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2020 Supreme(Ker) 784
IN THE HIGH COURT OF KERALA AT ERNAKULAM
A.Hariprasad, M.R.Anitha, JJ.
Rajagopal @ Kembaban Binu, S/O. Chandrasekharan Nair @ Chanthappa Kurup and Ors. – Appellants
Versus
State Of Kerala, Represented By The Public Prosecutor – Respondent
CRL.A.No.125, 87 OF 2017
Decided On : 10-11-2020
Advocate Appeared:
For the Petitioner: Sri.T.A.Shaji (Sr.), Sri.Athul Shaji, Smt.Namitha Jyothish, Advs.
For the Respondent: Sri. S.U. Nazar, Sr.PP
IMPORTANT POINTS:
Even if the police officer is not satisfied with the information given about the commission of cognizable offence, he should make an entry in the general diary and proceed to the place of occurrence and record a complaint there from someone who is in a position to give such report about the commission of the offence
Headnote:
Indian Penal Code- Sections 143, 144, 147, 324, 427, 449, 302 r/w 149 –Death- Unlawful assembly of more than five persons -Defect committed by the prosecution and by the Sessions Judge-The contradictory statements of prosecution witnesses though not were specifically marked and proved through the investigating officer, that alone will not be a ground to discard the prosecution case- the deceased is involved in other criminal cases by itself is not a reason for the accused to take the law into their hands and retaliate.
Statement of facts:
In connection with a dispute in Abkari business between the deceased John Bosco @ Sunny and one Sreekumar, on 20.1.2005, they amputated the right hand of CW12, Lalachan-Deceased Sunny and Sreekumar attacked the 6th accused. Thereafter Sreekumar was got confined under KAPPA and in his absence accused Nos.1 to 3 returned to the place. Out of enmity towards the deceased on 18.11.2007 at 3.45 pm accused Nos.1 to 7 formed themselves into an unlawful assembly, armed themselves with lethal weapons, rioted and in prosecution of the common object of the assembly trespassed into his house and struck him with deadly weapons and inflicted fatal injuries- Based on the FIS he registered Ext.P9 FIR under Sections 143, 144, 147, 148, 149 450, 427, 342, 506(2) and 307 IPC- Thereafter on hearing both sides, the court below found all the appellants guilty under Sections 143, 144, 147, 324, 427, 449, 302 r/w 149 IPC. They were sentenced to undergo rigorous imprisonment for six months each for the offence under Sections 143, 144, 147, 324, 427 r/w 149 IPC, rigorous imprisonment for life and to pay fine of Rs.25,000/-each in default to undergo rigorous imprisonment for six months each for the offence under Sections 449 and 302 r/w 149 IPC. Assailing the conviction and sentence, appellants came up before this court.
Finding of the court:
There was unlawful assembly of more than five persons. The identity of accused No. 1 to 4 alone could be proved conclusively by the prosecution and the identity of accused No.5 to 7 is doubtful and on that ground they are entitled for an acquittal. So our conclusion is that though there are seven accused unquestionably, involvement of accused No.5 to 7 are doubtful. So there need not be any interference in the conviction and sentence passed against accused No.1 to 4 u/s. 143, 144, 147, 324, 427, 449 and 302 r/w. 149 IPC.
Result: Crl.A.No.125/2017 allowed Crl.A.87/2017 is allowed in part
JUDGMENT :
M.R. Anitha, J.
1. Crl.Appeal 87/2017 has been filed by the appellants/accused Nos.1 to 5 and 7 and Crl. Appeal 125/2017 has been filed by the appellant/6th accused, against the conviction and sentence passed in S.C.No.119/2010 on the files of Additional Sessions Court-II, Alappuzha.
2. Prosecution case can be summarized as follows :
3. In connection with a dispute in Abkari business between the deceased John Bosco @ Sunny (hereafter referred as deceased) and one Sreekumar, on 20.1.2005, they amputated the right hand of CW12, Lalachan. Thereafter Sunny and Kumar absconded. Fearing the deceased and Kumar accused Nos.1 to 3 left the place. While so,as pointed out by the sixth accused, the deceased and Sreekumar were booked by the police in connection with unauthorised sale of spirit. Enraged by that, the deceased Sunny and Sreekumar attacked the 6th accused. Thereafter Sreekumar was got confined under KAPPA and in his absence accused Nos.1 to 3 returned to the place. Out of enmity towards the deceased on 18.11.2007 at 3.45 pm accused Nos.1 to 7 formed themselves into an unlawful assembly, armed themselves with lethal weapons, rioted and in prosecution of the common object of the assembly trespassed into his house and struck him with deadly weapons and inflicted fatal injuries.
4. Immediately after the incident, deceased was taken to Medical College hospital, Alappuzha in the autorickshaw of PW6 and from there he was referred to Medical College hospital, Kottayam. He died on the same day at about 9.40 p.m. while undergoing treatment.
5. PW15 the Lecturer in Forensic Medicine and Assistant Surgeon, Medical College hospital, conducted post-mortem on the body of the deceased. While undergoing treatment at Medical College hospital, PW7 the brother of the deceased Sunny who also sustained injury on his finger, gave Ext.P1 FI statement to PW17, the Sub Inspector of police, Mararikulam during the relevant time. He prepared body note of PW1. PW17, as per the direction of the Circle Inspector, Mararikulam on 19.11.2007 at 1.30 pm, prepared the scene mahazar which is marked as Ext.P10 and he seized MO8 to 12 by describing in the mahazar. Based on the FIS he registered Ext.P9 FIR under Sections 143, 144, 147, 148, 149 450, 427, 342, 506(2) and 307 IPC. Thereafter PW18 the Circle Inspector of police, Mararikulam conducted investigation of this case, prepared Ext.P12 inquest report and questioned witnesses. He filed Ext.P13 report adding Sections 449, 302, 324 IPC and deleting Sec.450 and 307 IPC. He arrested, accused Nos.2 and 3 on 1.12.2007 and first accused on 6.12.2007 and 4th accused on 14.12.2007 and accused Nos.5 to 7 on 3.2.2007. He sent the material objects to FSL after preparing the forwarding note, Ext.P28. Ext.P29 is the FSL report. Thereafter he completed the investigation and filed the charge.
6. On the side of the prosecution, PW1 to 18 were examined and Exts.P1 to P31 were marked. MO1 to MO16 were identified and marked. DW1 examined on the side of the accused. Thereafter on hearing both sides, the court below found all the appellants guilty under Sections 143, 144, 147, 324, 427, 449, 302 r/w 149 IPC. They were sentenced to undergo rigorous imprisonment for six months each for the offence under Sections 143, 144, 147, 324, 427 r/w 149 IPC, rigorous imprisonment for life and to pay fine of Rs.25,000/-each in default to undergo rigorous imprisonment for six months each for the offence under Sections 449 and 302 r/w 149 IPC. Assailing the conviction and sentence, appellants came up before this court.
7. Notice was issued to the respondent. Respondent appeared through the learned public prosecutor. Lower court records were called for and perused. Heard Sri.T.A.Shaji, the learned counsel for the accused and Sri.S.U.Nazar, the learned senior public prosecutor. Adv.V.S.Salim counsel for the appellant/6th accused in Crl.A.125/2017 endorsed the arguments of Adv.T.A.Shaji.
8. The learned counsel for the accused, Sri.T.A.Shaji assailed
