Kerala High Court
Fayas vs State Of Kerala on 21 June, 2024
Author: P.B.Suresh Kumar
Bench: P.B.Suresh Kumar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
&
THE HONOURABLE MRS. JUSTICE M.B. SNEHALATHA
FRIDAY, THE 21ST DAY OF JUNE 2024 / 31ST JYAISHTA, 1946
CRL.A NO. 116 OF 2017
AGAINST THE JUDGMENT DATED 25.01.2017 IN SC NO.93 OF 2009
ON THE FILES OF THE SPECIAL COURT, SC/ST (POA) ACT,
MANJERI
APPELLANTS/ACCUSED NOS.1, 2, 3, 5, 6, 8, 11 & 12:
1 FAYAS
S/O MUHAMMED KODALI, PULATH PULIKOTTIL HOUSE,
PULIKKODANKUNNU, THAYAMKODE, THIRUVALI AMSOM
2 JAYARAJAN @ MANI
S/O THEYYUNNI, PALAYIL HOUSE, TAYAMKODE,
THIRUVALI AMSOM
3 SHAMSUDHEEN @ BAPPU
S/O SEETHI, KOTANGODAN HOUSE, NADUVATH,
MOOCHIKKAL
4 POOKOYA THANGAL
S/O KUNHI THANGAL, MATTATH HOUSE,
TAYAMKODE, PULIKKOTT, THIRUVALI AMSOM
5 ANOOP S/O BALAKRISHNAN, MANALAYI HOUSE,
AYATHUKUNNU, TAYAMKODE
6 SHIHABUDHEEN @ BABOOSE
S/O SULAIMAN, KUTTASSERI HOUSE,
THAYAMKODE, THIRUVALI AMSOM
7 NOOUSHAD
S/O HUSSAIN, KAVUNGUMTHODIKA HOUSE,
KUTTASSERI, TAYAMKODE
8 JABIR, S/O ABDULLA, KUTTASSERI HOUSE,
TAYAMKODE
Crl.Appeal No.116 of 2017
-: 2 :-
BY ADVS.
SRI.R.ANIL
SRI.B.RAMAN PILLAI (SR.)
SRI.P.VIJAYABHANU (SR.)
SMT.MITHA SUDHINDRAN
SRI.M.SUNILKUMAR
SRI.M.REVIKRISHNAN
SRI.SUJESH MENON V.B.
SRI.T.ANIL KUMAR
SRI.A.T.ANILKUMAR
SRI.THOMAS ABRAHAM (NILACKAPPILLIL)
SRI.THOMAS SABU VADAKEKUT
SHRI.MAHESH BHANU S.
SMT.S.LAKSHMI SANKAR
SHRI.RESSIL LONAN
RESPONDENT/COMPLAINANT:
STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM
BY GOVERNMENT PLEADER SRI.E.C.BINEESH
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
28.05.2024, THE COURT ON 21.06.2024, DELIVERED THE
FOLLOWING:
Crl.Appeal No.116 of 2017
-: 3 :-
P.B.SURESH KUMAR & M.B.SNEHALATHA, JJ.
-----------------------------------------------
Crl.Appeal No.116 of 2017
-----------------------------------------------
Dated this the 21st day of June, 2024
JUDGMENT
P.B.Suresh Kumar, J.
A petty fight that occurred at the venue of a
football tournament escalated tragically, resulting in the death
of a spectator of the game, is the cause for this case. The
semi-final of the tournament took place on 03.02.2008. The
team "Pulath Track Force" (the team) won the semi-final. Even
though the team won the said round, there was a petty fight
after the game between the members and supporters of the
team with the organizers of the tournament, when the former
questioned a decision of the referee. The final of the
tournament took place on 08.02.2008 and the team lost the
final. The occurrence which is the subject matter of the case
took place immediately after the final. In the occurrence, a few
supporters/spectators of the team who accompanied the team,
sustained injuries and one among them viz, Abdul Nazar later
died. One of the players of the team, viz, Mohammed Safeer
informed the occurrence to Wandoor police and a case was
registered on that basis on the same day itself. The
investigation in the case revealed that it was the accused who
caused the death of Abdul Nazar and injury to others.
Accordingly, final report was filed in the case against the
accused alleging commission of offences punishable under
Sections 143, 147, 148, 323, 324, 302 and 120B read with
Section 149 of the Indian Penal Code (IPC).
2. The first accused in the case was the referee of
the semi-final match, whose decision was questioned by the
team after the semi-final. The case of the prosecution is that
the accused who were few among the organizers of the
tournament hatched a criminal conspiracy to commit the
murder of Abdul Nazar and cause hurt to others who were
supporters/spectators of the team, in retaliation of the incident
that took place on 03.02.2008 and in furtherance of the said
conspiracy, after the final match, the accused formed
themselves into an unlawful assembly armed with wooden
reapers, sticks, stones etc., with the common object of
committing murder of Abdul Nazar and cause hurt to others
and in prosecution of the said common object, the accused
voluntarily caused hurt to the members and supporters of the
team and accused 1 to 3 among them caused the death of
Abdul Nazar by hitting him with wooden reapers on his head.
3. There were altogether 13 accused in the case.
Since the presence of the thirteenth accused could not be
secured, the remaining accused were committed to trial. On
the remaining accused being committed to trial, charges were
framed against them, to which they pleaded not guilty.
Thereupon, the prosecution examined 27 witnesses as PWs 1
to 27 and proved through them 60 documents as Exts.P1 to
P60. MOs 1 to 27 are the material objects in the case. When
the incriminating circumstances brought out in evidence were
put to the accused in terms of the provisions contained in
Section 313 of the Code of Criminal Procedure (the Code), they
denied the same. The trial court, thereupon, on a consideration
of the evidence on record, held that accused 1, 2, 3, 5, 6, 8, 11
and 12 are guilty of the offences punishable under Sections
143, 147, 148, 324, 302 and 120B read with Section 149 of the
IPC, convicted and sentenced them to undergo rigorous
imprisonment for six months for the offence punishable under
Section 143 IPC, rigorous imprisonment for one year for the
offence punishable under Section 147 IPC, rigorous
imprisonment for two years for the offence punishable under
Section 148 IPC, rigorous imprisonment for two years for the
offence punishable under Section 324 IPC and imprisonment
for life for the offences punishable under Section 120B and 302
IPC. It was ordered that the substantive terms of imprisonment
shall run concurrently. Accused 1, 2, 3, 5, 6, 8, 11 and 12 who
stand convicted and sentenced for the offences referred to
above are aggrieved by the decision of the trial court. Hence,
this appeal.
4. It is seen that in terms of the orders passed by
this Court on 18.02.2020 and 25.02.2020, the execution of the
sentence imposed on accused 6, 8, 11 and 12 was suspended
by this Court and they were enlarged on bail.
5. The point that falls for consideration is
whether the conviction of the appellants and the sentence
imposed on them, are sustainable in law.
6. Heard the learned Senior Counsel
Sri.P.Vijayabhanu for accused 1,2,3,5 and 8 and Senior Counsel
Sri.B.Raman Pillai for accused 6, 11 and 12. Sri.E.C.Bineesh,
the learned Public Prosecutor argued for the State.
7. Elaborate arguments have been advanced by
the learned Senior Counsel for the accused. The essence of the
arguments advanced by the learned Senior Counsel
Sri.B.Raman Pillai was that there is no satisfactory evidence to
establish that accused 6, 11 and 12 were among the group of
assailants, and even if it is found that they were among the
group, the overt acts, if any, of the said accused, have not
been established, so that it could be contended that they
conspired with the others and formed themselves into an
unlawful assembly to commit the crime. The learned Senior
Counsel Sri.P.Vijayabhanu pointed out, at the outset, that
accused 3 and 8 stand on the same footing as accused 6, 11
and 12, and endorsed the arguments advanced by the learned
Senior Counsel Sri.B.Raman Pillai for accused 6, 11 and 12. As
far as the remaining accused, viz, accused 1, 2 and 5 are
concerned, the argument advanced by the learned Senior
Counsel was that it was a case of clash between two groups of
persons and the evidence on record would, at the most, only
disclose commission of the offence punishable under Section
304 IPC and that they have already undergone imprisonment
for more than 7½ years. We are not referring to the elaborate
arguments addressed by the learned Senior Counsel at this
stage, as we propose to deal with the same in the succeeding
paragraphs of this judgment. Per contra, the learned Public
Prosecutor supported the impugned judgment by bringing to
our notice the relevant evidence in the case which establishes
the complicity of each of the convicted accused.
8. Even though the learned Senior Counsel for
the accused did not raise any argument against the finding
rendered by the Court of Session that the case on hand is one
of homicide, it is obligatory for us to ensure the same before
delving into the arguments advanced. PW20 was the doctor
who conducted the autopsy of the body of the deceased and
issued Ext.P42 autopsy certificate. Ante-mortem injuries 11, 12
and 14 noticed by PW20 on the body of the deceased were the
following:
"11.Lacerated wound 2.5x0.8cm scalp deep on back of head
left, inner end at midline and 15 cm above root of neck.
12.Lacerated wound scalp deep 4x0.5cm left parietal
eminence, 60 cm, above top of ear.
14. There was moderate degree of subdural and subarachnoid
haemorrhage diffusely all over the brain. Brain was severly
congested."
Among them, injury 14 was an internal injury. According to
PW20, injury 14 sustained by the deceased as a consequence
of injury 11 and 12, which were head injuries. It was testified
by PW20 that the cause of death was head injury and the same
could be caused by MO1 series wooden reapers. Nothing was
brought out in the cross-examination of PW20 to cast any
doubt on the veracity of the evidence tendered by the said
witness that it was the said injuries that caused the death of
the victim. Needless to say, the finding rendered by the Court
of Session that the death of the victim was a homicide, is in
order.
9. Let us now consider whether the factual
conclusions arrived at by the trial court is correct. PW1 is a
witness who was examined by the prosecution to prove the
occurrence. It was PW1 who lodged the first information
statement. PW1 identified accused 1, 2, 3, 5 and 11 in the dock
as some of the persons who inflicted injuries on the deceased
and others. PW1 was the captain of the team. PW1 deposed
that on the date of the final, the team went to the ground
along with their supporters, including the victim and there was
a clash after the final. According to PW1, the clash began when
the second accused hit one Jamsheer who accompanied the
team and when other persons in the team started running
away witnessing the said occurrence, the people in the locality
including the remaining assailants started chasing them and
when the persons in the team ran towards Thiruvali direction,
the first accused hit on the head of the victim. It was deposed
by PW1 that the victim then went inside a house on the side of
a road and accused 1, 2 and 5 chased him inside that house
and hit him again. According to PW1, as a result of the hit, the
victim fell unconscious and when others in the team went
inside the house to attend to the victim, accused 1 and 2 hit
them as well and only when a lady in the house made loud
noises, accused 1, 2 and 5 dispersed from that place. PW1
further deposed that accused 3 and 11 were also among the
group; that the third accused was carrying a stick and the
eleventh accused was carrying a wooden reaper and both of
them attacked one Azeez. During cross-examination, PW1
denied the suggestion that when the team lost the game, the
members and supporters of the team started attacking the
spectators. Similarly, PW1 denied the suggestion that the
occurrence was a case of group attack.
10. PW2 was an injured witness who was examined
by the prosecution to prove the occurrence. PW2 identified
accused 2, 3, 6 and 12 in the dock as some of the persons who
inflicted injuries on the victim and others. As deposed by PW1,
PW2 also deposed that the clash began when the second
accused assaulted Jamsheer. According to PW2, at that time,
the first accused who was carrying a stick then called a few
others around him and all of them came with wooden reapers
and started hitting the supporters of the team. It was also
deposed by PW2 that when the supporters of the team
including him ran away, the assailants chased and hit them. It
was specifically deposed by PW2 that he was hit on his head
by the second accused using a wooden reaper. PW2 also
deposed that he was hit by accused 3, 6 and 12 as well.
11. PW3 was also an injured witness who was
examined by the prosecution to prove the occurrence. PW3
identified accused 1, 2, 5 and 8 in the dock as some of the
persons who inflicted injuries on the deceased and others. As
deposed by PW1 and PW2, PW3 also deposed that the clash
began when the second accused assaulted Jamsheer and at
that time, the first accused who was carrying a stick then
called a few others and all of them came with wooden reapers
and started hitting the supporters of the team. It was also
deposed by PW3 that while he was running away, the eighth
accused hit him on his head and below his ear. PW3 also
deposed that he saw accused 1, 2 and 5 inflicting injuries on
the victim.
12. PW4 was also an injured witness who was
examined by the prosecution to prove the occurrence. PW4 is
the brother of the deceased. PW4 identified accused 1 and 2 in
the dock as two among the persons who inflicted injuries on
the deceased and others. PW4 gave evidence on similar lines
of the evidence tendered by PW3. According to PW4, it was the
first accused who inflicted injury on him.
13. PW27 was also an injured witness who was
examined by the prosecution to prove the occurrence. PW27
identified accused 1, 2, 3 and 5 in the dock as three among the
persons who inflicted injuries on the deceased and others. The
version of PW27 as regards the occurrence was also that the
clash began when the second accused hit Jamsheer. It was
deposed by PW27 that when he attempted to save Jamsheer,
somebody inflicted an injury on his left elbow using a stick.
PW27 also deposed that the fifth accused inflicted an injury on
his head while he was running away from the ground. PW27
further deposed that it was accused 1, 2, 3 and 5 who attacked
the deceased.
14. PW17 was a Civil Surgeon attached to the
District Hospital, Manjeri who examined the deceased and the
injured when they were brought to the hospital. PW17 deposed
that the deceased and witnesses were brought before him
alleging that they were assaulted in the football ground.
Ext.P28 is the accident register-cum-wound certificate of PW2
issued by PW17. In Ext.P28, the column intended for recording
the details of injury states "injury scalp-sutured elsewhere
Myalgia". Ext.P29 is the accident register-cum-wound
certificate of PW27 issued by PW17. What is recorded therein is
that PW27 suffered a wound on the forearm and lower back.
Ext.P30 is the accident register-cum-wound certificate of PW3
issued by PW17. As in the case of PW2, what is recorded
therein is that PW30 also suffered Myalgia. In cross-
examination, PW17 affirmed that the injuries of the said
witnesses were simple and superficial.
15. One of the arguments advanced by the learned
Senior Counsel Sri.B.Raman Pillai is that even though PW2 has
stated in his evidence that he was hit by the sixth accused, he
did not make such a statement in his previous statement and
as such, no credence could be attributed to the said evidence
of PW2 as regards the complicity of the sixth accused in the
crime. A close reading of the evidence of PW2 does not
indicate that the said omission was brought to his attention
during his cross-examination in terms of the provision
contained in Section 145 of the Indian Evidence Act. If that be
so, the omission aforesaid cannot be treated as a material
omission amounting to contradiction. Another argument
advanced by the learned Senior Counsel for the accused 6, 11
and 12 is that even though PW2 stated in his evidence that he
was hit by the sixth accused, there was no corresponding
injury. According to the learned counsel, the said part of the
evidence of PW2 cannot be believed. As noticed, the
occurrence took place at about 06:30 p.m. on 08.02.2008 and
PW2 was taken to the hospital only at about 09:00 p.m. As
noticed, the entry in Ext.P28 viz, "injury scalp-sutured
elsewhere Myalgia" would certainly show that PW2 suffered an
injury on his scalp and the same was sutured elsewhere.
Merely for the reason that it was recorded in Ext.P28 that at
the time when PW2 was taken to the hospital after about three
hours, he had only complained of muscle pain, it cannot be
said that he was not assaulted by anyone. We have examined
meticulously the evidence tendered by the witnesses referred
to above and we do not find any reason to disbelieve them.
16. As seen from the evidence discussed above, all
the convicted accused have been identified by one or other
among PWs 1 to 4 and 27. It has come out in the evidence that
identification parades were conducted during the course of
investigation and the witnesses have identified the convicted
accused in the said identification parades as well. In other
words, the presence of the convicted accused at the scene at
the time of occurrence has been established satisfactorily by
the prosecution. That apart, as stated in the preceding
paragraphs, there is clear evidence of overt acts committed by
each of the convicted accused as well. At the same time, it has
to be observed that even though the witnesses have stated
that they were hit by the concerned accused using wooden
reapers and sticks, none of them were able to show or identify
in court the particular wooden reaper or stick with which they
were hit by the accused. Wound certificates of all the injured
are not seen produced. In other words, all those who had
suffered injuries in the occurrence have not even gone to the
hospital. As noticed, one among the persons who claimed to
have suffered injury had not even gone to the hospital. As
deposed by the doctor, the injuries suffered by the injured
witnesses are superficial and trivial in nature.
17. The first and foremost question to be examined
is whether there was a criminal conspiracy to commit the
murder of the victim and cause hurt to others who were
supporters of the team, in retaliation of the incident that took
place on 03.02.2008. It is well settled that the most important
ingredient to be established in a case of criminal conspiracy, is
prior meeting of minds between the accused and a consequent
agreement to commit the offence. No doubt, the prosecution
can rely on the evidence of the acts of various parties to infer
that such acts were done in furtherance of the conspiracy. The
evidence on record in the case, according to us, is not
sufficient to infer that all the accused assaulted the deceased
as also the injured, in furtherance of a prior meeting of minds
and consequent agreement. The materials, on the other hand,
would only show that the trouble began when the second
accused assaulted Jamsheer after the final. There is nothing on
record to indicate the circumstances under which the second
accused assaulted Jamsheer. From the available materials, we
are of the view that but for the said incident, the occurrence
after the final would not have taken place. In other words,
according to us, the prosecution has failed to establish the
offence of criminal conspiracy.
18. The next aspect to be examined is whether the
prosecution has established that the accused formed
themselves into an unlawful assembly with a common object
to commit the murder of the deceased and cause grievous hurt
to the other persons. No doubt, the common object of an
unlawful assembly can be gathered from the nature of the
assembly, the arms used by them and behaviour of the
assembly at or before the scene of occurrence. It is an
inference to be deduced from the facts and circumstances of
each case [See State of U.P. v. Dan Singh, (1997) 3 SCC
747]. The first part of Section 149 IPC speaks of the
commission of an offence in prosecution of the common object
of the assembly, whereas the second part takes within its fold,
knowledge of the likelihood of the commission of that offence
in prosecution of the common object. The knowledge
contemplated by the second part does not mean knowledge of
a mere possibility of the commission of the offence. The
commission of the offence must be reasonably likely. At times
even presence in the unlawful assembly may make a person
vicariously liable under Section 149 IPC, provided he had active
participation to achieve the common object of the unlawful
assembly. But, it has to be remembered that members of an
unlawful assembly may have a community of object upto a
certain point, beyond which they may differ in their object and
the knowledge possessed by each member of what is likely to
be committed in prosecution of their common object may vary
not only according to the information at his command but also,
according to the extent to which he shares the common object.
It is trite that if a member of an unlawful assembly does an act
beyond the common object and beyond what other members
could contemplate or had knowledge to be likely to be
committed in prosecution of the common object, such member
alone will be held responsible for his individual act and there
will not be any vicarious liability for other members in respect
of the same [See Shivalingappa Kallayanappa v. State of
Karnataka, 1994 Supp (3) SCC 235]. Hence, the effect of
Section 149 IPC may be different on different members of the
same unlawful assembly.
19. Reverting to the facts, from the conduct of the
accused as spoken to by the witnesses, we are of the view that
it can certainly be inferred that all the accused shared a
common object, for otherwise, a group of persons would not
chase together, the players and supporters of the team when
the first accused called the accused to do so. But, on the facts
and circumstances of the case, we do not think that the
common object of the unlawful assembly was to commit
murder or cause grievous hurt to anyone. We come to this
conclusion for the simple reason that the allegation against the
accused is only that they used wooden reapers and sticks to
cause injury to the members and the supporters of the team.
In other words, from the facts, what could be inferred is that
the common object was only to give beating to the members
and supporters of the team. It is also not possible to infer from
the facts that any member of the assembly had knowledge
that death is likely to be caused in prosecution of the aforesaid
common object. In other words, being members of the unlawful
assembly, the accused can be punished only for the offence
punishable under Section 324 IPC. But, as far as accused 1 to 3
are concerned, it has come out in evidence that they chased
the deceased and inflicted blows using wooden reapers on the
head of the deceased, which is an act that is likely to cause
death. Accused 1 to 3 are therefore, liable to be punished for
culpable homicide not amounting to murder under Section 304
IPC.
20. The learned Senior Counsel for accused 6, 11
and 12 contended that the accused were not questioned
specifically as regards the formation of the unlawful assembly
and the common object of the same, and as such, the trial
court ought not have entered a finding that the accused
formed themselves into an unlawful assembly with a common
object. No doubt, the witnesses were not questioned
specifically as regards the formation of the unlawful assembly
and the common object of the same, when they were
examined under Section 313 of the Code and they were
questioned only about the circumstances appearing in the
evidence against them. According to us, inasmuch as the
circumstances appearing against the accused are relatable to
the evidence on record, no prejudice has been caused to the
accused on account of the inference made by the court from
the evidence as regards the formation of the unlawful
assembly and the common object of the same.
21. It is seen that even though the specific
allegation in the charge framed by the court is that accused 1
to 3 hit the deceased using wooden reapers on his head
repeatedly, it has come out in evidence that other than
accused 1 to 3, the fifth accused also hit the deceased using a
wooden reaper. In the absence of any charge that the fifth
accused hit the deceased using a wooden reaper, we are of the
view that the fifth accused can be convicted only for being a
member of the unlawful assembly.
22. In the light of the discussion aforesaid, the
conviction of accused 5, 6, 8, 11 and 12 under Sections 302
and 120B read with Section 149 IPC is liable to be set aside
and they are liable to be acquitted of the charges under the
said provisions. However, their conviction under Sections 143,
147, 148 and 324 read with Section 149 IPC is liable to be
upheld. Similarly, the conviction of accused 1 to 3 under
Sections 120B IPC is liable to be set aside and their conviction
under Section 302 read with Section 149 IPC is liable to
converted to Part I of Section 304 IPC. The conviction of
accused 1 to 3 under Sections 143, 147, 148 and 324 read with
Section 149 IPC, however, is liable to be upheld.
23. Coming to the sentence, it is seen that
accused 1, 2, 3 and 5 have undergone imprisonment for more
than 7½ years. The said imprisonment, according to us, is
sufficient for the offences found to have been committed by
them. Similarly, it is seen that accused 6, 8, 11 and 12 have
undergone imprisonment for more than 3 years. The said
imprisonment, according to us, is sufficient for the offences
found to have been committed by them.
24. In the result, the appeal is allowed in part, the
conviction of accused 5, 6, 8, 11 and 12 under Sections 302
and 120B read with Section 149 IPC is set aside and their
conviction, however under Sections 143, 147, 148 and 324
read with Section 149 IPC is upheld. Similarly, the conviction of
accused 1 to 3 under Sections 120B IPC is set aside and their
conviction under Section 302 read with Section 149 IPC is
converted to Part I of Section 304 IPC. Conviction of accused 1,
to 3 for the offences under Sections 143, 147, 148 and 324
read with Section 149 IPC is upheld. The imprisonment already
undergone by the appellants is treated sufficient for the
offences for which they are found guilty.
Registry is directed to communicate the above order
forthwith to the concerned prison, where accused 1, 2, 3 and 5
are undergoing incarceration. They shall be set at liberty
forthwith and released from custody, if their continued
detention is not required in connection with any other case.
Sd/-
P.B.SURESH KUMAR, JUDGE.
Sd/-
M.B.SNEHALATHA, JUDGE.
ds
