Altogether 14 accused persons were tried by the Additional Sessions Judge, Alappuzha for offences under Sections 143, 147, 148, 149, 452, 323, 324, 326, 308 and 427 of the Indian Penal Code (in short, “IPC”). By the impugned judgment, the trial court acquitted accused 6 to 14 and convicted accused 1 to 5 for offences under Sections 326, 324, 452, 143 and 148 IPC. The legality of the conviction is the subject matter of this appeal.
2. Heard the learned counsel for the appellants and the learned Public Prosecutor.
3. Prosecution case, in brief, is that the accused persons at about 8.45 p.m. on 12.05.2000 formed into an unlawful assembly with dangerous weapons like sword stick, iron rod, etc. and due to previous enmity, they attacked PWs 1 to 3 with intention to cause death of PW2 by trespassing into the house and committing rioting. Appellants barged into the house of PW2 and thereafter, the 1st appellant struck a blow on the head of PW2 with a sword stick, causing a severe injury. When PW1 tried to meddle with the matter, he inflicted a blow to him too. They attacked PW1, son of PW2, also with an iron rod and he sustained fracture of bones in the leg. In addition to that, the accused persons attacked mother of PW1 as well. Thereafter, they destroyed household articles like television, wash basin, cycle, torch light, etc. Prosecution, therefore, contended that the appellants are guilty of the aforementioned offences.
4. Court below raised relevant points for determination. It mainly relied on the testimonies of PWs 1 to 4 to find favour with the prosecution case. Other witnesses also testified in connection with the incident. I shall deal with the oral evidence in this case.
5. PW1, Vinod, is the son of PW2. According to his version in the examination-in-chief, on 12.05.2000 at 8.45 p.m., the appellants attacked them from their house. At that time, his father (PW2), mother(PW4) and PW3 were also present there. They were sitting in the drawing room at the material time. At that time, PW1 heard a knocking sound at the door. His mother went to open the door, accompanied by his father. At that time, the appellants forcibly opened the door and entered house with dangerous weapons. PW1 deposed that they possessed sword and iron rods. All on a sudden, the 1st appellant used the sword against PW2 two times. One of the assaults landed on his head and the other one, on his right shoulder. He sustained injuries. Third attempt by the 1st appellant to cut PW2 was prevented by PW3. He also sustained injury in the bid to save PW2. Third appellant beat PW2 with some weapon and in that process he sustained injury on the left elbow. When PW1's mother frantically attempted to save her husband, the 2nd appellant assaulted her. On seeing all these atrocities, PW1 interfered in the matter. At that time, 4th appellant beat PW1 with an iron rod below his left knee joint. 3-4 blows were showered by 4th appellant on PW1 which caused fracture of bones. 5th appellant attacked his father in the meantime with an iron rod. 2nd appellant pushed PW1's mother to a paddy field in front of their house. Thereafter, all the accused persons destroyed household articles like television, wash basin, mirror, fan, chair, etc. It is the version of PW1 that along with the appellants, some other persons, who stood outside, also committed excessive damage to PW3's motor cycle, kept outside the house. Further, they destroyed plantains and other trees in the compound. On hearing the distress call, neighbours converged and at that time, all the accused persons went away with the weapons used for the offences. Thereafter, PWs 1 to 3 were taken to hospital. PWs 1 and 2 were admitted in KVM Hospital, Cherthala and PW3 was taken to the Government Hospital, Cherthala. Later, PWs 1 and 2 were removed to the Medical College Hospital, Alappuzha. They had sustained fractures. It is his definite case that the attempt of the appellants was to kill PW2 and they could not do so only on account of timely intervention of others. It is come out in evidence that PW2, father of PW1, is an active worker in a committee called 'ഭകജനസമ$ത$' formed for the welfare of Kanichukulangara temple. The appellants were members of 'ജന&ധ$പത)സ രകണസമ$ത$' formed to oppose the earlier mentioned committee. It is also come out in evidence that they were fighting each other on account of differences of opinion.
6. This witness was searchingly cross-examined. It is come out in evidence of this witness that PW2 is an accused in a murder case relating to death of 1st appellant's brother. PW1 was removed from KVM Hospital, Cherthala after giving first aid within 15 minutes of his admission. Both PWs 1 and 2 were taken to the Medical College Hospital, Alappuzha. Thereafter, he was removed to the Specialist Hospital, Ernakulam and an iron rod was implanted to correct the fracture. It is his version that at around 12'o clock in the night, Police Officers questioned him and recorded a statement. Ext.P1 is the first information statement (FIS). Minor contradictions were proved at the time of cross-examination. It is also stated by PW1 that he knew the appellants even prior to the incident. In cross-examination, he gave details regarding the names and addresses of the appellants. To a question, PW1 answered that he saw the sword stick only in the hand of 1st appellant. MOs 1 to 3 are the weapons allegedly used to attack the injured witnesses. PW1 further stated that he was unaware as to which accused held which stick among MOs 1 to 3. The suggestion that the incident happened at a different place and some unknown assailants attacked PWs 1 to 3 was strongly denied by this witness.
7. PW2 is the father of PW1 and husband of PW4. He also stated that at 8.45 p.m. on 12.05.2000, the appellants unlawfully trespassed into his house and unlashed attack on the injured witnesses. He also stated that the 1st appellant used a sword stick to inflict injuries on his head and shoulder. The third attack was prevented by PW3 and he sustained injuries in that attempt. He also deposed that the 2nd appellant dragged his wife out of the house and pushed her to a nearby paddy field. 2nd appellant beat PW1 with hand and the 4th appellant showered forceful blows on the left leg of PW1, causing fracture. It is the testimony of PW2 that after causing serious injuries to PWs 1 to 3, the assailants destroyed household articles. At that time, other accused persons caused damage to motor cycle belonging to PW3 and crops in the compound of PW2. This witness also deposed that PWs 1 and 2 were initially taken to KVM Hospital, Cherthala and thereafter to the Medical College Hospital, Alappuzha. It is the version of PW2 that the appellants attacked him with an intention to commit murder as they nurtured enmity towards him due to his involvement in ഭകജനസമ$ത$. PW2 deposed that the appellants are members of ജന&ധ$പത)സ രകണസമ$ത$ formed to oppose his committee. PW2 was also taken to Specialist Hospital, Ernakulam and he underwent treatment for about 11 months. Political reasons are stated by PW2 for the appellants' uncivilized attack on them. He identified the material objects and accused persons from the court.
8. This witness was subjected to a very tough cross-examination.
It is admitted in cross-examination that he is a supporter of Vellappilly Natesan. He deposed that he was an accused in a murder case. His statement was recorded by Police after two days of incident from Medical College Hospital, Alappuzha. It is the definite version of this witness that he knew each one of the appellants even prior to the incident. In cross- examination, PW2 stated that he found iron rods in the hands of appellants 4 and 5 and sword stick in the hand of the 1st appellant. There was an attempt in cross-examination that PW2 was not aware of the identity of the accused persons, which he strongly denied.
9. PW3 is a friend of PW2. He also sustained injuries in the attack. He was sitting in the house of PW2 and talking with PWs 1 to 3. The testimony of PW3 also would show that the 1st appellant, wielding a sword, attacked PW2 and caused injuries. He sustained injury when he tried to save PW2 from the third attack by the 1st appellant. On receiving injury on head, he felt numbness and temporary blindness. Immediately he jumped out of the house. At that time, he saw two persons destroying his motor cycle. This witness slightly deviated from his previous statement and therefore, the Prosecutor declared him hostile and with the permission of the court, he was subjected to cross-examination. But, on the aspect that the 1st appellant attacked PW2, his testimony remains consistent with that of other witnesses.
10. PW4, wife of PW2 and mother of PW1, also deposed in agreement with the testimonies of PWs 1 and 2. She also deposed that at the alleged time and place, the appellants barged into their house and the 1st appellant attacked PW2 with a sword, causing injuries. PW3 sustained injury when he attempted to prevent the third blow on PW2 and in that process, PW3 sustained injury on his head. It is her version that the 2nd appellant caught her hair and dragged her outside. At that time, PW1 restrained the 2nd appellant. Then he fisted PW1 on back. The 4th appellant attacked PW1 with an iron rod, causing fracture on his leg. She was pushed into a paddy field in front of their house. After that, the household articles were destroyed by the appellants. Excessive damage to a motor cycle and crops in the property was done by the appellants and other accused persons. In spite of cross-examination, I do not find any reason to hold that testimony of PW4 was rendered unbelievable. Minor contradictions here and there cannot be taken as a reason to discard otherwise credible testimony of this witness.
11. PW5 was a person passing through the road in front of PW2's house. He deposed that at 8.45 p.m. on 12.05.2000, he along with PW7 while passing through the road, saw some persons causing damage to a motor cycle and cutting down plantains. He saw appellants 2 and 5 among the group, who came out of house. He also saw PWs 1 and 2 in a bleeding condition with injuries. PW7 also testified in support of the versions of PW5. PW7 identified appellants 1 and 3 to 5. These two witnesses deposed that the assailants were wielding weapons when they walked away from the place of occurrence. The defence case is that these witnesses were also supporters of Vellappilly Natesan and they were enmical to the appellants. It may be true that these witnesses are members of a faction opposed the group of accused persons. But I do not find any special reason to think that they falsely supported the prosecution case to wreak vengeance against the appellants.
12. PW6 is yet another son of PW2. He was also a witness to the incident. He was studying in another room at the time of incident. On hearing a noise, he went to the room and at that time, he saw the 1st appellant cutting PW2 with a sword. The attack on PWs 1 to 3 by the accused persons have been proved by this witness also. He also remained consistent with the prosecution case.
13. PW8 is the witness to Ext.P2 scene mahazar. PW9 was the doctor in the casualty attached to the Specialist Hospital, Ernakulam. He proved Ext.P3 discharge certificate. This is pertaining to PW2. Injuries noted are as follows:
“Fracture both bones forearm left extensor muscle cut. .1m nailing for fracture done from Alappuzha.
10 cm long sutured wound over left forearm proximal 1/3 of forearm, left, right arm right parital and parieto occipital region. Infunction plus at forearm wound extential muscles not active.”
On the same day, he issued Ext.P4 discharge certificate in respect of PW1 with the following injuries:
“Fracture both bone left leg. Closed fracture.
(2) Abrasion anterio lateral aspect of left leg.”
14. PW10 was the Civil Surgeon, Taluk Head Quarters Hospital, Cherthala. He examined PW3 and issued Ext.P5 certificate with the following injuries:
“(1)Clean incised wound on the scalp on the posterior aspect 8x2 cm size.
(2) Abrasion 2x1 cm size on the tip of nose.
cheek.”
(3) Abrasion 1x1 cm size on the left Learned counsel for the appellants submitted that the cause of injury as per Ext.P5 is that someone attacked PW3 at 8.30 p.m. on 12.05.2000 with a sword stick from a place near Thiruvizha temple. Learned counsel for the appellants contended that the statement rendered by PW10 in Ext.P5 is an indication that the place of occurrence is not as stated by the prosecution witnesses. We shall deal with this contention later.
15. PW11 was the casualty Medical Officer in KVM Hospital, Cherthala. He examined PW1 and issued Ext.P6 certificate. It is seen that he gave only first aid to PW1. It was stated by PW1 in this wound certificate that a known person attacked him with an iron rod from his house at Thiruvizha. Ext.P7 is the certificate in respect of PW2 issued by the same Doctor. It is the prosecution case that PW2 was in a critical condition and he was not able to speak at that time. Testimony of this witness remains supportive to the prosecution case.
16. PW12 was the Village Officer, Mararikulam North, who prepared Ext.P8 scene plan. PW13 was the Assistant Sub Inspector, Arthungal Police Station, who recorded Ext.P1, FIS. He took the statement of PW1 at 11.30 in the night on 12.05.2000. He completed the process after midnight. So this witness is justified in writing the date as 13.05.2000 on the material records. Some contradictions were also marked by the defence counsel through this witness.
17. PW14 was the investigating officer. He registered Ext.P1(a) first information report (FIR). He questioned material witnesses and prepared Ext.P2 scene mahazar. He conducted search in the houses of the appellants. It is his case that MOs 1 to 6 were recovered from the house of appellants 3 to 5. Search list is Ext.P10 series. MOs 1 to 3 are the iron rods allegedly recovered by the investigating officer in the search. Learned defence counsel contended that non-recovery of the sword stick allegedly used by the 1st appellant is fatal to the prosecution. I shall deal with that contention also in the subsequent paragraphs. After questioning the material witnesses, the accused were arrested and reports were filed before the learned Magistrate, which is marked as Exts.P11 to P13. According to PW14, accused 9 to 14 were absconding. In spite of cross- examination on this witness, except for some insignificant contradictions, nothing could be elicited to discard his evidence. Those contradictions are not sufficient either to hold that the investigation was improper or the prosecution case is unbelievable.
18. Learned counsel for the appellants contended that in spite of charging the accused persons with an offence under Section 149 IPC, the learned trial Judge did not convict them under Section 149 IPC. It is therefore, argued that the accused persons can only be convicted for their individual acts in the absence of vicarious liability under Section 149 IPC. I am unable to accept that contention of the learned counsel for appellants. The court below rightly convicted the appellants under Section 143 IPC, which is the penal provision for punishing a member in an unlawful assembly as defined under Section 141 IPC. So, it cannot be contended that the accused persons did not share any common object of committing the offences. That apart, the trial court convicted the appellants for rioting under Section 147 IPC. Simply because Section 149 IPC is omitted to be shown in the operative portion of the trial court's judgment, it cannot be contended that the court below did not apply its mind and failed to enter a finding that the appellants were members of an unlawful assembly. Besides, Section 464 Cr.P.C. clearly says that no finding or sentence or order by a court of competent jurisdiction shall be deemed invalid merely on the ground that no charge was framed or on the ground of any error, omission or irregularity in the charge including any misjoinder of charges, unless, in the opinion of the court of appeal, a failure of justice has in fact been occasioned thereby. This is a case where, going by the impugned judgment, charge has been framed and conviction has been entered on the offences proved. I find no failure of justice possible in this regard. Omission to mention Section 149 IPC in the operative portion of the judgment cannot be taken as a circumstance in favour of the appellants for claiming exemption from vicarious criminal liability.
19. Learned counsel for the appellants vehementally contended that non-mentioning of names of all the accused persons in Ext.P1, FIS is a circumstance affecting the strength of the prosecution case. Further, PW1 did not mention the name of the accused persons to the doctor, who recorded the cause of injury immediately after the incident. It is also contended that PW1 only mentioned two names, viz., that of appellants 1 and 2. These contentions, though they are attractive, will not improve the defence case. It is come out in evidence that the appellants and other accused persons on one hand and the prosecution witnesses on the other hand were hostile to each other on account of differences of opinion in respect of the administration of a temple. All the material prosecution witnesses have emphatically deposed that they knew each other even before the incident. That apart, roles played by each of the appellants have been vividly described by PWs 1 to 4 and 6. From the totality of evidence, I do not find any reason to think that names of other appellants, except appellants 1 and 2, were mentioned later to Police as a result of deliberation and consultation.
20. Another point canvassed by the learned counsel for the appellants is regarding the delay in sending the FIR. It was received in court only at 6.00 p.m. on 14.05.2000. It is seen that the FIS was recorded in the night intervening 12th and 13th of May, 2000. In the FIS, PW1 had not specifically mentioned any name. The defence contention that Ext.P1, FIS is the product of an after thought cannot be believed for the reason that if they by that time had cooked up a story, they could have done it in a flawless manner. From the tenor of the statements in Ext.P1 FIS, I do not find any reason to hold that delay in sending FIR to court was for embellishing the case or for falsely implicating the accused persons.
21. Learned counsel for the appellants forcefully contended that non-recovery of sword stick is a major defect in the prosecution case. According to him, there was no serious attempt made by the investigating officer to recover the same. It may be true that the investigating officer is expected to do his job truly and meticulously. But, that does not take away the responsibility of the court to consider the credible evidence in a legally correct perspective. It is trite that merely for a faulty investigation, a criminal case, which otherwise reveals incriminating evidence against the accused, cannot be thrown out. It is a well established principle that non- recovery of a weapon of oppression cannot be the sole reason for acquittal (see Rajinder and others v. State of Haryana and another (AIR 2004 SC 4352).
22. Learned counsel raised a contention regarding the inaccuracy in the place of occurrence as revealed from the prosecution evidence. On the basis of the recital in Ext.P5 wound certificate as stated by PW3 that he sustained injury from a place near Thiruvizha temple, it cannot be contended that the incident did not happen from the house of PWs 1 and 2.
Reliable testimonies of these witnesses coupled with the recital in the wound certificate relating to PW1 would show that their house is near Thiruvizha temple and the incident took place in their house. That apart, testimonies of independent witnesses also show that the incident was in the house of PW2. Therefore, I do not find any reason to consider that injured witnesses sustained injury in an incident at a different place. The contention of the defence counsel that since PWs 1 and 2 are accused in murder cases, they might have many enemies and they might have received injuries at the hands of their enemies from a different place is not supported by any material from the prosecution evidence. No material is brought out to consider such a possibility. It may be true that PWs 1 and 2 were involved in murder cases at the material time and they may be having enemies. But, in this case there are ample evidence to find that they received injuries as alleged herein at the hands of the appellants.
23. To sum up the discussion, I find that the testimonies PWs 1 to 4 and 6 proved the incident as alleged by the prosecution. That apart, the testimonies of PWs 5 and 7 also support the prosecution case in respect of acts immediately after the incident. Therefore, I find no reason to interfere with the conviction awarded by the court below. However, I do not propose to convict the appellants for an offence under Section 149 IPC as this Court cannot legally enhance the sentence in an appeal filed by the accused persons.
24. The court below imposed a moderate sentence on the appellants. Considering the entire evidence and the nature of injuries sustained by the injured witnesses, I am of the view that the sentence cannot be said to be harsh or disproportionate. I do not find any reason to interfere with the sentence.
In the result, the appeal is dismissed confirming the conviction and sentence.
All pending interlocutory applications will stand dismissed.
A. HARIPRASAD, JUDGE.
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