Kerala High Court
Aboobacker vs State Of Kerala on 4 March, 2025
Crl.Appeal No.1040 of 2011
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE C.S. SUDHA
TUESDAY, THE 4TH DAY OF MARCH 2025 / 13TH PHALGUNA, 1946
CRL.A NO. 1040 OF 2011
AGAINST THE JUDGMENT DATED 22.06.2011 IN SC NO.141 OF
2004 ON THE FILE OF THE COURT OF SESSION, KOZHIKODE.
APPELLANTS/ACCUSED 1 AND 2:
1 ABOOBACKER @ AVUKAR, S/O CHERIYABAVA,
SEEMAMUNTAKATH VEEDU,
BEYPORE AMSOM, NADUVATTOM DESOM,
MARAD, KOZHIKODE DISTRICT.
2 ABDUL RISAL BABU,
S/O. ILLIAS,
SEEMAMUNTAKATH VEEDU,
BEYPORE AMSOM, NADUVATTOM DESOM,
MARAD, KOZHIKODE DISTRICT.
BY ADV SRI.P.K.VARGHESE
RESPONDENT/COMPLAINANT:
STATE OF KERALA,
PUBLIC PROSECUTOR,
HIGH COURT OF KERALA,
ERNAKULAM.
SMT.SHEEBA THOMAS, PUBLIC PROSECUTOR.
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
25.02.2025, THE COURT ON 04.03.2025 DELIVERED THE
FOLLOWING:
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C.S.SUDHA, J.
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Crl.Appeal No.1040 of 2011
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Dated this the 4th day of March 2025
JUDGMENT
In this appeal filed under Section 374(2) Cr.P.C. the
appellants, who are accused nos.1 and 2 (A1 and A2) in
S.C.No.141/2004 on the file of the Court of Session, Kozhikode
challenge the conviction entered and sentence passed against them
for the offences punishable under Sections 450 and 307 IPC.
2. The prosecution case as stated in the final
report/charge sheet is – the accused persons, five in number, who
are Muslims had enmity towards Hindus residing in Maradu
Beach, Kozhikode. In order to disturb the communal harmony
between the Hindus and Muslims, to promote enmity between the
two religions and to cause the death of CW1, Rajendran, the
accused along with 20 other persons formed themselves into an
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unlawful assembly at about 07:45 p.m. on 03/01/2002. They
trespassed into the house of CW1, pelted stones resulting in the
window panes in front of the house of CW1 being broken causing
damages to the tune of more than ₹3,000/- to him. After
trespassing into the house of CW1, A1 and A2 inflicted grievous
injuries on CW1 by hacking him with swords and thereby
attempted to murder him. Hence, as per the final report/charge
sheet, the accused persons were alleged to have committed the
offences punishable under Section 143, 147, 148, 153A, 427, 450,
307 read with Section 149 IPC.
3. Crime no.20/2002, Beypore police station, that
is, Ext.P6 FIR was registered by PW7, the then Sub Inspector
based on Ext.P1 FIS of CW1, the injured. The initial
investigation was conducted by PW9, Sub Inspector, Kozhikode
City Trafic police station and thereafter by PW10, Circle
Inspector, Cheruvannoor who on completion of investigation
submitted the charge sheet/final report alleging the commission of
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the offences punishable under the aforementioned Sections by the
accused persons.
4. On appearance of all the accused persons, the
jurisdictional magistrate after complying with all the necessary
formalities contemplated under Section 209 Cr.P.C. committed
the case to the Court of Session, Kozhikode. The case was
numbered as S.C.No.141/2004 and thereafter made over to the
Special Additional Sessions Judge (Marad Cases), Kozhikode, for
trial and disposal.
5. On behalf of the prosecution, PW1 to PW11
were examined and Exts.P1 to P10 and MO.1 to MO.2 were
marked in support of the case. After the close of the prosecution
evidence, the accused persons were questioned under Section
313(1)(b) Cr.P.C. with regard to the incriminating circumstances
appearing against them in the evidence of the prosecution. The
accused persons denied all those circumstances and maintained
their innocence.
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6. As the trial court did not find it a fit case to
acquit the accused persons under Section 232 Cr.P.C., they were
asked to enter on their defence and adduce evidence in support
thereof. The first accued offered himself as a witness and hence
he was examined as DW1. Exts.D1 and D2 are the contradictions
brought out in the testimony of PW1 and PW2.
7. On consideration of the oral and documentary
evidence and after hearing both sides, the trial court by the
impugned judgment found no evidence to find the accused
persons guilty of the offences punishable under Sections 143, 147,
148, 427, 153A read with Section 149 IPC and hence they were
acquitted under Section 235(1) Cr.P.C. in respect of the said
offences. Accused Nos. 3 and 5 were also found not guilty of the
offences punishable under Section 450 and 307 IPC. Hence they
were acquitted under Section 235(1) Cr.P.C. However, A1 and
A2 have been found guilty under Section 235(2) Cr.P.C. of the
offences punishable under Section 450 and 307 IPC. Hence, they
have been sentenced to rigorous imprisonment for a period of five
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years and to a fine of ₹25,000/- and in default to undergo simple
imprisonment for six months for the offence punishable under 307
IPC and to rigorous imprisonment for a period of two years and to
a fine of ₹5,000/- and in default, to simple imprisonment for a
period of two months for the offence punishable under Section
450 IPC. The substantive sentences of imprisonment have been
directed to run concurrently. Set off under Section 428 Cr.P.C.
has been allowed. Out of the fine amount, if realized, ₹25,000/-
has been directed to be given to PW1 as compensation under
Section 357(1) of Cr.P.C. Aggrieved, A1 and A2 have come up
in appeal.
8. The only point that arises for consideration in
this appeal is whether the conviction entered and sentence passed
against A1 and A2/the appellants by the trial court are sustainable
or not.
9. Heard both sides.
10. It is submitted by the learned counsel for the
accused persons/appellants that the trial court went wrong in
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relying on the sole testimony of PW1 and finding the accused
guilty of the offences alleged against them. PW1 is not a credible
witness. The testimony of PW1 regarding the place of occurrence
does not tally with the description given in Ext.P3 scene mahazar.
Doubts arise from the materials on record as to whether the
veranda or courtyard of the house of PW1 was the place of
occurrence because, going by the recitals in the scene mahazar, it
is from the courtyard, shards of glass alleged to be blood stained
were seized by the Police. No scientific examination has been
conducted on the material objects or at the place of occurrence.
There is also delay in registering the crime. It was also pointed
out that PW1 in her cross examination admitted that the overt acts
of A2 had not been stated by her to the police. This omission has
been proved through PW9, the investigating officer. The medical
and ocular evidence do not tally and they are inconsistent.
According to PW1, CW1 her husband had sustained two injuries
in the incident. But going by Ext.P9 wound certificate CW1 is
seen to have sustained six injuries. None of the weapons alleged
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to have been used by the accused for the attack have been
recovered by the police. Further, A1 examined himself as DW1
to prove his defence of alibi. But the trial court on a
misappreciation of the evidence and law regarding the said
defence, rejected the same and wrongly convicted the accused
persons.
11. Per contra, it was submitted by the learned
Public Prosecutor that PW1, admittedly the wife of CW1, the
injured, is an inmate of the house where the incident occurred.
Therefore, PW1 is a natural witness. Whether the incident
occurred in the veranda or courtyard of their house does not make
much of a difference because both are in the vicinity of their
house. DW1 was unable to establish his defence of alibi. There
is no infirmity in the findings of the trial court calling for an
interference by this Court, goes the argument.
12. I make a brief reference to the testimony of
PW1 relied on by the trial court to establish the prosecution case.
PW1 deposed that the incident took place on 03/01/2002 between
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7:30 and 7:45 p.m. At the time of the incident, she along with her
husband and children were in her house at Marad beach. Hearing
sounds from outside, they came out of the house and looked.
Suddenly, a stone hit the window panes of the house causing
damage. When PW1 looked in the direction from which the stone
had come, she saw a group of people coming toward her house.
She cried out loudly to her neighbor PW2. PW2 came to the
courtyard of her house. By that time five persons, that is, the
accused persons herein, from the mob entered the veranda of her
house. A5 Latheef shouted that Rajrendran is in the house and
that he be killed as no Hindus should be left alive. A1
Aboobacker hacked on the head of CW1 her husband, with a
sword. CW1 warded off the blow with his left hand, as a result
of which the blow fell on his left elbow. A2 Babu also hacked
her husband which again he warded off with his two hands. The
blow fell on his left palm and on his right hand fingers. PW1
further deposed that when her husband was attacked, he entered
into the house and escaped through the door behind. PW1 also
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deposed that there were quite big stones in the hands of A3 and
A4 with which they broke the window panes. PW1 identified all
the five accused persons involved in the incident. She also
identified the signature of her husband in Ext.P1 FIS. According
to PW1, the accused tried to kill her husband on account of
religious enmity.
12.1. PW2 is stated to be an alleged occurrence
witness. However, PW2 has been disbelieved by the trial court.
13. It was pointed out by the learned counsel for the
accused persons/appellants that going by the testimony of PW1
the incident in which her husband was hacked took place in the
veranda of their house. However, the scene mahazar does not
refer to any blood on the floor of the veranda. It also does not
show that the window panes of the windows adjacent to the
veranda had been broken. It was also pointed out that going by
the testimony of PW1, due to the attack there was blood stains on
the shards of glass, however, there is no material to substantiate
her testimony. No scientific examination of the scene was
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conducted. This was pointed out as one of the major defects in
the prosecution case.
14. CW1, the injured died before the trial
commenced and hence could not be examined. The testimony of
the PW1, his wife is that the incident took place in the veranda
situated in front of her house. In Ext.P3 scene mahazar also, the
scene of occurrence is stated to be the veranda of the house.
Going by the contents in Ext.P3 scene mahazar, the investigating
officer had inspected the house of PW1 on 08/01/2002, on which
day he had seen blood stains on the window panes. It is true that
there is no material to show that there was blood on the floor of
the veranda. As rightly pointed out by the trial court, absence of
blood stain(s) on the floor of the veranda does not automatically
mean that CW1 Rajendran had not sustained injuries at that place
as PW1 has no case that pursuant to the attack there was a pool of
blood or blood stains on the floor of the veranda. In the light of
the injuries seen caused to CW1, it was unlikely that there would
have been a huge mount of blood or a pool of blood on the floor.
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The scene mahazar was prepared five days after the incident.
Merely because the scene mahazar does not refer to the blood
stains alleged to have been there at the scene of occurrence, is no
reason to doubt the prosecution case. Though the accused persons
had taken a defence that CW1 Rajendran had sustained the
injuries seen on him when he took part in the riots that had taken
place on 03/01/2002 at Marad Beach, there are no materials to
support the said aspect. PW1 was extensively cross examined.
However, no major contradiction(s) has been brought out in her
testimony.
15. Now coming to the medical evidence on record.
PW11, Lecturer Orthopaedic, Government Medical College,
Calicut, deposed that on 03/01/2002 at 08:30 p.m. he had
examined CW1, who was brought to the hospital with a history of
assault on the same day at 07:00 p.m. The patient was conscious
and oriented. On examination, he noted the following injuries –
(1) Incised wound of the size 10x5x3cm at proximal
one-third of left ulna.
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(2) Incised wound over dorsum of left hand of the size
3x1x0.5cm cutting extensor tendon to index finger.
(3) Incised wound of the size 2x1x0.5cm at the medial
aspect of left wrist, superficial radial nerve exposed
and cut.
(4) Abrasion of the size 2x1cm on the lower third of the
leg.
(5) Incised wound of the size 3x1x0.5cm over dorsum
of hand on the base of left index finger.
(6) Abrasion of the size 2x1cm on the front of right
arm.”
PW11 also deposed that the X-ray revealed that CW1 had
sustained a fracture of proximal one-third of left ulna. The doctor
also deposed that the injuries noted could be caused by a sharp
edged weapon like a sword. Ext.P10 discharge certificate issued
by PW11 would show that CW1 had been admitted in the hospital
on 03/01/2002 and discharged on 14/01/2002.
16. PW1 has deposed regarding the overt acts
committed by A1 and A2. It is true that she has not specifically
referred to all the parts of the body of CW1 where he had
sustained injuries. However, there is no major inconsistency or
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contradiction regarding the injuries seen in the wound certificate
and the injuries spoken to by PW1. All the injuries noted in the
wound certificate are on the arms and fingers of CW1. This
tallies with the overt acts spoken to by PW1 and hence I find that
the argument that the medical evidence and ocular testimony are
inconsistent is not correct.
17. Now coming to the testimony of DW1, the first
accused herein to establish his case of alibi. According to DW1 at
the time of the incident, he had taken one Kunjikoya who was
seriously injured in the riots that took place on that day to the
hospital. According to DW1, he was examined as a prosecution
witness in S.C.No.805/2003 relating to the murder of Kunjikoya.
On 03/01/2002 at about 07:30 – 07:35 p.m., he had seen
Kunjikoya in an injured condition outside the gate on the southern
side of the mosque at Marad. He fetched an autorikshaw and
along with two other persons took Kunjikoya to the Medical
College Hopital. He did not return to Marad on the said day as he
stayed at the house of his friend. A1 relies upon the testimony of
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PW3 in support of his plea of alibi.
18. PW3, the Khatheeb of the Marad mosque during
the year 2002 deposed that on 03/01/2002 at 07:45 p.m. he was at
the mosque. While prayer was going on, he heard noises from
outside. After sometime, Kunjikoya was brought into the mosque
in an injured condition. A few persons switched on the
loudspeaker in the mosque and made repeated calls for prayer. In
the cross examination PW3 deposed that immediately after
Kunjikoya was brought to the mosque, the latter was taken to the
hospital. PW3 further deposed that it was after Kunjikoya was
taken to the hospital, repeated calls for prayer had been made
from the mosque. Therefore, relying on the testimony of PW3
and DW1, it was canvassed by the learned counsel for the
accused/appellants that the materials on record would show that
A1 was not at the spot at the relevant time and therefore the
prosecution case has to fail. I am afraid I am unable to agree to
the argument.
19. The defence of alibi is seen dealt with in detail
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by the trial court and the same has been rejected. I do not find
any infirmity in the reasonings given by the trial court. It has
come out in evidence that the mosque as well as the place of
incident in the case on hand are situated quite nearby and so it
cannot be said with absolute certainity that it was impossible for
DW1 to have been present at the scene of crime. There appears to
be no improbability or impossibility of the accused being present
at the spot at the relevant time. The appreciation of evidence and
the law on the point has been rightly done by the trial court and I
do not find any infirmity in the said findings.
20. It is true that the weapons that are alleged to
have been used by the accused persons/appellants could not be
recovered by the police. However, recovery of weapon(s) used in
the commission of an offence is not a sine qua non to convict the
accused [See Mritunjoy Biswas v. Pranab alias Kuti Biswas,
AIR 2013 SC 3334 ; Sanjeev Kumar Gupta v. State of U.P.,
(2015)11 SCC 69 ; Yogesh Singh v. Mahabeer Singh, (2017)11
SCC 195 ; Rakesh v. State of U.P., (2021)7 SCC 188 ; State
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through the Inspector of Police v. Laly alias Manikandan,
AIR 2022 SC 5034). The testimony of PW1, who is none other
than the wife of CW1, the injured along with medical evidence
proves that the first and the second accused had hacked the latter
with swords and caused grievous hurt to him. No materials have
been brought on record to show that PW1 had deposed falsely due
to prior enmity or like reason(s). The testimony of the doctor
shows that the injuries caused on CW1 could be caused by a sharp
edged weapon. The materials on record show that the accused
persons armed with deadly weapons had trespassed into the
veranda of the house CW1, hacked him with swords which he
warded off with his hands resulting in causing injuries to him.
The testimony of PW1 shows that CW1 Rajendran on being
attacked had taken to his heels and escaped through the back door
of his house. Had CW1 not escaped, the attack probably would
have turned fatal. The trial court on the basis of the materials on
record was right in holding that the offences under Sections 450
and 307 IPC have been made out. I find no infirmity in the
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findings of the trial court calling for an interference by this Court.
In the result, the appeal is dismissed.
Interlocutory applications, if any pending, shall stand
closed.
Sd/-
C.S.SUDHA
JUDGE
Jms
