Broose vs State Of Kerala

Johnson John, J

The appellants are accused Nos. 1 to 5 in S.C. No. 420 of 2007 on the file of the District and Sessions Judge, Ernakulam and they are challenging the conviction and sentence imposed on them as per the impugned judgment dated 10.06.2008.

The prosecution case is that the accused were having previous enmity towards PW1 for the reason that PW1 has informed the police about the illegal removal of river sand by the accused persons from Inchathotty Kadavu and in furtherance of their common object to cause hurt to PW1, they formed an unlawful assembly, armed with weapons on 15.01.2007, at 12 O’ clock in the midnight and reached in front of the house of PW1 in a Qualis car and they trespassed into the house of PW1 situated in a puramboke land on the bank of Periyar river near Inchathotty Kadavu, wherein PWs 1 and 2 and their children are residing.

After trespassing into the house, the first accused pushed down PW1 to a cot by asking whether she informed the police about their lorry transporting river sand and thereafter, the first accused sat on the body of PW1 and torn her nighty by saying that he will give her one more child and when her nighty was torn, she sustained an abrasion on her left breast.

When PW2, the husband of PW1, intervened, accused Nos. 2 to 5 beat and fisted him on his face and they also caused damage to the household articles. It is alleged that the second accused handed over the sword to the first accused and the first accused attacked PW1 with the sword aiming at her neck and then PW1 evaded the attack by turning her head and it is also alleged that the accused persons pelted stones on the house and they also threatened to cause the death of PW1 and her husband and they are thereby alleged to have committed the offences as aforesaid.

On the basis of Exhibit P1, First Information Statement of PW1, PW8, the then Sub Inspector of Kothamangalam Police Station, registered Exhibit P5 FIR and conducted the initial investigation. Thereafter, PW7 completed the investigation and filed the final report. On appearance of the accused persons before the trial court, charge was framed against them for the offences under Sections 143, 147, 148, 452, 354, 427, 323 308 r/w 149 IPC.

The charge was read over and explained to the accused persons, to which they pleaded not guilty. Thereafter, the prosecution examined PWs 1 to 9 and marked Exhibits P1 to P7 and MOs 1 to 5 to prove the charge against the accused persons. After the closure of the prosecution evidence, the accused were questioned under Section 313 Cr.P.C and since the trial court found that the accused are not entitled for acquittal under Section 232 Cr.P.C., they were called upon to enter on their defence. From the side of the accused, DWs 1 and 2 were examined and Exhibits D1 and D1(a) were marked.

After hearing both sides and considering the oral and documentary evidence on record, the learned District and Sessions Judge, found accused Nos. 1 to 5 guilty of offences punishable under Sections 143, 147 452, 323 427 r/w 149 IPC and the first accused is also found guilty under Section 354 IPC. All the accused persons are sentenced to undergo simple imprisonment for three years each and to pay a fine of Rs.5000/- each and in default of payment of fine, to undergo simple imprisonment for 5 months each for the offence under Section 452 IPC; simple imprisonment for 3 months each for the offence under Section 143 IPC; simple imprisonment for 6 months each for the offence 147 IPC; simple imprisonment for 3 months each for the offence under Section 323 IPC; and simple imprisonment for 6 months each for the offence under Section 427 IPC. The first accused is also sentenced to undergo simple imprisonment for 6 months for the offence under Section 354 IPC. The trial court also found that the prosecution has failed to prove the offences under Sections 148 and 308 r/w 149 IPC against all accused persons and also failed to prove the offence under Section 354 r/w 149 IPC against accused Nos. 2 to 5.

Heard Sri. K. Ramkumar, the learned Senior counsel for the appellants and Sri. Vipin Narayanan, Sr. Public Prosecutor and perused the records.

The point that arises for consideration in this appeal is whether the conviction entered and the sentence passed against the accused by the trial court are legally sustainable.

The learned counsel for the appellants argued that there is nothing in the evidence of PW1 to show that she suffered any pain and in the absence of satisfactory evidence to show that she sustained hurt in the incident, it cannot be held that the prosecution has proved the offences under Sections 452 or 323 of IPC. It is also argued that there is no evidence to show that the accused persons made any preparation for causing hurt as contemplated under Section 452 IPC and that there is also no reliable evidence to prove that the offence was committed in prosecution of the common object as alleged by the prosecution.

But, the learned Public Prosecutor pointed out that the evidence of PWs 1 and 2 regarding the occurrence tallies on all material particulars and that their evidence is also supported by medical evidence and in spite of serious cross examination, nothing is brought out to discredit their evidence in chief examination regarding the occurrence and therefore, there is no reason to interfere with the finding of the trial court in the impugned judgment.

According to PW1, when her husband attempted to remove the first accused from her body, accused Nos. 2 to 5 beat and fisted her husband on his face and the accused persons also caused damage to the household articles. PW1 would say that the second accused handed over the sword in his hand to the first accused and the first accused attacked her with the sword aiming at her neck and only because she evaded the attack by turning her head, she escaped from death. The evidence of PW1 further shows that the accused persons also pelted stones on the roofing sheets of their house and on hearing the cries of PW1 and her husband, persons residing on the other side of the river responded by making noise. According to PW1, the accused persons also threatened to cause the death of PW1 and her husband at the time of occurrence and that after the occurrence, they left the place in their Qualis car towards Kothamangalam side.

PW2 is the husband of PW1 and he also deposed regarding the occurrence in tune with the evidence of PW1. The evidence of PWs 1 and 2 shows that their house is situated in a remote area and that there is no other house within a distance of one kilometer from their house.

The specific case of the prosecution is that PWs 1 and 2 are residing in a small shed constructed in the purmboke land on the bank of Periyar river near Inchathotty Kadavu and there is no other house within a distance of one kilometer from the said house and that the occurrence was at 12 O' clock in the midnight. The evidence of PWs 1 and 2 regarding the occurrence is also supported by the medical evidence of PWs 5 and 9.

PW5 was the Assistant Surgeon at PHC, Kothamangalam who examined PW1 on 16.01.2007 and issued Exhibit P3, wound certificate. The evidence of PW5 and Exhibit P3 shows that PW1 sustained superficial abrasion on the centre of the chest and she complained of pain on the chest. The alleged history in Exhibit P3 also tallies with the evidence of PWs 1 and 2 regarding the occurrence. PW9 was the Superintendent of Community Health Centre, Kothamangalam. The evidence of PW9 and Exhibit P6, discharge card, shows that PW1 was admitted on 16.01.2007 and discharged on 22.01.2007. Exhibit P7 is the case sheet of PW1 relating to her treatment.

The evidence of PWs 1 and 2 further shows that only on the next day morning, they were able to reach the hospital as there was no facility for transportation from their place of residence. Their evidence shows that they reached the hospital on the next day morning by travelling in a bus and that even though, PW2 also consulted the doctor, he has chosen not to avail inpatient treatment, as there was nobody else to look after the child. PWs 1 and 2 categorically deposed that all the accused persons are previously known to them as they used to reach that place for collecting river sand and they also categorically identified all the accused persons before the court.

Even though, the defence examined DWs 1 and 2 to establish that PWs 1 and 2 are not residing at the place of occurrence and that they are residing at Cheekot which is about 1 km. away from the place of occurrence, their evidence in this regard is not at all reliable and further, the evidence of PW3, attesting witness to Exhibit P2 scene mahazar, and that of PW8, Sub Inspector who prepared Exhibit P2, clearly shows that PWs 1 and 2 are residing in their house situated near to Inchathotty Kadavu. The evidence of DW1 in cross examination shows that PW1 has filed a case against him during 2004 and that he is a close associate of first accused Broose.

In cross examination, DW1 admitted that he has given a signed undertaking that he will not cause any disturbance to PW1 when she filed a complaint against him. DW2 also admitted in cross examination that he is working along with the first accused Broose for the last 5-6 years. Exhibit D1 is the copy of the FIR in Crime No. 58 of 2006 of Kothamangalam Police Station, wherein PW1 herein is the complainant and the accused is one Varghese.

On the basis of Exhibit D1, it is argued that PW1 is in the habit of filing complaints for the offence under Section 354 IPC. But, it is pertinent to note that in cross examination, PW1 has not denied the occurrence alleged in Exhibit D1 and therefore, only for the reason that PW1 was the victim of another incident that occurred previously, that cannot be accepted as a ground to disbelieve her evidence regarding the occurrence, especially in view of the fact that the de facto complainant and her husband are residing in a remote area on the bank of a river in a small shed constructed in the river puramboke. Therefore, considering the facts and circumstances, I find that the evidence of DWs 1 and 2 will, in no way, affect the credibility of PWs 1 and 2 regarding the occurrence.

Another contention of the learned counsel for the appellant is regarding the non-recovery of the weapon of offence. In this connection, it is pertinent to note that PW7 has stated in cross examination that since the accused persons have not made any disclosure statement regarding the place where they concealed the weapon of offence, he was not able to recover the same. In this case, PWs 1 and 2 has deposed regarding the nature of the sword and since the evidence of direct eye witness regarding the nature of weapon is credible and trustworthy and in view of the reason stated by PW7 for not recovering the weapon, I find that the non recovery of the weapon of offence is not significant in the circumstance of the case. The evidence of PWs 1 and 2 clearly shows that all the accused persons trespassed into their house and they have also deposed regarding the specific overt acts committed by the accused persons.

It is well settled that even if no overt act is imputed to the accused, presence of the accused as part of the unlawful assembly is sufficient and that inference of a common object has to be drawn from various factors, such as the weapons with which the members were armed, their movements, the acts of violence committed by them and the end result. Therefore, on a careful re-appreciation of the entire evidence, I find that there is no valid grounds to interfere with the finding of the trial court in convicting accused Nos. 1 to 5 for the offence under Sections 143 147 452, 323 and 427 r/w 149 IPC and convicting the first accused also for the offence under Section 354 IPC.

Considering the nature, gravity, the manner and the circumstances of the commission of the offence, I also find no reason to interfere with the sentence imposed by the trial court and in that circumstance, this appeal is liable to be dismissed.

In the result, this appeal is dismissed confirming the conviction entered and the sentence passed by the learned District and Sessions Judge, Ernakulam in S.C. No. 420 of 2007. Interlocutory applications, if any pending, shall stand closed.