Kerala High Court
Chandran vs State Of Kerala on 4 March, 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 4TH DAY OF MARCH 2022 / 13TH PHALGUNA, 1943
CRL.A NO. 929 OF 2016
CRIME NO.25/2005 OF Vadakkekad Police Station, Thrissur
AGAINST THE JUDGMENT IN SC 356/2007 OF ADDITIONAL DISTRICT COURT,
THRISSUR
CP 22/2005 OF JUDICIAL MAGISTRATE OF FIRST CLASS ,KUNNAMKULAM
APPELLANTS:
1 UNNI
AGED 34 YEARS
@ UNNIKRISHNAN, AGED 34 YEARS, S/O.VELAYUDHAN,
THIRUVALAYANNUR DESOM, VADAKKEKAD VILLAGE.
2 VIJAYAN
AGED 36 YEARS
AGED 36 YEARS, S/O.KOLATHIL APPU, KOMBATHEYILPADY
DESOM, VDAKKEKAD VILLAGE.
BY ADVS.
SRI.P.VIJAYA BHANU (SR.)
SMT.MITHA SUDHINDRAN
SRI.VIPIN NARAYAN
RESPONDENT:
STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF
KERALA,ERNAKULAM.
BY ADVS.
PUBLIC PROSECUTOR
OTHER PRESENT:
SRI.S.U.NAZAR, SPECIAL GOVERNMENT PLEADER (CRIMINAL)
ASSISTED BY V S SREEJITH PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 24.02.2022,
ALONG WITH CRL.A.1082/2016, THE COURT ON 04.03.2022 DELIVERED THE
FOLLOWING:
Crl.A Nos.929/2016 &
1082/2016
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 4TH DAY OF MARCH 2022 / 13TH PHALGUNA, 1943
CRL.A NO. 1082 OF 2016
AGAINST THE JUDGMENT IN SC 356/2007 OF ADDITIONAL SESSIONS
COURT I, THRISSUR
CP 22/2005 OF JUDICIAL MAGISTRATE OF FIRST CLASS,KUNNAMKULAM
CRIME NO.25/2005 OF Vadakkekad Police Station, Thrissur
APPELLANTS:
1 CHANDRAN
S/O.URUKULANGARA VEETIL KORAN,THIRUVALAYANNU DESOM,
VADAKKEKAD VILLAGE,CHAVAKKAD TALUK, THRISSUR DISTRICT
2 BABU
S/O.BALAN NAIR, VATTATHOOR VEETTIL HOUSE,KALLUR DESOM,
VADAKKEKAD VILLAGE, CHAVAKKAD TALUK,THRISSUR DISTRICT
3 ABHILASH
S/O.VISWAMABHARAN, PATTHTHEYIL VEETIL HOUSE,KALLUR
DESOM, VADAKKEKAD VILLAGE,CHAVAKKAD TALUK, THRISSUR
DISTRICT
4 SUNIL SUNISH
S/O.PATTHTHEYIL VEETTIL KUNHI AYYAPPAN,KALLUR DESOM,
VADAKKEKAD VILLAGE, CHAVAKKAD TALUK,THRISSUR DISTRICT
5 SAJAYAN
S/O.KOOLIYATTE VEETTIL BLAN, CHAKKAMP
VADAKKEKADVILLAGE, CHAKKAPARAMBU DESOM,VADAKKEKAD
VILLAGE, CHAVAKKAD TALUK,THRISSUR DISTRICT
6 ANIL ANIL KUMAR
S/O.SHANMUGHAN, MACHINAGAL VEETTIL,PUNNAYOOR VILLAGE,
DESOM, CHAVAKKAD TALUK,THRISSUR DISTRICT
7 RENJITH
S/O.EDAKKATTU VEETTIL MANI, KALLUR DESOM, VADAKKEKAD
VILLAGE, CHAVAKKAD TALUK, THRISSUR DISTRICT
Crl.A Nos.929/2016 &
1082/2016
3
8 SREEMOD
S/O.SREEDHARAN, THAIKKATTIL VEETTIL,PENGATTUTHARA
DESOM, VADAKKEKADU VILLAGE,CHAVAKKAD TALUK, THRISSUR
DISTRICT
9 SUDHAKARAN
S/O.KOTTARAPPATTIL RAMAN,RESIDING NEAR ANDIKOTTKADAVU,
VAILATHOOR DESOM,VADAKKEKADU VILLAGE, CHAVAKKAD
TALUK,THRISSUR DISTRICT
BY ADVS.
P.VIJAYA BHANU (SR.)
SRI.S.RAJEEV
SRI.RAJIT
SRI.P.M.RAFIQ
SRI.K.K.DHEERENDRAKRISHNAN
SRI.V.VINAY
SMT.KIRAN ANTONY
SRI.V.C.SARATH
SRI.D.FEROZE
SRI.K.ANAND (A-1921)
SRI.AJEESH K.SASI
SMT.POOJA PANKAJ
SHRI.ABEL TOM BENNY
SRI.THOMAS J.ANAKKALUNKAL,CGC
THOMAS J.ANAKKALLUNKAL
RESPONDENT:
STATE OF KERALA
REPRESENTED BY CIRCLE, INSPECTOR OF POLICE,VADAKKEKKAD
CIRCLE, BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA,
ERNAKULAM
BY ADVS.
PUBLIC PROSECUTOR
OTHER PRESENT:
SRI.S.U.NAZAR, SPECIAL GOVERNMENT PLEADER (CRIMINAL)
ASSISTED BY V S SREEJITH PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 24.02.2022,
ALONG WITH CRL.A.929/2016, THE COURT ON 04.03.2022, DELIVERED THE
FOLLOWING:
Crl.A Nos.929/2016 &
1082/2016
4
K.VINOD CHANDRAN & C.JAYACHANDRAN, JJ.
-----------------------------------
Crl.A Nos.929 of 2016 & 1082 of 2016
-----------------------------------
Dated this the 04th March, 2022
J U D G M E N T
K.Vinod Chandran, J.
Festival grounds are fertile lands of strife where
silly squabbles ignite the fuse of past animosities,
turning it into killing fields. In the case before us,
there is a lethal cocktail of political rivalry which
escalated, by reason of a clash of egos in a ritual in
connection with the festival. The prosecution alleges
that a group of people aligned under a political party
attacked another, belonging to the rival party, killing
him mercilessly.
2. The accused were charged under Sections 120B,
143, 148, 324 and 302 r/w 149 & S.212 IPC and S.27 of the
Arms Act. A2 died in the course of the trial, A13 was
acquitted and A14 is absconding. The other accused stood
trial and they were convicted under the offences charged
and A1 and A3 to A12 were sentenced to undergo
Crl.A Nos.929/2016 &
1082/2016
imprisonment for life. They were also sentenced to
undergo rigorous imprisonment (RI) for six months under
S.143 IPC, RI for one year under S.148 IPC, RI for two
years under S. 324 IPC and RI for three years under
S.27(1) of the Arms Act. There were also fines imposed
under the different provisions, with default sentences.
3. The prosecution allegation is that on
18.01.2005, an altercation occurred in the course of a
ritualistic procession on the festival day, in which two
competing clubs participated. A1, his brother and some
others belonging to a club called 'Sanghadhwani'
quarrelled with the deceased who was participating under
the banner of 'Yuvadhara'. The deceased challenged the
others and threatened to retaliate at the festival
grounds. The accused then conspired, procured weapons,
followed the deceased and attacked him near a Halwa
Stall. The injured-victim ran for his life and hid in the
bathroom of PW12. The 12 accused chased and found him,
dragged him out of the bathroom, attacked him mercilessly
with deadly weapons, causing injuries, to which the
victim succumbed. The accused were housed in the
Crl.A Nos.929/2016 &
1082/2016
residence of A13 and on the next day, sent in a Qualis
Car arranged by A14 to Mookambika. The appellants herein
stood trial and were convicted as above.
4. Sri Vijaya Bhanu, learned Senior Counsel
appeared for A1, A3, A4, A5 and A10. Sri S.Rajeev,
learned Counsel appeared for A6, A7 and A8 and Sri Rajit,
learned Counsel appeared for A9, A11 and A12. The defence
argues that the accused are victims of the 'list system'
followed by the Police in political killings; the list of
accused originating from the local office of the rival
political party. The deceased and the accused belong to
different political hues and the accused were targeted
merely for their political affiliation. The party to
which the deceased belonged, provided the list of accused
as also tutored witnesses for the prosecution. It is
pointed out that neither Ext.P1 F.I.S nor Ext.P56 inquest
report named the accused. The first report arraigning the
accused (Ext.P59 dated 20.01.2005) only arraigned A1 to
A9 and it was by Ext.P61 dated 21.01.2005, that A10 to
A12 were arraigned. These reports reached the Court only
on 28.01.2005 and 31.01.2005, for which delay, there is
Crl.A Nos.929/2016 &
1082/2016
no satisfactory explanation by the I.O, PW49. These
reports also do not refer to PW3, PW24 and one Vijayan,
who were all eye witnesses according to the prosecution.
There is serious doubt as to the source of light by which
the eye witnesses saw the incident.
5. The scene plan produced by the prosecution is
as vague as possible and does not help the Court at all
to understand the relevant facts attempted to be brought
out in evidence, with reference to the scene of
occurrence. Rule 75 of the Criminal Rules of Practice is
pointed out to emphasize the importance of the Scene
Plan. Koshy @ Baby v. State 1991 KHC 18 is relied on to
further buttress this contention. There is serious doubt
as to whether there were tube lights fixed on the
festival grounds and more particularly, near the house of
PW12. PW49 speaks of the minutes book of the temple
committee having been seized by Ext.P10 mahazar which was
not produced. PW17, who is said to have put up the
lights, was not questioned by the Police. PW12 admits
that there was no power connection in her house and there
was no possibility of PW23 having seen the attack and
Crl.A Nos.929/2016 &
1082/2016
identified the assailants at night. More particularly, it
has come out that the property of PW12 is at a height of
more than six feet from the temple grounds. PW23's
statement that he stood up on a ridge to witness the
incident, is improbable especially since he had a child
sleeping on his shoulders. There is also evidence to show
that there was another property between that of PW12 and
the alleged position of PW23; thus belying his contention
of clear vision; falsified further by the testimony of
PW46, who took photos of the scene of occurrence.
6. The testimony of the eye witnesses regarding
the weapons held by each of the 12 assailants and also
the description of the dress worn by them, without a
fault, clearly indicates tutoring by the Police. It
raises suspicion about the testimony of the ocular
witnesses. The recovery of weapons is said to have been
made from the backyard of the respective residences of
the accused. There were no blood stains on the weapons
stated in the mahazars; but the FSL report found presence
of blood. Reliance was placed on Balwan Singh V. State of
Chhattisgarh (2019 (7) SCC 781) to contend that only in
Crl.A Nos.929/2016 &
1082/2016
cases where the recovery of an M.O, is proved beyond
reasonable doubt, the mere presence of blood without its
origin or group being determined can be taken as an
incriminating material. The prosecution case was also
that immediately after the attack, the accused were
removed from the scene of occurrence, in a Qualis Car, by
A13 & A14 and harboured at A13's house. The dress of the
accused were alleged to have been surrendered by A13,
witnessed by PW22. When the accused had proceeded to
A13's house straight from the scene of occurrence, in
their blood-stained dress, there is no probability of
concealment of weapons in the backyard of their
respective residences. Ext.P26 seizure mahazar of the
dress does not indicate any to be blood-stained. Ext.P86
is the property list dated 07.03.2005 sent to Court which
was returned since the properties did not accompany the
list. The endorsement in Ext.P86 and the deposition of
PW49 clearly indicate the return and the further
submission, with delay, on 04.04.2005, raising doubts as
to the proper custody of articles seized. Reliance was
placed on Kibilo Danial & others V. State of Kerala (1985
Crl.A Nos.929/2016 &
1082/2016
KLT Short Notes 49) and Alavi V. State of Kerala (1982
KLT 287) to emphasize on the expediency with which the
M.Os are to be sent to Court and the safe custody under
which they have to be kept by the police. Reference was
placed on Madhav V. State of Madhya Pradesh (AIR 2021 SC
4031) to caution this Court on how to approach a case in
which the prosecution case is clearly concocted; to aid
the real culprits to escape and frame others totally
unconnected. The recoveries are further challenged
pointing out the delay that occurred in the individual
property lists being sent to the Court. The graphic
description of the weapon and dress by the eye witnesses
belies their testimonies, and artificial and unrealistic
testimonies are to be eschewed as has been held in a
decision of this Court in Crl.Appeal No.362 of 2007 dated
04.08.2011 (Golden Satheesan @ Satheesan V. State of
Kerala).
7. It is argued that the genesis of the incident
as spoken of by PW1, the maker of the FIS, of twenty
persons following the victim with deadly weapons, in a
festival ground, is highly improbable. The FIS as also
Crl.A Nos.929/2016 &
1082/2016
PW1 and PW2 speak of a number of persons, Sreejith,
Sunil, Vijesh and Vineesh, who were not examined before
Court. Jayan(CW12) who is said to have seen the incident
at the Halwa Stall was not examined before Court. There
were three police personnel present in the temple grounds
with the Sub Inspector (PW48), who took the deceased to
the Hospital, but none of them were examined. PW30, who
spoke of the accused having gathered together in a vacant
plot, spoke of one Nandan having accompanied him to the
spot; who was not examined. In fact, PW30 speaks of
having used the torch light to identify the people in the
group, who were alleged to have conspired to kill the
victim. If there was sufficient light in the locales,
there was no reason to use the torch light, is the
contention. The lights were turned towards the temple and
the pond, ie: towards north and the scene of occurrence,
PW12's house, was to the south. A table MO16 recovered
from the Halwa stall on which the deflected sword, aimed
at the victim had struck, did not reveal any mark. PW23
who saw the incident with the sleeping child on his
shoulders, spoke of having taken the child to the
Crl.A Nos.929/2016 &
1082/2016
sister's house where his wife and sister were available.
He did not speak of what he witnessed to either his wife
or sister and more surprisingly revealed it to the police
only after two days, when he was questioned. PW12, who
informed PW5 about the injured victim lying in her
property does not speak of having seen PW23. Lallu Manjhi
v. State of Jharkhand (2003) 2 SCC 401 and Hem Raj v.
State of Haryana (2005) 10 SCC 614 were relied on to
argue that parrot like testimonies of the witnesses are
to be eschewed. It was vehemently asserted that the
accused deserved to be acquitted.
8. The learned Special Prosecutor, Sri. S.U.
Nazar, pointed out that the recoveries made on confession
statement, clearly led to the discovery of the concealed
weapons which is a relevant fact as spoken of under
Section 27 of the Evidence Act. When the recoveries are
established to be on the disclosure of the accused; then
the absence of blood stains or the nature of such stains
having not come out in scientific examination will not be
fatal, as held in R.Shaji V. State of Kerala (2013 (14)
SCC 266). The I.O has spoken of the confessions in his
Crl.A Nos.929/2016 &
1082/2016
deposition, which is the substantive evidence, supported
by the individual witnesses who attested the mahazars.
Even otherwise State of Karnataka V. David Razario
(2002(7) SCC 728) held that the recovery is only one
circumstance and in this case there are a number of other
incriminating materials, including ocular evidence to
find the guilt on the accused. There is definite evidence
of the presence of PW1 to 3, PW5, PW23 and PW24 from
their respective testimonies corroborating each other.
PW12 also saw the occurrence, but did not identify any of
the assailants. It is pointed out that there are two
instances as projected by the prosecution. The first, at
the Halwa Stall, which was witnessed by PW2 and PW3 as
also PW24. The presence of PW2 and PW3 is confirmed from
the evidence of PW1, to whom PW3 narrated about the
victim having been attacked, wherein he sustained an
injury in front of the Halwa Stall. PW23 on his way home,
saw the second incident and also saw PW24 and another
person, who too witnessed the incident from their hiding
place. PW24 spoke of having talked to PW23 later, about
the incident. The evidence of PW12 and PW17 clearly
Crl.A Nos.929/2016 &
1082/2016
indicates the source of light from the tube lights, put
up at the festival grounds. Sohrab v. The State of M.P
(1972(3) SCC 751) was relied on to contend that there is
hardly a witness whose evidence does not contain a grain
of untruth or exaggeration. Myladimmal Surendran v.
Arayakkamdy Sukumaran @ Suku V. State of Kerala (AIR 2010
SC 3281) and Rana Pratap v. State of Haryana were placed
before us to urge the conceptual flaws in classifying
witnesses as 'chance witnesses' and 'independent
witnesses' especially in Indian conditions. It was urged
that the witnesses and the accused were all people of the
same locality well known to each other and there is
nothing to disbelieve the ocular testimonies; which
sufficiently corroborate each other.
9. It is pointed out that two days from the date
of occurrence, all the witnesses were questioned and
Ext.P59 and P61 reports arraigning the accused were
submitted to Court. Though there was some delay in the
said reports reaching the Court, it was properly
explained by the I.O. The eye witness testimony is
crystal clear and there is no material to entertain any
Crl.A Nos.929/2016 &
1082/2016
reasonable doubt. Eight, out of the 12 weapons were blood
stained. The very fact that different witnesses spoke of
the different incidents, indicate that the witnesses were
credible and truthful. The testimonies are not parrot
like as argued by the defence. When the entire evidence
is evaluated, there is no reason to find falsehood or
even impossibility or improbability. Bhola alias Paras
Ram V. State of Himachal Pradesh (2009(11) SCC 460) was
urged to point out that, even when there are
contradictions, embellishments and improvements in the
testimony; so much of the deposition which is beleivable
can be relied on to enter a conviction, if the same is
sufficient so to do.
10. It is urged forcefully that the remand
reports need not put forth the entire case detected by
the prosecution and what is required is the prima facie
material inculpating the accused; which commends the
Court to remand the accused. The investigating officers
cannot always be viewed with suspicion and there should
be some elbow room for the Police to carry out the
investigation and ascertain the truth of the statements
Crl.A Nos.929/2016 &
1082/2016
made under S. 161. Merely because one witness, whose
S.161 statement was already taken, was not mentioned in
the remand report; there is no warrant to disbelieve that
witness. State of W.B v. Mir Mohammad Omar 2000 SCC
(Cri.) 1516 was relied on to contend that there is no
investigation which is fool proof or completely flawless
and if that is expected, the casualty will be the
criminal justice system.
11. That the death was by homicide, is well
established by the evidence of PW37, the Doctor who
carried out post-mortem examination and produced P38
report. There were 36 injuries sustained on the body of
the deceased; incised wounds (21 in number), abrasions
(13) and contusions (2). The injuries number 1 & 2 proved
fatal and was independently sufficient to cause death.
The injuries according to the Doctor could have been
caused by the weapons shown by the I.O and produced
before Court. The weapons were specifically identified as
heavy cutting weapons with which it was possible to cause
the incised wounds and also the contusions, with its
blunt portions. While we have to consider the
Crl.A Nos.929/2016 &
1082/2016
sustainability of the recoveries, as an incriminating
circumstance; it goes without saying that the injuries
could have been caused by weapons capable of cutting,
from their sharp and blunt faces.
12. As far as the motive is concerned there was
a dispute between A7 and the deceased having arisen long
back for reason of which A1 and A7, at an earlier point
of time had trespassed into the house of the deceased; as
spoken of by PW3 and PW7. However there is no indication
that this was the immediate motive behind the conspiracy
or the concerted attack on the deceased. Even the
prosecution case is that the motive was the challenge
raised by the deceased in the ritualistic procession, in
connection with the temple festival that occurred in the
afternoon of that day. Two clubs having different
political hues had carried out separate processions with
the accompaniment of musical instruments and dancers.
Though ritualistic, such processions often turn
competitive, adding to the energy of the performances but
at times lead to fiery exchanges, culminating in
altercations which escalate into killing sprees, as in
Crl.A Nos.929/2016 &
1082/2016
the present case; political rivalry acting as a virulent
catalyst. There was an altercation in the afternoon in
which PW3 and PW7 had participated as members of the
Yuvadhara club along with the deceased. A1, his brother
PW10 and PW11 participated as members of the Sanghadwani
club. The participants in the two groups belonged to
rival political parties.
13. Pausing here for a moment, it has to be
noticed that admittedly the political rivalry looms large
in the background as is clear from the evidence led. The
defence, in cross-examination of the witnesses had
consistently made pregnant suggestions regarding the
political affiliation of the witnesses paraded before
Court and also obliquely referred to the political color
of the accused. It also has to be mentioned that one of
the compelling arguments raised by the defence was on the
ground of the witnesses being planted, as also the
accused being specifically targeted by the rival
political party, for reason only of their political
affiliation. There is an attempt made by the defence in
cross-examining the witnesses to bring out that they were
Crl.A Nos.929/2016 &
1082/2016
active members of the rival party and also involved in
crimes stemming out of such rivalry. It has to be stated
empathetically, that it is not a legal imperative that
when there is a political clash between two groups, the
witnesses should invariably be unaffiliated persons.
Myladimmal Surendran (supra) deprecated the practise of
classifying witnesses with political affiliations as
partisan witnesses, especially considering the cultural
ethos of this country. It was held that, 'at best their
evidence has to be carefully scrutinized... not brushed
aside' (sic).
14. The circumstances prevailing, would commend
any Court to hold that, often, in political crimes, it is
difficult to get the so called independent, unaffiliated
witnesses. The common man, unaffiliated to political
parties, striving for basic survival & daily bread,
fighting against the vagaries of life, would neither
concern himself with politics, nor would take sides for
fear of endangering self and the family. In political
crimes, witnesses for the prosecution would be definitely
from affiliated groups and parties since, only their
Crl.A Nos.929/2016 &
1082/2016
collective arrogance, could stand against the equally
mindless and aggressive rivals. And definitely the
members of the attacking group would remain silent. The
grounds so raised by the defence is rejected at the
outset. Dehors the political affiliations, what has to be
looked at is the inherent credibility of the witnesses,
trustworthiness of their testimony, the genuineness of
their presence and the corroboration offered by the
attendant circumstances as spoken of, by the bundle of
witnesses paraded by the prosecution.
15. We find that there are, in truth, three and
not two incidents, as portrayed by the prosecution. The
first, the altercation in the afternoon, when the
deceased threw a challenge at the accused. The second,
when the accused surrounded the deceased before a Halwa
Stall and attacked him. And the last, when they dragged
him out of the bathroom in PW12's property and brutally
hacked him to death. PW9, witnessed the mahazar by which
five notices, regarding the festival, were submitted to
the station by the Treasurer of the Temple Committee. The
notices speak of the programmes and two ritualistic
Crl.A Nos.929/2016 &
1082/2016
processions, called 'Singari Melam', being taken out in
the afternoon. PWs 2, 3, 7, 10 and 11 were proffered to
depose on the quarrel that originated at the time of the
procession and the last two turned hostile. The testimony
of PW2 is that, he was participating in the procession
under the banner of 'Yuvadhara', in the afternoon of
18.01.2005, when there was a scuffle between the deceased
and A1's brother(PW10), A4 and PW11. A1 and PW7 belonging
to rival groups interfered and pulled apart the persons
involved in the scuffle, at which moment the deceased
challenged the others and promised to settle scores at
the festival grounds. PW2 spoke of the scuffle and PW7's
narration was exactly in tune with PW3's. PW7 also
admitted that he intervened and diffused the situation.
PW10, the brother of A1 and PW11, who was alleged to be
with PW10, turned hostile and denied the incident of the
afternoon. The scuffle stands established and the
testimony of the witnesses corroborate each other. It is
also pertinent that the witnesses who were in the same
group as the deceased admit that the provocative
challenge was thrown by the deceased. As to whether this
Crl.A Nos.929/2016 &
1082/2016
could constitute a motive for a person to be killed; it
has often been said that motive resides in the inner
recesses of the minds of individuals, the passions of
which cannot be ferreted out and could at times be alien
to a reasonable mind. However lives have been lost and
even wars launched, for lesser slight and these are more
probable in locales which are hotbeds of such rivalry.
The motive and the genesis of the incident, which led to
the death of one of the persons involved, stands fairly
well established by the prosecution.
16. Now we come to the second part of the incident
which occurred before the Halwa shop in the festival
ground on the same night. Undisputedly there was a
festival on the subject day which had a ritualistic
procession in the afternoon and various stage programmes
(Ext.P11 series of notices) in the evening. The locals
had gathered at the temple ground for the festivities and
to watch the programmes. PW1, the maker of the FIS was
standing at the rear of the crowd, when the deceased
(Shameer) and PW2 came by and Shameer wished him 'Hello'.
Later, Shameer moved away with PW2 and came back and sat
Crl.A Nos.929/2016 &
1082/2016
along with PW2, PW3, Sunil and Sreejith. Shameer then
wanted to have a pan for which he went in search of a pan
shop accompanied by PW3. The other friends were sitting
at the rear watching the programme when, according to the
FIS and PW1, PW3 came running back and told them that
Shameer was hacked; which statement was corroborated by
PW2 and PW3. PW3 deposed that when they were going in
search of the pan shop, the accused came to them with
weapons and having encircled Shameer; A2 (since dead)
brought out a chopper, which he was hiding at the back
under his shirt and slashed at Shameer wounding him below
the left elbow. A1, with a sword hacked at Shameer and
missed, the sword bouncing off a table (MO16), kept at
the Halwa Shop.
17. PW2 and PW3 deposed that when PW3 came running he
was shouting that 'Unni (A1) hacked Shameer'. In cross-
examination PW2 was recorded as having omitted to say
that, PW3 spoke the name of A1, to the police in his
prior statements. D2 and D2(a) contradictions marked on
behalf of the defence, while PW3 was cross examined, also
clearly indicate that PW3 only said that, Shameer was
Crl.A Nos.929/2016 &
1082/2016
hacked; to the Police. The I.O proved the statement as
recorded under Section 161 and PW1's deposition also is
only to this end. Despite our disbelieving that PW2
specifically spoke of the person who hacked Shameer, the
fact remains that there was such an incident which
occurred at the Halwa Stall, which was witnessed by PW3.
That Shameer came to the festival grounds along with PW2,
PW3, Sunil and Sreejith and met PW1 is established by the
evidence of PW1 to PW3. The said witnesses also speak of
Shameer having moved away from the place for the second
time, accompanied by PW3. That some people followed
Shameer when he moved away from the rear of the audience,
is stated by PW1. PW1 speaks of 20 persons having
followed Shameer, but does not say that they carried
weapons, which is very unlikely considering the large
gathering of people on the festival grounds. PW3 spoke of
A2 having taken out a weapon, hid behind his back, to
hack Shameer, wounding him and soon after A1 having
similarly attacked Shameer which stood deflected. The
presence of A1 and A2 along with others, as spoken of by
PW3 can be believed and we find no reason to discard the
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testimony of PW3 regarding the second incident which
happened before the Halwa shop. Pertinently PW3 spoke of
the cut delivered by A2 having caused an injury on the
left arm of Shameer, below the elbow. Injury No.27 in
Ext.P38 post-mortem examination report is extracted
hereunder:
"Incised wound 8x5x4 cm on outer side of upper
part of left forearm, transverse inner end 4cm
below the elbow. The wound cuts the extensor
muscle underneath. The radius was also cut for a
depth of 0.5cm."
This injury fully corroborates the deposition of PW3. We
find sufficient corroboration for PW3 also from the
evidence of PW1 and PW2 regarding the just prior
antecedents and what happened immediately after the
attack. Here it has to be observed that in cross-
examination of PW3 one relevant omission recorded was
that PW3 did not speak of the presence of A10 to 12,
before the Halwa Stall, in his prior statements to
police.
18. PW3 having informed the friends sitting at
the rear of the audience about the attack of Shameer, all
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of them went in search of Shameer, where from starts the
third and last incident resulting in the death of
Shameer. In this context, we have to notice that PW24
also spoke of the second incident; he being an eye
witness, as projected by the prosecution, to both the
second and last incident. PW24 was standing before the
Halwa Stall talking to one Vijayan (CW12), when they saw
Shameer and PW3 coming towards them. CW16 and CW17, one
Sudhakaran and Jayan were also in the vicinity. Suddenly,
A1 to A12 converged on the spot from the western side and
encircled Shameer. A2 is said to have queried Shameer as
to the challenge made in the afternoon in the course of
the ritualistic procession. A2 then took out the weapon
from behind him, hid under his shirt and hacked on
Shameer causing an injury to his left hand. A1 also
attacked Shameer which was deflected. Shameer then
escaped from them and ran towards the west, with the
assailants in hot pursuit. When PW24 and Vijayan
followed, they were threatened and hence they momentarily
stopped. The assailants proceeded towards the property of
PW12, crossing the canal and PW24 followed with Vijayan.
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So much of the testimony corroborates the statements made
by PW3. The deposition of PW23 regarding the second
incident; the trustworthiness of which has to be
examined, based on the contention raised by the defence
counsel, which we will do a little later.
19. Undoubtedly, the incident where Shameer met
his death happened in PW12's property. PW12 was inside
her residence along with her two daughters. At around 10-
10.30, she heard a person saying 'here, here, he is here'
(in the vernacular) from near the bathroom. She showed a
lamp through the window and looked outside and saw some
persons, pushing another from the side of the bathroom.
The assailants were seen slashing on their victim when
she implored them not to do anything, after opening the
door. However, the assailants numbering 5 to 10 attacked
the victim with swords. There was a lot of blood in the
scene of occurrence and the assailants ran towards the
west. She saw the attack in the light of the tube
lights, lit on account of the festival. After the
assailants left, she came out and ran towards the
Temple(Palakkal Bhagavathy Temple) and called aloud for
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somebody to come. She saw PW5, to whom she informed that
a person was hacked and asked him to bring somebody.
20. PW5 was the Joint Secretary of the Temple
Committee. He was available inside the temple since the
ornaments worn by the deity were not removed for reason
of the festivities and the stage programmes. He heard
somebody repeatedly screaming not to do anything;
obviously PW12, from the southern side of the temple. He
keenly looked in that direction and found PW23 standing
there with a small child on his shoulders. He walked
towards the south, when PW12 asked him not to come alone,
informed him of somebody having been hacked and directed
him to summon the committee members. By the time he came
back, Subramanyan (PW23) and child had left. He also saw
PW2 and PW3 when he was proceeding to summon people to
the scene of occurrence and informed them about what PW12
told him. He saw around ten people running from PW12's
property towards the West. PW5 also spoke of having seen
them in the light of the tubelights, lit for the
festival. He informed the committee members and the stage
programmes were immediately stopped and by the time he
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came back, he saw the injured person being bodily taken.
21. PW23 is the star eye-witness of the
prosecution, who saw the entire incident in the property
of PW12. He had come to the festival grounds to see the
stage programmes along with his four year old daughter.
At around 10'O clock his daughter fell asleep. His wife
was in his sister's residence, which was towards the west
of the Palakkal Bhagavathy Temple. When his daughter fell
asleep, he left for his sister's residence, with his
daughter sleeping on his shoulders, to leave her with his
wife. He was proceeding through the southern boundary of
the pond, which was to the west of the Palakkal
Bhagavathy Temple. He heard somebody say in the
vernacular, 'here he is'. He also heard foot falls from
the northern side of PW12's property. There was a pathway
at an incline, to reach PW12's property. He stepped on to
a mud ridge and looked towards PW12's house. He saw
Shameer being dragged from the side of the bathroom to
the northern side of the property. He identified the 12
accused and spoke of the attack on Shameer. Three of the
accused hacked Shameer on his head, neck and torso, while
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five hacked him on the legs and four on both his hands.
He heard PW12 imploring the assailants not to do
anything. PW12 opened the back door and came out. When
the assailants looked around, PW23 too looked all around,
to see PW24 and Vijayan hiding and watching the incident.
PW24 and his friend went towards the east while the
assailants went towards the west. PW23 went home and put
the child on a cot and later went in the direction of the
nursery near the temple. He saw PW24 and Vijayan and he
told them that he had seen the attack and that he saw
both of them witnessing it from their hiding place. He
identified all the accused as also the witnesses. He
identified the dress worn by the accused at the time of
the attack. PW23 did not say anything to his wife and
sister and he admitted that he was frightened and did not
do anything to save Shameer. He also approached the
Police after two days. The narration of PW24 regarding
the last incident, in which Shameer was killed, tallied
with that of PW23.
22. PW12, 23 and 24 are the eye witnesses to the
last incident and PW5 spoke of what happened immediately
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thereafter. PW12 was the closest, being in the scene of
occurrence, ie: her own residential property. She saw the
incident from the time the assailants pulled Shameer out
of the bathroom and pushed him on to the backyard where
he was brutally murdered. PW12 did not identify the
assailants but spoke of having heard footfalls and
conversation inside her residential property, from the
side of the bathroom, which prompted her to look out the
window. When Shameer was pushed and pulled on to her
backyard she implored not to do anything, which the
assailants did not heed. When she opened her door, the
assailants fled towards the west and she ran towards the
north, in the direction of the Temple, to summon someone.
23. PW23 was going to his sister's house when he
heard footfalls and the voices from PW12's property. The
exchange between the assailants when they detected
Shameer in the bathroom of PW12, was spoken of
identically by PW23 and PW12. Curiosity got the better
of PW23 and he stepped on to a mud ridge with the child
on his shoulders to witness the gruesome incident, which
he spoke in tandem with the narration of PW12. The
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challenge against PW23's version is on several counts,
one there being not enough light, the property of PW12
being on a higher plane from that of the pathway
bordering the four sides of the pond and the
impossibility of the witness seeing the incident in
PW12's property which was on a higher plane, with the
child on his shoulders.
24. The topography of the temple and the
surroundings is a major area of challenge raised by the
defence to assail the prosecution case. The scene plan as
stated by the defence does not even have the bare minimum
details and we cannot but observe that there should be
better care bestowed in drawing up such scene plans as
held in Koshy @ Baby (supra). Scene plans help the Courts
to examine the evidence especially the circumstances,
with reference to the scene of occurrence. Though the
Village Officer, PW 38 deposed that he prepared the scene
plan on the instruction of the I.O, the I.O denied his
presence at the time when the scene plan was prepared. Be
that as it may, what comes out from the scene plan at
Ext.P39 is that the Palakkal Bhagawathi Temple lies to
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the north west of the Manikandeswaram Centre, a junction
on the Althara-Kunnamkulam road. To the immediate west of
the Temple is the large pond having an area of about an
acre. To the south of the Temple is PW12's house which as
per the scene plan is about 42 metres from the Temple.
There is also a coconut plantation to the immediate east
of the Temple. The Temple and the pond is situated about
6 feet, lower to the property of PW12 and the immediate
property to the north of PW12's property as per the
testimonies. PW2 in his evidence said that there is a
pathway, from the Manikandeswaram Centre to the Palakkal
Temple, on both sides of which there are properties. The
pathway proceeds through the north of the nursery to the
Palakkal Temple. The pathway and the Temple are at a
lower level and there is a slope on the south of the
Temple to proceed to the properties lying at a higher
level. PW2 spoke of having gone through the pathway in
search of Shameer when they saw PW5. PW1 & PW5 also spoke
of the topography as spoken by PW2. It was further stated
that there was no fence separating the property of PW12
from that on its west. In understanding the topography we
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can also usefully refer to DW1's evidence. He speaks of
the pathway going through the north of the nursery,
proceeding to the west which reaches the southern side of
the Palakkal Temple. From the pond the canal proceeds to
the south, to the west of which, there is one property,
to the north west of which lies PW12's property. He also
speaks of the pond having an extent of one acre which is
bordered on all sides by pathways. He also speaks of the
way to PW23's sister's house from the Palakkal Temple.
According to him from the Palakkal Temple one has to go
down to the pathway on its west which pathway lies on the
eastern boundary of the pond. From there, one has to go
south through that pathway and turn towards the west, on
the pathway bordering the southern boundary of the pond
and then turn north on the pathway on the western
boundary of the pond. To the south of the Temple lies the
pathway through the southern boundary of the pond and
further south lies PW12's property which is on a higher
plane reachable through the slope on the southern
boundary of the pond. The pathway on the southern
boundary of the pond has to be used by PW23 to go from
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the festival grounds to his sisters house. It is from
there, PW23 stepped on to a ridge and witnessed the
scene. The child was only 4 years old and was sleeping on
his shoulders, not an improbable version. PW5 also saw
PW23 standing on the ridge and looking towards the
property of PW12.
25. As far as the light is concerned PW17 spoke
of 80 tube lights having been placed in the location to
ensure proper lighting of the festival grounds. The
lights were also tied to the coconut trees on the
property adjacent to the pathways. Though the purpose was
to light the Temple grounds on the northern side,
definitely the entire area would be lit by the tube
lights, tied at a height of 6 feet, on trees. All the
witnesses speak of the tube lights fixed all over the
festival grounds, the pathways and around the pond.
PW12's house is not electrified but she categorically
spoke of having seen the incident; the brutal murder in
her backyard, in the light of the tube lights. PW5
categorically deposed that he saw the assailants running
away to the west from the property of PW12, while he
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approached PW12's house from the temple, hearing the
commotion. But he could not recognize them since he only
saw their backs. In fact DW1 also spoke of both sides of
the pathway leading from the Manikandeswaram Centre to
the Palakkal Temple being lined with commercial stalls.
The Temple premises and the pathway leading to the
Temples as also the pathway surrounding the temple pond
were lit with tube lights. There is a contention raised
by the defence that at least on the southern boundary of
the pond the tube lights were on small trees. However, it
has to be noticed that from the southern boundary there
is an incline to the south which is lying as a slope and
the properties in the higher level are at a height of
about six feet. It is on the small trees on the southern
boundary of the pond that the tube lights were placed,
according to PW17. The tube lights were said to be fixed
at a height of six feet, which would light the properties
on the higher plane too. Hence, a person standing on a
mud ridge, on the slope, would have clear vision, in the
light of the tube lights, of what was happening in PW12's
backyard which has only one property between itself and
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the slope. The defence pointed out the testimony of PW46,
who photographed the scene of occurrence to contend that
there is no clear vision to see the back yard of PW12.
But on our examination of the photographs we see trees on
the adjacent property of PW12, but not so thickly grown
as to blind total vision. We reiterate, even PW12, who is
a completely independent witness; who did not identify
the assailants, spoke of having seen the incident in her
backyard in the light of the tube light placed for the
festival. PW23's presence and his version of having stood
on the ridge to witness the incident in the light of the
tube lights is a very probable version fully corroborated
by the evidence of PW5 and PW12.
26. The accused and the witnesses were residents
of the locality and we have already held that the
political affiliation does not deter us from examining
the credibility of the witnesses. We find the witnesses
discussed above to be trust worthy and corroboration on
the antecedent activities are available from their
testimonies. Relying on Myladimmal Surendran and Rana
Pratap (both supra), it can be safely found that the
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witnesses from the rustic setting are believable. They
cannot be called chance witnesses by any standards and
their impartiality cannot be doubted. We find
corroboration to PW12 and PW23's testimony from that of
PW5, who clearly saw PW23 standing on the ridge looking
towards PW12's house with a child on his shoulders. PW5
also heard PW12 pleading with the assailants not to do
anything which sound attracted him and made him observe
what was happening, to the southern side of the temple.
He also stated that he saw the assailants run away but
did not identify them, since he saw only their backs.
27. PW5's presence is challenged by the defence
on the ground that the minutes of the Temple Committee
did not indicate PW5 having been entrusted with the task
of guarding the ornaments of the deity; not very
significant. PW5's evidence was that the deity was
wearing the ornaments and the grill leading to the
sanctum sanctorum, which did not have a roof, was locked.
PW5 also said that the deity was wearing the ornaments,
at night, only due to the festival and immediately after
the police came, pursuant to the incident, the priest
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took the ornaments from the deity and entrusted it to the
Committee for safe keeping. This is exactly the evidence
of DW1 also. He admitted that the ornaments of the deity
would be guarded by the committee members one after
another. He also did not clearly remember whether PW5 was
standing guard at any time. This does not in any manner
raise doubts as to the presence of PW5 in the Temple.
Admittedly the murder was committed, immediately after
which PW5 came, whose presence stands established by the
testimony of PW12. Both of them did not identify the
assailants. The murder was committed in close vicinity of
the Temple. DW1 who said that he and another committee
member stood guard at different times, but did not
confirm his presence at the crucial time. DW1 also did
not speak of the incident which would not have escaped
the notice of a person standing in the Temple, at that
time, for reason of the gravity of the situational
occurrence and the close proximity in which it occurred.
28. As far as PW24 is concerned, we have our own
doubts especially considering the ground on which his
evidence has been assailed by the defence, pointing to
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Ext.P94 remand report dated 31.01.2005. It first speaks
of statements having been taken on 19.01.2005, from
Kumari (PW12), the two daughters of Kumari (who were not
examined) and PW5, who spoke of the attack by around 10
P.M. On 20.01.2008, as per Ext.P94, Jayan (CW16),
Muhammed (PW45) & Kuriakose (PW42) were questioned. These
were the persons who were available at the Halwa shop,
who witnessed the attack by accused 1 to 9. PW42 & PW45
were Halwa Stall Owners and PW48, PW42's employee; all of
whom turned hostile to the prosecution. CW16 is the
person who pointed out the direction in which Shameer
ran, to PW1, PW3 and others who went in search of him,
after PW3 told them about the attack in front of the
Halwa shop. A contention was also advanced that PW3
having not been specifically mentioned, in Ext.P94, his
presence along with Shameer and his version of what
happened before the Halwa shop stands falsified. We are
not ready to accept the said contention especially
noticing the fact that PW3, his presence and his
statement were spoken of by PW1 at the first instance
when the FIS was made. PW3's presence and his version
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cannot be disbelieved only on the circumstance that the
I.O did not mention him in Ext.P94. It is not imperative
that in a remand report every person whose statement was
taken by the I.O should be made mention of. The attempt
at that stage is only to prima facie prove before the
Magistrate about the culpability of the accused arrayed
and seek for their remand when the investigation can be
carried on without hindrance. PW24 is a person who saw
the incident before the Halwa stall, followed the
assailants without coming to their notice and hid behind
a tree to witness the entire occurrence. PW24 being a
witness of both the incidents would have been definitely
referred to in Ext.P94 and that omission raises a
reasonable doubt about the testimony of PW24. Vijayan who
was with PW24 has also not been examined, whose evidence
would have further corroborated the testimonies regarding
both the incidents. DW2, an employee of the Company which
sponsored the festival programmes deposed that himself
and PW24, another employee, were deputed to supervise the
conduct of the programmes, by their employer. He
categorically stated that PW24 was along with him, in
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front of the stage, throughout. All these circumstances
commend us to eschew the evidence of PW24.
29. Again, on 21.01.2005 the I.O is said to have
taken a statement from PW23 on the basis of which the
accused at 10 to 12 were added. In this context, Ext.P59
assumes significance. Ext.P59 is the report filed before
the Magistrate with the name and address of the accused
A1 to A9. The said report is dated 20.01.2005. On
21.01.2005, Ext.P61 was prepared adding accused 10 to 12.
The I.O, PW49 deposed that there was delay in submission
of these reports to the Court because there was a law and
order problem existing in the locality and there was
apprehension of a retaliation, for reason of which the
entire police personnel were deputed for patrol duty and
to set up pickets; which is a reasonable explanation.
However, it has to be noticed that while Ext.P59 reached
the Court on 28.01.2005, Ext.P61 reached the Magistrate
only on 31.01.2005. Ext.P59 prepared on 20.01.2005 having
been delayed in reaching Court, is properly explained.
But if Ext.P59, was taken to the Magistrate Court on
28.01.2005 there is no explanation as to why Ext.P61,
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prepared on 21.01.2005 and available in the Police
Station was not submitted before Court on 28.01.2005
itself along with Ext.P59. PW23's statement was also
available when the first report was filed and if he had
mentioned these accused, their names would have figured
in the first report itself.
30. PW23, spoke of of A10 to 12 also before
Court and identified them, their weapons, their overt
acts and their individual apparel. It has to be noticed
that PW12 who watched the attack from the nearest
proximity has spoken of only about 5 to 10 assailants to
the Police. PW3 also had not spoken of A10 to 12 in his
prior statements, to the police; which were five in
number, as brought out in cross-examination. PW5 also
said that he saw about 10 persons running to the west
when he approached PW12's property after hearing the
commotion. The overall circumstances raise a reasonable
doubt as to whether A10 to 12 were really a part of the
group of assailants who attacked Shameer. Sohrab (supra)
found that there is hardly a witness who would not
exaggerate on the stand and merely because the witness
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went overboard on certain aspects there is no reason to
eschew the testimony in its entirety. Prof. Munsterberg
in a book titled 'On The Witness Stand'; from the
knowledge gleaned from experiments conducted by enacting
planned episodes before selected persons, who were then
asked to recant what they saw, concluded so: "We never
know whether we remember, perceive, or imagine"(sic). In
Laxman v. State of Maharashtra (1974) 3 SCC 704, the
Hon'ble Supreme Court after quoting the Professor held so
: 'Witnesses cannot, therefore, be branded as liars in
toto and their testimony rejected outright even if parts
of their statements are demonstrably incorrect or
doubtful. The astute Judge can separate the grains of
acceptable truth from the chaff of exaggerations and
improbabilities which cannot be safely or prudently
accepted and acted upon. It is sound common-sense to
refuse to apply mechanically, in assessing the worth of
necessarily imperfect human testimony, the maxim "falsus
in unofalsus in omnibus' (sic).
31. Despite finding PW23 to have exaggerated on
certain aspects, we do not eschew his testimony in its
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entirety. Identification is proper, but not to the extent
of pointing out the weapon brandished by each of the
accused and their individual dresses. Likewise seeking
corroboration of the relevant aspect of the number of
persons involved in perpetrating the crime, as spoken of
by the other witnesses as also the manner in which the
prosecution arrayed A10 to A12; we concede to them, the
benefit of doubt. We are, in doing so, fortified by the
declaration in Bhola @ Paras Ram (supra).
32. Now, we come to the recoveries said to have
been made possible on the confession statements of the
different accused. A1 is said to have made Ext.P73
confession based on which MO12 was recovered as per
Ext.P34 mahazar on 01.02.2005. Ext.P73 confession is of
having concealed the weapon in a pond in the field near
his house. Though human blood is detected by the FSL,
there is no blood stains detected on recovery, as seen
from the mahazar. A2, by confession dated Ext.P17, also
spoke of having concealed the weapon near his house,
which weapon MO11 was recovered as per Ext.P27 mahazar.
By Ext.P67 confession of A3, MO8 was recovered by Ext.P41
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mahazar. A4 recovered MO51 by Ext.P36 mahazar on the
strength of Ext.P69 confession statement. Likewise the
recoveries of A5 to A12 were respectively by mahazars
Exts.P29, P28, P30, P35, P31, P33, P37 and P40 of MO48,
MO50, MO49, MO9, MO5, MO6, MO10 and MO7 weapons. The
confession statements of A5 to A12 were marked as
Exts.P74, P68, P75, P78, P77, P76, P79 and P80. As was
rightly pointed out by the defence counsel, the weapons
were all recovered from near the respective residences of
the different accused; which is highly improbable, since
the prosecution case itself is that the accused, after
the attack, straight-away made their get-away towards the
west and hid themselves in A13's house for the night.
Though the accused were all residents of the locality, it
does not stand to reason that all the accused,
individually went to their residences or near the
residential properties and hid the weapons, either in the
nearby pond or field, garden land etc:, as seen from the
Mahazars. This is further fortified from the attempt of
the prosecution to prove that the blood-soaked apparel of
many of the accused were recovered from A13's house. When
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human blood was detected by the FSL, in almost 8 of the
10 weapons, there was no recital of a blood stain in the
seizure mahazars. We will not in the above context place
any reliance on the FSL reports, since the recoveries
itself are shaky and sticky as held in Balwan Singh
(supra).
33. The identification of each of the weapons by
the various witnesses, as having been carried by the
identifiable accused, is very improbable considering the
fact that the attack was carried on in the night and the
occular witnesses were not in the close proximity of the
scene of occurrence, as to clearly identify the weapons
carried by each of the accused. The manner in which the
witnesses were confronted with each of the weapons, is
also artificial. Here, we have to specifically notice
that while examining PW41, to prove Ext.P41 mahazar, for
recovery of MO8 by A3, the Prosecutor first took out MO6
and then realising the mistake, confronted the witness
with MO8; which he dutifully identified. Again, MO8 was
identified as MO6, by PW32, who was examined to depose on
the recovery of A10; which in fact was MO6. MO8 was first
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identified and then the Prosecutor specifically pointed
out MO6 for the identification of the witnesses. The
dress was also surrendered by A13, who stands acquitted.
All the same, it has to be emphasized that the medical
evidence is that the injuries suffered by the deceased,
could be caused by heavy cutting weapons, from their
sharp and blunt edges. This corroborates the narration of
the ocular witnesses as to how the murder occurred.
34. Ext. P86 is the Property List of the apparels
seized, send to the Court dated 07.03.2005. Obviously the
apparels did not accompany the said list, as is clear
from the order made by the Court to 'Produce with
Property' as seen from Ext. P86 itself. PW49, I.O also
agreed that it was so returned and resubmitted. The
resubmission was only on 19.03.2005. We do not place any
reliance on the seizure of dress and the identification
of the apparel worn by each of the accused, at the time
of occurrence as has been held in Kibilo Danial and Alavi
(both supra). We also do not place any reliance on the
recoveries of the weapons and their identification as
attributed to each of them by the witnesses. However,
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that does not result in the aquittal of the accused since
there is ocular testimony which is believable. Madhav
(supra) is not applicable to the facts of this case since
though the recoveries are unbelievable, there is no
reason to find the prosecution case to be concocted.
There are bound to be flaws in investigation and also the
collection of evidence; especially when there is no
separate force for carrying on the investigation of a
criminal offence and ensure law and order. If there is a
fundamental defect prejudicing the rights of the accused,
then the benefit has to go to the accused. But every flaw
and every omission cannot lead to the accused claiming
total exoneration. As held in Mir Mohammad Omar (supra)
then the casualty will be the criminal justice system and
the ultimate sufferers would be, the society at large and
the law abiding citizens.
35. PW1 in the FIS itself stated about the
presence of PW3 along with Shameer and the information
passed on by PW3 about the attack on Shameer by a group
of people. PW3 specifically spoke of the overt act of A2
and the presence of A1 and A3 to A9. PW1 and the others
Crl.A Nos.929/2016 &
1082/2016
who were sitting in the rear of the audience went in
search of Shameer and they were told that he had run away
towards the east. The conspiracy stands proved by the
action of the accused in having followed the victim, in
the festival grounds and attacked him. When the victim
ran away they chased him and dragged him out of his
hiding place and killed him. When the friends of the
victim were searching for Shameer, they came across PW5
who told them about some people having hacked a person in
PW12's property. PW1 and others proceeded to PW12's
property where they saw Shameer; brutally and mercilessly
hacked all over his body. They took him to the Hospital,
with the help of S.I of Police (PW48), where he was
brought dead.
36. PW12 has spoken of the gruesome occurrence in
her property; about 5 to 10 assailants having dragged
Shameer from inside the bathroom in her property, pushed
and pulled to her backyard, where they cut him up despite
her fervent pleas not to harm the victim. PW12 did not
identify the accused but PW23 saw the incident from the
ridge on the slope, while he was walking through the
Crl.A Nos.929/2016 &
1082/2016
pathway, on the southern boundary of the pond. He
witnessed the incident in PW12's property and identified
the accused. His testimony regarding the identification
of the weapons used by each of the accused and the dress
worn by them, we are of the opinion, is an exaggeration.
However, we do not doubt the identification made by him,
especially of A1 to A9. The testimony of PW12 is that
about 10 persons attacked the injured and that was the
number according to PW5 too. PW3 also omitted to speak
about A10 to A12's presence to the police. A10 to A12 as
we noticed, were not arrayed as accused in the first
report filed before Court despite PW23's statement having
been taken prior to that.
37. PW23's presence is affirmed by PW5 who also
heard PW12 imploring with the assailants not to harm the
victim. Immediately after the attack, PW12 ran to the
temple and on the way, met PW5, to whom she spoke about
the incident and asked him to summon the committee
members. PW5 saw about 10 people retreating from the
scene of occurrence towards west. The evidence of the
ocular witnesses as found by us to be worthy of
Crl.A Nos.929/2016 &
1082/2016
acceptance, clinches the guilt on A1 to A9. A10 to A12
are given the benefit of doubt. The conviction and
sentence of A1 to A9 stands affirmed and A10 to A12 shall
be released forthwith, if not required in any other case.
Crl.Appeal No.929 of 2016 stands partly allowed
acquitting second appellant (A10) and Crl.Appeal No.1082
of 2016 stands partly allowed acquitting appellants 8 and
9 (A11 and A12).
Sd/-
K.VINOD CHANDRAN
JUDGE
Sd/-
C.JAYACHANDRAN
JUDGE
jma/lgk
