Kerala High Court
Binu @ Kari Binu vs State Of Kerala on 27 March, 2024
Author: P.B.Suresh Kumar
Bench: P.B.Suresh Kumar
1
Crl. Appeal No. 677/2018 & batch
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
&
THE HONOURABLE MR. JUSTICE JOHNSON JOHN
WEDNESDAY, THE 27TH DAY OF MARCH 2024 / 7TH CHAITHRA, 1946
CRL.A NO. 677 OF 2018
CRIME NO.1829/2015 OF MEDICAL COLLEGE POLICE STATION,
THIRUVANANTHAPURAM
CP NOS.11 & 18 OF 2016 OF ADDITIONAL CHIEF JUDICIAL MAGISTRATE,
THIRUVANANTHAPURAM
S.C.NO. 901 OF 2016 OF ADDITIONAL DISTRICT & SESSIONS COURT-VI,
THIRUVANANTHAPURAM
APPELLANT/ACCUSED NO.5:
BINU @ KARI BINU
AGED 42 YEARS
S/O.THANKAPPAN, KUNNUMPURATHU VEEDU, TC 14/1420,
CHENNILODE PADINJATTIL LANE, ANAMUGHAM WARD,
KADAKAMPALLY VILLAGE.
BY ADV SRI.T.M.ABDUL LATHEEF
RESPONDENT/STATE/COMPLAINANT:
STATE OF KERALA
REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,
ERNAKULAM-682 031,(CRIME NO.1829/2015 OF MEDICAL COLLEGE
POLICE STATION, THIRUVANANTHAPURAM DISTRICT).
BY ADV. SRI. E.C. BINEESH, PUBLIC PROSECUTOR
ADDL.DIRECTOR GENERAL OF PROSECUTION
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 14.02.2024, ALONG
WITH CRL.A. NOS. 895, 1009, AND 1500 OF 2018, THE COURT ON 27.03.2024
DELIVERED THE FOLLOWING:
2
Crl. Appeal No. 677/2018 & batch
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
&
THE HONOURABLE MR. JUSTICE JOHNSON JOHN
WEDNESDAY, THE 27TH DAY OF MARCH 2024 / 7TH CHAITHRA, 1946
CRL.A NO. 895 OF 2018
CRIME NO.1829/2015 OF MEDICAL COLLEGE POLICE STATION,
THIRUVANANTHAPURAM
CP NOS.11 & 18 OF 2016 OF ADDITIONAL CHIEF JUDICIAL MAGISTRATE,
THIRUVANANTHAPURAM
S.C.NO. 901 OF 2016 OF ADDITIONAL DISTRICT & SESSIONS COURT-VI,
THIRUVANANTHAPURAM
APPELLANTS/ACCUSED NOS. 1 TO 4:
1 SIJITH @ RAJAN
S/O.SASEENDRAN, VIRNDAVANAM VEEDU, KINAVUR WARD,
MUTTADA, KUDAPPANAKUNNU (THOTTUVARAMBIL VEEDU,TC
13/27), PUTHANPALAM, KANNAMMOLA, VANCHIYOOR,
THIRUVANANTHAPURAM.
2 ARUN @ GABRI
S/O.AJIKUMAR, KALLUVARAMBIL VEEDU, TC 13/8,KOLLOOR,
KANNAMMOLA, VANCHIYOOR, THIRUVANANTHAPURAM.
3 ARUN MALI @ ANEESH
S/O.VINAYAKUMAR, THOTTUVARAMBIL VEEDU, TC 13/1,KOLLOOR,
KANNAMMOLA, VANCHIYOOR, THIRUVANANTHAPURAM.
BY ADVS.
SUMAN CHAKRAVARTHY
BABU S. NAIR
PRIYADA R MENON
SMITHA BABU
P.A.RAJESH
SHAMSEERA. C.ASHRAF
AMJATH A.R
RESPONDENT/STATE:
STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF
KERALA, ERNAKULAM, KOCHI-682 031, FOR THE CIRCLE
INSPECTOR OF POLICE, MEDICAL
COLLEGE,THIRUVANANTHAPURAM.
THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON
14.03.2024, ALONG WITH CRL.A.677/2018 AND CONNECTED CASES, THE COURT
ON 27.03.2024, DELIVERED THE FOLLOWING:
3
Crl. Appeal No. 677/2018 & batch
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
&
THE HONOURABLE MR. JUSTICE JOHNSON JOHN
WEDNESDAY, THE 27TH DAY OF MARCH 2024 / 7TH CHAITHRA, 1946
CRL.A NO. 1009 OF 2018
CRIME NO.1829/2015 OF MEDICAL COLLEGE POLICE STATION,
THIRUVANANTHAPURAM
CP NOS.11 & 18 OF 2016 OF ADDITIONAL CHIEF JUDICIAL MAGISTRATE,
THIRUVANANTHAPURAM
S.C.NO. 901 OF 2016 OF ADDITIONAL DISTRICT & SESSIONS COURT-VI,
THIRUVANANTHAPURAM
APPELLANT/ACCUSED NO.3:
VINEETH @ PICHA
AGED 1 YEARS
KULAVARAMBIL VEEDU, TC 13/8, KOLLOOR, KANNAMMOOLA,
VANCHIYOOR,THIRUVANANTHAPURAM
THIRUVANANTHAPURAM
BY ADV BABU S. NAIR
RESPONDENT/STATE:
THE STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF
KERALA, ERNAKULAM, KOCHI-682 031, FOR THE CIRCLE
INSPECTOR OF POLICE, MEDICAL COLLEGE,
THIRUVANANTHAPURAM.
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 14.03.2024, ALONG
WITH CRL.A.677/2018 AND CONNECTED CASES, THE COURT ON 27.03.2024
DELIVERED THE FOLLOWING:
4
Crl. Appeal No. 677/2018 & batch
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
&
THE HONOURABLE MR. JUSTICE JOHNSON JOHN
WEDNESDAY, THE 27TH DAY OF MARCH 2024 / 7TH CHAITHRA, 1946
CRL.A NO. 1500 OF 2018
CRIME NO.1829/2015 OF MEDICAL COLLEGE POLICE STATION,
THIRUVANANTHAPURAM
CP NOS.11 & 18 OF 2016 OF ADDITIONAL CHIEF JUDICIAL MAGISTRATE,
THIRUVANANTHAPURAM
S.C.NO. 901 OF 2016 OF ADDITIONAL DISTRICT & SESSIONS COURT-VI,
THIRUVANANTHAPURAM
APPELLANTS/A6 TO A8:
1 SAJU @ KALLAN SAJU
AGED 39 YEARS
S/O.RAJENDRAN, THOTTUVARAMBIL HOUSE, T.C.13/15, KOLLOOR,
KANNAMMOOLA, KANNAMMOOLA WARD, VANCHIYOOR VILLAGE,
THIRUVANANTHAPURAM.
2 SAJI @ PORI SAJI
AGED 42 YEARS
S/O.PAPPAN, KALLARA HOUSE, NEAR CHENNILODE GROUND,
ANAMUGHAM WARD, KADAKAMPALLY VILLAGE,
THIRUVANANTHAPURAM.
3 SURESH @ KOPRA SURESH
AGED 39 YEARS
S/O.APPUKUTTAN, KULAVARAMBIL HOUSE, KOLLOOR,
KANNAMMOOLA, KANNAMMOOLA WARD, VANCHIYOOR VILLAGE,
THIRUVANANTHAPURAM.
BY ADVS.
SRI. M.P.MADHAVANKUTTY
SRI. SHAJIN S.HAMEED
SMT. K. REMIYA RAMACHANDRAN
RESPONDENT/COMPLAINANT:
STATE OF KERALA
REPRESENTED BY THE INSPECTOR OF POLICE, MEDICAL COLLEGE
CIRCLE, THIRUVANANTHAPURAM DISTRICT, REPRESENTED
THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,
ERNAKULAM.
SRI. E.C. BINEESH, PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 14.03.2024, ALONG
WITH CRL.A.677/2018 AND CONNECTED CASES, THE COURT ON 27.03.2024
DELIVERED THE FOLLOWING:
5
Crl. Appeal No. 677/2018 & batch
'C.R'
P.B. SURESH KUMAR & JOHNSON JOHN, JJ.
-------------------------------------------------------------
Crl. Appeal Nos. 677, 895, 1009 and 1500 of 2018
--------------------------------------------------------------
Dated this the 27th day of March, 2024.
JUDGMENT
Johnson John, J.
The appellants are accused Nos. 1 to 8 in S.C. No. 901 of
2016 on the file of the Additional District and Sessions Judge-VI,
Thiruvananthapuram and accused Nos. 1 to 4 are challenging the
conviction and sentence imposed on them for the offences
punishable under Sections 120B, 302, 341, 326 r/w Section 34 IPC
and accused Nos. 5 to 8 are challenging the conviction and
sentence imposed on them under Section 120B IPC. Crl. Appeal No.
895 of 2018 is filed by accused Nos. 1, 2 and 4. Crl. Appeal No.
1009 of 2018 is filed by accused No. 3. Crl. Appeal No. 677 of 2018
is filed by accused No. 5 and Crl. Appeal No. 1500 of 2018 is filed
by accused Nos. 6 to 8.
2. The prosecution case is that the accused persons and the
deceased were members of rival gangs operating in
Thiruvananthapuram and that the deceased and others attacked
accused Nos. 2 and 3 in this case and that resulted in the
registration of Crime No. 1271 of 2014 of Pettah Police Station and
Crl. Appeal No. 677/2018 & batch
because of the gang rivalry and previous enmity, accused Nos. 1 to
9 entered into a criminal conspiracy to murder the deceased Sunil
Babu and in furtherance of their common intention, accused Nos. 1
to 4 travelled in two motorcycles and accused Nos. 5 to 8 travelled
in an Innova car and accused Nos. 1 to 4 reached Kannammoola
junction at about 7.45 p.m. on 13.12.2015 and attacked the
deceased Sunil Babu, who was standing there in front of the State
Bank of India, Kannammoola Branch.
3. It is alleged that the 2nd accused attacked the deceased
with a sword and when the deceased attempted to ward off the
attack, his little finger of the left hand was chopped and when the
deceased attempted to escape towards the side of Kannammoola
bridge, accused Nos. 1 to 4 chased him and when the deceased
reached near the bus waiting shed, the 4 th accused caught on the
collar of his shirt from behind and after forcibly restraining him,
banged his head towards the front side body of private bus bearing
registration No. KL-01-AU-5353, which came from Kannammoola
side and when the deceased fell down, the 2 nd and 3rd accused
persons inflicted cut injuries on his head with sword and chopper
and the 1st accused inflicted cut injuries on various parts of the
body of the deceased with chopper and thereafter, accused Nos. 1
to 4 left the place in their motorcycles and even though the
deceased was taken to hospital, he succumbed to his injuries while
Crl. Appeal No. 677/2018 & batch
undergoing treatment in KIMS Hospital, Thiruvananthapuram at 7
p.m. on 15.12.2015.
4. As per the prosecution case, after the occurrence, accused
Nos. 1 to 4 reached near the house of the 9 th accused at Pullukadu
and with the assistance of the 9 th accused, they concealed the
vehicles and the weapons used for committing the crime. But, as
per the impugned judgment, the trial court found that the
prosecution has not succeeded in proving the offence charged
against the 9th accused and accordingly, the 9 th accused was
acquitted.
5. The Station House Officer of Medical College Police Station
recorded Exhibit P1 First Information Statement of PW2, the father
of the deceased, on 13.12.2015 at 11.15 p.m., and thereafter,
registered Exhibit P63 FIR. PW49, the then Circle Inspector of
Medical College Police Station, took charge of the investigation of
this case on 14.12.2015 and thereafter, PW50 completed the
investigation and filed the final report.
6. When the accused were produced before the trial court,
after hearing both sides, charge was framed against accused Nos. 1
to 4 for the offences under Sections 115, 120B, 341, 324, 326 and
302 r/w Section 34 IPC and as against accused Nos. 5 to 8, charge
was framed for the offence under Section 120B IPC and as against
Crl. Appeal No. 677/2018 & batch
the 9th accused, charge was framed for the offences under Sections
120B 115, and 201 IPC.
7. When the charge was read over and explained to the
accused persons, they pleaded not guilty. Thereafter, the
prosecution examined PWs 1 to 50 and marked Exhibits P1 to P114
and MOs 1 to 31 to prove the charge against the accused persons.
Since it is found that the accused are not entitled for an acquittal
under Section 232 Cr.P.C., they were called upon to enter on their
defence. From the side of the accused, DWs 1 to 8 were examined
and Exhibits D1 to D8 were marked.
8. After hearing both sides and considering the oral and
documentary evidence on record, the learned Additional Sessions
Judge, by the impugned judgment dated 13.04.2018, convicted
and sentenced accused Nos. 1 to 4 to undergo rigorous
imprisonment for life and to pay a fine of Rs.2,00,000/- and in
default of payment of fine, to undergo rigorous imprisonment for
one year each for the offence under Section 302 r/w Section 34
IPC; simple imprisonment for one month each for the offence
punishable under Section 341 r/w Section 34 IPC; and rigorous
imprisonment for ten years each for the offence under Section 326
r/w Section 34 IPC. Accused Nos. 1 to 8 are sentenced to undergo
rigorous imprisonment for life for the offence under Section 120B
Crl. Appeal No. 677/2018 & batch
IPC and the 9th accused was found not guilty of the offences under
Sections 120B and 201 of IPC and accordingly, acquitted under
Section 235(1) Cr.P.C.
9. Heard the learned counsel for the appellants, Sri. T.M.
Abdul Latheef, Sri. Suman Chakravarthy, Sri. Shajin S. Hameed,
Smt. Smitha Babu and Sri. M.P. Madhavankutty and the learned
Public Prosecutor, Sri. E.C. Bineesh, and perused the records.
10. The point that arises for consideration in these appeals is
whether the conviction entered and the sentence passed against the
accused persons is legally sustainable.
11. It is argued on behalf of the appellants that the material
witnesses who supported the prosecution, are members of a rival
gang and their presence near the place of occurrence is not at all
reliable and that there is delay in registering the FIR and that the
Investigating Officer recorded the arrest of the accused persons
even before recording the statements of the material witnesses. It
is argued that there is no legally acceptable evidence to prove the
conspiracy and that the prosecution failed to establish the elements
of conspiracy against the appellants.
12. But, the learned Public Prosecutor argued that the
evidence of PWs 1 and 3 regarding the occurrence is natural and
reliable and their evidence regarding the occurrence is
Crl. Appeal No. 677/2018 & batch
corroborated by the evidence of PW6, who is the conductor of
Attukal private bus. It is pointed out that the evidence of PWs 1
and 3 regarding the occurrence is supported by the evidence of
PWs 33 and 48, who reached the place of occurrence on getting
information from the police control room. It is further pointed out
that the evidence of PWs 1 and 3 regarding the occurrence is also
supported by medical and scientific evidence and the recovery of
the material objects on the basis of the disclosure statements of
the accused persons.
13. PW1 testified that the deceased Sunil Babu is the
younger brother of his friend, Dini Babu, and that he saw the
occurrence, when he reached KMS vegetable shop in between 7 and
7.30 p.m., on 13.12.2015. According to PW1, at that time, he saw a
green Qualis car and that accused Nos. 5 to 8 were inside the car.
Subsequently, he heard a cry and when he turned back, he saw the
2nd accused, Gabri Arun, attacking the deceased with a sword
aiming his head and the deceased warding off the attack with his
hand and running towards Kannammoola side.
14. According to PW1, the 3 rd accused, Vineeth, yelled to
catch the deceased and not to spare him and accused Nos. 1 to 4
chased the deceased and the 4th accused Mali Anish, who was just
behind the deceased, caught on his shirt collar and then a bus came
Crl. Appeal No. 677/2018 & batch
through that way and suddenly applied brake and the 4th accused
banged the head of the deceased against the front side of the bus
and then the deceased fell on the road. PW1 deposed that the 2 nd
and 3rd accused attacked the deceased, who was lying on the road,
with their weapons and inflicted cut injuries and the 1 st accused
also inflicted several cut injuries on the body of the deceased.
Thereafter, accused Nos. 1 and 3 left the place in one motorcycle
towards Kumarapuram side and accused Nos. 2 and 4 left the place
in their motorcycle towards Gowreesapattom side. According to
PW1, the injured was taken to the nearby bus waiting shed and
subsequently, police came there and took the injured to the Medical
College Hospital.
15. The evidence of PW1 shows that he informed the elder
brother of the victim and thereafter, reached the Medical College
Hospital and at that time, the victim was in an unconscious
condition. PW1 stated that subsequently, the relatives took the
victim to KIMS Hospital and according to PW1, the motive is the
previous quarrel between the 2 nd accused and the deceased and
that there was also a case in Petta Police Station in that connection.
PW1 also identified accused Nos. 1 to 4, who attacked the deceased
and accused Nos. 5 to 8 who were seen inside the Qualis car before
the occurrence. PW1 identified the sword used by the 2 nd accused
as MO1 and the chopper used by the 1 st accused as MO2. The
Crl. Appeal No. 677/2018 & batch
chopper used by the 3rd accused is identified as MO3 by PW1 before
the court. PW1 also identified the Qualis car in which accused Nos.
5 to 8 travelled as MO60.
16. The evidence of PW1, in cross examination, shows that
he was the driver of a tipper lorry owned by the elder brother of the
deceased during 2015. PW1 denied the suggestion that usually it is
his mother-in-law who used to purchase vegetables from the shop.
According to PW1, from his house, he can reach KMS vegetable
shop at Kannammoola through Kalakaumudi road and that the
shops there are facing Medical Colleg -Pettah road. He denied the
suggestion that the vegetable shop will not be opened on Sundays.
According to PW1, he was there in the vegetable shop for about 10
minutes and that he purchased a vegetable kit for Rs. 50/- and the
incident occurred while he was paying the amount. PW1 would say
that he saw the Qualis car, while he was entering the shop after
parking his bike in front of the said shop. According to PW1, there
was street light near the bank and there were also lights in the
nearby shops. He denied the suggestion that the headlight of the
bus was off and according to PW1, the police recorded his
statement after three days of the occurrence.
17. PW3 deposed that he is residing at Kannammoola and
that the deceased Sunil Babu was his friend. According to PW3, on
Crl. Appeal No. 677/2018 & batch
13.12.2015, in between 7 and 7.30 p.m., he reached Kannammoola
junction for purchasing mobile recharge coupon and when he was in
front of the shop, he saw accused Nos. 5 to 8 moving towards
Kumarapuram side and shortly thereafter, accused Nos. 1 to 4
reached there in two motorcycles from Kumarapuram side and after
parking the motorcycles in front of SBI, they approached the
deceased Sunil Babu who was standing in front of the said Bank and
the 2nd accused struck on the head of Sunil Babu with sword and
Sunil Babu ward off the attack with his left hand and ran towards
Pallimukku side. Then the 3 rd accused, Vineeth, yelled to catch him
and cut him and accused Nos. 1 to 4 chased the deceased and
because of fear, the witness moved towards the other side of the
shop and after some time, he saw accused Nos. 1 and 3 moving
towards Kumarapuram side and accused Nos. 2 and 4 moving
towards Gowreesapattom side in the motorcycles in which they
came there.
18. According to PW3, after accused Nos. 1 to 4 left the
place, he saw some persons carrying Sunil to the waiting shed at
Kannammoola and at that time, there was cut injuries on various
parts of his body and his shirt was also torn on several places.
According to PW3, Sunil was in an unconscious condition and he
also saw a private bus in front of the waiting shed and there was a
dent in the front portion of the said private bus. PW3 stated that
Crl. Appeal No. 677/2018 & batch
the police officers from Pettah Police Station reached there and took
the injured to Medical College Hospital. PW3 identified accused Nos.
1 to 4 as the persons who attacked the deceased and accused Nos.
6 to 8 as the persons seen inside the Qualis car. He also identified
MOs 1 to 3 as the weapons used by the accused persons and the
pants, shirt and belt of the deceased as Mos 4 to 6 respectively.
19. PW3 admitted in cross examination that he was also an
accused along with the deceased Sunil Babu for attacking the 2 nd
accused, Gabri Arun, and that he was an accused in a murder case
registered as Crime No. 1323 of 2016 and the deceased in the said
case is the younger brother of the second accused, Gabri Arun.
20. PW6 was the conductor of the private bus bearing
registration No. KL-01-AU-5353 conducting service from Kalady to
Pulayanarkotta. According to PW6, on 13.12.2015, at about 7.30
p.m., the bus proceeded from Kizhakkekotta and when the bus
reached before Kannammoola stop, he heard a sound and then the
bus stopped suddenly and when he came out of the bus and
reached in front of the bus, he saw 3-4 persons running towards
Gowreesapattom side and another person lying in front of the bus
soaked in blood and then the persons who gathered there took the
injured to the nearby bus waiting shed and subsequently, police
came there and directed him to produce the bus in the Police
Crl. Appeal No. 677/2018 & batch
Station. PW6 deposed that he was present when the police
prepared Exhibit P4 mahazar and that there was a dent in the front
side of the bus and he also saw blood and hair at that portion. PW6
also identified his signature in Exhibit P4 mahazar before the court.
21. According to PW6, the bus was taken to the Police
Station on 13.12.2015 itself and the mahazar was prepared at 11
a.m., on 14.12.2015. He denied the suggestion that the bus
reached Kannammoola only at 8 p.m. and stated that the bus
reached Kannammoola at about 7.50 p.m.
22. PW2 is the father of the deceased Sunil Babu. He
deposed that on getting information about the incident, he reached
Medical College Hospital. According to PW2, he reached Medical
College Police Station after 11 p.m. on 13.12.2015 and the police
recorded his statement. PW2 identified his signature in Exhibit P1,
First Information Statement.
23. PW33 was a Civil Police Officer attached to Pettah Police
Station, who was on picket duty at Puthenpalam in connection with
the clashes between the rival gangs of Puthenpalam Rajesh and
Dini Babu. According to PW33, at about 7.45 p.m., on 13.12.2015,
he got a wireless message from the control room regarding an
accident at Kannammoola junction and when he reached
Kannammoola in his motorcycle, he saw a private bus stopped
Crl. Appeal No. 677/2018 & batch
there and a person lying in the waiting shed soaked in blood.
According to PW33, he enquired the matter to the driver of the said
bus and came to know that 4 persons chased the injured from
Kannammoola side and chopped him in front of the bus and
immediately he informed the matter to the control room and
thereafter, the Sub Inspector and party from Pettah Police Station
reached there and took the injured to the hospital.
24. The then Sub Inspector of Pettah Police Station was
examined as PW48 and he deposed that at about 7.45 p.m., on
13.12.2015, he got information from the control room about some
problem near Kannammoola and accordingly, when he reached
Kannammoola junction, he saw people gathered there and a private
bus 'Attukal' stopped there and a person lying in the waiting shed
soaked in blood. PW48 deposed that with the assistance of the
people gathered there and the Civil Police Officer, who was on duty
at Puthenpalam, the injured was taken to Medical College Hospital.
Later, he came to know that the said person succumbed to his
injuries and that he was the younger brother of the notorious
gangster, Dini Babu.
25. In cross examination, PW48 deposed that it is not known
to him whether the father of the deceased has filed a complaint in
Pettah Police Station. According to PW48, the injured was taken to
Crl. Appeal No. 677/2018 & batch
Medical College Hospital in the police jeep and while he was in the
Medical College Hospital, police officers from Medical College Police
Station reached there. According to PW48, he has not given the
name and address of the injured to the doctor and he is not aware
as to who told the same to the doctor.
26. The learned counsel for the appellants argued that PWs 1
and 3 are interested witnesses and that admittedly, PW1 was
working as the driver of the elder brother of the deceased and his
evidence before the court that he witnessed the occurrence while
purchasing vegetables from a shop at Kannammoola is highly
artificial and the same cannot be relied upon. It is further argued
that PW3 was a close associate of the deceased and that he was a
co-accused along with the deceased in a previous crime registered
for assaulting the 2nd accused and therefore, it can be seen that he
is also an interested witness and that the prosecution has not
examined the owner of the vegetable shop or any other
independent witness to prove the occurrence.
27. It is true that the court must exercise extreme caution
before accepting the testimony of interested witnesses. In Jarnail
Singh v. State of Punjab [(2011) 3 SCC 521], it was held that the
prevalent presumption is that a related witness would not testify
falsely against an innocent person because they want to see the
Crl. Appeal No. 677/2018 & batch
true culprits punished.
28. In Alagupandi @ Alagupandian v. State of Tamil
Nadu [AIR 2012 SC 2405], it was held that the evidence of a
related witness cannot be immediately rejected and that the
relationship of the witness cannot be utilized to determine the
validity and reliability of the testimony.
29. It is well settled that the credibility of a related witness is
unaffected by their affiliation with either party; but, the court
should proceed with care while deciding the admissibility of the
evidence of such a witness. In Madu v. State of Karnataka [AIR
2014 SC 394], it was held that the term 'witness' refers to a person
who is capable of giving information about pertinent events through
deposition, an oral statement in writing made or provided in court,
or otherwise and unless he or she comes from tainted sources, a
witness is often a deemed independent.
30. In Joginder Singh v. State of Panjab [2009 Crl. LJ
2805], the Honourable Supreme Court considered the reliability and
credibility of an interested witness and held that a simple
relationship cannot be used to invalidate an interested witness and
it cannot be disputed that an interested witness is one who has a
direct or indirect interest to see that the accused is convicted for
reasons of animus or any other oblique motive.
Crl. Appeal No. 677/2018 & batch
31. It is true that the evidence of PW1 would show that he
was the driver of the elder brother of the deceased and that PW3
was a co-accused along with the deceased in a previous crime
registered for assaulting the 2nd accused in this case. But, that by
itself is not sufficient to suspect the presence of PWs 1 and 3 at the
time of occurrence and even though PWs 1 and 3 were seriously
cross examined, nothing material was brought out to indicate that
they have any direct stake in the outcome of the case so as to
affect their credibility.
32. Further, the evidence of PWs 1 and 3 regarding the
occurrence is also supported by the evidence of PWs 6, 33 and 48.
It is in evidence that the place of occurrence is not far away from
the residence of PWs 1 and 3 and therefore, the evidence of PW1
that he reached Kannammoola junction at the time of occurrence
for purchasing vegetables from KMS vegetable shop and the
evidence of PW3 that he reached Kannammoola junction for
purchasing mobile recharge coupon from the mobile shop, appears
to be natural and reliable and therefore, we find no merit in the
contention of the appellants in this regard.
33. The learned counsel for the appellants argued that the
prosecution has not succeeded in proving that the death of Sunil
Babu was homicidal and that the available evidence in this case
Crl. Appeal No. 677/2018 & batch
would show that the deceased sustained fatal injuries in an
accident. But, the learned Public Prosecutor pointed out that the
evidence of PW6, the conductor of the bus, and PW8, the driver of
the bus, would show that there occurred no accident involving the
bus and the evidence of PW1 would show that the 4 th accused
banged the head of the deceased on the front side body of the bus
and the said incident occurred immediately after the bus stopped in
the bus stop at Kannammoola.
34. The evidence of PW6 shows that the bus was stopped
suddenly just before the bus stop at Kannammoola and he also saw
3 or 4 persons running away from there towards Gowreesapattom
side and saw another person lying soaked in blood in front of the
bus. Even though PW8, who was the driver of the bus, turned
hostile to the prosecution, and deposed that he is not aware as to
why the bus was taken to custody, his evidence clearly shows that
he stopped the bus at Kannammoola bus stop and he did not see
anyone crossing the road before he stopped the bus.
35. According to PW8, he saw a person lying in front of the
bus. However, he denied that he made a statement to the police
that he saw 4 persons chasing another person and when the said
persons attempted to cross the road, he suddenly applied the brake
and the said portion in his statement under Section 161 Cr.P.C is
Crl. Appeal No. 677/2018 & batch
marked as Exhibit P8.
36. PW37 was the doctor who examined the deceased at
Medical College Hospital, Thiruvananthapuram at 8.30 p.m., on
13.12.2015 and issued Exhibit P55 certificate. PW37 deposed that
the patient was brought by police with the alleged history of assault
on 13.12.2015 at 8.15 p.m. near Kannammoola junction. The
evidence of PW37 and Exhibit P55 shows that the alleged history
was stated by the bystanders. According to PW37, the patient was
unconscious and on local examination, the following injuries were
noted:
1. Laceration over (Rt) parietal scalp
2. Laceration over (Rt) occipital scalp
3. There was a stab wound over (Rt) flank of 3 x 2 cms
dimension and the depth could not be assessed.
4. Another stab wound over the Lt Flank
5. Loss of distal phalanx of Rt small finger.
37. PW38 was the ICU Medical Officer at KIMS Hospital,
Thiruvananthapuram on 15.12.2015 and his evidence shows that
the deceased was admitted in KIMS Hospital on 13.12.2015
followed by assault with severe head injury, multiple stab wound
and mutilation of finger of left hand and he expired at 7.01 p.m. on
15.12.2015. PW38 identified his signature in Exhibit P56 death
Crl. Appeal No. 677/2018 & batch
intimation issued to the police on 15.12.2015.
38. The Assistant Professor of Forensic Medicine at Medical
College Hospital Thiruvananthapuram who conducted the
postmortem examination on the body of the deceased on
16.12.2015 is examined as PW39 and the postmortem certificate is
marked as Exhibit P57. The evidence of PW39 and Exhibit P57
shows that the following ante-mortem injuries were noted.
"1. Lacerated wound 2x0.5x1cm on inner aspect of upper
lip across midline.
2. Multiple small abrasions over an area 9x5cm involving
right side of face and adjoining areas of upper and lower
eyelids, lower extent was 2cm outer to right angle of
mouth.
3. Multiple small abrasions over an area 4.5x2cm on
bridge, tip and left ala of nose.
4. Lacerated wound 1.5x0.5x0.2cm on left side of bridge of
nose with a linear abrasion of length 4cm extending to
right across midline.
5. Lacerated wound 1.3x0.5cm, bone deep, on root of nose
with fracture of nasal bone underneath.
6. Abrasion 3x0.2cm on forehead across midline 2cm above
root of nose with area of contusion 6x5x0.4cm underneath
and around.
7. Abrasion 5x3cm on right side of forehead, its lower
extent was at the level of eyebrow 4cm to right of midline.
Crl. Appeal No. 677/2018 & batch
8. Stapled wound 6cm long, bone deep, oblique on left side
of back of head, its lower inner end was in the midline and
9cm above occiput. Skull (left parietal bone) underneath
showed a clean cut involving its outer table (4cm long)
9. Stapled wound 5cm long, bone deep, oblique, on right
side of head, its lower back end was 6cm above and 4cm
behind right ear. Skull (right parietal bone) underneath
showed a clean cut involving its full thickness (4.5cm long)
with multiple fissured fractures extending in varying
directions from both ends. Dura matter underneath was
cleanly cut.
Skull showed fissured fracture on right side of
anterior cranial fossa. Brain stem showed multiple small
haemorrhages. Brain was soft with thick subdural and
diffuse subarachnoid haemorrhages on right hemisphere.
Sulci narrowed and gyri flattened.
10. Abrasion 1.5x0.1 to 0.2cm, oblique, on back of trunk in
midline 16cm below root of neck.
11. Abrasion 3x0.8cm, horizontal on left side of back of
trunk, its inner end was 11.4cm outer to midline and
19.5cm below top of shoulder.
12. Incised wound 2.5x0.2 to 0.7x0.2cm horizontal on left
side of back of trunk, its inner end was just below the
outer end of injury no. (11)
13. Incised punctured wound 4x0.5x4.1cm, horizontal on
left side of back of trunk, its inner sharp end was 11cm
outer to midline and 12cm above top of hip bone, the other
end was rounded. The wound was directed downwards,
forwards and ended in the muscle plane.
Crl. Appeal No. 677/2018 & batch
14. Incised wound 15х0.1х0.1cm, oblique, on right side of
back of trunk, its upper inner end was in the midline 24cm
below root of neck.
15. Abrasion 14x0.1cm, horizontal on back of trunk across
midline 25.5cm below root of neck, covered with reddish
brown adherent scab.
16. incised punctured wound 2.5x0.3x2.7cm, oblique on
back of trunk, in the midline with tailing 0.8cm long,
directed downwards and to left from its lower left
sharpened. The other end was rounded and was 1cm to
right of midline and 18cm above the level of natal cleft.
The wound was directed downwards forwards and to left
and ended in the subcutaneous plane.
17. Abrasion 3.5x0.2 to 0.5cm, oblique, on left buttock, its
upper inner was 8cm outer to midline and 5cm below top
of hip bone with area of contusion 4x1.5x1cm underneath
and around.
18. Incised wound 2.5x0.5x2cm, oblique on right side of
trunk, its lower back end was 15cm outer to midline and
4cm above top of hip bone.
19. Linear abrasion 11cm long, oblique on top of right
shoulder and adjoining areas of back of trunk, its back
inner end was 3.5cm outer to midline and 3cm below root
of neck, covered with reddish brown adherent scab.
20. Abrasion 8x4cm on outer aspect of right arm just
above elbow.
21. Abrasion 2x0.3cm, vertical on outer aspect of right
arm, 10cm below tip of shoulder.
Crl. Appeal No. 677/2018 & batch
22. Abrasion 5x3cm on outer aspect and back of right
forearm, 2cm below elbow.
23. Abrasion 4x1cm on back of right forearm, 3cm below
elbow.
24. Abrasion 1x0.5cm on back of right hand 6cm below
wrist.
25. Contusion 1.5x1x0.2cm on front of right index finger,
4cm above its tip.
26. Linear abrasion 9cm long, horizontal on inner aspect of
right thigh 11cm above knee.
27. Multiple small abrasions over an area 8x4cm on front of
right knee.
28. Linear abrasion 6cm long, oblique on back of right leg
24cm below knee.
29 . Incised wound 2x0.5x0.3cm, oblique on back of left
hand with tailing 2x0.1cm directed upwards and inwards
from its upper inner end which was 3cm below wrist.
30. Abraded contusion 5x3x0.5cm on back of left hand,
3cm below wrist.
31. Incised amputating wound 3x1.5cm, oblique on left
little finger, its upper inner extent was 9.5cm below wrist
(distal portion was missing).
32. Incised wound 3.5x1.5cm, bone deep, oblique on back
and sides of left ring finger, bone underneath was cleanly
cut and separated, its upper extent was 10cm below wrist
(proximal and distal portions were attached only by skin
and subcutaneous tissue).
Crl. Appeal No. 677/2018 & batch
33. Incised wound 3.5x1.5cm, bone deep, oblique on back
and sides of left middle finger, its upper extent was 10cm
below wrist, the bone underneath was found partly cut
obliquely.
Injury numbers (31) to (33) were in the same
horizontal plane.
34. Healing wound 2.7x0.1 to 0.5cm, oblique on left side of
front of chest, 15cm outer to midline and 12cm below top
of shoulder.
35. Infected wound 2x0.5x0.5cm, oblique on left side of
abdomen, with an abrasion 9x0.2cm extending downwards
and forwards from its front lower end, upper outer end of
the wound was 3cm above top of hip bone in the mid
axillary line.
36. Abrasion 1x1cm on left side of front of abdomen 2.5cm
outer to midline and 4cm above pubic bone.
Edges of stapled wounds were adherent. Injury
numbers 20 to 24, 26 to 28, 30 and 34 were covered with
brown adherent scab. Contusions and haemorrhages were
dark red in colour."
39. According to PW39, death was due to injury sustained to
the head and that injury Nos. 1 to 7 are blunt force injuries. PW39
testified that injury Nos. 8 and 9 are sharp force injuries possible
with sharp objects and the said injuries could be produced with
weapons like MOs 1 to 3. According to PW39, injury Nos. 8 and 9
are sufficient in the ordinary course of nature to cause death. In
cross examination, PW39 deposed that injuries 1 to 7 are not minor
Crl. Appeal No. 677/2018 & batch
injuries and in combination with their effect on brain, those are
sufficient to cause death in the ordinary course of nature.
40. On a careful re-appreciation of the evidence of PWs 1 and
3 with the evidence of PWs 6 and 8, who are the conductor and
driver of the bus and the nature of the injury sustained by the
deceased as disclosed from the evidence of PWs 37 to 39 and
Exhibits P55 to P57, we find no merit in the arguments of the
appellants that the death of the deceased, Sunil Babu, was
accidental and not homicidal. It is pertinent to note that the medical
evidence tallies with the evidence of PWs 1 and 3 on all material
particulars and therefore, we find that the prosecution has
succeeded in proving beyond reasonable doubt that the death of the
deceased Sunil Babu is homicidal.
41. PW41 was the Station House Officer of Medical College
Police Station on 13.12.2015. He testified that on the basis of the
statement of the father of the deceased, he registered Exhibit P63
FIR in this case. According to PW41, while he was attending law and
order duty in connection with the death of a pregnant lady in SAT
Pattom Hospital, he got information about the incident through
handset at about 7.45 p.m. and thereupon, he deputed Sub
Inspector Jayaraj who was on patrolling duty to the place of
occurrence and subsequently, the Sub Inspector informed him that
Crl. Appeal No. 677/2018 & batch
4 persons inflicted cut injuries on a person at Kannammoola
junction and the injured was taken to the Medical College Hospital
by the Sub Inspector of Pettah Police Station and party.
42. The evidence of PW41 shows that subsequently when he
reached Medical College Hospital, the injured was in the casualty
and since there was a crowd in connection with the incident, he
deputed 2 police officers for guarding the crime scene and also
requested the control room for more police force for controlling the
traffic and subsequently, when he again reached the Medical
College Hospital, the injured was already taken to KIMS Hospital by
his relatives and when he reached the KIMS Hospital, the injured
was in the ICU and thereafter, when he reached the Medical College
Police Station, the father of the deceased was there and hence, he
recorded his statement at 11.15 p.m.
43. The learned counsel for the appellants pointed out that in
Exhibit P63 FIR, the date and time shown in columns relating to
system date and time and the original date and time are the same
i.e., 14.12.2015 at 12.27. In column No. 3 of Exhibit P63, the date
of occurrence is shown as 19.45 hours on 13.12.2015 and
therefore, it can be seen that even though Exhibit P1, First
Information Statement, was recorded at 11.15 p.m., on
13.12.2015, the FIR was registered only at 12.27 p.m. on
Crl. Appeal No. 677/2018 & batch
14.12.2015 and the prosecution has not explained the delay.
44. In cross examination, PW41 stated that the entry in
column No. 4 of Exhibit P63 that the information is written, is a
mistake that occurred while making entries in the computer. The
learned counsel for the appellants pointed out that Exhibit P63
reached the ACJM court only at 11 hours on 15.12.2015 and the
prosecution has not furnished any explanation regarding the delay
in registering the FIR and producing the same before the
jurisdictional Magistrate.
45. The learned Public Prosecutor argued that column No. 14
in Exhibit P63 would show that the FIR was despatched to the court
at 22.45 hours on 13.12.2015 and the delay in making the
necessary entries in the computer and the mistake in the system
date and time by itself is not sufficient to establish that any
prejudice is caused to the accused persons. It is also pointed out
that PW41 has deposed the sequence of events after he received
information about the incident through the handset at 7.45 p.m. on
13.12.2015 and the evidence of PW41 in this regard sufficiently
explains the reasons for the delay.
46. It is true that FIR is the most immediate and first
version of the incident and has great value in ascertaining the truth
as it reduces the chances of improvement in the prosecution story.
Crl. Appeal No. 677/2018 & batch
But, at the same time, it is not a piece of substantive evidence. It is
pertinent to note that in this case, Exhibit P63 FIR is registered on
the basis of the statement of PW2, who is not a witness to the
occurrence and when PW2 was examined before the court, he has
no case that he witnessed the occurrence in this case.
47. Therefore, in the facts and circumstances of this case, it
cannot be held that the prosecution delayed the registration of the
FIR for tutoring the informant or improving the prosecution story so
as to falsely implicate any of the accused and therefore, we find
that the contention of the appellants in this regard cannot be
accepted.
48. It is argued on behalf of the appellants that the evidence
of the material witnesses regarding the exact time of occurrence
does not tally and according to PWs 1 and 3, the incident had
occurred in between 7 p.m. and 7.30 p.m. But, the evidence of
PW6, the conductor of the bus, would show that the bus started
from East Fort at 7.30 p.m. and reached at Kannammoola at 7.50
p.m. and as per Exhibit P63 FIR, the occurrence was at 7.45 p.m.
and therefore, it can be seen that the prosecution has failed to
prove the exact time of occurrence.
49. But, we find force in the argument of the learned Public
Prosecutor that PWs 1, 3 and 6 has deposed only the approximate
Crl. Appeal No. 677/2018 & batch
time according to their memory and the variations in their evidence
regarding the time of occurrence is only due to normal errors of
observations and memory due to lapse of time and the same cannot
be accepted as material discrepancies touching the core of the case.
50. PW4 is the cousin brother of the deceased who reached
the Medical College Hospital on getting information about the
incident and saw the victim in the casualty in an unconscious
condition. The evidence of PW4 shows that he came to know about
the occurrence from PW1 Shibu and that he also witnessed the
preparation of Exhibit P2 scene mahazar by the police on the next
day. PW4 identified his signature in Exhibit P2 scene mahazar
before the court. According to PW4, after postmortem examination,
he received the body of the deceased by executing Exhibit P3
receipt.
51. PW49, the then Circle Inspector of Medical College Police
Station, deposed that he prepared Exhibit P2 scene mahazar on
14.12.2015 in the presence of the scientific expert and also seized
the samples collected by the scientific expert from the place of
occurrence as per Exhibit P2 mahazar. According to PW49, he also
prepared Exhibit P4 mahazar after inspecting the bus involved. The
report of the scientific expert regarding the collection of evidence is
marked as Exhibits P61 and P62. PW49 testified that he got reliable
Crl. Appeal No. 677/2018 & batch
information regarding the presence of the accused persons at
Pullukadu within the jurisdiction of the Thumba Police Station and
while he was searching for the accused persons with the assistance
of shadow police, they saw a green Qualis car bearing registration
No. KL-01-AE-1229 and a blue Innova car bearing registration No.
KL-19-A- 6472 and when the police party attempted to block the
said vehicles near Techno Park, all others except the driver of the
Innova car attempted to run away; but they were chased and
detained and the vehicles were also removed to the Police Station.
After questioning the detained persons, PW49 recorded the arrest of
accused Nos. 1 to 9 at 4. 30 p.m., on 14.12.2015. The mobile
phones, ATM cards and the currency notes recovered from the
possession of the accused persons as per Exhibit P50, seizure
mahazar, were identified as MOs 7 to 15 and the arrest memo and
inspection memo of accused Nos.1 to 9 are marked as Exhibits P77
to P93.
52. PW49 testified that when blood stains were seen in the
jeans worn by accused Nos. 2 and 3, he recovered the same as per
Exhibit P54 mahazar and the same were identified as MOs 17 and
18. According to PW49, on the basis of Exhibit P42(a) disclosure
statement of the 1st accused that he discarded the used sword at a
place near Pullukadu junction and as led by the 1st accused, he
reached the said place along with the 1 st accused and the 1st
Crl. Appeal No. 677/2018 & batch
accused took out MO2 chopper from inside the shrubs there and he
seized the same as per Exhibit P42 mahazar. PW49 deposed that on
the basis of the disclosure statement of the 1 st accused that he
kept the motorcycle on the side of a house near to the house of
Praveen and as led by the accused, he reached the said house and
recovered Yamaha F2 Model motorcycle bearing registration No. KL-
01-VP-1301 as per Exhibit P11 mahazar and the relevant portion of
the confession statement of the 1st accused is marked as Exhibit
P11(a). The motorcycle recovered as per Ext P11 mahazar is
identified as MO26.
53. According to PW49, in the disclosure statement of the 2 nd
accused, it is stated that the sword used by him is kept inside the
motorcycle of the 4th accused and that he will point out the place
where the motorcycle is kept and in the disclosure statement of the
4th accused, he stated that the motor cycle and its key are kept
near a temple at Pullukadu and he reached the said place as led by
accused Nos. 2 and 4 and as pointed out by them, motorcycle
bearing registration No.KL-01-BC-8772 was recovered from the
northern side of Sree Bhadrakali Devi temple Pullukadu and the 4 th
accused also took out the key of the motorcycle and by using the
said key the 2nd accused opened the seat of the motor cycle and
took out a sword and the same was seized as per Exhibit P43
mahazar.
Crl. Appeal No. 677/2018 & batch
54. The sword recovered on the basis of the disclosure
statement of the 2nd accused is identified as MO1 and the relevant
portion of the confession statement of the 2 nd accused is marked as
Exhibit P43(a). The relevant portion of the disclosure statement of
the 4th accused for the recovery of the pulsar motorcycle and its
key is marked as Exhibit P43(b).
55. PW49 stated that on the basis of the disclosure
statement of the 3rd accused that he kept the chopper in a place
near Pullukadu junction and as led by the accused, they reached the
compound of Sree Bhadrakali temple, Pullukadu and from inside the
shrubs there, the 3rd accused took out the chopper and the same
was recovered as per Exhibit P44 mahazar. The relevant portion of
the confession statement of the 3rd accused is marked as Exhibit
P44(a) and the chopper recovered as per Exhibit P44 mahazar is
identified as MO3.
56. The learned counsel for the appellants pointed out that
PWs 27 and 28 are the witnesses examined from the side of the
prosecution to prove the recovery as per Exhibits P42 and P43
mahazars and they turned hostile to the prosecution and deposed
that they have not witnessed the recovery. It is also argued that
the Investigating Officer has prepared a joint mahazar for the
recovery of MO1 sword on the basis of the disclosure statement of
Crl. Appeal No. 677/2018 & batch
the 2nd accused and for the recovery of the motorcycle and key on
the basis of the disclosure statement of the 4 th accused and
therefore, the same being a joint recovery is not admissible under
Section 27 of the Indian Evidence Act.
57. But, the evidence of PW49 and Exhibits P43(a) and
P43(b), the relevant portion of the confession statement of the 2 nd
and 4th accused extracted in Exhibit P43 mahazar, would clearly
show that the recovery was effected on the basis of separate
disclosure statements made by the 2nd and 4th accused persons to
PW49. From Exhibit P43(a), it can be seen that the 2 nd accused has
disclosed his knowledge regarding the place where he concealed
MO1 sword to the Investigating Officer and Exhibit P43(b) would
show that the 4th accused has disclosed his knowledge regarding
the place where he kept the motorcycle and its key to the
Investigating Officer and only because MO1 was kept locked under
the seat of the motorcycle, it cannot be held that there was a joint
confession or joint recovery.
58. Even though PWs 27 and 28 turned hostile to the
prosecution they admitted their signature in the recovery mahazar.
In State, Government of NTC of Delhi v. Sunil [2001 Crl. L. J
504], it was held that when the recovery of an object is made
pursuant to the information given by the accused, there is no
Crl. Appeal No. 677/2018 & batch
obligation on the Investigating Officer to call independent witness
from the locality to witness the recovery or to attest the recovery
mahazar. Therefore, merely because PWs 27 and 28 turned hostile
to the prosecution, the evidence of the Investigating Officer
regarding the recovery of the material objects on the basis of the
disclosure statements of accused Nos. 2 and 4 cannot be rejected
and hence, we do not find any merit in the argument of the
appellants in this regard.
59. PW44 was the Assistant Director of Serology in the
Forensic Science Laboratory, Thiruvananthapuram, who issued
Exhibit P65 report after scientific examination of the material
objects and the evidence of PW44 and Exhibit P65 shows that
human blood belonging to the group O was detected in MO1 sword
recovered as per Exhibit P43(a) disclosure statement of the 2 nd
accused and that human blood belonging to Group O was also
detected in MO18, blue jeans of the 3rd accused, and that the blood
contained in MO17, jeans of the 2 nd accused, was insufficient to
determine the origin and group. The report further shows that the
blood sample of the deceased was found to be belonging to group
O. The evidence of PW44 and Exhibit P65 report shows that blood
was not detected in MO2 chopper recovered on the basis of the
disclosure statement of the 1st accused.
Crl. Appeal No. 677/2018 & batch
60. PW45 was the Assistant Director of DNA, Forensic
Science Laboratory, Thiruvananthapuram who issued Exhibit P60
report after scientific examination of the material objects. The
evidence of PW45 and Exhibit P60 shows that the blood stains in
MO1 sword used by the 2nd accused and blood stains in MO18 jeans
of the 3rd accused belong to the deceased.
61. The learned counsel for the appellants argued that blood
was not detected in MO2 chopper allegedly used by the 1 st accused
and therefore, MO2 cannot be linked to the 1 st accused. It is also
argued that no weapon is attributed to the 4 th accused and
therefore, the evidence of PWs 1 and 3 regarding the involvement
of the 1st and 4th accused is not corroborated by any scientific
evidence. The learned counsel for the appellants also argued that
there is delay in producing the seized articles before the court.
62. In R. Shaji v. State of Kerala [AIR 2013 SC 651 ], it
was held that once the recovery is made in pursuance of a
disclosure statement made by the accused, the matching or non-
matching of the blood group loses significance and that no
advantage can be conferred upon the accused because of the failure
to detect the origin of the blood due to disintegration of the serum
because of the lapse of time and that the report of disintegration of
blood etc. cannot be termed as a missing link, on the basis of which
Crl. Appeal No. 677/2018 & batch
the chain of circumstances may be presumed to be broken. In the
said decision the Honourable Supreme Court also held that
sometimes it is possible, either because the stain is insufficient in
itself, or due to hematological changes and plasmatic coagulation,
that a serologist may fail to detect the origin of the blood in
question.
63. On a careful re-appreciation of the facts and
circumstances, we do not find any merit in the submission of the
appellants that there was an inordinate delay in producing the
seized articles before the court and we find that the accused are not
entitled for the benefit of any reasonable doubt in this regard. The
evidence of PWs 1 and 3 regarding the direct involvement of
accused Nos. 1 to 4 is supported by medical evidence and the
recovery of the material objects on the basis of the disclosure
statement of the accused persons and we find no reason to interfere
with the finding of the trial court that the prosecution has proved
the charge for the offences under Sections 341 and 302 r/w Section
34 IPC against accused Nos. 1 to 4.
64. The specific case of the prosecution is that accused Nos.
1 to 9 entered into a criminal conspiracy to murder the deceased
and in order to prove the criminal conspiracy, the prosecution is
relying on the evidence of PWs 1 and 3, who deposed before the
Crl. Appeal No. 677/2018 & batch
court regarding the presence of accused Nos. 5 to 8 in a green
Qualis car which passed through the road immediately before the
occurrence. But, it is pertinent to note that PWs 1 and 3 have no
case that accused Nos. 5 to 8 have given any signal to accused Nos.
1 to 4 at the time of occurrence or immediately before the
occurrence. It is in evidence that there is heavy traffic through the
said road and there is no satisfactory evidence to show that there
was light inside the Qualis car so as to enable PWs 1 and 3 to
properly identify accused Nos. 5 to 8.
65. Another circumstance relied on by the prosecution is the
arrest of accused Nos. 1 to 8 on 14.12.2015, while they were
travelling in two vehicles. The evidence of PW49 regarding the
arrest of the accused persons is that when the police party blocked
the vehicles of the accused persons, except the driver of the Innova
car, all other persons who travelled in the said two vehicles
attempted to run away and they were chased and apprehended.
66. The prosecution is also relying on the call records of the
accused persons to prove the criminal conspiracy. Even though the
prosecution examined PW7, an autorickshaw driver, to prove that
the accused persons assembled near the house of the 7 th accused
at 6.15 p.m., on 13.12.2015, the said witness turned hostile to the
prosecution and denied that he made statement to the police as per
Crl. Appeal No. 677/2018 & batch
Exhibit P6. According to PW7, he has not recharged the mobile
phone of the 7th accused and his evidence in cross examination also
shows that the police threatened to implicate him in this case.
67. PW10 is a friend of the 2 nd and 4th accused and his
evidence shows that the 4th accused, Anish, is using mobile No.
9633697717 and that the said SIM card was subscribed by him
using his ID proof. According to PW10, he had given the said SIM
card to the 4th accused, as the 4 th accused was not having an ID
card to subscribe a SIM card at that time.
68. PW5 deposed that Innova car bearing registration No.KL-
19-A-6472 belongs to his brother, Renjith Rajan, and that on
14.12.2015, at 12.30 a.m., he received a call from mobile No.
9061810662 requesting the vehicle for a three day trip and the
person who first talked to him informed him that he is handing over
the phone one Kari Binu said to be the 5 th accused in this case and
after talking to the said person, PW5 exchanged the phone number
of Vishnu, who is the driver of the vehicle to the said person and
the mobile number from which he received the call to Vishnu. The
evidence of PW5 in cross examination shows that he is not sure
whether it was the 5th accused, Kari Binu, who talked to him in the
mobile phone, as he was not able to recognize his sound.
Crl. Appeal No. 677/2018 & batch
69. PW21 is the younger brother of the 8 th accused and his
evidence shows that he is the subscriber of mobile number,
9605441627, and that he used to call the accused persons in this
case in connection with his work and he denied the suggestion that
he made statement to the police as per Exhibit P22. PW21 turned
hostile to the prosecution and he categorically deposed before the
court that he never told the police that he entrusted mobile SIM
card No. 9605441627 subscribed by him for the use of the 8 th
accused in this case.
70. PW22 also turned hostile to the prosecution and deposed
that she is the subscriber of mobile SIM Card No.9497268787 and
she is using the said SIM. According to PW22, the accused persons
are known to her and she had called the accused persons from her
mobile number and she also denied the suggestion that she has
given statement to the police as per Exhibit P23.
71. From the evidence of PWs 7, 21, 22 and 26, it can be
seen that the prosecution has not succeeded in proving the use of
mobile numbers, 9061810662, 9605441627, 9497268787 or
9895493805, by any of the accused persons and therefore, it can
be seen that the evidence of PWs 24, 25, 29 and 30, Nodal Officers,
regarding the call details of the above said mobile numbers are not
sufficient to establish any conspiracy in between the accused
Crl. Appeal No. 677/2018 & batch
persons.
72. It is also pointed out by the appellants that the trial court
has drawn an inference against the accused persons for the reason
that the testimony of PW22 has a taste of untrustworthiness and
improbabilities and the said approach is not legally sustainable, as it
is for the prosecution to prove the alleged criminal conspiracy
between the accused persons. It is true that criminal conspiracy is
generally hatched in secrecy and therefore, it is difficult to obtain
direct evidence and therefore, criminal conspiracy can be proved
either by adducing circumstantial evidence or by way of necessary
implication. But it cannot be disputed that inference can be drawn
only from established facts and when the circumstantial evidence is
incomplete or vague, it becomes necessary for the prosecution to
provide adequate proof regarding the meeting of minds, which is
essential in order to hatch a criminal conspiracy. But, in this case,
we find that the prosecution has not adduced any reliable evidence
in this regard.
73. Apart from the alleged conspiracy, there is no other
evidence in this case to connect accused Nos. 5 to 8 with the
murder of Sunil Babu and therefore, we find that the conviction and
sentence against accused Nos. 5 to 8 under Section 120B IPC is
liable to be set aside. Since the prosecution has failed to prove the
Crl. Appeal No. 677/2018 & batch
alleged conspiracy, the conviction and sentence against accused
Nos. 1 to 4 under Section 120B IPC is also liable to be set aside.
74. As per the impugned judgment, the trial court has also
found accused nos. 1 to 4 guilty of the offence punishable under
Section 326 IPC. But, in view of Section 71 of IPC, which provides
that where an offence is made up of parts, each of which
constitutes an offence, the offender should not be punished for
more than one offence, unless expressly provided and that when
an offence falls within two or more separate definitions of offences
or when several acts, of which one or more than one would, by
itself or themselves, constitute an offence constitute, when
combined, a different offence, the offender shall not be punished
with a more severe punishment than the court which tries him could
award for any one of such offences, we find that conviction and
sentence for offences punishable under Sections 302 and 326 IPC
together will be double conviction and sentencing for the same acts
committed against the same person and therefore, the trial court is
not justified in imposing separate conviction and sentence for the
offence under Section 326 IPC, when they are already convicted
and sentenced for the offence under Section 302 IPC.
75. Therefore, while confirming the conviction and sentence
imposed against accused Nos. 1 to 4 for the offences punishable
Crl. Appeal No. 677/2018 & batch
under Sections 341 and 302 r/w Section 34 IPC, the conviction and
sentence passed against them for the offences under Sections
120B and 326 IPC are set aside. The conviction and sentence
passed against accused Nos. 5 to 8 under Section 120B IPC is also
set aside and they are acquitted under Section 235(1) Cr.P.C. They
shall be set at liberty forthwith, if not required in any other cases.
In the result, Crl. Appeal Nos. 677 and 1500 of 2018 are
allowed and Crl. Appeal Nos. 895 and 1009 of 2018 are allowed in
part. Interlocutory applications, if any, pending shall stand closed.
Registry shall send a copy of this judgment to the
Superintendent of jail concerned where accused Nos. 5 to 8 are now
detained.
sd/-
P.B. SURESH KUMAR,
JUDGE.
sd/-
JOHNSON JOHN,
JUDGE.
Rv
Crl. Appeal No. 677/2018 & batch
APPENDIX OF CRL.A NO. 677 OF 2018
APPELLANT'S ANNEXURES:
ANNEXURE A1 TRUE COPY OF THE MEDICAL RECORDS OF
PETITIONER'S FATHER'S PREVIOUS ANGIOPLASTY.
ANNEXURE A2 TRUE COPY OF THE MEDICAL PRESCRIPTION ISSUED
BY THE DOCTOR OR GENERAL HOSPITAL,
THIRUVANANTHAPURAM DATED 23.06.2020.
ANNEXURE A3 TRUE COPY OF THE DOPPLER STUDY REPORT OF THE
PETITIONER'S FATHER.
ANNEXURE A4 TRUE COPY OF THE ATTACHMENT NOTICE
ANNEXURE A5 TRUE COPY OF THE PRESCRIPTION ISSUED BY THE
DOCTOR OF GENERAL HOSPITAL,
THIRUVANANTHAPURAM DATED 25.06.2020.
ANNEXURE A6 TRUE COPY OF THE REGISTRATION CERTIFICATE NO.
KL-01-BG-6578.
ANNEXURE A7 TRUE COPY OF THE ORDER DATED 06.07.2020.
ANNEXURE A-1 TRUE COPY OF THE AFFIDAVIT DATED 26.09.2020.
ANNEXURE A1 TRUE COPY OF THE NOTICE ISSUED BY
KADAKAMPILLY SERVICE CO-OPERATIVE BANK LTD.
NO. 3515 OF PETTA BRANCH,
THIRUVANANTHAPURAM DATED 24.12.2020.
ANNEXURE A2 TRUE COPY OF THE LETTER ISSUED BY
KADAKAMPILLY SERVICE CO-OPERATIVE BANK LTD.
NO. 3515 OF PETTA BRNACH,
THIRUVANANTHAPURAM DATED 04.01.2021.
ANNEXURE A1 TRUE COPY OF THE DEATH CERTIFICATE DATED
01.03.2023.
RESPONDENTS' ANNEXURES: NIL
/True Copy/
PS To Judge.
Rv
Crl. Appeal No. 677/2018 & batch
APPENDIX OF CRL.A. NO. 895 OF 2018
APPELLANTS' ANNEXURES:
ANNEXURE A TRUE COPY OF THE MEDICAL CERTIFICATE ISSUED BY THE ASSISTANT
SURGEORN, GOVERNMENT DISPENSARY, JAGATHI,
THIRUVANANTHAPURAM DATED 22.06.2020.
ANNEXUSRE A TRUE COPY OF THE TREATMENT RECORDS/DISCHARGE SUMMARY
ISSUED FROM THE DEPARTMENT OF CARDIOLOGY, MEDICAL COLLEGE
HOSPITAL, TRIVANDRUM DATED 06.11.2018.
ANNEXURE I TRUE COPIES OF THE MEDICAL RECORDS AND LAB REPORTS OF THE
MOTHER OF THE PETITIONER.
RESPONDENTS' ANNEXURS: NIL
/True Copy/
PS To Judge.
Rv
Crl. Appeal No. 677/2018 & batch
APPENDIX OF CRL. A. NO. 1500 OF 2018
APPELLANT'S ANNEXURES:
ANNEXURE A PHOTOCOPY OF THE STANDING DISABILITY ASSESSMENT BOARD
CERTIFICATE DATED 21.01.2009 ISSUED FROM THE GENERAL
HOSPITAL, THIRUVANANTHAPURAM.
ANNEXURE B PHOTOCOPY OF THE MEDICAL CERTIFICATE DATED 09.10.2021
ISSUED FROM THE HOLISTIC MEDICINE & STRESS RESEARCH
INSTITUTE OF INDIA, MEDICAL COLLEGE, THIRUVANANTHAPURAM.
RESPONDENTS' ANNEXURES: NIL
/True Copy/
PS To Judge.
Rv
