A 1147/2014 ,CRL.A.505/2015 Sri.Shabu Sreedharan argued that the 3[rd] accused was not liable to be convicted under Sec.302 of IPC without the aid of Sec.34 of IPC. We are unable to accept the argument of the learned counsel. PW14 deposed that injury nos 1 and 2 had a collective effect on the brain which had resulted in the death of the victim. That means the 3[rd] accused contributed to the death of the dead by inflicting a fatal injury on the head with MO1 sword, a dangerous weapon. The 3[rd] accused cannot escape conviction under Sec.302 of IPC. We confirm his conviction thereunder. He was imposed only the minimum sentence under Sec.302 of IPC. We confirm the life sentence imposed on him by the trial court. 41. The trial court convicted accused 2 and 4 under Sec.302 of IPC read with IPC 34. It was argued that Sec.34 of IPC was not attracted for want of any material to suggest any common intention for accused 2 and 4 to commit murder of Suresh Babu. The learned public prosecutor submitted that accused 2 and 4 did have the common intention to commit murder as they came together with the third accused, surrounded the victims and attacked them. We shall consider the evidence in this connection. 42. PW1 stated that before he and others were attacked, the accused persons gathered at the bus stop which 36 CRL.A 1147/2014 ,CRL.A.505/2015 was on the opposite side of the road. Gathering or assembling at a place would suggest that the accused persons came from different places in groups or individually. PW19 deposed that what he understood during investigation was that the accused persons came one by one before their such gathering (at the bus stop). PW3 spoke in cross-examination to the effect that the accused persons came separately and they joined. Among the convicts, the 3[rd] accused alone attacked and inflicted injuries on Suresh Babu. Accused 2 and 4 did not join the 3[rd] accused to attack Suresh Babu. The 3[rd] accused came hiding MO1 sword inside his shirt. PW3 spoke that he saw the sword only when the 3[rd] accused took it from behind. It was also the evidence of PW3 that the victims were not surrounded by the assailants when the 3[rd] accused cut Suresh Babu with the sword. PW3 spoke that when the 3[rd] accused cut Suresh Babu, the other assailants did not do anything. The evidence would suggest that the 3[rd] accused had the murderous intention. His was an unexpected move. In the light of what we have stated above, it cannot be said that accused 2 and 4 shared a common intention to attract Sec.34 of IPC. 43. As we have found that Sec.34 of IPC is not attracted, accused 2 to 4 shall be liable for their individual acts only . We have already confirmed the conviction and 37 CRL.A 1147/2014 ,CRL.A.505/2015 sentence on the 3[rd] accused under Sec.302 of IPC. Suresh Babu was not attacked by accused 2 and 4 and therefore they shall be acquitted of the charge under Sec.302 of IPC. 44. All the convicts attacked PW2 and caused him injuries. PW2 sustained a compound fracture on his left wrist with exposed bone. The said injury was inflicted by the second accused by cutting with MO2 sword. The learned senior counsel Sri.B.Raman Pillai argued that the second accused could not be convicted for any offence beyond the one punishable under Sec.326 of IPC. It is not possible to agree with the learned senior counsel. It is true that the evidence does not suggest that the second accused did have the intention to cause the death of PW2. But he had the knowledge within the meaning of Sec.307 of IPC. PW2 spoke that the second accused struck a blow with MO2 sword aiming his (PW2) neck. It hit his left hand only because he defended it with his hand. The depositions of PWs 3 and 4 also prove that the second accused executed a blow with a sword aiming the neck of PW2 and that PW2 defended the hit with his hand. Therefore we find that the second accused had the knowledge that if he by his said act had caused death, he would be guilty of murder. We confirm his conviction under Sec.307 of IPC. The sentence imposed on him thereunder by the trial court 38 CRL.A 1147/2014 ,CRL.A.505/2015 was neither excessive nor disproportionate. We confirm the sentence too. 45. The 3[rd] accused who was brutal to Suresh Babu was not so to PW2. The 3[rd] accused cut PW2 with MO2 sword and caused him two lacerated wounds; one on the dorsum of the right hand and the other on the back of the same hand. It cannot be said that he had the knowledge that his act would cause the death of PW2. The conviction and sentence on the third accused under Sec.307 of IPC is liable to be set aside. We set it aside. Having voluntarily caused hurt to PW2 with a sword, the 3[rd] accused is liable to be convicted under Sec.324 of IPC. We convict him thereunder. 46. The conviction of the 4[th] accused under Sec.307 of IPC is also not supportable. He attacked PW2 with MO3 chopper and thereby inflicted two lacerated wounds on the back of the victim. Those injuries were inflicted with the blunt side of the chopper and not with the sharp edge of it. He committed only an offence under Sec.324 of IPC. We set aside his conviction and sentence under Sec.307 of IPC and convict him under Sec.324 of IPC. 47, We have convicted accused 3 and 4 under Sec.324 of IPC for their having voluntarily caused hurt to PW2 by means of instruments for cutting. In the facts and 39 CRL.A 1147/2014 ,CRL.A.505/2015 circumstances of the case, we are of the opinion that they should receive the maximum jail sentence provided under Sec.324 of IPC, besides fine. The trial court under Sec.307 of IPC imposed a fine of Rs 50,000/- We do not propose to reduce the quantum while awarding fine under Sec.324 of IPC. 48. We allow both the appeals partly. The conviction of the 3[rd] accused under Sec.302 of IPC and the sentence imposed on him thereunder are confirmed. The conviction and sentence on the second accused under Sec.307 of IPC are also confirmed. The conviction of accused 2 and 4 under Sec.302 of IPC and the conviction of accused 3 and 4 under Sec.307 of IPC and the consequent sentences imposed on them by the trial court are set aside. Accused 3 and 4 are convicted under Sec.324 of IPC and they are sentenced thereunder to rigorous imprisonment for three years and a fine of Rs 50,000/- (fifty thousand only). If fine is defaulted by accused 2, 3 or 4, the defaulter shall undergo rigorous imprisonment for a further period of six months. The 3[rd] accused shall undergo the substantive sentences of imprisonment concurrently only. The period of detention undergone by the convicts in connection with this case shall be given set off under Sec.428 of Cr.P.C. But so far as the life sentence is concerned, the 3[rd] accused is entitled to such set off only if the government 40 CRL.A 1147/2014 ,CRL.A.505/2015 exercises its powers under Sec.432 or 433 of Cr.P.C. The direction of the trial court to pay compensation under Sec.357 of Cr.P.C is retained. The trial court is directed to comply with rule 114 of the Criminal Rules of Practice, Kerala. sd/- **A.M.Shaffique Judge** sd/- **A.M.Babu Judge** sks/6.4.2019 41 CRL.A 1147/2014 ,CRL.A.505/2015