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2022 Supreme(Online)(KER) 58402
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN &
THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN FRIDAY, THE 18TH DAY OF FEBRUARY 2022 / 29TH MAGHA 1943 CRL.A NO.850 OF 2016 AGAINST THE JUDGMENT IN S.C.NO.408/2009 DATED 05.08.2016 OF THE COURT OF THE SESSIONS JUDGE, ALAPPUZHA.
[C.P.36/2009 OF JUDICIAL MAGISTRATE OF FIRST CLASS-I, ALAPPUZHA]
[CRIME NO.658/2008 OF ALAPPUZHA NORTH POLICE STATION].
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APPELLANTS/ ACCUSED NOS.2, 3 & 5:
1 ANTONY @ ANTAPPAN, AGED 27 YEARS, S/O.K.V.JOSEPH, KOCHUKALAM VEEDU, WARD NO.13, ARYAD PANCHAYATH.
2 VIJESH, AGED 27 YEARS, S/O.VENU, THADICKAL VEEDU, KALATHU WARD, ALAPPUZHA.
3 SIMON V. JACK @ JACK, AGED 31 YEARS, S/O. VIJAYAKUMAR, PUTHENPURACKAL VEEDU, KALTHU WARD, ALAPPUZHA.
BY ADVS.
SRI.P.VIJAYA BHANU (SR.)
SMT.MITHA SUDHINDRAN SRI.M.REVIKRISHNAN RESPONDENT/ COMPLAINANT:
STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.
BY SENIOR PUBLIC PROSECUTOR SRI.ALEX M.THOMBRA THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
04.02.2022, ALONG WITH CRL.A.887/2016 AND CONNECTED CASES, THE COURT ON 18.02.2022 DELIVERED THE FOLLOWING:
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN &
THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN FRIDAY, THE 18TH DAY OF FEBRUARY 2022 / 29TH MAGHA 1943 CRL.A NO.887 OF 2016 AGAINST THE JUDGMENT IN S.C.NO.408/2009 DATED 05.08.2016 OF THE COURT OF THE SESSIONS JUDGE, ALAPPUZHA.
[C.P.36/2009 OF JUDICIAL MAGISTRATE OF FIRST CLASS-I, ALAPPUZHA]
[CRIME NO.658/2008 OF ALAPPUZHA NORTH POLICE STATION].
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APPELLANT/ ACCUSED NO.4:
NISHAD, AGED 29 YEARS S/O. NOUSHAD, VALIMPARAMBIL VEEDU, KALATHU WARD, ALAPPUZHA DISTRICT.
BY ADVS.
SRI.P.K.MOHAMED JAMEEL SRI.M.P.ABDUL LATHEEF SRI.LIJO MATHEW RESPONDENT/ COMPLAINANT:
STATE OF KERALA, REPRESENTED BY ITS PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM – 682031.
BY SENIOR PUBLIC PROSECUTOR SRI.ALEX M.THOMBRA.
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
04.02.2022, ALONG WITH CRL.A.850/2016 AND CONNECTED CASES, THE COURT ON 18.02.2022 DELIVERED THE FOLLOWING:
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN &
THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN FRIDAY, THE 18TH DAY OF FEBRUARY 2022 / 29TH MAGHA 1943 CRL.A NO.974 OF 2016 AGAINST THE JUDGMENT IN S.C.NO.408/2009 DATED 05.08.2016 OF THE COURT OF THE SESSIONS JUDGE, ALAPPUZHA.
[C.P.36/2009 OF JUDICIAL MAGISTRATE OF FIRST CLASS-I, ALAPPUZHA]
[CRIME NO.658/2008 OF ALAPPUZHA NORTH POLICE STATION].
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APPELLANT/ ACCUSED NO.6:
THOMAS KUTTY @ AJI, AGED 36 YEARS, S/O.DEVASYA THOMAS, MOOLAYIL VEEDU, NORTH EASTERN SIDE OF INFANT JUNCTION, KALUTHU WARD, ALAPPUZHA DISTRICT.
BY ADVS.
SRI.P.K.VARGHESE SRI.P.P.BIJU RESPONDENT/ COMPLAINANT:
STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.
BY SENIOR PUBLIC PROSECUTOR SRI.ALEX M.THOMBRA.
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 04.02.2022, ALONG WITH CRL.A.850/2016 AND CONNECTED CASES, THE COURT ON
18.02.2022 DELIVERED THE FOLLOWING:
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN &
THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN FRIDAY, THE 18TH DAY OF FEBRUARY 2022 / 29TH MAGHA 1943 CRL.A NO.1012 OF 2016 AGAINST THE JUDGMENT IN S.C.NO.408/2009 DATED 05.08.2016 OF THE COURT OF THE SESSIONS JUDGE, ALAPPUZHA.
[C.P.36/2009 OF JUDICIAL MAGISTRATE OF FIRST CLASS-I, ALAPPUZHA]
[CRIME NO.658/2008 OF ALAPPUZHA NORTH POLICE STATION].
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APPELLANT/ 7TH ACCUSED:
SINU VARGHESE @ SINU, AGED 26 YEARS, S/O.VARGHESE ANTONY, METHARU THADICKAL (THAZHACHAYIL), KALATH WASRD, ALAPPUZHA MUNCIPALITY, ALAPPUZHA DISTRICT.
BY ADVS.
SRI.SHAIJAN C.GEORGE SRI.M.T.AJITH SRI.P.J.JOSEPH SRI.C.K.SAJEEV SMT.SAJITHA GEORGE RESPONDENT/ RESPONDENT:
STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.
BY SENIOR PUBLIC PROSECUTOR SRI.ALEX M.THOMBRA.
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 04.02.2022, ALONG WITH CRL.A.850/2016 AND CONNECTED CASES, THE COURT ON
18.02.2022 DELIVERED THE FOLLOWING:
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN &
THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN FRIDAY, THE 18TH DAY OF FEBRUARY 2022 / 29TH MAGHA 1943 CRL.A NO.1023 OF 2016 AGAINST THE JUDGMENT IN S.C.NO.408/2009 DATED 05.08.2016 OF THE COURT OF THE SESSIONS JUDGE, ALAPPUZHA.
[C.P.36/2009 OF JUDICIAL MAGISTRATE OF FIRST CLASS-I, ALAPPUZHA]
[CRIME NO.658/2008 OF ALAPPUZHA NORTH POLICE STATION].
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APPELLANT/ ACCUSED NO.1:
SHIJI JOSEPH @ SHIJIYAPPAN, AGED 52 YEARS, S/O.T.K.JOSEPH, THUMBEL THADICKAL VEEDU, EASTERN SIDE OF INFANT JUNCTION, KALATHU WARD, ALAPPUZHA.
BY ADVS.
SRI.B.RAMAN PILLAI (SR.)
SRI.R.ANIL SRI.T.ANIL KUMAR SRI.B.KRISHNA KUMAR SRI.A.RAJESH SRI.SUJESH MENON V.B.
SRI.THOMAS ABRAHAM NILACKAPPILLIL SRI.M.VIVEK RESPONDENT/ COMPLAINANT:
STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI-31.
BY SENIOR PUBLIC PROSECUTOR SRI.ALEX M.THOMBRA.
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 04.02.2022, ALONG WITH CRL.A.850/2016 AND CONNECTED CASES, THE COURT ON
18.02.2022 DELIVERED THE FOLLOWING:
K.VINOD CHANDRAN & C.JAYACHANDRAN, JJ.
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Crl.Appeal Nos.850 of 2016, 887 of 2016, 974 of 2016, 1012 of 2016 & 1023 of 2016 -------------------------------------------
Dated, this 18th February 2022
JUDGMENT
Vinod Chandran, J.
Stalked, surrounded and brutally attacked by a group of seven, one was killed and the other maimed. The grievously injured survived to tell the story, according to the prosecution, along with another whose nimble feet saved him. The motive alleged is prior enmity but with major variations on facts, as projected in the charge based on the final report and the one coming out in evidence led before Court.
2. The seven accused who stood trial were charged under Sections 120B, 143, 144, 147, 148, 140, 341, 324, 326, 302, 307,r/w S.149 IPC and S.20 r/w S.27 of the Arms Act. Accused are convicted under S.235(2) of the Code of Criminal Procedure and each of them are sentenced to, undergo imprisonment for life, rigorous imprisonment for 7 years, simple imprisonment for one month, respectively under Ss. 302, 307 & 341 read with S.149 IPC, with fine under each heads and default sentences. The accused No.2 to 7 are also sentenced to undergo R.I for 6 months each under S.144 and 148 IPC, A1 to R.I for 3 months each, under S.143 and 147 IPC. The substantive sentences of imprisonment are to run concurrently and the default sentences consecutively. The accused are in appeal.
3. Sri.B. Raman Pillai, Senior Counsel appearing for A1 contended that the case was set up merely to malign A1, who is a respectable person of the locality and an A class contractor. The prosecution case is that A2 to A7 are the employees of A1, for which there is no shred of evidence produced. The motive projected by the prosecution is a gang war regarding which no witness has spoken. The FIS is seriously assailed with respect to the testimony of PW1, who made it. PW1 in the FIS said that he saw three-four persons running away, which he embellished in his testimony. PW1 said that he first reached the spot, but in his deposition speaks of having seen other locals gathered at the scene of occurrence when he reached there. PW1 in the FIS stated that he could identify the persons running away from the scene of occurrence, but the Investigating Officer (I.O) did not attempt such an identification by PW1. PW22, the I.O categorically stated that he questioned the witnesses on the 17th. The remand report filed on the arrest of A1, D12 does not name the other accused; despite all the eye witnesses, except PW2, having given statement to the I.O on the 17th itself. Even Ext.P13 affidavit filed for custody speaks of the identity of the other accused not having been revealed. PW22 in cross-examination admitted that he filed no report to the Court naming the accused.
4. Ext.P14 and P15 mahazars of recovery are not believable and the witness is the same, though the first recovery is in the afternoon and the second in the evening. The witness, PW19 is a regular witness of the police who is not even a local. There is no clarity as to whether MO1 weapon recovered at the instance of A1 was used by A2 or A3. Though MO8 scooter and MO11 mobile phone were recovered on the confession of A1, there is no concealment confessed of and the ownership of both the M.Os have not been proved. The final report and the first remand report, D12 speak of a gang war between two named goonda gangs; which the I.Os, PW22 and PW23 disown before Court. The motive spoken of by the witnesses, of a dispute regarding a construction contract entered into between A1 and PW2 was never stated to the Police and is a totally new story projected by the witnesses before Court.
5. The artificial story spun by the prosecution is very evident from the fact that A1 is not seen to have carried a weapon. The assailants and victims are locals and there was no reason for A1 to accompany the other accused. PW2 & PW3 omitted to tell the Police that it was PW15, who dropped the deceased in front of the shop of PW2. Again the difference in time as noted from the testimonies of PW2, PW3 & PW15 assumes relevance in the context of PW2 & PW3 having spoken of the time to be 9 O'Clock when PW15 speaks of having started f
