Kilakkatha Parambath Sasi & Ors vs State Of Kerala

KILAKKATHA PARAMBATH SASI & ORS. ...APPELLANTS

Versus

STATE OF KERALA .....RESPONDENT

J U D G M E N T

HARJIT SINGH BEDI, J.

1. The prosecution story, given by PW-1 Shaji, who is the

brother of the deceased, Sathyan is as under:-

At about 1:45 p.m. on the 24th March, 1994, Shaji (PW-1) was

to travel by bus on the route from Thalassery to Vataparra via

Ayitharapuzha and Kuthuparamba. He got into the bus at

Ayitharapara. As he entered the bus, he found his brother Sathyan

also traveling by the same bus and as there was a vacant seat

besides him, he too sat down on the seat. 10 or 15 other

passengers including Prakasan (PW-2), Shyamala (PW-3) and the

accused Sasi and Dasan were also in the bus. At about 1:55 p.m.

Crl. Appeal No.1383/2003

the bus reached 2

Ayitharapuzha but

before PW-1 and the deceased could get down from the bus, Sasi

and Dasan shouted out that they would be murdered and on

saying so they pushed PW-1 and Sathyan out on to the road.

Three other persons then ran towards the bus from Babu's shop

which was alongside the road. Ambu and Perutheri-accused

handed over a sword each to Sasi and Dasan whereupon Sasi

inflicted injuries on the hands of Shaji. Ashokan-accused who was

armed with an axe caused injuries on the face and head of Sathyan

whereas accused Babu armed with a long knife caused injuries on

the left hand of Sathyan and Dasan inflicted a stab injury with a

sword on the stomach of Sathyan. The other accused also inflicted

some injuries on the deceased as well as on PW-1. As per PW-1's

statement, he had recognized all the seven accused who had

inflicted injuries on him and his brother. A police jeep soon arrived

at the spot and PW-1 and Sathyan were taken to Kuthuparamba

Hospital but as they were in critical condition, they were removed

in a car and brought to the Thalassery Government Hospital where

both of them were examined by the Doctor and while PW-1 was

admitted therein Sathyan was referred to Kozhikode Medical

College where he soon died. At about 5:30 p.m., the police arrived

Crl. Appeal No.1383/2003

in the Thalassery 3

Hospital and

recorded the statement of PW-1 leading to the recording of the FIR

referring to seven assailants but naming only four, and suggesting

that the murder was the outcome of political rivalry as the accused

belonged to the Bhartiya Janta Party whereas the deceased and

PW-1 were workers of the Congress Party. In the FIR it was also

noted that the incident had been seen by Prakasan (PW-2) and

Manoharan (PW-4). Sathyan's dead body was also subjected to a

post-mortem, and PW-7 the doctor, found 58 injuries thereon, most

of them incised and cutting wounds, some of them of huge

dimensions. PW-1 was also examined for the injuries by the doctor

PW-8, and three incised wounds were found on him as well. On

the completion of the investigation, the accused were charged for

offences punishable under Sections 147, 148, 307, 324 and 302

read with Section 149 of the Indian Penal Code.

2. The Trial Court held that though PW-1 was an injured

witness, yet he could not be believed as in the FIR he had named

only four accused i.e. Sasi, Dasan, Ashokan and Babu, although,

he had referred to three others and had in a supplementary

statement to the circle inspector named these three as well and

Crl. Appeal No.1383/2003

that he had also 4

admitted to the deep

political animosity between the two groups, which cast a doubt on

his story. The court also held that the police had admittedly

carried PW-1 and his fatally injured brother in the police jeep to the

hospital, but as the police officer had made no attempt at recording

the statement of PW-1, at that stage, the prosecution story was,

apparently, an after-thought and could not be relied upon. The

Court also observed that the manner in which the injuries had

been caused by all the accused, could not be believed as the eye-

witnesses were discrepant on this material aspect. The Trial Court

went through the evidence of PW-2, Prakasan and found that he

had not been able to explain his presence in the bus at the relevant

time despite the fact that his presence had been specifically

indicated in the FIR. The court then examined the evidence of

Shyamala (PW-3), one of the other passengers in the bus, and

observed that her presence too was doubtful as her name did not

figure in the FIR. The court also found that PW-4, another eye-

witness had deposed that he had been present at the bus stop at

Ayithara near Babu's shop and that when the bus had stopped and

the passengers were getting down, he had heard a great deal of

shouting and had subsequently, witnessed the incident in which

Crl. Appeal No.1383/2003

the four main 5

accused-appellants

herein caused a large umber of injuries to the deceased and PW-1,

but as PW-4 was admittedly an autorickshaw driver operating from

Kuthuparamba and as his autorickshaw was stationed at

Kuthuparamba, the story projected by him that he had come to

Ayithara to get it repaired, appeared to be doubtful. The court also

opined that the eye-witness account was not substantiated by the

medical evidence in the light of the fact that all the incised injuries

appeared to bear clear-cut margins whereas the prosecution had

suggested that accused nos.5 to 7 had been armed with a crow bar

and sticks.

3. The court also went into the evidence of the primary

investigating officer PW-15 and opined that there appeared to be

something remiss in the manner in which the investigation had

been conducted by him. In conclusion, the Trial Court observed

that :

"On an appreciation of the entire evidence available on

record, I am to hold that the evidence of the alleged eye-

witnesses PWs 1 to 4 are inconsistent regarding the

weapon used and also the witnesses have improved

their version when they deposed before the Court.

Several material points, which have not been stated to

the police have been deposed before the court. I have no

doubt in my mind that in this case the witnesses have

Crl. Appeal No.1383/2003

not deposed 6 before this

court the real

incident that happened. Developments were made and

therefore, I am unable to accept the version of the

witnesses as true and correct. So also, the medical

evidence is not in conformity with the evidence given by

PW-2 and the case of the prosecution that murder of

Sathyan and Shaji formed themselves into an unlawful

assembly and waited at the shop of the 4th accused Babu

for the deceased to reach the place in the bus also cannot

be believed. In this circumstance, I am to hold that the

prosecution has not presented before this court the true

incident in this case in which another youth has been

murdered allegedly due to the political animosity.

Therefore, I am to hold that the prosecution has failed to

prove the case convincingly against these accused."

4. The Trial Court, accordingly, acquitted all the accused. An

appeal was thereafter taken by State to the High Court. The High

Court re-examined the evidence taking note of the principle, now

universally accepted, that if the view taken by the trial judge was

reasonable and could possibly be taken on the evidence, no

interference by the appellate court was called for as the

presumption of innocence of an accused was strengthened by an

acquittal recorded by the trial court. The High Court then

examined the evidence in the light of the above broad principle and

observed that the incident had happened at about 2:30 p.m. and

the injured had been removed first to the Kuthuparamba

Government Hospital and then to the Thalaserry Government

Crl. Appeal No.1383/2003

Hospital at 4:00 7

p.m. whereafter

Sathyan had been referred to the Medical College at Kozhikode.

The court noted that due to Sathyan's serious condition, his family

had removed him to the Hospital at the earliest to save him and the

FIR had been promptly recorded at about 5:30 p.m. at the instance

of Shaji (PW-1) in which the accused Sasi, Dasan, Ashokan and

Babu, the appellants herein, had been named. The court then

considered the evidence of the eye-witnesses and first examined the

evidence of PW-1 who was admittedly an injured witness. The

court noted that in the FIR, it had been recorded that Sasi and

Dasan, two of the appellants and Prakasan (PW-2) and Shymala

(PW-3) had been present in the bus when the incident had

happened and that his graphic description fitted in the incident

with the other circumstances. The court then went into the

evidence of PW-2 who was alleged to be a close friend of the

deceased and accepted the statement that at 10:00 a.m. on that

day he and Sathyan had gone to a film show at Kuthuparamba and

as they were to take lunch at home they had taken a bus to get

back and when the bus had reached Ayithara bus stand, the

incident had happened. He also stated that he too had been in the

police jeep which had taken the injured to the hospital. The court

Crl. Appeal No.1383/2003

also examined the 8

statement of

Shymala (PW-3) whose name had also figured in the FIR and the

statement of Manoharan (PW-4), a truly independent witness, as he

was standing near the shop of Babu to get his autorickshaw

repaired and had no connection with either party.

5. In this background of the facts, the court observed that the

findings of the Trial Court that there was a delay in the recording of

the FIR was perverse and could not be accepted, the moreso as the

special report had been delivered to the Magistrate at 7:50 p.m,

the same day. The court also found that the first anxiety of the

family and friends of the injured was to see them to a hospital and

if an hour or two was taken in that effort it was but to be expected

in the circumstances. The court also held that the presence of PW-

1, who was an injured witness, could not be challenged, and as the

dispute was apparently between two rival political parties, it would

be difficult to believe that the true assailants would be left out and

others involved instead. The court further observed that the

evidence of PW-1 was corroborated by PW-2, PW-3 and PW-4 who

were truly independent witnesses and though PW-2's name did not

figure in the FIR but the fact that he was present when the injured

Crl. Appeal No.1383/2003

had been removed to 9

the hospital which

was evident from the wound certificate, his presence had also to be

accepted. The court finally found that the judgment of the trial

court was perverse and accordingly allowed the appeal qua the

appellants herein i.e. Sasi, Dasan, Ashokan and Babu whereas the

acquittal of accused Nos.5 to 7 i.e. P. Sudhakaran, V. Sudhakaran

and V. Raghu was maintained.

6. The High Court accordingly awarded a sentence of life

imprisonment to the four appellants under Section 302 read with

Section 34 of the Indian Penal Code.

7. That the matter is before us on these facts.

8. Mr. Lalit, the learned senior counsel for the appellants has

raised several arguments before us. He has first argued that

there was an unexplained delay in the lodging of the FIR and

as there was admittedly serious enmity between the parties,

this delay had been utilized by the prosecution to create a

false story and to involve innocent persons. He has also been

submitted that the High Court too had endorsed the finding

of the Trial Court that three of the accused had apparently

not been present which caused grave doubts on the veracity

Crl. Appeal No.1383/2003

of the 10

prosecution

witnesses. It has also been pleaded that the eye-witness's

account of the four eye-witnesses was discrepant inter-se and

was also not supported by the medical evidence of PWs-7 and

8, the two doctors which clearly showed that the eye-

witnesses had not been present at the spot. It has further

been pointed out that the presence of PWs 2, 3 and 4 was

even otherwise to be ruled out more particularly as the

presence of PW-2 was not indicated in the FIR and that the

best witnesses to depose for the prosecution were the crew of

the bus who were not examined, although the investigating

officer PW-15 had admitted that he had recovered the trip-

sheet from them. In conclusion he has submitted that the

facts did not justify interference in an appeal against

acquittal.

9. Mr. Dwivedi, the learned counsel for the State of Kerala, has

however, controverted the above submissions and pointed out that

the High Court had set aside the order of the trial court fully

cognizant of the fact that it was a dealing with an appeal against

acquittal wherein the High Court's interference was circumscribed

Crl. Appeal No.1383/2003

and had observed 11

that interference

was called for as the judgment of the trial court was perverse. He

has, further, submitted out that there was absolutely no delay in

the lodging of the FIR and the finding of the trial court to the

contrary, was perverse and could not be sustained on the evidence.

It has further been pointed out that there could be no doubt as to

the presence of Shaji (PW-1) who was admittedly an injured witness

and the brother of the deceased, nor the other witnesses as they

were truly independent ones and merely because PW-1 did not

name all the seven accused at the first instance, was of no

consequence at this stage as the three who had not been named,

had been acquitted and were not in appeal before this court.

10. Before we go into the merits of the evidence, we must deal

with the question of the High Court's interference in an appeal

against the acquittal. It is true that in Arulvelu and Anr. Vs.

State represented by the Public Prosecutor and Anr. [2009

(10) SCC 206], and a string of earlier & later judgments, it has

been held that the High Court should not interfere in an appeal

against acquittal save in exceptional cases, and that interference in

such an appeal was called for only if the findings of the Trial Court

Crl. Appeal No.1383/2003

were not borne out 12

by the evidence and

were perverse. It is however equally well established that the High

Court can re-appraise the evidence so as to find out as to whether

the view taken by the Trial Court was justified or not and if it finds

that the Trial Court's findings were not possible on the evidence,

interference must be made failing which there would be a travesty

of justice. We are of the opinion that in the light of what follows,

the High Court was justified in interfering in this matter.

11. Mr. Lalit's primary argument is with regard to the delay in

lodging of the FIR. He has submitted that the incident had

happened at about 2.30 p.m. and as per the prosecution, the

statement of PW-1 had been recorded at about 5.30 p.m., but as

the special report had been delivered to the Magistrate at about

10.00 p.m., it appeared that the FIR statement had been recorded

at about 7 or 7.30 p.m. and that too after due deliberation.

It is true, and if it is so found, that a FIR has been lodged

belatedly, an inference can rightly follow that the prosecution story

may not be true but equally on the other side if it is found that

there is no delay in the recording of the FIR, the prosecution story

stands immeasurably strengthened. The High Court has re-

Crl. Appeal No.1383/2003 examined the 13

findings recorded by

the Trial Court with respect to this matter. We notice that the

incident happened at about 2.30 p.m. and the police had arrived at

the place of occurrence an hour later. PW-1 and the deceased were

taken to the Government Hospital, Thalassery where the deceased

was examined at about 3.40 p.m. but referred to the Medical

College, Kozikhode as his injuries were grave whereas PW-1 was

admitted to the Government Hospital. It has also come in the

evidence that the ASI, who had taken the injured to the Hospital at

Thalassery, was on law and order duty but he nevertheless had

gone to the Kuthuparamba Police Station and given information

about the incident in that Police Station. The police had arrived,

thereafter, at the General Hospital and recorded PW-1's statement

at 5.30 p.m. and on its basis, the formal report had been registered

at 7.15 p.m. and immediately forwarded to the Magistrate who

received it at 10.00 p.m. The Trial judge has, however, found fault

in this matter by observing that one of the persons accompanying

the injured could have gone to the police station and given a

statement. To our mind, this observation is farfetched and it does

not take into account the realities of life. It is to be noted that the

deceased had suffered as many as 58 injuries, most of them incised

Crl. Appeal No.1383/2003

and cutting wounds 14

with large quantities

of blood spilling out, and was in a very serious condition and the

first anxiety of everybody, including the attendants and the doctors,

was to see him to a hospital. He also died at about 4:00 p.m. We,

therefore, fully endorse the findings of the High Court as to the

spontaneity of the FIR.

Mr. Lalit has also questioned the evidence of PW-1 who is

admittedly an injured eye-witness and whose presence cannot be

doubted. It has been contended that as the incident was the

outcome of political rivalry between the Bhartiya Janta Party and

the Congress workers, and the fact that PW-1 had not named all

the assailants to the doctor in Thalassery Hospital when he had

been examined by him and merely stated that BJP workers were

responsible, cast a doubt on his statement. It has, accordingly,

been pleaded that PW-1 apparently did not know the names of the

accused and that the accused had been involved after deliberation.

We find absolutely no merit in this submission, as admittedly PW-1

is an injured witness and his presence, therefore, cannot be

disputed. Even as per the defence put up by the accused, PW-1

was not an active worker of the Congress Party. The question of

Crl. Appeal No.1383/2003

the false implication 15

of BJP workers at

his instance on account of political rivalry, therefore appears to be

remote. Even otherwise, we find it difficult to believe that PW-1

would have left out the true assailants of his brother. The Trial

Court had however given a finding that in the FIR, PW-1 had given

the names of only four of the accused (who are the appellants

before us) whereas he had added three more subsequently by way

of a supplementary statement and as such, his story could not be

believed. Likewise, the Trial Court had found some doubt as to the

story put up by PW-1 as to his medical examination in the

Thalassery Hospital where he had told the doctor that he and his

brother had been injured by BJP workers but had not divulged the

names to him. The Trial court has supported this finding by

referring to the doctor's evidence that had the names been given, he

would have noted them down in the medical record. We find this

observation to be farfetched. First and foremost, it has to be borne

in mind that it is not the function of the doctor to record the names

of those who may have caused the injuries to the person who is

being examined by him. On the contrary, the fact that the

statement about the involvement of BJP had been made at about

4.00 p.m. in the Thalassery Hospital suggests that the prosecution

Crl. Appeal No.1383/2003

story was entirely 16

correct. We also see

that PW-1 has given full details as to how he and his brother had

happened to meet by chance in the bus and the manner in which

the incident had happened at Ayithara bus stand.

12. The prosecution story is also fully supported by the evidence

of PWs 2,3 and 4. The High Court has relied on PW-1's statement

with respect to the presence of PWs 3 and 4, but expressed some

doubt as to the presence of PW-2. We have examined the findings

arrived at by the High Court vis-`-vis the observations of the Trial

judge. We see that PW-2 was one of those who had taken the

deceased and PW-1 to the Thalassery Hospital after the incident, as

his name figures as being present in the Hospital at the time of the

examination of the injured. Merely therefore because PW-1 does

not refer to PW's presence in the FIR does not mean that he was

not present. We also find that PWs 3 and 4 are independent

witnesses. Significantly, PW-1 and PW-2 did state that PW-3 was

also traveling in the same bus, PW-3 also gave a categoric

statement that she had seen the deceased and PW-1 in the bus and

had witnessed the incident outside Babu's shop at the Ayithara bus

stand. We are further of the opinion that there is absolutely no

doubt with regard to the presence of PW-4 who is a truly

Crl. Appeal No.1383/2003

independent 17

witness. He stated

that he was an auto-rickshaw driver and had come to the place to

get his auto-rickshaw repaired and had seen the incident as it

happened. There is absolutely no reason as to why his statement

should be discarded.

Mr. Lalit has, however, also raised some argument with

regard to the non-examination of the bus crew. It is true that PW-

15, the Investigation Officer, did testify that he had taken into

possession the `Trip-Sheet' for the route which the bus had taken.

Even assuming, however, that the bus crew ought to have been

examined as that would have greatly enhanced the value of the

prosecution evidence, but their non-examination case would not

mean that the entire prosecution story would fall through as there

were several other credible witnesses including an injured one.

We are, therefore, of the opinion that the High Court was fully

justified in interfering in this matter under the guidelines and

principles in Arulvelu's case (Supra).

The appeal is accordingly dismissed.

................................J.

(HARJIT SINGH BEDI)

Crl. Appeal No.1383/2003

..................

18 ...........................

J.

(CHANDRAMAULI KR. PRASAD)

FEBRUARY 4, 2011

NEW DELHI.