Crl. A. No. 1792 of 2011. Case: Mujeeb and Ors. Vs State. High Court of Kerala (India)

Case NumberCrl. A. No. 1792 of 2011
CounselFor Appellant: B. Raman Pillai, Senior Advocate, R. Anil, T. Anil Kumar, Manu Tom, Sujesh Menon V.B. and Shyam Aravind, Advs. and For Respondents: Suresh Babu Thomas, Addl. Director General of Prosecution
JudgesP.R. Ramachandra Menon and A. Hariprasad, JJ.
IssueCode of Criminal Procedure, 1973 (CrPC) - Section 154; Indian Evidence Act, 1872 - Section 27; Indian Penal Code 1860, (IPC) - Sections 300, 302, 323, 34, 341
Judgement DateJanuary 10, 2017
CourtHigh Court of Kerala (India)

Judgment:

A. Hariprasad, J.

  1. Aggrieved by the convictions under Sections 341 and 302 read with Section 34 of the Indian Penal Code, 1860 (in short, "IPC") and the sentences handed over, the two accused persons in S.C. No. 237 of 2007 on the file of the Additional Sessions Judge-I, Mavelikkara have preferred this appeal.

  2. The prosecution case, as unfolded from the final report, is that on 14.09.2005, at about 9.30 p.m., PW1 blasted fire crackers in the autorickshaw stand near Choonadu market of Vallikunnam Village. The appellants along with another person came on a motor cycle and demanded PW1 to desist from blasting crackers. But he continued with his action. Infuriated by the attitude of PW1, there was exchange of words between him and the appellants. The 1st appellant assaulted PW1 and beat him on head and chest. PW2 and deceased Biju intervened. Later at the instance of Biju, a complaint was filed against the appellants in connection with this incident. Due to the animosity, the appellants on the same day at 9.45 p.m. in furtherance of their common intention wrongfully restrained deceased Biju and others by stopping the autorickshaw in which they were taking PW1 to hospital. When the appellants obstructed their passage, deceased Biju alighted from the autorickshaw and questioned the act. 1st appellant kicked on Biju's stomach causing his fall and the 2nd appellant stabbed him with MO1 knife on chest. Deceased Biju succumbed to the injuries on the way to hospital.

  3. Prosecution examined 20 witnesses and 16 documents were marked. On the defence side, three witnesses testified and three documents marked. MOs. 1 to 5 are the material objects.

  4. We heard learned Senior Counsel Sri. B. Raman Pillai appearing for the appellants and the learned Additional Director General of Prosecution Sri. Suresh Babu Thomas.

  5. The trial court mainly relied on the testimony of PWs 3 and 4 to uphold the prosecution contention regarding the incident. PWs 1 and 2, though cited as eye witnesses, refused to support the prosecution case in its entirety. Testimony of the official witnesses, the investigating officer especially, were also relied on by the court below.

  6. Learned Senior Counsel appearing for the appellants contended that the court below failed to appreciate the evidence correctly and finding of the guilt entered by the trial court is not based on the true construction of evidence. Before dealing with the legal questions raised, we shall deal with the facts of the case as spoken to by the witnesses.

  7. PW1 is the maker of Ext. P1 first information statement (FIS). In Ext. P1, the case narrated by him is as follows: On 14.09.2005 at about 9.30 p.m., he was attempting to blast crackers in the autorickshaw stand close to Choonad market junction. At that time, the appellants and one Ajay came on a motor cycle and restrained him from blasting crackers. A duel followed by a scuffle occurred. The 1st appellant hit PW1 with bare hand. On seeing this, PW2 and deceased Biju came to his rescue. They attempted to take him to Oachira Hospital. When they reached near Shalimar Auditorium at Choonad South Junction, the appellants came on a motor cycle and waylaid. At that time, another person whose name was not known was also present with the appellants. PW2 was driving the autorickshaw. Along with him, deceased Biju was sitting in the front seat. When Autorickshaw was stopped, Biju got down. He questioned the act of 1st appellant. At that time, instantaneously the 1st appellant kicked deceased Biju. He fell supine on the road. At that time the 2nd appellant took out a knife from his groin and stabbed on left side of the chest of Biju. Biju cried out on receiving the stab. Immediately Biju was boarded in the autorickshaw and went to a private hospital by name Choonad Medical Centre. On examination, the Doctor advised that Biju should be immediately taken to the Government Hospital, Kayamkulam. When he was admitted to the Government Hospital, Kayamkulam, Doctor examined him and found dead. The incident was at 9.45 p.m. on 14.09.2005. When PW1 was examined, he spoke about the first part of the incident in accordance with the prosecution case. His deposition will show that there was a scuffle in connection with the breaking of fire crackers. Thereafter they went to the hospital in the autorickshaw driven by PW2. On seeing some persons near Choonad South Junction, the autorickshaw was stopped. There was an altercation and he saw Biju falling down. He found Biju in a state of despair. He was taken to a hospital. Doctor in the private hospital examined and asked them to take Biju to a Government Hospital. The prosecution wanted this witness to speak that the 2nd appellant stabbed Biju with MO1 knife, which he refused. Therefore, this witness was declared hostile to the prosecution and the prosecutor cross examined him. In the cross examination by the prosecutor, he admitted much of the prosecution case, except the fact that the 2nd appellant inflicted a stab injury to the deceased. PW1 admitted that he subscribed signature to Ext. P1. The hostility shown by this witness to the prosecution case will not weaken the prosecution case for the reason that there are certain aspects spoken to by this witness in support of the prosecution case. The first part of the incident has come out through this witness. That apart, the transactions immediately after the incident were also narrated by this witness. He only refused to implicate the 2nd appellant with the stabbing incident.

  8. PW2 was also participant in the first and second incidents. When examined by the prosecution, he also refused to state that the 2nd appellant assaulted deceased Biju with MO1 knife. But this witness would depose in chief examination that when he lifted the body of Biju from the road after the incident, deceased Biju told that the 2nd appellant stabbed him. This fact happened immediately after the incident, though not spoken to by PW1, has come in evidence through this witness. The prosecutor with the permission of the court has cross examined this witness. In the cross examination, answers have been elicited to the effect that PW3 was also present at the time of occurrence. All the transactions that took place immediately after the incident have been spoken to by this witness.

  9. PW3 is the star witness for the prosecution. His presence at the place of occurrence at the time of incident is unchallenged. He testified that on 14.09.2005 at about 9.30 p.m., the incident in relation to blasting of crackers had happened. Thereafter, the parties went away. PW1 and deceased Biju wanted to file a complaint before the police in connection with the first incident. At that time, PW1 stated that he was feeling pain over body. Then Biju said that he would better go to a hospital. While they were travelling in the autorickshaw of PW2, he informed that there was no sufficient fuel to reach Kayamkulam. Therefore, they deviated the route to fill fuel before going to Kayamkulam. When they were proceeding, the autorickshaw was blocked by a motor cycle in which the appellants and another person came. Then, as stated by other witnesses, Biju came out of the autorickshaw and questioned the 1st appellant. Immediately he kicked Biju and he fell down. In the process of...

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