Kerala High Court
Devadas & Another vs State Of Kerala on 13 June, 2024
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
THURSDAY, THE 13TH DAY OF JUNE 2024 / 23RD JYAISHTA, 1946
CRL.APPEAL NO. 969 OF 2011
AGAINST THE JUDGMENT DATED 16.06.2011 IN SC NO.141 OF
2009 OF ADDITIONAL SESSIONS COURT (ADHOC) III, PALAKKAD
APPELLANTS/ACCUSED 3 & 4:
1 DEVADAS,
S/O RAMAN, ERAKULAM VEEDU, KALLAMPARAMBU,
KAVASSERI.
2 ASEEZ, S/O.KADERSH
KALAVAPPADAM VEEDU, MOOLAMKODE, KIZHAKKANCHERY.
BY ADVS.
P.VIJAYA BHANU (SR.)
GRASHIOUS KURIAKOSE (SR.)
P.M.RAFIQ
M.REVIKRISHNAN
AJEESH K.SASI
SRUTHY N. BHAT
NIKITA J. MENDEZ
RAHUL SUNIL
SRUTHY K.K
SOHAIL AHAMMED HARRIS P.P.
NANDITHA S.
RESPONDENT/COMPLAINANT:
STATE OF KERALA
POLICE, ALATHUR, REPRESENTED BY PUBLIC
PROSECUTOR,, HIGH COURT OF KERALA, ERNAKULAM.
BY SMT.SHEEBA THOMAS, PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING COME UP FOR FINAL
HEARING ON 13.06.2024, ALONG WITH CRL.A.974/2011, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
THURSDAY, THE 13TH DAY OF JUNE 2024 / 23RD JYAISHTA, 1946
CRL.APPEAL NO. 974 OF 2011
AGAINST THE JUDGMENT DATED 16.06.2011 IN SC NO.141 OF
2009 OF THE ADDITIONAL SESSIONS COURT (ADHOC) III,
PALAKKAD
APPELLANTS/ACCUSED 1 & 2:
1 PEETHAMBARAN
S/O.NARAYANAN, MOOCHIKKAL VEEDU,,
THENNILAPURAM, ALATHUR.
2 PONMALA, S/O.VELAYUDHAN
GRAMAPARAMBU, THENNILAPURAM, ALATHUR.
BY ADVS.
SRI.GRASHIOUS KURIAKOSE
PRANOY K. KOTTARAM
SIVARAMAN P.L
ATHUL BABU
RESPONDENT/COMPLAINANT:
STATE OF KERALA
CIRCLE INSPECTOR OF POLICE, ALATHUR,
REPRESENTED BY PUBLIC PROSECUTOR,, HIGH COURT
OF KERALA, ERNAKULAM.
BY SMT.SEENA C., PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING COME UP FOR FINAL
HEARING ON 13.06.2024, ALONG WITH CRL.A.969/2011, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
3
Crl.Appeal Nos.969 & 974 of 2011
P.G. AJITHKUMAR, J.
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Crl.Appeal Nos.969 & 974 of 2011
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Dated this the 13th day of June, 2024
JUDGMENT
These are appeals against conviction filed under Section
374(2) of the Code of Criminal Procedure, 1973 (Code).
Accused in S.C.No.141 of 2009 on the files of Sessions Court,
Palakkad are the appellants. The Additional Sessions Judge,
Adhoc-III (Fast Track Court III), Palakkad convicted them for
the offences punishable under Sections 352, 450 and 307
read with Section 34 of the Indian Penal Code, 1860 (IPC) and
sentenced. Accused Nos.1 and 2 preferred Crl.Appeal.No.974
of 2011, accused Nos.3 and 4 preferred Crl.Appeal.No.969 of
2011. Accused Nos.1 and 4 expired pending the appeals.
Nobody has come forward to prosecute their appeal although
fine also forms part of the sentence. Therefore, their appeals
are not considered.
2. Heard the learned counsel for accused No.2, the
learned Senior Counsel appearing for accused No.3 and also
Crl.Appeal Nos.969 & 974 of 2011
the learned respective Public Prosecutors.
3. The case of the prosecution was that at about
07.45 p.m., on 02.10.2005 accused Nos.1 to 4 trespassed into
the courtyard of the residential house of PW2. They had
political enmity towards PW2. Accused Nos.1 and 2
trespassed into the house and at the hall of that house the 1 st
accused slashed using MO1 sword at the left side of PW2
causing injuries. He was also inflicted other injuries. The 1st
accused did so in furtherance of the common intention of all
the accused of causing death of PW2.
4. The trial court framed the charge for the offences
punishable under Sections 352, 450 and 307 read with
Section 34 of the IPC. Since the accused denied the
accusation, the prosecution has examined PWs.1 to 13 and
proved Exts.P1 to P20 and also identified MOs.1 and 2 to
prove the charge. When questioned under Section 313(1)(b)
of the Code, the accused denied all the incriminating
circumstances that appeared in evidence against them. The 1 st
accused stated that he was innocent and the case was foisted
Crl.Appeal Nos.969 & 974 of 2011
against him and other accused. Accused Nos.2 to 4 stated
that they were innocent. No defence evidence was produced.
The trial court held that the prosecution succeeded in proving
the charge with the aid of the evidence of PWs.1 and 2, the
medical evidence and recovery of MO1 under Section 27 of
the Evidence Act, 1872. Resultantly, the trial court convicted
all the accused.
5. The learned counsel appearing for the 2nd accused
would submit that the evidence of PWs.1 and 2 is infirm and
unreliable for the contradictions in their evidence. Both of
them stated consistently that one Smt.Usha was in that
house, but she was not examined. The prosecution
consciously avoided examination of Smt. Usha to suppress the
true facts. Recovery of MO1 is not reliable inasmuch as the
place from where it was recovered is discrepant, if the
evidence of PW13 and the mahazar are juxtaposed. The
independent witnesses did not support the prosecution case.
MO1 was not chemically examined in order to ascertain
whether it was blood-stained. The recovery therefore can only
Crl.Appeal Nos.969 & 974 of 2011
be a planted one. In this regard the learned counsel relied on
the Apex Court decision in Ramanand @ Nandlal Bharti v.
State of Uttar Pradesh [AIR (2022) SC 5273].
6. The learned Senior Counsel appearing for the 3rd
accused would submit that complicity of the 3 rd accused was
not proved at all. What PW1 stated is that accused Nos.1 and
2 together with two others were seen on the courtyard when
she opened the door. PW2 the injured did not see the
persons arraigned as accused Nos.3 and 4. The investigating
officer after arrest had shown accused Nos.3 and 4 to PW1 at
the police station and it was on that basis they were
identified in court. No test identification parade was held.
Thus, the identification of accused Nos.3 and 4 in court is for
the first time and therefore, the evidence of PW1 in that
regard cannot be believed. The learned Senior Counsel relies
on Muhammed Yousef @ Sajid & another v. State of
Kerala [2022 (2) KLJ 32]. Further submission of the
learned Senior Counsel is that the evidence tendered by the
prosecution is totally insufficient to establish the complicity of
Crl.Appeal Nos.969 & 974 of 2011
accused Nos.3 and 4, inasmuch as PW1 did not state any of
their overt acts.
7. Per contra, the learned Public Prosecutors would
submit that the evidence of PWs.1 and 2 is blemishless and
reliable. They deposed naturally and there is no contradiction
in their evidence having the effect of discrediting their
veracity. The incident occurred inside their house and they
are the natural witness. As regards the non-examination of
Smt.Usha, whose presence in the house was admitted by
PWs.1 and 2, it is submitted that she left the house before the
attack, and her non-examination cannot be a reason to reject
the other evidence. Further, it is submitted that a neighbor,
PW3 who claimed to have seen the accused while leaving the
house was examined. She turned hostile to the prosecution.
Another witness was also cited, but she was not examined for
obvious reasons. When two neighbors were so cited and one
among them was examined, non-examination of Smt.Usha,
who did not see the incident, does not affect the prosecution
case adversely. The other evidence such as, timely
Crl.Appeal Nos.969 & 974 of 2011
registration of the crime and medical evidence, apart from the
recovery of MO1, render sufficient support to the evidence of
PWs.1 and 2 and therefore, their evidence is sufficient to
prove the charge beyond a reasonable doubt. Accordingly, the
learned Public Prosecutor would submit that the trial court
findings are sound and correct.
8. The incident was at about 07.45 p.m. on
02.10.2005. Going by the versions of PWs.1 and 2, hearing
somebody calling from outside ''is Balan inside?'', PW1 opened
the front door and saw four persons in the courtyard. PW1
added that accused Nos.1 and 2 among them, whom she
knew personally after pushing her aside, stormed into the
house. The 1st accused had a sword with him. PW2 was
viewing the television sitting on a chair inside the hall. On
seeing the assailants, he tried to telephone the police, but
before he could make a call, he was attacked by the 1 st
accused using the sword. The first slash fell at the left side of
his neck causing an injury. He was again attacked using the
sword. He fell down and immediately the assailants went out
Crl.Appeal Nos.969 & 974 of 2011
and left the scene along with accused Nos. 3 and 4, who were
waiting outside. PW1 deposed that apart from accused Nos. 1
to 4, more than five persons were standing outside the
compound whom she could not identify.
9. PW3 was examined as an occurrence witness, but
she denied having seen the incident. Immediately after the
incident, PW2 was taken to the hospital by the police who
reached there knowing the incident. Soon thereafter, the
statement from PW1 was recorded by PW11. A crime was
also registered. At the Crescent Hospital where PW2 was
taken first, he was attended by PW8. He issued Ext.P5 wound
certificate. In Ext.P5, only one injury was noticed. The
description of the injury is as follows:
"A large deep incised wound 15 cms. long with exposure
of deep structure large clot formation on the left side of
neck extending from the left parotid region to left
occipital region"
10. It is seen from Ext.P5 that after first aid he was
referred to Aswani Hospital. PW12 is the doctor attached to
Aswani Hospital. He treated PW2 and issued Ext.P9 discharge
Crl.Appeal Nos.969 & 974 of 2011
certificate. In Ext.P9, apart from describing the injury as
noted by PW8, two more injuries were noted, which are as
follows:
Partial loss of fulical rim, left side.
Muscle deep injury on the back of left arm.
11. From the description itself, it is evident that the
second injury was related to the first one and the third injury
was on the back of the left arm. It was a muzzle deep injury,
but the said injury was not noticed by PW8. The said aspect
was highlighted by the learned counsel for the 2 nd accused to
contend that the evidence tendered by PWs.1 and 2 regarding
the attack cannot be believed. I am unable to accept the said
contention in view of the unchallenged version of PW2 that he
was unconscious for two days. When he was taken in such a
condition to the Crescent Hospital, PW8, who gave only first
aid, might not have noticed the injury on the back of left
arm. PW2 was examined in detail and treated in Aswani
Hospital. When PW12 deposed about all the injuries as noted
in Ext.P9, there is no reason to doubt about the injuries
sustained by PW2 in the incident.
Crl.Appeal Nos.969 & 974 of 2011
12. Both PWs.1 and 2 deposed almost in similar terms
regarding the attack by the 1st accused. Holding a sword, the
1st accused along with the 2 nd accused entered inside. Having
entered the hall of the house, the 2 nd accused yelled to kill,
and the 1st accused brandished the sword against PW2. When
PWs.1 and 2 deposed consistently regarding the incident and
there is no reason to disbelieve them, the non-examination of
Smt.Usha or non-availability of any other independent
evidence cannot discredit them.
13. As stated, the F.I. statement was recorded soon
after the incident. PW2 was taken to the hospital immediately
after the incident also. At the hospital the reason stated for
the injury also was assault. The said circumstances render
sufficient support to the oral testimonies of PWs.1 and 2.
14. PW13 is the investigating officer. He deposed that
on 31.10.2005, he arrested accused Nos.1 to 3 from Ivor
Madom and the 4th accused from another place. Ext.P15 is the
common arrest memo. As regards the said arrest memo it is
contended that when the arrests were from different places, a
Crl.Appeal Nos.969 & 974 of 2011
common arrest memo is illegal. True, PW13 ought to have
prepared separate arrest memos regarding the arrest of the
accused, but that refraction would not affect credibility of that
witness.
15. The version of PW13 is that based on the
statement given by the 1st accused, he took that accused to
the property of the 4th accused and recovered MO1 sword.
Ext.P4 is the mahazar. The attestor to this mahazar, PW6
turned hostile to the prosecution. There is therefore, no
independent evidence respecting the recovery. Prosecution
can fall upon only the oral testimony of PW13 and Ext.P4
mahazar to prove the recovery.
16. The contention of the learned counsel for the 2 nd
accused based on the principle laid down in Ramanand @
Nandlal Bharti (supra) requires reference in the above
context. The Apex Court held that the statement of the
accused under arrest, based on which the recovery has to be
effected, shall be recorded in the presence of two independent
witnesses. Here, that requirement was not complained about.
Crl.Appeal Nos.969 & 974 of 2011
Viewed so, the recovery of MO1 effected by PW13 may not be
relevant under Section 27 of the Evidence Act. The recovery
was effected in the presence of the 1 st accused. A
contemporaneous document, Ext.P6 is available to
corroborate the oral testimony of PW13 in that regard.
Recovery of MO1 is thus proved.
17. There is an inconsistency in the evidence of PW13.
What is recited in Ext.P4 is that the sword was recovered from
the property of accused No.3. What PW13 deposed in the
court is that the recovery was from the property of accused
No.4. When it is specifically recited in the mahazar, the
contemporaneous document that the recovery was from the
property of accused No.3. The testimony of PW13 in court
that the property from where the recovery was effected
belongs to the 4th accused can only be a slip of tongue.
Therefore, the said version does not affect acceptability of the
evidence concerning recovery. There is no other reason to
disbelieve PW13 concerning the recovery of MO1.
Crl.Appeal Nos.969 & 974 of 2011
18. Yet another reason pointed out for discarding the
recovery evidence is that the presence of blood stains in MO1
was not ascertained. Of course, the prosecution did not
venture to get a chemical analysis report in that regard. It
cannot be forgotten the fact that the recovery was almost one
month after the incident. The sword was found in an open
land. In such circumstances, a chemical examination
obviously could not have fetched any result as to the blood
stain or not on the weapon. Therefore, the said contention
cannot be countenanced. Accordingly, I hold that the recovery
of MO1 by PW13 in the presence of and as shown by the 1 st
accused is relevant under Section 8 of the Evidence Act and
can be acted upon. It is more so because both PWs.1 and 2
identified MO1 as the weapon of offence before the court.
19. The incident had occurred inside the hall of their
house and availability of light cannot be disputed. Especially
when their definite version is that while they were viewing the
television, the assailants came and the incident followed. So,
there was sufficient light to see the assailants as well as the
Crl.Appeal Nos.969 & 974 of 2011
weapon. Therefore, the evidence adverted to above proved
beyond doubt that accused Nos.1 and 2 trespassed into the
house of PWs.1 and 2 and at the hall of that house, the 2 nd
accused exhorted to kill and the 1st accused hacked PW2 using
MO1 sword causing him serious injuries.
20. The nature of injuries sustained by PW2 would
show the force with which PW2 was attacked. When PW2 was
attacked using a sword at neck, which is a vital part of the
body, the intention of the assailants is obvious. They had the
intention of causing the death of the victim. The motive has
been stated by both PWs.1 and 2. The fact that the parties
belong to rival political parties is not disputed. The very
defence is that due to political enmity, these accused were
implicated in the case. In the circumstances, it can certainly
be held that the act accused Nos.1 and 2 did amount to an
offence of attempt to commit murder.
21. As regards the identity of accused Nos.1 and 2,
there cannot be any dispute since they were known previously
to PWs.1 and 2. PW1 alone stated in court about the identity
Crl.Appeal Nos.969 & 974 of 2011
of accused Nos.3 and 4. She deposed that she did not know
accused Nos. 3 and 4 earlier. Police had shown them to her
after their arrest. As stated, the arrest was on 31.10.2005.
Indisputably, no test identification parade was held. This
Court in Muhammed Yousaf (supra) held that the correct
method to conduct the investigation to ascertain the identity
of the accused person is to conduct a test identification
parade. It was also held that instead, if the investigating
officer showed the photographs of the accused to the witness,
where the accused was not known to the witness before the
incident and no test identification parade was held, the
identification of such accused at the court becomes valueless.
22. From the testimony of PW1 it can be seen that she
saw accused Nos.3 and 4 for the first time, at the time of
incident. Soon she opened the door, the assailants, accused
Nos.1 and 2 entered inside and hacked PW2 using a sword. In
that course, it cannot be assumed that PW1 obtained enough
time to see and identify accused Nos.3 and 4 whom she had
no prior acquaintance. When the prosecution can rely only on
Crl.Appeal Nos.969 & 974 of 2011
her evidence to establish the identification of accused Nos. 3
and 4, the requirement of a test identification parade was
absolute. The principle of law laid down by this Court in
Muhammed Yousaf (supra) fortifies that view. Viewed so,
the identification of accused Nos. 3 and 4 by PW1 first time
before the court cannot be trusted to convict them. Hence,
accused No.3 is entitled to get the benefit of doubt.
23. Resultantly, the conviction of the 2nd accused is
confirmed and the conviction of the 3 rd accused is set aside.
The assailants not only attacked PW2 after entering the house
but also pushed PW1 aside. So the conviction of accused No.2
for the offences under Sections 307, 352 and 450 read with
Section 34 of the IPC is confirmed. I find no reason to
interfere with the sentence also. Accordingly, the appeal of the
2nd accused is dismissed and the appeal of the 3rd accused is
allowed. The 3rd accused is set at liberty. The 2nd accused shall
surrender before the trial court within two months.
Sd/-
P.G. AJITHKUMAR, JUDGE
dxy/dkr
