Kerala High Court
Baiju A.K vs State Of Kerala on 18 September, 2025
Author: V Raja Vijayaraghavan
Bench: V Raja Vijayaraghavan
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Crl.A. No. 1086 of 2019 and connected cases 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
&
THE HONOURABLE MR.JUSTICE K. V. JAYAKUMAR
TH
THURSDAY, THE 18 DAY OF SEPTEMBER 2025 / 27TH BHADRA, 1947
CRL.A NO. 1086 OF 2019
CRIME NO.303/2005 OF North Paravur Police Station, Ernakulam
AGAINST THE JUDGMENT DATED 21.08.2019 IN SC NO.412 OF 2012 OF ADDITIONAL
DISTRICT COURT & MOTOR ACCIDENT CLAIMS TRIBUNAL/RENT CONTROL APPELLATE
AUTHORITY, NORTH PARAVUR ARISING OUT OF THE ORDER IN CP NO.117 OF 2010 OF
JUDICIAL MAGISTRATE OF FIRST CLASS - I, NORTH PARAVUR
APPELLANT/6TH RESPONDENT:
KUMAR K.P., AGED 44 YEARS
S/O. PURUSHOTHAMAN, KANNACHIPARAMBIL HOUSE,
SOUTH SIDE OF IR VALAVU, MUNAMBAM KARA, KUZHUPPILLY VILLAGE.
BY ADVS.
SRI.P.K.VARGHESE
SHRI.M.T.SAMEER
SHRI.DHANESH V.MADHAVAN
SHRI.JERRY MATHEW
SRI.K.R.ARUN KRISHNAN
SMT.NAMITHA K.S.
SHRI.ATHUL.P
SMT.DEVIKA K.R.
RESPONDENTS/COMPLAINANT:
1 STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF
KERALA, ERNAKULAM-682 031
ADDL.2 SHARADA THANKAPPAN, AGED 69,
W/O THANKAPPAN, KURINJIPARAMBIL, MUNAMBAM 1 R VALAV P.O,
PALLIPORT, ERNAKULAM, PIN 683515
(ADDITIONAL RESPONDENT NO.2 IS IMPLEADED AS PER ORDER DATED
18/8/2025 IN CRL.M.A.NO.1/2025)
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Crl.A. No. 1086 of 2019 and connected cases 2
BY ADVS.
SMT. NEEMA T. V., SENIOR PUBLIC PROSECUTOR
SRI.VIVEK VENUGOPAL
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 18.08.2025, ALONG
WITH CRL.A.1177/2019, 1328/2019 AND 1331/2019, THE COURT ON 18.09.2025
DELIVERED THE FOLLOWING:
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Crl.A. No. 1086 of 2019 and connected cases 3
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
&
THE HONOURABLE MR.JUSTICE K. V. JAYAKUMAR
TH
THURSDAY, THE 18 DAY OF SEPTEMBER 2025 / 27TH BHADRA, 1947
CRL.A NO. 1177 OF 2019
CRIME NO.303/2005 OF North Paravur Police Station, Ernakulam
AGAINST THE JUDGMENT DATED 21.08.2019 IN SC NO.412 OF 2012 OF ADDITIONAL
DISTRICT COURT & MOTOR ACCIDENT CLAIMS TRIBUNAL/RENT CONTROL APPELLATE AUTHORITY,
NORTH PARAVUR ARISING OUT OF THE ORDER IN CP NO.117 OF 2010 OF JUDICIAL MAGISTRATE
OF FIRST CLASS - I, NORTH PARAVUR
APPELLANTS/ACCUSED NOS.4 & 5:
1 RAMESH @ VISHAPPAN RAMESH, AGED 40 YEARS
S/O. SREEDHARAN, IRINGATHURUTHI HOUSE,
MUNAMBAM KARA, KUZHUPPILLY VILLAGE.
2 SURESH @ KAMMATHIKALAM SURESH,
AGED 50 YEARS, S/O. KARTHIKEYAN, EDAKKUKARAN HOUSE,
MUNAMBAM KARA, KUZHUPPILLY VILLAGE.
BY ADVS.
SRI.P.S.SREEDHARAN PILLAI
SHRI.T.K.SANDEEP
SRI.ARJUN SREEDHAR
SHRI.ARUN KRISHNA DHAN
SRI.ALEX ABRAHAM
SRI.P.VIJAYA BHANU (SR.)
SRUTHY N. BHAT
RESPONDENT/COMPLAINANT & STATE:
1 STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM - 31.
ADDL.2 SHARADA THANKAPPAN, AGED 69,
W/O THANKAPPAN, KURINJIPARAMBIL, MUNAMBAM 1 R VALAV P.O,
PALLIPORT, ERNAKULAM, PIN 683515
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Crl.A. No. 1086 of 2019 and connected cases 4
(ADDITIONAL RESPONDENT NO.2 IS IMPLEADED AS PER ORDER DATED
18/8/2025 IN CRL.M.A.NO.2/2025)
BY ADVS.
SMT. NEEMA T.V., SENIOR PUBLIC PROSECUTOR
SRI.VIVEK VENUGOPAL
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 18.08.2025, ALONG WITH
CRL.A.1086/2019 AND CONNECTED CASES, THE COURT ON 18.09.2025 DELIVERED THE
FOLLOWING:
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Crl.A. No. 1086 of 2019 and connected cases 5
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
&
THE HONOURABLE MR.JUSTICE K. V. JAYAKUMAR
TH
THURSDAY, THE 18 DAY OF SEPTEMBER 2025 / 27TH BHADRA, 1947
CRL.A NO. 1328 OF 2019
CRIME NO.303/2005 OF North Paravur Police Station, Ernakulam
AGAINST THE JUDGMENT DATED 21.08.2019 IN SC NO.412 OF 2012 OF ADDITIONAL
DISTRICT COURT & MOTOR ACCIDENT CLAIMS TRIBUNAL/RENT CONTROL APPELLATE AUTHORITY,
NORTH PARAVUR ARISING OUT OF THE ORDER IN CP NO.117 OF 2010 OF JUDICIAL MAGISTRATE
OF FIRST CLASS - I, NORTH PARAVUR
APPELLANTS/ACCUSED NOS.1 AND 2:
1 BAIJU A.K., AGED 36 YEARS
S/O KRISHNAN KUTTY, ARAMIPPARAMBIL HOUSE, MUNAMBAM KARA,
KUZHUPPILLY VILLAGE.
2 KRISHNAKUMAR@ MUNAMBAM KRISHNAN, AGED 39 YEARS
S/O KRISHNANKUTTY, ARAMIPPARAMBIL HOUSE,
MUNAMBAM KARA, KUZHUPPILLY VILLAGE.
BY ADVS.
SHRI.M.SUNILKUMAR
SHRI.SUJESH MENON V.B.
SRI.T.ANIL KUMAR
SHRI.THOMAS ABRAHAM (NILACKAPPILLIL)
SMT.S.LAKSHMI SANKAR
SRI.R.ANIL
RESPONDENT/COMPLAINANT:
1 STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR ,
HIGH COURT OF KERALA. ERNAKULAM,KOCHI -31
ADDL.2 SHARADA THANKAPPAN, AGED 69,
W/O THANKAPPAN, KURINJIPARAMBIL, MUNAMBAM 1 R VALAV P.O,
PALLIPORT, ERNAKULAM, PIN 683515
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Crl.A. No. 1086 of 2019 and connected cases 6
(ADDITIONAL RESPONDENT NO.2 IS IMPLEADED AS PER ORDER DATED
18/8/2025 IN CRL.M.A.NO.1/2025)
BY ADVS.
SMT. NEEMA T.V., SENIOR PUBLIC PROSECUTOR
SRI.VIVEK VENUGOPAL
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 18.08.2025, ALONG WITH
CRL.A.1086/2019 AND CONNECTED CASES, THE COURT ON 18.09.2025 DELIVERED THE
FOLLOWING:
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Crl.A. No. 1086 of 2019 and connected cases 7
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
&
THE HONOURABLE MR.JUSTICE K. V. JAYAKUMAR
TH
THURSDAY, THE 18 DAY OF SEPTEMBER 2025 / 27TH BHADRA, 1947
CRL.A NO. 1331 OF 2019
CRIME NO.303/2005 OF North Paravur Police Station, Ernakulam
AGAINST THE JUDGMENT DATED 21.08.2019 IN SC NO.412 OF 2012 OF ADDITIONAL
DISTRICT COURT & MOTOR ACCIDENT CLAIMS TRIBUNAL/RENT CONTROL APPELLATE AUTHORITY,
NORTH PARAVUR ARISING OUT OF THE ORDER IN CP NO.117 OF 2010 OF JUDICIAL MAGISTRATE
OF FIRST CLASS - I, NORTH PARAVUR
APPELLANT/ACCUSED NO.3:
PADMANABHAN BABU @ BABU, AGED 47 YEARS
S/O. KRISHNANKUTTY, ARAMIPPARAMBIL HOUSE,
MUNAMBAM KARA, KUZHUPPILLY VILLAGE.
BY ADV.
SRI.V.T.RAGHUNATH
RESPONDENT/COMPLAINANT:
1 STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,
ERNAKULAM-682031, (CRIME NO. 303/2005 OF N. PARAVUR POLICE STATION,
ERNAKULAM DISTRICT).
ADDL.2 SHARADA THANKAPPAN, AGED 69,
W/O THANKAPPAN, KURINJIPARAMBIL, MUNAMBAM 1 R VALAV P.O,
PALLIPORT, ERNAKULAM, PIN 683515
(ADDITIONAL RESPONDENT NO.2 IS IMPLEADED AS PER ORDER DATED
18/8/2025 IN CRL.M.A.NO.2/2025)
BY ADVS.
SMT. NEEMA T.V., PUBLIC PROSECUTOR
SRI.VIVEK VENUGOPAL
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 18.08.2025, ALONG WITH
CRL.A.1086/2019 AND CONNECTED CASES, THE COURT ON 18.09.2025 DELIVERED THE
FOLLOWING:
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Crl.A. No. 1086 of 2019 and connected cases 8
COMMON JUDGMENT
K. V. JAYAKUMAR, J.
These criminal appeals are preferred impugning the common judgment of
the Additional District and Sessions Court, North Paravur, dated 21.08.2019 in S.C.
No.412/2012. The appellants in Crl. Appeal No.1328 of 2019 are the accused Nos.1
and 2. The appellant in Crl. Appeal No.1331/2019 is the accused No.3. The
appellants in Crl. Appeal No.1177/2019 are the accused Nos.4 and 5. Accused No.6
is the appellant in Crl. Appeal No.1086/2019.
2. The appellants/accused Nos.1 to 6 faced the trial before the
Additional District and Sessions Court, North Paravur for the offences punishable
under Sections 143, 147, 148, 341 and 302 read with Section 149 of the Indian
Penal Code (for the sake of brevity, 'IPC') and under Section 27 of the Arms Act.
3. The learned Additional Sessions Judge found the appellants guilty,
convicted and sentenced them. Accused Nos.1 to 6 were sentenced to undergo
imprisonment for life for the offence punishable under Section 302 read with
Section 149 of IPC and to pay a fine of Rs.50,000/- each with a default clause.
They were also sentenced to undergo imprisonment for various terms under
Sections 143, 147, 148 and 341 read with Section 149 of IPC and Section 27(1) of
the Arms Act.
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Prosecution case
4. The prosecution case in brief is that the accused Nos.1 and 2 were
inimical towards the deceased, Abhilash, since he attempted to commit the murder
of accused No.2, Krishnakumar @ Munambam Krishnan, by hurling a country bomb.
The prosecution further alleges that in order to wreak vengeance against the
deceased Abhilash, the accused formed themselves into an unlawful assembly in
prosecution of their common object, armed with deadly weapons like sword stick,
iron rods etc. and on 19.05.2005 at about 8.35 pm, they followed Abhilash who was
riding a motor cycle along with PW2 (Gilda Mendez) as a pillion rider. Further, the
accused chased the motorcycle in an Ambassador car and when they reached 200
meters away from Perumpadanna bridge on Paravur - Cherai public road, they
overtook and intercepted the motorcycle. In the meantime, the deceased Abhilash
fell down. The accused Nos.1 to 6 attacked the deceased with swords and iron rods
and caused severe injuries.
5. The prosecution further alleges that the 1st accused inflicted a cut
injury with a sword on the back side of the neck and accused Nos.2 and 3 inflicted
injuries on the leg of the deceased. The other accused also attacked the deceased
with a sword stick and iron rod. The deceased breathed his last on the way to the
hospital.
Registration of the crime and investigation
6. PW17 (M.K. Binukumar) registered Ext.P1(a)-FIR at 9.15 pm on
19.05.2005 on the basis of Ext.P1-FIS lodged by PW1 (Misha K.D.). PW18 (R.
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Salim) took up the investigation on 20.05.2005. On that day, he conducted an
inquest of the body of the deceased and prepared the Ext.P3 Inquest report. He
seized MOs.6 and 7, the dresses worn by the deceased.
7. Thereafter, at 11.45 am, he prepared Ext.P4 scene mahazar in the
presence of the witnesses. He seized the motorcycle bearing No.KL-7E-25710 and
six pairs of chappals from the place of occurrence. On 22.05.2005, he seized an
Ambassador car bearing No.KER 8730 from Puthiyakavu, as per Ext.P20 mahazar.
He had also seized the sale agreement of the Ambassador car through Ext.P11
seizure mahazar. The dresses worn by PW2 was seized through Ext.P22 mahazar.
He produced the material objects before the court as per Ext.P23 property list.
8. PW18 arrested the accused No.1 Baiju from Oum Karthikeya lodge,
Chennai on 14.06.2005 and produced before the Egmore Metropolitan Magistrate.
Later, he was taken to Kerala as per Ext.P24 transit warrant.
9. Later, accused No.1 was produced before the Judicial First Class
Magistrate with a remand report dated 16.06.2025. As per the disclosure
statement of accused No.1 and as led by him, the police party conducted a search
in the Kallarackal canal, but the weapons of offence could not be found out. He
prepared Ext.P27 mahazar. He also seized the dresses worn by accused No.1 as per
Ext.P26 mahazar.
10. The 164 statement of PW2 was recorded by the Judicial First Class
Magistrate Court, Aluva. Later, he came to know that Vadakkekara Police had seized
four swords on 31.05.2005 and registered a crime under Section 102 of Criminal
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Procedure Code. Thereafter, the Vadakkekara Police produced these swords before
the SDM Court on 18.06.2005. In order to ascertain whether those swords were
connected to this case, he submitted a report before the SDM court on 23.06.2005.
PWs.1 and 2 appeared before the SDM Court and identified the swords. He
submitted a report to forward the swords to Judicial First Class Magistrate Court,
Paravur. Accordingly, the swords were forwarded to the Judicial First Class
Magistrate Court Court, Paravur. He arrested accused No.6, Kumar, from Paravur on
12.07.2005, after preparing Ext.P30 series, documents. As per the disclosure
statement of accused No.4, the iron rods were recovered from the bushes near to
Perumpadanna bridge through Ext.P12 mahazar.
Proceedings in the trial court
11. The trial court framed the charge, after hearing the prosecution and
the defence. When the charge was read over to the accused, they pleaded not
guilty and claimed to be tried.
12. In order to prove the prosecution case, PWs.1 to 19 were examined
and Exts.P1 to P38 were marked. MOs.1 to 11 were also identified and marked.
After the closure of the prosecution evidence, the accused were examined under
Section 313(1)(b) of Cr.P.C. They denied the incriminating circumstances put to
them and maintained their stand of innocence. On the side of the defence, DWs.1
and 2 were examined and Exts.D1 to D18 and Ext.X-1 were marked.
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The contentions of the appellants
13. Sri. B. Raman Pillai, the learned senior counsel for the appellants in
Crl. Appeal No.1328 of 2019, submitted that the impugned judgment of the learned
Additional Sessions Judge is patently illegal and unsustainable. The appreciation of
evidence by the trial court is faulty.
14. The prosecution has failed to prove the motive which is the driving
force in a crime. The version of PWs.1 and 2, the eyewitnesses, lacks credibility
and trustworthiness. The non-citing and non-examination of the material witnesses
constitutes a serious lapse on the part of the Investigating Officer. PWs.1 and 2
have not stated any names of the assailants to the doctor who examined the
deceased Abhilash. It is further submitted that the blood-stained clothes worn by
PW1 were not seized by the police.
15. The learned counsel for the appellants submitted that the trial and
conviction of the appellants are vitiated by grave illegalities. The presence of PW1
at or around the scene of occurrence is highly improbable and cannot be believed.
16. The learned counsel for the appellants further pointed out that the
prosecution has suppressed the real incident and the appellants were falsely
implicated in the case on the basis of fabricated and concocted evidence. The
appellants are the workers of BJP, while the deceased was a CPI(M) activist, a rival
political party.
17. The evidence of PWs.1 and 2 is inconsistent and contradictory on
material particulars. PW1 is a planted witness and he has not actually witnessed the
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incident. Reliance was placed on the dictums laid down in Baljinder Kumar @
Kala v. State of Punjab1 and Vinobhai v. State of Kerala2.
18. Sri. B. Raman Pillai submits that PW2 (Gilda Mendez), the fiancee of
the deceased Abhilash, is a highly interested/partisan witness and her version is not
at all credible and reliable. Sri. B. Raman Pillai further submits that the statement of
PW2 was recorded after a lapse of one month from the date of incident and no
plausible explanation was offered for the said delay. The learned counsel has
placed reliance on the judgment of the Apex Court in Vijaybhai Bhanabhai Patel
v. Navnitbhai Nathubhai Patel and others3.
19. The learned counsel would further point out that the Ambassador car
and the motor cycle involved in this crime was not produced before the court and
marked. This is a serious lapse on the part of the Investigating Officer.
20. It is further pointed out that the prosecution has failed to allege and
prove the specific overt acts of each of the appellants. The prosecution has no
definite and consistent case as to the manner in which the incident had occurred
and the weapons allegedly used for the commission of the crime. It is further
submitted that the recovery of weapons is not properly proved by the prosecution.
The learned counsel for the appellants further submitted that the medical evidence
in this case is contradictory and inconsistent with the ocular version of PWs.1 and
2. The trial court has failed to appreciate the defence evidence in the correct
2025 KHC OnLine 6609
2025 KHC OnLine 7082
(2004) 10 SCC 583
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perspective.
21. Sri. V. T. Raghunath, the learned counsel for the appellant in Crl.
Appeal No.1331 of 2019 would submit that no evidence was adduced by the
prosecution as to the presence of accused No.3. Furthermore, there is no evidence
as to the overt act of accused No.3 and whether he was carrying a weapon. Sri. V.
T. Raghunath further submitted that accused No.3 was falsely implicated in the case
due to political animosity. The prosecution has no case that accused No.3 had
animosity with the deceased Abhilash. The accused No.3 also raised a plea of alibi.
22. Sri. P. Vijayabhanu and Sri. Arjun Sreedhar, the learned counsels for
the accused Nos.4 and 5 would also submit that those accused were not present at
the place of occurrence and they have no specific overt acts.
23. Sri. M. T. Sameer, the learned counsel for the appellant in Crl. Appeal
No.1086 of 2019 would submit that accused No.6 was not present at the place of
occurrence and he has not shared any common object of the assembly.
The contentions of the Prosecution.
24. Smt. Neema T. V., the learned Public Prosecutor submitted that the
impugned judgment of the learned Additional Sessions Judge is legally sustainable.
The trial court appreciated the evidence on record, both oral and documentary, and
arrived at a proper conclusion. No interference from this Court is warranted in this
matter. The version of the eyewitnesses, PWs. 1 and 2, is reliable and trustworthy.
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25. The learned Public Prosecutor further submitted that minor variations
or discrepancies in the evidence was not sufficient to reject the whole evidence.
Reliance was placed on the dictums laid down in the State of U.P. v. M. K.
Anthony4 and Leela Ram v. State of Haryana and another5.
26. Adv. Vivek Venugopal, the learned counsel appearing for the victim
(mother of the deceased) submitted that the prosecution has succeeded in proving
the charge against the appellants beyond reasonable doubt. He pointed out that
the contradictions and the omissions are minor and insignificant. The learned
counsel has placed reliance on the judgment of the Apex Court in State of
Karnataka v. Suvarnamma6.
Evidence let in by the prosecution
27. PW1 (Misha K. D.) testified that he is working as a supervisor in a
chemical company. On 19.05.2005, at about 6.00 pm, he came to Paravur to remit
his mobile bill. He could not remit the bill, since the working hours of the Airtel
office was over. He returned to his house in Munambam at about 8 and 8.30 pm.
When he reached Perumpadanna bridge, an Ambassador car overtook his
motorcycle and waylaid a Hero Honda Passion bike. The said bike was driven by a
young man along with a lady. The rider of the bike tried to flee away from the
scene. At that time, five to six persons jumped out of the car. Accused No.4,
(1985) 1 SCC 505
(1999) 9 SCC 525
(2015) 1 SCC 323
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Ramesh, and accused No.5, Suresh, caught hold of the rider of the motor bike and
when he tried to escape, accused No.1, Baiju chased him and inflicted a cut injury
on the back side of the neck. Accused No.2, Krishnakumar, inflicted an injury on the
left leg while accused No.3, Babu on right leg. When he tried to intervene, the
accused turned against him and abused him using filthy language.
28. Thereafter, the assailants proceeded towards Paravur in the car. On
witnessing the incident, PW2 cried aloud. The injured was immediately taken by
bystanders to Don Bosco Hospital. PW-1 also proceeded to the said hospital and,
upon arrival, learned that the injured had succumbed to the injuries. He stated that
he lodged Ext. P1 First Information Statement before the Paravur Police Station. He
further deposed that he witnessed the incident in the illumination of the car's
headlights and other vehicles passing along the road. PW-1 identified all the
accused present in the dock and confirmed that he later came to know the
deceased, Abhilash, was a resident of Munambam and that the lady accompanying
him was an employee of Airtel. He also identified the swords and iron rods used in
the attack. He added that the assailants were previously known to him, as they too
hailed from Munambam, and that during the course of the investigation the police
had shown the accused to him.
29. PW2 (Gilda Mendez) is the star witness in this case. She would say
that during the year 2005, she worked in the office of the Airtel. The deceased
Abhilash was her lover. Their marriage was fixed by their family members.
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30. On 19.05.2005, Abhilash came to her office at about 7.30 pm to pick
her up. On their way back home, when they crossed Perumpadanna bridge, a Grey
colour Ambassador car overtook their bike and waylaid them. She does not
remember the registration number of the car. At that time, a person jumped from
the car uttering the words 'എടാ'. Seeing the assailants, the deceased tried to run
away from the scene of occurrence. The assailants chased him and accused No.1
(Baiju) inflicted a cut injury with a sword on the neck of Abhilash. PW2 watched the
incident in the light of the bus parked nearby. She identified all the accused who
were standing in the dock. She would further add that she has previous
acquaintance with accused Nos.1 and 2. They are the friends of Abhilash. Four
accused persons were holding swords and two of them were carrying iron rods. She
could not correctly say which accused was carrying which weapon. After the
incident, the assailants proceeded to Paravur side in their car. The deceased was
taken to the Don Bosco Hospital in the car of PW14 (Biju O.K.). PW2 also
accompanied the deceased in the car.
31. After reaching the hospital, she contacted some of the friends of the
deceased Abhilash. Later, the deceased was taken to Ernakulam. On that day, she
was also admitted in the ICU of Don Bosco Hospital. When she regained her
memory, she came to know that Abhilash is no more. She was discharged from the
hospital on the next day. Ext.P2 is her 164 statement. She identified MO-6 jeans
and MO-7 shirt, worn by the deceased. She also identified MO-8 and MO-9 dresses
worn by her at the time of the incident. She also identified MO-10 chappals worn
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by her. She further testified that a case was registered against the deceased
Abhilash for hurling a bomb against accused No.2. The said animosity is the reason
for the murder. PW2 further stated that the deceased Abhilash told her that the
accused would attack him.
32. PW3 (Sunilkumar P.S.) is a witness to Ext.P3 inquest report. He would
also say that there was previous animosity between the deceased Abhilash and
accused No.2 Krishnan. PW4 (Shinil P.S.) is an attestor to Ext.P4 scene mahazar.
33. PW5 (Joy Antony) was the previous owner of the Ambassador car
bearing Registration No. KER 8730. He sold the said car to his brother-in-law, Jose,
in the year 1989. He further stated that Sri. Jose sold the car in the year 1997.
PW6 (Madhu) is the Special Village Officer, who prepared Ext.P5, site plan.
34. PW7 (Chinnappan) was a police constable of Paravur Police Station.
He accompanied PW18 (R. Salim) at the time of the arrest of accused No1., Baiju,
from Oum Karthika Lodge, Chennai. PW18, the Investigating Officer, seized the
relevant pages of the register of the said lodge through Ext.P6 mahazar. He also
seized Ext.P8 copy of the receipt from the lodge.
35. PW8 (Garvasis P.J.) is the Scientific Assistant of the Regional Forensic
Laboratory. He collected blood samples and a blood stained towel from the
Ambassador car involved in the crime. He produced the samples before the
Investigating Officer.
36. PW9 (Sijith Kumar K.S.) has purchased an Ambassador car bearing
Registration No.KER 5730 from one Sajeesh as per Ext.P10 agreement dated
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15.01.2005. He sold the car to one Sharma on 12.05.2005 as per an agreement. He
did not support the prosecution case and declared as hostile. He denied the
suggestion that the said vehicle was sold to accused No.1, Baiju for an amount of
Rs. 16,500/-.
37. PW10 (K.N. Chandrababu) is a real estate broker. He would say that
PW9 is his nephew. According to him, PW9 purchased an Ambassador car and later
sold it after two months on the basis of an agreement for sale. He would further
say that Paravur Police seized the car as per Ext.P11 mahazar.
38. PW11 (Sooraj A.S.) is a head load worker at Munambam harbour. He
witnessed the seizure of MOs.4 and 5, iron rods by the Circle Inspector of Police
from the western side of Perumpadanna bridge in the presence of accused No.4,
Ramesh, and accused No.5, Suresh. He put his signature in Ext.P12 recovery
mahazar. He added that accused Nos.4 and 5, Ramesh and Suresh, are acquainted
with him as they are also hailing from Munambam. He also identified MOs.4 and 5,
iron rods.
39. PW12 (Dr. Roy Mathew) issued Ext.P13, wound certificate of the
deceased Abhilash, while he was working in Don Bosco Hospital on 23.05.2005. He
also proved Ext.P14 admission and discharge certificate of PW2 (Gilda Mendez).
PW12 would say that Gilda Mendez was very nervous on that day. As per Ext.14,
she was admitted on 19.05.2005 and discharged on 20.05.2025.
40. PW14 (Biju O. K.) is a driver of Himalaya Group, who had taken the
deceased to the Don Bosco hospital in a Tata sumo car. He stated that while he was
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travelling from Ernakulam to Cherai, he saw a crowd on the road. When he stopped
the vehicle, the people gathered there took a person inside the car. He took him to
the Don Bosco Hospital along with PW2.
41. PW15 (Dr. P. Vijayakumar) is the Assistant Professor and the Deputy
Police Surgeon, Department of Forensic Medicine, Medical College, Alappuzha, who
conducted the postmortem examination on the body of Abhilash on 20.05.2005 and
issued Ext.P16 postmortem certificate. He had noted the following 29 ante-mortem
injuries in the postmortem certificate:
1. Abrasion 7x2 cm an over right forehead just above eye brow 1.5
cm to right of midline.
2. Abrasion 5.5x2 cm right side of face close to outer angle of eye.
3. Abrasion over an area 9x2 cm on outer aspect of right elbow.
4. Abrasion 0.5 x 0.5 cm back of right wrist.
5. Abrasion 0.5 x 0.5 cm back of right wrist.
6. Abrasion 7.5x2.5 cm over right side of hip over lying iliac crest 16
cm to the right of midline.
7. Abrasion 10x4 cm front of right knee.
8. Abrasion 7x4 inner aspect of right thigh just above knee.
9. Abrasion 10x2.5 cm inner aspect of right foot back and at ankle.
10. Abrasion 1.5 x 1 cm top of right foot, 8 cm away from tip of toe.
11. Incised wound 5x3 cm muscle deep under aspect of left heel.
12. Abrasion 3x3.5 cm inner aspect of left knee.
13. Incised wound 4x3 cm bone deep on back of head, just to left
of occiput.
14. Superficial incised wound 9.5 at the root of neck and right side
of neck, left end 2 cm to the left of midline:
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15. Superficial incised wound 10x1 cm back of right shoulder 1 cm
below injury No.14:
16. Superficial incised wound back of right shoulder 12 cm long
½cm below injury No.15, left end in midline.
17. Superficial incised wound 19 cm long top of left shoulder upper
right end in midline and 2 cm below root of neck.
18. Superficial incised wound 22x 0.1 cm top of left shoulder, right
end in midline, back of neck, left end at armpit.
19. Superficial incised wound 20 cm long 0.5 cm below injury No.18
left end in outer end of injury No.17
20. superficial incised wound 7.5 cm long 1 cm below injury No.18
right end at midline.
21. Superficial incised wound 16.5 cm long outer left end with an
incised wound 5x5x2x1.5 cm 0.5 cm below injury No.20 with
tailing for 8 cm.
22. Incised wound 4.5 x2 cm bone deep on back of left shoulder
transverse 4 cm below top of shoulder. Superficial incised wound
3 cm extending to right and 9.5 cm to the left of the wound.
23. Superficial incised wound 17 cm back of left side of chest
oblique lower inner end 6.5 cm to the left of midline and 17 cm
below root of neck.
24. Incised wound 37x5x7 cm starting from front of neck 3 cm to
the left of midline through front to right side of neck to right ear.
Beneath this injury the thyroid cartilage, sternocleimastoid
muscle, carotid artery and other blood vessels were cut
completely on right side. Strap muscles were partially cut.
Transverse procesier of 4.5 cervical vertebrae were cut.
25. Incised wound 10.5x9x3 cm outer aspect of right left through
ankle. The lower end of fibula fractured, fracture ends of talus
found separate.
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26. Incised wound 12 cm bone deep 2 cm below ankle of right leg,
back end just above heel.
27. Incised wound 9 cm long muscle deep starting from front of
neck 2 cm to the left of midline to right side of neck.
28. Incised wound 8 cm long 1 cm below injury No.27. The flap
raised was obliquely cut for 3 cm to the right of midline.
29. Multiple cut injuries below injury No.24, 26, 27 and 28. The right
lateral side of vertebral column was cut at the left of Atlas
vertebra entering to spinal canal and destroyed the spinal cord.
The under aspect of skull. The occipital condylar was chipped off
the occipital bone. The blood vessels, muscles and other
structures of right front, lateral and back aspect of neck were
chopped off, including the thyroid and cricoid cartilages.
42. PW15 opined that the cause of death is the cut injuries inflicted on
the neck of the deceased Abhilash.
43. PW16 (Prasad A.) was the Sub Inspector of Police, Vadakkekara Police
Station. On 31.05.2005, he received reliable information that four sword sticks were
found near Kallarackal bridge in an abandoned state. He seized four swords as per
Ext.P17 seizure mahazar in the presence of the witnesses. Thereafter, he registered
Ext.P18 FIR in crime No.233/2005 under Section 102 of Cr.PC. Those material
objects were produced before the SDM Court as per Ext.P19 property list.
Thereafter, he got information that the weapons recovered were allegedly used by
the assailants in Crime No.303/2005 of Paravur Police Station. He identified those
swords as MOs.1 to 3 and 11.
44. PW17 (M. K. Binukumar) registered the crime. PW18 (R. Salim) is the
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Investigating Officer of the case. He conducted the major part of the investigation
of the crime. PW19 completed the investigation and laid the final report.
45. DW1 (Dr. Poulose Mathai) is the Chief Physician in Don Bosco
Hospital. He produced Ext.X-1 case sheet of the deceased. Ext.X-1 only contains the
carbon copy of the intimation given to the police. The case sheet was not opened,
since the deceased was not admitted in the hospital.
46. DW2 (Dr. Seema Gangadharan) was examined on the side of the
defence. She deposed that she had seen the deceased Abhilash when he was taken
to the Don Bosco hospital. The deceased was brought to the hospital by a lady. She
issued Ext.P13 death intimation to the police. In Ext.P36, it is noted that there was
an assault by some identifiable persons at 8.00 pm near Cherai bridge. DW2 further
stated that it is PW2 (Gilda Mendez) who supplied the name and address of the
deceased.
The defence case
47. The defence case is that the appellants are innocent and falsely
implicated in the case due to political animosity. The appellants and the deceased
belonged to rival political fractions. The appellant in Crl. Appeal No.1331 of 2019
(accused No.3) has also raised a plea of alibi.
Death of Abhilash - whether homicidal?
48. PW15 (Dr. Vijayakumar), the Assistant Professor and the Deputy
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Police Surgeon, Alappuzha Medical College, who conducted the autopsy of the
deceased Abhilash has noted as many as 29 ante-mortem injuries on the body of
the deceased. He opined that the cause of death is the cut injuries inflicted on the
neck of the deceased. PW1 (Misha K.D.) and PW2 (Gilda Mendez), who are the
ocular witnesses, would categorically state that the accused inflicted injuries on the
deceased using swords and sticks. On going through the evidence of PWs.1, 2 and
15, we do not find any reason to disagree with the conclusion of the learned
Sessions Judge that the death of Abhilash is homicidal.
The analysis
49. The material witnesses in this case are PW1 (Misha K.D.) and PW2
(Gilda Mendez). Now, we shall proceed to evaluate the evidence of the material
witnesses.
50. PW1 (Misha K.D) deposed that on 19.05.2005 at about 8.30 pm,
when he reached Perumpadanna Bridge, plying his motor cycle, an Ambassador car
overtook his motor cycle and waylaid a Hero Honda Passion bike. The said bike was
driven by the deceased Abhilash along with his fiancee, PW2. Thereafter, five to six
persons jumped from the car and attacked the deceased with swords and iron rods.
He would say that accused No.4, Ramesh and accused No.5, Suresh, caught hold of
the rider of the motor bike. When the deceased tried to run away, accused No.1,
Baiju chased him and inflicted a cut injury on the back side of the neck. Accused
No.2, Krishnakumar, inflicted an injury on the left leg while accused No.3, Babu,
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inflicted injury on the right leg. He added that when he tried to intervene, the
accused abused him in a filthy language.
51. PW1 would further depose that after the incident, the assailants
proceeded to Paravur side in their car. Somebody took the injured to the Don Bosco
Hospital and he also went to the hospital. When PW1 reached the hospital, he
came to know that the injured had succumbed to the injuries. PW1 lodged Ext.P1
FIS at 9.15 pm in the Parvur Police Station. He would add that he saw the incident
on the headlight of the car and the other vehicles, passing through the road. PW1
identified all the assailants, who are previously known to him, as they are also
hailing from his place, Munambam.
52. PW1 was subjected to thorough and lengthy cross examination by the
defence counsel. Exts.D1 to D4 and D6 to D8 are the contradictions of PW1 with
respect to Ext.P1-FI Statement. During cross examination, he would say that he
does not remember whether he stated in the FIS that he had seen the injured
Abhilash being taken to Don Bosco Hospital. He has no explanation if the Police
has recorded that fact in Ext.P1 FIS. This portion of FIS was marked as Ext.D1.
53. Further, PW1 would say that he has not stated in his FI statement that
he has not seen the rider of the motor cycle falling from the vehicle. He gave a
statement to the police that the rider of the motorcycle stopped the vehicle and
tried to run away from the scene. The relevant portion of Ext.P1 FIS was marked as
Ext.D2.
54. PW1 in his FI statement before the Police stated that he had seen the
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accused inflicting cut injury below the knee of the deceased. However, during cross
examination, he would say that he does not remember whether he stated to the
Police that he witnessed the infliction of injury on the thigh of the deceased. The
relevant portion of Ext.P1, FIS was marked as Exts.D3 and D4. PW1 clarified that
he committed a mistake while lodging FIS and narrated the true facts in his
subsequent statement.
55. In the court, PW1 would say that the car swerved and stopped at the
place of occurrence and thereafter, the accused attacked the deceased. But in the
FIS, it was noted that after the attack all the assailants entered the car, swerved
the same and proceeded towards Paravur side. The said change in the version was
marked as Ext.D6. In Ext.P1, he stated that the dead body of Abhilash was in Don
Bosco Hospital. But during cross examination, he denied the said aspect. Ext.D8
contradiction is with regard to the manner in which the Ambassador car overtook
the motor cycle.
56. A careful evaluation of the contradictions proved by the defence would
indicate that the said contradictions are immaterial, irrelevant and insignificant for
the determination of the fact in issue.
57. The learned counsels for the appellants would also point out Exts.D9
to D11 contradictions in the evidence of PW2 (Gilda Mendez). PW2 would say that
she does not remember whether she stated before the police that the car in which
the injured was taken to the hospital belongs to Himalaya Group. She would also
say that she does not remember whether the friends of Abhilash from Munambam
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came there and took the victim to Ernakulam hospital.
58. In Bharwada Bhoginbhai Hirjibhai v. state of Gujarat7, the
Apex Court had occasion to explain the principles while evaluating the evidence:
(1) By and large a witness cannot be expected to possess a photographic memory
and to recall the details of an incident. It is not as if a video tape is replayed on the
mental screen.
(2) Ordinarily it so happens that a witness is overtaken by events. The witness could
not have anticipated the occurrence which so often has an element of surprised. The
mental faculties therefore cannot be expected to be attuned to absorb the details.
(3) The powers of observation differ from person to person. What one may notice,
another may not. An object or movement might emboss its image on one person's
mind, whereas it might go unnoticed on the part of another.
(4) By and large people cannot accurately recall a conversation and reproduce the
very words used by them or heard by them. They can only recall the main purport of
the conversation. It is unrealistic to expect a witness to be a human tape-recorder.
(5) In regard to exact time of an incident, or the time duration of an occurrence,
usually, people make their estimates by guess-work on the spur of the moment at
the time of interrogation. And one cannot expect people to make very precise or
reliable estimates in such matters. Again, it depends on the time-sense of individuals
which varies from person to person.
(6) Ordinarily a witness cannot be expected to recall accurately the sequence of
(1983) 3 SCC 217
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events which takes place in rapid succession or in a short time span. A witness is
liable to get confused, or mixed up when interrogated later on.
(7) A witness, though wholly truthful, is liable to be overawed by the court
atmosphere and the piercing cross examination made by counsel and out of
nervousness mix up facts, get confused regarding sequence of events, or fill up
details from imagination on the spur of the moment. The sub-conscious mind of the
witness sometimes so operates on account of the fear of looking foolish or being
disbelieved though the witness is giving a truthful and honest account of the
occurrence witnessed by him--Perhaps it is a sort of a psychological defence
mechanism activated on the spur of the moment.
59. In Appabahi v. State of Gujarath8, the Apex Court held that while
appreciating the evidence, the courts must not attach undue importance to minor
discrepancies. The discrepancies which do not shake the basic version of the
prosecution case may be discarded.
60. In Leelaram's case (supra), the Apex Court observed that the
discrepancies found in the ocular account of two witnesses unless they are so vital,
cannot affect the credibility of the evidence of the witnesses. Unless the
contradictions are of material dimensions, the same should not be used to jettison
the evidence in its entirety. Further, mathematical niceties cannot be expected in
criminal cases.
61. The learned Sessions Judge after a careful scrutiny of evidence took
(1988) Supp SCC 241
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the view that the contradictions in the evidence of PWs.1 and 2 are immaterial and
insignificant. The incident occurred on 19.05.2005 and the evidence was recorded in
December 2018, after a lapse of about 13 years. Therefore, minor omissions and
contradictions are bound to occur in the evidence.
62. We have carefully evaluated the evidence of PWs.1 and 2, the
material witnesses of this case in the light of the dictums laid down by the Apex
Court discussed above. PWs.1 and 2 were subjected to lengthy and thorough cross
examination by the defence side. Therefore, the witnesses are liable to get confused
regarding the sequence of events. We find that their versions are natural and
truthful. The minor contradictions and omissions pointed out by the learned counsels
for the appellants never cut the root of the prosecution story.
63. The learned counsels for the appellants submitted that certain
material witnesses were not examined by the prosecution and the non-citing and the
non-examination of the witnesses are fatal in this case. It is submitted that the
statement of DW2 (Dr. Seema Gangadharan) who prepared the death intimation and
forwarded to the Police was not examined. It is further submitted that the
Investigating Officer has questioned three persons namely, Radhakrishnan, Praveen
and Jineesh before the arrest of accused No.1. The said persons were released after
interrogation. The non-citing and non-examination of the aforesaid three persons
were questioned by the Police before the arrest of the accused No.1 is fatal,
according to the learned counsels for the appellants. It is trite law that it is the
quality of the evidence and not the quantity of the evidence adduced by the
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prosecution to be considered while arriving at a conclusion as to the guilt of an
accused.
64. In Vadivelu Thevar v. State of Madras9, the Apex Court observed
that it is the quality of the evidence and not the quantity which is relevant for the
adjudication of the fact in issue. The evidence of the eye witnesses inspires the
confidence of the Court and the non-examination of one or more other witnesses has
no relevance at all.
65. Yet another contention advanced by the learned counsels for
appellants is that in Ext.P13 wound certificate, which is the earliest information about
the incident, the names of the assailants were not stated. In Ext.P13, it is stated that
the injured was taken to the Don Bosco Hospital by PW2 (Gilda Medez). According to
PW2, the assailants are previously known to her. If that be so, the names of the
assailants might have been stated by her to the Medical Officer at Don Bosco
Hospital. It was argued that the non-mentioning of the names of the accused in the
earliest document is fatal to the prosecution case.
66. We are unable to accept the said contention. It is pertinent to note
that PW12 (Dr. Roy Mathew), who issued Ext.P13 wound certificate, stated that PW2
(Gilda Mendez) was very nervous on that day and she was admitted in that hospital
and discharged on the subsequent day of the incident. Ext.P14 is the admission and
discharge certificate of PW2.
67. It is further submitted that there is no acceptable version as to the
AIR 1957 SC 614
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nature of overt acts allegedly attributed against the accused. No witnesses said that
more than one injury was inflicted on the neck of the deceased. According to PWs.1
and 2, one cut injury was inflicted on the neck of the deceased. However, as per
Ext.P15 postmortem certificate, PW15 (Dr. Vijayakumar) noted two injuries on the
neck.
68. Therefore, learned counsels for the appellants would submit that the
case of the prosecution that PWs.1 and 2 who had witnessed the incident itself
appears to be false. PW15 has noted as many as 29 ante-mortem injuries in the body
of the deceased. The non-explanation by the material witnesses (PW1 and PW2) as
to how 29 injuries were found on the body of the deceased falsifies the story of the
prosecution. PW1 (Misha K.D.) spoke about the cut injury inflicted by accused No.1
on the back side of the neck of the deceased Abhilash and injuries inflicted on the
left leg by accused No.2 and about the injuries inflicted by accused No.3 on the right
leg. PW2 (Gilda Mendez) would also say that accused No.1 (Baiju) inflicted cut injury
with a sword on the neck of the Abhilash. She would say that four accused persons
were holding swords and two of them were carrying iron sticks.
69. When a group of six persons attacks the victim with swords and iron
sticks, it may not be possible for the witnesses to give an exact version as to who
inflicted injuries and on which part of the body the injuries were inflicted. Moreover,
the evidence was recorded after a lapse of 13 years of the incident. The
non-explanation of each and every injury allegedly inflicted by the assailants on the
deceased is not fatal, as rightly concluded by the learned Sessions Judge.
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70. Yet another argument advanced by the learned counsels for the
appellants is that the prosecution has no definite and consistent case as to the
weapons of offence. The discrepancies with regard to the material objects allegedly
used by the assailants casts serious doubts in the prosecution story.
71. PW16 (Prasad A.), the Sub Inspector of Police, Vadakkekara Police
Station had seized four sword sticks which were found near Kallarackal bridge in an
abandoned state. He seized those swords as per Ext.P17 seizure mahazar and
registered Ext.P18 FIR under Section 102 Cr.P.C. He produced those weapons before
the SDM Court as per Ext.P19 property list. Later, when he got information that
those weapons were used by the assailants in Crime No.303/2005 of Paravur Police
Station, he submitted a report before the SDM court. He identified those swords as
MOs.1 to 3 and MO-11.
72. In cross examination, PW16 stated that all the four swords found by
him are rusted. At the time of seizure, one of the swords was rusted. Further, three
swords were having brass grips. He would say that the swords shown to him during
the trial were not having the brass grips. He explained that it might have been
damaged by the lapse of time.
73. According to the learned counsels for the appellants, since there are
some discrepancies with regard to the description of the material objects, the
prosecution case is to be discarded. We are not persuaded by the said argument.
Minor discrepancies in the description of the swords seized by the prosecution is not
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a ground to reject or doubt the entire prosecution story.
74. Yet another argument advanced by the learned counsel for the
appellants is that the Ambassador car and the motor cycle involved in the incident
were not produced before the court and identified through the witnesses. PW18 (R.
Salim), the Investigating Officer, gave evidence to the tune that he had seized the
Ambassador car and the motorcycle after preparing seizure mahazars. The mere
non-identification of the vehicles in the court, by itself, is not a ground to reject or
doubt the prosecution narrative in its entirety.
75. Another contention advanced by the counsel for appellants is that the
statements of PW2 (Gilda Mendez) were recorded after a gap of about one month
and therefore the possibility of false implication cannot be ruled out. PW18, the
Investigating Officer, would say that the previous statement of PW2 was recorded on
24.05.2005. PW18 would categorically say that PW2 was not in a position to give a
statement to the Police. PW12 (Dr. Roy Mathew) would say that PW2 was very
nervous on the alleged day of occurrence and she was admitted in the ICU and
discharged on the subsequent day. Ext.P14 is the admission and discharge certificate
of PW2. On going through the evidence, it could be seen that a satisfactory and
plausible explanation is offered for the delay of four days in recording the statement
of PW2.
76. It is further argued that the non-seizure of the dresses worn by PW1
(Misha K.D.) is fatal to the prosecution story. We are not persuaded by the argument
that the non-seizure of dresses is a serious ground to disbelieve the prosecution
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story.
77. The learned counsels for the appellants submitted that accused No.1
to 6 were roped in this case only with the aid of Section 149 of the Indian Penal
Code. The prosecution has no case that none of them were carrying weapons with
them and no overt acts were alleged against accused Nos.1 to 6. In the absence of
such evidence, the conviction against accused Nos.1 to 6 cannot be sustained.
78. Before further discussion, it may be useful to extract Sections 141 and
149 of the Indian Penal Code.
"141. Unlawful assembly.--
An assembly of five or more persons is designated an "unlawful
assembly", if the common object of the persons composing that assembly
is--
First.--To overawe by criminal force, or show of criminal force, 11[the
Central or any State Government or Parliament or the Legislature of any
State], or any public servant in the exercise of the lawful power of such
public servant; or
Second.--To resist the execution of any law, or of any legal process; or
Third.--To commit any mischief or criminal trespass, or other offence; or
Fourth.--By means of criminal force, or show of criminal force, to any
person, to take or obtain possession of any property, or to deprive any
person of the enjoyment of a right of way, or of the use of water or other
incorporeal right of which he is in possession or enjoyment, or to enforce
any right or supposed right; or
Fifth.--By means of criminal force, or show of criminal force, to compel any
person to do what he is not legally bound to do, or to omit to do what he is
legally entitled to do.
Explanation.--An assembly which was not unlawful when it assembled, may
subsequently become an unlawful assembly.
149 - Every member of unlawful assembly guilty of offence
committed in prosecution of common object.--
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If an offence is committed by any member of an unlawful assembly in
prosecution of the common object of that assembly, or such as the members
of that assembly knew to be likely to be committed in prosecution of that
object, every person who, at the time of the committing of that offence, is a
member of the same assembly, is guilty of that offence."
79. In Yunis @ Kariya v. State of Madhya Pradesh10, the Supreme
Court reiterated that, even if no overt act is imputed to a particular person, when
the charge is under S.149 IPC, the presence of the accused as part of unlawful
assembly is sufficient for conviction.
80. In Krishnappa and Others. v. State of Karnataka by
Babaleshwara Police Station11, the Supreme Court reiterated the principle of
vicarious liability. Relevant paragraphs are extracted hereunder:
"20. It is now well settled law that the provisions of S.149 IPC
will be attracted whenever any offence committed by any member of an
unlawful assembly in prosecution of the common object of that
assembly, or when the members of that assembly knew that offence is
likely to be committed in prosecution of that object, so that every
person, who, at the time of committing of that offence is a member, will
be also vicariously held liable and guilty of that offence. S.149 IPC
creates a constructive or vicarious liability of the members of the
unlawful assembly for the unlawful acts committed pursuant to the
common object by any other member of that assembly. This principle
ropes in every member of the assembly to be guilty of an offence where
that offence is committed by any member of that assembly in
prosecution of common object of that assembly, or such members or
assembly knew that offence is likely to be committed in prosecution of
that object. [Lalji v. State of U.P., 1989 (1)SCC 437; Allauddin Mian v.
State of Bihar, 1989 (3)SCC5; Ranbir Yadav v. State of Bihar, 1995 (4)
SCC392]. The factum of causing injury or not causing injury would not
be relevant, where accused is sought to be roped in with the aid of
2003(1) SCC 425
AIR 2012 SC 2946
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S.149 IPC. The relevant question to be examined by the court is whether
the accused was a member of an unlawful assembly and not whether he
actually took active part in the crime or not. [State v. Krishna Chand,
2004 (7)SCC629; Deo Narain v. State of Uttar Pradesh, 2010
(12)SCC298].
21. We have carefully perused the relevant records and
statements of the eye witnesses in the case. In our opinion, the
prosecution has clearly established with ample evidence that accused -
A13 and A14 had murdered the deceased. We are in agreement with the
view taken by the Trial Court and High Court. Therefore, the High Court
is right in dismissing the appeal against the order of conviction passed
by the learned Sessions Judge.
22. We are also of the opinion that accused - A1, A15, A16 and
A21 were members of the same assembly which has caused the murder
of the deceased, in terms of S.149 IPC, as they had dragged the
deceased after first assault and contributed in preventing the deceased
from escaping the assault of A13 and A14. Therefore, accused A1, A15,
A16, A21 are guilty of murder along with A13 and A14 under S.302 read
with S.149 IPC.
23. We are afraid that the decisions relied on by Shri. Doabia,
learned Senior Counsel would not come to assist the accused, as in the
present case, there is clear evidence of overt act on the part of the
accused - A1, A15, A16 and A21 who dragged the deceased and
prevented him from escaping the fatal assault to his body."
81. In Suresh Dattu Bhojane v. State of Maharashtra12, the Apex
Court held that the presence of the accused as part of unlawful assembly with
common object is sufficient for conviction under Section 149, even without active
participation in crime or specific role assigned to them.
82. In the case on hand, learned Sessions Judge after a detailed
evaluation of evidence has arrived at a conclusion that accused Nos.1 to 6 had
formed themselves into an unlawful assembly, shared the common object of that
2024 KHC 8258
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assembly and the offences were committed in furtherance of the object of the
unlawful assembly.
83. On reassessment and close scrutiny of the evidence of PWs.1 and 2, it
would clearly establish that accused Nos.1 to 6 were came in an Ambassador car
and overtook the Hero Honda Passion motorcycle driven by the deceased. The
assailants jumped from the car and attacked the deceased Abhilash using swords
and sticks. PWs.1 and 2 would categorically depose that accused No.1, Baiju
inflicted a cut injury on the back side of the neck of the deceased. Accused No.2
inflicted an injury on the left leg and accused No.3 inflicted an injury on the right
leg of the deceased. The available evidence would convincingly establish the
participative presence of all the accused in the incident. PWs.1 and 2 witnessed the
incident in the headlight of the vehicles passing through the road. PW1 asserted
that all the accused are known to him. When he attempted to intervene, the
assailants abused him using filthy language. It has also come out in evidence that
after the incident all the accused persons proceeded to Paravur side in their
Ambassador car.
84. On a careful evaluation of evidence in the light of the principles laid
down by the Apex Court referred to above, we do not find any reasons to disagree
with the conclusion of the learned Sessions Judge on this point also.
Conclusion
85. We have carefully and meticulously evaluated the evidence on record,
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Crl.A. No. 1086 of 2019 and connected cases 38
both oral and documentary and considered the rival submissions. On such
evaluation, reassessment, weighing and testing of the evidence on record, we do
not find any illegality or infirmity in the findings of the learned Sessions Judge as to
the guilt, and conviction. The prosecution has succeeded in proving the charge
against the appellants beyond reasonable doubt. We are in agreement with the
conclusions arrived at by the learned Sessions Judge. The appeals are devoid of
any merit and only to be dismissed, in our considered view.
In the result,
1) Crl.Appeal Nos.1328 of 2019, 1331 of 2019, 1177 of 2019 & 1086 of
2019 are dismissed.
2) The finding of guilt, conviction entered and the sentence passed by
the learned Sessions Judge are confirmed.
Sd/-
RAJA VIJAYARAGHAVAN V
JUDGE
Sd/-
K. V. JAYAKUMAR
JUDGE
BR
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Crl.A. No. 1086 of 2019 and connected cases 39
PETITIONER'S ANNEXURES
Annexure A1 TRUE COPY OF THE MEDICAL CERTIFICATE
27.07.2023 ISSUED BY THE CONSULTANT PHYSICIAN
ATTACHED TO TALUK HOSPITAL, NORTH PARAVUR
Annexure A2 TRUE COPY OF THE PHOTOGRAPHS OF THE
PETITIONER'S MOTHER
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Crl.A. No. 1086 of 2019 and connected cases 40
PETITIONER ANNEXURES
Annexure I CERTIFIED COPY OF THE PETITION IN
CRL.M.P.NO.188/2019 IN S.C.NO.412/2012 DATED
16.05.2019 ON THE FILE ADDL. DISTRICT AND
SESSIONS JUDGE, NORTH PARAVUR.
Annexure II CERTIFIED COPY OF THE MEMO IN CRL.M.P. NO.
188/2019 IN S. C. NO.412/2012 DATED
16.05.2019 ON THE FILE OF ADDITIONAL DISTRICT
AND SESSIONS JUDGE, NORTH PARAVUR.
Annexure III CERTIFIED COPY OF ORDER PASSED BY LEARNED
ADDITIONAL DISTRICT AND SESSIONS JUDGE,NORTH
PARAVUR IN CRL.M.P.NO.188/2019 DATED
22.05.2019.
Annexure IV CERTIFIED COPY OF MEMO FILED BEFORE THE
LEARNED ADDL. DISTRICT AND SESSIONS JUDGE,
NORTH PARAVUR DATED 22.05.2019 TO PRODUCE
FINAL REPORT IN C.C.NO.842/2015 OF JUDICIAL
FIRST CLASS MAGISTRATE COURT, NJARACKAL.
ANNEXURE V CERTIFIED COPY OF THE PROCEEDINGS SHEET IN
S.C.NO.412/2012 ON THE FILE OF ADDITIONAL
DISTRICT AND SESSIONS JUDGE, NORTH PARAVUR.
Annexure VI CERTIFIED COPY OF THE DEPOSITION OF PW1 MISHA
ADDUCED IN C.C.NO.241/2006 ON THE FILES OF
JUDICIAL FIRST CLASS MAGISTRATE COURT, NORTH
PARAVUR.
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Crl.A. No. 1086 of 2019 and connected cases 41
PETITIONER ANNEXURES
Annexure-B TRUE COPY OF THE CERTIFICAE DATED 11-1-2023
ISSUED FROM AVITIS SUPER SPECIALITY HOSPITAL,
NEMMARA, PALAKKAD
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Crl.A. No. 1086 of 2019 and connected cases 42
PETITIONER ANNEXURES
Annexure A1 TRUE PHOTOSTAT COPY OF THE PRESCRIPTION/
CERTIFICATE ISSUED BY DR. TONY FERNANDEZ EYE
HOSPITAL DATED 22.07.2021
Annexure A2 TRUE PHOTOSTAT COPY OF THE MEDICAL RECORDS
REGARDING THE CHECKUP AND DIAGNOSIS OF THE
PETITIONER ISSUED BY THE GOVT. MEDICAL
COLLEGE HOSPITAL THRISSUR DATED 22.10.2022
Annexure A3 TRUE PHOTOSTAT COPY OF THE PRESCRIPTION/
CERTIFICATE ISSUED FROM THE GOVT.MEDICAL
COLLEGE HOSPITAL THRISSUR DATED 31.10.22
