Kerala High Court
Babu @ Gopalakrishnan vs State Of Kerala on 21 May, 2024
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
TUESDAY, THE 21ST DAY OF MAY 2024 / 31ST VAISAKHA, 1946
CRL.A NO. 1552 OF 2005
AGAINST THE JUDGMENT DATED 18.08.2005 IN S.C. NO.276 OF
2002 ON THE FILE OF THE ADDITIONAL DISTRICT & SESSIONS
JUDGE(ADHOC), FAST TRACK COURT - I, PATHANAMTHITTA
APPELLANT/ACCUSED NO.1 AND 2:
1 BABU @ GOPALAKRISHNAN
KOTTOOR MEPPURATHU VEEDU, KIZHAKKUMURI,
ELANTHOOR VILLAGE, KOZHENCHERRY TALUK.
2 MANOJ @SURESH, MANGALATHIL VEEDU
NEAR BHAGAVATHIKUNNU TEMPLE, -DO- -DO-.
BY ADVS.
SRI.BIJI MATHEW
SRI.S.BALAKRISHNAN CHETTIAR
SRI.GRASHIOUS KURIAKOSE SR.
RESPONDENT/COMPLAINANT:
STATE OF KERALA
REP.BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
BY ADV PUBLIC PROSECUTOR
SMT.PUSHPALATHA M K-SR. PUBLIC PROSECUTOR
SMT.SEENA C - PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING COME UP FOR FINAL
HEARING ON 13.03.2024, ALONG WITH CRL.A.1537/2005,
1562/2005, THE COURT ON 21.05.2024 DELIVERED THE
FOLLOWING:
2
Crl.A.No.1537 of 2005 and conn cases
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
TUESDAY, THE 21ST DAY OF MAY 2024 / 31ST VAISAKHA, 1946
CRL.A NO. 1537 OF 2005
AGAINST THE JUDGMENT DATED 18.08.2005 IN S.C NO.276 OF
2002 OF THE ADDITIONAL DISTRICT & SESSIONS JUDGE
(ADHOC), FAST TRACK COURT-I,PATHANAMTHITTA
APPELLANT/ACCUSED NOS.3 &4:
1 AJITH KUMAR
P.K.VIHAR,KUTTICHAL MANNOORKARA, PARUTHIPPALLY
MURI, NEDUMANGAD TALUK, THIRUVANANTHAPURAM.
2 PAPPAN @ MESTHIRI PAPPAN
PALLIMURUPPEL VEEDU, KUMARAMALA,
PARIYARAM MURI, ELANTHUR VILLAGE,,
PATHANAMTHITTA DISTRICT.
RESPONDENT/COMPLAINANT:
STATE OF KERALA
REP. BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
BY ADV
SMT.SEENA C - PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING COME UP FOR FINAL
HEARING ON 13.03.2024, ALONG WITH CRL.A.1552/2005 AND
CONNECTED CASES, THE COURT ON 21.05.2024 DELIVERED THE
FOLLOWING:
3
Crl.A.No.1537 of 2005 and conn cases
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
TUESDAY, THE 21ST DAY OF MAY 2024 / 31ST VAISAKHA, 1946
CRL.A NO. 1562 OF 2005
AGAINST THE JUDGMENT CONVICTION AND SENTENCE DATED
18.08.2005 IN SESSIONS CASE NO.276 OF 2002 OF THE COURT
OF THE ADDITIONAL DISTRICT & SESSIONS JUDGE (ADHOC),
FAST TRACK COURT - I, PATHANAMTHITTA
APPELLANT/ACCUSED NO.5:
SASI @ SURENDRAN
VAZHAPPALLIKKUZHIYIL VEEDU, ELANTHOOR
KIZHAKKEMURI, ELANTHOOR VILLAGE,
KOZHENCHERRY TALUK.
BY ADV
P.M.RAFIQ
RESPONDENT/RESPONDENT:
STATE OF KERALA
REP. BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
BY ADV.
SMT.PUSHPALATHA M.K - SR.PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING COME UP FOR FINAL
HEARING ON 13.03.2024, ALONG WITH CRL.A.1552/2005
AND CONNECTED CASES, THE COURT ON 21.05.2024
DELIVERED THE FOLLOWING:
4
Crl.A.No.1537 of 2005 and conn cases
P.G. AJITHKUMAR, J.
-----------------------------------------------------------
Crl.A.Nos.1537, 1552 and 1562 of 2005
-----------------------------------------------------------
Dated this the 21st day of May, 2024
JUDGMENT
Appellants were the accused in S.C No.276 of 2002 on
the files of the Court of Sessions, Pathanamthitta. There
were 6 accused. Accused No.5 was absconding. Others were
tried by the Additional Sessions Judge(Ad-Hoc) Fast Track
Court - 1, Pathanamthitta arraigning them as accused No.1
to 5 on a charge for the offences punishable under Sections
143, 147, 148, 307, 324, 326, 341 and 427 read with
Section 149 of the Indian Penal Code, 1860. All of them
were found guilty and convicted of the said offences except
the one punishable under Section 307 of the IPC. Accused
Nos.1 and 2 filed Crl. Appeal No.1552 of 2005, accused
Nos.3 and 4 filed Crl.Appeal No. 1537 of 2005 and accused
Nos.5 filed Crl. Appeal No. 1562 of 2005.
2. Heard the learned counsel appearing for the
respective appellants and the learned Public Prosecutor.
3. The case of the prosecution was as follows:
Crl.A.No.1537 of 2005 and conn cases
On 20.03.2000, C.P.I(ML), a political outfit, called for a
harthal in the State. They were protesting the visit of the
President of the United States to India. PW4 was the Sub
Inspector, Thiruvalla Police Station. PWs 5 and 10 were
police personnel working along with him. They were
travelling in a Maruti car bearing registration No.KL-2F 8687
from Pathanamthitta to Thiruvalla. PW4 was the owner of
the car and driving it. At about 11.15 a.m, they reached
Nellikkala at Elanthoor. The appellants along with another
person who were the followers of C.P.I(ML), after forming
themselves into an unlawful assembly, blocked the said car.
They were in possession of weapons like iron rods, stones,
etc. Accused Nos.1 and 2 smashed the front windscreen of
the car using stones causing thereby a loss of Rs.4,000/- to
PW4. The 1st accused exhorted to kill him. Accused Nos.3 to
5 forcibly opened the door of the car and pulled PW4 out
from the driver's seat. Accused No.1 hit him using a stone at
his head causing a bleeding injury. When PWs 5 and 10
opened the door and came out, they were also attacked by
the accused by pelting stones at them. Accused No.2 then
hit PW4 with a stone and the accused No.4 slashed an iron
Crl.A.No.1537 of 2005 and conn cases
rod aiming at his head. PW10 could ward off it and thereby
save his life. PW5 sustained a fracture of bone of his left
index finger. PW10 also sustained injuries.
4. The prosecution has examined PWs1 to 14 and
proved Exts. P1 to P16 besides marking of MOs 1 and 2 to
prove its case. After closing the prosecution evidence, the
accused were questioned under Section 313(1)(b) of the
Code. They denied all the incriminating circumstances
appeared against them in evidence. They also denied having
been involved in the offence and stated that they were not
at the place of occurrence. No defence evidence was let in
except Exts.D1 and D2, which are contradictions in the oral
evidence of PW 10.
5. The trial court entered the findings that the
prosecution proved the occurrence of the incident at the
place and time as alleged and that in the incident, PW4, 5
and 10 sustained injuries of which, the hurt sustained by
PW5 was grievous. The trial court further found that Ext.D1
contradiction was a clerical error and Ext.D2 was trivial in
nature having no adversity on the credibility of PW10. PWs 2
and 11, the occurrence witnesses did not support the case of
Crl.A.No.1537 of 2005 and conn cases
the prosecution whereas, PW3 deposed substantiating the
occurrence of the incident. PW3 did not, however, state the
identity of the assailants. Nonetheless, her evidence was
found to be credible.
6. Insofar as sustenance of injuries by PWs 4, 5 and
10, the trial court trusted their evidence. The trial court also
relied on their evidence to find that the accused were the
assailants. The conviction accordingly recorded by the trial
court is assailed by the appellants essentially, on the ground
that the evidence concerning their identification before the
court is totally unreliable.
7. The learned counsel for that appellants made similar
submissions insofar as the evidence of PWs 4, 5 and 10
concerning their identification of the appellants/accused in
court. It is submitted that none of the said witnesses had
any prior acquaintance with the accused and they saw the
assailants only at the time of occurrence, which too for a few
seconds. There was no test identification parade. These
witnesses did not give any identifying features either in
Ext.P3 First Information statement or in their statements
under Section 161 of the Code. Therefore, their identification
Crl.A.No.1537 of 2005 and conn cases
of the accused first time in court is unreliable. Further, PWs
4, 5 and 10 did not identify the accused by pointing out each
one of them connecting to their overt acts while deposing
before the court. Pointing out those aspects, the learned
counsel appearing for the respective accused urged that
identity of the accused was not proved and their conviction
is liable to be set aside. The learned counsel appearing for
accused No.5 placed reliance in the above regard on
Vayalali Girishan v. State of Kerala[2016(1) KLD 536],
Manu G. Rajan and another v. State of Kerala [2021(6)
KLT 227] and Thadiyantevida Nazeer and others
[2022(1) KLT 685.]
8. Findings of the trial court that C.P.I(ML) called for a
harthal in Kerala on 20.03.2000, PWs 4, 5 and 10 while
travelling in the car belonging to PW4 were waylaid at
Nellikala in Pathanamthitta - Thiruvalla road by the
supporters of the harthal, the assailants smashed of the
front windscreen of the car, and the assailants attacked and
inflicted injuries to those witnesses are not seriously
challenged by the appellants. Prosecution has adduced
enough evidence regarding those facts as well.
Crl.A.No.1537 of 2005 and conn cases
9. The place of occurrence has been narrated in Ext.P1,
Scene Mahazar by PW14, the investigating officer. PW1, is a
witness to Ext.P1 and he deposed having seen the Circle
Inspector preparing the Scene Mahazar after inspecting the
place of occurrence. PW14 described about the car, and
recovery of an iron rod and stones from the place of
occurrence. PW3 was the resident of a house in the vicinity.
She reached the spot on hearing the hue and cry. She
deposed having seen PW4 with injuries near the car. She did
not venture to state having seen the assailants or their
attacking PW4 and others. On going through her deposition,
it is quite clear that she deposed in a natural way in court.
She is a reliable witness.
10. Immediately, both PWs 4 and 5 were taken to
Muthoot Medical Centre, Kozhenchery where they were
attended by a causality Medical Officer, PW6. Exts.P4 and
P5 are the certificates issued by PW6 noting injuries and the
alleged history of assault. Assault by strangers while
travelling in a car was the alleged reason for injury stated to
PW6. PW4 was treated during the following days by PW7, a
surgeon in that hospital and Ext.P6, the discharge certificate
Crl.A.No.1537 of 2005 and conn cases
was issued by him. It was PW8, a civil surgeon who
examined PW10, at the Government Hospital, Thiruvalla.
Ext.P7 is the certificate issued by PW8. The cause of injuries
stated in Ext.P7 also is that PW10 was pelted with stones
and beaten up. The said evidence renders sufficient support
to the oral testimonies of PW4, 5 and 10 that they were
attacked by a group of persons while they were travelling in
a car and inflicted injuries using weapons, such as iron rod
and stones. Sustaining of a fracture of bone of PW5's left
index finger is also established.
11. PW13 recorded Exts.P3 F.I Statement at about
2.00 p.m on the same day at the Muthoot Medical Centre,
Kozhenchery. A crime was soon registered. That
corroborated the oral testimony of PW4 in court regarding
the incident. It was in the light of the said evidence and
circumstances, the trial court concluded that PWs 4, 5 and
10 were attacked by a group of persons and inflicted injuries
using weapons while they were travelling in the car driven
by PW4. I find no infirmity to the said findings.
12. PW4 deposed that he accompanied by PWs 5 and
10 went to the Judicial Magistrate of the 1 st Class,
Crl.A.No.1537 of 2005 and conn cases
Pathanamthitta to get enlarged on bail in a case initiated
against him. It was on their way back to Thiruvalla, the
incident occurred. When they reached the place of
occurrence, a group of persons suddenly blocked the car. He
asserted that accused Nos.1 and 2 had hit at the front
windshield using stones and the glass shattered down. Other
accused came near the door, opened it and pulled PW4 out.
The 1st accused by exhorting to kill him hit PW4 at the right
side of his head using a granite piece. That resulted in an
injury and oozing out of blood. The 2 nd accused also hit him
using a stone at his back. By that time, PWs 5 and 10, who
were sitting on the rear seat, could come out of the car.
Accused No.4 beat PW4 using an iron road aiming at his
head. But it was warded off by PW10.
13. The version of PW5 is also consistent. He added
that the assailants pelted stones at him, PW4 and PW10
causing injuries. As a result, his left index finger suffered a
fracture also. The version of PW10 in regard to the overt
acts of the assailants are almost similar. He added that he
prevented the 4th accused who brandished an iron rod aiming
at the head of PW4. He could grab the iron rod from the 4 th
Crl.A.No.1537 of 2005 and conn cases
accused also. By that time people from the neighborhood
started reaching the spot and the assailants took on their
heels.
14. As stated, PWs 2 and 11 who were cited and
examined as ocular witnesses did not support the case of the
prosecution. They denied having seen the incident. PW3
claimed to have reached the spot soon after the incident.
She did not see the assailants. Therefore the evidence that
can be relied on by the prosecution to prove the identity of
the assailants is the oral testimonies of PWs 4, 5 and 10, the
injured alone.
15. The Apex Court in Brahm Swaroop v. State of
U.P., [(2011) 6 SCC 288] held concerning reliability of
injured witnesses as follows:
"28. Where a witness to the occurrence has himself
been injured in the incident, the testimony of such a
witness is generally considered to be very reliable, as
he is a witness that comes with an in-built guarantee of
his presence at the scene of the crime and is unlikely to
spare his actual assailant(s) in order to falsely implicate
someone."
Reiterating the said principle the Apex Court in
Chandrasekar and Another v. State [(2017) 13 SCC
Crl.A.No.1537 of 2005 and conn cases
585] held that criminal jurisprudence attaches great
weightage to the evidence of a person injured in the same
occurrence as it presumes that he was speaking the truth
unless shown otherwise.
16. As pointed out above, except two contradictions
in the evidence of PW10, no serious inconsistencies or
contradictions could be brought out during cross examination
of PWs 4, 5 and 10. As pointed out by the trial court, Ext.D1
and D2 contradictions are too trivial to affect the credibility
of PW10. PWs 4, 5 and 10 were suddenly attacked by the
assailants who were strangers. PWs 4, 5 and 10 could have
no interest in implicating innocent persons in the crime.
Their interest could only be seeing the real attackers
punished.
17. The Apex Court in Balu Sudam Khalde v. State
of Maharashtra [AIR 2023 SC 1736] explained the
parameters for appreciating the ocular evidence. Following
observations are relevant in this case,-
"25. The appreciation of ocular evidence is a hard
task. There is no fixed or straight-jacket formula for
appreciation of the ocular evidence. The judicially
evolved principles for appreciation of ocular evidence in
Crl.A.No.1537 of 2005 and conn cases
a criminal case can be enumerated as under:
IV. Minor discrepancies on trivial matters not
touching the core of the case, hyper technical approach
by taking sentences torn out of context here or there
from the evidence, attaching importance to some
technical error committed by the investigating officer
not going to the root of the matter would not ordinarily
permit rejection of the evidence as a whole.
xx xx xx
VI. By and large a witness cannot be expected to
possess a photographic memory and to recall the
details of an incident. It is not as if a video tape is
replayed on the mental screen.
VII. Ordinarily it so happens that a witness is
overtaken by events. The witness could not have
anticipated the occurrence which so often has an
element of surprise. The mental faculties therefore
cannot be expected to be attuned to absorb the details.
VIII. The powers of observation differ from person to
person. What one may notice, another may not. An
object or movement might emboss its image on one
person's mind whereas it might go unnoticed on the
part of another."
18. Evidence of PWs 4, 5 and 10 has to be appreciated
with the above principles of law in mind. The trial court
appreciated their evidence in a different perspective. It was
observed that being police officers, they have experience in
identifying persons even on seeing once and in the light of
Crl.A.No.1537 of 2005 and conn cases
that ability, their identification of the assailants before the
court could well be trusted.
19. The incident occurred at 11.15 a.m on a public
road. The incident should have lasted for a few minutes. A
tussle occurred between the said witnesses and the
assailants. PWs 5 and 10 even chased after the assailants.
Of course, PW4 deposed that he fainted after a few minutes.
That need not be a reason disabling him from remembering
the identity of the persons who attacked him brutally. There
was enough time for him as well as other injured to see and
identify the assailants. Therefore, their identification of the
accused before the court can certainly be acted upon.
20. In Vayalali Girishan (supra), 25 persons were
tried on a charge of various offences including one
punishable under Section 302 of the IPC. The occurrence
witnesses deposed identifying the accused only by their
rank. Their statements of identification were omnibus. They
did not state connecting each of the accused with their overt
acts. It was while appreciating that evidence this Court held
that such vague and general statements of a witness about
identification of accused before the court cannot be acted
Crl.A.No.1537 of 2005 and conn cases
upon. The said proposition cannot have any application on
the facts of this case. Here, five persons alone stood trial
unlike the cited case where 25 persons were tried together.
21. In Manu G. Rajan (supra), this court took the view
that identification of the accused by a witness with reference
to their rank alone is insufficient. In order for acting upon
the evidence of a witness, he should have stated before the
court with reference to their overt acts. Similar was the view
taken by a Division Bench of this Court in Thadiyantevida
Nazeer(supra). In that case, while giving the prosecution
evidence PW1 was not asked to identify the 1 st accused who
was standing in the dock. Therefore, there was no evidence
identifying the 1st accused before the court.
22. The nature of the evidence tendered by PWs 4, 5
and 10 in this case is totally different. These witnesses
cogently stated about the overt acts of each accused. The
accused were identified not merely by their rank but by
pointing out each of them connecting to their overt acts.
There were only 5 accused. When PWs 5 and 10 were
examined, the 2nd accused was absent and his overt acts
were deposed referring to him by name. In the above
Crl.A.No.1537 of 2005 and conn cases
circumstances, I am of the view that there is no reason to
doubt the evidence of PWs 4, 5 and 10 who identified the
accused as the assailants. Therefore, I confirm the findings
of the trial court concerning identification of the appellants.
Accordingly, I hold that their conviction is based on reliable
and sufficient evidence.
23. The accused were not found guilty of the offence
under Section 307 of the IPC. Their conviction for the other
offences namely, Sections 143, 147, 148, 324, 326, 341 and
427 read with 149 of the IPC does not suffer from any
infirmity and is confirmed. The sentence imposed is not
exorbitant and no interference is warranted.
In the result, these appeals are dismissed.
Sd/-
P.G. AJITHKUMAR
JUDGE
PV
