Kerala High Court
Ahammed Kutty Haji @ Kunhava vs State Of Kerala on 15 November, 2024
Author: P.B.Suresh Kumar
Bench: P.B.Suresh Kumar
Crl.Appeal.1118/2017
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
&
THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR
FRIDAY, THE 15TH DAY OF NOVEMBER 2024 / 24TH KARTHIKA, 1946
CRL.A NO. 1118 OF 2017
CRIME NO.432/2008 OF Kottakkal Police Station, Malappuram
SC NO.442 OF 2010 OF ADDITIONAL SESSIONS COURT - II,
MANJERI
CP NO.30 OF 2010 OF JUDICIAL MAGISTRATE OF FIRST
CLASS, MALAPPURAM
APPELLANTS/ACCUSED NOS.1, 3 TO 7
1 AHAMMED KUTTY HAJI @ KUNHAVA
S/O. MUHAMMED HAJI, PULIKKAL HOUSE, KUTTIPPURAM,
KOTTAKKAL,MALAPPURAM DISTRICT
2 HASSAN HAJI, S/O. AHAMMED KUTTY, PULIKKAL
HOUSE,KUTTIPPURAM, KOTTAKKAL, MALAPPURAM DISTRICT
3 MOIDU, S/O. AHAMMED KUTTY HAJI, PULIKKAL
HOUSE,KUTTIPPURAM, KOTTAKKAL,MALAPPURAM DISTRICT
4 MUHAMMED FAZIL,
S/O. MOOSA, PULIKKAL HOUSE, KUTTIPPURAM,
KOTTAKKAL, MALAPPURAM DISTRICT
5 AHAMMED KUTTY @ KUNHU
S/O. MOIDU, PULIKKAL HOUSE,
KUTTIPPURAM,KOTTAKKAL, MALAPPURAM DISTRICT
6 MUHAMMED SHAMMEEM,
S/O. AHAMMED KUTTY HAJI, PULIKKAL HOUSE,
KUTTIPPURAM,KOTTAKKAL, MALAPPURAM DISTRICT
BY ADVS.
SRI.P.VIJAYA BHANU (SR.)
S. SREEKUMAR (SR.)
SRI.C.JAYAKIRAN
Crl.Appeal.1118/2017
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K. DILIP
SRI.V.C.SARATH
RESPONDENT/COMPLAINANT
1 STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTORHIGH COURT OF
KERALA, ERNAKULAM - 682031
ADDL.R2 RAYIN KUTTY, AGED 56 YEARS, S/O HAMSA,
KIZHAKECHALIL HOUSE, KOTTAKKAL AMSOM, DESOM,
KUTTIPURAM, PIN 676503
[Impleaded as per order dated 25.10.2024 in
Crl.M.A.1/2024 ]
BY ADVS.
R.ANIL
SUJESH MENON V.B.
THOMAS SABU VADAKEKUT
MAHESH BHANU S.
RESSIL LONAN
JOEL GEORGE KAMPIYIL
ANANTH KRISHNA K.S.
SRI.S.U.NAZAR, PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD
ON 25.10.2024, THE COURT ON 15.11.2024 DELIVERED
THE FOLLOWING:
Crl.Appeal.1118/2017
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P.B.SURESH KUMAR & C.PRATHEEP KUMAR, JJ.
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Crl.Appeal No.1118 of 2017
------------------------------------
Dated : 15th November, 2024
JUDGMENT
C.Pratheep Kumar, J.
This is an appeal filed by the accused persons 1 and 3 to 7 involved
in Sessions Case No.442/2010 on the file of the Additional Sessions Judge-
II, Manjeri against the judgment convicting them under Sections 143, 147,
148, 341, 323, 324, 325, 326 and 308 r/w 149 IPC.
2. The prosecution case is that the accused persons with the
common object of attacking CWs1 to 6, formed themselves into an
unlawful assembly, armed with deadly weapons like dagger, iron pipe etc.,
and in prosecution of the common object on 29.8.2008 between 1.30 and
1.45 pm, attacked CWs 1 to 6 at the premise of Kuttippuram Mosque and
inflicted grievous hurt to them. It is also alleged that they inflicted such
injuries on witnesses Rayinkutty, Unneenkutty and Muhammed Haji, with
the knowledge that their act might have even resulted in their death.
3. The evidence in the case consists of the oral testimonies of
PWs1 to 18 and Exts.P1 to P27 on the side of the prosecution. MOs1 to 5
were also identified. On the side of the accused persons, no oral evidence
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was adduced. However, Exts.D1 to D7 were marked on their side. After
evaluating the available evidence, the trial court found the accused persons
1 and 3 to 7 guilty of all the charges levelled against them. Since the 2 nd
accused died, the charge against him abated. Aggrieved by the above
judgment of conviction and sentence, the accused persons 1 and 3 to 7
preferred this appeal raising various grounds.
4. Now the point that arise for consideration is the following :-
Whether the impugned judgment of conviction and sentence
passed by the trial court calls for any interference in the light
of the grounds raised in the appeal ?
5. Heard both sides.
6. The point :- Sri.S. Sreekumar and P.Vijayabhanu the learned
Senior counsel appearing for the accused persons would argue that this is a
false case foisted against the accused in order to get over from the main
case in which two persons died and several sustained injuries because of
the act of the witnesses in this case. Further, it was argued that the evidence
of the injured as well as the occurrence witnesses are contradictory to each
other so that it could not be relied upon. They would also argue that there
was no proper identification of the accused persons before the court. In the
light of the above grounds, they prayed for acquitting the accused persons.
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On the other hand, Sri.S.U.Nazar, the learned Public Prosecutor would
argue that the prosecution has succeeded in proving the charges against the
accused persons. Therefore, he prayed for dismissing the appeal.
7. PW1, one of the injured involved in this case would swear that
on 29.8.2008, he went to Kuttippuram Jumah-ath mosque. After the jumah
prayers, he was attending the function called Dikhr. During the said
function, he went out of the mosque to a nearby houl for drinking water.
While he was drinking water in a steel glass, one Aboobacker beat on his
face. At that time, he screamed aloud. Then Aboobacker took a knife out of
the sheath and stabbed on his left hand muscle, back of chest, buttock and
thigh repeatedly. The 1st accused beat him using an iron rod on his back and
as a result of which he fell down. When CWs5 and 8 came to help him to
rise from the floor, accused persons 1 and 2, along with one Abdu, stamped
him. After some time somebody took him to the Al-Mas hospital and from
there, he was referred to Medical College hospital. However, he was taken
to Baby Memorial hospital where he was admitted for a period of 7 days.
Thereafter, he had to get admitted in Kottakkal Nursing Home for about
one month for physiotherapy and later, he was treated in the Co-operative
hospital, Kozhikode also. He had given Ext.P1 FI statement in that respect
before the police. He identified his signature in Ext.P1 FI statement. He
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also identified MO1 sheath, MO2 iron pipe and MO3 steel glass.
8. PW2 is another injured in this case. He would swear that on
29.8.2008 at about 1.30 p.m. after the jumah prayers he was distributing
pravasy notice to the participants in the prayer. The 1st accused along with
the deceased Abdu received the notice from him and after convincing
themselves that the notice is not against them, they proceeded to the
northern veranda. Within two minutes, there occurred a commotion and
somebody told him that someone had stabbed Rayinkutty (PW1). When he
went to that place, he saw CW6 coming with a stab injury on his stomach.
Immediately, he sent CW6 in a vehicle to the hospital. According to PW2,
thereafter, there was a commotion and group fight. On seeing him, the 1 st
accused exhorted to catch him and chased him with a knife. Therefore he
ran towards the road and escaped from there. Later on, he came to know
that in the clash two persons died and several persons sustained injuries.
9. PW7, another injured would swear that on 29.8.2008 he was
attending the function called Dikhr in the Kuttippuram mosque. At that
time he heard a scream and a commotion from the houl. When he went
there he saw accused persons 1 and 2 along with deceased Abdu stabbing
PW1 on the back of his neck, on the back of his hand and also on his
buttock using a knife. When he tried to stop them, the accused persons 2, 3
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and 4 wrongfully restrained him. Thereafter, the 1st accused stabbed on his
back 2-3 times. Abdu stabbed on his chest and stomach. The 1 st accused
exhorted to kill him, the 3rd accused wrongfully restrained him and the 6 th
accused beat on his face. As a result of which, he fell down on the floor and
lost two teeth. He would also swear that accused persons 5, 6 and 7
wrongfully restrained CW6 and at that time the 1 st accused stabbed on the
stomach of CW6. According to him, he was taken to Al-Mas hospital and
thereafter, to the MIMS hospital. He also identified MO4 as the knife used
by the accused to stab him.
10. According to PW8, another injured, on 29.8.2008, after the
jumah prayers, the function by name Dikhr was going on. While so, PW1
went out of the mosque. Thereafter, he heard a scream of PW1. When he
went towards that place, he saw Aboobacker and Abdu along with the 1 st
accused surrounded PW1 and Aboobacker stabbed him using a knife as
directed by the 2nd accused. He further deposed that the 1st accused stabbed
on his stomach as directed by the 2nd accused.
11. PW9, another witness would swear that on 29.8.2008 during
the Dikhr function, PW1 went out of the mosque and proceeded towards
the houl. After some time, he heard a scream and commotion from the houl.
When he went there, he saw PW1 lying there. He also saw Aboobacker,
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Abdu, 1st accused and their children around PW1. On seeing him, they
turned towards him and threatened him with knife. According to him, the
5th accused beat him with an iron pipe on his forehead and also on his back.
Deceased Aboobacker and Abdu along with the 1st accused chased him and
he ran towards the road. He identified MO2 as the iron pipe used by the
accused to beat him.
12. PW14 is another injured involved in this case. He would swear
that on 29.8.2008, during the Dikhr function, PW1 went out of the mosque
and proceeded towards the houl. Aboobacker and Abdu, the deceased
persons followed PW1. After about three minuets he heard the scream
"അളളള എൻ്്ററ ഉമള ". When he looked through the window, he saw
Aboobacker and Abdu surrounding PW1 and saw Aboobacker stabbing on
the back of his neck, back of left hand and buttock using knife. He also
deposed that the accused persons 2, 3 and 4 surrounded PW7 and the 1 st
accused stabbed on his ribs. Further, according to him, Abdu stabbed on the
chest of PW7 and the 6th accused beat on the face of PW7. He would
further swear that the accused persons 5, 6 and 7 surrounded PW8 and at
that time, the 1st accused stabbed on his stomach. According to him, the
entire incident happened within a period of 30 minutes.
13. In this case PW3 is the casualty Medical Officer, Al-Mas
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hospital, who examined PW1, one Yousuff and PW7 and issued Exts.P2 to
P4 wound certificates. Exts.P5 to P10 are the wound certificates issued by
PW3 in respect of Muhammed Haji, Saidalavi, Moideenkutty, Beeran,
Kabeer and Alavi.
14. PW4 is the casualty Medical Officer, MIMS hospital who had
examined PW7 and Muhammed Haji (CW7) and issued Exts.P11 and P12
certificates. PW5 was the casualty Medical Officer, Baby Memorial
hospital, who had examined PW1 and issued Ext.P13 certificate.
15. At the time of evidence, it is revealed that with respect to the
same incident, two crimes were registered, namely crime Nos.431/2008
and 432/2008. Admittedly, crime No.431/2008 was registered in respect of
the death of two persons and injury sustained by several persons. The
accused persons in crime No.431/2008 are the main witnesses involved in
crime No.432/2008. Further, it is interesting to note that PWs1, 2, 7, 8, 9
and 14, the injured witnesses examined in this case have not explained as to
how the accused persons involved in this case sustained injuries as also
how Aboobacker and Abdu died in the very same incident.
16. The learned Senior counsel would argue that suppression of
the fact that two persons died in the incident and all the accused persons
sustained serious injuries, by itself is sufficient to disbelieve the
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prosecution case. In support of the above argument, he has relied upon the
decisions of the Hon'ble Supreme Court in Lakshmi Singh and Others v.
State of Bihar (1976) SCC Cri. 671, Parshuram v. State of M.P. AIR
2023 SC 5685 and Nand Lal and Others v. State of Chhatisgarh, AIR
2023 SC 1599. Relying upon a Division Bench decision of this Court in
Vayalali Girishan and Othes v. State of Kerala, 2016 Crl.LJ 1724, he
would further argue that, in this case there is no proper identification of the
accused.
17. In the decision in Lakshmi Singh (supra), PWs 1 to 4 gave a
parrot-like version with regard to the charge against accused persons. But at
the same time the prosecution has failed to explain how the accused
persons sustained injuries found on their body. In the above context, the
Hon'ble Supreme Court in paragraph 12 held that:
"12. In these circumstances, therefore, it was the bounden duty
of the prosecution to give a reasonable explanation for the
injuries sustained by the accused Dasrath Singh in the course of
the occurrence. Not only the prosecution has given no
explanation, but some of the witnesses have made a clear
statement that they did not see any injuries on the person of the
accused. Indeed if the eye-witnesses could have given such
graphic details regarding the assault on the two deceased and
Dasain Singh and yet they deliberately suppressed the injuries on
the person of the accused, this is a most important circumstance
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to discredit the entire prosecution case. It is well settled that
fouler the crime, higher the proof, and hence in a murder case
where one of the accused is proved to have sustained injuries in
the course of the same occurrence, the non-explanation of such
injuries by the prosecution is a manifest defect in the prosecution
case and shows that the origin and genesis of the occurrence had
been deliberately suppressed which leads to the irresistible
conclusion that the prosecution has not come out with a true
version of the occurrence."
18. In the decision in Parshuram (supra), the Apex Court has
placed reliance on the above observations made in Lakshmi Singh (supra).
19. In the decision in Nand Lal (supra), with regard to non-
explanation of the injuries sustained by the accused and suppression of the
real genesis of the incident, the Apex Court in paragraph 29 held that:
"29. We have already seen herein above the injuries sustained by
accused No. 11 Naresh Kumar. Much prior to lodging of the FIR
at 03.15 AM on 4th November 2006 by Khomlal, the Police had
taken accused No. 11 Naresh Kumar for medical examination. The
memo forwarding accused No. 11 Naresh Kumar for medical
examination to Medical Officer mentions that accused No. 11 had
informed the police that at around 08.30 PM, he was assaulted by
Atmaram (PW-1). Undisputedly, the prosecution has suppressed
information with regard to the said incident. The prosecution has
also suppressed the FIR lodged by Atmaram (PW-1). It is thus
clear that the prosecution has attempted to suppress the real
genesis of the incident. Taking into consideration this aspect of the
matter, coupled with the non-explanation of the (2005) 10 SCC
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498 injuries sustained by accused No. 11 Naresh Kumar, we are of
the considered view that accused No. 11 Naresh Kumar is entitled
to benefit of doubt."
20. During the cross-examination of PWs1, 2, 7, 8, 9 and 14, some
omissions were brought out by the accused. At the time of evidence
according to PW1, the 2nd accused and deceased Abdu stabbed him, PW16-
the Investigating Officer deposed that he has not given such a statement to
him. Though at the time of evidence, PW1 claimed that accused persons 5
and 7 also attacked him, PW16 deposed that when his statement was
recorded, he has not complained that accused persons 5 and 7 attacked him.
Similarly, though he has given statement to the effect that he went to the
houl for drinking water, no statement was given to the effect that he went to
houl to drink the water kept in a vessel on a stool. Though at the time of
evidence, PW1 claimed that the 1st accused beat him using an iron rod, such
a statement was also not given to PW16.
21. From the evidence of PW2 it appears that he has actually not
seen the incident. According to him, on hearing the sound of commotion,
he proceeded towards the veranda and found Muhammed Haji (CW6) with
an injury on his stomach. Immediately he sent Muhammed Haji in a vehicle
to the hospital. At that time, according to him, the 1 st accused exhorted to
catch him and chased him using a knife, but he flew away from there.
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However, the above evidence of PW2 that the 1 st accused exhorted to catch
him was not seen stated to the Investigating Officer when his statement was
recorded under Section 161 Cr.P.C. Thereafter, according to PW2, he went
away from there in the bike of one Hussain.
22. According to PW7, when he reached the houl on hearing the
scream and commotion, he saw the accused persons 1 and 2 stabbing PW1
on the back of his neck, on the back of his hand and on his buttock.
However, PW17 deposed that no such statement was given by PW7 to him.
On the contrary, in the 161 statement he stated only to the effect that he saw
Aboobacker and Abdu stabbing PW1. At the time of evidence, PW8
claimed that the 1st accused stabbed on his stomach as directed by the 2 nd
accused. He also claimed that Aboobacker stabbed PW1 as directed by the
2nd accused. However, no such statements were given by him to PW17.
During the cross-examination PW8 deposed that he had not heard any
scream from inside the houl. However, in the 161 statement, he had given
statement to the contrary, which was proved as Ext.D4. He also deposed
that he has not seen how PW7 sustained injury.
23. From the evidence of PW9, it appears that he had not seen as
to how PW1 sustained injury. According to him, when he reached the houl
on hearing the scream, he saw PW1 lying there. Similarly, though he
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claimed that the 5th accused beat him with an iron pipe on his forehead,
and on his back, no such statement was given by him to PW17, when his
statement was recorded under Section 161 Cr.P.C.
24. In this context, it is also to be noted that PWs2, 8, 9 and 14 are
co-accused in the counter case in respect of causing the death of
Aboobacker and Abdu and also for causing serious injuries to the other
accused persons involved in this case. As we have already noted above,
none of the above witnesses have spoken about the manner in which the
accused persons sustained injuries and also how Aboobacker and Abdu
happened to die in the very same incident. As held by the Hon'ble Supreme
Court in the decision in Lakshmi Singh (supra), on that sole ground itself,
the prosecution case is liable to be rejected. Moreover, as we have noted
above, the evidence of PWs 1, 2, 7, 8, 9 and 14 suffers from several
material omissions and contradictions and on that ground also, their
evidence is not reliable and trustworthy. It is also to be noted that these
witnesses on the one side allegedly attacked the accused persons who were
on the opposite side and both of them sustained injuries, and in the incident
two persons namely Aboobackerd and Abdu died. The incident occurred
inside the mosque just after the jumah prayer.
25. Admittedly, in the mosque there were several other persons
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who had not participated in the fight between two groups. In spite of that,
the prosecution has not examined any such persons, who were not loyal to
the two fighting groups. The non-examination of those independent
witnesses is also fatal to the prosecution case. Even the Secretary and
Khazi of the mosque were not examined in this case as witnesses. All the
witnesses examined in this case to prove the charge are injured persons
participated in the attack against the injured persons who are the accused in
the counter case. In the above circumstances, it is not surprising that they
have given only a one-sided version as to how they sustained injuries. At
the same time, they deliberately suppressed as to how the accused persons
as well as the deceased persons sustained injuries. Hence, it is not at all
safe to rely upon the evidence of PWs1, 2, 7, 8, 9 and 14 to prove the
charge against the accused persons. In the light of the above
circumstances, we are constrained to hold that the prosecution has not
succeeded in proving the charge against the accused persons beyond
reasonable doubt and as such, the impugned judgment convicting the
accused persons are liable to be set aside and we order accordingly.
In the result, this Crl.Appeal is allowed. The impugned judgment of
conviction and sentence passed by the trial court convicting the accused
persons 1 and 3 to 7 is set aside. Accused 1 and 3 to 7 are acquitted under
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Section 386(b)(i) Cr.P.C. They are set at liberty, cancelling their bail
bonds.
Sd/-
P.B. Suresh Kumar, Judge
Sd/-
C. Pratheep Kumar, Judge
Mrcs/29.10.
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APPENDIX
ANNEXURE
Annexure 1 TRUE COPY OF ORDER IN CRL.M.APPL. NO 2
OF 2022 IN CRL.A NO.1118 OF 2017 DATED
19-08-2022
