Kerala High Court
Sinu Varghese @ Sinu vs State Of Kerala on 18 February, 2022
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
&
THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN
FRIDAY, THE 18TH DAY OF FEBRUARY 2022 / 29TH MAGHA 1943
CRL.A NO.850 OF 2016
AGAINST THE JUDGMENT IN S.C.NO.408/2009 DATED 05.08.2016
OF THE COURT OF THE SESSIONS JUDGE, ALAPPUZHA.
[C.P.36/2009 OF JUDICIAL MAGISTRATE OF FIRST CLASS-I, ALAPPUZHA]
[CRIME NO.658/2008 OF ALAPPUZHA NORTH POLICE STATION].
-------------
APPELLANTS/ ACCUSED NOS.2, 3 & 5:
1 ANTONY @ ANTAPPAN, AGED 27 YEARS, S/O.K.V.JOSEPH,
KOCHUKALAM VEEDU, WARD NO.13, ARYAD PANCHAYATH.
2 VIJESH, AGED 27 YEARS, S/O.VENU,
THADICKAL VEEDU, KALATHU WARD, ALAPPUZHA.
3 SIMON V. JACK @ JACK, AGED 31 YEARS, S/O. VIJAYAKUMAR,
PUTHENPURACKAL VEEDU, KALTHU WARD, ALAPPUZHA.
BY ADVS.
SRI.P.VIJAYA BHANU (SR.)
SMT.MITHA SUDHINDRAN
SRI.M.REVIKRISHNAN
RESPONDENT/ COMPLAINANT:
STATE OF KERALA,
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
BY SENIOR PUBLIC PROSECUTOR SRI.ALEX M.THOMBRA
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
04.02.2022, ALONG WITH CRL.A.887/2016 AND CONNECTED CASES, THE
COURT ON 18.02.2022 DELIVERED THE FOLLOWING:
Crl.Appeal Nos.850/2016
and Connected cases - 2 -
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
&
THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN
FRIDAY, THE 18TH DAY OF FEBRUARY 2022 / 29TH MAGHA 1943
CRL.A NO.887 OF 2016
AGAINST THE JUDGMENT IN S.C.NO.408/2009 DATED 05.08.2016
OF THE COURT OF THE SESSIONS JUDGE, ALAPPUZHA.
[C.P.36/2009 OF JUDICIAL MAGISTRATE OF FIRST CLASS-I, ALAPPUZHA]
[CRIME NO.658/2008 OF ALAPPUZHA NORTH POLICE STATION].
-------------
APPELLANT/ ACCUSED NO.4:
NISHAD, AGED 29 YEARS S/O. NOUSHAD,
VALIMPARAMBIL VEEDU, KALATHU WARD,
ALAPPUZHA DISTRICT.
BY ADVS.
SRI.P.K.MOHAMED JAMEEL
SRI.M.P.ABDUL LATHEEF
SRI.LIJO MATHEW
RESPONDENT/ COMPLAINANT:
STATE OF KERALA,
REPRESENTED BY ITS PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM - 682031.
BY SENIOR PUBLIC PROSECUTOR SRI.ALEX M.THOMBRA.
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
04.02.2022, ALONG WITH CRL.A.850/2016 AND CONNECTED CASES, THE
COURT ON 18.02.2022 DELIVERED THE FOLLOWING:
Crl.Appeal Nos.850/2016
and Connected cases - 3 -
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
&
THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN
FRIDAY, THE 18TH DAY OF FEBRUARY 2022 / 29TH MAGHA 1943
CRL.A NO.974 OF 2016
AGAINST THE JUDGMENT IN S.C.NO.408/2009 DATED 05.08.2016
OF THE COURT OF THE SESSIONS JUDGE, ALAPPUZHA.
[C.P.36/2009 OF JUDICIAL MAGISTRATE OF FIRST CLASS-I, ALAPPUZHA]
[CRIME NO.658/2008 OF ALAPPUZHA NORTH POLICE STATION].
-------------
APPELLANT/ ACCUSED NO.6:
THOMAS KUTTY @ AJI, AGED 36 YEARS, S/O.DEVASYA THOMAS,
MOOLAYIL VEEDU, NORTH EASTERN SIDE OF INFANT JUNCTION,
KALUTHU WARD, ALAPPUZHA DISTRICT.
BY ADVS.
SRI.P.K.VARGHESE
SRI.P.P.BIJU
RESPONDENT/ COMPLAINANT:
STATE OF KERALA,
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
BY SENIOR PUBLIC PROSECUTOR SRI.ALEX M.THOMBRA.
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 04.02.2022,
ALONG WITH CRL.A.850/2016 AND CONNECTED CASES, THE COURT ON
18.02.2022 DELIVERED THE FOLLOWING:
Crl.Appeal Nos.850/2016
and Connected cases - 4 -
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
&
THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN
FRIDAY, THE 18TH DAY OF FEBRUARY 2022 / 29TH MAGHA 1943
CRL.A NO.1012 OF 2016
AGAINST THE JUDGMENT IN S.C.NO.408/2009 DATED 05.08.2016
OF THE COURT OF THE SESSIONS JUDGE, ALAPPUZHA.
[C.P.36/2009 OF JUDICIAL MAGISTRATE OF FIRST CLASS-I, ALAPPUZHA]
[CRIME NO.658/2008 OF ALAPPUZHA NORTH POLICE STATION].
-------------
APPELLANT/ 7TH ACCUSED:
SINU VARGHESE @ SINU, AGED 26 YEARS,
S/O.VARGHESE ANTONY,
METHARU THADICKAL (THAZHACHAYIL), KALATH WASRD,
ALAPPUZHA MUNCIPALITY, ALAPPUZHA DISTRICT.
BY ADVS.
SRI.SHAIJAN C.GEORGE
SRI.M.T.AJITH
SRI.P.J.JOSEPH
SRI.C.K.SAJEEV
SMT.SAJITHA GEORGE
RESPONDENT/ RESPONDENT:
STATE OF KERALA,
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
BY SENIOR PUBLIC PROSECUTOR SRI.ALEX M.THOMBRA.
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 04.02.2022,
ALONG WITH CRL.A.850/2016 AND CONNECTED CASES, THE COURT ON
18.02.2022 DELIVERED THE FOLLOWING:
Crl.Appeal Nos.850/2016
and Connected cases - 5 -
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
&
THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN
FRIDAY, THE 18TH DAY OF FEBRUARY 2022 / 29TH MAGHA 1943
CRL.A NO.1023 OF 2016
AGAINST THE JUDGMENT IN S.C.NO.408/2009 DATED 05.08.2016
OF THE COURT OF THE SESSIONS JUDGE, ALAPPUZHA.
[C.P.36/2009 OF JUDICIAL MAGISTRATE OF FIRST CLASS-I, ALAPPUZHA]
[CRIME NO.658/2008 OF ALAPPUZHA NORTH POLICE STATION].
-------------
APPELLANT/ ACCUSED NO.1:
SHIJI JOSEPH @ SHIJIYAPPAN, AGED 52 YEARS,
S/O.T.K.JOSEPH,
THUMBEL THADICKAL VEEDU,
EASTERN SIDE OF INFANT JUNCTION, KALATHU WARD,
ALAPPUZHA.
BY ADVS.
SRI.B.RAMAN PILLAI (SR.)
SRI.R.ANIL
SRI.T.ANIL KUMAR
SRI.B.KRISHNA KUMAR
SRI.A.RAJESH
SRI.SUJESH MENON V.B.
SRI.THOMAS ABRAHAM NILACKAPPILLIL
SRI.M.VIVEK
RESPONDENT/ COMPLAINANT:
STATE OF KERALA,
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM, KOCHI-31.
BY SENIOR PUBLIC PROSECUTOR SRI.ALEX M.THOMBRA.
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 04.02.2022,
ALONG WITH CRL.A.850/2016 AND CONNECTED CASES, THE COURT ON
18.02.2022 DELIVERED THE FOLLOWING:
Crl.Appeal Nos.850/2016
and Connected cases - 6 -
K.VINOD CHANDRAN & C.JAYACHANDRAN, JJ.
-------------------------------------------
Crl.Appeal Nos.850 of 2016, 887 of 2016,
974 of 2016, 1012 of 2016 & 1023 of 2016
-------------------------------------------
Dated, this 18th February 2022
JUDGMENT
Vinod Chandran, J.
Stalked, surrounded and brutally attacked by a
group of seven, one was killed and the other maimed. The
grievously injured survived to tell the story, according
to the prosecution, along with another whose nimble feet
saved him. The motive alleged is prior enmity but with
major variations on facts, as projected in the charge
based on the final report and the one coming out in
evidence led before Court.
2. The seven accused who stood trial were
charged under Sections 120B, 143, 144, 147, 148, 140,
341, 324, 326, 302, 307,r/w S.149 IPC and S.20 r/w S.27
of the Arms Act. Accused are convicted under S.235(2) of
the Code of Criminal Procedure and each of them are
sentenced to, undergo imprisonment for life, rigorous
Crl.Appeal Nos.850/2016
and Connected cases - 7 -
imprisonment for 7 years, simple imprisonment for one
month, respectively under Ss. 302, 307 & 341 read with
S.149 IPC, with fine under each heads and default
sentences. The accused No.2 to 7 are also sentenced to
undergo R.I for 6 months each under S.144 and 148 IPC, A1
to R.I for 3 months each, under S.143 and 147 IPC. The
substantive sentences of imprisonment are to run
concurrently and the default sentences consecutively. The
accused are in appeal.
3. Sri.B. Raman Pillai, Senior Counsel appearing
for A1 contended that the case was set up merely to
malign A1, who is a respectable person of the locality
and an A class contractor. The prosecution case is that
A2 to A7 are the employees of A1, for which there is no
shred of evidence produced. The motive projected by the
prosecution is a gang war regarding which no witness has
spoken. The FIS is seriously assailed with respect to the
testimony of PW1, who made it. PW1 in the FIS said that
he saw three-four persons running away, which he
embellished in his testimony. PW1 said that he first
reached the spot, but in his deposition speaks of having
Crl.Appeal Nos.850/2016
and Connected cases - 8 -
seen other locals gathered at the scene of occurrence
when he reached there. PW1 in the FIS stated that he
could identify the persons running away from the scene of
occurrence, but the Investigating Officer (I.O) did not
attempt such an identification by PW1. PW22, the I.O
categorically stated that he questioned the witnesses on
the 17th. The remand report filed on the arrest of A1, D12
does not name the other accused; despite all the eye
witnesses, except PW2, having given statement to the I.O
on the 17th itself. Even Ext.P13 affidavit filed for
custody speaks of the identity of the other accused not
having been revealed. PW22 in cross-examination admitted
that he filed no report to the Court naming the accused.
4. Ext.P14 and P15 mahazars of recovery are not
believable and the witness is the same, though the first
recovery is in the afternoon and the second in the
evening. The witness, PW19 is a regular witness of the
police who is not even a local. There is no clarity as to
whether MO1 weapon recovered at the instance of A1 was
used by A2 or A3. Though MO8 scooter and MO11 mobile
phone were recovered on the confession of A1, there is no
Crl.Appeal Nos.850/2016
and Connected cases - 9 -
concealment confessed of and the ownership of both the
M.Os have not been proved. The final report and the first
remand report, D12 speak of a gang war between two named
goonda gangs; which the I.Os, PW22 and PW23 disown before
Court. The motive spoken of by the witnesses, of a
dispute regarding a construction contract entered into
between A1 and PW2 was never stated to the Police and is
a totally new story projected by the witnesses before
Court.
5. The artificial story spun by the prosecution
is very evident from the fact that A1 is not seen to have
carried a weapon. The assailants and victims are locals
and there was no reason for A1 to accompany the other
accused. PW2 & PW3 omitted to tell the Police that it was
PW15, who dropped the deceased in front of the shop of
PW2. Again the difference in time as noted from the
testimonies of PW2, PW3 & PW15 assumes relevance in the
context of PW2 & PW3 having spoken of the time to be
9 O'Clock when PW15 speaks of having started from his
house with the deceased only at 10.30 p.m. The identical
version of PW2 & PW3 indicates the tutoring they were
Crl.Appeal Nos.850/2016
and Connected cases - 10 -
subjected to. PW22, the I.O, admitted to have come to the
scene of occurrence in the night itself and also spoke of
having seen people in the locality. However, he does not
question anybody immediately after the incident. On the
next day, the I.O's activities started with the inquest,
recording of S.161 statements of the witnesses, including
the eye-witnesses and also search of the houses of all
the accused, which by the narration itself is improbable.
Ext.P12 is the Wound Certificate of the injured, which
shows the history as 'lying unattended on the road';
could have been any place. Ext.P3 Scene Mahazar does not
indicate the exact place where the bodies were found
and there is no pool of blood detected in the scene of
occurrence. The injured, in all probability, would have
been lying at some other place and his presence in the
spot, where the deceased was found dead is very suspect.
It is also pointed out that there is no sodium vapour
lamp or mercury lamp indicated in the scene mahazar as
spoken of by the witnesses. Kailash Gour v. State of
Assam [(2012) 2 SCC 34] is relied on to urge that the
benefit of a faulty investigation should go the accused.
Crl.Appeal Nos.850/2016
and Connected cases - 11 -
6. Learned Senior Counsel Sri.P.Vijayabhanu
appearing for A2, A3 and A5, while adopting the arguments
of A1, emphasize that the motive on which the charge was
framed and the one testified by the witnesses,
drastically differ. It was argued that the same cannot be
brushed aside as a mere change in motive, since the
entire case based on the conspiracy, as charged by the
prosecution was built up on the prior incident on which a
crime was registered in the very same Police Station. The
I.O is alleged to have taken the statement of all the eye
witnesses, barring PW2 on the next day and intimation of
search of the house of all the accused were also said to
have been forwarded to the Court. Though the search was
conducted, nothing incriminating was recovered.
Interestingly, the search intimations reached the
Magistrates Court only on 11.02.2009; which coupled with
the fact that the names of the accused were not stated by
the I.O in the reports filed before Court cast a serious
suspicion on the identification of the assailants.
Appreciated in the above background, it is clear that the
accused were arrayed after deliberation, with conscious
Crl.Appeal Nos.850/2016
and Connected cases - 12 -
intend to nail them and the witnesses tutored
accordingly. The recoveries again were of planted weapons
and through untruthful witnesses. The witnesses for
recovery were not locals and were residing elsewhere. The
material objects recovered even as per Ext.P69 FSL report
showed only signs of human blood in some of them. Madhav
V. State of M.P [AIR 2021 SC 4031] and Balwan Singh v.
State of Chhattisgarh [(2019) 7 SCC 781] were relied on.
It was pointed out that on the involvement of A5 to A7,
only omnibus statements were made by the witnesses and
they were not accused of any specific overt act.
7. Sri.P.K.Varghese, learned Counsel appearing
for A6 points out the anomaly in the FIS and the
testimony of PW1. PW1 does not speak of the presence of
the witnesses despite they being neighbouring residents.
The FIS at 2.30 a.m did not contain any details of the
accused. The inquest report on the next day morning
contained the recital 'not known' in column A where the
names of the accused had to be entered. PW3's presence is
also challenged on the ground that though he accompanied
the injured and the deceased, before the attack, he
Crl.Appeal Nos.850/2016
and Connected cases - 13 -
speaks of having run away, never to return. PW2 does not
identify the accused from the dock and A6 has not at all
been identified. The case of the prosecution was that A1
followed in a scooter and the accused emerged from thick
shrubs adjacent to the scene of occurrence. Ext.P5 does
not speak of any shrubs existing in the scene of
occurrence. The time stated by PW15 and PW2 does not
tally and there could never have been a prior incident as
spoken of by PW15. It is also pointed out that PW3,
according to PW8 was taken by the Police on the very same
day. PW5 and PW6, though residents of the locality and
the friends of the deceased, did not accompany the
deceased to the hospital. Quite suspicious conduct
casting doubt on their very presence in the locality.
None of them went to the Police Station to make a
complaint. The recovery mahazar MO4 is specifically
pointed out to argue that the eye witnesses were said to
have been shown the weapon immediately on its recovery.
The property list Ext.P59 was received in the Court much
later, with delay, on 23.01.2009. PW14 is a regular
witness, attesting Exts.P8 to P10. The testimony of the
Crl.Appeal Nos.850/2016
and Connected cases - 14 -
Doctor who conducted the post-mortem is specifically
pointed out. The allegation of the prosecution is that
injuries 6 to 9 were caused by the weapon used by A6 and
recovered on his confession. But these injuries were mere
abrasions and if a person is beat with a weapon in the
nature of MO4, there would definitely be visible
contusions, the absence of which renders the allegation
against A6 false. The learned Counsel places reliance on
Deo Narain vs. State of U.P [(2010) 12 SCC 298] and
Onkarnath Singh vs. State of U.P [(1975) 3 SCC 276] to
further buttress his contention.
8. Sri.C.K.Sajeev, learned Counsel appearing for
A7 raised various questions on the prosecution case of a
prior incident and its development, which culminated in
the death and injury of two persons. There is no
perceivable reason why the attack was not unleashed on
the deceased while he was waylaid along with PW15 on the
earlier occasion. Then again immediately as PWs.2 and 3,
along with the deceased, came out of the shop, the
accused is said to have converged in the location when
too there was no attack carried out. It is emphasized
Crl.Appeal Nos.850/2016
and Connected cases - 15 -
that the accused have been acquitted under S.120B, 114
IPC as also under the Arms Act. State of U.P v. Hari
Prasad [(1974) 3 673] is relied on to contend that when
motive is inextricably linked with the prosecution case,
it has to be proved and when there is a total volte-face,
it cuts at the root of the prosecution case. The recovery
of MO9 alleged to be on the confession of A7 was carried
out on 01.12.2016 at 8.30 a.m from a compound, where the
recovery of the weapon by A6 was also carried out at
8.00 a.m. However the witness to the recovery of A6,
unequivocally stated that there were no other accused
present in the locality at that time. PW14 also, to a
specific question, answered that he did not see PW15 who
is known to him. Both the witnesses cannot be believed
and even PW2 does not have a clear case against A7. All
the eye witnesses were close friends of the deceased and
the injured, who were planted by the Police to bring home
a conviction. PW4's testimony has to be completely
eschewed since the graphic details of the weapons
noticed, is clearly artificial. Sri.Mohamed Jameel,
learned Counsel appearing for A4 points out that there is
Crl.Appeal Nos.850/2016
and Connected cases - 16 -
no explanation as to how PW15 and the deceased, escaped
from the prior incident spoken of by PW15. PW15 in his
deposition clearly admits that A4 was not known to him.
PW15 also had spoken of the persons who had waylaid
himself and the deceased, wherein the name of A4 was not
stated. There is no clarity as to the recovery of the
weapon made at the instance of A4. The recovery is also
seriously put to peril by reason of Ext.P54, the property
list forwarding the weapon to the Court, having been
signed by PW22 on 25.12.2008, after his transfer and take
over of investigation by PW23.
9. Learned Senior Public Prosecutor Alex M
Thombra appeared for the State and supported the judgment
both on the conviction and the sentence. This is a case
of direct evidence by PW15, of the prior incident and the
conspiracy and the subsequent attack itself having been
witnessed by PWs.2 to 6. There is nothing to discredit
PWs.3 to 6, whose presence as locals, is only natural.
The mere fact that they are friends of the deceased and
the injured, does not make them untrustworthy, especially
when there is no allegation of any prior enmity with A2
Crl.Appeal Nos.850/2016
and Connected cases - 17 -
to A7. PW2 was grievously injured and he was admitted to
the hospital between 16.11.2008 and 28.11.2008. Even the
evidence of the Doctor, who treated him at the Lakeshore
Hospital clearly indicates that he just escaped from
death. There is no valid reason projected to disbelieve
the testimony of the injured person, which has a definite
weight; as declared by the Hon'ble Supreme Court. The
injured witness would definitely speak the truth and he
would want the persons who attacked him to be punished.
Though there is some change in the motive alleged and
that established, in the teeth of the direct evidence led
by the prosecution, the motive takes a back seat and
becomes irrelevant and insignificant. The accused and the
deceased were brutally attacked and left abandoned by the
assailants. The direct evidence coupled with the medical
evidence, as also the recovery of the weapon pin the
guilt of the accused unerringly on them. Yunis @ Karia v.
State of M.P [(2003) 1 SCC 425] is relied upon to urge
the irrelevance of motive. To canvass the charge under
S.149 IPC, reliance is placed on Surendra v. State of U.P
[(2012) 4 SCC 776], Vinubhai Ranchhodbhai Patel v.
Crl.Appeal Nos.850/2016
and Connected cases - 18 -
Rajivbhai Dudabhai Patel [(2018) 7 SCC 743].
10. Ext.P1 is the FIS and Ext.P1(a), the FIR,
registered by PW22, who is the SHO, Alappuzha North
Police Station. As per the FIS, while PW1 was sleeping
with his family inside his house, he was woken up by
persistent barking of dogs. He came out of the house and
saw three or four persons running away from near the
'Thoppuveli Temple'. On keen observation, he saw a person
lying on the sand. PW1 and his son went near and saw the
person lying on his face. Together they turned him over
to recognise his sister's son. Frightened, they screamed
aloud, when the neighbours including Natesan came out.
PW1 ran to the nearby house to summon the autorickshaw
parked there and on his way, saw another person lying on
the sand. On verification, it was found that it was his
friend's son, PW2. He alerted the persons who gathered
there about the injured and took his nephew in the first
autorickshaw, which came there. PW2 was taken in another
autorickshaw, which came later. Both were taken to the
Medical College Hospital [MCH], Alappuzha, where PW1's
nephew was declared brought dead and PW2 was found to
Crl.Appeal Nos.850/2016
and Connected cases - 19 -
have suffered grievous injuries. PW2, on the instructions
of the Doctor at the MCH, was shifted to the Medical
Trust Hospital. He affirmed that PW2 and the deceased
were friends and that they were attacked by three or four
persons, whom he saw running away from the scene of
occurrence. The incident occurred around 11 p.m. on
16.12.2008 and PW1 witnessed it from the light around the
Temple and that on the northern side of his residence.
PW1 also said that he saw the persons running away from
the scene of occurrence and could identify them on sight.
11. PW1 more or less deposed in tune with the
FIS. There were some embellishments as pointed out by the
defence. PW1 said that when he came out of his house, he
saw five to six persons running away, that he saw a
scooter going in the northern direction and that some
people were running outside and he followed them. He
spoke of having seen people screaming when he reached the
scene of occurrence. Despite a lengthy cross-examination,
PW1 stood unshaken. The so called embellishments,
according to us are not very material. The maker of the
FIS had just returned from the hospital, where his
Crl.Appeal Nos.850/2016
and Connected cases - 20 -
relative was declared dead and his friend's son was taken
to a higher Medical Centre for better treatment. Whether
he saw three-four or five-six persons running away, and
whether he had reached the spot first or he followed the
other neighbours to the scene of occurrence are all
immaterial. These aspects would not be noticed
specifically by a person, who, woken up in the night,
witnessed two known persons lying grievously injured as a
result of a brutal attack on them. We find no reason to
doubt the testimony of PW1. True, he had at the time of
FIS, spoken of being able to identify the persons by
sight. All the accused are locals and there was no reason
why they should be identified by PW1, especially when he
did not see the incident.
12. PW2 to PW5 are said to be ocular witnesses,
PW6 saw the preparation of A2 to A7 and PW15 spoke of a
prior incident. The motive as projected in the charge was
not proved in the trial and as argued by the defence, the
evidence led, put forth a totally different motive.
Before we deal with that aspect, we look at the evidence
of the witnesses to understand the events on the night of
Crl.Appeal Nos.850/2016
and Connected cases - 21 -
the murder. PW15, a friend of the deceased, took the
victim-deceased to his residence. The deceased had come
to the house of PW15 at around 8.30 p.m on 16.11.2008 and
remained till 10.30, when PW15 took the deceased in his
bike. From Sasthripuram junction they turned right and on
reaching in front of Athira Club, the accused, standing
on the dock, waylaid them. PW15 identified each of the
accused standing in the dock. The accused had iron pipes
in their hands and A1, pointing to the deceased, who was
riding pillion, specifically said that 'he is the one we
have decided upon'. Then A2 placed an iron pipe on the
front of the bike and A3 placed another on the body of
the deceased. At that point, an autorickshaw came from
the opposite direction, when the accused and PW15, along
with the deceased, escaped from the said place. On
enquiry, the deceased told him that there was a dispute
regarding a contract work and the deceased intervened to
help PW2. PW15 also said that they were waylaid between
10.30 and 10.45 p.m. He identified MO1 & MO2 weapons held
by A2 & A3.
Crl.Appeal Nos.850/2016
and Connected cases - 22 -
13. PW2 is the injured witness, who was with the
deceased and PW3, when they were stalked by the accused
and later attacked. PW2, along with his father, runs a
provision shop at Kalath Junction. He was in his shop at
around 9.30 p.m, when PW3 joined him. Then the deceased
was dropped in front of his house, which is opposite to
the provision store, by PW15. The deceased came back
after he changed his dress and by around 10 O'clock, he
joined PW2 & PW3. He told them about the incident when he
was waylaid by the accused, who had weapons in their
hands. The deceased also said that it was a narrow
escape. Later, PW2 closed his shop and gave the key to
his father. The deceased wanted to accompany PW3 to his
house and PW2 joined them. They walked towards east when
they heard the sound of a scooter and turning back they
saw A1 on the scooter, talking into a mobile phone.
Immediately they saw all the accused emerging from the
property of PW6 and they had iron pipes and other weapons
in their hands. The accused were talking amongst
themselves and pointing in their direction, upon which
Crl.Appeal Nos.850/2016
and Connected cases - 23 -
they walked further east. When the accused followed them,
they took to their heels and on reaching Thoppuveli
junction, the deceased and PW2 paused. The accused and
PW3 were not seen anywhere.
14. The deceased and PW2 waited for PW3, on the
way to PW3's house, when again a scooter approached them
from the southern side. A1, who was riding the scooter,
told them that they had escaped earlier, but now there is
no escape. Then PW2 asked what mistake they committed,
when A1 took a telephone and immediately from the shrubs
to the west of the road the other accused emerged. They
surrounded PW2 and the deceased and A2 exhorted the
others to beat them to death and struck the deceased on
his head and forehead with an iron pipe. A3 too hit PW2
with an iron pipe and also on the deceased. All the
accused together, with the wooden pieces and iron pipes,
brutally beat them all over the body. Both fell down and
PW2 lost consciousness. PW2 said that the incident
occurred around 11-11.30 p.m and he was maimed from the
brutal attack. His left eye suffered reduced vision and
his sense of smell was lost. He had to replace his front
Crl.Appeal Nos.850/2016
and Connected cases - 24 -
teeth and he suffered grievous injuries on his forehead
and open-skull surgeries were conducted twice or thrice
at Lakeshore Hospital. He identified MO1 to MO5 weapons
respectively in the hands of A1 to A5. He spoke of having
seen the weapons in the hands of the accused at Kalath
junction. At the scene of occurrence, the witness said
that, there was light from the nearby houses and the
Temple. He also identified the footwear worn by him, MO6,
recovered from the scene of occurrence and the dhoti worn
by the deceased, MO7.
15. PW3 spoke in tune with PW2's deposition and
spoke of having run faster than the others, especially
since he was a sprinter in School and University, with
the distinction of being the fastest sprinter in the
District. He stopped at the end of the road and not
seeing the others, waited for sometime and proceeded
back. He heard a cry and he turned into another road and
hid there. After 2-3 minutes he again heard a cry and he
ran through the Temple compound. He heard the sound of an
autorickshaw and he was told that PW2 and the deceased
were attacked and they were injured grievously. He was
Crl.Appeal Nos.850/2016
and Connected cases - 25 -
brought back by his cousin Rajeev and PW5. PW3 identified
all the accused specifically. He said that he will not be
able to identify the weapons brandished by each of the
accused, but still identified the weapons as MO1 to MO5.
He identified the black Activa scooter in which A1 came
to the spot, but did not remember the number.
16. PW4, who has his residence near the scene of
occurrence, at around 11.30 pm, while watching
television, stepped out to relieve himself and saw A1 on
a scooter, talking to PW2 and the deceased in the Temple
compound. He stepped out to join them, when he saw the
other accused coming from the western side, who he
identified as persons working with A1. A2 is said to have
exhorted to beat them to death, when A3 beat the deceased
on the head. The accused together mercilessly attacked
the victims and PW2 fell down. The deceased limped
towards the pond, slipped on his dhoti and fell down. All
the accused had weapons with them, which were identified
as a thick pipe with A2, a lean one with A3, a wooden
piece and a pipe with A4, a flat piece with A6, an iron
pipe with A6 and a pipe with a bent in A5's hands. He
Crl.Appeal Nos.850/2016
and Connected cases - 26 -
identified all the accused from the dock and spoke of
having witnessed the incident in the light from the house
of Rajesh and the mercury light at Thoppuveli junction as
also the tube-light of the Temple and bright moon-light.
He affirmed the presence of PW1. He spoke of his mother
having swooned by reason of which he returned home. He
witnessed the seizure of the scooter and the mobile
phone, from under its seat and identified both.
17. PW5 is another ocular witness; who regularly
spends the night in the house of PW3, where PW3 and his
father were alone. He reached PW3's house around 10.30
p.m, where, himself and PW3's father watched TV for
sometime. Later, on the request of PW3's father, PW5 went
in search of PW3 and took the company of Rajeev. While
Rajeev and PW5 were proceeding to the southern portion of
Thoppuveli Temple, they saw the accused A2 to A6
surrounding PW2 and the deceased inside the Thoppuveli
compound. He also saw A1 sitting on a scooter on the
roadside. He too spoke of the attack in tune with what
was stated by the other witnesses. He identified the
witnesses from the dock and affirmed the fact that A2 to
Crl.Appeal Nos.850/2016
and Connected cases - 27 -
A6 were the employees of A1. He identified the scooter in
which A1 was sitting.
18. PW6 is a person residing near Kalath
junction. At around 11.00 p.m, he heard the sound of
people speaking inside his property and he saw about five
people with weapons walking north to east, who were
identified as A2 to A6. They were found to be hiding near
the road proceeding to Thoppuveli near the eastern
boundary wall of the witness. A1 came in a scooter,
stopping which, he talked over the phone, when A3 stepped
out and the other accused followed. He saw A1 pointing
towards the east and speaking to the other accused. He
spoke of having seen the accused in the light of the
sodium vapour lamp and though he said he could recognise
the weapons, he was unable to identify the ones in the
hands of each of the accused for reason of passage of
time.
19. PW7 accompanied PW15 earlier in the evening
to the house of the deceased and had returned since
deceased was not available. He speaks of having seen the
accused near the Athira Club on his way to the deceased's
Crl.Appeal Nos.850/2016
and Connected cases - 28 -
house and on the way back. PW15 did not speak about the
said incident and hence we eschew the evidence of PW7.
PW8 is a Ward Councillor, who was available at the
time of inquest and witnessed the report at Ext.P2. In
cross-examination, she said that she had seen PW3 being
picked up from the scene of occurrence and taken in a
Police jeep. She went to the hospital in the night itself
and on the next day also, she spoke of having constituted
an Action Council to expedite the arrest of the accused.
20. PW9, a loading and unloading worker,
attested Ext.P3 scene mahazar, by which MO3 (weapon), a
wooden plank, MO6 a pair of footwear, MO7 a Kaili and
MO13, sample soil were seized. PW10 and PW11 respectively
witnessed Ext.P4 and Ext.P5 scene mahazars. Ext.P4 is the
mahazar identifying the place where PW6 found them hiding
and Ext.P5, the mahazar identifying the place where the
accused converged before chasing the victims. PW12
witnessed the recovery of MO2 as per Ext.P6 recovery
mahazar, which recovery was by A3. PW13 likewise
identified A5 and the weapon recovered by him as per
Ext.P7 mahazar. PW14 is the mahazar witness to Exts.P8 &
Crl.Appeal Nos.850/2016
and Connected cases - 29 -
P9, the first, the dress of the deceased and then MO4
pipe, both recovered by A6. PW14 also witnessed Ext.P10
mahazar by which MO10 weapon was recovered by A2. PW16
witnessed P11 recovery by A7 of MO9 pipe. PW19 witnessed
Ext.P14 recovery mahazar, by which MO1 pipe was recovered
by A1. He also witnessed seizure of MO8 scooter and MO11
mobile phone. PW20 is the Village Officer who prepared
scene plans Ext.P16 to P19.
21. PW17 is the Doctor at the M.C.H., who marked
Ext.P12 wound certificate of PW2. He deposed that when
PW2 was first examined, though he was conscious, he was
not oriented or moving his limbs. He spoke of the
injuries as noticed in Ext.P12 and specifically said that
injury No.1, a lacerated wound of size 8x3x2 cms on the
forehead with a depressed fracture in the frontal bone,
at the mid-frontal region, was sufficient in the ordinary
course to occasion death. He affirmed that MO2 could
cause such an injury. Injury No.5, over the left temporal
scalp was also sufficient to endanger a life, since it
was sustained on a vital part controlling bodily
movements. PW2 hence barely escaped the jaws of death. He
Crl.Appeal Nos.850/2016
and Connected cases - 30 -
also attested to the fact that the injuries sustained by
the person could be caused by the weapons produced as
MO1, MO3 to MO5 and MO9. The patient was in a critical
stage and was discharged to be transferred to a higher
hospital at the request of the bystanders. He affirmed
that the alleged history as shown in Ext.P12 was 'having
been found on the road at Thoppuveli'. There was another
person brought dead, who was also attended to by PW17;
obviously the deceased in this case.
22. PW18 is the Doctor who treated PW2 at the
Lakeshore Hospital, Ernakulam and issued Ext.P12 Wound
Certificate. He too spoke of the patient being conscious
but disoriented, the wounds sustained as seen from
Ext.P13 and the treatment procedures. As per Ext.P13, the
patient suffered severe head injury with compound
fracture and multiple skull and facial fractures. He
spoke of the injuries being possible by the weapon shown
to him, which were marked earlier. The patient was
discharged on 28.11.2008.
23. PW21 is the Doctor who conducted the
post-mortem examination and he marked report as Ext.P20.
Crl.Appeal Nos.850/2016
and Connected cases - 31 -
Blood stains were detected on the body along with white
sand particles sticking to the body. There were 15
injuries on the body, abrasions, contusions and lacerated
wounds validating the allegation of a brutal attack on
the victim. Death was opined to be due to the blunt
injury sustained to the head, injuries No.2 & 3, which
were independently capable of causing death. The Doctor
identified each of the injuries, which could be caused by
MO1 to MO5 weapons. It was also opined that injuries
Nos.1 & 2, which were lacerated injuries on the scalp,
could be misunderstood as cut injuries inflicted with a
sharp weapon, by a layman. Her opinion was that they
could be caused by the blunt weapons shown by the I.O and
such lacerated injuries mimicking as incised wounds are
classified as 'incised looking lacerated wounds'. She
admitted that in the report, only three weapons were
referred, since those alone were shown to her by the I.O.
Even in cross-examination, she asserted that the injuries
on the head could be caused by a hard blunt object. A
suggestion that injuries 1 to 3 could be caused in a hit
and run motor vehicle accident was stoutly denied.
Crl.Appeal Nos.850/2016
and Connected cases - 32 -
Another suggestion that since most of the injuries are on
the right side, there could be no attack on the left side
was also denied. It was pointed out that when a person is
beaten up, he would not remain static and would change
his position to ward off the blows thus resulting in
injuries all over the body. Despite lengthy cross-
examination by each of the accused, the testimony of the
Doctor remained the same and we find that homicide is
established unequivocally, that too in a brutal attack in
which a number of persons together showered blows on the
victim with blunt objects causing fatal injuries. That
the injured PW2, barely escaped death is also proved by
the injuries sustained by him from the wound certificate
as issued at the first instance and the treatments
carried out on him, as deposed to by the respective
Doctors. Sections 302 and 307 of IPC are definitely
attracted.
24. The recoveries are seriously challenged by
the defence specifically on the aspect of delay in
forwarding the recovered material objects to the Court.
The recoveries attributed to A1 were witnessed by PW19.
Crl.Appeal Nos.850/2016
and Connected cases - 33 -
Ext.P14 is the recovery mahazar, by which MO1 pipe was
recovered. The confession was on 22.11.2008 at 1.30 p.m.
The recovery was on 23.11.2008 at 10 a.m. Ext.P15 is the
mahazar, by which a scooter was recovered near the house
of Mathai @ Babu and from under its seat, a mobile phone.
The said recovery was at 4.30 on 23.11.2008. This
definitely raises a suspicion, since both the witnesses
in Exts.P14 & P16 mahazars are one and the same. Further,
the ownership of the scooter or the subscriber of the SIM
card, which was in the mobile, was not established by the
prosecution.
25. We have specifically referred to each of the
recoveries herein above. MOs were recovered on 17.11.2008
(MO3), 02.12.2008 (MO9), 02.12.2008 (MO4), 14.12.2008
(MO5), 17.12,2008 (MO2), 23.12.2008 (MO1) and 25.12.2008
(MO10). But the same were submitted before Court by
Property Lists; Ext.P54 (MO10 - A4's weapon recovered by
A2), Ext.P55 (MO2-A3), Ext.P56 (MO5-A5), Ext.P57 (MO1-
A2's weapon recovery by A1), Ext.58 (MO3 wooden piece by
Scene Mahazar) and Ext. P59 (MO4 & MO9-A6 & A7), dated
23.01.2009. The explanation of PW22, the first I.O., is
Crl.Appeal Nos.850/2016
and Connected cases - 34 -
that he had entrusted the weapons, on recovery, to the
Writer in the Police Station, which is not a satisfactory
explanation. Further, it has to be noticed that MO10
recovery was made by PW23 on 25.12.2008. PW22 was
transferred on 17.12.2008 and PW23 took charge on
18.12.2008. The property list, Ext.P54 dated 25.12.2008,
by which MO10 weapon was forwarded to Court was signed by
PW22. There is no satisfactory explanation for the same.
Considering the entire circumstances of the recovery, we
are not satisfied that any of these can be relied upon.
The scientific evidence of presence of blood on the
recovered weapons, wherever seen, also hence cannot be
relied on to find the guilt of the accused.
26. The recoveries though not to be found as
an incriminating circumstance against the accused, we
cannot but notice the ocular evidence led in the case,
which the Hon'ble Supreme Court has held does not depend
upon the number, but on the credibility, even if there
be, only a solitary eye-witness. Umar Mohammad v. State
of Rajasthan [(2007) 14 SCC 711] held that 'non-recovery
of incriminating material from the accused cannot be a
Crl.Appeal Nos.850/2016
and Connected cases - 35 -
ground to exonerate them of the charges when the
eyewitnesses examined by the prosecution are found to be
trustworthy'(sic). PW2 was in the eye of the storm and
was grievously injured, which injuries, according to the
Doctor, who examined him first and subsequently treated
him, could have turned fatal. The presence of PW2 in the
locality, cannot at all, be doubted since his father runs
a shop opposite to the residence of the deceased. His
testimony that usually he downs the shutters of his
shop at 11 p.m also cannot be doubted. Himself and PW3
were talking just before the shop was being closed, when
the deceased came in a bike. There is some discrepancy
with respect to the time since PW15 speaks of having
started from his house at 10.30 p.m and both PW2 & PW3
speaks of the deceased having come to PW2's shop after
changing his dress at 10 O'Clock. The witnesses are
speaking about an incident which occurred long back and
it cannot be assumed that every activity will be clocked
with precision; looking at a time-piece. It can be safely
found that PW2 & PW3 were present in the night of
16.11.2008 in the shop of PW2 when the deceased was
Crl.Appeal Nos.850/2016
and Connected cases - 36 -
dropped near his house.
27. The deceased joined them and together they
proceeded to PW3's residence. PW2's evidence indicates
that his provision store is to the north of Kalath
junction on the eastern side of the road. From the shop,
the three friends walked east when they heard a scooter
stopping on the Kalath junction. They turned around to
see A1, who was on the rider's seat speaking over a
mobile phone, when the other accused emerged from the
property of Baburaj, ie. PW6. PW6 spoke of having seen
the accused walking through his property and hiding near
the northern boundary wall. The inconsistencies brought
out from his testimony, regarding the exact boundaries in
his prior statement to the police, is inconsequential.
His testimony that A1 stopped in the road and then the
other accused emerged from the shadows to join A1 and
then A1 pointed in the direction of the three friends
cannot be doubted. PW2 & PW3 spoke of the accused
carrying weapons, the identification of which from the
MOs produced, we ignore, since the recoveries were not
proved. But the description of the weapons held by A2 to
Crl.Appeal Nos.850/2016
and Connected cases - 37 -
A7, has been spoken of by PW 6 and PWs.2 to 4; which
were iron pipes, flats and a wooden piece. That the
deceased and PW2 were attacked with hard and blunt
weapons is fairly proved by the medical evidence, which
was specifically on examination of the injuries sustained
by the victims. There is nothing to disbelieve the
testimony of PW2 & PW3 that the assailants had weapons in
their hand.
28. There is a question raised as to whether
there existed a sodium vapour/mercury lamp, which the I.O
categorically stated that none of witnesses disclosed.
From (i) Ext.P4, the place where the accused were found
hiding by PW6, (ii) Ext.P5, the junction where the
accused converged and chased PWs.2 & 3; as spoken of by
them and PW6 and (iii) the scene mahazar, Ext.P3; it is
clear that there are a number of houses on both sides of
the road. In addition to the light of sodium vapour lamp,
all the witnesses spoke of there being sufficient light
from the neighbouring houses as also the light from
the nearby Temple. It was also asserted that it was a
moonlit night. The witnesses who saw the assailants on
Crl.Appeal Nos.850/2016
and Connected cases - 38 -
that night committed no error in the identification
made of them.
29. On seeing the accused converging at the
Kalath junction and A1 threateningly, pointing in their
direction, the three friends first walked briskly and
then broke into a run. This could only have been due to
the earlier incident spoken of by PW15, of himself and
the deceased being waylaid by the very same persons. On
reaching the Thoppuveli junction, PW2 and the deceased
stopped running, in the hope that they have given the
slip to the assailants; who were not visible. PW3 also
had sprinted fast and was not visible. At that precise
moment, again A1 came in the scooter and specifically
threatened them that they would not be allowed to escape.
PW2 having queried as to what crime they committed, A1
picked up the telephone and summoned the others who
emerged from the nearby shrubs. This was witnessed by PW4
who had stepped out of the nearby house and seen A1 along
with PW2 and the deceased. A2 exhorted the others to beat
them to death and then the accused together incessantly
showered blows on the two, killing one and maiming
Crl.Appeal Nos.850/2016
and Connected cases - 39 -
the other, as spoken of by PW2 and PW4. PW3 did not speak
of having witnessed the incident, but corroborates the
version of PW2 till the friends took to their heels, on
seeing the assailants converging at the Kalath junction.
PW8 has a contention that PW3 was picked up on the same
day by the Police and she saw him being taken in the
Police jeep. The said contention has relevance with
respect to PW22 having not disclosed the name of the
accused to Court, even on the 23rd when A1's remand
application was made.
30. Even going by PW8's testimony, PW3 was
present in the locality and was a neighbourhood resident,
who had very friendly relationship with PW2 and the
deceased. The allegation of the defence is that despite
(i) PW3, being in police custody on the same night, (ii)
the eyewitnesses, except PW2, having been questioned on
the very next day, (iii) the house of all the accused
searched on the same day, the I.O did not report the
details of the accused to the Magistrate's Court. It was
also argued that even in the affidavit accompanying the
application for custody of A1, marked as Ext.D13, the
Crl.Appeal Nos.850/2016
and Connected cases - 40 -
I.O spoke of eight accused. PW22, the I.O specifically
deposed that he did not report the name of the
accused, since he wanted to carry out further
investigation and ascertain their involvement. It is
also pertinent that he carried out search of the
residence of the accused, wherefrom, the I.O admits
he received no incriminating material. True, the
intimations of search were received at the Court with
delay, but in the circumstance of nothing incriminating
having been projected as seized on the search, the
delay is not relevant. The explanation that the I.O
wanted to ascertain the true facts and that the reference
to 8 accused instead of 7, in Ext. D13, was an
inadvertent error is satisfactory. As for PW3, he admits
in his deposition that there was a press conference
convened, in which he had attempted to distance himself
from the incident, due to pressure from his family, since
they apprehended that his plans to go abroad for
employment would be hampered, if he is involved in the
investigation as an eye-witness.
Crl.Appeal Nos.850/2016
and Connected cases - 41 -
31. PW4 is another ocular witness, who spoke of
having seen the incident when he stepped out of his
nearby residence at around 11.30 p.m, to relieve himself.
In fact, his specific case is that on seeing A1 on the
scooter walking to PW2 and the deceased, he was stepping
out of his house to join them, when he saw the other
accused emerging from the western side and surrounding
the two victims. He also spoke of A2 having exhorted the
others to kill the two persons, who were surrounded by
the accused. Again PW4 spoke of having seen the incident
in the light from Rajesh's house; which was spoken of by
PW2 also. PW4 too spoke of the moonlight and the light
from the Thidappalli of the Temple.
32. PW5 claimed to be a regular in the house of
PW3, spending the night with PW3 and his father. He also
spoke of having seen the incident. His testimony was that
he went to PW3's house on that night and on the request
of PW3's father, went in search of PW3. He, along with a
cousin of PW3, Rajesh, went in search of PW3 when he
witnessed the incident. We find the testimony to be not
Crl.Appeal Nos.850/2016
and Connected cases - 42 -
trustworthy. Though he claimed to be the friend of PW3,
who had been regularly keeping PW3's father company, at
night, before and after the incident, he feigned
ignorance about PW3's affairs, specifically PW3's
marriage and divorce. In cross examination he said that
PW3 used to come home by 8 or 9 in the night. On the day
of the incident, before Court he spoke of having reached
the house of PW3 at 10.30 pm and having watched
television with PW3's father after which he went in
search of PW3 at the request of the father. However,
none of these things were stated to the Police, which
were put to him as omissions and proved through PW22.
Another major omission was with respect to the statement
before Court that while himself and Rajesh went in
search of PW3, and were walking through the temple
compound, they saw the deceased and PW2 surrounded by
the accused, which was not stated before the Police. He
admitted that he had not described the scooter in
which A1 was sitting, when he gave his first statement on
17th and that it was stated only when he was summoned to
the station after about one and a half days. He
Crl.Appeal Nos.850/2016
and Connected cases - 43 -
prevaricated with respect to the number of days after his
statement, when the scooter was shown to him.
33. Before Court, it was deposed that the
statement earlier recorded was not read over to him on
23.11.2008; which he had categorically admitted in his
second statement before the Police, which was marked as
Ext.D4 contradiction. His testimony regarding his conduct
after the incident also does not inspire confidence.
PW3's statement was that after he heard cries from the
temple compound, he was accompanied by PW5 and Rajesh
back to his house. According to PW5, he reached PW3's
house around 12 O'Clock and made no enquiries about PW3,
when he reached back after witnessing the incident. He
said that he did not make any such enquiry since he did
not feel that it was warranted. Ext.D5 was another
contradiction about the light in which he saw the
incident. He denied his statement to the Police that he
accompanied the injured to the MCH Hospital, marked as
Ext.D6. PW5 hence does not inspire confidence as an eye
witness. He would have gone in search of PW3 and returned
with him, as deposed by PW3; but he cannot be believed on
Crl.Appeal Nos.850/2016
and Connected cases - 44 -
his version of having witnessed the attack.
34. The contradictions marked of the other
witnesses are not relevant and inconsequential in the
light of the overall facts, as discernible from the
testimonies which are fairly corroborated. The
testimonies of PW2 to PW4 and PW6, according to us, are
trustworthy. PW6, from his house, saw A1 coming in a
scooter and stopping at the junction, to speak on the
phone, when the other accused hiding near his
property, emerged from the shadows. This was witnessed
by PW2 and PW3, who also spoke of the earlier incident,
as did PW15; of PW15 and the deceased being waylaid and
threatened the two travelling in a bike. The witnesses,
PWs.2, 3 & 6 also spoke of A1 having pointed his
finger in the direction of the deceased, PW2 and PW3. PW2
and PW3 along with the deceased having taken to their
heels stopped a little further when the assailants and
PW3 were not to be seen. Corroborating the version of
PW2, PW4 a nearby resident, saw A1 in a Scooter talking
to PW2 and the deceased. PW4 was about to step outside
when he saw the other accused emerging from the darkness
Crl.Appeal Nos.850/2016
and Connected cases - 45 -
and surrounding PW2 and the deceased. Naturally, PW4
retraced his steps, presumably out of fear; but he
witnessed the incident. Though there is a discrepancy
about the sodium vapour lamp, having not been
specifically mentioned to the police, as deposed by PW22;
there was sufficient light at the junction and in the
scene of occurrence. The nearby residences were lit and
so were the temple premises. All the witnesses testify
that it was a moon-lit night. We find no reason to
discard the testimony of the eye witnesses.
35. The next question arising is on the
different motive established in the evidence. Admittedly
the Court taking cue from the final report spoke of an
injury inflicted on one Tony on the same day at 10 p.m.
PW2 and the deceased were alleged to be members of
Thoppuvely Sangham and the attack on them, being a
retaliation of the earlier incident. The motive so
projected was disowned by the prosecution witnesses and
the I.Os, PW22 and PW23. Before Court, the testimony of
the witnesses were that, A1 had taken a building contract
from PW2's father, which led to some disputes in
Crl.Appeal Nos.850/2016
and Connected cases - 46 -
which the deceased intervened on behalf of PW2. Motive
as is trite is something remaining in the inner recesses
of the mind of persons and often the investigators would
be incapacitated in ferreting out the same.
36. In Hari Prasad (supra) the prosecution
alleged motive of enmity, but the person against whom the
ire was directed escaped with his entire family and
mistakenly a priest who was a guest, his mother and an
innocent servant were killed. It was held: 'For the
matter of that, it is never incumbent on the prosecution
to prove the motive for the crime. And often times, a
motive is indicated to heighten the probability that the
offence was committed by the person who was impelled by
that motive. But, if the crime is alleged to have been
committed for a particular motive, it is relevant to
inquire whether the pattern of the crime fits in with the
alleged motive' (sic). Their Lordships held that, the
accused therein, were entitled to the benefit of the
perplexity arising for reason of the many answers
coming reasonably to the mind. In the case we are dealing
with, no such perplexity arise and though gang war was
Crl.Appeal Nos.850/2016
and Connected cases - 47 -
alleged in the final report; there was no such long
standing enmity, but a dispute which motivated A1 to
round up a few of his employees to gang up and unleash
an assault on the two who dared to stand up to him.
The pattern of crime in this case fits either of the
motives and it does not give rise to a doubt of an
inextricable link between the motive and crime being
totally absent. Yunis @ Karia (supra) also found failure
to prove motive for a crime, to be of no consequence.
37. Even in a case built on purely
circumstantial evidence, motive is not imperative and if
established, it only provides a link in the chain of
circumstances. However when direct evidence is available,
absence of motive takes a back seat and it turns out
to be inconsequential and irrelevant, as rightly argued
by the learned Prosecutor. True, the final report and
the evidence led, projected a different motive for the
crime; which does not digress from the fact that two
persons were attacked, grievously injuring one and
killing the other. The assailants were the accused as
specifically spoken of by the witnesses. We also have
Crl.Appeal Nos.850/2016
and Connected cases - 48 -
to emphasize that one of the eye witnesses is the injured
who, as held by the Honourable Supreme Court, can have
no perceivable reason to implicate another for the
injuries caused to him. The records of investigation
and the final report only indicates a suspicion harboured
by the I.Os as to the attack being a retaliation of the
earlier incident and one arising from a gang war. The
witnesses however, categorically denied even the
existence of the two named gangs spoken of in the
suggestions made at the time of cross examination.
38. A6 & A7 alleged that there are no specific
overt acts alleged against them and omnibus allegations
have been thrown in their face. A6 also pointed out from
the medical evidence, the absence of serious injuries
caused by the weapon purportedly carried by him.
Onkarnath Singh (supra) was a case of private defence,
which held that the non-explanation of the injury on the
accused would not invariably establish a prima facie case
of private defence, thus shifting the burden on to the
prosecution to prove that the injuries were caused in
self defence. Deo Narain (supra) reiterated that when
Crl.Appeal Nos.850/2016
and Connected cases - 49 -
S.149 was attracted the factum of whether any of the
accused caused an injury or not would not always be
relevant. On the facts of that case the injuries
inflicted by one of the accused, after the victim was
first shot, were held to be not significant to rope him
in, for an offence under Section 302 especially in the
context of the others having been attributed with
significant roles in the murders. Yunis @ Karia (supra)
also held that: 'Even if no overt act is imputed to a
particular person, when the charge is under Section 149
IPC, the presence of the accused as part of an unlawful
assembly is sufficient for conviction.' (para 9). In a
case where the charge is under section 149: 'The legal
position is well established that inference of common
object has to be drawn from various factors such as the
weapons with which the members were armed, their
movements, the acts of violence committed by them and the
result.' [sic- Surendra (supra)]. This was reiterated in
Vinubhai Ranchhodbhai Patel (supra). We find the accused
having converged at three places, near Athira Club, at
the Kalath junction and the scene of occurrence with the
Crl.Appeal Nos.850/2016
and Connected cases - 50 -
objective of attacking the injured and killing them and
carried it out together, brutally with blunt weapons.
39. We also do not attach any value to the
contention raised by A1 that the wound certificate of PW2
indicated that he was taken from the road side.
Admittedly, the incident occurred between 11.00 and 11.30
p.m, when the scene of occurrence was deserted, but for
the victims and assailants and also PW4, a nearby
resident, whose presence cannot be doubted. After the
attack both the victims were left lying on the ground.
None of the people who converged on the scene of
occurrence, after the attack, saw the incident. Both the
victims were picked up from the temple compound
grievously injured and bleeding and taken to the
hospital. One was declared dead and the other was
grievously injured with no orientation. Obviously a
by-stander gave the history, which is true, if we look at
the circumstances in which the injured were picked up
from the compound of the temple and taken to the
Hospital. PW1 the first informant spoke of running to
summon an auto, on recognising the deceased to be his
Crl.Appeal Nos.850/2016
and Connected cases - 51 -
sister's son. While he was running, he detected another
person lying on the wayside, who on close observation
was his friend's son. He alerted the others gathered
there about PW2, lying injured, literally by the wayside;
who was also taken to the hospital after the deceased.
The history spoken of in the wound certificate,
juxtaposed with the detection of the injured, does not at
all give rise to any suspicion whatsoever.
40. The absence of any pool of blood in the
scene of occurrence to even clearly pin point the place
where the victims were lying, emphasized by the defence,
is natural for the scene being the temple compound having
white sand; the particles of which were detected from
the body of the deceased at the time of post-mortem
examination. PW22, the I.O had spoken of having gone to
the scene of occurrence between 3.00 and 3.30 a.m after
the incident when there were people moving around;
presumably for reason of the terror instilled by the
concerted attack on two young men of the locality. Though
there was a scene guard, the footfalls in the compound of
the Temple also would have contributed to the absence of
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and Connected cases - 52 -
pools of blood; which anyway would have been absorbed in
the sandy terrain. The defence also called to question
the conduct of the I.O in not having questioned any
of the locals, when he went to the spot; which we find to
be untenable. The I.O specifically said that he read the
FIR, registered at 2.30 a.m, before he came to the spot.
There were apprehensions of a gang war and hence it was
only proper that the Officer in Charge carry out a
surveillance of the area. It was also categorically
deposed by PW22 that he formally took over the
investigation in the morning of 17.11.2008.
41. One another contention raised by the learned
Senior Counsel appearing for A1 is that, he is an 'A'
Class Contractor, whose muster roll produced before
the Labour authorities would have established the factum
of the other accused being his employees. The prosecution
having failed to establish the same, it cuts at the root
of the prosecution case, is the compelling argument.
We do not see the status of A1 having been established by
the defence. The prosecution case is only that A1 is a
contractor and A2 to A7 are his employees. It has been
Crl.Appeal Nos.850/2016
and Connected cases - 53 -
spoken of by all the local witnesses; not seriously
disputed also. In building contract work carried out
by individuals, there is no reason to assume regular
workers in the employment of the contractor. The evidence
led by DW1 and DW2, purportedly to exonerate A5 and A2,
fails to impress us. DW1 is the Principal of an
Industrial Training Centre, who deposed that A5 had
completed a course in Automobile Engineering. As rightly
found by the trial court, A5 has not been shown to be
engaged in the employment for which he has a
qualification. Further, merely because of A5 having
acquired a qualification in Automobile Engineering, it
cannot be assumed that he would not be working with a
building contractor. DW2 claimed to be an Electrical
Contractor, who deposed that A2 was in his employment
having been recommended by a senior electrician. However,
there is nothing to evidence the employment, produced
before Court. The fact that A2 to A6 were employed by A1,
who is a building contractor, is not a relevant fact, and
is an ancillary fact which has been spoken of by the
witnesses who are all acquainted with the accused.
Crl.Appeal Nos.850/2016
and Connected cases - 54 -
42. There were flaws in the investigation like
timely submission of, intimations of search and
production of recovered weapons having not been made.
A motive projected; which was not evident even from the
prior statements of witnesses. Kailash Gour (supra) was
a case in which there was an attack on a house by a mob,
in a surcharged communal atmosphere; where the Police
reached the scene immediately, but failed to record the
first information of the eye-witness. The FIR was
registered after the inquest and the post-mortem; which
prompted the Court to accuse the I.O of being either
stupid, ill-trained and ignorant of law and procedure or
there being no clue available as to the actual
perpetrators. The Court, in the circumstances coming
forth in that case, held the second explanation as more
probable of the two. The fundamental principle of
criminal jurisprudence that an accused is presumed to be
innocent till proved guilty was restated and caution
reiterated that 'suspicion howsoever strong can never
take the place of proof'. Allarakha K. Mansuri v. State
of Gujarat (2002) 3 SCC 57 held :
Crl.Appeal Nos.850/2016
and Connected cases - 55 -
"The defects in the investigation holding it
to be shaky and creating doubts also appears to
be the result of the imaginative thought of the
trial court. Otherwise also, defective
investigation by itself cannot be made a ground
for acquitting the accused."
The dictum was followed in Prithvi (Minor) v. Mam Raj,
(2004) 13 SCC 279 and it was held that faulty
investigation can hardly be a ground to reject the
testimony of eye-witnesses which had a ring of truth in
it. We have found the eye-witnesses except one to be
credible, trustworthy and believable.
43. On the strength of the ocular testimony of
PW2, who was grievously injured in the incident, PW3, who
corroborated the incident just prior to the attack
unleashed and the presence of all the accused who pursued
them, we find no reason to doubt the guilt of the
accused. PW6, a resident of the locality, had seen the
initial preparation made by the accused and PW4, residing
near to the scene of occurrence, had also witnessed the
attack unleashed. PW15 spoke of a prior incident when the
Crl.Appeal Nos.850/2016
and Connected cases - 56 -
very same accused threatened the deceased. The
testimonies offered by the above witnesses, corroborate
each other and convince us that the alleged acts were
committed by the accused themselves. We have doubted the
recoveries made of the weapons; but, however, the medical
evidence categorically establish the injuries having been
inflicted by blunt and hard objects; which were seen in
the hands of the accused by the eye-witnesses. The ocular
witnesses spoke of such weapons having been carried by A2
to A6, with A1 supervising and controlling the attack. A1
though did not carry a weapon, had the common intention
along with the six others and is equally responsible for
the murder of one person and the near fatal injuries
suffered by the other. The recoveries were carried out in
a shabby manner and the material objects were not
forwarded to the Court in a timely manner. As rightly
observed by the trial court, every mistake of the
investigators do not help the accused; nor can they claim
exoneration based on a faulty investigation. Basing
reliance on the testimony of the injured witness,
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and Connected cases - 57 -
corroborated by the other witnesses, we uphold the
conviction and affirm the sentences imposed on the
accused. We reject the appeals.
Sd/-
K. Vinod Chandran
Judge
Sd/-
C. Jayachandran
Judge
jma/sp/lgk/vku.
