KERALA HIGH COURT Author: N.K.Balakrishnan Bench: Pius C.Kuriakose, N.K.Balakrishnan IN THE HIGH COURT OF KERALA AT ERNAKULAM CRL.A. No. 1040 of 2006 1. EDAKKANDI DINESHAN @ PILIPP DINESHAN, Petitioner 2. PANNIYODAN SIVADASAN @ SIVATTY, 3. EDAKANDI ASHOKAN @ KOKKODAN ASHOKAN, 4. K.V.MAHESH, S/O. SURENDRAN, Vs 1. STATE OF KERALA N.K. Balakrishnan, J. Out of the 15 accused who faced trial, accused Nos.1 to 14 were found guilty and convicted by the learned Sessions Judge, Thalassery for offences punishable under Sections 143, 147, 506(II) and 302 IPC r/w 149 IPC. Accused Nos.2, 3, 11 and 12 were convicted under Section 148 IPC also. Besides accused No.3 was convicted for the offence under Section 5 of the Explosive Substance Act. They were sentenced to undergo imprisonment for life for the offence punishable under Section 302 IPC r/w 149 IPC. Besides, they were sentenced to undergo imprisonment for various terms for other offences mentioned above. They were also directed to pay Rs.2,00,000/- each as compensation to the legal heirs of the deceased victims. Accused No.15 was acquitted by the learned Sessions Judge. 2. The gist of the prosecution case can be stated thus:- On 1.3.2002 there was a harthal called by VHP/RSS. At about noon, there was an altercation between members of CPI(M) and RSS people at a place near Kalamandhir in Dharmadom Amsom. In connection with that harthal there were clashes during the daytime between those two factions at Dharmadom and other places. Being afraid of CPI(M) people, 11 persons including the two victims - Sujeesh and Sunil decided to stay during night near a shed situated on the bund/'chira' situated by the side of Meloor river. After midnight, at about 1 AM, while those 11 persons were on the bund, they saw about 15 persons coming from the eastern side and also about another 15 persons coming from the northern side towards the place where the aforesaid 11 persons including PW1 were lying or sitting. In the moonlight PW1 and others saw those assailants approaching towards them carrying deadly weapons. All of them were alerted, but Sujeesh and Sunil were asleep. Others rushed towards the river while the assembly consisting of the assailants inflicted fatal injuries on Sujeesh and Sunil. After a short while, the assailants left the place. PW1 and others went near the shed where they found Sujeesh writhing having been inflicted with fatal injuries. Sunil was not seen there. The body of Sujeesh was taken by PW1 and others to the road near Kalamandhir where there was a police picket. From there, the body of Sujeesh was removed to the Co-operative Hospital, Thalassery in the police jeep. The doctor (PW3) examined and pronounced Sujeesh dead. The dead body of Sujeesh was thereafter removed to the Govt. Hospital, Thalassery. PW1 - Jithesh who had accompanied the dead body to the Co-operative Hospital and thereafter to Govt. Hospital, Thalassery went to the police station and gave the First Information Statement (Ext.P1), based on which Ext.P1(a), the First Information Report was registered by PW15, the A.S.I. of Police, Dharmadom Police Station. The investigation was conducted by PW19, the C.I. of Police. After completing the investigation the charge sheet was laid against 15 accused persons. 3. The learned Sessions Judge framed charges against the accused alleging commission of offences under Sections 143, 147, 148, 341, 506(II) and 302 IPC r/w 149 IPC and also under Section 5 of the Explosive Substance Act. The accused pleaded not guilty. 4. PW1 to PW20 were examined and Exts.P1 to P22(e) were marked. Besides, MO1 to MO8(a) were also identified and marked on behalf of the prosecution. 5. When examined under Section 313 Cr.P.C., the accused contended that the prosecution case is a fabricated one and that they were falsely implicated in this case. Two witnesses were examined on their side. Including the portions of the statements of prosecution witnesses marked as contradictions, Exts.D1 to D13(c) were marked. Exts.X1 and X2, the case diaries in two crimes of Dharmadom Police Station were also got marked on behalf of the defence. 6. Learned Sessions Judge found accused Nos.1 to 14 guilty of the offences and convicted and sentenced them for the various offences as mentioned earlier. The accused were found not guilty of the offence u/s 341 IPC. 7. The accused/appellants contend that the evidence adduced by the prosecution is not credible and that the complicity of the accused was not proved by the prosecution beyond reasonable doubt. The defence put up by the accused was not properly considered by the learned Sessions Judge in its correct perspective. The evidence would show that there was shifting of place of occurrence; the place of occurrence shown in Ext.P13 plan is contradictory to the description given in Ext.P7 scene mahazar and the description of the premises mentioned in inquest report. There was no proper identification of the accused as there was no proper light. That the alleged place of occurrence is surrounded by thick mangroves and that the witnesses had jumped into the river and so it was not possible for the witnesses to see the incident were not properly considered by the learned trial Judge. The evidence given by Pws.1, 2 and 4 regarding the identity of the assailants should not have been accepted by the learned Sessions Judge. As there was evidence to show that PW20 the Police Officer was informed of the incident that was sufficient to register a case but they waited till 3AM to register the F.I.R. The First Information Report was lodged only after due deliberation and consultation. The FIR was ante-timed. The delay in FIR reaching the court was not properly explained. Since the police was convinced that Ashraf, who was named in the FIR was not actually involved in the crime, it should have been duly taken note of to doubt the entire prosecution version. It should have been found that the weapons were planted by the police at certain place and so the recovery of the weapons was not in accordance with Section 27 of the Evidence Act. There is no definite finding by the court below that all the accused formed themselves into an unlawful assembly with a common object. No overt act was alleged against the accused other than accused Nos.1 to 3, 11 and 12 to find them guilty with the aid of Section 149 of IPC. There were material contradictions in the evidence given by the three witnesses who were relied upon by the learned Sessions Judge. Hence the accused/appellants contend that the conviction and sentence passed against them are unsustainable. 8. The learned senior counsel Sri. M.K. Damodharan appearing for the appellants and the learned Addl. Director General of Prosecution were heard. 9. As against the verdict of acquittal passed in favour of A15 (M.Sampath Kumar), a criminal revision - has been filed by the father of Sujeesh, one of the victims in this case. The learned counsel Sri.S.Rajeev, appearing for the revision petitioner has argued at length assailing the verdict of acquittal passed against accused No.15. 10. The following points arise for consideration:- (i)What is the cause of death of Sujeesh and Sunil, the victims in this case? (ii)Whether on 2.3.2002 at about 1.00 AM the accused/appellants and about 15 others formed themselves into an unlawful assembly with the common object of causing the death of Sujeesh, Sunil and others who were on the bund situated by the side of Meloor river? (iii)Whether the accused and other persons mentioned above in prosecution of the common object of causing the death of the persons mentioned above committed rioting with deadly weapons like dagger, chopper, axe, crowbar, iron rods etc. at the time and place mentioned above? (iv)Whether the accused/appellants in prosecution of the common object of the unlawful assembly committed criminal intimidation to the deceased and 9 other persons who were on the bund at the relevant time, by putting them in fear of death? (v)Whether in prosecution of the common object of the unlawful assembly the accused/appellants and others, all or any of them with the intention to cause death, caused the death of Sujeesh and Sunil by inflicting fatal injuries with dagger, chopper, axe (hatchet) etc.? (vi)Whether the accused/appellants along with others in prosecution of the common object of the unlawful assembly used (threw) a steel bomb, an explosive substance? (vii)Whether the conviction and sentence passed against the accused/appellants are unsustainable on any of the grounds urged by the appellants? (viii)Whether there is any illegality in the verdict of acquittal passed in favour of accused No.15-Sampath Kumar? 11. Point No.(i) :- Ext.P5 is the postmortem certificate issued by PW7 for having conducted postmortem examination at 12.05 PM on 2.3.2002 on the body of Sunil, one of the victims in this case. The following ante-mortem injuries were noted by PW7:- "1. Incised wound of 9 x 5 cms obliquely placed over right lower chest lateral side. Fracture of 9 and 10th ribs and incised wound over supero lateral aspect of liver and pinetrating to thoracic cavity and injuring the posterior surface or ventricular wall 2.5 cm long. 2. Incised wound of 3 x 2 cms vertically placed 3 cms below the right costal margin. Small intestine protruding through the wound extending deeply to peritonel cavity injury the lower border of liver and intestine. 3. Incised wound of 3 x 1.5 x 2.5 cms tranversely placed wound extending downwards over the chest not entered into chest cavity. 4. Loss of tissue on left side of face and middle part of both lips on left side and part of cheek was slashed away and exposing the tooth and gums. 5. Lacerated wound lower lip on right side. 6. Lacerated injury 6 x 5 cms Ulnar aspect or left wrist and forearm with fractured ends of born seen through the wound. 7. Lacerated injury base of left thumb over the extensor aspect. 8. Incised wound over the thenar eminence just distal to wrist left. 9. Incised wound of 4 x 2 x 2 vertically placed on the midline over lumbar spine. 10. Incised wound of 4 x 2 cms vertically placed over left scapular region 3.5 cms depth directed downwards injuring the muscles. 11. Linear abrasion of 12 cm right upper arm over lateral aspect. Injuries :- Lung : Injury to lower lobe of lung right. Liver : Injury to liver over the superior aspect and interior border. One litre of blood in the pleural, 0.5 litre of blood in the peritoneal cavity." It was opined by PW7 that the death of Sunil was due to injuries caused to vital organs like liver, lung, heart and shock resulting from loss of blood. It was stated by him that injuries 1, 2 and 3 are sufficient in the ordinary course of nature to cause death of the victim. When MO1 axe, MO2 chopper and MO3 dagger were shown to the doctor and a single question was put to him, he simply stated that those weapons could cause the injuries. The way in which the question was put to the doctor by the learned prosecutor and the answer given and recorded by the court was critically commented upon by the learned senior counsel appearing for the accused. The nature of the injuries as can be seen from Ext.P5 would leave no doubt that fatal incised injuries could be caused only by stabbing with MO3 dagger or a dagger like MO3 or a knife. It is inconceivable why the learned Prosecutor did not show each of the weapons separately and why specific reference was not made to each of the injuries as to the possibility of those injuries being caused by MO1, MO2 and MO3 separately. The learned counsel for the accused would submit that the learned Sessions Judge had also a duty to see that an expert witness gives an opinion specifically with reference to each of the weapons referring to each of the injuries (atleast fatal injuries). But that was not done. Since the fatal injuries 1 to 3 are incised wounds of sufficient depth there can be no doubt that those injuries could be caused by stabbing with MO3 dagger or a weapon like MO3. Some of the injuries could be caused by chopper and other injuries could be caused by striking or cutting with axe/hatchet. KERALA HIGH COURT Author: N.K.Balakrishnan Bench: Pius C.Kuriakose, N.K.Balakrishnan IN THE HIGH COURT OF KERALA AT ERNAKULAM CRL.A. No. 1040 of 2006 1. EDAKKANDI DINESHAN @ PILIPP DINESHAN, Petitioner 2. PANNIYODAN SIVADASAN @ SIVATTY, 3. EDAKANDI ASHOKAN @ KOKKODAN ASHOKAN, 4. K.V.MAHESH, S/O. SURENDRAN, Vs 1. STATE OF KERALA N.K. Balakrishnan, J. Out of the 15 accused who faced trial, accused Nos.1 to 14 were found guilty and convicted by the learned Sessions Judge, Thalassery for offences punishable under Sections 143, 147, 506(II) and 302 IPC r/w 149 IPC. Accused Nos.2, 3, 11 and 12 were convicted under Section 148 IPC also. Besides accused No.3 was convicted for the offence under Section 5 of the Explosive Substance Act. They were sentenced to undergo imprisonment for life for the offence punishable under Section 302 IPC r/w 149 IPC. Besides, they were sentenced to undergo imprisonment for various terms for other offences mentioned above. They were also directed to pay Rs.2,00,000/- each as compensation to the legal heirs of the deceased victims. Accused No.15 was acquitted by the learned Sessions Judge. 2. The gist of the prosecution case can be stated thus:- On 1.3.2002 there was a harthal called by VHP/RSS. At about noon, there was an altercation between members of CPI(M) and RSS people at a place near Kalamandhir in Dharmadom Amsom. In connection with that harthal there were clashes during the daytime between those two factions at Dharmadom and other places. Being afraid of CPI(M) people, 11 persons including the two victims - Sujeesh and Sunil decided to stay during night near a shed situated on the bund/'chira' situated by the side of Meloor river. After midnight, at about 1 AM, while those 11 persons were on the bund, they saw about 15 persons coming from the eastern side and also about another 15 persons coming from the northern side towards the place where the aforesaid 11 persons including PW1 were lying or sitting. In the moonlight PW1 and others saw those assailants approaching towards them carrying deadly weapons. All of them were alerted, but Sujeesh and Sunil were asleep. Others rushed towards the river while the assembly consisting of the assailants inflicted fatal injuries on Sujeesh and Sunil. After a short while, the assailants left the place. PW1 and others went near the shed where they found Sujeesh writhing having been inflicted with fatal injuries. Sunil was not seen there. The body of Sujeesh was taken by PW1 and others to the road near Kalamandhir where there was a police picket. From there, the body of Sujeesh was removed to the Co-operative Hospital, Thalassery in the police jeep. The doctor (PW3) examined and pronounced Sujeesh dead. The dead body of Sujeesh was thereafter removed to the Govt. Hospital, Thalassery. PW1 - Jithesh who had accompanied the dead body to the Co-operative Hospital and thereafter to Govt. Hospital, Thalassery went to the police station and gave the First Information Statement (Ext.P1), based on which Ext.P1(a), the First Information Report was registered by PW15, the A.S.I. of Police, Dharmadom Police Station. The investigation was conducted by PW19, the C.I. of Police. After completing the investigation the charge sheet was laid against 15 accused persons. 3. The learned Sessions Judge framed charges against the accused alleging commission of offences under Sections 143, 147, 148, 341, 506(II) and 302 IPC r/w 149 IPC and also under Section 5 of the Explosive Substance Act. The accused pleaded not guilty. 4. PW1 to PW20 were examined and Exts.P1 to P22(e) were marked. Besides, MO1 to MO8(a) were also identified and marked on behalf of the prosecution. 5. When examined under Section 313 Cr.P.C., the accused contended that the prosecution case is a fabricated one and that they were falsely implicated in this case. Two witnesses were examined on their side. Including the portions of the statements of prosecution witnesses marked as contradictions, Exts.D1 to D13(c) were marked. Exts.X1 and X2, the case diaries in two crimes of Dharmadom Police Station were also got marked on behalf of the defence. 6. Learned Sessions Judge found accused Nos.1 to 14 guilty of the offences and convicted and sentenced them for the various offences as mentioned earlier. The accused were found not guilty of the offence u/s 341 IPC. 7. The accused/appellants contend that the evidence adduced by the prosecution is not credible and that the complicity of the accused was not proved by the prosecution beyond reasonable doubt. The defence put up by the accused was not properly considered by the learned Sessions Judge in its correct perspective. The evidence would show that there was shifting of place of occurrence; the place of occurrence shown in Ext.P13 plan is contradictory to the description given in Ext.P7 scene mahazar and the description of the premises mentioned in inquest report. There was no proper identification of the accused as there was no proper light. That the alleged place of occurrence is surrounded by thick mangroves and that the witnesses had jumped into the river and so it was not possible for the witnesses to see the incident were not properly considered by the learned trial Judge. The evidence given by Pws.1, 2 and 4 regarding the identity of the assailants should not have been accepted by the learned Sessions Judge. As there was evidence to show that PW20 the Police Officer was informed of the incident that was sufficient to register a case but they waited till 3AM to register the F.I.R. The First Information Report was lodged only after due deliberation and consultation. The FIR was ante-timed. The delay in FIR reaching the court was not properly explained. Since the police was convinced that Ashraf, who was named in the FIR was not actually involved in the crime, it should have been duly taken note of to doubt the entire prosecution version. It should have been found that the weapons were planted by the police at certain place and so the recovery of the weapons was not in accordance with Section 27 of the Evidence Act. There is no definite finding by the court below that all the accused formed themselves into an unlawful assembly with a common object. No overt act was alleged against the accused other than accused Nos.1 to 3, 11 and 12 to find them guilty with the aid of Section 149 of IPC. There were material contradictions in the evidence given by the three witnesses who were relied upon by the learned Sessions Judge. Hence the accused/appellants contend that the conviction and sentence passed against them are unsustainable. 8. The learned senior counsel Sri. M.K. Damodharan appearing for the appellants and the learned Addl. Director General of Prosecution were heard. 9. As against the verdict of acquittal passed in favour of A15 (M.Sampath Kumar), a criminal revision - has been filed by the father of Sujeesh, one of the victims in this case. The learned counsel Sri.S.Rajeev, appearing for the revision petitioner has argued at length assailing the verdict of acquittal passed against accused No.15. 10. The following points arise for consideration:- (i)What is the cause of death of Sujeesh and Sunil, the victims in this case? (ii)Whether on 2.3.2002 at about 1.00 AM the accused/appellants and about 15 others formed themselves into an unlawful assembly with the common object of causing the death of Sujeesh, Sunil and others who were on the bund situated by the side of Meloor river? (iii)Whether the accused and other persons mentioned above in prosecution of the common object of causing the death of the persons mentioned above committed rioting with deadly weapons like dagger, chopper, axe, crowbar, iron rods etc. at the time and place mentioned above? (iv)Whether the accused/appellants in prosecution of the common object of the unlawful assembly committed criminal intimidation to the deceased and 9 other persons who were on the bund at the relevant time, by putting them in fear of death? (v)Whether in prosecution of the common object of the unlawful assembly the accused/appellants and others, all or any of them with the intention to cause death, caused the death of Sujeesh and Sunil by inflicting fatal injuries with dagger, chopper, axe (hatchet) etc.? (vi)Whether the accused/appellants along with others in prosecution of the common object of the unlawful assembly used (threw) a steel bomb, an explosive substance? (vii)Whether the conviction and sentence passed against the accused/appellants are unsustainable on any of the grounds urged by the appellants? (viii)Whether there is any illegality in the verdict of acquittal passed in favour of accused No.15-Sampath Kumar? 11. Point No.(i) :- Ext.P5 is the postmortem certificate issued by PW7 for having conducted postmortem examination at 12.05 PM on 2.3.2002 on the body of Sunil, one of the victims in this case. The following ante-mortem injuries were noted by PW7:- "1. Incised wound of 9 x 5 cms obliquely placed over right lower chest lateral side. Fracture of 9 and 10th ribs and incised wound over supero lateral aspect of liver and pinetrating to thoracic cavity and injuring the posterior surface or ventricular wall 2.5 cm long. 2. Incised wound of 3 x 2 cms vertically placed 3 cms below the right costal margin. Small intestine protruding through the wound extending deeply to peritonel cavity injury the lower border of liver and intestine. 3. Incised wound of 3 x 1.5 x 2.5 cms tranversely placed wound extending downwards over the chest not entered into chest cavity. 4. Loss of tissue on left side of face and middle part of both lips on left side and part of cheek was slashed away and exposing the tooth and gums. 5. Lacerated wound lower lip on right side. 6. Lacerated injury 6 x 5 cms Ulnar aspect or left wrist and forearm with fractured ends of born seen through the wound. 7. Lacerated injury base of left thumb over the extensor aspect. 8. Incised wound over the thenar eminence just distal to wrist left. 9. Incised wound of 4 x 2 x 2 vertically placed on the midline over lumbar spine. 10. Incised wound of 4 x 2 cms vertically placed over left scapular region 3.5 cms depth directed downwards injuring the muscles. 11. Linear abrasion of 12 cm right upper arm over lateral aspect. Injuries :- Lung : Injury to lower lobe of lung right. Liver : Injury to liver over the superior aspect and interior border. One litre of blood in the pleural, 0.5 litre of blood in the peritoneal cavity." It was opined by PW7 that the death of Sunil was due to injuries caused to vital organs like liver, lung, heart and shock resulting from loss of blood. It was stated by him that injuries 1, 2 and 3 are sufficient in the ordinary course of nature to cause death of the victim. When MO1 axe, MO2 chopper and MO3 dagger were shown to the doctor and a single question was put to him, he simply stated that those weapons could cause the injuries. The way in which the question was put to the doctor by the learned prosecutor and the answer given and recorded by the court was critically commented upon by the learned senior counsel appearing for the accused. The nature of the injuries as can be seen from Ext.P5 would leave no doubt that fatal incised injuries could be caused only by stabbing with MO3 dagger or a dagger like MO3 or a knife. It is inconceivable why the learned Prosecutor did not show each of the weapons separately and why specific reference was not made to each of the injuries as to the possibility of those injuries being caused by MO1, MO2 and MO3 separately. The learned counsel for the accused would submit that the learned Sessions Judge had also a duty to see that an expert witness gives an opinion specifically with reference to each of the weapons referring to each of the injuries (atleast fatal injuries). But that was not done. Since the fatal injuries 1 to 3 are incised wounds of sufficient depth there can be no doubt that those injuries could be caused by stabbing with MO3 dagger or a weapon like MO3. Some of the injuries could be caused by chopper and other injuries could be caused by striking or cutting with axe/hatchet. Submit