Kerala High Court
Shanto @ Shantappan vs State Of Kerala on 8 July, 2021
CR
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
&
THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.
THURSDAY, THE 8TH DAY OF JULY 2021 / 17TH ASHADHA, 1943
CRL.A NO. 954 OF 2016
AGAINST THE JUDGMENT IN SC 859/2015 OF ADDITIONAL DISTRICT
COURT, IRINJALAKUDA, THRISSUR
C.P NO.79/2015 OF JFCM COURT, CHALAKKUDY (CRIME NO.590/2015 OF
VELLIKULANGARA POLICE STATION, THRISSUR)
APPELLANTS:
1 SHANTO @ SHANTAPPAN, AGED 26 YEARS
S/O.PAILAN,CHERUPARAMBIL HOUSE, VASUPURAM
DESOM,MATTATHUR VILLAGE
2 JITH AGED 29 YEARS
S/O.SIVAN,KIZHAKKEPURAKKAL HOUSE,VASUPURAM DESOM,
MATTATHUR VILLAGE
3 DENNIS,AGED 29 YEARS, S/O.DAVIS,POTTAKKARAN HOUSE,
VASUPURAM DESOM,MATTATHUR VILLAGE
4 SIVADASAN,AGED 24 YEARS, S/O.CHANDRAN,CHAVARAKKADAN
HOUSE, VASUPURAM DESOM,MATTATHUR VILLAGE
5 RAJAN AGED 46 YEARS, S/O.VELAYUDHAN,IYNIKKADAN
HOUSE, VASUPURAM,PAPPALIPPADAM DESOM, MATTATHUR
VILLAGE
BY ADVS.
SRI.P.VIJAYA BHANU (SR.)
SRI.C.JAYAKIRAN
SRI.V.C.SARATH
RESPONDENT:
STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF
KERALA, ERNAKULAM.
BY ADV ADDL.DIRECTOR GENERAL OF PROSECUTION
OTHER PRESENT:
SRI.ALEX.M.THOMBRA, SENIOR PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON
25.06.2021, THE COURT ON 08.07.2021 DELIVERED THE FOLLOWING:
Crl.A.No. 954 of 2016 - 2 -
CR
K. Vinod Chandran &
Ziyad Rahman A.A., JJ.
--------------------------
Crl.A.No. 954 of 2016
--------------------------
Dated this the 08th day of July 2021
JUDGMENT
K. Vinod Chandran, J.
Political ideology occupies an exalted place in
civil society, but it should enable that society to reach
out to higher ideals and sublime values, not lead to
mindless killing, plunging families into grief and holding
that society itself to ransom. We refrain from referring
to the political colours of the parties since, in death,
affiliations and ideologies fade into obscurity. Suffice
it to say that a young man was brutally hacked to death by
his political rivals. On an Onam day, when the people of
the State; as legends would have, welcomes a most noble
and virtuous King of yore, in whose regime, it is said
there existed no dishonesty or deceit; the young man was
called out to the streets, from his friend's house,
brutally attacked with lethal weapons and dismembered,
literally butchering him alive.
2. The charges were under Sections 120B, 143,
147, 148, 324, 307, 302, 212, 109, 201 read with 149 of
the Indian Penal Code. There were 18 accused arrayed
before the Sessions Court, of which accused 1 to 4 & 7
alone stood convicted. All of them were handed down
sentences of imprisonment for life, fine of Rs.75,000/-
with default rigorous imprisonment (RI) for six months
under Section 302, RI for six months and fine of
Rs.20,000/- with default R.I. for two months for Section
324 read with 149 IPC, simple imprisonment (SI) for one
month and fine of Rs.500/- with a default sentence of SI
for 15 days under Section 341, SI for three months and
fine of Rs.5,000/- with default SI for one month under
Section 143 and RI for four months and fine of Rs.10,000/-
with default SI for two months under Section 148 IPC. The
prosecution examined PW1 to PW23 and marked Exts.P1 to P99
[100 in number] and material objects MO1 to MO27 were also
marked. The defence marked D1 to D13. The State has not
filed any appeal from the acquittals ordered by the
Sessions Court. In the present appeal, we are only
concerned with the conviction and sentence of A1 to A4 and
A7. The larger conspiracy said to have been hatched with
the other accused and the presence of some of the others
have been disbelieved by the Sessions Court.
3. Learned Senior Counsel at the outset urge that
there is absolutely no evidence to convict the accused.
The theory of a conspiracy, at the behest of a political
party, in which the eighteen accused were said to have
actively participated has not been established by the
prosecution. Some of the witnesses paraded before Court
were disbelieved and many among the accused were
acquitted. The appellants were found guilty only on the
sole eyewitness testimony of PW1. PW1's presence is very
doubtful and he is a planted witness, just as the accused
are arrayed at the dictates of the political overlords.
PW1 and the deceased belonged to the same political party
and there was alleged, an attack against PW1 on the
previous day. The appellants were wrongly accused of the
earlier incident and it was only to settle scores that the
appellants were included in the array of accused. The
appellants were not involved in the incident and there is
no scientific evidence to connect them to the crime. The
incident occurred in a residential area on the afternoon
of a festival day and PW1 states that many of the
residents gathered, hearing the threats shouted by the
aggressors and the cries of the victim. However, none of
the residents were made witnesses by the prosecution, thus
totally avoiding independent testimonies of the incident.
The presence of PW1 is highly doubtful and the expert
opinion regarding his injuries throw further suspicion on
his narrative. The injuries seen on the body of PW1 were
marginal and could have been self-inflicted, just to
establish his presence at the scene of occurrence or
suffered on the previous day. The trial Court has
unnecessarily laboured on the digital data produced by the
prosecution to find the presence of PW1 at the scene of
occurrence ignoring the fact that he is a resident of the
same locality. More pertinently, the investigation was
confined to the mobile numbers of the deceased and PW1.
There was no effort to ferret out the mobile number of A7
who is said to have called PW1 just before the incident,
asking him to send out the deceased to the midst of the
waiting assailants. A1 and A2 were taken into custody when
they were rescued by the Police from a mob attack, about
7km distant from the scene of occurrence. The presence of
blood in their dress was their own and nothing connects
them to the crime as discernible from the chemical
analysis carried out. The appellants are wrongfully
convicted and it is prayed that they be acquitted of the
charges.
4. Learned Senior Public Prosecutor,
Shri.Alex.M.Thombra meticulously took us through the
evidence, which according to him establishes the crime to
have been committed by the appellants herein. Though the
conspiracy has not been established, for which reason the
other accused were acquitted, the case of the prosecution
against the appellants holds good. They are the persons
who were seen to have committed the overt acts and there
is no escape from the fact that the brutal attack on the
victim was by A1 to A4. A7 called the victim out, from his
friend's house, to be meted out a gruesome end to his
life. The learned Prosecutor also relies on the recoveries
and the scientific evidence to bring home the guilt of the
accused-appellants. The trial Court has misdirected itself
in disbelieving the other witnesses, who were credible and
independent, who had no axe to grind against the
perpetrators of the crime. The conviction and sentence
have to be upheld argues the Prosecutor.
5. The post-mortem was conducted by PW20, who
marked the report as Ext. P27. The post-mortem report
shows a total of 16 incised wounds (lethal-according to
us), 3 superficially incised wounds, 3 lacerated wounds
and 5 abrasions. Death was due to multiple incised wounds
to the upper and lower limbs. We are not detailing the
wounds but we cannot but mention some of them. One of the
wounds (injury No. 5) on the back of the left-hand
transected inner three fingers; leaving those fingers
attached by a skin tag with the partial cutting of the
index finger at the base, another (injury No. 10) 12 cm
below the knee the outer leg bone was cut for its full
thickness and the inner bone partially, yet another
(injury No.11) 12cm further below where again the tendons
and the outer leg bone were fully cut, a wound (injury
No.12) underneath the tendons which cut the outer leg bone
fully and one (injury No.13) cleanly cutting the muscles,
vessels, nerves and leg bones at both ends above the left
heel; dismembering him. The right leg also had seven
incised wounds, on the right knee, in front of that leg,
one (injury No.16) 17 cm below knee cutting tibia to 3/4 th
of its thickness, another (injury No. 17) which cut the
shaft of the tibia for its full thickness, again three
injuries (injuries No.18, 19 & 20) cutting tibia to its
full thickness and so on and so forth. The deceased was
brought to the hospital in two pieces with the left foot
neatly severed from the body. The Doctor opined that
injury numbers 10, 11, 13, 16, 19 and 20 described herein
above would have rendered the victim immobile. The
injuries as per the expert opinion were sufficient in the
ordinary course of nature to cause death. The sharp
weapons used for hacking and the blunt ones which caused
the lacerations were shown to the Doctor who deposed that
it was possible with those weapons to cause the wounds,
more fully described in the report. It was elicited in
cross-examination that death was due to blood loss and
shock, the shock being a consequence of bleeding. That it
was a homicide is beyond doubt and it can be assertively
inferred that the victim was hacked to death by more than
one person; the group acting in tandem and with a common
object; the intention of snuffing out the victim's life.
None, in their right senses, could have imagined that the
victim survives the injuries inflicted.
6. The incident narrated by PW1 to the Police, is
seen from Ext. P1, FIS and is as follows. On 28.08.2015 at
about 3.00 p.m, along with the victim, he was having food
at his residence, when A7 called him over the mobile
phone. A7 asked him to send out the victim, who was
planned to be killed by 'them'. He came out of his house
and saw A7, one Sandeep and another person sitting in an
autorickshaw. On seeing PW1, A7 asked him to send out the
victim, who was wanted by 'them' and drove off in the
autorickshaw. When A7 departed, PW1 along with the victim,
came out of the house and walked towards the nearby
temple. At that point, six persons on three motorbikes
waylaid the two. A1 was riding pillion in the motorbike
ridden by A2, A3 pillion in the bike of A4 and two others
in the third motorbike who alone had covered their faces
with towels. A1 and A3 had two weapons each, in their
hands and the pillion in the third bike had two iron pipes
with him. On alighting from their respective vehicles, A1
handed over one sword to A2, as did A3 to A4 and the
pillion in the third bike handed over one iron pipe to the
rider. A1 shouted at the victim that he will be killed and
slashed him on the head with the sword. The victim fell when
PW1 intervened and then A2 aimed the sword at PW1's neck,
which caused injury on his back. A3 and A4 chopped on the
fallen victim's body several times, exhorting others to kill
him. The masked riders who came on the 3 rd bike also
assaulted the two victims with iron pipes. PW1 in a bid to
escape, ran but was followed by A2 who again cut him on
his back. Hearing the commotion PW4, the brother of PW1,
came out of the temple and ran to his rescue. Seeing PW4,
A2 re-joined the others asking the fallen victim whether
he was not dead yet, and again chopped on his body. The
nearby residents were crying aloud and they came out, when
the assailants, with their weapons, fled the scene in
their bikes. PW1 then rushed to his house and took out his
vehicle (Tavera) and brought it to the place where the
victim was lying fallen. He along with Unni (PW5), Sandeep
(PW9), Devadas and Lijesh (PW6) took the victim to Santhi
Hospital. PW5 drove the vehicle, while the victim was
bleeding profusely and was constantly asking for water.
The wound on PW1's back was also bleeding. At Santhi
Hospital the victim was given first aid and directed to be
taken to a higher centre. The victim was then taken to
Aswini Hospital where the Doctors certified him as brought
dead.
7. PW1 also spoke of the earlier incident, on the
previous day, when A1 to A4 along with Saleesh and Vigil
attacked him with iron rods. He spoke of the respective
political affiliation of himself, the deceased and the
accused. The motive was spoken of as the ill will
harboured by the accused, on the deceased questioning the
rival party members about the destruction of a flag post.
A1 to A4 were specifically named and so was A7 who was
instrumental in summoning the victim onto the streets. PW1
also claimed that he can identify the masked assailants
who came in the third bike. He asserted that the three
persons along with A7 were sitting in the autorickshaw,
parked at a distance watching the proceedings.
8. PW1 spoke more or less in tune with the FIS
and his statement to the Police. Before Court PW1 in
addition to the FIS said that immediately after the
incident two persons from Chembuthra came to the spot on a
bike and howled. When the public gathered at the spot they
departed, said PW1. PW2 and PW3 were arrayed as
eyewitnesses; whose depositions were disbelieved by the
trial Court. It was held that their evidence is surrounded
by suspicious circumstances and their presence at the spot
itself was doubtful. Their version, that they were
proceeding to purchase articles for a coming festival, was
disbelieved, rightly so, since, on Onam day, most of the
shops will be closed. The trial Court also pertinently
noticed that despite claiming to be eyewitnesses, they
never approached the Police. They were questioned after a
month, on 29.09.2015. We find no reason to come to a
different finding especially since their presence was not
mentioned by PW1 at the time of First Information and it
was neither conveyed to the Police or the Magistrate when
statements were recorded.
9. PW6 spoke about the deceased having called him
just before the incident, to convey the threats levelled
by A7 and later called to inform him that the deceased was
stepping out of the house to see A7, who was standing
outside. This was disbelieved for the crucial calls from
the deceased to the witness was omitted to be mentioned by
PW6, before the Police and before the Magistrate. PW8,
before Court, deposed that he saw two persons (A1 & 2)
holding swords and having blood on their dress climbing
into CW15's autorickshaw along with A7. PW8 was questioned
by the Police almost two months after the incident and his
version of the flight of A1 and A2 was quite contrary to
the statement of PW1, who saw them escaping from the spot
on the bikes in which they came there. PW9 heard about the
incident and rushed to the spot to see A1 and A2 running
away, which again was contrary to the evidence of PW1 .
PW15 was the witness of Ext.P18 to Ext.P21 recovery
mahazars MO-4 (dress of A3), MO-11 (dress of A7), MO-26
(dress of A4) and MO-27 (mat taken out by A7). He admitted
his allegiance to the political party of PW1 and the
deceased. The Court found it very unnatural for the Police
to have taken this witness along with them in making
various recoveries from different places. Further except
for the mat, which was used in the autorickshaw, all the
other MOs; dresses used by different accused, were marked
as those used by the respective accused and not as
recovered by them. PW15 was not an eye-witness to the
incident and the recovered objects stated to have been
used by the accused cannot be relied on. As was held by
the trial Court we too find it difficult to rely on the
evidence of PWs: 2,3, 6, 8, 9 and 15 to that extent. This,
however, does not result in absolving the accused since
there is one crucial eye-witness, relied on by the
prosecution, whose presence according to the accused is
very doubtful on the spot.
10. PW1 as we noticed, spoke in tune with the FIS
but made certain deviations one of which was concerning
PW2 and PW3; whose evidence has to be eschewed totally.
Then, PW1 before Court named two other persons having been
involved in the incident, ie: Vibin Babu(A6) and
Kannan(A5). These two were the persons who were said to
have been wearing masks and travelling on the third bike,
both of whom were acquitted by the trial Court. In the
FIS, PW1 only said that he could identify on sight the
masked riders in the third bike; not being acquainted with
them. But later he named them, contrary to the first
version. However, it is pertinent that concerning A1 to A4
and A7; PW1 stuck to his earlier version, with minor
variations concerning the threats levelled by the
assailants and the statements made by them in the course
of the incident. These are only vague recollections made
of an incident; which definitely would have left PW1
shaken and the minor variations, we find to be not very
material. The essential elements of A7 having called out
the victim, A1 to A4 having waylaid them and brutally
attacked the victim while chasing away PW1, was deposed by
him in tune with the FIS and statements under 161 and 164.
11. The trial Court has very elaborately
considered PW1's presence at the scene of occurrence on
which hinges the veracity of the prosecution case. The
learned Sessions Judge has relied on the call details of
the mobile numbers subscribed by PW1 and the deceased,
produced at Ext.P24 by PW17, to find their presence in the
locality. Ext.P24 indicates the number 8086861654 having
been subscribed to by PW1 and activated as of 06.06.2011.
A call from 9447463571 came to PW1's number at 15:36:27
hours. The call details of the deceased, in 9745751397
also showed calls at the crucial time. The learned
Sessions Judge referred to the Cell ID, which identifies
the Tower intercepting the calls, to find PW1's presence
along with the deceased, at the scene of occurrence.
However, we do not see any evidence as to the exact
location of the Tower whose number has been extracted by
the trial Court. No questions were asked to PW17 as to the
location of the said Tower through which the signals of
the call were transmitted. Further, even if the location
was specified it only indicates both the mobiles being in
the same area and does not place the subscribers in the
exact spot, since every Tower has coverage over a larger
area. We agree with the learned Senior Counsel that the
call details produced cannot corroborate the presence of
PW1 in the scene of occurrence as put forth by the
prosecution.
12. PW1 however graphically described the
incident and named four persons, the appellants 1 to 4
herein as having participated in the attack on himself and
the deceased. A7 called the deceased out with the specific
intention of facilitating the design of the assailants.
The discrepancy concerning the time as projected by the
prosecution has been correctly dealt with by the trial
Court; it is only 25 minutes. In the FIS the time of
occurrence was stated as 3.45 p.m which was corrected as
4.09 p.m by Ext.P90 correction statement. According to PW1
after the incident the deceased along with PW1 and others
were taken first to Santhi Hospital and then a higher
centre; Aswini Hospital at Thrissur. Ext.P30 is the wound
certificate issued in the name of PW1. The date and hour
of examination is seen as 5.25 p.m on the very same day.
The history has been stated as assault with swords and
sticks by eight persons at Vasupuram, Kodakara on
28.08.2015 at 3.30 p.m. Linear abrasions were seen on the
back of chest at mid-line and horizontal abrasions over
left scapula with a black eye (left) and bleeding from the
left ear. The examination of PW1 was immediately after the
incident and the history spoken of tallies with his later
version to the Police.
13. PW21 is the Doctor who examined PW1. The
Doctor's evidence does not support the version of PW1 is
the specific contention raised by the appellant. It is
argued that the wounds were so negligible and could not
have been caused when cutting with a sword which would
have resulted in bleeding injuries. It is also pointed out
that PW1 was discharged on the next day, on his request
and he was not willing to have a CT scan done, which
conduct is suspicious. PW21 in cross-examination indeed
stated that except for ear-bleeding the other injuries are
simple in nature. It was also affirmed that the ear-
bleeding and black eye could be on account of injuries
sustained on the previous day. The abrasions and lacerated
wounds were stated to be not bleeding injuries and the
Doctor could not opine on the age of the injuries. We do
not think that the opinion of the Doctor throws any
suspicion as to the injuries caused on PW1 in the
incident. The deposition of the Doctor was recorded almost
ten months after the wound certificate was issued. The
injuries on the shoulder and the back, though a minor
laceration and abrasions validate the version of PW1 that
A2 had first aimed at his neck and then on his back, while
he was running away. The weapon as can be seen from the
injuries could only have nearly graized the body of PW1.
It is only natural that amid the gruesome incident, when
his friend was being mercilessly cut up, PW1 would have
thought, in the spur of the moment, that his injuries also
were serious. The abrasions and lacerated wound would have
singed his skin and he would not have had the time to
verify the severity. In the ensuing shock, he also would
not have been able to drive, as stated by him. The FIS was
also given on 28.08.2015 at night from the hospital at
10.40 p.m where PW1 was admitted. The FIR(Ext.P47) was
registered at 1.15 a.m on 29.08.2015 which reached the
Court at 1.25 p.m of that day. We do not see any chance of
a conscious deliberation on the part of the prosecution or
the witnesses to rope in unconnected people, as accused in
the crime, merely based on their political affiliation.
14. In addition to this, PW4 is a natural
witness, the priest of the temple, just in front of which
the incident occurred. PW4 is the brother of PW1 and he
said that he saw his brother being chased by two persons
with a sword. He also identified A1 and A2 as the persons
who chased PW1. PW5, Unni, who helped PW1 to carry the
deceased to the vehicle and drove the vehicle, attests to
the presence of PW1 at the scene of occurrence, having
come to the spot immediately after the incident. He is a
driver by profession and was informed that the deceased
was lying fallen near the temple and there is nobody to
take him to the hospital. When he reached the spot in his
bike he saw the deceased being carried into PW1's vehicle
by PW1 and two others. PW1 due to his injury asked PW5 to
drive. He also spoke of the deceased and PW1 being taken
first to Santhi Hospital where he developed dizziness and
came back asking the others to take the injured in an
ambulance. In cross-examination, it was pointed out that
there is an omission in the statement to the Police about
PW1 having asked him to drive the vehicle due to the
injuries on PW1. We do not think that the omission is so
material as to disbelieve the version of PW5.
15. PW6 though disbelieved on his statement of
the deceased having called him just before the incident,
his further evidence corroborates that of PW1 and PW5. It
is trite that the maxim 'falsus in uno, falsus in omnibus'
does not apply in India. Shakila Abdul Gafar Khan v.
Vasant Raghunath Dhoble, (2003) 7 SCC 749: 2003 SCC (Cri)
1918, at page 764 :
25. It is the duty of the court to separate the
grain from the chaff. Falsity of a particular material
witness or a material particular would not ruin it
from the beginning to end. The maxim "falsus in uno
falsus in omnibus" has no application in India and the
witnesses cannot be branded as liars. The maxim
"falsus in uno falsus in omnibus" has not received
general acceptance nor has this maxim come to occupy
the status of rule of law. It is merely a rule of
caution. All that it amounts to is that in such cases
testimony may be disregarded, and not that it must be
disregarded. The doctrine merely involves the question
of weight of evidence which a court may apply in a
given set of circumstances, but it is not what may be
called "a mandatory rule of evidence". (See Nisar Ali
v. State of U.P AIR 1957 SC 366).
26. The doctrine is a dangerous one especially in
India for if a whole body of the testimony were to be
rejected, because the witness was evidently speaking an
untruth in some aspect, it is to be feared that
administration of criminal justice would come to a dead
stop. Witnesses just cannot help in giving embroidery
to a story, however true in the main. Therefore, it has
to be appraised in each case as to what extent the
evidence is worthy of acceptance, and merely because in
some respects the court considers the same to be
insufficient for placing reliance on the testimony of a
witness, it does not necessarily follow as a matter of
law that it must be disregarded in all respects as
well. The evidence has to be sifted with care. The
aforesaid dictum is not a sound rule for the reason
that one hardly comes across a witness whose evidence
does not contain a grain of untruth or at any rate an
exaggeration, embroideries or embellishment. (See
Sohrab v. State of M.P(1972 (3) SCC 751) and Ugar Ahir
v. State of Bihar(AIR 1965 SC 277). An attempt has to
be made to, as noted above, in terms of felicitous
metaphor, separate the grain from the chaff, truth from
falsehood. Where it is not feasible to separate the
truth from falsehood, because grain and chaff are
inextricably mixed up, and in the process of separation
an absolutely new case has to be reconstructed by
divorcing essential details presented by the
prosecution completely from the context and the
background against which they are made, the only
available course to be made is to discard the evidence
in toto. (See Zwinglee Ariel v. State of M.P (AIR 1954
SC 15) and Balaka Singh v. State of Punjab ((1975) 4
SCC 511). As observed by this Court in State of
Rajasthan v. Kalki ((1981) 2 SCC 752) normal
discrepancies in the evidence are those which are due
to normal errors of observation, normal errors of
memory due to lapse of time, due to mental disposition
such as shock and horror at the time of occurrence and
those are always there, however honest and truthful a
witness may be. Material discrepancies are those which
are not normal, and not expected of a normal person.
Courts have to label the category to which a
discrepancy may be categorized. While normal
discrepancies do not corrode the credibility of a
party's case, material discrepancies do so. These
aspects were highlighted recently in Krishna Mochi v.
State of Bihar ((2002) 6 SCC 81), Gangadhar Behera v.
State of Orissa ((2002) 8 SCC 381) and Rizan v. State
of Chhattisgarh ((2003) 2 SCC 661).
Though the witness has been disbelieved on one aspect so
much of his evidence, which can be corroborated otherwise,
can definitely be looked into. PW6 stated that he came to
the spot after the victims were taken to the hospital. He
was informed that they were taken to Santhi Hospital to
which place he rushed. He joined PW1 and others who had
taken the deceased, at Santhi Hospital from where he drove
the vehicle since PW5 developed dizziness. So much of the
evidence of PW6 corroborates the version of PW1 and PW5.
Similar is the deposition of PW8 who was disbelieved on
his version of A1 and A2 having been seen running with
swords and fleeing in an autorickshaw along with A7.
However, he states that he saw PW1 running out of the
temple and taking out his car. He also saw the deceased
lying fallen with injuries, who was carried into the
vehicle by Devan (mentioned as Devadas in FIS), Sandeep
(PW9) and Unni (PW5) which further corroborates the
evidence of PW1 and PW5. PW9 is Sandeep who along with
PW1 and PW5 carried the deceased into the Tavera vehicle;
took him first to Santhi Hospital and then to the higher
centre. On this particular aspect, there was no worthy
cross-examination of PW9. In such circumstances, we find
that the prosecution having established the presence of
PW1 in the scene of occurrence. The version of the
specific attack made on PW1, is a cut to the neck and back
with a sword, which could have resulted in grievous
injuries. The fact that only simple injuries were caused
cannot by itself result in doubting the veracity of PW1's
testimony. The opinion of PW21 Doctor is also that a stab
injury could have been more serious. The assailants even
according to the prosecution never had an intention to
harm PW1. There was no evidence of PW1 being subjected to
a stab by the accused. PW1 was attacked only when he
sought to interfere in the brutal attack on the deceased.
The attempt of the assailants was to frighten PW1 and
chase him away; on which finding the trial Court has
rightly acquitted the accused on the charges of attempting
to murder PW1 and causing hurt to him, restricting the
conviction under S.324 for the minor injuries caused to
PW1. The presence of PW1 having been established we have
to necessarily treat him as an eye-witness; who named the
appellants herein and spoke about their specific
involvement in the murder of his friend, who was butchered
alive in front of his eyes. There is no material evidence
to doubt the credibility of PW1 and his version on many
aspects, though not on the actual attack, is corroborated
by the witnesses whose evidence we discussed above.
16. As for the recoveries made, we only look at
those carried out on the confession statement made by the
appellants herein. Ext.P22 confession statement of A1
speaks of a billhook having been thrown away into the
grass of a nutmeg garden. Ext.P23 confession by A2 also
spoke of throwing a sword into the very same nutmeg
garden. PW16 is the mahazar witness who saw A1 and A2
being brought to the place of concealment. A1 took out the
billhook from the western side of a motor shed from
amongst the grass growing there. A2 took out the sword
from the south of a pond in the very same property. They
were marked as MO1 and MO6 and the mahazars as Exts.P22
and P23. As for the bikes recovered, we do not place any
reliance on the same since only the make and not the
identification marks or registration numbers were spoken
of by PW1. We also do not place any reliance on the
recoveries made where the attesting witness was PW15.
Suffice it to notice that MO1 and MO6, the weapons
recovered at the behest of A1 and A2 showed the presence
of human blood on chemical analysis as revealed from
Ext.P45, though the grouping was inconclusive.
17. The trial Court had found that the recovery
of MO6 by A2 cannot be relied upon to connect the accused
with the crime since PW1 had identified A2 having used MO4
sword. We are unable to accept the said finding because
admittedly as per the evidence, A1 to A4 came in two bikes
and the pillion riders had two swords each in their hands.
Obviously, when the four assailants returned, the people
who were driving the bike would not hold on to the weapon.
There is also no evidence that the four assailants fled
the scene on the bikes in the same manner in which they
came there. There was admittedly use of four weapons and
PW1 identified each of them. The weapon thrown away by
the accused need not necessarily be the one used by that
accused. MO6 was identified by PW1 as that used by A3. In
such circumstances, the recovery of MO6 weapon by A2,
which was identified by PW1 as having been used to attack
the deceased, connects A2 with the concealment of a weapon
used in the crime; in which his presence has been
identified clearly by the eye-witness.
18. The dress worn by A1 and A2 (MO9 and MO10)
were seized at the time of arrest on the same day,
identified by PW1. They were first rescued by the Police
from a mob, holding them up, within the limits of Kodakara
Police Station the jurisdiction of which borders the area
coming under Vellikulangara Police Station. The murder
occurred in the Vellikulangara Police Station
jurisdiction. PW31 who was on duty at Kodakara Police
Station on 28.08.2015 spoke about A1 and A2 having been
held up by the people of the locality. Their dress was
torn and it had bloodstains. Since they were seen
fatigued, they were taken to a hospital for examination.
A1's wound certificate is Ext.P26 and A2's Ext.P26(a). The
certificates do not indicate any bleeding injury. PW33 who
later arrested A1 and A2, on being informed of their
involvement in the murder, also spoke of bloodstains in
the dress of both the said accused. Pertinent also is the
fact that PW31 spoke of tension prevailing within the
limits of the neighbouring Police Stations of
Vellikulangara and Kodakara, due to the rivalry, between
the political parties to which the accused and the
deceased respectively owed allegiance. The local people
knew of such tensions prevailing due to political rivalry
and the news of the bizarre murder of a young man of the
locality would also have spread like wildfire. The local
public would have obstructed the movement of A1 and A2 on
hearing rumours of their involvement in the murder; which
was also evidenced by the bloodstains on their dress.
19. Concurring with the trial Court we find A7
having called out the deceased from the house of PW1,
where he was in the company of PW1, with the specific
purpose of facilitating the attack on the deceased by the
assailants, who were on their way to the scene of
occurrence. PW1 specifically spoke of A7 having asked for
the deceased to be sent out so that they can carry out
their plan of murder. A1 to A4 has inflicted grievous
injuries on the deceased with lethal weapons dismembering
him and cutting up his upper and lower limbs resulting in;
from the injuries as noted by us, a dastardly and cold-
blooded murder. The accused have thereby committed an
offence punishable under S.302 and concerning the injuries
caused on PW1, who attempted to interfere and was chased
away, committed an offence under S.324. Though the larger
conspiracy under S.120B has not been proved, accused 1 to
4 and 7 being members of the unlawful assembly,
perpetrated violence with deadly weapons, in prosecution
of the common object of the assembly, to cause the murder
of the deceased. The accused-appellants are liable to be
punished under S.143, 147 and 149 also.
We find the conviction to be proper and affirm
the sentences by rejecting the appeal.
Sd/-
K.VINOD CHANDRAN, JUDGE
Sd/-
ZIYAD RAHMAN A.A, JUDGE
Sp/jma
