Vinod vs State Of Kerala
2023 Latest Caselaw 8425 Ker

                  IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                  PRESENT
                THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
                                     &
                   THE HONOURABLE MRS. JUSTICE C.S. SUDHA
          Monday, the 7th day of August 2023 / 16th Sravana, 1945

               CRL.M.APPL.NO.10/2021 IN CRL.A NO.869 OF 2020

            S.C.NO.239/2017 OF PRINCIPAL SESSIONS COURT,KOLLAM

APETITIONERS/APPELLANT NOS 8 & 9/ACCUSED NOS.8 & 9:

     1.DINARAJ, AGED 31 YEARS S/O BABY RAJAN, LALIVILA VEETIL , MATHILIL
     CHERI, THRIKKADAVOOR, FROM ALAVATTATHEKKATHIL VEEDU, MATHILIL CHERI,
     THRIKKADAVOOR VILLAGE, KOLLAM - 69160
     2.SHIJU @ ELUMALA SHIJU, AGED 38 YEARS, S/O RAJENDRAN, GOPALA
     SADANAM, NEAR ELUMALA TEMPLE, NJARAKKALCHERI, THRIKKARUVA VILLAGE,
     KOLLAM - 691602

RESPONDENT/COMPLAINANT:

      STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT
OF KERALA, ERNAKULAM-682 031.


     Application praying that in the circumstances stated therein the
High Court be pleased to pass an interim order suspending the execution of
the sentence passed against the petitioners in S.C.No.239 of 2017 of the
Court of the Principal Sessions Court,Kollam and directing them to be
released on bail pending disposal of the above appeal.


     This Application coming on for orders upon perusing the application
and upon hearing the arguments of M/S.B.RAMAN PILLAI (SR.), SRUTHY K K,
RAHUL SUNIL, NIKITA J. MENDEZ, B.RAMAN PILLAI (SR.), R.ANIL, M.SUNILKUMAR,
SUJESH MENON V.B., T.ANIL KUMAR, THOMAS ABRAHAM (NILACKAPPILLIL),
S.LAKSHMI SANKAR, MAHESH BHANU S., R.ANIL, M.SUNILKUMAR, SUJESH MENON
V.B., T.ANIL KUMAR, THOMAS ABRAHAM (NILACKAPPILLIL), MAHESH BHANU S.,
S.LAKSHMI SANKAR, Advocates for the petitioner and of the PUBLIC
PROSECUTOR for RESPONDENT ,the court passed the following:




                                                                    P.T.O.
                 P.B.SURESH KUMAR & C.S.SUDHA, JJ.
                -----------------------------------------------
                 Criminal Appeal No.869 of 2020
                -----------------------------------------------
            Dated this the 7th day of August, 2023


                                ORDER

P.B.Suresh Kumar, J.

Crl.M.A.No.10 of 2021

Petitioners are appellants 8 and 9 in the appeal.

They are accused 8 and 9 in S.C.No.239 of 2017 on the files of

the Principal Sessions Court, Kollam. The appeal is preferred

challenging the conviction of the appellants and the sentence

imposed on them in the said case for the offences punishable

under Sections 143, 147, 341, 324 and 302 read with Section

149 of the Indian Penal Code (IPC). In the above application,

the petitioners seek orders suspending the execution of the

sentence passed against them.

2. The gist of the prosecution accusation is that

on 07.02.2012 at about 11:00 a.m., accused 1 to 9 formed

themselves into an unlawful assembly, and in furtherance of

the common object of all, murdered the deceased, owing to

the grave animosity that the accused nurtured against the Crl. Appeal No.869 of 2020

deceased. It is the case of the prosecution that on the said

date and time of occurrence, when the deceased reached

Kadavoor junction, accused 1 to 6, who descended from their

three motor cycles along with accused 7 to 9, who were

already assembled there, cornered the deceased and

thereupon, accused 1 to 6 inflicted multiple injuries on the

head and other parts of the body of the deceased with a

chopper, swords and iron pipes wielded by them and thereby

caused the death of the victim.

3. It is seen that on an elaborate consideration of

the voluminous evidence let in by both sides, the Court of

Session found the petitioners guilty of the offences punishable

under Sections 143, 147, 341, 324 and 302 read with Section

149 IPC. The factual conclusion arrived at by the Court of

Session as narrated in paragraph 168 of the impugned

judgment reads thus:

"According to PWs 1 to 4, A1 to A6 had arrived upon 3 motor cycles, armed with weapons MOs 1 to 6. A7 to A9 have closely arrived at their heels at the scene of occurrence. Evidence of PW4 would go to show that, A7 to A9 were present in the vicinity in the place of occurrence.

She had also seen them signaling to each other, when the deceased had come up the road and met her. Thereafter, Crl. Appeal No.869 of 2020

A1 to A6 along with A7 to A9 had rushed to the place of occurrence and surrounded the deceased. A1 to A6 had assaulted the deceased with weapons. I have already discussed the nature of evidence tendered by PWs 1 to 4 regarding the manner of assault earlier. A7 to A9 had surrounded the deceased along with other accused. They were exhorting the remaining accused to do away with the deceased and preventing persons, who had gathered there from trying to save the deceased. Assemblage of more than 5 persons, which was formed with the common object of murdering the deceased, weapons which were used for the assault by A1 to A6, nature of injuries inflicted upon vital parts repeatedly as evidenced by Ext. P15, in injury numbers 1, 2, 5 and 6, clearly disclose that assembly was unlawful and it's object in common was to murder deceased. The day chosen was Thaipooyam day when temple festival of Kooppana is celebrated. Evidence reveals that people in the locality will be in temple ground partaking in the festival at about the time of incident and therefore, Kadavoor junction and its premises will be practically deserted. PW1 and DW3 have given evidence that on that date there were only about 2 or 3 autorickshaws in the auto stand. In so far as A7 to A9 are concerned, they had also along with remaining accused participated in the occurrence in the best manner they could do. They had, before the incident, constituted the watch party whose task was to watch movements of deceased and to intimate others the perfect opportunity to carry out the murder, when deceased would be alone and unarmed. In the course of transaction they had surrounded the deceased to ward of rescue attempts and were exhorting remaining accused to complete the Act. Deceased had sustained 51 ante-mortem injuries in the Crl. Appeal No.869 of 2020

incident, as per Ext. P15 post-mortem certificate. PW1 had also sustained cut injuries at the hands of A1 and A3, when he had attempted to intervene. It could not be gainsaid that A5 and A6 have not inflicted lethal injuries and that A7 to A9 have not inflicted any injury at all and therefore there is no unlawful assembly and hence no vicarious liability under S.149 of I.P.C. Probably the role assigned to A5 to A9 was to ward of rescue attempts by onlookers. Nevertheless, they were not innocent bystanders or onlookers. Their participation in the crime is proved by evidence of PWs1 to

4. They had joined the assembly with knowledge of it's common object and to attract S.149 of I.P.C mere knowledge that such an offence is likely to be committed in prosecution of common object will be sufficient to rope them in. In this context decision of 5 member constitution bench of Hon'ble Supreme Court in Masalti's case (AIR 1965 KHC 476 para 17) is very much relevant. Distinguishing the decision of three member bench in baladin's case(AIR 1956 SC 181) wherein facts revealed that the incident having transpired in a gathering and there being chances of innocent onlookers also who were named by witnesses, it was held that in view of S.149 that mere knowledge that an offence was likely to be committed by a person/member of unlawful assembly in prosecution of it's common object was sufficient to multch him with criminal liability of the said offence without there being any active participation by him. Thus facts proved from the evidence of PWS 1 to 4 would go to show that the accused herein have formed an unlawful assembly, with the common object of murdering the deceased, out of previous enemity. To sum up A1 to A6 have on the fateful day, in prosecution of common object of the said assembly inflicted injuries upon deceased using Mos 1 to 6 which are dangerious Crl. Appeal No.869 of 2020

weapons. It is evident that A1 to A6 had rioted armed with deadly weapons in prosecution of the common object of the assembly. A7 to A9 have also rioted, though, without any deadly weapons, in prosecution of the common object of the unlawful assembly. By so assaulting the deceased, they had murdered him and by inflicting cut injuries upon PW1 using MOS 1 & 3, A1 and A3 had caused hurt to him by use of deadly weapons, in prosecution of common object of unlawful assembly. For the reasons mentioned above, Accused Nos. 1 to 6 are found guilty U/Ss 143, 148, 341, 324 and 302 r/w 149 of IPC and convicted thereunder. A7 to A9 are found guilty of having committed offences punishable U/Ss 143, 147, 341, 324 and 302 r/w 149 of Indian Penal Code and convicted thereunder."

4. The learned Senior Counsel for the petitioners

argued that the First Information Statement in the case was

given by one Krishna Pillai, who is none other than the father of

the deceased and the specific case spoken to by him in the

said statement is that the persons who came to the scene in

the three bikes, hacked multiple times with weapons on the

various parts of the body of the deceased. It was argued by the

the learned Senior Counsel that the first informant neither

named the petitioners as assailants nor stated anything in the

First Information Statement as regards their culpable role in

the final report. The learned Senior Counsel, however, Crl. Appeal No.869 of 2020

conceded that the first informant, the father of the deceased,

has not given evidence in the case. It was also argued by the

the learned Senior Counsel that it is based on the evidence

tendered by PWs 1 to 4 that the accused in the case stand

convicted. It was pointed out by the the learned Senior Counsel

that PWs 1 to 4 who gave evidence in the case against the

petitioners as eye witnesses to the occurrence are close

relatives and family friends of the deceased and that their

presence at the scene is highly suspicious. The learned Senior

Counsel attempted to substantiate the said point contending

that the version of PW3, the brother-in-law of the deceased, in

Ext.P8 inquest report, was only in accordance with the

narration of the occurrence in the First Information Statement

that the deceased was murdered by the six assailants who

came in three motor bikes without any insinuation about the

roles alleged against the petitioners. It was also argued by the

the learned Senior Counsel that the only independent

occurrence witness examined in the case, namely, PW20, in

whose autorickshaw the deceased was taken to the hospital,

did not support the prosecution case and was accordingly Crl. Appeal No.869 of 2020

declared hostile. Above all, it was submitted by the learned

Senior Counsel that the overt acts attributed against the

petitioners are only that they facilitated the crime by

obstructing the public from making any attempt to rescue the

deceased. According to the the learned Senior Counsel, the

materials on record would indicate beyond doubt that it is a

case where the accused have been implicated falsely.

5. We have considered the arguments advanced

by the learned Senior Counsel for the petitioners, having due

regard to the materials on record. The petitioners do not

dispute the fact that it is a case of gruesome murder

committed in broad daylight by inflicting 51 injuries on

different parts of the body of the deceased. As noted, the

essence of the arguments advanced by the learned Senior

Counsel is that the petitioners are innocent and that they have

been falsely implicated. The fact that the complicity of the

petitioners have been spoken to by the eye-witnesses

examined in the case is not disputed by the petitioners. The

contention is only that they cannot be believed. The question

whether the evidence of eye-witnesses could be believed or Crl. Appeal No.869 of 2020

not, is one to be considered on an appraisal of the entire

materials on record at the time of final hearing and not at the

stage of considering the application for suspension of sentence

[See Preet Pal Singh v. State of U.P., (2020) 8 SCC 645].

As such, we do not find any merit in the application and

the same is accordingly, dismissed.

Sd/-

P.B.SURESH KUMAR, JUDGE.

Sd/-

C.S.SUDHA, JUDGE.

mn

07-08-2023 /True Copy/ Assistant Registrar