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Kerala High Court
Nafeesa vs Suresh @ Sura on 11 December, 2025
1
Crl. Appeal No. 749 of 2006 & batch
2025:KER:95394
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE JOHNSON JOHN
THURSDAY, THE 11TH DAY OF DECEMBER 2025 / 20TH AGRAHAYANA, 1947
CRL.A NO. 749 OF 2006
JUDGMENT DATED 06.03.2006 IN SC NO.170 OF 2003 OF ADDITIONAL
DISTRICT AND SESSIONS COURT, FAST TRACK (ADHOC-I), KOZHIKODE
APPELLANTS/ACCUSED NO.1, 3, 5, 6, 11 & 12:
1 SURESH @ SURA, S/O. KANNAN,
NADAPURAM, KOZHIKODE.
2 BABU, PARADAN BABU, S/O.CHATHU
NADAPURAM, KOZHIKODE.
3 MUTHU @ RAJISH, S/O.KELAN,
NADAPURAM, KOZHIKODE.
4 VINAYAN, S/O. KUNHIKANNAN
NADAPURAM, KOZHIKODE.
5 SUNIL @ MATHAN SUNIL,
S/O.KUNHIKANNAN, NADAPURAM, KOZHIKODE.
6 SAJEEVAN, S/O. CHANDU,
NADAPURAM, KOZHIKODE.
BY ADVS.
SRI.GILBERT GEORGE CORREYA
SHRI.ABHIJITH M.A
SMT.AISWARYA M. PILLAI
SMT.THANUSHREE DAMODARAN
RESPONDENT/COMPLAINANT
STATE OF KERALA, REP. BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 05.12.2025,
ALONG WITH CRL.R.P. NO. 2153/2006, THE COURT ON 11.12.2025 DELIVERED
THE FOLLOWING:
2
Crl. Appeal No. 749 of 2006 & batch
2025:KER:95394
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE JOHNSON JOHN
THURSDAY, THE 11TH DAY OF DECEMBER 2025 / 20TH AGRAHAYANA, 1947
CRL.REV.PET NO. 2153 OF 2006
JUDGMENT DATED 06.03.2006 IN SC NO.170 OF 2003 OF ADDITIONAL
DISTRICT & SESSIONS COURT, FAST TRACK (ADHOC-I), KOZHIKODE
REVISION PETITIONER/DE FACTO COMPLAINANT:
NAFEESA, AGED 38 YEARS, W/O.MUHAMMED, OTTAPPILAVULLATHIL,
SABEENA MANZIL, IYYAMGHODU AMSOM, VISHNUMANGALAM DESOM,,
THERUVAMPARAMBA, NADAPURAM.
BY ADV SHRI.SUNNY MATHEW
RESPONDENTS/ACCUSED NOS. 1 TO 12 AND STATE:
1 SURESH @ SURA, S/O. KANNAN, AGED 28 YEARS, NADAPURAM.
2 VINODAN, S/O.KUNHIKANNAN, AGED 34 YEARS, NADAPURAM.
3 BABU @ PARADAN BABU, S/O.CHATHU, AGED 28 YEARS, NADAPURAM.
4 PAVITHRAN, S/O.GOPALAN, AGED 29 YEARS, NADAPURAM.
5 MUTHU @ RAJISH, S/O.KELAN, AGED 24 YEARS, NADAPURAM.
6 VINAYAN, S/O.KUNHIKANNAN, AGED 29 YEARS, NADAPURAM.
7 PAVEESAN @ PAVITHRAN, S/O.KUNHIKANNAN, AGED 29 YEARS,
NADAPURAM.
8 ANEESH, S/O.KUNHIKANNAN, AGED 26 YEARS, NADAPURAM.
9 ANEESH, S/O. ANANTHAN, AGED 24 YEARS, NADAPURAM.
0 ANIL KUMAR, S/O.KUNHIRAMAN, AGED 26 YEARS, NADAPURAM.
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11 SUNIL @ MATHAN SUNIL,
S/O.KUNHIKANNAN, AGED 25 YEARS, NADAPURAM.
12 SAJEEVAN, S/O.CHANDU, AGED 32 YEARS, NADAPURAM.
13 THE STATE OF KERALA, THROUGH THE Dy. S.P., CRIME BRANCH, C.I.D.
KOZHIKODE, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT
OF KERALA, ERNAKULAM.
BY ADVS.
SRI.GILBERT GEORGE CORREYA
SHRI.ABHIJITH M.A
SMT.THANUSHREE DAMODARAN
SMT.AISWARYA M. PILLAI
R13 BY SRI. ALEX M. THOMBRA, SR. PUBLIC PROSECUTOR
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON
05.12.2025, ALONG WITH CRL.A.749/2006, THE COURT ON 11.12.2025
DELIVERED THE FOLLOWING:
4
Crl. Appeal No. 749 of 2006 & batch
2025:KER:95394
'C.R'
JOHNSON JOHN, J.
---------------------------------------------------------
Crl. Appeal No. 749 of 2006 &
Crl. R.P. No. 2153 of 2006
---------------------------------------------------------
Dated this the 11th day of December, 2025
JUDGMENT
The appellants are accused Nos. 1, 3, 5, 6, 11 and 12 in S.C. No.
170 of 2003 convicted and sentenced for the offences under Sections
143, 147, 148, 341, 427 and 452 r/w 149 IPC as per judgment dated
06.03.2006 of the Additional District and Sessions Judge, Fast Track,
(Adhoc-I), Kozhikode. The revision petitioner is the de facto
complainant and she is challenging the acquittal of the appellants for the
offences under Sections 354, 395 and 511 of 376 IPC and the acquittal
of accused Nos. 2, 4, 7, 8, 9 and 10 of all the charges levelled against
them.
2. A perusal of the committal order dated 21.10.2002 in C.P No.
67 of 2002 of the Judicial First Class Magistrate, Nadapuram and the
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proceedings of the Magistrate would show that the original first accused,
Binu, died before committal and the 8th accused, Raghavan, was
absconding and therefore, only the case as against the other accused
was committed for trial.
3. The prosecution case is that all the 12 accused, along with two
others, formed an unlawful assembly, armed with deadly weapons and
trespassed in to the house of PW1 at about 5.30 p.m., on 15.01.2001 by
break opening the doors and thereafter, wrongfully restrained PW1 and
other members of the house. The accused persons outraged the
modesty of PW1 and also attempted to rape her in the presence of her
children. The accused persons destroyed the utensils and other articles
in the house and they also looted the valuables kept in the house and
thus, committed the offences as aforesaid.
4. When the accused persons pleaded not guilty to the charge,
PWs 1 to 17 were examined and Exhibits P1 to P39 and MOs 1 to 39
were marked from the side of the prosecution. From the side of the
defence, DWs 1 to 6 were examined and Exhibits D1 to D21 marked.
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5. The trial court, after analysing the evidence, found the
appellants guilty only for the offences under Sections 143, 147, 148,
341, 427 and 452 r/w 149 IPC. The appellants are challenging the
legality and correctness of the conviction and sentence and the de facto
complainant is challenging the acquittal of the appellants for the offences
under Sections 354, 395 and 511 of 376 IPC and the acquittal of the
other accused persons of all the offences charged against them.
6. Heard Sri.Gilbert George Correya, the learned counsel for the
appellants, Sri. Sunny Mathew, the learned counsel for the revision
petitioner and Sri. Alex M. Thombra, the learned Senior Public
Prosecutor.
7. The learned counsel for the appellants argued that there is no
medical or scientific evidence to corroborate the evidence of PWs 1, 2
and 5, who supported the prosecution case regarding the occurrence
and the circumstances in which PW12, Sub Inspector of Kuttiyadi Police
Station, reached the house of PW1 on 16.01.2001 for recording Exhibit
P1, First Information Statement, is suspicious, especially in view of the
problems in the locality in connection with the group rivalry and other
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connected incidents that occurred there. It is argued that there is no
proper dock identification of the appellants and in view of the non-
examination of the material witnesses and withholding of scientific
evidence, the appellants are entitled for the benefit of reasonable
doubt.
8. The learned counsel for the revision petitioner and the learned
Senior Public Prosecutor argued that the evidence of PWs 1, 2 and 5
regarding the occurrence and the identity of the appellants and the
second accused are sufficient to convict them for all the offences
charged against them. However, the learned counsel for the revision
petitioner and the learned Senior Public Prosecutor fairly conceded that
there is no satisfactory evidence to prove the identity and complicity of
the other accused persons acquitted by the trial court. Therefore, it is
necessary to analyse the evidence as against the appellants and the
second accused.
9. PW1 deposed that at 5.30 p.m., on 15.1.2001, while she was
sitting in the veranda of her house, along with her children PW2, CW3
and PW5, they heard the sound of a bomb explosion from the main road
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and the shout and cry of a gang of people and hence, they went inside
the house and closed the grills and doors on the front side and back
side. According to PW1, while they were sitting in the centre hall, they
saw a gang of people coming to the house by pelting stones to the
house. PW1 would say that she saw the same through a gap in the door
and by that time, the assailants broke open the grills and the back door
and entered into the house and the main hall.
10. According to PW1, 14 persons trespassed into the house and
some of them caught hold of her hand and some others caught on her
maxi and they forcefully removed her gold ornaments. She would say
that 5 persons committed the above overt acts and thereafter, pushed
her down and attempted to rape her by pressing on her breast and
lifting the maxi. PW1 identified accused Nos. 1, 2, 3 and 4 as the
persons who committed the above acts and she would say that one Binu
was also with them and it was Binu who lifted her dress and attempted
to rape her. As noticed earlier, the case as against the original first
accused could not be committed as he died before the committal.
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11. PW1 deposed that when she cried, one among the accused
covered her mouth with his hand and then she bit on his hand and
thereafter, two or three persons forcefully took her out of the house and
from there, she ran into the nearby house of one Usman along with her
children.
12. In answer to a question from the Public Prosecutor, PW1
deposed that somebody has taken her younger daughter (PW5) from the
house and two persons forcefully took her son out of the house and that
no overt act was committed against her other daughter. But,
immediately, the witness added that the accused persons took forceful
possession of the ornaments of both her daughters. PW1 also deposed
that one among the accused put his fingers into her private parts.
According to PW1, her daughter (PW5) complained of pain on her
private parts and on examination, she found swelling and reddish colour
on the private parts of PW5.
13. Regarding the motive, PW1 deposed that on the previous
days of the occurrence, there was communal riot at Nadapuram and one
Santhosh, a member of the CPM, and Moidu Haji, a member of Indian
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Union Muslim League, were killed in the riot. She also deposed that her
elder son, Salam, was a member of the Indian Union Muslim League and
he went abroad 15 days prior to the occurrence in this case and the
accused persons committed the act because of their enmity towards her
elder son and also for the reason that they are members of the Indian
Union Muslim League.
14. PW2 is the son of PW1 and his evidence also shows that the
occurrence was at about 5.30 p.m. and when some of the accused
caught his mother, two other accused took him out of the hall and he
also saw another accused taking his sister (PW5), out of the house
through the back door. According to PW2, though he attempted to save
his mother, three persons among the accused caught him and took him
out of the house and he was detained near the well. He would say that
some other accused persons were dumping the fridge, TV and other
household articles into the well. His evidence shows that subsequently,
along with his mother and sisters, he also ran into the house of their
neighbour Usman. Before the court, PW2 identified accused Nos. 5, 6,
11 and 12.
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15. PW5 is the younger daughter of PW1 aged 12 years at the
time of examination before the trial court. She also deposed that the
occurrence was at 5.30 p.m., on 15.01.2001 and that she was in the
house along with her mother, elder sister and brother and regarding the
trespass committed by the accused persons, she also deposed, more or
less, in the same way as PWs 1 and 2. She would say that at the time of
occurrence, one among the accused took her out of the house and
pressed on her private parts with hand and caused hurt. According to
PW5, subsequently when their mother came out of the house, she also
went to the house of their neighbour Usman along with her mother,
elder sister and elder brother. PW5 identified A6 as the person who
forcefully took her out of the house.
16. The neighbour of PW1 is examined as PW9. According to PW9,
his house is situated about 30 metres away from the house of PW1. He
deposed that at about 5 p.m., on 15.01.2001, his children went out of
the house for attending the prayer in the church; but, on hearing the
noise from the road and the nearby house, they returned to the house.
PW9 would say that at about 6 p.m., on that day, he heard noise from
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the house of PW1 and subsequently, PW1 and her two daughters
reached his house. However, he categorically stated that the son of PW1
was not among them.
17. The evidence of PW9 shows that his wife was also there in the
house and his wife accompanied PW1 and his daughter to the bathroom
for examining the daughter of PW1, when she complained of pain in her
private parts. The evidence of PW9 shows that when PW1 and her
daughter reached his house, some persons pelted stones towards his
house and broke the window glass. According to PW9, he has not made
any statement to the police that PW1 and her three children reached his
house. PW9 was declared hostile to the prosecution.
18. PW3 is the doctor who examined PW1 at Medical College
Hospital, Kozhikode on 16.01.2001 at 6.30 p.m. and issued Exhibit P3
certificate. The evidence of PW3 and Exhibit P3 shows that no external
injuries were noted. The evidence of PW3 further shows that she took
vaginal smear and swab of PW1 and the chemical examination report is
marked as Exhibit P4 and it shows that no semen and spermatozoa was
detected in the sample. PW3 also examined PW5 at 6.30 p.m. on
16.01.2001 and issued Exhibit P5 certificate, which shows that PW5 has
not sustained any external injuries. The chemical examination report of
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the vaginal smear and swab of PW5 is marked as Exhibit P6 and it shows
that no seman and spermatozoa was detected in the sample.
19. The evidence of PW4, Assistant Professor of Medical College
Hospital Kozhikode, shows that she examined PW1 on 09.02.2001 at
4.30 p.m. and issued Exhibit P7 certificate. The evidence of PW4 shows
that she examined PW1 as per the request of Superintendent of Police,
Crime Branch and there were no scratches or abrasions or injuries on
the body of PW1. However, she noticed two old torn marks: one in the
hymen and the other in the fourchette and posterior commissure. PW4
cannot say the age of the injury or whether the said injury was sutured
or not. According to PW4, she also examined PW5 on the same day and
there were no injuries or abrasions on any part of her body. However,
PW4 would say that the patient has not allowed her for a proper
examination and the patient has also not permitted her to take vaginal
smear or swab. Exhibit P9 is the certificate issued by PW4 for examining
PW5.
20. The Manager of State Bank of Travancore, Kallachi Branch is
examined as PW6. The evidence of PW6 and Exhibit P11, ledger extract,
shows that PW1 had withdrawn Rs.17,000/- on 23.12.2000 and
Rs.8,000/- on 06.01.2001. The then secretary of Nadapuram Panchayath
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is examined as PW7. The evidence of PW7 and Exhibit P12 certificate
shows that house No. N.P X/590 of Nadapuram Panchayath belongs to
Ottappilavullathil Muhammed. PW8 is the Village Officer who prepared
Exhibit P3, sketch of the scene of occurrence. The evidence of PW10
shows that as per the request of the police, he recovered TV, fridge and
other household utensils from the well of PW1 during 2001.
21. CW3 is the elder daughter of PW1 and CW6 is the wife of
PW9. As per the prosecution case, CW3 was there in the hall room of the
house, when the accused persons outraged the modesty of PW1 and
attempted to rape her and as per the prosecution case, the accused
persons also forcibly took the ornaments of CW3. As per the prosecution
case, it was CW6, the wife of PW9, who accompanied PW1 and his
younger daughter to the bathroom and examined the private parts of
the younger daughter of PW1 when she complained of pain while
urinating.
22. The learned counsel for the appellants argued that in spite of
the fact that CWs 3 and 6 are material witnesses, they were given up by
the prosecution and there is no satisfactory explanation for the non
examination of the said material witnesses. In Shinoj Singh v. State of
Kerala (2024 KHC 62), the Honourable Supreme Court held that if a
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material witness, who would unfold the genesis of incident or an
essential part of the prosecution case, is not convincingly brought to
fore, or where there is a gap or infirmity in the prosecution case, which
could have been bridged or made good by examining a witness who,
though available, is not examined, the prosecution case can be termed
as suffering from a deficiency and withholding of such a material witness
would oblige the court to draw an adverse inference against the
prosecution.
23. The evidence of PW12, Sub Inspector of Kuttiyadi Police
Station who was on special duty at Nadapuram, shows that he reached
the house of PW1 at 1.30 p.m. on 16.01.2001 and recorded Exhibit P1,
First Information Statement of PW1. According to PW12, he proceeded
to the house of PW1 on receiving a wireless message from a superior
officer. But, the witness cannot say the identity of the superior officer
who issued the direction.
24. In cross examination, PW1 deposed as follows:
"16/1/01 ന് കാലത്ത് ഞാനും കുട്ടികളും, സഹോദരൻ ലത്തീഫും
ഒന്നിച്ചു നാദാപുരത്ത് പോയിരുന്നു. സംഭവ വീട്ടിൽ വന്ന് വീട്
പരിശോധിച്ച ശേഷമാണു നാദാപുരത്തേക്ക് നേരെ പോയത്. നാദാപുരം
hospital ൽ ഷഫാനെ കാണിക്കണം എന്ന ഉദ്ദേശത്തോടെയാണ്
പോയത്. ആശുപത്രിയിൽ പോയി ഡോക്ടറെ കാണാൻ പറ്റിയില്ല.
Crl. Appeal No. 749 of 2006 & batch
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തിരിച്ച് തറവാട് വീട്ടിൽ എത്തിയത് കാലത്ത് 9 മണിക്ക് എത്തി.
നാദാപുരം bus സ്റ്റാൻഡ് ൽ നിന്ന് വടകര Road ലുള്ള ഞങ്ങൾ പോയ
Govt. hospital ലേക്ക് സുമാർ 2 ,2 1/2 km ദൂരം ഉണ്ട്. നാദാപുരം Bus
stand ന് അടുത്ത് തലശ്ശേരി Road ന്നടുത്ത് 150 മീറ്റർ പോയാൽ
നാദാപുരം police station ആണ്. Jeep ലാണ് പോയത്. Police
station ൽ പോയി വിവരം പറയാതിരിക്കാൻ കാരണം ഭർത്താവിനോട്
ചോദിച്ചു പരാതി കൊടുക്കാമെന്നു കരുതി ഭർത്താവിനോടും മകനോടും
അന്വേഷിച്ച ശേഷമാണു Ext. P1 പരാതി കൊടുത്തത്. ലീഗിന്റെ
പ്രധാന പ്രവർത്തകൻ കുഞ്ഞാലി, സെക്രട്ടറി M.P സൂപ്പി എന്നിവരെ
അറിയാം. സംഭവം കഴിഞ്ഞ ദിവസം രാത്രിയിലും പിറ്റേന്നു കാലത്തും
ലീഗിന്റെ പ്രധാന പ്രവർത്തകരും, നേതാക്കളും എന്റെ വീട്ടിൽ വന്ന്
അന്വേഷിക്കുകയും മറ്റും ചെയ്തിട്ടുണ്ട്. Ext. P1 പരാതി കൊടുക്കുന്നതു
വരെയും സഹോദരൻ ലത്തീഫും, അമ്മയും, ബഷീറും വീട്ടിൽ
ഉണ്ടായിരുന്നു. അവർ എല്ലാം മുസ്ലിം ലീഗ് പ്രവർത്തകരാണ്. Ext. P1
മൊഴി police എന്റെ വീട്ടിൽ വന്ന് എടുത്തതാണ്. ഞാനോ ബന്ധുക്കളോ
അറിയിച്ചിട്ടല്ല police വന്നത്. അന്നേ ദിവസം മുതൽ (15-1-01) ന്
തറവാട് വീട്ടിൽ സുമാർ 4 മാസത്തോളം താമസിച്ചു. 16/01/01 തിയതി
പോലീസ് 3, 4 തവണ വന്നിരുന്നു. Ext. P1 16-01-01 ന്
വൈകുന്നേരം ആണ് കൊടുത്തത് എന്നാൽ സമയം ഓർക്കുന്നില്ല.
വൈകുന്നേരം എന്ന് പറയുന്നത് 5 മണി കഴിഞ്ഞാണ്."
25. In Jai Prakash Singh v. State of Bihar [(2012) 4 SCC
379], the Honourable Supreme Court held that promptness in filing the
FIR gives assurance of veracity of information and reflects first hand
account of occurrence and persons responsible therefor. It is well settled
that FIR is the most immediate and first version of the incident and has
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great value in ascertaining the truth as it reduces the chances of
improvement in the prosecution story. The evidence of PW1 in cross
examination clearly shows that on the next day morning, along with her
children and brother--Latheef, she proceeded to Nadapuram and that
Nadapuram Police Station is at a distance of 150 meters from the bus
stand and despite the fact that they travelled in a jeep to Nadapuram,
they have not lodged any complaint in the Police Station regarding the
occurrence at that time.
26. According to PW1, she decided to file the complaint after
discussing the matter with her husband and elder son and that she also
discussed the matter with the office bearers of the Muslim League on the
date of occurrence and the next day morning before giving Exhibit P1,
statement to the police. She also deposed in cross examination that at
the time of giving Exhibit P1 First Information Statement to the police,
her brother Latheef and other members of the Muslim League were
present.
27. The learned counsel for the appellants argued that the trial
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court has not believed the evidence of PWs 1, 2 and 5 about outraging
the modesty of PW1 and the attempt to rape her and since their
evidence regarding the occurrence is not supported by any medical or
scientific evidence or prompt FIR, the trial court ought to have found
that their evidence regarding the occurrence is not at all reliable,
especially in view of the fact that PW9, the independent witness, turned
hostile to the prosecution.
28. The learned counsel for the appellants invited my attention to
Exhibit P1, First Information Statement, to point out that there is a
specific allegation in Exhibit P1 that the accused persons robbed 25,000
rupees and 25 sovereigns of gold ornaments from the house and
thereby, she sustained a loss of Rs.4,00,000/-. But, in the final report
filed after investigation, there is no conclusive finding as to whether the
accused persons robbed currency notes worth Rs.25,000/- and 25
sovereigns of gold ornaments from the house and it is only alleged that
the accused persons destroyed the utensils and looted the valuables and
the prosecution has no case that any money or gold ornaments were
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recovered during the course of investigation.
29. In cross examination, PW1 admitted that she has not stated
the name of the accused who put his fingers in her private parts to the
Magistrate, while recording her statement under Section 164 Cr.P.C. as
his name was not known to her. She would say that she has not stated
to the police that it was Binu who put his fingers into her private parts.
In another part of the cross examination, PW1 deposed as follows:
"പച്ചക്കറിക്കാരൻ ഗോപാലൻ മകൻ ബാബു എന്നാളെ എനിക്കറിയാം.
വീട്ടിന്റെ അടുത്ത താമസക്കാരനാണ്. ടിയാനെ ചെറുപ്പം തൊട്ടേ അറിയാം.
ടിയാൻ സംഭവ സ്ഥലത്തു വന്നിട്ടില്ല, കണ്ടിട്ടില്ല. witness adds : അത്
തെറ്റി പറഞ്ഞു പോയതാണ്. പവിത്രനാണ് - പവിത്രനും ബാബുവുമായി
കാഴ്ച്ചയിൽ വ്യത്യാസം ഇല്ല. പവിത്രന്റെ ജേഷ്ഠനാണ് ബാബു. ഈ
കേസിലെ പ്രതികളെ police station -ൽ വെച്ച് കാണിച്ചു തരികയും
പേര് പറഞ്ഞു തരികയും ചെയ്തിട്ടുണ്ട്. 3 തവണ ഈ ആവശ്യത്തിന്
police station -ൽ ഞാൻ പോയി അവരെ തിരിച്ചറിഞ്ഞിട്ടുണ്ട്."
30. The learned counsel for the appellants argued that there is no
proper dock identification of the accused persons before the court and
cited the decisions of this Court in Vayalali Girishan and Others v.
State of Kerala [2016 KHC 204] and Shaji @ Babu @ Japan Shaji v.
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State of Kerala [2021 (5) KHC SN 27], wherein it was held that the
identification of an accused in court by the witness is the substantive
evidence and even if the witness and the accused are persons known to
each other, it is obligatory for the witness to identify the accused in
court by pointing out that the person referred to by him in the evidence
is the person who is standing in the dock and it is obligatory for the
court to record in the deposition that the witness had identified the
accused in the dock.
31. In another part of the cross examination, PW1 stated that
among the accused persons who trespassed into her house, she first
identified Binu, the original first accused, and when the learned counsel
for the accused persons suggested that she was not able to identify any
other accused, the witness answered as follows:
"മുത്തുവിനെ ഞാൻ കണ്ടിരുന്നു. വാതിലിന്റെ ഒഴിവിലൂടെ grills -ൽ
കല്ലെടുത്ത് കുത്തുന്നത് കണ്ടിരുന്നു. (A) ഇന്നലെ വിസ്തരിച്ചപ്പോൾ 1 മുതൽ
4 കൂടി പ്രതികളെയല്ലാതെ മറ്റാരെയും കണ്ടില്ല എന്ന് പറഞ്ഞത് ശരിയല്ല.
മുത്തുവിനെ പുറത്തു കണ്ടിരുന്നു. ഇന്നലെ വിസ്താരം കഴിഞ്ഞപ്പോൾ ഓർമ്മ
വന്നതാണ്. ഇവരെ അല്ലാതെ വേറെ ആരെയും ഞാൻ അന്ന് കണ്ടിട്ടില്ല.
മുത്തു എനിക്ക് നല്ല പരിചയം ഉള്ള ആളാണ്. മുത്തുവിനെ അറിയാം.
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(witness show the 9th accused first. Subsequently changes and
identified Muthu (A 5) ഈ പറഞ്ഞ 1 മുതൽ 4 കൂടി പ്രതികളെയും
മുത്തുവിനെയും മരിച്ച ബിനുവിനേയും അല്ലാതെ വേറെ ആരെയും എനിക്ക്
തിരിച്ചറിയാൻ പറ്റിയില്ല."
32. In cross examination, PW1 stated that it is not correct to say
that the ornaments and money were kept in the almirah; but, she
admitted that she made a statement to the police that the accused
persons robbed Rs.25,000/- and 7 sovereigns of gold ornaments kept in
the almirah and the said portion in the statement of PW1 to the police is
marked as Exhibit D2.
33. In cross examination, PW2 stated that they were not able to
identify the accused persons before they entered the hall room.
According to PW2, the first five persons who entered the house and the
5th accused, Muthu, are previously known to him. PW2 deposed in cross
examination that the name and house names of the said five accused
are previously known to him. But, he denied that he made statement to
the police that it was Kaniyankandy Muthu who broke opened the grill by
hitting it with a large stone and the said portion in his statement to the
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police is marked as Exhibit D1. The evidence of PW2 in cross
examination shows that on the date of occurrence, they went to their
tharavadu house and their neighbours came there and it is not known to
him whether the leaders of political parties were there among the
persons who reached the tharavadu house. He would say that upto 2
a.m. in the night, there was discussion about the incident in their
tharavadu house.
34. In cross examination, PW2 categorically deposed that he is
not in a position to identify the persons who forcibly detained him near
the well. In cross examination PW2 deposed as follows:
"എന്നെ കിണറ്റിൻ കരയിലേക്ക് പിടിച്ചു കൊണ്ടു പോയവരെ ഞാൻ
ശ്രദ്ധിച്ചില്ല. എന്നെ 1/2 മണിക്കൂർ കിണറ്റിൻ കരയിൽ തടഞ്ഞു
വെച്ചതിനാലാണ് അവിടെ നിന്നത്. കിണറ്റിൻ കരയിലേക്ക് എന്നെ
കൊണ്ട് പോയവർ തന്നെയാണ് അവിടെ എന്നെ തടഞ്ഞു വെച്ചത്. എന്നെ
കിണറ്റിൻ കരയിലേക്ക് കൊണ്ട് പോയവർ എന്നെ ഭീക്ഷണപ്പെടുത്തി
അപ്പോൾ തന്നെ വീട്ടിനകത്തേക്ക് കേറി. അപ്പോഴും അവരെ ശ്രദ്ധിച്ചില്ല.
അവിടെ 1/2 മണിക്കൂർ ഞാൻ നിന്നത് അവിടെ നിന്ന് അനങ്ങിയാൽ
കൊന്നു കളയും എന്ന് ഭീക്ഷണപ്പെടുത്തിയ കാരണമാണ് ."
35. In cross examination, PW2 stated that on the next day at
about 8.30 a.m., they went to Government Hospital, Nadapuram from
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their tharavadu house and returned to the tharavadu house by 10 a.m.
PW2 admitted that there is facility for inpatient treatment at
Government Hospital, Nadapuram and several doctors are working
there. He denied the suggestion that they have not gone to Government
Hospital on the next day morning. In cross examination, PW2 stated that
he was not able to identify the three persons who brought his mother to
the back side of the house and he has not stated to the police as per
Exhibit D1(a).
36. In cross examination, PW5 stated that she cannot remember
whether she made a statement to the police that she cannot identify the
person who caught her mother or forcibly took her from the house and
the said portion in her statement to the police is marked as Exhibit D3.
She also denied making statement to the police as per Exhibits D4 and
D5.
37. The evidence of PW15, Deputy Superintendent of Police who
conducted the investigation, shows that he arrested accused Nos. 2, 4,
6, and 12 on 31.07.2001. Even though, PW15 deposed that he collected
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the pubic hair of the accused persons and sent the same for examination
by preparing a forwarding note, the same is not marked in evidence.
Exhibit P26 is the forwarding note for sending the dress of PW1 for
examination and Exhibit P29, report from the Forensic Science
Laboratory, shows that vaginal secretions were not detected on items 1
and 2. In cross examination, PW15 deposed that in the statement of
PW1 recorded by him, it is stated that in the evening of 16.01.2001,
after the Sub Inspector recorded her statement, the Sub Inspector has
given them letter for availing treatment from Government Hospital,
Nadapuram and the said portion is marked as Exhibit D7.
38. The evidence of PW15 further shows that PW1 has given
statement to him that Rs.25,000/- and gold ornaments kept in the
almirah were stolen. According to PW15, in the statement of PW2
recorded by him, it is stated that it was Kaniyankandi Muthu who hit on
the house with a big stone and it was Pavithran and Paran Babu who
forcibly took the mother to the courtyard.
39. It is well settled that delay in lodging the FIR often results in
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embellishment which is a creature of an after-thought and can also lead
to the introduction of a coloured version or exaggerated story. In the
case of group rivalries and enmities, there is a general tendency to rope
in as many persons as possible as having participated in the assault and
in such situations, the courts are called upon to be very cautious and
required to sift the evidence with care. When the accused are prosecuted
in a criminal case, the burden lies on the prosecution to prove the
allegations beyond all reasonable doubt and an accused is not required
to establish or prove his defence beyond all reasonable doubt.
40. DW1 is the doctor who examined the second accused,
Vinodan, at 6.45 p.m. on 15.01.2001 and issued Exhibit D11 certificate.
The evidence of DW1 shows that on the same day, at 7.15 p.m., he
examined the 8th accused, Raghavan, and issued Exhibit D11(b)
certificate. DW5 was the Superintendent of Medical College Hospital,
Calicut and Exhibit D18 is the case sheet relating to the treatment of the
second accused, Vinodan. The evidence of DW5 and Exhibit D18 shows
that the second accused, Vinodan, was admitted on 15.01.2001 and he
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has undergone surgery for amputation of his left palm below the elbow.
41. DW2 was the Head Constable of Nadapuram Police Station
who recorded Exhibit D12, First Information Statement, and registered
Exhibit D13 FIR in Crime No. 108 of 2001 of Nadapuram Police Station.
The evidence of DW2 and Exhibit D13 would show that the de facto
complainant in the said case is one Madhavi and the allegation is that at
about 5.30 p.m., on 15.01.2001, her house was attacked by the accused
persons in the said case.
42. DW3 was the Head Constable of Nadapuram Police Station
who registered Exhibit D17 FIR on the basis of Exhibit D16, First
Information Statement. DW4 deposed that on 15.01.2001, a bomb
exploded in the property of Pilavullathil Kannan near to his house at
about 5.15 p.m., and that one Vinodan sustained injuries in the incident
and the said vinodan was subsequently taken to Medical College
Hospital. The evidence of DW4 shows that he has given consent to the
doctor for conducting the operation. DW6 was the Circle Inspector of
Nadapuram Police Station, who conducted investigation in Crime No.109
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of 2001 of Nadapuram Police Station and filed Exhibit D20 final report.
43. The evidence of DWs 4 and 5 and Exhibit D18 case sheet in
connection with the surgery of A2, Vinodan, would clearly show that he
sustained injuries in a bomb explosion on 15.01.2001, at about 5.15
p.m. and that his left palm was amputated below the elbow and he was
discharged from hospital only on 01.02.2001. A perusal of Exhibit D16
FIS and Exhibit D17 FIR in Crime No. 192 of 2001 of Nadapuram Police
Station would show that the said crime is registered on the basis of
Exhibit D16, First Information Statement given by one Vinodan who is
none other than the second accused in this case. Therefore, I find force
in the argument of the learned counsel for the appellants that the
prosecution has suppressed material facts regarding the occurrence in
Exhibit D17 FIR and the hospitalisation and the surgery of the second
accused in this case for amputation of the left palm below the elbow.
44. At the time of 313 questioning, the accused persons filed
statement that because of the political murders, group rivalries and
enmities, PW1 and her children shifted their residence to their tharavadu
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house on the previous day and there was nobody in their house on
15.01.2001.
45. The learned counsel for the appellants argued that PWs 1, 2
and 5 were in their tharavadu house on the date of the alleged
occurrence and that a group of persons from the rival group attacked
their house and destroyed the household articles and the accused were
falsely implicated because of group rivalry. In Balu Sudam Khalde v.
State of Maharashtra [(2023) 13 SCC 365 = 2023Live Law (SC)
279), the Honourable Supreme Court held thus:
"27. In assessing the value of the evidence of the
eyewitnesses, two principal considerations are whether, in the
circumstances of the case, it is possible to believe their
presence at the scene of occurrence or in such situations as
would make it possible for them to witness the facts deposed to
by them and secondly, whether there is anything inherently
improbable or unreliable in their evidence. In respect of both
these considerations, circumstances either elicited from those
witnesses themselves or established by other evidence tending
to improbabilise their presence or to discredit the veracity of
their statements, will have a bearing upon the value which a
court would attach to their evidence. Although in cases where
the plea of the accused is a mere denial, the evidence of the
prosecution witnesses has to be examined on its own merits,
where the accused raise a definite plea or put forward a
positive case which is inconsistent with that of the prosecution,
the nature of such plea or case and the probabilities in respect
of it will also have to be taken into account while assessing the
value of the prosecution evidence."
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46. As noticed earlier, in this case, there is no prompt FIR and the
prosecution has not explained the inconsistency in the evidence of PW1
and that of PW12, Sub Inspector of Kuttiyadi Police Station, regarding
the time of recording Exhibit P1 First Information Statement. The
evidence of PW1 in cross examination clearly shows that the First
Information Statement was given only on the next day evening after
discussing the matter with several persons including political leaders and
therefore, the possibility of introduction of a coloured version or
exaggerated story cannot be ruled out, especially in view of the group
rivalries and enmities prevailing there.
47. It is well settled that a conviction cannot be sustained when
the prosecution case is riddled with material contradictions and
discrepancies. In the absence of medical and scientific evidence and
independent occurrence witness to support the prosecution case and in
view of the material contradictions and inconsistencies, I find that a
conviction cannot be based on the evidence of PWs 1, 2 and 5 and
therefore, I find that the appellants are entitled for the benefit of
reasonable doubt.
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In the result, the appeal is allowed and the revision petition is
dismissed. The appellants are acquitted of the offences under Sections
143, 147, 148, 341, 427 and 452 r/w 149 IPC. The bail bond executed
by the appellants/accused shall stand cancelled and they are set at
liberty forthwith.
sd/-
JOHNSON JOHN,
JUDGE.
Rv
