Kerala High Court
Deelan @ Dileepan @ Dilesh vs State Of Kerala on 2 November, 2024
CRL.A NO. 1863 OF 2006
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE SOPHY THOMAS
ND
SATURDAY, THE 2
DAY OF NOVEMBER 2024 / 11TH KARTHIKA,
1946
CRL.A NO. 1863 OF 2006
SC NO.208 OF 2000 OF ADDITIONAL SESSIONS COURT (ADHOC-II),
THALASSERY
APPELLANTS/ACCUSED NOS.1 TO 6:
1
EELAN @ DILEEPAN @ DILESH,
D
S/O.BHASKARAN, PARADISE QUARTERS,
DHARMADAM AMSOM DESOM.
2
UTTAN @ NELLIKKA GOGULDAS,
K
S/O.BHASKARAN, PARADISE QUARTERS,
DHARMADAM AMSOM DESOM.
3
ANNAMBETH MAJOJ KUMAR,
M
S/O.NARAYANAN, SARADANIVAS, NEAR CORENATION SCHOOL,
DHARADAM AMSOM DESOM.
4
ANNAMBETH SHAJI, S/O.NARAYANAN,
M
SARADANIVAS, NEAR CORENATION SCHOOL,
DHARADAM AMSOM DESOM.
5
ALATHIL SANTHOSH, S/O.NARAYANAN,
P
SUKUMARAN QUARTERS, DHARADAM DESOM, NEAR MOSQUE.
6
UNNA @ ANIL KUMAR, S/O.MUKUNDAN,
M
PARAYATH HOUSE, DHARMADAM AMSOM DESOM,
NEAR DHARMADAM RAILWAY STATION.
Y ADVS.
B
SRI.SURESH KUMAR KODOTH
P.P.RAMACHANDRAN
SRI.M.THAMBAN
CRL.A NO. 1863 OF 2006
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RESPONDENT/COMPLAINANT-STATE:
TATE REPRESENTED BY STATION HOUSE OFFICER,
S
DHARMADAM POLICE STATION, REPRESENTED THROUGH PUBLIC
PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.
PUBLIC PROSECUTOR - SMT.SEENA C.
THIS
CRIMINAL
APPEALHAVING
BEEN
FINALLY
HEARD
ON
02.11.2024,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
CRL.A NO. 1863 OF 2006
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J U D G M E N T
This appeal is at the instance of accused Nos.1 to6in
SC No.208 of 2000 on the file of Additional Sessions Judge
(Ad Hoc-II), Thalassery, challenging their conviction and
sentence under Sections 143, 147, 148, 323, 324 and 307
read with Section 149 of IPC, vide judgment dated
25.08.2006.
2. Prosecution caseisthaton16.07.1998,theaccused
persons formed themselves into an unlawful assembly, with
their common object of doing away with PW2-Rajan,
committedrioting,armedwithdeadlyweapons,andthe2nd
accused uttered to kill him and the 1st accused with a
billhook (കത്തിവാൾ), inflicted several cut injuries on the
vital parts of his body, causing serious injuries, and the
other accused assaulted him using hands, stick etc.
voluntarily causing hurt to him.
3. After committal and on appearance of the accused
before the trial court, charge was framed against them
under Sections 143, 147, 148, 323, 324 and 307 read with
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Section 149 of IPC, to which all of them pleaded notguilty,
and claimed to be tried. PWs 1 to 10 were examined,
Exts.P1toP12weremarkedandMOs1to4wereidentified.
Exts. D1 to D4 contradictions were also marked through
prosecution witnesses. On closure of prosecution evidence,
alltheaccusedwerequestionedunderSection313ofCr.P.C.
They denied all the incriminating circumstances brought on
record, and according to them, PWs 1 to 3, who belong to
Marxist party, due to their political enmity towards the
accused,whobelongtoRSS,afalsecasewasfoistedagainst
them. No defence evidence was adduced.
4. On analyzing the facts andevidenceandonhearing
the rival contentions from either side, the trial court
convictedalltheaccusedunderSections143,147,323,324
and 307 read with Section 149 of IPC, and they were
sentenced to undergo simple imprisonment for three
monthseachunderSection143ofIPC,simpleimprisonment
for six months each under Section 147 of IPC, simple
imprisonment for three months each under Section 323 of
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IPC, rigorous imprisonment for one year each and fine of
Rs.2,000/- each under Section 324 of IPC, rigorous
imprisonment for three years each and fine of Rs.5,000/-
each under Section 307 of IPC. Only the 1st accused was
convicted under Section 148 of IPC, and he was sentenced
to undergo rigorous imprisonment for one year under
Section 148 of IPC, apart from the sentence he had to
undergo for other offences.Aggrievedbytheconvictionand
sentence, accused Nos.1 to 6 preferred this appeal.
5. Heard learned counsel for the appellants/accused
and learned Public Prosecutor for the respondent-State.
6. Pending appeal, the3rdappellant(A3)passedaway
as seen from the report submitted by SHO, Dharmadam
Police Station. Though he is no more, since the sentence
againsthimincludesfineamountalso,hisappealwillnotget
abated. So learned counsel for the appellants submittedhis
arguments for all the appellants, including deceased 3rd
appellant.
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7. Learned counsel for the appellants is assailing the
impugned judgment, mainly on the groundthatprosecution
could not prove the exact place of occurrence or about the
presence of light, forthewitnessestoseetheincidentorto
identify the assailants. Learned counsel would submit that,
thetestimonyofPWs1to3couldnothavebeenreliedupon
by the trial court, to convict the accused as they were
having political enmity towards theaccusedandhencetheir
false implication could not have been ruled out.
8. Let us have a look at the testimony of PWs 1 to 3,
the injured and the occurrence witnesses. PW2 the injured
deposed that the incident occurred in front of the shop of
PW3-Raveendran, by the side of the road leading to
DharmadamRailwayStation.Theincidentoccurredat08.05
p.m., after power supply went off, andhecouldidentifythe
assailants in the light of emergency lamp in the shop of
PW3. PW2 identified all the accused before the trial court.
Heidentifiedthe1staccusedandMO1weaponusedbyhim,
for assaulting him. Though PW2 was cross-examined by
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learned counsel for the accused, the actual incident of
assault was left untouched, and no questions were put to
him confronting with the incident, except putting some
suggestive questions to him. The identification of the
accused, identification of the weapon and the manner of
assault from the part of the accusedwerenotchallengedin
his cross-examination. To the suggestion put by learned
counsel for theaccused,thathehadsustainedinjuriesfrom
a place, where sale of illicit liquor wasgoingon,hisanswer
was an emphatic 'No'.
9.PW1,wholodgedtheFIStatementalsodeposedthe
case in tune with the prosecution, and he also stated that
the place of occurrence was the road lying in front of the
shop of PW3, leading to Dharmadam Railway Station.
Presence of light in the shop of PW3 was also spokentoby
PW1. He was also there, to take PW2 to the Co-operative
Hospital, Thalassery. After admitting PW2 in that hospital,
he came back to Dharmadam Police Station and lodged
Ext.P1-FI Statement at 09.00 p.m. In the FI Statement
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itself, he had stated the names of all the accused, who
attackedPW2andheidentifiedallofthembeforecourtalso.
HeidentifiedMO1-billhookusedbythe1staccused,toinflict
the injuries on the bodyofPW2.Hehadshowntheplaceof
occurrence to the Police, on the next day morning.
10.PW3-Mr.Raveendranalsosupportedtheprosecution
case that the incident occurred in front of his shop on
16.07.1998 at about 08.00 p.m. He would say that there
was light in his shop from the inverter, to see the incident
andtoidentifytheassailants.Hewouldsaythathehadseen
the 1st accused assaulting PW2 with MO1-billhook.
11. Ext.P3 wound certificate was proved through
PW4-Doctor, who was RMO at Tellicherry Co-operative
Hospital.Hewouldsaythaton16.07.1998at08.30p.m.,he
examined PW2-Rajan brought with the history of "5-8
persons inflicted cut injury with billhook near Dharmadam
Railway Station", and he noted the following injuries:
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(1) Incised wound of 20 cm long in the left side of
frontal region cutting the whole thickness of the skin fascia
and muscle, bone also was cut.
(2) An incised wound 2 cmlongandmuscledeepon
the left side of back of chest.
(3) Incised wound of 2 cm long and muscle deep on
the right side of front of chest.
(4) A contused linear abrasion 20 cm long on theleft
shoulder extending to the lower part of the neck.
(5) Fractureoffrontalbonewithoutdepressiononleft
side.
(6) Sub conjunctiva haemorrhage left eye.
12. PW4 opined that the 5th injury in Ext.P3 wound
certificate, i.e., fracture of frontal bone without depression
on left side was a grievous one, and the injuries in Ext.P3
couldhavebeencausedwithMO1-billhook.Hefurtherstated
thattheinjuriescouldhaveledtothedeathoftheinjured,if
timely treatment was not given.
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13. Learnedcounselfortheappellantspointedoutthat
theDoctorhaddeposedinhiscross-examination,thatinjury
to the skull need not be fatal,astherewasnoinjurytothe
brain. On going through Ext.P3 wound certificate and the
injuriesnotedtherein,itcouldbeseenthat3incisedwounds
were there, on the vital parts of the body of PW2 and
moreover,therewasfractureoffrontalboneontheleftside,
though there was no brain injury.
14. Section 307 of IPC is with regard to attempt to
murder, which reads thus:
"3
07 Attempt to murder
Whoever does any act with such intention or
knowledge, and under such circumstances that, if he
bythatactcauseddeath,hewouldbeguiltyofmurder,
shall be punished with imprisonment of either
description for a term which may extendtotenyears,
andshallalsobeliabletofine;and,ifhurtiscausedto
any person by such act, the offender shall be liable
either to imprisonment for life, or to suchpunishment
as is hereinbefore mentioned.
Attempts by life-convicts - When any person
offending under this section is under sentence of
imprisonment for life, he may, if hurt is caused, be
punished with death."
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"Attempt" means an endeavour to commit a crime or
unlawful act. In every crime, there are three
stages--intention, preparation and attempt. In the third
stage, i.e., attempt, if it becomes successful, the crime is
complete. In case the attempt fails, the crime is not
complete, but the law punishes the person attempting the
criminal act. Intention is the direction of conduct towards
the object chosen. Preparation consists in devising or
arranging the means or measures necessary for the
commission of the crime. An attempt is direct movement
towards the commission, after the preparations are made.
[Reliance placed on The King v. Tustipada Mandal &
Others[1951 Cri LJ 837].
15.InordertoconvictanaccusedunderSection307of
IPC,itisnotnecessarytoshowthatbodilyinjurycapableof
causing death was inflicted. The court has to see whether
the act irrespective of its resultwasdonewiththeintention
or knowledge and under circumstances mentioned in the
Section.Attemptneednotbepenultimateact.Itissufficient
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if there is intent coupled with some overt act in execution
thereof,[ReliedonStateofMaharashtrav.BalramBama
Patil and Others[1983 KHC 367 : 1983 CrlLJ 331 (SC)].
16.Inthecaseonhand,thetestimonyofPWs1,2and
4 coupled with Ext.P3 wound certificate are sufficient to
show that the 1st accused attempted to commit murder of
PW2 by inflicting injuries on his vital parts using
MO1-billhook, which is a dangerous weapon.
17. The testimony of PWs 1and2issufficienttoshow
that the appellants formed themselves into an unlawful
assembly and attacked PW2. But only the 1st accused was
having aweaponwithhimandprosecutionhasnocasethat
any other accused aided the 1st accused for attacking PW2
with MO1-billhook. The prosecution allegation isthatexcept
the1staccused,theotheraccusedassaultedhimwithhands
and sticks. Though it was alleged that the 5th
accused-Santhosh assaulted PW2 using a stick, it was not
proved, and the stick allegedly used by him was not
recovered also. Prosecution failed to show that accused
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Nos.2 to 6 shared the object of committing murder of PW2
along with the 1st accused. SothisCourtisinclinedtofind
accused Nos.2 to 6 guilty under Sections 143, 147and323
read with Section 149 of IPC and they are convicted
thereunder.
18. As far as the 1st accused is concerned, he was a
member of that unlawful assembly, armed with deadly
weapon like MO1, and he inflicted serious injuries on the
body of PW2 with his intention to commit hismurder.Since
the 1st accused was a member of that unlawful assembly,
which assaulted PW2, A1 has to be found guilty under
Sections 143, 147 and 323 read with Section 149 of IPC
also, along with A2 to A6, apart from the offences proved
against him under Sections 148 and 307 of IPC. So the 1st
accused is found guilty under Sections 143, 147, 148, 323
and 307 read with Section 149 of IPC, and he is convicted
thereunder.
19. Learned counsel for the appellants would submit
that the incident occurredintheyear1998.Theappealwas
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filedintheyear2006,and18yearselapsedsincethen.One
of the accused i.e., the 3rd appellant passed away during
pendency of the appeal. So he prayed for leniency in the
matter of sentencing the appellants.
20.Advertingtothefactsandcircumstancepleadedby
learned counsel for the appellants, this Court is inclined to
impose sentence on the appellants as follows:
21. Accused Nos.2 to 6 are sentenced to pay fine of
Rs.5,000/-eachunderSection143ofIPC,fineofRs.5,000/-
each under Section 147 of IPC, fine of Rs.1,000/- each
under Section 323 of IPC, with adefaultsentenceofsimple
imprisonmentforthreemonthseachunderSections143and
147 of IPC and one month each under Section 323 of IPC.
No separate sentence is imposed under Section 149 of IPC.
22. The 1st accused is sentenced to undergo rigorous
imprisonment for two years and fine of Rs.25,000/- under
Section 307 of IPC, rigorous imprisonment for six months
and fine of Rs.5,000/- under Section 148 of IPC, fine of
Rs.5,000/-eachunderSections143and147ofIPC,andfine
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of Rs.1,000/- under Section 323 of IPC. In default of
payment of fine, the 1st accused shall undergo rigorous
imprisonmentforsixmonthsunderSection307ofIPC,three
months each under Sections 143, 147 and 148 of IPC, and
rigorous imprisonment for one month under Section 323 of
IPC. NoseparatesentenceisawardedunderSection149of
IPC. The substantive sentences shall run concurrently. Set
offisallowedfortheperiodundergoneincustodybythe1st
appellantin connection with this case.
23. If the fine amount is realized,Rs.50,000/-shallbe
given to PW2-the injured as compensation under Section
357(1) Cr.PC. If PW2 is no more the trial court has to
disburse the compensation amount to his legal heirs.
24. Learned counsel for the appellants submitted that,
as a condition for suspending the sentence, the appellants
hadalreadydepositedRs.5,000/-eachbeforethetrialcourt.
Thetrialcourtcanadjustthatamountfromthefineamount
to be realized from the appellants as per this judgment.
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25. Since the 3rd appellant is no more, the trial court
hastoissuedistresswarrantagainsthim,torecoverthefine
amount due, from his assets, if any held by his legal heirs.
Registrytoforward acopyofthisjudgmenttothetrial
court forthwith, for executing the sentence without delay.
Appeal is allowed in part to the extent as above.
Sd/-
SOPHY THOMAS
JUDGE
DSV/-
