Kerala High Court
State Of Kerala vs Rishikesh on 8 April, 2025
Author: P.B.Suresh Kumar
Bench: P.B.Suresh Kumar
2025:KER:30323
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
&
THE HONOURABLE MR.JUSTICE JOBIN SEBASTIAN
TUESDAY, THE 8TH DAY OF APRIL 2025 / 18TH CHAITHRA, 1947
CRL.A NO. 355 OF 2020
AGAINST THE JUDGMENT DATED 10.04.2017 IN SC NO.604 OF
2015 OF ADDITIONAL DISTRICT COURT-III, THRISSUR
APPELLANT/COMPLAINANT:
STATE OF KERALA,
REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF
KERALA.
BY ADV.SRI.S.U.NAZAR, SR.PUBLIC PROSECUTOR
RESPONDENTS/ACCUSED:
1 RISHIKESH,
S/O SURESH, MAROTTIKKAL HOUSE, THANNYAM VILLAGE,
PERINGOTTUKARA DESAM.
2 NIJIN @ KUNJAPPU,
S/O. UDAYAN, KOOTTLA HOUSE, PADIYAM VILLAGE,
MUTTICHUR DESOM.
3 PRASANTH @ KOCHU,
S/O. PRABHAKARAN, KOCHATH HOUSE, KARAMUKKU
VILLAGE, THANPADAM, THEKKEKKARA DESAM.
4 RASANTH,
24/15, S/O. RAVI, PLAKKIL HOUSE, POOKOD VILLAGE,
KOTTAPPADI, PILLKAD DESOM.
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5 BRASHNEV,
S/O. PEETHAMBARAN, VALAPARAMBIL HOUSE, THANNYAM
VILLAGE, PERINGOTTUKARA, KARAVAMKULAM DESOM.
6 SIVADAS @ SIVADASAN @ SIVAN,
S/O. SUBRAMANADAS, THARAYIL HOUSE, THANNYAM
VILLAGE, PERINGOTTUKARA MOOTHEDATHARA DESOM.
7 RAGESH @ MANNADI,
S/O. RAMACHANDRAN, MAMBULLY HOUSE PADIYAM,
PADIYAM VILLAGE, MUTTICHOOR DESOM.
8 BAIJU,
S/O. SUNNY, KURUTHUKULANGARA KOOLA HOUSE,
CHAZHOOR VILLAGE, CHAZHOOR S.N. ROAD DESOM.
9 SANANDH,
S/O. PRADEEP, KARAYIL HOUSE, THANNYAM VILLAGE,
PERINGOTTUKARA SHIPAYIMUKKU DESOM.
10 SARASAN,
S/O. BALAN, VIYYATH HOUSE, KATTOOR VILLAGE,
KARANCHIRA, MANAYAM DESOM.
BY ADVS.
SRI.RAFIQ P.M.
SRI.S.RAJEEV
SRI.P.S.SREEDHARAN PILLAI
SRI.T.K.SANDEEP
SRI.ARJUN SREEDHAR
SRI.ARUN KRISHNA DHAN
SRI.ALEX ABRAHAM
SRI.P.VIJAYA BHANU (SR.)(K/421/1984)
SRI.M.REVIKRISHNAN(K/1268/2004)
SRI.AJEESH K.SASI(K/166/2006)
SMT.SRUTHY N. BHAT(K/000579/2017)
SRI.RAHUL SUNIL(K/000608/2017)
SMT.SRUTHY K.K(K/117/2015)
SRI.SOHAIL AHAMMED HARRIS P.P.(K/1395/2020)
SMT.NANDITHA S.(K/000498/2024)
SRI.AARON ZACHARIAS BENNY(K/001533/2023)
SRI.V.VINAY(K/355/2009)
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SRI.M.S.ANEER(K/644/2013)
SRI.SARATH K.P.(K/001467/2021)
SRI.ANILKUMAR C.R.(K/001190/2020)
SRI.K.S.KIRAN KRISHNAN(K/3514/2022)
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
10.03.2025, ALONG WITH CRA(V).631/2017, THE COURT ON
27.03.2025 DELIVERED THE FOLLOWING JUDGMENT OF
CONVICTION: THE COURT ON 08.04.2025 PASSED THE FOLLOWING
JUDGMENT ON SENTENCE:
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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 JOBIN SEBASTIAN
TUESDAY, THE 8TH DAY OF APRIL 2025 / 18TH CHAITHRA, 1947
CRA(V) NO. 631 OF 2017
AGAINST THE JUDGMENT DATED 10.04.2017 IN SC NO.604 OF
2015 OF ADDITIONAL DISTRICT COURT-III, THRISSUR
APPELLANT/WIFE OF THE VICTIM:
VARSHA DEEPAK,
AGED 34 YEARS,W/O LATE DEEPAK, POTTEKKATTU
HOUSE,PERINGOTTUKARA,THRISSUR DISTRICT.
BY ADV SRI.NIREESH MATHEW
RESPONDENTS/ACCUSED & STATE:
1 RISHIKESH
AGED 26 YEARS,S/O.SURESH,MAROTTICKAL
HOUSE,PERINGOTTUKARA,THRISSUR DISTRICT,PIN-
680001.
2 NIJIN @ KUNJAPPU
AGED 21 YEARS,S/O UDAYAN,KOOTTLA HOUSE,
MUTTICHUR DESOM,PADIYAM VILLAGE,THRISSUR
DISTRICT,PIN-680001.
3 PRASANTH @ KOCHU
AGED 27 YEARS,S/O.PRABHAKARAN,KOCHATH
HOUSE,THEKKEKARA DESOM,KARAMUKKU
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VILLAGE,THRISSUR DISTRICT,PIN-680001.
4 RASANTH
AGED 25 YEARS,S/O.RAVI,PLAKKIL
HOUSE,KOTTAPPADI,POOKOD VILLAGE,THRISSUR
DISTRICT,PIN-680001.
5 BRASHNEV
AGED 25 YEARS,S/O.PEETHAMBARAN,VALAPARAMBIL
HOUSE,PERINGOTTUKARA KARAVAMKULAM
DESOM,THANNIYAM VILLAGE,THRISSUR DISTRICT,PIN-
680001.
6 SIVADAS @ SIVADASAN @ SIVAN
AGED 45 YEARS,S/O.SUBRAMANADAS,THARAYIL
HOUSE,PERINGOTTUKRA,MOOTHEDATHARA DESOM,THANNYAM
VILLAGE,THRISSUR DISTRICT,PIN-680001.
7 RAGESH @ MANNADI
AGED 38 YEARS,S/O.RAMACHANDRAN,MAMBULLY
HOUSE,MUTTICHOOR DESOM,PADIYAM VILLAGE,THRISSUR
DISTRICT,PIN-680001.
8 BAIJU
AGED 24 YEARS,S/O SUNNY,KURUTHUKULANGARA KOOLA
HOUSE,CHAZHOOR,S.N.ROAD,CHAZHOOR
VILLAGE,THRISSUR DISTRICT,PIN-680001.
9 SANANDH
AGED 27 YEARS,S/O.PRADEEP,KARAYIL
HOUSE,PERINGOTTUKARA,SHIPAYIMUKKU DESOM,THRISSUR
DISTRICT,PIN-680001.
10 SARASAN
AGED 46 YEARS,S/O.BALAN,VIYYATH
HOUSE,KARANCHIRA,MANAYAM DESOM,KATTOOR
VILLAGE,THRISSUR DISTRICT,PIN-680001.
11 STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR,HIGH COURT
OF KERALA,ERNAKULAM,PIN-682031.
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BY ADVS.
SRI.RAFIQ P.M.
SRI.T.K.SANDEEP
SRI.S.RAJEEV
SRI.ARJUN SREEDHAR
SRI.ARUN KRISHNA DHAN
SRI.P.VIJAYA BHANU (SR.)(K/421/1984)
SRI.M.REVIKRISHNAN(K/1268/2004)
SRI.AJEESH K.SASI(K/166/2006)
SMT.SRUTHY N. BHAT(K/000579/2017)
SRI.RAHUL SUNIL(K/000608/2017)
SMT.SRUTHY K.K(K/117/2015)
SRI.SOHAIL AHAMMED HARRIS P.P.(K/1395/2020)
SMT.NANDITHA S.(K/000498/2024)
SRI.AARON ZACHARIAS BENNY(K/001533/2023)
SRI.V.VINAY(K/355/2009)
SRI.M.S.ANEER(K/644/2013)
SRI.SARATH K.P.(K/001467/2021)
SRI.ANILKUMAR C.R.(K/001190/2020)
SRI.K.S.KIRAN KRISHNAN(K/3514/2022)
SMT.DIPA V.(K/003785/2024)
THIS CRL.A BY DEFACTO COMPLAINANT/VICTIM HAVING BEEN
FINALLY HEARD ON 10.03.2025, ALONG WITH CRL.A.355/2020,
THE COURT ON 27.03.2025 DELIVERED THE FOLLOWING
JUDGMENT OF CONVICTION: THE COURT ON 08.04.2025
PASSED THE FOLLOWING JUDGMENT ON SENTENCE:
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P.B.SURESH KUMAR & JOBIN SEBASTIAN, JJ.
-----------------------------------------------
Crl.Appeal No.355 of 2020
&
Crl.Appeal (V) No.631 of 2017
-----------------------------------------------
Dated this the 27th day of March, 2025.
JUDGMENT
P.B.Suresh Kumar, J.
These appeals arise from S.C.No.604 of 2015 on the
files of the Court of the Additional Sessions Judge-III, Thrissur.
There were 10 accused in the case and the Court of Session
acquitted all. Crl.Appeal.No.355 of 2020 is preferred by the
State and Crl.Appeal (V) No.631 of 2017 is preferred by one of
the victims, challenging the acquittal of the accused.
2. Deepak, who succumbed to the injuries
sustained in an occurrence that took place on 24.03.2015 was
an office bearer of the political party, Janatha Dal United (JDU).
He was running a ration shop at a place called Pazhuvil Centre.
At about 8.30 p.m. on the relevant day, while Deepak was
standing in front of the ration shop, four persons armed with
deadly weapons appeared unexpectedly to that place and two
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among them attacked Deepak with the weapons carried by
them. Although a few persons standing on the opposite side of
the road rushed to the said spot and attempted to prevent
further attack on Deepak, one of the assailants created a
scene of terror and others attacked even the said persons and
then fled from that place in a Maruti Omni Van. Even though
Deepak and others viz, Sajeev, Stalin and Sunil who suffered
injuries were taken to Elite Mission Hospital, Koorkenchery,
Deepak died on the same day itself.
3. A statement was recorded by the Sub-Inspector
of Police, Cherpu from Sajeev at 10.30 p.m. on the same day
while he was undergoing treatment in the hospital and a case
was registered at 11.30 p.m. on the basis of the information
furnished by Sajeev under Sections 324, 307 and 302 read with
Section 34 of the Indian Penal Code (IPC) and under Section 27
of the Arms Act. The case was in fact against four recognizable
persons. The investigation in the case revealed that a few
activists of the political party, Socialist Janatha Dal (SJD)
attempted to murder the sixth accused namely, Sivadas on an
earlier occasion and the sixth accused believed that Deepak
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was behind the attempt made on his life. It was also revealed
that on account of the said reason, accused 1 to 10 hatched a
conspiracy to commit the murder of Deepak, and it is in
pursuance of that conspiracy, accused 1 to 5 came to the
scene on the relevant day in a Maruti Omni Van bearing
registration No.KL-08-N-7252 and accused 1 to 4 among them
attacked Deepak and others, while fifth accused was remaining
in the van and thereafter fled from the scene in the same van.
The investigation also revealed that among accused 1 to 4, the
second accused stabbed Deepak, with the knife carried by him,
on the right side of his neck and also on his left hand and the
third accused hacked Deepak with the sword carried by him,
on his left hand. The investigation further revealed that three
persons namely, Sajeev, Stalin and Sunil were then standing
near the scene and it was they who attempted to prevent the
attack on Deepak. The investigation further revealed that the
second accused is the person who attacked Sajeev also by
stabbing him on his back and the fourth accused is the person
who hacked Stalin with the sword carried by him. The final
report was accordingly filed against the accused alleging
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commission of offences punishable under Sections 120B, 109,
201, 324, 326, 307 and 302 read with Section 34 IPC and
Section 27 of the Arms Act. It is alleged in the final report that
the Maruti Omni Van in which accused 1 to 5 came to the
scene of occurrence was one that was purchased by the sixth
accused with the help of the seventh accused and the accused
abandoned the said Van after the occurrence and proceeded
further in a Santro Car bearing registration No.No.KL-14-G-
4060. The allegation against accused 8 to 10 in the final report
is that they collected from accused 1, 3 and 4 the swords used
by them while they were switching vehicles near Kottangode
Bridge and entrusted the same to the tenth accused. It was
also alleged in the final report that the tenth accused, in turn,
concealed the same in a river.
4. On the accused being committed to trial, the
Court of Session framed separate charges against them.
Charges were framed against accused 1 and 5 under Sections
120B and 302 read with Section 34 IPC and also under Section
27 of the Arms Act. Charges were framed against accused 2 to
4 under Sections 120B, 324, 326, 307 and 302 IPC and also
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under Section 27 of the Arms Act. Charges were framed
against the sixth accused under Sections 120B, 109, and 302
read with Section 34 IPC. Charges were framed against the
seventh accused under Sections 120B and 302 read with
Section 34 IPC. Charges were framed against accused 8 to 10
under Sections 120B, 302 read with Section 34 IPC and 201
IPC. The accused denied the charges. The prosecution
thereupon examined 77 witnesses as PWs 1 to 77 and proved
through them 161 documents as Exts.P1 to P161. One of the
documents relied on by the prosecution was the report of the
test identification parades conducted as part of the
investigation and the same was marked in the proceedings as
Ext.X1. Two statements of the witnesses recorded under
Section 164 of the Code of Criminal Procedure (the Code) were
marked in the proceedings as Exts.C1 and C2. MOs 1 to 11 are
the material objects in the case. On the closure of the evidence
of the prosecution, when the accused were questioned under
Section 313 of the Code, they denied the incriminating
circumstances brought out in the evidence of the prosecution
against them and pleaded that they are innocent. In the joint
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statement filed by the accused at that stage, the stand taken
by them was that Deepak was murdered by persons who had
previous enmity to him. As the Court of Session did not find the
case to be one fit for acquittal under Section 232 of the Code,
the accused were called upon to enter on their defence. Three
witnesses were examined by the accused at that stage as DWs
1 to 3. Exts.D1 to D35 were the documents proved by the
defence through the witnesses. Thereupon, on a consideration
of the evidence on record, the Court of Session found the
accused not guilty of the charges and acquitted them. The
State and the wife of Deepak are deeply aggrieved by the
decision of the Court of Session and hence these appeals.
5. Heard Sri.S.U.Nazer, the learned Public
Prosecutor and Adv.Athul Poulose for the appellant in the
victim appeal. Senior Counsel Sri.P.Vijayabhanu addressed
arguments on behalf of accused 1, 2 and 6, Adv.S.Rajeev
addressed arguments on behalf of accused 5, 7 and 8 and
Adv.Arjun Sreedhar addressed arguments on behalf of accused
3, 4, 9 and 10.
6. The essence of the elaborate arguments made
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by the learned Public Prosecutor as also the learned counsel for
the appellant in the victim appeal is that there is gross
perversity in the appreciation of evidence, and the findings
rendered on the various factual issues involved in the case are
vitiated by patent illegality. Per contra, the learned counsel for
the accused contended that inasmuch as the impugned
judgment cannot be said to be one vitiated on account of
misreading or omission to consider the material evidence and
also inasmuch as it cannot be contended that the view taken
by the Court of Session on the issues involved are not possible
views or at least plausible views, no interference in the
impugned judgment is called for in the appeals. They relied on
the decisions of the Apex Court in Babu Sahebagouda
Rudragoundar v. State of Karnataka, 2024 KHC 6222, Ballu @
Balram @ Balmukund v. State of Madhya Pradesh, 2024 KHC
6174, Bhupatbhai Bachubhai Chavda v. State of Gujarat, 2024
KHC 6206, Ramesh v. State of Karnataka, 2024 KHC 8377,
Zwinglee Ariel v. State of M.P., 1954 KHC 403, Thakore
Umedsing Nathusing v. State of Gujarat, 2024 KHC 6133,
Mallappa v. State of Karnataka, 2024 KHC 6072, in support of
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his argument.
7. The points that fall for consideration are (i)
whether the impugned decision acquitting the accused in the
case is sustainable in law; (ii) if not, the offences, if any,
committed by the accused or any of them and the sentences
to be passed against the accused who are found guilty.
8. Points (i) & (ii): The prosecution attempted to
prove the occurrence through the oral evidence of Sajeev and
Stalin who sustained injuries in the occurrence. For the purpose
of corroborating their evidence, the prosecution relies on the
oral evidence of other witnesses, medical evidence, scientific
evidence, recovery evidence etc. As the impugned decision is
attacked on the ground that the findings rendered on the
factual issues are vitiated by patent illegality on account of
erroneous appreciation of evidence, the evidence let in by the
witnesses needs to be scrutinised meticulously.
9. The witness examined as PW1 in the case is
Sajeev. PW1 was the driver of a goods vehicle operating from
Pazhuvil Centre. The version of PW1 as regards the occurrence
was that on 24.03.2015 while he was engaged in conversation
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with Stalin and Sunil in front of the shop situated on the
opposite side of the ration shop of Deepak, PW1 saw four
persons proceeding to the ration shop at about 8.30 p.m., after
crossing the road from the east; that one among them was
then carrying a knife and others were carrying swords; that the
person who was carrying the knife suddenly ran towards
Deepak who was standing in front of his shop and stabbed on
his neck forcefully and that thereupon, even though the said
person stabbed Deepak again aiming at his chest, the stab fell
only on his left hand. PW1 identified the second accused as the
person who stabbed Deepak. According to PW1, he then
rushed towards Deepak to help him and when he did so, the
second accused turned towards him and stabbed him also
aiming at his neck and that the said stab fell on the back side
of his neck. It was the version of PW1 that he then moved back
a little and at that time, he saw another person hacking on the
left hand of Deepak with a sword. PW1 identified the third
accused as the person who hacked Deepak then. It was also
the version of PW1 that in the meanwhile, Stalin made an
attempt to save Deepak and another person then hacked
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Stalin also on his neck with the sword carried by him and the
said hack, when warded off by Stalin with his left hand, caused
a serious injury on his left hand. PW1 identified the fourth
accused as the person who hacked Stalin. It was also the
version of PW1 that one among the four persons then
brandished a sword carried by him uttering that if anyone
approaches Deepak, he would also be done away with. PW1
identified the first accused as the person who brandished the
sword. It was deposed by PW1 that the above four persons
thereupon, ran towards east and even though PW1 and Sunil
followed them, they got into a green coloured Maruti Omni Van
parked nearby and fled therefrom. It was deposed by PW1 that
they then rushed back to Deepak and took him to Elite Mission
Hospital, Thrissur in the car of Deepak. It was explained by
PW1 in his evidence that he entered into the back seat of the
car along with one Noushad, a staff of Deepak and held
Deepak on his lap; that Stalin sat in the front seat of the car
and Sunil drove the car to the hospital. PW1 affirmed that it
was he who gave Ext.P1 First Information Statement on the
basis of which the case was registered. It was clarified by PW1
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in his evidence that there were two street lights and lights from
the nearby shops at the relevant time. It was also deposed by
PW1 that test identification parades were conducted later, on
31.03.2015 and 01.04.2015 at Viyyur Jail and he identified the
second accused who stabbed Deepak and him, the third
accused who hacked Deepak, the fourth accused who hacked
Stalin, the first accused who brandished the sword and the fifth
accused who drove accused 1 to 4 away from the scene of
occurrence, each from among a group of about ten persons, in
more than one instance. PW1 identified MO1 as the sword
brandished by the first accused, MO2 as the sword used by the
third accused to hack Deepak and MO3 as the sword used by
the fourth accused to hack Stalin.
10. Even though it was admitted by PW1 in cross-
examination that it was he who furnished the history of assault
to the doctor who examined him and Deepak at the hospital,
he denied the suggestion made to him that he stated before
the doctor that he was attacked by four persons wearing
masks and clarified that two among the assailants had covered
their faces below the nose using towels at the relevant time.
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PW1 also denied the suggestion put to him that he was shown
the accused at the police station after their arrest. Similarly,
PW1 denied the suggestion put to him that he was shown
photographs of the accused before the test identification
parades. At the time of chief examination, the knife seized by
the police during investigation as the one used by the second
accused to stab Deepak was not before the Court. However,
the same was secured after the chief examination and PW1
identified MO4 as the said knife during re-examination.
11. The witness examined as PW2 was Stalin. As
regards the occurrence, PW2 gave evidence more or less on
similar lines as the evidence given by PW1. It was specifically
stated by PW2 that the person who stabbed Deepak was a
dark lean person. PW2 identified the second accused as the
said person and deposed that it was he who stabbed PW1 also.
PW2 also identified the third accused as the person who
hacked Deepak on his left hand. It was deposed by PW2 that
thereupon, one among the assailants hacked him also aiming
at his neck and the same fell on his left hand when warded off.
PW2 identified the fourth accused as the person who hacked
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him. PW2 also identified the first accused as the person who
brandished the sword to frighten them. It was clarified by PW2
also that there was light at the scene from two street lights as
also from the nearby shops. As deposed by PW1, PW2 also
deposed that they went to the hospital in the car of Deepak,
driven by Sunil and that PW2 was sitting in the front seat of the
car. It was deposed by PW2 that he was admitted and treated
in the hospital for three days. As in the case of PW1, PW2 also
deposed that he identified, correctly, the second accused who
stabbed Deepak and PW1, the third accused who hacked
Deepak, the fourth accused, who hacked him and the first
accused who brandished the sword, in the test identification
parades, each from among a group of about ten persons in
more than one instance. As in the case of PW1, PW2 also
identified MO4 as the knife used by the second accused to stab
Deepak and MO1 as the sword brandished by the first accused.
Similarly, PW2 identified MO2 as the sword used by the third
accused to hack Deepak and MO3 as the sword used by the
fourth accused to hack him. In cross-examination, PW2 also
denied the suggestion put to him that the assailants were
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wearing masks.
12. PW3 was not a witness who saw the
occurrence. According to PW3, at about 8.30 p.m., he and his
friend, Yadu Krishnan, arrived at the scene on a motorcycle
immediately after the occurrence while they were on their way
to a workshop after procuring few auto spare parts. What was
deposed by PW3 was that while he was about to reach Pazhuvil
Centre, he saw a Maruti Omni Van parked on the right side of
the road where it takes a turn and that the fifth accused with
whom he had previous acquaintance, was in the driver's seat
of the said van at the relevant time. It was his version that
when he proceeded crossing the parked van, he saw a
gathering in front of the shop of Deepak and when he stopped
the motorcycle there, he saw four persons proceeding hastily
towards the van, entering it and driving away towards Thrissur
direction. It was deposed by PW3 that even though two other
persons ran behind the said van, they returned after
sometime. It was also deposed by PW3 that he informed the
police the events that he witnessed, on 26.03.2015 itself. In
cross-examination, it was admitted by PW3 that he did not
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have any prior acquaintance with any of the accused except
the fifth accused. When it was put to PW3 in cross-examination
that he does not appear to have stated to the police that the
fifth accused was driving the Maruti Omni Van, PW3 clarified
that what was stated by him to the police was that the fifth
accused was seen in the driver's seat of the said vehicle. In
cross-examination, even though PW3 conceded that the
shortest route through which he could return to his house from
Thrissur is Alappad - Manakodi - Olari route, it was clarified by
him in re-examination that he went through Pazhuvil Centre as
the spare parts purchased by him had to be entrusted to a
workshop at Thriprayar which is close to Pazhuvil Centre.
13. PW4 is a person who had previous
acquaintance with Deepak. Like PW3, PW4 was also not a
person who witnessed the occurrence. The evidence of PW4,
however, was that on 24.03.2015, he along with his friend
Jishnu went in a motorcycle to a river near Kottangode Bridge
for baiting; that while they were proceeding towards south
after crossing the said bridge, they saw a Santro Car as also a
motorcycle parked on the eastern side of the road and that
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when they returned after baiting, they saw a green Maruti
Omni Van halted behind the said vehicles. It was deposed by
PW4 that five persons got out of the van, out of which the fifth
accused, with whom he had previous acquaintance for more
than three years, was seen getting out from the driver's seat of
the van with a PVC pipe and he handed over the same to the
eighth accused who was standing by the side of the van and
that thereupon, the fifth accused along with others who came
in the Maruti Omni Van got into the Santro car and drove away.
It was clarified by PW4 in his evidence that even the eighth
accused was a person with whom he had previous
acquaintance for more than three years. It was deposed by
PW4 that the eighth accused thereupon rode pillion on the
motorcycle with the PVC pipe and that it was the ninth accused
who rode away the motorcycle. According to PW4, it was at
about 9.00 p.m. that he saw the sequence of events aforesaid.
As in the case of PW3, PW4 also affirmed in his evidence that
he was questioned by the police on 26.03.2015 and he
narrated the sequence of events that he witnessed to the
police on that day. PW4 identified correctly the fifth, eighth as
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also the ninth accused in court. In cross-examination, PW4
clarified that he saw the sequence of events spoken by him not
only in the background of the street light available there, but
also in the background of the headlight of his motorcycle.
14. PW5 is a person who was running a shop at
Pazhuvil Centre dealing with Ayurvedic Medicines. The shop of
PW5 was located on the immediate south of the ration shop of
Deepak. According to PW5, at about 8.30 p.m. on the relevant
day, while he was preparing to close the shop, he heard a
sound and when he came out of the shop, he saw Deepak lying
on the lap of Noushad. It was also deposed by PW5 that at the
relevant time, a person was found standing there with a knife
and a few others were standing with swords in their hands and
all of them fled in a green Omni Van. PW5 also deposed that
PWs 1, 2 and Sunil were among those who took Deepak to the
hospital. Even though PW5 stated in his evidence that he had
earlier identified those persons who were standing in front of
the shop of Deepak with the weapons in their hands in the
police station, he was unable to identify them in court. In cross-
examination, when it was suggested to PW5 that the assailants
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of Deepak were wearing masks at the relevant time, he denied
that suggestion. In re-examination, it was clarified by PW5 also
that he saw the assailants in the background of the street light
as also the lights from the nearby shops.
15. PW6 is the person who was running the shop
on the opposite side of the ration shop of Deepak namely,
"Gujarat Fabrics" at Pazhuvil Centre in front of which PW1, PW2
and Sunil were chatting at the time when the assailants came
to the scene, as deposed by PWs 1 and 2. As in the case of
PWs 3 to 5, PW6 also did not see the occurrence. PW6,
however, affirmed that PWs 1, 2 and Sunil were standing in
front of his shop at the relevant time and that PW6 saw them
proceeding towards the shop of Deepak. What was seen by
PW6 as deposed by him was that a few persons were creating
a scene of terror by brandishing a sword and then rushed
towards Thrissur direction. It was also deposed by PW6 that he
noticed then that PWs 1 and 2 also sustained injuries, although
he pleaded that he does not know as to how they sustained
injuries.
16. PW7 is a witness examined by the prosecution
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to prove one of the criminal conspiracies alleged against the
accused. According to the prosecution, this conspiracy is one
that took place a few days prior to the occurrence. PW7 is a
person who was working in a shop at Coimbatore during the
relevant time. According to PW7, he came to his native place,
namely Pazhuvil West in March, 2015 and a few days prior to
the occurrence, while he was proceeding with his friend Nijith
to a club located at a place called Asaanmoola at about 5 p.m.,
he saw a gathering of about ten persons in front of the house
of the sixth accused and he overheard a statement made by
them that "ദ പക ന എതയ നപന ന പണയണ അത പപസ എനവ ണന ങ ല
ന ലവ ന യ ". PW7 deposed that he saw all the ten accused there
on that day. In cross-examination, when it was put to PW7 that
the conspiracy that he witnessed was one that took place on
06.03.2015, PW7 readily admitted the same. Even though PW7
admitted in cross-examination that he had prior acquaintance
with five of the accused and that he knew their names, when it
was put to PW7 that he does not appear to have stated to the
police in his first statement, the names of anyone other than
the sixth accused, he asserted that he stated to the police the
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names of the other accused also. Similarly, it was clarified by
PW7 in cross-examination that he saw the accused not exactly
in front of the house of the sixth accused and that he saw the
gathering in the road abutting the house of the sixth accused.
In cross-examination, when PW7 was asked as to whether he
over heard from the gathering the expression "ന! ലരത", he
admitted that he heard that expression.
17. PW9 is a witness examined by the prosecution
to prove the criminal conspiracy that allegedly took place in
the afternoon of the date of occurrence. The evidence of PW9
was that at about 1.30 p.m. on 24.03.2015, when he was
proceeding to the nearby junction through Saafali road, he saw
a gathering of about ten persons. According to PW9, he paid
attention to their conversation when he understood that they
were talking about Deepak who is known to him. It was
deposed by PW9 that the persons assembled there then were
talking about committing the murder of Deepak and accused 1,
5, 6 and 9 who were known to him were also among that
gathering. It was deposed by PW9 that he overheard them
saying "വ$ഷന പട! പ രവ) ള ന! ച കഞ പവ പഴ ൽ നസന$ല വ$ഷൻ
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!ടയനടയ നട ലകണ , ഋഷ നയ വ5 ണല ളകണ , ! ര8 !ഴഞ ല
ന പ ലതനനയ വടക വപ ണ അ നട പ>ജവ സ ന ലക , ടളസ സരസന
ഏലപ കണ ". When PW9 was asked as to whether the persons
other than the persons mentioned by him are present in court,
his answer was that he knows only four among them. In cross-
examination, it was clarified by PW9 that he noticed the
gathering in the compound of one Sarala Bose. When it was
suggested to PW9 in cross-examination that he does not
appear to have stated to the police that the persons who
gathered at the junction were discussing about committing the
murder of Deepak, his reply was that he remembered the
same having been said to the police.
18. PW10 is the person who was holding a Santro
Car bearing registration number KL-14-G-4060 involved in the
crime. PW10 deposed that he used to lease out the said car to
his friends, and that on 23.03.2015, he leased out the same to
the first accused for a period of one month after receiving a
sum of Rs.6,500/- towards advance rent. It was stated by PW10
that it was a dark blue car, which he later clarified that, it
would appear to be black during night. It was deposed that one
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Anwar Sajith was the registered owner of that car and he
bought the same from another person who was holding
possession of the same. PW16 is Anwar Sajith referred to by
PW10 in his evidence. He deposed that he had sold the Santro
car to one Shafi. PW17 is Shafi referred to by PW16 in his
evidence and he affirmed that he purchased the above Santro
car from PW16 as per Ext.P11 agreement and later sold the
same to one Ibrahim. PW18 is Ibrahim referred to by PW17 in
his evidence. He deposed that he purchased the said Santro
car for one Shafeek, the Manager of the firm where he was
working, from PW17 and the vehicle was thereafter being used
by Shafeek. PW19 is Shafeek referred to by PW17 in his
evidence. He deposed that it was he who sold the Santro Car
to PW10.
19. PW11 was the owner of the Maruti Omni Van
bearing registration number KL-8-N-7252 involved in the crime.
PW11 deposed that it was a green coloured vehicle and he sold
the same to the sixth accused about two weeks prior to the
occurrence through one Majesh. It was also deposed by PW11
that when the sixth accused came to purchase the Omni Van,
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accused 1, 5 and 7 were also with him. PW11 identified all the
four accused in court. PW14 is Majesh referred to by PW11 in
his evidence. He deposed that the seventh accused contacted
him over telephone and sought his assistance to purchase a
vehicle and it was he who arranged the Maruti Omni Van held
by PW11 to be sold to the sixth accused. PW14 also deposed
that accused 1, 5, 6 and 7 arrived together to pick up the
vehicle.
20. PW29 was the doctor who conducted the post-
mortem examination on the body of Deepak on 25.03.2015
and issued Ext.P25 post-mortem certificate. The ante-mortem
injuries noted by PW29 at the time of post-mortem
examination as deposed by him are the following:
1. Sutured incised wound 12cm long (surgically modified),
oblique, on front and right side of neck, lower front end 1.5 cm
outer to midline and 3.5cm above collar bone with a feeding
tube seen coiled and emerging out from the wound. A cotton
gauze soaked with blood was seen tightly packed underneath.
The sternocieidomastoid muscle seen obliquely cut and
separated underneath. The right internal jugular vein was seen
transected and a feeding tube seen inserted to its lower
segment and fixed in position with sutures. The right ventricle of
heart contained blood mixed with air. The wound had a depth of
1.5-3cm.
2. Abrasion 0.8x0.2cm, oblique, on front of right forearm, 0.8cm
below elbow.
3. Abrasion 1x0.6cm, on back of right wrist.
4. Multiple small abrasions over an area 1x0.8m, on back of right
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index finger 4.5cm above its tip.
5. Multiple small abrasions over an area 0.8x0.5cm, on back of
right middle finger 4cm above its tip.
6. Abrasion 0.3x0.2cm on back of right hand, just outer to
knuckle of little finger.
7. Multiple small abrasions over an area 2x1.5cm on front of
right knee and leg.
8. Multiple small abrasions over an area 5x1.5cm on top of right
2nd , 3rd and 4th toes just behind their nail beds.
9. Incised wound 7x1to3x3to5cm, vertical on outer aspect of left
arm, 10cm below tip of shoulder with tailing of 1cm at its upper
end. Underneath, deltoid and triceps muscles were seen cut. The
obliquely cut shaft of humerus (through and through) was seen
protruding through the wound.
10. Incised wound1.5x1x1.5cm oblique on front of left arm, 7cm
above elbow.
11. Abraded contusion 1x0.5x0.5cm oblique on front of left arm,
6cm above elbow.
12. Abrasion 0.8x0.3cm on knuckle of left middle finger.
13. Multiple small abrasions over an area 13x1-2.5cm, vertical
on front of left knee and leg.
14. Abrasion 0.5x0.3cm on top of left foot 6.5cm behind tip of 3 rd
toe.
It was opined by PW29 that the death of Deepak was due to
the injuries sustained on his neck and left arm namely, injuries
1, 9 and 10. It was clarified by PW29 that injuries 1, 9 and 10
are incised wounds and among them, injuries 1 and 9 are
sufficient in the ordinary course of nature to cause death.
PW29 also opined that all the three incised wounds referred to
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by him could be produced with MO4 knife. When PW29 was
asked whether it was possible to cause injury 10 using MOs 1
to 3, the answer was that injury 10 is possible, if contacted
forcibly with the tip of all these weapons. It was also added by
PW29 thereafter that the tip of MO4 could also produce an
injury in the nature of injury 10.
21. PW30 was a doctor attached to Elite Mission
Hospital, Koorkencherry during March, 2015. PW30 deposed
that at about 9.10 p.m. on 24.03.2015, he examined one
Deepak and issued Ext.P26 treatment-cum-wound certificate
and the history was reported to him as "Assault by unknown
persons. Pazhuvil Centre. When he was closing his ration shop
at 8.30 p.m. Assault by some sharp instrument." It was
clarified by PW30 in his evidence that the bystander of Deepak
was one Sajeev and it was he who reported the history of
assault. It was also deposed by PW30 that despite aggressive
efforts, the patient went into sudden bradycardia and cardiac
arrest and he was declared dead at 09.35 p.m.
22. PW31 was another doctor attached to Elite
Mission Hospital during the relevant time. PW31 deposed that
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at 9.20 p.m. on the same day, he examined PW2 and issued
Ext.P27 treatment-cum-wound certificate and the history of
PW2 was reported to him as "Assault by unknown persons
24.3.2015 ദ പ! നന വ$ഷന !ടയല ന ച ഏ!വദശ 9 ണ ര തയല ന ച ള
ന! ണ ആക ക!യ യരന". It was deposed by PW31 that on
examination, it was found that the patient sustained an incised
wound of 6 x 3 x 1 cms on the lateral aspect of left forearm
extending to dorsal part and the x-ray showed that he suffered
chip fracture in the right ulna. It was deposed by PW31 that
PW2 was admitted in the hospital on 24.03.2015 and he was
discharged only on 26.03.2015. PW31 opined in his evidence
that the injury sustained by PW2 could be caused as alleged. It
was deposed by PW31 that on the same day at 9.10 p.m., he
also examined one Sunil and issued Ext.P28 treatment-cum-
wound certificate. It was deposed by PW31 that Sunil was also
brought to the hospital with the history of assault by unknown
person at Pazhuvil and the history was reported to him as
"ഏ!വദശ 8.15 p.m. പ .ജ ദ പ! നന വ$ഷന !ടഅടചന! ണ ര കവ) ള പച $തലള
ഓ ല മഖ മട ധര ച 4 വപർ വ രന വഷ പ നന മന ശ ച ദ പ! ന പ$! ല ന
കത!യ , തടയ ന ശ ച സ ലന ന ട!യ തടയ ന ശ ച സജ ന പ$ത കത ന
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ശ ക!യ ന യ. പര കപറയ സ ലന യ സജ ന യ തള റ ദ പ! ന ന ട!യ
ന യ." It was deposed by PW31 that on the same day at 9.10
p.m. he examined PW1 also and issued Ext.P29 treatment-
cum-wound certificate. It was deposed by PW31 that PW1 was
also brought there with the history of assault and the same
was reported to him as "ദ പ! നന വ$ഷന !ടയല ച മഖ മട ധര ച 4 വപർ
വ രന ള ഉപവയ ഗച ആക ക!യ യരന".
23. PW52 was the doctor who collected the hair
and blood samples of accused 1 to 7. PW52 deposed that for
each of the said accused, he first collected the blood sample in
a vial and after enclosing the same in a cover, he sealed the
cover using wax; that thereafter, he collected the hair samples
in a plain paper and after placing the same in a cover, he
sealed that cover also using wax and that thereafter, both the
covers were put in a single cover and the same was tied and
sealed. It was deposed by PW52 that it was those sealed
packets that were handed over to the police personnel who
brought the accused to him for taking the samples.
24. PW53 was the Judicial Magistrate who
conducted the test identification parades. Among others, it was
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deposed by PW53 that he conducted the test identification
parades in respect of five suspects namely, accused 1 to 5 for
PWs 1 and 2 and submitted Ext.X1 report. PW53 narrated in
detail the manner in which the test identification parades were
conducted. Among others, it was deposed by PW53 that three
opportunities each were given to each of the witnesses to
identify the accused from among twelve non-suspects selected
from the inmates of the jail for every round of identification. It
was deposed by PW53 that PW2 identified accused 1 to 4 in all
the three attempts and PW1 identified the second accused in
two attempts and the fourth accused in all the three attempts.
As far as the fifth accused is concerned, even though PW2 did
not identify him, PW1 identified him in one attempt.
25. PW54 was the Sub-Inspector of Police who
recorded the First Information Statement, and he deposed the
said fact in his evidence. PW55 was the police officer who
conducted the investigation in Crime No.441 of 2013 of
Anthikadu police station and submitted the final report in that
case. It was deposed by him that the injured person in that
case is the sixth accused and that the accused in that case
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were activists of the organisation, SJD. In cross-examination, it
was clarified by PW55 that Deepak was not an accused in that
case.
26. PW57 was the Assistant Director of the Serology
Division of the Forensic Science Laboratory,
Thiruvananthapuram. It was PW57 who collected various
objects for forensic examination from the Maruti Omni Van
involved in the crime. PW57 affirmed the said fact in her
evidence. It was PW57 who later issued Ext.P64 report. Item 8
in Ext.P64 report is the blood sample of the deceased collected
in a cotton gauze at the time of post-mortem examination and
item 12 therein is MO4 knife. It is recited in Ext.P64 that the
blood stains in items 8 and 12 belonged to the same group 'O'.
PW74 was the Assistant Director of the DNA Division of the
Forensic Science Laboratory, Thiruvananthapuram, who issued
Ext.P123 report. Item 7 in Ext.P123 report is the hair samples
collected from the Maruti Omni Van involved in the crime and
item 31(a1) is the blood sample of the second accused. It was
deposed by PW74 among others, that DNA was extracted from
item Nos.7 and 31(a1) and on a comparison of the same, it was
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found that the DNA of the hairs in item No.7 are identical to the
DNA of the blood sample in item No.31(a1).
27. PW75 was the Assistant Director of the Biology
Division of the Forensic Science Laboratory, who issued
Ext.P124 report. Item 7 in Ext.P124 report is the hair samples
collected from the Maruti Omni Van involved in the case, item
31(a2) therein are the hair samples of the second accused and
item 34(a2) are the hair samples of the fourth accused. It was
deposed among others by PW75 that five out of twenty six
hairs in item 7 are human scalp hairs which are similar to
sample scalp hairs in item 31(a)2 and four out of the remaining
hairs in item 7 are human scalp hairs in item 34(a2).
28. PW71 was a Finger Print Expert attached to
Single Digit Finger Print Bureau, Thrissur during March, 2015. It
was deposed by PW71 that he examined the Maruti Omni van
involved in the crime on 25.03.2015 and lifted ten chance
prints from the said van and the Finger Print Expert namely,
K.S. Dineshan who accompanied him lifted nine other chance
fingerprints. It was deposed by PW71 that he thereupon
received specimen fingerprints of the accused from Cherpu
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Police Station. Ext.P97 is the report submitted by PW71 after
comparing the chance fingerprints lifted from the Maruti Omni
Van and the specimen finger prints received from Cherpu
Police Station. It was deposed by PW71 that the chance
fingerprint marked as C9 tallied with the specimen fingerprint
of the second accused marked as S1, the chance fingerprint
marked as C15 tallied with the specimen fingerprint of the
fourth accused marked as S2, the chance fingerprint marked
as C2 tallied with the specimen fingerprint of the fifth accused
marked as S3 and the chance fingerprint marked as C18 tallied
with specimen fingerprint of the seventh accused marked as
S4.
29. PW77 was the police officer who conducted
the investigation in the case. PW77 deposed, inter alia, that in
the course of investigation, on 25.03.2015, he found the Maruti
Omni Van involved in the case near Kottangode bridge in an
abandoned state and he caused the van to be examined by the
Finger Print and Scientific Experts. It was deposed by PW77
that he intercepted the Santro car in which accused 1 to 5
were travelling at Mannuthy on 27.03.2015 and arrested them
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and in the interrogation pursuant to their arrests, the second
accused disclosed to PW77 that he has kept a knife in his bag
and that he will hand over the same to him. It was deposed by
PW77 that thereupon, the second accused opened the dicky of
the car in which they were travelling and took out a knife from
a bag kept in it and handed over the same to him and it was
seized by him as per Ext.P19 mahazar. The knife handed over
to PW77 by the second accused was identified by PW77 as
MO4. PW77 deposed that during the interrogation of the eighth
accused after his arrest, the eighth accused disclosed to him
that he along with the ninth accused entrusted a PVC pipe to
the tenth accused and when the tenth accused was thereupon
arrested and questioned, the tenth accused disclosed to him
that he has concealed the PVC pipe entrusted to him by
accused 8 and 9 at a place called Karanchira Munayam, and
when the tenth accused was taken to that place, he took out a
PVC pipe containing three swords from a river adjacent to a
ghat and the same was seized by him as per Ext.P20 mahazar.
PW77 identified the swords seized by him as MOs 1 to 3 and
PVC pipe as MO5. Similarly, PW77 identified the knife seized by
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him based on the information allegedly furnished by the
second accused as MO4.
30. In cross-examination, PW77 denied the
suggestion made to him that he was informed immediately on
reaching the scene after the occurrence that the assailants
were wearing masks. PW77 clarified in cross-examination that
PW2 had stated to him that the person who stabbed the
deceased was a dark lean person. Similarly, it was clarified by
PW77 in cross-examination that PW4 has not stated the names
of accused 1 and 8 in the statement given by him on
26.03.2015. Similarly, it was clarified by PW77 in cross-
examination that PW5 had stated to him that he saw the
assailants leaving the scene in a green coloured Maruti Omni
Van. As regards the evidence tendered by PW7, it was clarified
by PW77 that what was stated by PW7 in his previous
statement was that he witnessed the gathering on the relevant
day in the road abutting the house of the sixth accused and
not in front of his house. It was also clarified by PW77 in cross-
examination that PW7 has not mentioned the name of anyone
other than the sixth accused in the statement given to him on
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26.03.2015. Similarly, PW77 clarified that PW9 had not stated
to him that he heard anyone speaking about committing the
murder of Deepak and what was stated to him by PW9 was
that he inferred from the conversation he overheard that they
were speaking about committing the murder of Deepak.
31. It is on an appreciation of the evidence
discussed in the preceding paragraphs that the Court of
Session came to the conclusion that the prosecution has failed
to establish the charges against the accused. There cannot be
any doubt that the appellate court has the power to review, re-
appreciate and reconsider the evidence upon which the order
of acquittal is founded and reverse such an order of acquittal in
appropriate cases. But, once the trial court acquits the
accused, the presumption of innocence in his favour is
strengthened and reinforced. As such, it is settled that the
appellate court may overrule or otherwise disturb the order of
acquittal only if the appellate court has substantial and
compelling reasons for doing so. It is also settled that if two
reasonable or at least plausible views can be reached on the
facts and evidence, one that leads to acquittal and the other
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that leads to conviction, the appellate court shall rule in favour
of the accused [See Dhanapal v. State, (2009) 10 SCC 401]. It
is also settled that the appellate court ought not interfere in
the orders of acquittal, unless there is gross perversity in the
appreciation of evidence, or patent illegalities. At the same
time, it has to be kept in mind that miscarriage of justice may
arise from the acquittal of guilty persons and it is obligatory,
therefore, for the appellate court to ensure that such
miscarriage does not occur. Non-consideration of material facts
and consideration of irrelevant facts are factors which would
invite an interference with an order of acquittal. Let us now
consider the point formulated for decision, keeping in mind the
said principles.
32. As noticed, the Court of Session framed
separate charges for each of the accused and the charges
include charges under Sections 120B, 109, 324, 326, 307, 201
and 302 read with 34 IPC. Even though charge was framed
against some of the accused under Section 27 of the Arms Act
as well, the learned Public Prosecutor and the learned counsel
for the appellant in the victim appeal did not pursue the
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appeals insofar as it relates to the acquittal of the accused on
the said charge. As such, it is suffice to examine the
correctness of the impugned decision insofar as it relates to
the charges under Sections 120B, 109, 324, 326, 307, 201 and
302 read with 34 IPC. Having regard to the peculiar facts of
this case, we consider it appropriate to examine the points,
charge-wise.
33. Charge under Section 120B IPC: The essence of
the offence of criminal conspiracy lies in forming a scheme or
agreement between parties. The offence of criminal conspiracy
being one committed ordinarily in secrecy, it may be difficult to
adduce direct evidence for the same. The law does not enjoin a
duty on the prosecution, therefore, to lead evidence of such
character, which is impossible to be led, or at any rate,
extremely difficult to be led. The duty of the prosecution is only
to lead such evidence which it is capable of leading. It is not
necessary to prove an express agreement. On the other hand,
the evidence as to transmission of thoughts sharing the
unlawful design is sufficient. In other words, when the
circumstances in a given case are taken together, it must be
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possible for the court to infer the meeting of minds between
the conspirators for the intended object of committing the
offence. It is, however, essential that the offence of conspiracy
requires some kind of physical manifestation of agreement. Let
us now consider the facts of this case keeping in mind these
principles.
34. As noted, all the accused are charged under
Section 120B IPC and the charge against them is that on
several occasions, at several places and in particular, at 1.30
p.m. on 24.03.2015, the accused met in the compound of
Sarala Bose and mutually agreed to commit the murder of
Deepak. Going by the case of the prosecution, accused 1 to 4
are the persons who caused the death of Deepak, the fifth
accused is the person who drove the van in which accused 1 to
4 came to the scene of occurrence to commit the murder of
Deepak and took accused 1 to 4 away from the scene after
committing the murder in the same van, the sixth accused is
the person who instigated accused 1 to 5 to commit the said
offence, the seventh accused is the person who helped the
sixth accused to purchase the Maruti Omni Van used by
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accused 1 to 5 to come to the scene of occurrence, accused 8
and 9 are the persons who collected the swords from accused
1 to 5 used by them after the commission of the crime and the
tenth accused is the person who, in turn, collected the swords
from accused 8 and 9 and concealed the same. If one assumes
that the prosecution established beyond reasonable doubt, the
roles attributed to each of the accused, no doubt, it would
certainly appear that the accused are known to each other and
that there was some sort of understanding between them. But,
the question is whether it is possible, from the roles attributed
to the accused, to infer that there was an agreement among all
of them to commit the murder of Deepak. In order to infer that
there was an agreement among all the accused to commit the
murder of Deepak, there should be some motive, common to
all to commit his murder. True, if the assailants are hired
individuals, there need not be any personal motive to commit
the offence of murder. But, as far as other accused persons are
concerned, there certainly ought to be some motive. Of course,
it is alleged that the sixth accused maintained enmity towards
Deepak as the former believed that the latter was behind the
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attempt made on the life of the sixth accused in an earlier
occasion. Even though it is established in the case that there
was an attempt to commit the murder of the sixth accused in
an earlier occasion, the materials on record are not sufficient
to hold conclusively that Deepak was behind that attack,
especially when Deepak was not arrayed as an accused in that
case. It appears that it is for the purpose of overcoming this
difficulty that the prosecution examined PW7 and PW9 to prove
that there was an agreement among all the ten accused to
commit the murder of Deepak. Let us now see whether the
prosecution has succeeded in conclusively establishing the
existence of an agreement among all the ten accused to
commit the murder of Deepak, through the evidence of PWs 7
and 9.
35. Even though the specific case of PW7 in chief-
examination was that he saw all the accused together in front
of the house of the sixth accused two days prior to the date of
occurrence, in cross-examination, it was admitted by PW7 that
he witnessed the gathering on 06.03.2015 and not two days
prior to the date of occurrence. Similarly, even though PW7
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stated in chief-examination that he overheard someone saying
from the gathering that "ദ പക ന എതയ നപന ന പണയണ അത പപസ
എനവ ണന ങ ല ന ലവ ന യ ", it was clarified by him in cross-
examination that he also overheard someone saying from the
same gathering that "ന! ലരത". The admission made by PW7 in
his cross-examination that he witnessed the gathering on
06.03.2015 contrary to what was deposed by him in chief-
examination, creates some suspicion as to the genuineness of
the very case of the prosecution that all the accused gathered
in front of the house of the sixth accused two days prior to the
date of occurrence and that they agreed on the said day to
commit the murder of Deepak. Even assuming that the
accused gathered in front of the house of the sixth accused
two days prior to the date of occurrence as alleged by the
prosecution, it is doubtful as to whether there was any mutual
agreement among the accused on that day to commit the
murder of Deepak in the light of the evidence of PW7 that he
also overheard someone saying "ന! ലരത". That apart, even
though PW7 admitted in cross-examination that he had prior
acquaintance with five of the accused whom he found in the
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gathering on the relevant day and that he knew their names, it
has come out from the evidence of PW77, the investigating
officer that PW7 had not mentioned to him the names of
anyone other than the sixth accused in the statement given by
PW7 on 26.03.2015. Inasmuch as PW7 has not disclosed the
names of anyone in the gathering other than the sixth accused
in the statement given to PW77 on 26.03.2015, the evidence
tendered by PW7 that he knew five of the accused in the
gathering other than the sixth accused, also becomes doubtful.
There is yet another reason also which creates further doubt as
to the genuineness of the evidence tendered by PW7. The
version of PW7 as regards the place where he witnessed the
gathering was the place in front of the house of the sixth
accused, but it has come out in evidence that the stand taken
by PW7 in his previous statement recorded under Section 161
of the Code is that he witnessed the gathering in the road
leading to the house of the sixth accused. This may be a minor
discrepancy, but in the nature of the evidence let in by PW7 as
discussed above, the same cannot be ignored as a minor one,
especially when the evidence is re-appreciated in an appeal
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against an order of acquittal.
36. Coming to the evidence tendered by PW9,
even though it was stated by him in his evidence that he
witnessed a gathering in the compound of Sarala Bose at
about 1.30 p.m. on 24.03.2015 and accused 1, 5, 6 and 9 were
among the gathering, PW9 could not affirm in court that the
remaining six persons seen by him in the said gathering were
the persons who were before the court along with accused 1,
5, 6 and 9. That apart, it has come out from the evidence of
PW77 that PW9 did not mention in his previous statement
recorded under Section 161 of the Code that he heard anyone
speaking about committing the murder of Deepak and what
was stated by PW9 to PW77 was that he inferred from the
conversation he overheard that they were speaking about
committing the murder of Deepak. Again, it was clarified by
PW9 in his cross-examination that he witnessed the gathering
at about 20 to 25 feet away from the place where he was
standing. It is doubtful as to whether one can hear the
conversation of others from such a distance, especially when
such conversations are ordinarily held in secrecy. Criminal
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conspiracy to commit an offence is a serious crime, and it
carries the same punishment as the intended offence. There
should, therefore, be convincing evidence to hold a person
guilty of criminal conspiracy. The evidence tendered by PWs 7
and 9 does not inspire confidence of the Court. De hors the
evidence of the said witnesses, there is no satisfactory
evidence to connect accused 6 to 10 with the crime to hold
that they were also parties to the criminal conspiracy to
commit the murder of Deepak. We say so, as the only
remaining evidence as against the seventh accused is that he
was present with the sixth accused to purchase the Maruti
Omni Van from PW11. Likewise, the only remaining evidence as
against the tenth accused is that he collected from accused 8
and 9 MOs 1 to 3 swords and concealed the same. Of course,
PW4 deposed that he saw accused 8 and 9 while accused 1 to
5 were switching vehicles near Kottangode Bridge after the
occurrence. But it has come out from the evidence of PW77
that what was stated by PW4 to the police on 26.03.2015 is
only that he saw the fifth accused in the Maruti Omni Van and
that PW4 has not mentioned the name of the eighth accused in
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the said statement. In other words, the evidence tendered by
PW4 that he saw accused 8 and 9 near the Kottangode Bridge
on the relevant day cannot be taken as reliable. Of course,
there are some materials against the sixth accused to connect
him with the crime. But, as already noticed, he is charged
under Section 109 IPC for having instigated accused 1 to 5 to
commit the murder of Deepak. Even assuming that the sixth
accused instigated accused 1 to 5 to commit the murder of
Deepak, merely on account of the same, it cannot be held that
accused 1 to 10 hatched a criminal conspiracy to commit the
murder of Deepak. In the said circumstances, we do not find
any infirmity in the finding rendered by the Court of Session
that the prosecution has failed to establish beyond reasonable
doubt the charge against the accused under Section 120B of
IPC.
37. Charges under Section 302 and Section 302
read with Section 34 IPC: Accused 2 to 4 were charged under
Section 302 IPC and accused 1 and 5 to 10 were charged under
Section 302 read with Section 34 IPC. Going by the case of the
prosecution, the allegation against the sixth accused is only
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that he instigated accused 1 to 4 with the aid of other accused
to commit the murder of Deepak, the allegation against the
seventh accused is that he helped the sixth accused in
purchasing the Maruti Omni Van, the allegation against
accused 8 and 9 is that they collected the swords used by
accused 1 to 4 for commission of the crime from accused 1 to
5 and the allegation against the tenth accused is that he, in
turn, collected the swords from accused 8 and 9 and then
concealed the same. In the light of the allegations aforesaid,
we do not think that the Court of Session was even justified in
framing a charge against accused 6 to 10 for the offence
punishable under Section 302 read with Section 34 IPC. The
issue relating to sustainability of the charge under Section 302
read with Section 34 IPC, needs to be considered, therefore,
only in the context of accused 1 to 5.
38. The case of the prosecution as against
accused 1 to 5 is that accused 1 to 4 among them went to the
scene of occurrence on the relevant day at about 8.30 p.m. in
the Maruti Omni Van driven by the fifth accused and that the
second accused stabbed Deepak with the knife carried by him,
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on the right side of his neck and also on his left hand; the third
accused hacked Deepak on his left hand and that when PW1,
PW2 and Sunil attempted to prevent the attack on Deepak, the
second accused stabbed PW1 on his back and the fourth
accused hacked PW2 on his left hand. It is also the case of the
prosecution that the first accused created a scene of terror at
the relevant time by brandishing the sword carried by him. The
accused do not dispute the fact that PWs 1 and 2 sustained
injuries in the occurrence and to prove the same, the
prosecution examined PWs 1 and 2. Both PWs 1 and 2 gave
evidence consistent with the case of the prosecution as
regards the occurrence and the said witnesses identified
accused 1 to 4 as also the weapons used by them in Court.
Even though PWs 1 and 2 were cross-examined at length,
nothing was brought out to discredit their evidence.
Admittedly, a few discrepancies were present in the evidence
of the said witnesses, and the accused also brought on record
a few contradictions. But, the said discrepancies and
contradictions were not on the core aspect of the evidence
tendered by the accused as regards the occurrence and would
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not, therefore, be an impediment for this court in accepting the
evidence tendered by PWs 1 and 2. The fact that the witnesses
sustained injuries would show that they were present at the
place of occurrence and saw the same by themselves and
convincing evidence is, therefore, required to discredit injured
witnesses. It was held by the Apex Court in Brahm Swaroop v.
State of U.P., (2011) 6 SCC 288 that where a witness to the
occurrence has himself been injured in the occurrence, the
testimony of such a witness is generally considered to be very
reliable, as he is a witness that comes with an in-built
guarantee of his presence at the scene of the crime and is
unlikely to spare his actual assailants in order to falsely
implicate someone. In the light of the said principle, we do not
find any reason to reject the evidence tendered by PW1 and
PW2.
39. It is seen that despite the convincing evidence
of the ocular witnesses, namely PWs 1 and 2 as discussed
above and the other evidence let in by the prosecution to
corroborate the evidence tendered by the ocular witnesses, the
Court of Session refused to accept the evidence tendered by
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PW1 and PW2 holding that the assailants were wearing masks
at the time of occurrence and the evidence of the ocular
witnesses cannot, therefore, be believed. On a close scrutiny of
the evidence in this case, we find that the finding aforesaid of
the Court of Session is not supported by any evidence. We
shall elucidate the rationale behind the said conclusion.
40. As noted, the occurrence took place at about
8.30 p.m. and the injured persons namely PW1 and PW2 were
taken to the hospital in the car of Deepak by Sunil who was
also an injured person. Among them, Deepak was examined at
the hospital by PW30 at 9.10 p.m. Ext.P26 is the treatment-
cum-wound certificate issued in respect of Deepak by PW30.
The history of the case reported as recorded in Ext.P26 is
"Assault by unknown persons. Pazhuvil Centre. When he was
closing his ration shop at 8.30 p.m. Assault by some sharp
instrument". The injured persons were examined almost at the
same time by another doctor namely PW31. Ext.P27 is the
treatment-cum-wound certificate issued in respect of PW2 by
PW31. The history of the case reported as recorded in Ext.P27
is" Assault by unknown persons 24.03.2015 ദ പ! നന വ$ഷന !ടയല
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ന ച ഏ!വദശ 9 ണ ര തയല ന ച ള ന! ണ ആക ക!യ യരന". Ext.P28
is the treatment-cum-wound issued in respect of Sunil by
PW31. The history of the case reported as recorded in Ext.P28
is "ഏ!വദശ 8.15 p.m. P.G ദ പക നന വ$ഷന !ട അടച ന! ണ ര കവ) ള പച
$തലള ഓ ല മഖ മട ധര ച 4 വപർ വ രന വഷ പ നന മന ശ ന ച ദ പക ന
പ$!ല ന കത!യ തടയ ന ശ ച സ ലന ന ട!യ , തടയ ന ശ ച സജ ന പ$ത
കത!യ ന യ. പര ക പറയ സ ലന യ സജ ന യ തള റ ദ പക ന ന ട!യ
ന യ". Ext.P29 is the treatment-cum-wound issued in respect of
PW1 by PW31. The history of the case reported as recorded in
Ext.P29 is "ദ പ! നന വ$ഷന !ടയല ന ച മഖ മട ധര ച ന 4 വപർ വ രന ള
ഉപവയ ഗച ആക ക!യ യരന". As noted, in Exts.P28 treatment-cum-
wound certificate of Sunil and P29 treatment-cum-wound
certificate of PW1 there is a reference that the assailants were
wearing masks. It is based on the recitals in the said
certificates and based on the evidence that some newspapers
have reported on the following day that the assailants were
wearing masks, that the Court of Session came to such a
conclusion. It was also held by the Court of Session that the
registration of the First Information Report and its forwarding to
the jurisdictional Magistrate, were delayed to suppress the fact
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that the assailants were wearing masks.
41. Newspaper reports are only hearsay and
inadmissible in evidence. Therefore, in the absence of the
maker of the statement appearing in court and deposing as to
how he perceived the fact reported, newspaper reports cannot
be relied on for any purpose whatsoever [See Laxmi Raj Shetty
v. State of Tamil Nadu, 1988 KHC 651]. As such, we have no
doubt in our minds that the Court of Session acted erroneously
in placing reliance on the newspaper reports to reinforce the
finding rendered based on Exts.P28 and P29 treatment-cum-
wound certificates that the assailants were wearing masks at
the relevant time.
42. Similarly, the view taken by the Court of
Session that the registration of the First Information Report and
its forwarding to the jurisdictional Magistrate were delayed
deliberately for the purpose of suppressing the fact that the
assailants were wearing masks, is equally erroneous. As noted,
it has come out in evidence that the occurrence took place at
about 8.30 p.m. and that the injured persons were immediately
taken to the hospital. PW77, the investigating officer, deposed
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that he received information about the occurrence at about
8:45 p.m. and he immediately proceeded to the place of
occurrence from where he went to the hospital where the
injured persons were taken. In the meanwhile, PW1 was
examined at about 9:10 p.m. by PW31, the doctor. It was
clarified by PW77 in his cross-examination that he probably
reached the scene of occurrence by about 9.10 p.m. and that
he subsequently reached the hospital in about 20-25 minutes.
It has come out in the evidence of PW77 that PW54, the Sub-
Inspector of Police who recorded the First Information
Statement of PW1, also reached the hospital almost at the
same time. The First Information Statement of PW1 was
recorded at the hospital by PW54 at 10.30 p.m. The delay of
one hour in recording the First Information Statement cannot
be said to be fatal in the peculiar facts of this case as the
person from whom the First Information was recorded namely,
PW1 was a person who suffered injuries and his conditions had
to be stabilised before recording a statement from him. The
evidence revealed that after recording the First Information
Statement, PW54 went back to the police station and
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registered the First Information Report at 11.30 p.m. It is seen
observed by the Court of Session that PW77 should have
straight away gone to the police station on receipt of
information regarding the occurrence and registered the First
Information Report. Similarly, the view of the Court of Session
was that even PW54 could have registered the case before
recording the statement of PW1. The view is wholly
unsustainable. Having regard to the facts of the present case,
according to us, the course adopted by the police in recording
the First Information Statement from an injured eye witness
was perfectly in order and the said course was necessary to
protect the interests of both the prosecution as also the
accused. Similarly, it is not disputed that the First Information
Report was received in the office of the jurisdictional
Magistrate on the morning of the following day at 10 a.m. We
do not, therefore, find any unjustifiable delay in forwarding the
First Information Report to the jurisdictional Magistrate also. It
is seen that it was observed by the Court of Session that the
First Information Report in a case of this nature should have
been forwarded to the residence of the jurisdictional
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Magistrate on the night of the same day itself. This view is
equally erroneous and unacceptable. No doubt, the
requirement under Section 157 of the Code is that First
Information Reports shall be forwarded forthwith to Magistrates
and not to the court. The object of the provision is to keep the
Magistrate informed of the investigation so as to enable him to
control the investigation and if necessary to give appropriate
directions as well. No doubt, it is also one of the external
checks against ante-dating or ante-timing of First Information
Reports. But merely for the reason that a copy of the First
Information Report registered during the odd hours is not
forwarded to the residence of the Magistrate then and there,
but only forwarded to the court on the morning of the following
day, it cannot be said that there is non-compliance of Section
157 of the Code. It is all the more so since the delay in
compliance of the statutory provision is explainable. Of course,
if the day following the night is a holiday, having regard to the
scheme of the Code, the copies of the First Information Reports
need to be forwarded to the concerned Magistrates, and it is to
take care of such situations that the Statute provides that the
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copies of the First Information Reports need to be forwarded to
the concerned Magistrate and not to the Court. Inasmuch as it
is held that there was no delay in registering the First
Information Report and forwarding the same to the
jurisdictional Magistrate, the view taken by the Court of
Session on that basis that the police wanted to suppress the
fact that the assailants were wearing masks, is erroneous.
43. Let us now see whether there is any
justification at all, for the Court of Session to hold that the
assailants were wearing masks. First of all, it must be noted
that if the assailants were wearing masks, there is no reason
why the said fact was not reported to PW31, the same doctor
who examined PW2 and also to PW30, the doctor who
examined Deepak almost at the same time at which PW31
examined PW1 and Sunil. As noticed, the stand taken by PW30
in his evidence was that the history was reported to him by the
bystander, Sajeev whose name is recorded in Ext.P26. The
specific case of the prosecution is that the bystander who is
referred to in Ext.P26 treatment-cum-wound certificate issued
in respect of Deepak was none other than PW1 for, it was PW1
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who took Deepak to the hospital. The said fact is not disputed
by the accused. In fact, the same was suggested to PW1 during
cross-examination by the counsel for the accused and PW1
admitted the same. Similarly, PW1 also admitted that it was he
who reported the history to PW31, though the former asserted
that what is recorded in Ext.P29 is incorrect. The relevant
evidence of PW1 reads thus:
"വZ കവ$ ട രങൾ പ$ഞ ന! ടതത ത ങളവല ? അനത. ത ങനള
! ൽസ ച വZ കവ$ ട ത ങള ണ ! ര8ങൾ പ$ഞത? അനത. ത ങൾ
24.3.2015 ൽ പഴ ൽ 8.30 pm ന ദ പക നന വ$ഷൻ !ടയൽ ച
മഖ മട ധര ച ന 4 വപർ വ ർന ൾ ഉപവയ ഗച ആക ച എന
വZ കവ$ ട പ$ഞത യ വZ കർ വരഖനപടത ! ണന. അത നതറ ണ."
If as a matter of fact, PW1 was the person who reported the
history to the doctor who examined Deepak namely, PW30, it
can certainly be held that it was not PW1 who reported the
history to the doctor who examined him, namely, PW31. If that
be so, PW1 cannot be discredited based on the history
recorded in Ext.P29 treatment-cum-wound certificate. It is
common knowledge that when injured persons are taken to a
hospital, the history is recorded in a very casual manner for,
the priority of the doctor at that point of time would always be
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to treat the patient. No doubt, such statements cannot be
disregarded, but at the same time, the correctness of the same
always has to be examined in the light of the surrounding facts
[See B. Bhadriah v. State of A.P., 1995 Supp (1) SCC 262].
44. In this context, it is necessary to point out that
within about an hour after PW1 was taken to the hospital,
PW54 went to the hospital and recorded the First Information
Statement from PW1. Even though PW1 gave a complete
description of the sequence of events in Ext.P1 First
Information Statement, there is no whisper about masks
therein and the categoric assertion made by PW1 in Ext.P1 is
that he saw the assailants in the background of the street light
as also the lights from the nearby shops and that he can
identify the assailants. As already noticed, both PW1 and PW2
identified the assailants in the test identification parades more
than once, that too, from among others who have similar
features. If as a matter of fact, the assailants were wearing
masks, PWs 1 and 2 would not have been in a position to
identify the accused in the test identification parades. It has
come out in the evidence of PWs 1 and 2 that the faces of two
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among the four assailants were covered below their noses
when they reached the scene of occurrence. Even though PW1
had not stated so in the First Information Statement, he said so
in the chief-examination. In cross-examination also he clarified
the same when it was put to him that he was attacked by
persons in masks. Even if two among them had covered their
faces below their noses with towels, the towels must have
slipped down as it has come out in the evidence of PW5 that
they were not wearing masks at the time when he saw them.
The relevant portion of the deposition of PW5 reads thus:
"മഖ മട ധര ച മഖ !ണൻ യ ത അക !ള ണ സ ഭ തൽ
ഉണ യത എന പ$ഞ ൽ ശര യവല ? (Q) അല, ആര മഖ മട
ധര ച രന ല (A)"
It is relevant to note in this connection that even though PW5
had not identified the assailants of Deepak and others in court,
it has come out in evidence that PW5 identified accused 1 to 4
correctly when he was summoned to the police station to do
so. As such, on a totality of the facts and circumstances of the
case, we are of the view that the conduct of two among the
assailants in covering their faces below their noses when they
arrived at the scene has contributed to the casual statements
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recorded in Exts.P28 and P29 treatment-cum-wound
certificates and the same should not be allowed to decide the
fate of the criminal adjudication.
45. Let us now examine the question whether
there is sufficient corroboration for the evidence tendered by
PWs 1 and 2. The evidence tendered by PWs 1 and 2 is
consistent with Ext.P1 First Information Statement recorded
within an hour after PW1 was taken to the hospital and Ext. P1
First Information Statement, therefore, lends corroboration to
their ocular account. True, accused 1 to 4 are not persons with
whom PWs 1 and 2 had previous acquaintance. But, PW2
identified accused 1 to 4 correctly in all the three chances
given to him in the test identification parades, that too, from
among persons having similar features. Similarly, PW1 also
identified the fourth accused in all the three attempts. Of
course, PW1 identified the second accused only in two
attempts and he has not identified the third accused in any
attempt. That apart, PW1, who according to the prosecution,
chased accused 1 to 4 up to the van, identified the fifth
accused correctly once in the test identification parade.
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Nothing was brought out in the evidence by the accused to
show that PWs 1 and 2 had occasion to see the accused
persons before the test identification parades, except the
various suggestions made to them by the counsel for the
accused during cross-examination. The identification of
accused 1 to 5 by PWs 1 and 2 in the test identification
parades also, therefore, lends corroboration to their
identification of the accused in court.
46. That apart, the evidence tendered by PW3 that
when he reached Pazhuvil Centre at about 8.30 p.m. on the
relevant day, he saw a Maruti Omni Van parked on the right
side of the road and that the fifth accused with whom he had
previous acquaintance was then found in the drivers seat of
the said van and his evidence that when he proceeded further
crossing the parked van, he saw a gathering in front of the
shop of Deepak and when he stopped the motorcycle there, he
saw four persons proceeding hastily towards the van, entering
it and driving away towards Thrissur direction, also lends
corroboration to the evidence tendered by PWs 1 and 2. It is
necessary to mention in this regard that the statement of PW3
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was recorded by PW77, the investigating officer under Section
161 of the Code on 26.03.2015 itself, before the arrest of the
accused and his evidence aforesaid was consistent with his
previous statement recorded on 26.03.2015. The evidence
tendered by PW3 is not seen accepted by the Court of Session
since the assailants were found to be wearing masks.
Inasmuch as it is found that the finding rendered by the Court
of Session that the assailants were in masks is erroneous in
law, there is absolutely no impediment in placing reliance on
the evidence tendered by PW3. Similarly, the evidence
tendered by PW4 that he saw five persons getting out of the
Maruti Omni Van immediately after the occurrence near
Kottangode Bridge and that the fifth accused with whom he
had previous acquaintance for more than three years was in
the driver's seat of the van at the relevant time, also lends
corroboration to the oral evidence tendered by PWs 1 and 2.
Even though the Court of Session did not accept the entire
evidence let in by PW4, it was found that his evidence to the
extent referred to above can certainly be accepted.
47. The learned counsel for accused 5, 7 and 8
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contended that if as a matter of fact, PW3 had seen the fifth
accused in the driver's seat of the Maruti Omni Van when he
was reaching Pazhuvil Centre as claimed by him, the fact
would have certainly been reported by him to the police on the
night of the same day itself and not two days later namely,
26.03.2015 as the person who was murdered was a prominent
person in the locality. It was pointed out by the learned counsel
that the police had absolutely no clue even at the time of
holding the inquest on the following day as to who were the
assailants. According to the learned counsel, no reliance could
therefore be placed on the oral evidence tendered by PW3. We
do not find any merit in the above argument. Merely for the
reason that PW3 had not reported to the police on the night of
the same day namely, 24.03.2015 that he saw the fifth
accused in the driver's seat of the van, it cannot be said that
what was deposed by him in court was incorrect. PW3 might
have various reasons for not reporting the fact aforesaid to the
police on the same day itself. It is all the more so, since there is
a general reluctance in our society for people to volunteer to
become witnesses of occurrences of this nature as it is
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apprehended that they would be harassed at the instance of
the police and would also invite the wrath of accused.
Inasmuch as PW3 has categorically stated in his evidence that
the fifth accused is a person with whom he had previous
acquaintance for three years, there is absolutely no reason to
disbelieve the evidence of PW3 as regards the involvement of
the fifth accused in the crime.
48. That apart, the evidence tendered by PW5, the
person who was running a shop on the immediate south of the
ration shop of Deepak, that he heard a sound at about 8.30
p.m. on the relevant day and when he came out of the shop on
hearing the same, he saw Deepak lying on the lap of his staff
Noushad and a person was found standing there with a knife
and few others standing there with swords in their hands and
all of them fled immediately thereafter in a green Omni Van
after making a commotion, would also lend corroboration to
the evidence tendered by PW1 and PW2 as regards the
occurrence. Likewise, the evidence tendered by PW6, the
person who was running the textiles shop "Gujarat Fabrics" on
the opposite side of the ration shop of Deepak at Pazhuvil
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Centre, that he saw PW1, PW2 and Sunil chatting in front of his
shop at the relevant time rushing towards the ration shop of
Deepak; that he saw a few persons creating a terror and that
one among them was brandishing a sword there then, would
also lend corroboration to the evidence tendered by PWs 1 and
2.
49. As noted, PW71, the Finger Print Expert
attached to Single Digit Finger Print Bureau, Thrissur opined in
his evidence that some of the chance finger prints lifted from
the Maruti Omni Van tallied with the specimen fingerprints of
accused 2, 4 and 5. The evidence tendered by PW71 lends
corroboration not only to the evidence tendered by PWs 1 and
2, but also to the evidence tendered by PWs 3, 4 and 5. It is
seen that the Court of Session did not accept the evidence
tendered by PW71 on the ground that even though the
accused cannot insist that their specimen fingerprints should
be collected after obtaining orders from the jurisdictional
Magistrate, they can certainly insist sufficient proof to show
that the specimen fingerprints were collected from them and it
is those specimen fingerprints that were used for comparison
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with the chance fingerprints and that there is no proof
regarding those aspects in the case. It is seen that PW77 has
categorically stated in his evidence that he made
arrangements to obtain the specimen fingerprints of the
accused; that a police officer named, Saleesh took the
specimen fingerprints of the accused and it was the same that
were forwarded to the Finger Print Bureau for comparison with
the counter signature of PW77. The accused have no case that
their specimen fingerprints were not taken on their arrest nor
do they have a case that it is not those specimen fingerprints
that were compared with the chance fingerprints. No
suggestion was made to any of the witnesses on these
aspects. The stand taken by the accused during cross-
examination of PW71 was only as regards the correctness of
the comparison made and that the Court of session did not
accept the stand that the process of comparison was improper.
In the circumstances, according to us, the Court of Session
acted erroneously in rejecting the evidence tendered by PW71
on the ground aforesaid.
50. As noted, it was deposed by PW77 that he
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intercepted the Santro car in which accused 1 to 5 were
travelling at Mannuthy on 27.03.2015 and arrested them and
in the interrogation pursuant to their arrests, the second
accused disclosed to PW77 that he has kept a knife in his bag
and that he will hand over the same to him. It was deposed by
PW77 that thereupon, the second accused opened the dicky of
the car in which they were travelling and took out a knife from
a bag kept in it and handed over the same to him and it was
seized by him as per Ext.P19 mahazar. The knife handed over
to PW77 by the second accused was identified by PW77 as
MO4. The evidence tendered by PW10 that the Santro Car in
which accused 1 to 5 were travelling at the time of their arrest
is one that was leased out by him to the first accused
corroborates the evidence tendered by PW77 as regards the
arrest of accused 1 to 5. As noted, PW29, the doctor who
conducted the post-mortem examination opined that the fatal
injuries sustained by the deceased are injuries that could be
produced with MO4 knife and in Ext.P64 report, PW57 opined
that the blood group found on MO4 knife and the blood group
of Deepak are one and the same. In the light of the evidence
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tendered by PW29 and PW57, the evidence of PW77 as
discussed above would corroborate the oral evidence tendered
by PWs 1 and 2, more particularly that it was the second
accused who caused the fatal injury on the deceased.
51. True, other than the evidence tendered by PWs
1 and 2, there is no evidence in the case to prove that MO1 to
MO3 are the swords that were used by accused 1, 3 and 4 for
inflicting injuries to Deepak, Sunil and PWs 1 and 2. This aspect
has been highlighted by the Court of Session in the impugned
judgment. In the light of the overwhelming evidence as
discussed in the preceding paragraphs, even assuming that
the evidence tendered by PWs 1 and 2 in this regard cannot be
accepted, we do not think that the same is an impediment for
this Court to hold that accused 1 to 3 are the persons who
inflicted injuries on Deepak, Sunil and Pws 1 and 2.
52. As noted, in Ext.P123, it was reported by PW74
that some of the hairs found in the Maruti Omni Van involved in
the crime are that of the second accused. Similarly, in Ext.P124
report, it was reported by PW75 that five out of the hairs
collected from the Maruti Omni Van involved in the crime are
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human scalp hairs similar to the hairs of the second accused
and four out of the remaining hairs collected from the Maruti
Omni Van are human scalp hairs similar to the hairs of the
fourth accused. The evidence tendered by the said witnesses
in terms of Exts.P123 and 124 reports would also lend
corroboration not only to the evidence tendered by PWs 1 and
2. The Court of Session did not accept Exts.P123 and 124
reports on the ground that PW52 who collected the hair and
blood samples of the accused and handed over the same to
the investigating officer, did not enclose along with the
samples packed under his office seal, the specimen impression
of his office seal so as to enable the DNA Analyst to ensure
that the blood and hair samples collected from the accused
were the blood and hair samples received at the laboratory. As
noted, PW52 has categorically stated in his evidence that it
was he who collected the blood and hair samples of the
accused. It was categorically deposed by PW52 in his evidence
that for each of the said accused, he first collected the blood
sample in a vial and after enclosing the same in a cover, he
sealed the cover using wax; that thereafter, he collected the
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hair samples in a plain paper and after placing the same in a
cover, he sealed that cover also using wax and that thereafter,
both the covers were put in a single cover and the same was
tied and sealed. It was deposed by PW52 that it was those
sealed packets that were handed over to the police personnel
who brought the accused to him for taking the samples. There
is no requirement under law that the doctors who take hair and
blood samples from accused persons have to enclose the
specimen seal of their office along with the said samples, since
the doctors are not forwarding the samples directly to the
laboratory. Instead, they forward the samples only to the
investigating officer, who in turn produces the same before the
jurisdictional Magistrate. The jurisdictional Magistrate then
forwards the same to the Forensic Science Laboratory for
examination along with the forwarding note prepared by the
investigating officer. This multi-step process removes the need
for the doctors in enclosing the specimen seals of their office
along with the said samples. The learned counsel for accused
5, 7 and 8 pointed out that such a requirement is prevalent in
the Kerala Chemico-Legal Examination Rules, 1959 and that
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the Court of Session cannot, therefore, be found at fault with
for having rejected the forensic evidence on the said ground.
No doubt, Rule 27 of the Kerala Chemico-Legal Examination
Rules provides that when a medical officer forwards an article
to the chemical examiner for examination on receipt of a
requisition from a Magistrate or police officer, he shall address
at the same time a letter to the chemical examiner advising
him of its dispatch. Rule 27 also provides that this letter shall
contain an impression of the seal used in closing the bottles.
The said requirement, according to us, does not apply to the
case on hand and the same would apply only when a medical
officer forwards an article directly to the chemical examiner for
examination. Needless to say, the decision of the Court of
Session rejecting the evidence tendered by PW74 and PW75 as
regards Exts.P123 and 124 reports, is unsustainable in law.
53. Placing reliance on the decision of this Court in
Mohammed Iqbal @ Ikku v. State of Kerala, 2025 KHC OnLine
174, the learned Senior Counsel for accused 1, 2 and 6
contended that even though the Maruti Omni Van involved in
the crime has been seized by the police, the same was not
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produced before the court so as to enable the prosecution
witnesses to identify the same. According to the learned Senior
Counsel, the said omission is fatal to the case of the
prosecution, especially when the prosecution is connecting the
sixth accused with the crime through the conduct of the sixth
accused in purchasing the van. A close reading of the above
judgment would indicate that it was a case on circumstantial
evidence and the non-production and non-identification of the
vehicle involved in the crime in that case snapped the link in
the chain of circumstances. It was in that context it was held
that it was necessary for the prosecution to produce the
vehicle and to cause the same to be identified by the
witnesses. The said judgment may not have any application to
the present case as the witnesses have specifically mentioned
in their evidence, the registration particulars of the vehicle
[See Kashmiri Lal v. State of Haryana, (2013) 6 SCC 595].
54. The facts proved by the prosecution, as we
have found and referred to in the preceding paragraphs, would
certainly make out a case against accused 2 and 3 under
Section 302 IPC and a case against accused 1, 4 and 5 under
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Section 302 read with Section 34 IPC. Needless to say, the
prosecution has succeeded in establishing, beyond reasonable
doubt, the guilt of accused 2 and 3 under Section 302 and
accused 1, 4 and 5 under Section 302 read with Section 34 IPC.
55. Charges under Sections 324, 326 and 307 IPC:
Accused 2 to 4 are charged also under Sections 324, 326 and
307 IPC in the context of the injuries caused by them to PWs 1
and 2 as also Deepak. Inasmuch as accused 2 to 4 have been
found guilty for having committed the murder of Deepak, in
the light of Section 71 IPC, they cannot be convicted under
Sections 324, 326 and 307 IPC for having caused injuries to
Deepak. But, they can certainly be convicted for having caused
injuries to PWs 1 and 2. The allegation against the second
accused in this regard is that it was he who stabbed PW1. The
allegation against the fourth accused in this regard is that he
hacked PW2. It is seen that there are no allegations against the
third accused vis-a-vis PWs 1 and 2. Inasmuch as it is found
that the prosecution has succeeded in proving the occurrence,
the only question that arises, concerns the offences committed
by accused 2 and 4 against PWs 1 and 2. Ext.P29 treatment-
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cum-wound certificate would indicate that PW1 sustained an
incised wound on his back. Likewise, Ext.P27 wound certificate
would indicate that PW2 sustained an incised wound 6 x 3 x 1
cms on the lateral aspect of left forearm extending to dorsal
part. PW31 deposed that the x-ray revealed that PW2 suffered
chip fracture in the right ulna. PW1 gave evidence to the effect
that the second accused attempted to stab on his neck and it
was that stab which fell on his back. Likewise, PW2 also gave
evidence to the effect the fourth accused hacked him aiming at
his neck and the same fell on his left hand when warded off.
Inasmuch as the specific case of the prosecution is that PWs 1
and 2 suffered injuries when they attempted to prevent the
attack on Deepak, we are of the view that it would be
inappropriate to hold accused 2 and 4 guilty of the offence
punishable under Section 307 IPC especially when, going by
the case of the prosecution, the assailants would not have
intended to cause the death of anyone other than Deepak and
would not have intended to cause any bodily injuries to PWs 1
and 2 which are sufficient in the ordinary course of nature to
cause death. Having regard to the nature of the occurrence, it
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is not possible to infer conclusively that the accused caused
injuries to PWs 1 and 2 with the knowledge that they are likely
by such act to cause death. At the same time, inasmuch as it is
established that accused 2 and 4 caused injuries to PWs 1 and
2 with dangerous weapons and inasmuch as PW2 suffered a
fracture, we are of the view that the second accused is guilty
of the offence punishable under Section 324 IPC and the fourth
accused is guilty of the offence punishable under Section 326
IPC.
56. Charge under Section 109 IPC: The sixth
accused is charged under Section 109 IPC. The allegation
against the sixth accused in this regard is that he instigated
accused 1 to 4 to commit the murder of Deepak and that
Deepak was murdered as abetted by the sixth accused. The
scope of the word "instigation" has been explained by the Apex
Court in the context of an allegation that one has instigated
another to commit suicide, in Chitresh Kumar Chopra v. State
(NCT of Delhi), (2009) 16 SCC 605. Paragraphs 16 and 17 of the
said judgment read thus:
"16. Speaking for the three-Judge Bench in Ramesh Kumar v.
State of Chhattisgarh [Ramesh Kumar v. State of
Chhattisgarh, (2001) 9 SCC 618 : 2002 SCC (Cri) 1088] , R.C.
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Lahoti, J. (as His Lordship then was) said that instigation is to
goad, urge forward, provoke, incite or encourage to do "an
act". To satisfy the requirement of "instigation", though it is
not necessary that actual words must be used to that effect
or what constitutes "instigation" must necessarily and
specifically be suggestive of the consequence. Yet a
reasonable certainty to incite the consequence must be
capable of being spelt out. Where the accused had, by his
acts or omission or by a continued course of conduct, created
such circumstances that the deceased was left with no other
option except to commit suicide, in which case, an
"instigation" may have to be inferred. A word uttered in a fit
of anger or emotion without intending the consequences to
actually follow, cannot be said to be instigation.
17. Thus, to constitute "instigation", a person who instigates
another has to provoke, incite, urge or encourage the doing of
an act by the other by "goading" or "urging forward". The
dictionary meaning of the word "goad" is "a thing that
stimulates someone into action; provoke to action or reaction"
(see Concise Oxford English Dictionary); "to keep irritating or
annoying somebody until he reacts" (see Oxford Advanced
Learner's Dictionary, 7th Edn.)."
As evident from the extracted decision, in order to constitute
instigation, the person who instigates another has to provoke,
incite, urge or encourage the doing of an act by the other by
goading or urging forward. The only material on which reliance
has been placed by the prosecution before us to establish the
guilt of the sixth accused under Section 109 IPC is that the
crime was committed making use of the Maruti Omni Van
bearing registration No.KL-08-N-7252 which was purchased by
the sixth accused from PW11 two weeks prior to the date of
occurrence. No doubt, there is satisfactory evidence to show
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that the Maruti Omni Van referred to above was one purchased
by the sixth accused from PW11 about two weeks prior to the
date of occurrence. But, the same, according to us, is not
sufficient to infer, beyond reasonable doubt, that it was at the
instigation of the sixth accused that accused 1 to 5 committed
the crime. As noted, it has come out from the evidence of
PW11 that accused 1 and 5 were also present with the sixth
accused when the Maruti Omni Van involved in the crime was
picked up by the sixth accused from PW11. In other words, the
evidence tendered by the prosecution itself would show that
accused 1 and 5 are persons who are known to the sixth
accused prior to the occurrence. In other words, the possibility
of accused 1 and 5 using the van purchased by the sixth
accused with or without his consent and also without his
knowledge that the car is being used for committing a crime,
cannot be ruled out. At any rate, inasmuch as the Court of
Session chose to acquit the sixth accused on the charge under
Section 109 IPC, we are of the view that it is inappropriate to
interfere with the said decision in these appeals.
57. Charge under Section 201 IPC: Accused 8, 9
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and 10 are charged with the offence punishable under Section
201 IPC. In order to attract the offence punishable under
Section 201 IPC, it has to be established that the accused,
knowing or having reason to believe that an offence has been
committed, causes any evidence of the commission of that
offence to disappear, with the intention of screening the
offender from legal punishment, or with that intention gives
any information respecting the offence which he knows or
believes to be false. The allegation against accused 8 to 10 is
that with the knowledge that accused 1 to 4 have committed
the offences alleged against them, they caused disappearance
of the weapons used by accused 1 to 4 for commission of the
crimes. The only evidence to connect accused 8 and 9 with the
crime is the evidence tendered by PW4. Even though PW4
deposed in his evidence that he witnessed the fifth accused
handing over a PVC pipe to the eighth accused with whom he
had previous acquaintance for a period more than two years
near Kottangode Bridge and that the eighth accused thereupon
rode pillion on the motorcycle with the PVC pipe and that it
was the ninth accused who rode away the motorcycle, a doubt
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is cast as to the genuineness of the evidence tendered by PW4
in this regard. It has come out in the evidence of PW77 that
even though a statement of PW4 was recorded on 26.03.2015,
the latter had not implicated in that statement the name of the
eighth accused. If as a matter of fact, PW4 was a person who
was known to the eighth accused for more than two years as
stated by him in his evidence, there is no reason why he
omitted to mention the name of the eighth accused in the
statement given to the police on 26.03.2015 when he has
admittedly indicated the name of the fifth accused therein.
That apart, he has no case that the ninth accused is a person
with whom he had previous acquaintance. It has come out in
evidence that PW4 identified other accused in the course of
the investigation at the police station. But there is nothing on
record to indicate that PW4 identified the ninth accused during
investigation. In other words, no credence could be attributed
to the evidence tendered by PW4 as regards his evidence that
he saw the ninth accused, with whom he had no previous
acquaintance, on the night of the date of occurrence and that
it was the ninth accused who rode away with the eighth
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accused from the place near Kottangode Bridge. Coming to the
case of the tenth accused, except the fact that he concealed a
PVC pipe containing three swords, there is nothing to connect
him with the crime. In the circumstances, we are inclined to
hold that the prosecution failed to prove the charge under
Section 201 IPC.
58. In the light of the discussion aforesaid, we are
of the opinion that the impugned judgment acquitting all the
accused of the charges levelled against them, is vitiated by
non-consideration of material evidence and consideration of
irrelevant facts. In this context, it is necessary to state that
acquittal of guilty persons in serious crimes on technical or
flimsy grounds would erode the very foundation of the criminal
justice delivery system, which strives to balance individual
rights with the preservation of social order. Such outcomes not
only shake the faith of the public in the courts as guardians of
justice but also deprive society of the protection it seeks from
the courts. Such acquittals would also send a dangerous
misleading message, suggesting that those responsible for
grave offences can evade justice, thereby encouraging an
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environment of lawlessness. Needless to say, the acquittal of
accused 1 to 5 is liable to be interfered with.
In the light of the discussion aforesaid, the criminal
appeals are allowed in part. The acquittal of accused 1 to 5 is
set aside. Accused 1 to 5 are found guilty of the offence
punishable under Section 302 read with Section 34 IPC.
Among them, the second accused is also found guilty for the
offence punishable under Section 324 IPC and the fourth
accused is found guilty of the offence punishable under Section
326 IPC. Registry is directed to issue non-bailable warrants for
the immediate arrest and production of accused 1 to 5 before
the Court of Session. On such production, the court shall
commit them to prison with a direction to the Superintendent
of the prison to produce them before this Court at 10.15 a.m.
on 8.4.2025 for hearing on sentence.
List on 8.4.2025.
Sd/-
P.B.SURESH KUMAR, JUDGE.
Sd/-
JOBIN SEBASTIAN, JUDGE.
Ds/YKB/Mn
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&
-----------------------------------------------
Dated this the 8th day of April, 2025.
Sentencing
P.B.Suresh Kumar, J.
Pursuant to our judgment dated 27.03.2025, the
accused, except accused 1 and 3, who were found guilty of the
offences punishable under Section 302 IPC have been produced
before this court today, and we have heard them as also their
respective counsel who were present, on the sentence to be
passed against them. The fourth accused prayed for leniency in
the sentence on the ground that he is not involved in the case.
Accused 2 and 5 prayed for leniency in the sentence on the
ground that they are the sole bread winners of their respective
families consisting of their aged parents. That apart, accused 2
and 5 have pointed out that they are undergoing life
imprisonment pursuant to their conviction in different cases, and
prayed for the benefit provided for under Section 467(2) of the
Bharatiya Nagarik Suraksha Sanhita, 2023.
2. Having regard to the totality of the facts and
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circumstances of the case, we are of the view that a harsh
punishment is not called for.
3. As noted, accused 1 and 3 have not appeared. As
we propose to pass only the minimum punishment for the offence
punishable under Section 302 IPC, no prejudice is caused to
accused 1 and 3 in not hearing them on the question of sentence.
4. In the result, the following sentence is passed :
(i) Accused 1 to 5 are sentenced to undergo
imprisonment for life and to pay a fine of Rs.1,00,000/- each, and
in default of payment of fine to undergo rigorous imprisonment
for a period of one year for the offence punishable under Section
302 IPC.
(ii) The second accused is sentenced to undergo
rigorous imprisonment for a period of two years for the offence
punishable under Section 324 IPC.
(iii) The fourth accused is sentenced to undergo
rigorous imprisonment for a period of three years and to pay a
fine of Rs.10,000/- and in default of payment of fine to undergo
simple imprisonment for a period of three months for the offence
punishable under Section 326 IPC.
(iv) The substantive sentences imposed on accused 2
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and 4 shall run concurrently.
(v) Accused 2 and 5 are entitled to the benefit of
Section 467(2) of the Bharatiya Nagarik Suraksha Sanhita, 2023.
(vi) The fine amount, if realised, shall be paid to the
appellant in Crl.Appeal (V) No.631 of 2017, the wife of the
deceased Deepak.
(vii) In addition, the District Legal Services Authority,
Thrissur is also directed to take necessary steps to determine and
disburse compensation to the legal representatives of the
deceased Deepak, as provided under the Victim Compensation
Scheme. The Registry shall forward a copy of this judgment to the
Secretary, District Legal Services Authority, Thrissur, forthwith,
for necessary follow up action.
Sd/-
P.B.SURESH KUMAR, JUDGE.
Sd/-
JOBIN SEBASTIAN, JUDGE.
Ds/YKB/Mn
