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2022 Supreme(Online)(Ker) 75314
IN THE HIGH COURT OF KERALA AT ERNAKULAM
K VINOD CHANDRAN, C. JAYACHANDRAN, JJ
ANTONY @ ANTAPPAN, VIJESH, SIMON V. JACK @ JACK – Appellant
Versus
STATE OF KERALA – Respondent
CRL.A NO.850 OF 2016 | CRL.A NO.887 OF 2016 | CRL.A NO.974 OF 2016 | CRL.A NO.1012 OF 2016 | CRL.A NO.1023 OF 2016
For the Appellants/Petitioners: SRI.P.VIJAYA BHANU (SR.), SMT.MITHA SUDHINDRAN, SRI.M.REVIKRISHNAN
For the Respondents: SRI.ALEX M.THOMBRA
Direct evidence from eyewitnesses can outweigh discrepancies in motive or investigative flaws, sustaining convictions for violent crimes under relevant IPC and Arms Act provisions.
Headnote:(A) Indian Penal Code, 1860 - Sections 120B, 143, 144, 147, 148, 140, 341, 324, 326, 302, 307, r/w Section 149 - Arms Act - Sections 20 and 27 - Criminal conspiracy and assault resulting in death - Conviction of accused No. 1 to 7 under multiple sections confirmed; substantive sentences ordered to run concurrently but default sentences consecutively - Key witness testimonies established occurrence, despite flaws in investigation; motive transformed throughout the trial, but direct evidence was sufficient for conviction. (Paras 2, 6, 12, 43)
Facts of the case:
The accused, involved in a gang-related assault, brutally attacked two individuals, resulting in one death and injuries to another. Multiple eyewitnesses provided consistent accounts of the incident and the involvement of the accused, despite discrepancies in some testimonies. (Paras 1, 4, 5)
Findings of Court:
The court affirmed the conviction based on comprehensive eyewitness accounts and medical evidence, despite challenges to the recoveries and investigation. Preliminary motives changed during trial but were deemed irrelevant to direct evidence of the crime. (Paras 43)
Issues: The primary issues included the credibility of eyewitnesses, the impact of the motive shift, the adequacy of the investigation, and the sufficiency of evidence proving the guilt of the accused. (Paras 35, 43)
Ratio Decidendi: The court affirmed that the testimony of an injured witness carries significant weight, and even if motives presented changed, the direct evidence proved the accused's involvement in violence, meriting conviction under the relevant sections of IPC and Arms Act. (Paras 43)
Result: Appeals dismissed; convictions and sentences upheld.
| Table of Content |
|---|
| 1. brutal attack resulting in death. (Para 1 , 2) |
| 2. challenges to prosecution's evidence. (Para 3 , 4 , 5 , 6 , 7 , 8) |
| 3. prosecution's witness credibility. (Para 9) |
| 4. details of witness statements and identification. (Para 10 , 11) |
| 5. emphasis on eyewitness accounts. (Para 12 , 13 , 14 , 15 , 16 , 17 , 18) |
| 6. recovery of items and their relevance. (Para 19 , 20) |
| 7. medical evidence supporting claims. (Para 21 , 22 , 23) |
| 8. flaws in investigation and its implications. (Para 24 , 25) |
| 9. witness reliability despite inconsistencies. (Para 26 , 27 , 28) |
| 10. defense's counter arguments questioned. (Para 29 , 30 , 31) |
| 11. assessment of various witness testimonies. (Para 32 , 33 , 34) |
| 12. motive's role in prosecution's case. (Para 35 , 36 , 37) |
| 13. debate about exact scene manipulation. (Para 38 , 39 , 40 , 41) |
| 14. conclusion on guilt established. (Para 42) |
| 15. court's final judgment and sentencing. (Para 43) |
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 , 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 , A1 to R.I for 3 months each, under S.143 and 147 . 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 b
