Kerala High Court
Abhishek @ Tuttu vs State Of Kerala on 3 April, 2025
Author: V Raja Vijayaraghavan
Bench: V Raja Vijayaraghavan
Crl.Appeal Nos.986,479,511,570,887/2021 & 237/2023
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2025:KER:28485
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
&
THE HONOURABLE MR.JUSTICE P. V. BALAKRISHNAN
THURSDAY, THE 3RD DAY OF APRIL 2025 / 13TH CHAITHRA, 1947
CRL.A NO. 986 OF 2021
CRIME NO.413/2018 OF Irinjalakuda Police Station, Thrissur
AGAINST THE ORDER/JUDGMENT DATED 05.07.2021 IN SC
NO.754 OF 2018 OF ADDITIONAL DISTRICT COURT, IRINJALAKUDA
APPELLANT/ACCUSED NO.2:
RANJITH
AGED 29 YEARS
S/O RAVEENDRAN, INIYIL HOUSE, KEEZHTHANI, KARALAM
(PO) THRISSUR DISTRICT
BY ADVS.
SAIGI JACOB PALATTY
PAUL VARGHESE SRAMBICAL(K/1076/1992)
RESPONDENT/STATE & COMPLAINANT:
THE STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF
KERALA, ERNAKULAM-682 031.
Crl.Appeal Nos.986,479,511,570,887/2021 & 237/2023
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OTHER PRESENT:
SMT NEEMA T V, SR. PP.
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
27.03.2025, ALONG WITH CRL.A.237/2023, 479/2021 AND CONNECTED
CASES, THE COURT ON 3-4-2025 DELIVERED THE FOLLOWING:
Crl.Appeal Nos.986,479,511,570,887/2021 & 237/2023
3
2025:KER:28485
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
&
THE HONOURABLE MR.JUSTICE P. V. BALAKRISHNAN
THURSDAY, THE 3RD DAY OF APRIL 2025 / 13TH CHAITHRA, 1947
CRL.A NO. 237 OF 2023
CRIME NO.413/2018 OF Irinjalakuda Police Station, Thrissur
AGAINST THE ORDER/JUDGMENT DATED 05.07.2021 IN SC
NO.754 OF 2018 OF ADDITIONAL DISTRICT COURT, IRINJALAKUDA
APPELLANT/8TH ACCUSED:
ABHISHEK @ TUTTU
AGED 26 YEARS
S/O AJI, THAIVALAPPIL HOUSE, GANDHIGRAM,
VELATHIKULAM DESOM, PULLUR P.O, MUKUNDAPURAM TALUK,
THRISSUR DISTRICT, PIN - 680683
BY ADVS.
N.L.BITTO
GODWIN JOSEPH
VINEETH V.
RESPONDENT/STATE &COMPLAINANT :
STATE OF KERALA
Crl.Appeal Nos.986,479,511,570,887/2021 & 237/2023
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REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF
KERALA, PIN - 682031
BY ADV PUBLIC PROSECUTOR NEEMA T.V.
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
27.03.2025, ALONG WITH CRL.A.986/2021 AND CONNECTED CASES,
THE COURT ON 3-4-2025 DELIVERED THE FOLLOWING:
Crl.Appeal Nos.986,479,511,570,887/2021 & 237/2023
5
2025:KER:28485
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
&
THE HONOURABLE MR.JUSTICE P. V. BALAKRISHNAN
THURSDAY, THE 3RD DAY OF APRIL 2025 / 13TH CHAITHRA, 1947
CRL.A NO. 479 OF 2021
CRIME NO.413/2018 OF Irinjalakuda Police Station, Thrissur
AGAINST THE ORDER/JUDGMENT DATED IN SC NO.754 OF 2018
OF ADDITIONAL DISTRICT COURT, IRINJALAKUDA
APPELLANT/ACCUSED NO.5:
MEJO JOSEPH
AGED 25 YEARS
AGED 25 YEARS, S/O JOSEPH, KUNNATH HOUSE, WEST
KOMPRA, IRINJALAKUDA P.O. VELOOKKARA VILLAGE,
THRISSUR DISTRICT - 680 121
BY ADVS.
P.K.VARGHESE
P.S.ANISHAD
K.R.ARUN KRISHNAN
P.T.MANOJ
SANJANA RACHEL JOSE
BIJU KUMAR
REGHU SREEDHARAN
Crl.Appeal Nos.986,479,511,570,887/2021 & 237/2023
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RESPONDENT/COMPLAINANT:
STATE OF KERALA
RERPESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF
KERALA, ERNAKULAM - 682 031
PUBLIC PROSECUTOR NEEMA T.V.
BY ADVS.
ADDL.DIRECTOR GENERAL OF PROSECUTION
SHRI.P.NARAYANAN, ADDL.PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
27.03.2025, ALONG WITH CRL.A.986/2021 AND CONNECTED CASES,
THE COURT ON 3-4-2025 DELIVERED THE FOLLOWING:
Crl.Appeal Nos.986,479,511,570,887/2021 & 237/2023
7
2025:KER:28485
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
&
THE HONOURABLE MR.JUSTICE P. V. BALAKRISHNAN
THURSDAY, THE 3RD DAY OF APRIL 2025 / 13TH CHAITHRA, 1947
CRL.A NO. 511 OF 2021
AGAINST THE ORDER/JUDGMENT DATED IN SC NO.754 OF 2018
OF ADDITIONAL DISTRICT COURT, IRINJALAKUDA
APPELLANT/ACCUSED NO.3:
NIDHEESH @ PAKRU
AGED 27 YEARS
S/O SASIDHARAN, PERINGATTIL HOUSE, PULLATHARA,
KARALAM VILLAGE P.O.680 711
BY ADVS.
RENJITH B.MARAR
LAKSHMI.N.KAIMAL
ARUN POOMULLI
BIJU VIGNESWAR
MEERA M.
RESPONDENT/COMPLAINAT:
STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF
Crl.Appeal Nos.986,479,511,570,887/2021 & 237/2023
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KERALA, ERNAKULAM-682 031.
PUBLIC PROSECUTOR NEEMA T.V.
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
27.03.2025, ALONG WITH CRL.A.986/2021 AND CONNECTED CASES,
THE COURT ON 3-4-2025 DELIVERED THE FOLLOWING:
Crl.Appeal Nos.986,479,511,570,887/2021 & 237/2023
9
2025:KER:28485
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
&
THE HONOURABLE MR.JUSTICE P. V. BALAKRISHNAN
THURSDAY, THE 3RD DAY OF APRIL 2025 / 13TH CHAITHRA, 1947
CRL.A NO. 570 OF 2021
CRIME NO.413/2018 OF Irinjalakuda Police Station, Thrissur
AGAINST THE ORDER/JUDGMENT DATED IN SC NO.754 OF 2018
OF ADDITIONAL DISTRICT COURT, IRINJALAKUDA
APPELLANT/ACCUSED NO.2:
JIJO GEORGE,
AGED 27 YEARS
S/O. GEORGE, ALAPPATTU MADANI HOUSE, PANTHALLUR
DESOM, NELLAYI P.O., THRISSUR DISTRICT NOW RESIDING
AT C/O. ABDUL HAJI, KAVUPADI DESOM, THILLENKERI,
KOOTHUPARAMBU, KANNUR DISTRICT.
BY ADV VISHNUPRASAD NAIR
RESPONDENT/STATE/COMPLAINANT:
THE STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF
KERALA, ERNAKULAM, 682 031. (CRIME NO. 413/2018 OF
IRINJALAKUDA POLICE STATION).
PUBLIC PROSECUTOR NEEMA T.V.
Crl.Appeal Nos.986,479,511,570,887/2021 & 237/2023
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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
27.03.2025, ALONG WITH CRL.A.986/2021 AND CONNECTED CASES,
THE COURT ON 3-4-2025 DELIVERED THE FOLLOWING:
Crl.Appeal Nos.986,479,511,570,887/2021 & 237/2023
11
2025:KER:28485
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
&
THE HONOURABLE MR.JUSTICE P. V. BALAKRISHNAN
THURSDAY, THE 3RD DAY OF APRIL 2025 / 13TH CHAITHRA, 1947
CRL.A NO. 887 OF 2021
CRIME NO.413/2018 OF Irinjalakuda Police Station, Thrissur
AGAINST THE ORDER/JUDGMENT DATED IN SC NO.754 OF 2018
OF ADDITIONAL DISTRICT COURT, IRINJALAKUDA
APPELLANT/ACCUSED NO.4:
ABINANDH
AGED 22 YEARS
S/O.MOHANDAS, KARUPPUPARAMBIL HOUSE, MOORKANADU
BUND ROAD, PORATHISSERY VILLAGE.
BY ADV T.N.MANOJ
RESPONDENT/COMPLAINANT:
STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF
KERALA, KOCHI - 31.
PUBLIC PROSECUTOR SMT.NEEMA T.V.
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
Crl.Appeal Nos.986,479,511,570,887/2021 & 237/2023
12
2025:KER:28485
27.03.2025, ALONG WITH CRL.A.986/2021 AND CONNECTED CASES,
THE COURT ON 3-4-2025 DELIVERED THE FOLLOWING:
Crl.Appeal Nos.986,479,511,570,887/2021 & 237/2023
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RAJA VIJAYARAGHAVAN V,
&
P.V.BALAKRISHNAN,JJ.
-------------------------------------.
Crl.Appeal Nos.986,479,511,570,887 of 2021 &
Crl.Appeal No. 237/2023
---------------------------------
Dated this the 3rd day of April 2025
COMMON JUDGMENT
P.V.BALAKRISHNAN,J
These appeals are filed by accused Nos.1 to 5 and 8 in SC
No.754/2018 on the files of the Additional Sessions Court,
Irinjalakuda, challenging their conviction and sentences imposed
by that court. As per the impugned judgment accused Nos. 1 to 5
& 8 were found guilty, convicted and sentenced under Sections
143,147,323,324,326, 307,450,302 read with Section 149 IPC.,
accused Nos. 1 to 5 were found guilty, convicted and sentenced
under Section 148 read with section 149 IPC and accused Nos. 1
to 3 & 5 were convicted and sentenced under Section 120(B) read
Crl.Appeal Nos.986,479,511,570,887/2021 & 237/2023
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with Section 302 IPC. Criminal Appeal No.986/2021 is preferred by
the 1st accused, Crl.Appeal No.570/2021 is preferred by the 2nd
accused, Crl.Appeal No.511/2021 is preferred by third accused,
Crl.Appeal No.887/2021 is preferred by the 4th accused,
Crl.Appeal No.479/2021 is preferred by the 5th accused, and
Crl.Appeal No.237/2023 is preferred by 8th accused.
Prosecution Case
2. Accused Nos. 1 to 11, 13 and a Juvenile in conflict with
law, entered into a criminal conspiracy to do away with one
Vineeth, the son of the deceased and, as a part of conspiracy on
27/5/2018 at about 11.15 pm, formed themselves into a unlawful
assembly with dangerous weapons such as sword, knife and
wooden log and trespassed into the house of Vineeth and attacked
the inmates. Accused Nos. 6 to 11, 13 and the Juvenile stood
outside the house and guarded the scene, while accused Nos. 1 to
5 and 8 forced themselves into the house and attacked the family
members of Vineeth. The first accused, by using a sword, hacked
Crl.Appeal Nos.986,479,511,570,887/2021 & 237/2023
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the deceased and the third accused, by using another sword,
hacked the deceased and his wife. The second accused pushed the
wife of the deceased down and inflicted a perforating injury on the
right leg of the deceased with a knife. Thereafter, the 4th and 5th
accused trespassed into the house with wooden logs and assaulted
the deceased, his wife and his mother-in-law. After the incident,
the deceased was taken to the Co-operative Hospital, Irinjalakuda,
where he succumbed to his injuries at 12.45 am on 28/5/2018. It
is alleged that the 12th accused harboured accused Nos. 1,3 & 5
after the incident. Hence, the prosecution alleged that the accused
have committed the offences punishable under Sections
143,147,148,323,324, 326,307,212,450,302 read with Section
149 and Section 120(B) of IPC.
Proceedings before the trial court.
3. On appearance of the accused, the trial court after
hearing both sides, framed charges under 143,
147,148,323,326,450,212,307,302 read with 149 and 120(B) of
Crl.Appeal Nos.986,479,511,570,887/2021 & 237/2023
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the IPC against them. Thereafter, from the side of the prosecution,
PW1 to PW68 were examined and Exts.P1 to P177 documents and
MO 1 to MO 39 were marked. Exts.C1 and C2 were marked as
Court Exhibits and Exts.D1 to D4 were also marked from the side
of the accused. When the accused were examined under Section
313 Cr.P.C, they denied all the incriminating circumstances
appearing against them in evidence and stated that they are
innocent. Even though an opportunity was granted to the accused
to adduce evidence, no evidence was adduced from their side. The
trial court, on an appreciation of the evidence on record, found
accused Nos. 1 to 5 and 8 guilty of committing the offences
punishable under Sections 143,147,323,324,326,307,450,302
read with Section 149 IPC and convicted them thereunder.
Accused Nos. 1 to 5 were also found guilty of the offence under
Section 148 IPC and they were convicted thereunder. The trial
court further found accused Nos. 1 to 3 and 5 guilty of the offence
under Section 120(B) of IPC and convicted them thereunder.
Crl.Appeal Nos.986,479,511,570,887/2021 & 237/2023
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Accused Nos. 6,7,9 to 11 and 13 were acquitted of the offences
under Sections 143,147,148,323,324,326,307,450,302 read with
Section 149 and Section 120(B) IPC and the 12th accused was
acquitted of the offence punishable under Section 212,120B read
with 302 IPC.
Contention of the appellants
4. The learned Counsel for the appellant in Crl.Appeal
No.986/2021/1st accused Adv.Saigi Jacob Palatty contended that
PW1 is not at all a reliable witness and she has no acquaintance
with the first accused. He, by relying on the decision in
Malkhansingh & Ors. v. State of Madhya Pradesh (2003 KHC
1069) submitted that since no test identification parade has been
conducted to identify the first accused, the same is fatal to the
prosecution case. He argued that the testimony of PW1 is in total
variance with Ext.P1 FIS and considerable improvements have
been made in her testimony. He submitted that PW1 has not
identified the weapon allegedly used by the first accused and MO6
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has no connection with the first accused. He contended that there
are no independent witnesses to the recovery of MO6 and the
same did not reach the FSL in a tamper proof condition. He also
submitted that no blood was found in the dresses of the first
accused and human blood was not detected in MO6. He, by relying
on the decision in Balwan Singh & Ors.v. State of
Chhattisgarh & Anr.(2019 (4) KHC 300), contended that since
the recovery itself is doubtful, the prosecution was duty bound to
prove the original blood group in the afore articles. He argued that
there is no motive for the accused to kill the deceased or Vineeth
and the first accused has been roped in falsely by PW66, who has
animosity with him. He further added that MO6 is a planted
weapon and is not the one, which was allegedly seized by the
investigating officer during investigation.
5. The learned Counsel for the appellant in Crl.A.
No.570/2021/2nd accused Adv.Vishnuprasad contended that the
evidence of PW1 is not at all believable since she does not have a
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consistent version. He argued that the identification of the accused
by PW1 is also not believable and the medical evidence let in, does
not support her version. He submitted that there is no evidence to
show MO1 had reached the court in a tamper proof condition and
there is no evidence to show that the 2nd accused was wearing
MO20 shirt at the time of commission of the crime. He further
submitted that the evidence of PW11, who was in a subconscious
state of mind after consuming alcohol, is not believable and he has
not spoken to about the availability of the light in the scene, to
identify the accused. He further submitted that the accused were
not aware that the deceased was having heart ailments and was
consuming anticoagulants, which has led to profuse bleeding and
death and, therefore, even if the prosecution case is accepted in
toto, the case will only fall under illustration (b) of Section 300
IPC.
6. The learned Counsel for the appellant in Crl.Appeal
511/2021/3rd accused Sri.Ranjith Marar argued that the evidence
Crl.Appeal Nos.986,479,511,570,887/2021 & 237/2023
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of PW1 is very shaky in nature and in the absence of corroboration
cannot be relied upon. He submitted that MO7 has not been
identified by PW1 and there is also no evidence to show that MO11
motorbike was kept in a tamper proof condition after its seizure,
till samples were taken from it. He, by relying on the decisions in
Subramanya v. State of Karnataka (2022 KHC 7088) &
Ananda Kumar v. State of Kerala (2024 KHC 1517) contended
that the recovery of MO7, MO11, MO15 & MO16, has not been
proved as required by law and, therefore, cannot be relied upon.
He, also by relying on the decision in Narayan Raghunath
Phadke v State of Maharashtra (AIR 1994 SC 978) contended
that, even if the prosecution case is accepted in toto, no offence
under Section 302 will lie, since there is nothing to connect the 3rd
accused with the fatal injury. He further submitted that since the
attack was not made on the vital parts of the deceased, the only
intention was to cause bodily injury which may result in death.
7. Learned Counsel for the appellants in Crl.Appeal Nos.
Crl.Appeal Nos.986,479,511,570,887/2021 & 237/2023
2025:KER:28485
887/2021 & 479/2021/ accused Nos. 4 & 5 Adv. Sri.T.N.Manoj and
Adv.P.K.Varghese argued that there is no identification of the
weapons allegedly used by accused Nos. 4 & 5 and also that there
are no corresponding injuries noted in the body of the deceased
and hence, Section 302 will not be attracted. They further
submitted that, the recoveries effected do not have the sanctity of
law and the recovery of MO9 is from an open place. They further,
by relying on the decision in State,through CBI v. Mahender
Singh Dahiya (2011 KHC 4079), argued that the scientific
evidence adduced for identifying the blood group is not at all
reliable and convincing and, cannot be used in evidence against
the accused. They also submitted that in the absence of evidence
to show that the accused have used the motorcycles and that they
were kept in safe custody, no reliance can be placed upon the
scientific evidence relating to the samples taken from them.
8. Learned Counsel for the appellant in Crl.Appeal
No.237/2023/8th accused Adv. Britto contended that the 8th
Crl.Appeal Nos.986,479,511,570,887/2021 & 237/2023
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accused had been convicted only because of his presence at the
scene. He submitted that no overt act has been committed by the
8th accused and his name, even though known to PW1, has not
been mentioned in the FIS. He also argued that PW15, the doctor,
has not identified the 8th accused. He relied on the decisions in
Suresh & Anr. v. State of U.P.[(2001) 3 SCC 673] and
Nagesar v. State of Chhattisgarh [(2014) 6 SCC 672] to
contend that in the absence of any role played by the 8th accused,
he cannot be convicted in this case.
Contentions of the Public Prosecutor
9. The learned Public Prosecutor Adv.Neema contended that
the prosecution has proved its case against the appellants beyond
reasonable doubt and there are no grounds to interfere with the
impugned judgment. She submitted that PW1 is a sterling witness,
whose evidence can be relied upon to prove the occurrence and
the involvement of the appellants in the crime. She argued that
the omissions in the FIS cannot be considered as fatal, since the
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same cannot be considered as encyclopedia and since, the same
was lodged by PW1 while she was under severe mental stress. She
argued that in the light of the credible evidence of PW1 identifying
the accused, there is no need for conducting a test identification
parade. She also, by relying on the decision in Anbazhagan
v.State (2023 SCC OnLine SC 857), contended that the present
case squarely falls under Clause (3) of Section 300 IPC.
A compendium of prosecution evidence
10. PW1 is the wife of the deceased Vijayan. She deposed
that on 27/5/2018, her husband came back from work at about 10
pm,and after having food they all went to sleep. At that time, her
two sons, her mother and her husband were inside the house. At
about 11 pm, she heard the calling bell and when she along with
her husband opened the door and grill in the sit out, after
switching on lights, she saw the 8th accused standing there. He
enquired about her son Vineeth and when she replied that he was
sleeping, a few persons barged into the house. Two among them
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hacked her husband using swords and when she clasped her
husband, they hacked her on her left hand shoulder and wrist. She
identified the first accused as the person who first hacked her
husband and the third accused as the person who hacked her
husband and her, subsequently. She also stated that, among the
weapons, which are shown to her in the court, the longest is the
one used by the first accused. Thereafter, the second accused
pushed her and stabbed her husband on his left leg using a knife,
which she identified as MO1. When these three persons went
outside the house, two other persons came with wooden sticks and
beat her husband, mother and herself. She identified these
persons as the 4th and 5th accused and added that it is the 5th
accused, who had beaten them more. Thereafter, she along with
her children took her husband to the hospital in an autorickshaw.
While in the hospital, she also gave Ext.P1 FIS. In her cross
examination, she stated all the weapons used to hack them are
now in court. She also stated that since these accused are the
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persons who have attacked her husband, she can positively
identify them. She further stated that in the hospital, she, along
with others, gave the details to the doctor and what is stated in
Ext.P1 that only three persons have attacked is not correct. In the
attack, she suffered a fracture in her hand and at the time when
the police recorded her statement in the hospital, she was very
tense.
11. PW2 is the mother of PW1. She deposed that on 27th
night, while she was sleeping, she heard a commotion and when
got up, saw her son-in-law lying in a pool of blood. At that time,
the 4th accused came to her and beat her all over using a wooden
stick. During cross examination, she stated that it is she who had
mentioned the details to the doctor. When she saw Vijayan, he
was lying in the hall near the door and Vineeth was sleeping at
that time.
12. PW4 is an autorickshaw driver and a neighbour of
deceased Vijayan. At about 11 pm, he saw two bikes coming there
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and one of them was parked in front of his house and the other in
front of Vijayan's house. There were two persons each in the bike
and he identified accused Nos. 7,8 & 10 as three among them.
After ten minutes, he heard a commotion and when he came out,
saw the bikes leaving. The son of Vijayan came to him and told
that his father and mother had suffered cut injuries and had to be
taken to the hospital. He took them in his auto rickshaw to the
Co-operative Hospital, Irinjalakuda. In his cross examination, he
stated that he is acquainted with Abishek (A8), who came in the
motorcycle.
13. PW11 deposed that on 27/6/2018, while he was
consuming liquor along with Sujith (13th accused), he fell ill and
requested Sujith to take him to hospital. On the way to the
hospital, Sujith received a telephone call and thereafter they went
to a place called Alukka Parambu near the hospital. There, accused
Nos. 1 to 3,11 & 12 and some other unidentifiable persons were
there. Accused Nos. 1 to 3 came to the auto rickshaw in which he
Crl.Appeal Nos.986,479,511,570,887/2021 & 237/2023
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was lying and sat in the front seat. At that time, the first accused
had a sword in his hand and told him that he had some work to
do. Later, he went to the hospital. On the next day, he came to
know about the death of Vijayan.
14. PW14 is a witness to Ext.P14 inquest report. He also
deposed that he had witnessed the police recovering a plastic
cover, a knife and a pistol at the instance of the second accused
and had signed in Ext.P15 seizure mahazar. He identified the knife
as MO1, Pistol as MO4 and the cover as MO5.
15. PW15 is the CMO attached to the Shanthi Hospital,
Kodakara. He deposed that on 28/5/2018, at about 12 am, he had
examined the second accused and had issued Ext.P16 wound
certificate. The patient was accompanied by Abishek and he noted
a lacerated injury on his right hand. During cross examination,he
denied the suggestion that the date of examination is written as
8/5/2018 and asserted that it was on 28/5/2018 he had examined
the patient. He also stated that the cause of injury, as stated by
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the patient, is a fall of metal on his hand and subsequently, when
the police came, the patient told him that the injury happened as a
result of an assault.
16. PW17 is a witness to Ext.P17 seizure mahazar and the
recovery of a sword by the police at the instance of the first
accused. Even though he spoke about the incident, did not identify
the weapon positively. He also stated that the weapon was
recovered from near the well situated in the residence of the first
accused.
17. PW18 is the civil police officer attached to the
Irinjalakuda Police station, who has also witnessed the recovery of
the sword at the instance of the first accused and has signed in
Ext.P17 mahazar. He identified the weapon as MO6 .
18. PW19 is a witness to Ext.P19 mahazar and seizure of
MO7 sword at the instance of the third accused. He stated that
MO7 was thus recovered from some waste dumped near a coconut
tree, in the house of the 3rd accused.
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19. PW20 is a witness to Ext.P20 mahazar and the recovery
of MO8 wooden log at the instance of the 4th accused. During
cross examination, he stated that the tip of the wooden log and
one of its sides were broken.
20. PW21 is a witness to Ext.P21 mahazar and recovery of
MO9 stick by the police at the instance of the 5th accused, from
near Athirangal temple. During cross examination, he stated that
it was in June 2018, he had signed in Ext.P21 and that he had
seen the accused handing over the weapon to the police.
21. PW26 is a witness to Ext.P26 mahazar and recovery of
MO14 motor cycle at the instance of the 5th accused.
22. PW34 is a witness to Ext.P36 mahazar and recovery of
MO15 and MO16 dresses at the instance of the 3rd accused, from
his house.
23. PW35 is a witness to Ext.P37 mahazar and recovery of
MO17 and MO18 dresses at the instance of the 4th accused.
During cross examination, he stated that it was on 6th June at
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about 3 pm, the recovery was effected from the house of the
accused.
24. PW36 is the doctor attached to the Co-operative Hospital,
Irinjalakuda. He deposed that on 27/5/2018 at about 11: 30 pm,
he had examined deceased Vijayan and had issued Ext.P38 wound
certificate. On examination, he noted eight injuries on the body of
Vijayan and the history is physical assault by a group of persons
using a sharp edged weapon at the patient's home. Through him,
Ext.P39 case sheet was also marked. On the same day at about
11.45 pm, he examined Ambika, who came with a history of
assault by four identifiable persons by using sharp edged weapon,
and issued Ext.P40 certificate. On examination, he noted six
injuries on her body, and a fracture of Ulna. On 28/5/2018 at
about 2.35 am, he also examined Kousalya who came with a
history of physical assault by a group of four persons and issued
Ext.P41 certificate. The patient had injuries including a fracture of
the radius of wrist. He also stated that the incised wounds noted in
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2025:KER:28485
Exts.P38 to P40 can be caused by using MO6 and MO7 and injury
No.8 in Ext.P38 can be caused using MO1 knife. The swelling,
contusion and tenderness noted in Ext.P38 to Ext.P41 can be
caused by using wooden logs.
25. PW37 is the doctor, who conducted the postmortem
examination of deceased Vijayan and issued Ext.P42 certificate.
He noted 15 ante mortem injuries on the body of the deceased
and stated that death was due to an incised perforating wound
sustained in the right leg (injury No.3) and incised wound
sustained to left hand (injury No.11). He also stated that injury
No.3 can be caused by MO1 and the other incised wounds can be
caused by MO6 and MO7. He further stated that injury Nos. 3 and
11 are sufficient to cause death in the ordinary course of nature.
26. PW 41 is a witness to Ext.P44 mahazar and recovery of
MO21 and MO22 dresses at the instance of the first accused from
an almirah inside his house.
27. PW 42 is a witness to Ext.P45 mahazar and the recovery
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2025:KER:28485
of MO20 shirt from the second accused.
28. PW43 is the scientific officer attached to the Thrissur
Rural DCB. He deposed that he examined the scene of crime and
collected samples, packed and sealed them and handed them over
to the investigating officer. He identified the packet thus
containing five specimens as MO23 series. On 14/6/2018, he also
collected samples from the brown stains seen in the three
motorcycles and handed them over to the investigating officer. He
identified the articles as MO24 series and the specimen signature
as Ext.P46.
29. PW63 is the police officer who recorded Ext.P1 FIS of
PW1, at 2.30 am from the hospital. Thereafter, he registered
Ext.P68 FIR and sent it to the court. In his cross examination, he
stated that he returned to the police station after recording the
statement at 4.05 am.
30. PW 64 is a witness to Ext.P69 mahazar and recovery of
MO29 and MO30 dresses at the instance of the 5th accused, from
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his house.
31. PW65 is the police officer, who had witnessed the
handing over of MO23 series to the investigating officer and had
signed in Ext.P70 mahazar.
32. PW66 is the investigating officer, who laid the charge. He
deposed that on 28/5/2018 he took over the investigation in this
case, prepared Ext.P14 inquest report and Ext.P3 scene mahazar,
and recovered MO35 to MO39 articles from the place of
occurrence. He also seized the samples handed over by the
scientific officer as per Ext.P70 mahazar. Thereafter, he arrested
accused Nos. A6 to A9 by preparing Exts.P75 to P82 documents
and filed Ext.P84 report. He also arrested the 4th & 10th accused
by preparing Ext.P85 to P90 documents and filed Ext.91 report. He
recovered MO2 and MO3 as per Ext.P48 mahazar and Ext.P27 and
P28 as per Ext.P92 mahazar. He arrested the second accused by
preparing Ext.P93 and P94 documents and seized the shirt worn by
him. On 6/6/2018 on the basis of the confession statement given
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by the 4th accused, he recovered MO17 and MO18 dresses from
his house and MO8 weapon from a place near Athiringal temple.
The dress seized from the second accused, which is MO20, as per
Ext.P45 mahazar was forwarded to the court on 4/6/2018 as per
Ext.P97 property list. On the basis of the confession statement of
the second accused, he recovered MO1, MO4 and MO5 from a
motor shed by preparing Ext.P15 mahazar. On 7/6/2018, he
arrested accused Nos. 1,3 & 5 by preparing Exts.P99 to P-104. On
the basis of the confession statement of the first accused, he
recovered MO6 weapon by preparing Ext.P17 and recovered MO 21
& MO22 dresses as per Ext.P44 mahazar. On the basis of the
confession statement of the third accused, he recovered MO15 and
MO16 dresses as per Ext.P36 mahazar and MO7 sword as per
Ext.P19 mahazar. MO11 motor cycle was also recovered on the
basis of the confession statement of the third accused as per
Ext.P24 mahazar. On the basis of the confession statement of the
5th accused, he recovered MO28 and MO 29 dresses from his
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2025:KER:28485
house as per Ext.P69 mahazar and MO9 weapon from a place near
Athiringal temple as per Ext.P21 mahazar. He also recovered MO
14 motor cycle again on the basis of the confession statement, as
per Ext.P26 mahazar. Thereafter, all the articles and documents
were produced before the trial court as per Exts.P-106 to P-121,
Exts.P-127 to 132 and 135 to 138 property lists. Even though a
final report was filed on 21/7/2018, further investigation was
conducted on 11/2/2019 relating to the role of the 13th accused
and a completion report was filed thereafter. During cross
examination, he submitted that no Test Identification parade was
conducted in this case and that MO6 was sent to the court only on
22/6/2018.During his further chief examination, Exts.P-148&P-149
FIR and Final report in Crime No.433/2018 were also marked.
Evaluation of evidence
33. The first and foremost question to be considered in this
case is whether the death of Vijayan is by homicide. While
considering this question, the evidence of PW37, the doctor who
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conducted the postmortem examination and Ext.P42, assumes
much relevance. His evidence shows that the victim has suffered
15 antemortem injuries, including 9 incised wounds on various
parts of his legs and hands. PW37 has opined that the death was
due to an incised perforating wound sustained to the right
leg(injury No.3) and incised wound sustained to left hand(injury
No.11). He also opined that injury No.3 can be caused by using
MO1 and other incised wounds can be caused by using MO6 and
MO7. He further stated that injury Nos.3 and 11 are sufficient
enough to cause death in the ordinary course of nature. Even
though during cross examination, an attempt has been made from
the side of accused Nos. 1 to 3 to show that the death of Vijayan
was due to occlusive coronary artery disease, PW37
unambiguously denied the same and stated that a person like the
deceased, who is aged about 50, can have fatty streaks, but it
need not cause death. He further stated that since two blood
vessels, including superficial palmar arterial arch have been cut, it
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can produce sufficient bleeding, leading to death. In the light of
the evidence of PW37, we have no hesitation to conclude that the
death of Vijayan is homicidal.
34. In order to prove the involvement of the appellants in the
crime, the prosecution is heavily relying upon the evidence of the
inmates of the house and their neighbours. PW1 is the wife of
deceased Vijayan who had witnessed the entire incident. Her
evidence reveals that on 27/5/2018, at about 11 pm, on hearing
the calling bell she, along with her husband, had switched on the
lights and opened the door and the grill in the sit-out. The 8th
accused was standing there and he enquired about Vineeth, her
son. When she informed the 8th accused that Vineeth was
sleeping, a few persons barged into the sit-out and the first
accused hacked her husband. Thereafter, the third accused also
hacked her husband and she immediately embraced her husband.
Then she was also hacked in her left shoulder and wrist. She
stated that the 3rd accused had thus hacked her husband on his
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2025:KER:28485
leg and herself, on her hand. Thereafter, the 2nd accused pushed
her and stabbed her husband on his left leg using a knife. When
they retreated, accused Nos. 4 & 5 came inside and beat her
husband, mother and herself using wooden sticks. PW1 identified
the knife used by the 2nd accused as MO1 and the sword used by
the first accused. She further stated that all the weapons used by
the accused for chopping were before the court .It is also clear
from her evidence that it is in the attack made using sticks, she
had suffered fracture in her hand. Thereafter, she and her husband
were taken to the Co-operative Hospital where her husband died.
Her evidence also reveals that it is from the hospital, immediately
after the death of her husband, she had lodged Ext.P1 FIS.
35. It is true that there is some variance in Ext.P1 FIS from
the testimony of PW1, regarding the incident and the same have
been brought in as omissions by the accused. The omissions thus
proved are the fact that accused Nos. 2 & 3 have also used
weapons such as knife and sword to attack PW1 and her husband
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and the further fact that after accused Nos. 1 to 3 reiterated, two
other persons-accused Nos. 4 & 5 have entered the house and
attacked them using wooden sticks. As stated earlier, it is to be
taken note that Ext.P1 FIS has been lodged by PW1, who is none
other than the wife of the deceased, immediately after the death
of her husband, from the hospital itself. It cannot be expected
from a woman, who is in such a condition and who is suffering
from extreme mental agony, to give a detailed statement
describing each and every overt act committed by the assailants,
which has resulted in the death of her husband. In such a state
of mind, we cannot expect PW1 to recollect the events which
transpired and give a photographic description of it to the police.
At this juncture, it is also to be kept in mind that FIS cannot be
considered as an encyclopedia narrating the entire events in detail
so as to rest the prosecution case solely upon it. As the name itself
suggests, it is only the first information about the commission of a
crime and nothing more. In the decision in Rattan Singh v. State
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of Himachal Pradesh [(1997) 4 SCC 161] the Apex Court had
the occasion to consider such an issue, wherein it was held thus:
"9......... But criminal courts should not be fastidious with
mere omissions in the first information statement, since such
statements cannot be expected to be a chronicle of every
detail of what happened, nor to contain an exhaustive
catalogue of the events which took place. The person who
furnishes first information to authorities might be fresh with
the facts but he need not necessarily have the skill or ability
to reproduce details of the entire story without anything
missing therefrom. Some may miss even important details in
a narration. Quite often the police officer, who takes down
the first information, would record what the informant
conveys to him without resorting to any elicitatory exercise.
It is voluntary narrative of the informant without
interrogation which usually goes into such statement. So any
omission therein has to be considered along with the other
evidence to determine whether the fact so omitted never
happened at all."
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2025:KER:28485
In the light of the afore dictum and considering the facts and
circumstances narrated above we are of the view that the
omissions brought out in the FIS cannot be considered as fatal.
36. The evidence on record reveals that immediately after the
incident, the deceased along with PW1 and PW2 had sought
medical aid in Irinjalakuda Co-operative Hospital. The evidence of
PW36 coupled with Exts.P38 to P41 confirms the same. The
evidence of PW36 would go to show that he had examined both
the deceased and PW1 prior to the lodging of Ext.P1 FIS. His
evidence shows that he had thus examined the deceased at 11.30
pm and PW1 at about 11.45 pm on 27/5/2018. It is very pertinent
to note that the history and alleged cause of injury stated by PW1
at that time to the doctor is physical assault by four identifiable
persons using sharp edged weapon. It is also discernible from the
evidence of PW36 that he had examined PW2 on 28/5/2018 at
about 2.35 am again, with an alleged history of assault by a group
of four persons. At the time of examination, PW36 has noted that
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all the victims have suffered injuries including grievous ones. The
deceased has suffered an incised wound on his left thigh, right leg
muscle, and pattela apart from a few abrasions. PW1 had suffered
a fracture on her Ulna, an incised wound on her left wrist and left
arm and injuries on her forearm elbow, etc. Similarly, PW2 has
suffered a fracture and swelling on her wrist, swelling on her hand
and tenderness on her left wrist. PW36 also opined that these
injuries can be inflicted by using MO1, MO6 and MO7 and by using
a wooden log. The afore medical evidence thus adduced by the
prosecution lends considerable support to the evidence of PW1
regarding the incident and the manner in which it has taken place.
Further, the statement given to PW36, by PW1 & PW2 regarding
the alleged history, being first in point of time after the
occurrence, assumes much relevance and acts as an additive for
this Court not to give much emphasis to the recitals in the FIS or
the omissions brought out therein.
37. Moving further, it is to be seen that the evidence of PW2
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and PW4 also corroborates with the evidence of PW1 regarding the
involvement of the 4th and 8th accused in the crime.The evidence
of PW2 reveals that when she got up on hearing the noise, she
saw her son-in-law lying in a pool of blood. At that time, the 4th
accused came towards her and beat her using a wooden stick on
her hand, back and other parts of her body. Similarly, the
evidence of PW4, who is a neighbour of the deceased, shows that
at about 11.00 pm, just before the attack he had witnessed four
persons coming in two bikes to the house of the deceased and he
identified three among them as accused Nos. 7,8 & 10. His
evidence also reveals that he thus saw them in the light
emanating from the house and the electric post. The afore
witnesses having withstood the test of cross examination, we have
no hesitation to act upon their testimonies.
38. Coming to the contention of the accused that, in the
absence of test identification parade the evidence of PW1
regarding the identification of the accused cannot be believed, we
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2025:KER:28485
are of the considered view that there is no merit in it. First of all,
it is to be seen that Cr.P.C.does not oblige the investigating
agency to hold a test identification parade. Secondly, it is a settled
law that failure to hold a test identification parade does not by
itself render the evidence of identification in court inadmissible or
unacceptable. It is the law that substantive evidence is the
evidence of identification in court and the test identification parade
provides only corroboration to the identification of the witness in
court, if required. If the identification of the accused in the dock by
a witness is trustworthy and credible, there is no need for the
court to look for corroboration(See Shyamal Ghosh v. State of
West Bengal [(2012) 7 SCC 646] and Prakash v. State of
Karnataka [(2014) 12 SCC 133]. In the present case, we take
note that even after strenuous cross examination from the side of
the accused, nothing has been brought out in the evidence of PW1,
which would cast a doubt in her identifying the appellants. At this
juncture, we would also take note of the fact that PW1 had the
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occasion to see the assailants in close quarters and that too from
inside her house, with lights all around. It is to be seen that when
the accused put a question to PW1 regarding her noting any
identification features of the accused, her answer was prompt to
the effect that she would never forget the faces of her husband's
assailants. It is also to be kept in mind that PW1 herself, being a
victim of the attack and who has sustained serious injuries along
with her husband, is most unlikely to spare her actual assailants in
order to falsely implicate someone else. The law is well settled
that the evidence of such a witness/ injured witness is generally
considered to be very reliable and convincing evidence is required
to discredit him/her.(See State of U.P. v. Kishan Chand & Ors.
[(2004) 7 SCC 629] and Brahm Swaroop & Anr. v. State of
U.P. [AIR 2011 SC 280]). If so, in the present case, since the
evidence of PW1 is credible and cogent, and since no convincing
evidence is available to discredit her, we have no hesitation in
relying upon her testimony regarding identification of the accused.
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2025:KER:28485
39. Moving further, it is to be seen that the evidence on
record shows that on the basis of the confession statement made
by the first accused after his arrest, PW66 has recovered the
sword used by him in the attack (MO6) on 8.6.18, from inside
some grass growing near the well of his house, after preparing
Ext.P17 mahazar. The evidence of PW17 and PW18, who are the
witnesses to the recovery, also confirms the same. It is true that
PW17, even though spoke about the recovery effected, could not
identify the weapon thus recovered. But, it is to be seen that both
PW66 & PW18 have positively identified the weapon thus
recovered and PW17 has confirmed the recovery. The evidence of
PW66, PW17 & PW18 even after roving cross examination, remains
unshattered. MO6 was forwarded to the FSL for examination and
Ext.P142 report shows that blood was found in it, though it was
insufficient to determine the origin and group. It is true that PW66
has stated that MO6 was not seized by sealing it and that it has
been produced before the court only on 22/6/2018. But, he has
Crl.Appeal Nos.986,479,511,570,887/2021 & 237/2023
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specifically stated that the weapon was kept in his custody for
investigation purposes and there is nothing on record to disbelieve
him. The afore recovery evidence and the finding of blood in the
weapon used to attack the victims gives considerable support to
the prosecution to prove that the first accused has also
participated in the attack by using MO 6.
40. Coming to the second accused, the evidence of PW66
reveals that on the basis of the confession statement given by the
2nd accused while in custody, he had recovered MO1 knife from a
motor shed in a paddy field on 7.6.18, after preparing Ext.P15
mahazar. The evidence of PW14, who is a witness to the recovery,
also fully supports the evidence of PW66. MO1 knife was sent for
examination to FSL and Ext.P142 report shows that it contained
blood of human origin, though not sufficient to determine the
group. Apart from the above, it can be seen from the evidence of
PW15, the doctor, that immediately after the incident, the second
accused had sought medical aid in Shanti Hospital, Kodakara. The
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evidence of PW15 reveals that at about 12 am on 28/5/2018, he
had examined the second accused, who had approached him with
a history of assault and had issued Ext.P16 wound certificate. At
that time, the second accused was suffering from a lacerated
injury over the dorsum of right hand about 4x2x1 cm with partial
extension of pollicis. PW15 has positively identified the 2nd
accused and has opined that such an injury can be caused by a
sharp edged weapon like sword. The evidence of PW15 is also well
supported by the evidence of PW58, who had seen the accused
with injuries on his hand in the casualty of the hospital. There is no
plausible explanation forthcoming from the side of the 2nd accused
regarding him being found with injuries on his hand in the odd
hours of the night and that too immediately after the incident. The
afore evidence including the recovery evidence corroborates the
evidence of PW1 and shows that the 2nd accused was also actively
involved in the commission of the crime. It is true that MO20 shirt
recovered from the 2nd accused as per Ext.P45 mahazar when
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sent for examination was also found containing human blood of
Group A. But, we are of the view that not much reliance can be
placed upon it since, as evidenced by Ext.P130, the blood group of
the 2nd accused itself is A+ ve and admittedly he was suffering
from a cut injury at the relevant time.
41. The evidence of PW66 further shows that on the basis of
the confession statement given by the 3rd accused while in
custody, he had recovered MO15 & MO16 dresses on 8/6/2018 as
per Ext.P36 mahazar, from his house. The evidence of PW34 also
confirms the said recovery. Similarly, the sword used in the attack
and identified by PW1(MO7), was recovered by PW66 on the basis
of the disclosure statement given by the 3rd accused, from inside
a heap of dry leaves near a coconut tree in his house, by preparing
Ext.P19 mahazar. The evidence of PW19, the witness to the
recovery, also confirms the same. Again on the basis of the
disclosure statement of the third accused, PW66 recovered MO11
motorbike from the house of the 3rd accused after preparing
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2025:KER:28485
Ext.P24 mahazar. The evidence of PW24, the witness to the said
recovery, also confirms the said fact. MO7, MO15 & MO16 were
examined in the FSL and Ext.P142 report shows that MO15 and
MO16 contained blood which is insufficient to determine the origin
and group. Similarly the sample taken from the stains in MO11 by
PW43,when sent for examination, was also found to contain
human blood of group A. It is true that there is no substantive
evidence to show that MO15 and MO16 were worn by the 3rd
accused while committing the offence and MO11 bike was used
during the crime. But as far as the recovery evidence relating to
MO7 is concerned, we are of the view that even though no blood
was detected in it, the same lends considerable support to the
prosecution case to prove the usage of the weapon and the
involvement of the 3rd accused in the crime. Now even if it is
otherwise so, we are of the view that, by virtue of Section 8 of the
Evidence Act, the conduct of the 3rd accused in taking the
investigating officer to the place of concealment and pointing out
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2025:KER:28485
the weapon would be admissible in evidence and can be
considered along with other evidence on record. (See
A.N.Venkatesh & Anr. v. State of Karnataka [(2005) 7 SCC
714] and Himachal Pradesh Administration v. Om Prakash
[(1972) 1 SCC 249].The afore principle can also be applied to
the recoveries effected through accused Nos. 1 and 2.
42. Coming to the recovery evidence as far as the 4th
accused is concerned, it is to be seen that on the basis of the
disclosure statement given by the 4th accused, PW66 has
recovered MO8 wooden stick by preparing Ext.P20 mahazar, and
MO17 & MO18 dresses by preparing Ext.P37 mahazar. The
evidence of PW20 and PW35, the witnesses to the recovery also
confirms the same. MO8,MO17 & MO18 were examined in the FSL
and Ext.P142 report shows that all of them contained blood, but
which was insufficient for determining the origin or group. As far
as the 5th accused is concerned, it is to be seen that on the basis
of the disclosure statement given by him, PW66 has recovered
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2025:KER:28485
MO9 wooden stick by preparing Ext.P21 mahazar, MO14 bike by
preparing Ext.P26 mahazar and MO28 & MO29 dresses by
preparing Ext.P69 mahazar. The evidence of PW21,PW26 & PW64,
the witnesses to the afore recoveries, also confirms the same.
MO9, MO28 and MO29 were examined in the FSL and Ext.P142
report shows that in MO28 & MO29, no blood was detected and
blood which was insufficient for determining the origin and group,
was found in MO9. On the other hand, human blood of group A
was found in the sample taken by PW43 from MO 14 bike. But, it is
to be taken note that, as in the case of the 3rd accused, there is
no substantive evidence to show that MO17 and MO18 dresses
were worn by the 4th accused and MO28 and MO29 dresses were
worn by the 5th accused at the relevant time. Similarly, there is
also no convincing evidence to show that MO14 bike has been
used by any of the accused in the commission of the crime. As far
as MO8 and MO9 are concerned, it is to be taken note that they
have not been identified by any of the witnesses including PW1,
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as the weapons used in the attack, unlike MO1,MO6 & MO7. It is
a settled law, as held in the decision in Ananda Kumar's case
(cited supra) and in Kochu Mani v. State of Kerala (2023 KHC
9166) that in the absence of link evidence between the recovered
material objects with the commission of the crime, no reliance can
be placed upon the recovery to reach a finding of guilt against the
accused. Now even if the matter stands thus, in the light of the
credible and cogent evidence of PW1 pointing out the involvement
of accused Nos. 4 & 5 and their overt acts using the weapons and
the same also being corroborated by the medical evidence of
PW36, we are of the view that, the same can be acted upon to
reach a conclusion of guilt against them. As regards the
participation of the 4th accused in the crime, as discussed earlier,
it can be seen that the evidence of PW2 also supports the evidence
of PW1. At this juncture, we will keep in mind the settled law that
for convicting an accused, the recovery of the weapon used in the
commission of the offence is not sine qua non and if the evidence
Crl.Appeal Nos.986,479,511,570,887/2021 & 237/2023
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of the eyewitnesses are reliable and trustworthy regarding the
incident and the usage of weapon, the same can be acted upon
(See Rakesh & Anr.v. State of U.P.& Anr.[(2021)7 SCC 188],
Goverdhan v. State of Chhattisgarh [2025 SCC OnLine SC
69].
43. Coming to the 8th accused, as stated earlier, apart from
the evidence of PW1 there is also evidence of PW4, which
unerringly shows his presence at the scene along with the other
accused during the commission of crime. It is true that PW1 has
stated that the 8th accused is a person who is known to her and is
her relative and that his name is not mentioned in the FIS. But, as
narrated afore, in the circumstances in which the FIS was lodged
by PW1, this omission cannot be considered as fatal.
44. Now, coming to the conspiracy part, the prosecution is
heavily relying upon the evidence of PW11 to prove the same. The
trial court has found that A1 to A3 have conspired together at a
place called Alukkaparambil, on the basis of the evidence of PW11.
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But on an appraisal of the evidence of PW11, it is to be seen that
at the time when he allegedly reached the place, he was in an
intoxicated condition and was in a semi conscious state. He was
lying in the back side of the autorickshaw and was feeling dizzy at
that time. Things being so, it is highly unbelievable that PW11
would have identified the persons and deciphered the talks made
by them. At this juncture, we would also take note of the fact that
there is no mention by PW11 about the availability of light at that
place. Further, the evidence of PW11 also does not show that he
had witnessed any talks between the accused or they chalking out
any plans to commit the crime. Apart from above, it is also not
believable that the 13th accused had taken PW11 to
Alukkaparambu instead of the hospital when PW11 was in the
condition as narrated afore. Be that as it may, it is to be seen that
the trial court has also roped in the 5th accused in the conspiracy
on the basis of some phone calls made by him. But, we are of the
view that, merely because there were two calls made from the
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mobile number of the 5th accused to the number of PW8, it cannot
be deduced that it was as a part of conspiracy. Therefore,
considering all the afore facts and circumstances, we are of the
view that there is no sufficient evidence to find that accused Nos. 1
to 3 & 5 have committed an offence under Section 120B IPC.
45. Coming to the contention of the learned Counsel for the
appellants that even if the entire evidence on record is accepted as
true, the offence under Section 302 is not attracted, we are of the
considered view that there is no merit in it. It is true that the
injuries inflicted during the attack upon the deceased are not on
his vital parts. It is also true that PW1 in her evidence has stated
that the deceased was consuming anticoagulants at the relevant
time. But, there is nothing in the evidence of PW37, which would
show that the blood loss, which occurred in the body of the
deceased, was as a consequence of such drug consumption. On
the other hand, the evidence of PW37 unambiguously shows that it
is only because of the fact that two blood vessels including, the
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palmar arterial arch of the deceased having been cut, the victim
has suffered blood loss resulting in his death. At the sake of
repetition, we may say that PW37 has categorically opined that
injury Nos. 3 & 11 are sufficient enough to cause death in the
ordinary course of nature. If so, from the manner in which the
crime was perpetrated by using deadly weapons such as swords
and knife, it can without any doubt be stated that the accused
have indeed intended to inflict the particular injuries, which are
sufficient to cause death in the ordinary course of nature. Hence,
in the light of the facts and circumstances, as discussed afore, it
can be stated without any doubt that the present case will
squarely fall under Clause 3 of Section 300 IPC. (See Virsa Singh
v. State of Punjab (AIR 1958 SC 465) and Anbazhagan v.
State (2023 SCC OnLine SC 857).
46. The upshot of the afore discussions is that the
prosecution has convincingly proved that the appellants/accused
Nos. 1 to 5 and 8 have committed the offences punishable under
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2025:KER:28485
Sections 143,147,323,324,326,307,450,302 read with Section 149
IPC and accused Nos. 1 to 5 have committed the offence
punishable under Section 148 of IPC. But, it has failed to prove
that accused Nos. 1 to 3 & 5 have committed the offence
punishable under Section 120(B) of IPC. This, in turn, means that,
the appeals filed by accused Nos. 4 & 8 are liable to be dismissed
and the appeals filed by accused Nos. 1 to 3 & 5 are liable to be
allowed in part, thereby setting aside the conviction and sentence
imposed upon them under Section 120(B) of IPC and confirming
the conviction and sentence under other offences.
In the result:
i) Criminal Appeal Nos.887/2021 and 237/2023 are dismissed.
ii) Criminal Appeal Nos. 986/2021, 570/2021, 511/2021 and
479/2021 are allowed in part as follows:
1.The conviction and sentence imposed by the trial court upon
appellants/accused Nos. 1 to 3 & 5 under Section 120(B)
read with Section 302 IPC is set aside.
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2. The conviction and sentence imposed by the trial court on the
appellants/accused Nos. 1 to 3 & 5 under the other sections
are upheld.
Sd/-
RAJA VIJAYARAGHAVAN V
Judge
Sd/-
P.V.BALAKRISHNAN
dpk
Judge
