Back
2021 Supreme(Online)(KER) 30910
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN &
THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.
THURSDAY, THE 21ST DAY OF OCTOBER 2021 / 29TH ASWINA, 1943 CRL.A NO. 858 OF 2016 CRIME NO.105/2001 OF Thumba Police Station, Thiruvananthapuram AGAINST THE ORDER/JUDGMENT IN SC 1271/2004 OF I ADDITIONAL DISTRICT COURT, TRIVANDRUM, THIRUVANANTHAPURAM CP 49/2002 OF JUDICIAL MAGISTRATE OF FIRST CLASS -II,TRIVANDRUM, THIRUVANANTHAPURAM APPELLANT/S:
LEEN MARIYAN @ SASI, S/O.MARIYAN, THAIVILAKAM VEEDU, TC NO.81/610(U), NEAR VALIYAVELI CHURCH, ATTIPRA VILLAGE.
BY ADVS.
SMT.K.KUSUMAM SRI.K.KALESH RESPONDENT/S:
STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, ERNAKULAM, THIRUVANANTHAPURAM DISTRICT.
BY SRI.ALEX M.THOMBRA, PUBLIC PROSECUTOR THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON
30.09.2021, ALONG WITH CRL.A.111/2017, 777/2016, 788/2016, AND THE COURT ON 21.10.2021 DELIVERED THE FOLLOWING:
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN &
THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.
THURSDAY, THE 21ST DAY OF OCTOBER 2021 / 29TH ASWINA, 1943 CRL.A NO. 111 OF 2017 CRIME NO.105/2001 OF Thumba Police Station, Thiruvananthapuram AGAINST THE ORDER/JUDGMENT IN SC 1271/2004 OF I ADDITIONAL DISTRICT COURT, TRIVANDRUM, THIRUVANANTHAPURAM CP 49/2002 OF JUDICIAL MAGISTRATE OF FIRST CLASS -II,TRIVANDRUM, THIRUVANANTHAPURAM APPELLANT/S:
EAPEN, S/O.GEORGE @ JANSILI, THAIVILAKAM HOUSE, T.C. 81/604, NEAR VALIYAVELI CHURCH, KOLLUMURI MURI, ATTIPRA VILLAGE, THIRUVANANTHAPURAM.
BY ADVS.
SRI.K.C.ELDHO SRI.ANEESH JAMES SRI.JIJO THOMAS SRI.KANDAMPULLY VIKRAM SRI.MALLENATHAN.M. SRI.M.REVIKRISHNAN RESPONDENT/S:
STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.
BY SRI.ALEX M.THOMBRA, PUBLIC PROSECUTOR THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON
30.09.2021, ALONG WITH CRL.A.858/2016, 788/2016, 777/2016, THE COURT ON 21.10.2021 DELIVERED THE FOLLOWING:
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN &
THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.
THURSDAY, THE 21ST DAY OF OCTOBER 2021 / 29TH ASWINA, 1943 CRL.A NO. 777 OF 2016 CRIME NO.105/2001 OF Thumba Police Station, Thiruvananthapuram AGAINST THE ORDER/JUDGMENT IN SC 1271/2004 OF I ADDITIONAL DISTRICT COURT, TRIVANDRUM, THIRUVANANTHAPURAM CP 49/2002 OF JUDICIAL MAGISTRATE OF FIRST CLASS -II,TRIVANDRUM, THIRUVANANTHAPURAM APPELLANT/S: 1 RAJAN, S/O.MARIYAN, THAIVILAKAM VEEDU, TC 81/593(P), NEAR VALIYAVELI CHURCH, KOLLUMURI MURI, ATTIPARA VILLAGE, THIRUVANANTHAPURAM.
2 KUNJUMON, S/O.KOCHANTONY, RANI BHAVAN, TC 81/606, NEAR VALIAYAVELI CHURCH, KOLLUMAURI, ATTIPARA, THIRUVANANTHAPURAM.
SRI.B.RAMAN PILLAI (SR.)
SRI.R.ANIL SRI.T.ANIL KUMAR SRI.A.RAJESH SRI.M.SUNILKUMAR SRI.SUJESH MENON V.B.
SRI.THOMAS ABRAHAM NILACKAPPILLIL SRI.E.VIJIN KARTHIK RESPONDENT/S:
STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.
BY SRI.ALEX M.THOMBRA, PUBLIC PROSECUTOR THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON
30.09.2021, ALONG WITH CRL.A.858/2016, 111/2017, 788/2016, THE COURT ON 21.10.2021 DELIVERED THE FOLLOWING:
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN &
THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.
THURSDAY, THE 21ST DAY OF OCTOBER 2021 / 29TH ASWINA, 1943 CRL.A NO. 788 OF 2016 CRIME NO.105/2001 OF Thumba Police Station, Thiruvananthapuram AGAINST THE ORDER/JUDGMENT IN SC 1271/2004 OF I ADDITIONAL DISTRICT COURT, TRIVANDRUM, THIRUVANANTHAPURAM CP 49/2002 OF JUDICIAL MAGISTRATE OF FIRST CLASS -II,TRIVANDRUM, THIRUVANANTHAPURAM APPELLANT/S:
1 CLEMENT, AGED 53 YEARS, S/O.JAMES, AGED 53 YEARS, THAIVILAKAM VEEDU, TC NO.81/603, NEAR VALIYAVELI CHURCH, KOLLUMURI MURI, ATTIPPRA VILLAGE.
2 BIJU, AGED 50 YEARS, S/O.JAMES, THAIVILAKAM VEEDU, TC NO. 81/603, NEAR VALIYAVELI CHURCH, KOLLUMURI MURI, ATTIPRA VILLAGE. BY ADVS.
SRI.S.RAJEEV SRI.K.K.DHEERENDRAKRISHNAN SRI.D.FEROZE SRI.K.P.JUSTINE KARIPAT SRI.V.VINAY RESPONDENT/S:
STATE OF KERALA, REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM -682 031. (CRIME NO.105/2001 OF THUMPA POLICE STATION, THIRUVANANTHAPURAM)
BY SRI.ALEX M.THOMBRA, PUBLIC PROSECUTOR THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON
30.09.2021, ALONG WITH CRL.A.858/2016, 777/2016, 111/2017, THE COURT ON 21.10.2021 DELIVERED THE FOLLOWING:
K.VINOD CHANDRAN & ZIYAD RAHMAN A.A., JJ.
---------------------------------------------------------------------------
Crl.A.Nos.858 of 2016, 788 of 2016, 777 of 2016 &
111 of 2017 ----------------------------------------------------------------------------
Dated this the 21st day of October, 2021
['SMT K KUSUMAM', '', 'SRI K KALESH', 'PUBLIC PROSECUTOR', '']
J U D G M E N T
Ziyad Rahman A.A., J.
The appellants in these appeals are accused Nos. 2, 3, 5, 6, 7 and 8 in S.C.No.1271 of 2004 on the file of the Additional Sessions Court-I, Thiruvananthapuram. Eight persons were charge sheeted by the prosecution for the offences punishable under Sections 143, 147, 148, 302 and 307 read with Section
149 IPC.
2. The prosecution case in short is as follows; On
26.08.2001 at about 6.30 p.m the accused persons, on account of the previous animosity towards Bosco (the deceased) and PW16 Herbart, in prosecution of their common object, armed with deadly weapons like iron bars, sword etc, formed themselves into an unlawful assembly, committed the murder of the said Bosco, and caused serious injuries on PW16. Specific overt acts were that, the 2nd accused attacked Bosco with an oar, the 4th accused attacked him with an iron rod and the 5th accused had also attacked the said Bosco with a wooden stick (kuruthadi). Accused Nos.6 and 7 have attacked PW16 with iron rods. When PW16 attempted to ran away to escape from the assault, A8 attacked him with an oar. The allegation against the 1st accused was that, it was under his leadership the assault was committed and he instigated the other accused to commit the said offences. Because of the injuries, Bosco passed away. PW16 sustained injuries and was admitted in Medical College Hospital, Thiruvananthapuram.
3. Based on the First Information Statement furnished by PW1, Crime No.105/2001 was registered by Thumba Police and after completing the investigation, PW15 submitted the charge sheet. In support of the prosecution, they examined PWs 1 to 16, marked Exts.P1 to P41 and MOs 1 to 12. During trial, the 4th accused passed away and accordingly charge against him got abated. After the closure of prosecution case, the incriminating materials brought out in the trial were put to the accused while they were questioned under Section 313 Cr.P.C and the same were denied by them. From the side of the defence DW1 and DW2 were examined.
4. After evaluating the entire materials brought on record, the Sessions Court found the 1st accused not guilty. However, accused Nos.2, 3, and 5 to 8 were found guilty of the offences and were sentenced to undergo rigorous imprisonment for life and fine of Rs.1,00,000/- with a default sentence of rigorous imprisonment for one year each for the offences punishable under Section 302 read with Section 149 IPC, rigorous imprisonment for five years each and a fine of Rs.25,000/- each with a default sentence of rigorous imprisonment for four months each for the offences punishable under Sections 307 read with Section 149 IPC, rigorous imprisonment for six months each for the offences punishable under Section 148 read with Section 149 IPC and rigorous imprisonment for two months each for the offences punishable under Section 143 read with Section 149 IPC. It was also ordered that the substantive sentence shall run concurrently.
5. Crl.Appeal No.111 of 2017 is filed by the 2nd accused, Crl.Appeal No.788 of 2016 is filed by accused Nos.3 and 8, Crl.Appeal No.777 of 2016 is filed by accused Nos.5 and 7 and Crl.Appeal No.858 of 2016 is filed by accused No.6.
6. Heard Sri.B.Ramanpillai, learned Senior counsel appearing for accused Nos.5 and 7, Sri.Ravikrishnan, learned counsel appearing for accused No.2, Sri.S.Rajiv, learned counsel appearing for accused Nos.3 and 8, Smt.K.Kusumam, learned counsel appearing for accused No.6 and Sri.Alex M.Thombra, learned Public Prosecutor. Sri.B.Raman Pillai, learned Senior counsel appearing for the 5th and 7th respondents would contend that the prosecution failed in establishing the guilt of the accused persons as their case is full of inconsistencies. There are certain glaring irreconcilable differences between the First Information Statement (FIS) and the evidence adduced by the prosecution, particularly with the evidence of eye-witness; PW1 and PW16, as regards the number of persons, who committed the assault, weapo
