Sajan vs State Of Kerala Represented By Public Prosecutor

P.G.Ajithkumar, J.

These three appeals filed under Section 374(2) of the Code of Criminal Procedure, 1973 (the Code) arose on the judgment dated 08.11.2021 in S.C.No.951 of 2014 on the files of the Additional Sessions Court-II, Alappuzha. There were ten accused. The 1st accused expired during trial of the case and therefore the charge against him abated. Accused Nos.2 to 4, 9 and 10 were convicted for various offences. Accused Nos.5 to 8 were found not guilty and acquitted. Following are the details concerning the respective appeals:

Appeal No.

Filed by

Offences for which convicted

Sentence imposed

Crl.Appeal No.886       of 2021

Accused  9

and 10

Sec. 201 of IPC

Accused Nos. 9 and 10

S.I.  for  two  years  each  and  to pay  a  fine  of  Rs.50,000/-  each for    offence    u/s.201    IPC,    in default  of  payment  of  fine,  S.I. for four months each.

Crl.Appeal No.504       of 2022

Accused  2

and 3

Accused No. 2

Sections 143,

148, 324,

427, 447, 449

and 302 r/w

Section 149 of IPC

Accused No. 3

Sections 143,

148, 427,

447, and 302 r/w Section 149 of IPC

Each of Accused Nos 2 and 3

R.I. for six months each u/s Sec.

143    IPC,    RI    for    two    years u/s.148 IPC, RI for three months u/s.447   IPC,   RI   for   one   year u/s.427   IPC,   imprisonment   for life  and  to  pay  a  fine  of  Rs.2 lakhs  u/s.302  IPC,  in  default,  SI for six months.

Accused No 2 is also to undergo RI for two  years  for offence  u/s

324  IPC  and  to  undergo  RI  for three years and to pay a fine of Rs.1 lakh for offence u/s 449, in default,  he  shall  undergo  SI  for six months more.

Crl.Appeal No.746 of 2023

Accused No.4

Accused No. 4

Sections 143, 148, 324, 427, 447 and 302 r/w Section 149 of IPC

Accused No. 4

R.I. for six months each u/s Sec.

143   IPC,   RI   for   two   years u/s.148 IPC, RI for three months u/s.447   IPC,   RI   for   one   year u/s.427   IPC,   imprisonment   for life  and  to  pay  a  fine  of  Rs.2 lakhs  u/s.302  IPC,  in  default,  SI for  six  months  and  to  undergo RI for two  years  for offence  u/s 324 IPC

The incident was on 28.03.2014. Sri.Jayesh, the deceased, was residing along with his wife, father, mother and child at the house bearing door No.XI/74 of Kainakary Panchayat. The prosecution alleged that accused Nos.1 to 4 and 6, after forming themselves into an unlawful assembly reached that house at 10.30 in the night in prosecution of the common object of causing the death of Sri.Jayesh. Accused Nos.1 to 4 came in front of the western room of that three-roomed house and asked Sri.Jayesh to come out. Accused Nos.1 to 3 were wielded with swords and accused No. 4 had an iron bar with him. The 6th accused was waiting near the fence. Accused Nos.1 to 4 tried to enter the house, but wife of Sri.Jayesh (PW16) and his father (PW14) waylaid them standing at the door and that ensued a commotion. Hearing the altercation, his mother (PW17) , who was in the bathroom, also reached there. Accused Nos.1 to 4 damaged the house and articles there to get Sri.Jayesh come out of the room. He was finally pulled out of the room and when he ran off, accused Nos.1 to 4 chased and at a paddy field, 150 metres away from the house, Sri.Jayesh fell down, and they attacked him using swords and iron bar, causing him extensive and fatal injuries. Sri.Jayesh, who was taken soon to the Medical College Hospital, Alappuzha succumbed to the injuries on the same night. Two reasons are stated as the motive, firstly, following some disputes, Sri.Jayesh stabbed the 1st accused Abhilash causing him injury, regarding which a criminal case was pending. And secondly, PW14 complained to the police about his assault following a dispute between Sri.Jayesh and others regarding a reaping machine. It is further alleged that those accused conspired with accused Nos.5 and 7 to 10 to do away with Sri.Jayesh.

A crime was registered based on the statement of PW14, who also sustained injury in the incident and undergone treatment in the Medical College Hospital, Alappuzha. His statement was recorded at 1.45 a.m. on 29.03.2014 by PW35, Najeem, based on which crime No.334 of 2014 was registered from Nedumudi Police Station. PW41 Sri.Sani, who was then the Inspector of Police, Ambalappuzha, after completing the investigation laid charge before the Judicial Magistrate of the First Class, Ramankary alleging offences punishable under Sections 143, 147, 148, 323, 324, 341, 427, 449, 120B, 294(b), 506(ii), 212 and 302 r/w Section 149 of Indian Penal Code (IPC) and Section 27 of the Arms Act. On committal, the Sessions Court, Alappuzha took cognizance of the matter and made over the case to the Additional Sessions Judge-II, Alappuzha for the trial. At the trial after framing a charge, PW1 to PW41 were examined, Exts.P1 to P60 were marked and MOs.1 to 13 were identified on the side of the prosecution.

Accused were examined under Section 313(1)(b) of the Code. DW1 was examined and Exts.D1 to D34 were marked on their side. After considering the evidence in detail, the learned Sessions Judge found that accused Nos.1 to 4, along with an unidentified person in the prosecution of their common object of the unlawful assembly they had formed into committed murder of Sri.Jayesh. They were found guilty of the associated offences as well. Accused Nos.9 and 10 were found guilty of the offence of causing disappearance of evidence punishable under Section 201 of the IPC.

The defence of the accused as revealed from the statement given in response to the questions put to them under Section 313 of the Code, was one of total denial. It was also contended that the incident, wherein Sri.Jayesh sustained fatal injuries took place not at his house or the nearby paddy field, but somewhere else. He was alleged to have involved in many criminal cases, and therefore, he had many enemies. Someone of such enemies might have caused his death and since the actual culprits could not be identified, the accused were falsely implicated. The learned Sessions Judge did not accept that case.

Heard the learned counsel for the appellants in the respective appeals and the learned Senior Public Prosecutor.

In appeal, the appellants-accused Nos.2 to 4, 9 and 10 would contend that PWs.14, 16 and 17 are unworthy of credit for the reason of numerous contradictions surfaced in their evidence and other inconsistencies. The learned counsel appearing for accused Nos.2 to 4 would submit that the contradictions and omissions brought out during their examination make it impossible to give any credibility to them and owing to their close relationship to the deceased, they became totally unreliable. The defective investigation, namely, inconsistency in the scene mahazar and scene plan, absence of a test identification parade, etc. are highlighted by the learned counsel to urge that the prosecution inevitably has to fail. The learned counsel for accused Nos.9 and 10, further would submit that the proved facts do not constitute an offence punishable under Section 201 of the IPC.

The learned Public Prosecutor, per contra, took us to the evidence of the witnesses in detail and submitted that evidence regarding the substratum of the prosecution case is cogent and consistent. No reason to doubt the occurrence witnesses, namely, PWs.14, 16 and 17 has been brought out, and the contradictions and inconsistencies pointed out are of a trivial nature, which cannot have the effect of discarding their evidence. Accordingly, the learned Public Prosecutor would submit that the charge against the convicted persons has been proved beyond a reasonable doubt.

The points arise for consideration are,-

i) Did the incident occur at the residence of Sri.Jayesh and the nearby paddy field?

ii) Did accused Nos.1 to 4 along with an unidentified accused cause the death of Sri. Jayesh and commit the associated offences?

iii) Did accused Nos.9 and 10 commit the offence of disappearance of evidence?

Points No. (i) and (ii):

Death of Sri.Jayesh is undisputed. The death was as a consequence of injuries sustained by him during the night of 28.03.2014. PW14-Raju is the father of Sri.Jayesh. PW16-Binny is his wife and PW17- Lalitha is his mother. Going by the case of the prosecution, all of them and the child of Sri.Jayesh were in the house when accused Nos.1 to 4 and 6 reached their house at about 10.30 p.m. on 28.03.2014. PWs.14 and 16 deposed about the incident which occurred at the house and at the paddy field where Sri.Jayesh was inflicted with the fatal injuries almost identically. PW17 was in the bathroom outside the house and she came to the scene on hearing the hue and cry. So she did not see the initial part of the incident.

The house of Sri.Jayesh is a temporary one. It is a row of three independent rooms made up of tin sheets; both roof and walls. All the doors open to the southern side. Sri.Jayesh, PW16 and their child were in the western room. PW16 deposed that accused Nos.1 to 4 had come in front of the said room and asked Sri.Jayesh to come out. Seeing accused Nos.1 to 4 possessed with weapons in front of the room, she screamed and called out PW14 for help, who was then in the easternmost room. PW16 was standing on the door blocking the assailants and PW14 soon joined her. It is her version that accused Nos.1 to 4 were trying to get Sri.Jayesh out of the room and she with the help of PW14 was trying to pacify the assailants. They would state that accused Nos.2 to 4 struck using sword and iron bar, and damaged the tin-sheet in the walls of that house and the household utensils in the courtyard. A water can kept outside was also damaged by striking with the sword. It was at that time, PW17 came and immediately, she took the child from inside and came out. It is the consistent version of PWs.14, 16 and 17 that they tried to mellow down the 1st accused saying a solution could be found later. The assailants did not heed to their fervent requests, instead, they were trying to get in hold of Sri.Jayesh. It is stated that the 2nd accused entered the middle room and struck using sword at the partition sheet, and the sword pierced the sheet and hit at the forehead of Sri.Jayesh causing an injury. The commotion continued. The 1st accused, Abhilash threatened PW14 by placing the sword in his hand. The 3rd accused, Nandu also threatened PW14 to chop off his limbs if Sri.Jayesh is not allowed to come out. PWs.14, 16 and 17 further deposed that the 4th accused Janeesh beat PW14 using the iron bar with him. It was thereafter the 2nd accused could catch hold of Sri.Jayesh and he along with other assailants forced him out, which resulted in the 2nd accused, Sri.Jayesh, PW14 and PW16 falling at the courtyard. Fearing further attack by the assailants, PW14 asked Sri.Jayesh to run away, and he took to his heels towards western side. There are paddy fields.

PWs.14, 16 and 17 deposed that accused Nos.1 to 4 possessed with weapons, chased Sri.Jayesh and at a distance of about 150 metres, they could reach at Sri.Jayesh. They further deposed that Sri.Jayesh fell down near a ridge, in the paddy field of PW6 Sabu and all the four assailants using swords and the iron bar profusely struck and beat him inflicting injuries all over his body. Although they requested not to assault, all the four accused did not heed to. PW14 stated that he had a torch with him and that helped them to chase the assailants and see what they were doing. PWs.14 and 16 also had stated that when they reached near, accused Nos.1 to 4 left after the 1st accused telling PW16 to take away her man, the injured. PW17 stated that she with the child at her lap reached the place and by the time the assailants were leaving the scene.

PW5, Sri.Poppachan was a Grade Sub Inspector working in Nedumudi Police station. He stated that while he was on duty, at about 11.00 p.m., during night on 28.03.2014 he was informed by PW35, Najeem, who was in charge of the said Police Station, regarding the incident following his getting a telephone message. PW5 along with policemen rushed to the scene. He deposed that when they reached the house of the deceased, noticed havoc having occurred there and torch light from the expanse paddy field on the western side. Therefore he along with other policemen went to that place where he saw Sri.Jayesh lying on the paddy field with bleeding injuries. He was told by PW14 that one Abhilash along with three others attacked Sri.Jayesh. It is the further version of PW5 that he obtained a mat from a nearby house and took Sri.Jayesh on that mat to the hospital with the help of policemen and PW14. They had to walk some distance to reach near the jeep. While PW5 stated that Sri.Jayesh was taken straight to an ambulance, which was brought by that time and parking some distance away; PWs.14, 16 and 17 deposed that they were taken for a short distance in the jeep and then in the ambulance to Medical College Hospital, Alappuzha.

At the Medical College Hospital, Sri.Jayesh was attended by PW38, Dr.Anilkumar at about 12.30 a.m. on 29.03.2014. Ext.P38 is the wound certificate. The alleged cause of injury sustained by Sri.Jayesh was stated to PW38, which was noted in Ext.P38, that five known persons attacked at about 10.30 p.m. on 28.03.2014. Injuries found on the body of Sri.Jayesh were noted in detail in the case sheet and in Ext.P38, it was noted only that he had multiple incised wounds on the body. From the version of PW14, it is seen that Sri.Jayesh was pronounced dead soon thereafter.

The body of Sri.Jayesh was removed to the mortuary. Autopsy on his body was conducted by PW27 Dr.Liza John on 29.03.2014 at 3.15 p.m. Ext.P26 is the postmortem report. PW27 deposed in court all the ante-mortem injuries found on the body of Sri.Jayesh and also the other findings. The injuries are:

Incised wound 6 x 2 cm bone deep on the top of head, oblique, its upper left end 2 cm inner to the parietal eminence.

Graze abrasion 3 x 2 cm on the outer aspect of right eye.

Sutured incised wound 2 x 0.1 cm bone deep slightly oblique on the left side of head, 1 cm below injury no.2.

Superficial incised wound 2 x 0.1 cm, oblique, on the left side of head 3 cm above the top of ear.

Multiple small abrasions over an area 2 x 1 cm on the right side of nose, involving the ala.

Abrasion 0.5 x 0.2 cm on the left side of ala of nose.

Abrasion 2 x 1 cm on the outer aspect of prominence of left cheek.

Sutured incised chop wound 6 x 2 cm bone deep, horizontal, on the left side of head, 2 cm above the left mastoid. The inner end showed a tailing in a backward direction. Underneath the vault showed a cut fracture of similar dimension. The brain showed a thin film of localised sub-arachnoid bleeding over the left tempero parietal region. Brain (1.344 gms) was pale.

Incised wound 8 x 1.5 cm bone deep on the back top of shoulder. The wound edges showed gaping and the outer margin was beveled.

Superficial incised wound 4 x 1 cm on the top of shoulder, 2 cm above the previous injury.

Incised wound 4 x 1 cm tendon deep, vertically placed on the back of right hand, overlying the knuckle of the middle finger.

Incised wound 8 x 2 cm bone deep on the top of left shoulder, with upward and downward superficial linear extensions, the back margin showed beveling. Underneath there was a chip fracture of the humerus.

Incised wound 3 x 2 cm bone deep, on the back of top of shoulder, with a downwards for 5 cm. This injury was placed 1 cm below the previous injury.

Incised wound 6.5 x 2 cm muscle deep, on the outer aspect of arm, with a downward tailing for 12 cm, 7 cm below the top of shoulder.

Superficial incised wound 8 x 0.5 cm on the outer aspect of arm 10 cm below the top of shoulder.

Incised wound 7 x 2 x 1 cm bone deep on the outer aspect of middle of arm, horizontally placed.

Incised wound 2 x 1 cm bone deep horizontal, 7 cm below the previous injury.

Incised wound 2 x 1 cm bone deep 2 cm below the previous injury, with an inward directed tailing for 5 cm.

Incised wound 4 x 3 cm muscle deep on the back of arm 18 cm below the top of shoulder.

Superficial incised wound 9 cm long, on the back of left arm obliquely intersecting injuries 15-19.

Three incised wound horizontally placed at the back of elbow, parallel to each other with sizes 3 x 3, 7 x 3 and 4 x 2 cm, all bone deep, exposing the fractured head of radius bone which was seen to protruding through these injuries.

Incised chop wound 8 x 2 cm bone deep, horizontal, on the outer aspect of forearm 8 cm below the elbow.

Incised wound partially amputating the left forearm at its middle. Underneath both bones of the forearm were seen to be fractured by incised cuts.

Incised wound 8 x 3 cm partially amputating the left wrist horizontally, with a tailing directed onwards.

Curved incised wound 10 x 2 cm across the thenar and hypothenar eminences of the palm.

Incised wound 6 x 1 cm bone deep over the inner aspect of the right knee exposing a portion of the knee point.

Incised wound 8 x 2 cm bone deep vertically placed on the front of leg, 13 cm above the heel.

Incised wound 2 x 1 cm bone deep 1 cm below the previous injury.

Incised wound 5 x 2 cm across the Achilles tendon, completely severing it.

Multiple incised wound overlying the inner prominence of the right ankle, all of them bone deep.

Incised wound 8 x 1 cm involving the heel pad of the sole.

Incised wound 3 x 1 cm on the top of big toe.

Incised wound 3 x 2 x 1 cm on the back of leg, 18 cm above the heel.

Incised penetration wound over the back of knee 8 x 2 cm joint deep.

Incised wound 8 x 3 x 0.3 cm oblique placed on the back of left thigh. 11 cm below the top of hip bone, tailing outwards and downwards for 7 cm.

Two superficial incised wound 9 x 0.1 cm and 7 x 0.1 cm, 4 cm apart horizontally placed on the back of left thigh, 15 cm above the knee.

Incised wound 5 x 3 cm muscle deep, horizontal 7 cm above the knee.

Two superficial incised wounds 7 x 0.1 cm and 6 x 0.1 cm on the back and outer aspects of thigh 8 cm upwards, just above the knee.

Sutured incised wound 8 x 3 cm bone deep on the top of knee exposing, the fractured patella.

Incised wound 10 x 2 cm bone deep, oblique, on the back and outer aspect of left leg. Being 1 cm below the knee.

Incised wound 8 x 3 cm bone deep obliquely placed on the outer aspect of leg, 20 cm below the knee. Underneath both the bones were fractured.

Incised wound 9 x 3 cm muscle deep on the leg, 3 cm below the previous injury.

Two incised wound 3 x 2 cm and 4 x 2 cm, 1 cm apart, parallel to each other and 2 cm below the previous injury.

Incised wound 6 x 2 cm bone deep on the back of heel.

Incised wound 3 x 3 cm over the front of left ankle, with tailing directed upwards and outwards for 2 cm.

Two incised wound 3 x 1 cm and 2 x 1 cm, both bone deep, 1 cm apart on the outer aspect of ankle.

Incised wound 5 x 3 cm bone deep, on the top of foot 8 cm below the ankle joint.

Incised wound 6 x 5 cm bone deep involving the outer one third of the top of foot 2 cm above the previous injury.

Abrasion 7 x 0.1 c.m. vertical on the front of right side of chest, 2 cm above the armpit.

Incised wound 13 x 3 cm bone deep obliquely placed on the left side of back of trunk, with linear extensions upwards and downwards, being placed 6 cm below the top of shoulder and 10 cm outer to midline.

Incised wound 8 x 2 cm muscle deep on the back of left side of trunk, its lower outer end being 5 below and parallel to the previous injury, with linear extensions upwards and downwards from either ends.

Incised wound 10 x 2 cm, bone deep parallel and 2 cm below the previous injury with upwards and downward linear extensions. Underneath, the 8th rib on the left side showed a chip fracture.

Incised penetrating wound 3 x 2 cm the left chest cavity, spindle shaped on the back of left side of trunk, 16 cm outer to midline and 27 cm below the top of shoulder. On dissection, the left lung was seen collapsed. The right and left pleural cavities, each, contained 100 ml of blood stained fluid.

Two incised penetrating wound 2 x 1 cm and 2 x 2 cm, both entering the abdominal cavity, obliquely placed 2 cm apart on the back of trunk across the midline, the upper one 33 cm below the nape of neck. The wound track was directed to the front, downwards and to the left terminating as incised perforating wound of the transverse colon 2 x 0.5 cm with resultant spillage of the colonic contents into the peritoneal cavity.

Incised wound 4 x 2 x 6 cm obliquely placed on the right side of back of shoulder, 10 cm below and 5 cm outer to midline. The track was directed upwards and outwards.”

PW27 opined that Sri.Jayesh died due to multiple sharp force injuries. As pointed out above, the death and cause of death of Sri.Jayesh are not challenged by the accused. From the oral evidence of PWs.14, 16, 17, 27 and 38, and Exts.P26 and P38, it can certainly be found that Sri.Jayesh died as a result of the injuries sustained by him in the incident occurred between 10.30 and 11.30 on 28.03.2014 and it is a homicide.

PW14 also sustained injuries in the incident. He deposed that he was beaten up using an iron bar by the 4th accused and slapped by the 2nd accused. Along with Sri.Jayesh, PW14 was also taken to the Medical College Hospital. He was examined there by PW39 Dr.Harikrishnan. Ext.P39 is the certificate issued in that regard. PW14 stated that he had injuries on the neck and shoulders. He had undergone treatment in the Medical College Hospital for the said injuries. The alleged cause of injuries given by PW14 to PW39 is that he was assaulted by five persons at his house at about 11.00 p.m. While he was at the hospital, PW35 Sri. Najeem reached there and recorded his statement at about 1.45 a.m. on 29.03.2014. Ext.P9 is the statement. PW14 gave only a brief description of the incident. It was stated in it that the 1st accused Abhilash along with four others were the assailants. As regards the attack and use of weapons, although brief, a version similar to what he has stated in court was described in Ext.P9. On the basis of Ext.P9, PW35 registered crime No.334 of 2014 at 3.30 a.m. on 29.03.2014, which followed the investigation culminating in filing the final report.

The learned counsel appearing for accused Nos.2 to 4 would submit that several contradictions and omissions occurred in the evidence of PWs.14, 16 and 17, and that the same belie their credibility. PWs.14, 16 and 17 alone are the occurrence witnesses, who deposed about the incident in court. They are father, wife and mother of the deceased and living along with him. PW1 was cited as an occurrence witness, but he did not support the case of the prosecution. He totally resiled from the statement given in police. His evidence therefore has no use. So, the prosecution can rely on only the evidence of PWs.14, 16 and 17 to prove the incident, of course, along with the attending circumstances. The learned counsel for accused Nos.2 to 4 at the very outset submitted that PWs.14, 16 and 17 being close relatives, their evidence cannot be given much importance. The consistent view taken by the Apex Court in this respect is that evidence of eye witnesses, who are relatives of the victim, has to be considered from the point of view of trustworthiness. In Javed Masood & another v. State of Rajasthan [AIR 2010 SC 979], the Apex Court held that close relations would make all endeavour to see that the actual culprits are punished, and ordinarily they would not try to rope in someone else as the accused as it would be against natural human conduct.

The 1st accused was known to those witnesses. He stated during examination under Section 313 of the Code that he was a friend of Sri.Jayesh and used to go to his house. The case of the prosecution is also not different; they are friends turned foe and the alleged motive of causing murder of Sri.Jayesh is that he stabbed the 1st accused following skirmishes in their friendship. Crime No.649 of 2013 of Nedumudi Police Station was regarding that incident. Ext.P33 is a copy of the F.I.R. PW32, who was the Additional Sub Inspector in that police station proved Ext.P33. That would show that the 1st accused had enmity towards Sri.Jayesh. Admittedly, the others were not persons familiar to PWs.14, 16 and 17. However, those witnesses identified accused Nos.2 to 4 in court. The learned Counsel would submit that the identification of accused Nos.2 to 4 by PWs.14, 16 and 17 in court for the first time cannot be acted upon. Along with that, inconsistencies in their evidence are pointed out in order to fortify his plea that those accused are falsely implicated.

The learned counsel for accused Nos.2 to 4 would submit that the evidence let in by the prosecution in regard to the motive for the offence is inconsistent. Initially the allegation was that in consequence of the enmity towards Sri.Jayesh, the 1st accused along with accused Nos.2 to 4 and 6, who are his friends, caused the death of Sri.Jayesh. Later, another reason was alleged that following a dispute involving Sri.Jayesh in relation to a reaping machine, companions of the 1st accused assaulted PW14 and in that regard a complaint was given in police. PW32, Sivan Kunju, who was Additional Sub Inspector in Nedumudi Police Station, proved Exts.P33, P34 and P35. Ext.P33 is the F.I.R. in Crime No.649 of 2013, which was regarding assault of the 1st accused by Sri.Jayesh. It is seen that a final report against Sri.Jayesh was filed in that case. Exts.P34 and 35 are copies of the F.I.R. and final report in crime No.169 of 2014 of Nedumudi police station, which was regarding the incident, wherein PW14 was manhandled. The said evidence along with the oral testimony of PW14 proved both the incidents stated to be the motive for causing the death of Sri.Jayesh. In view of that, we are of the view that there is no doubt or inconsistency concerning the motive alleged for the incident.

Availability of light in the house and also in the paddy field where Sri.Jayesh was attacked is disputed. Whether PW16 or another person named Abhilash had informed about the incident first in the police station is not clarified. The torch said to have been with PW14 at the time of occurrence is not seized and produced. The versions of PWs. 14 and 16 that they tried to take Sri.Jayesh to the hospital on their own was later changed as with the help of PW5 they took him to the hospital. The mat used to take the injured from the place of occurrence was bought from the nearby house. Who among PW5 and PW14 obtained that mat and whether the injured was taken to the ambulance straight or using the police jeep are the inconsistencies essentially pointed out.

In paragraph No.11 above, the details of the incident are stated. PWs.14, 16 and 17 were trying to save Sri.Jayesh from the assailants, who were on their anger to do him away with. All the four accused were in possession of weapons like sword and iron bar. They were in such a rage that they did not give any heed to the fervent requests to leave him off. Instead, the accused were trying to get on to Sri. Jayesh by any means. When the incident occurred in such a tense and fearful situation, the possibility of noticing each and every overt act and deposing in court with graphic precision, cannot be expected. Discrepancies are inevitable. The question is whether the discrepancies have the effect of discrediting their veracity and fail the prosecution case altogether. Only if the contradictions and inconsistencies are material and capable of creating doubt about the case of the prosecution, the same would have the consequence of the acquittal of the accused.

Availability of light at the house need not be doubted. The consistent versions of PWs.14, 16 and 17 is that while Sri.Jayesh and PW16 were watching television in their room, the assailants came. PW14 stated in Ext.P9 itself that there were CFL lamps in his house and were lit at that time. In Ext.P10 scene mahazar prepared by the investigating officer, PW41 Sri.Sani, it was stated that the house was electrified. PW41 obtained a certificate from the Assistant Engineer, Kerala State Electricity Board, which is Ext.P56 to the effect that there was no power failure in that area at that time. That evidence sufficiently proved that there was enough light when the incident was taking place.

The learned counsel appearing for accused Nos.2 to 4, pointing out certain discrepancies in Ext.P10 scene mahazar and also the contradictions in the evidence of the said witnesses, tried to establish that Sri.Jayesh sustained injuries not in an incident that took place at his house or the nearby paddy field. It is true that a vivid description of every minor aspects of the scene of incident was not stated in Ext.P10. Similarly, Ext. P27 sketch prepared by PW28 village officer, Kainakari also does not contain a picturised description of the places of occurrence. However, from the description in Ext.P10 and delineation in Ext.P27 in the light of the oral testimonies of PWs.5, 14, 16, 17 and PW41, a clear picture regarding the places of occurrence can be understood. Extensive damages caused to the house and household articles are clearly revealed from that evidence. It is pertinent that the scene mahazar was prepared even before the funeral of Sri.Jayesh. Therefore the possibility of any kind of manipulation or meddling at the place occurrence can be ruled out. MOs.2 and 3 were identified by PWs.14, 16 17 to be the lungie and chappal of Sri.Jayesh. Those were recovered by PW41 under Ext.P10 from the scene of occurrence. Those witnesses deposed that MOs.2 and 3 lost while Sri.Jayesh was running away from the house to escape. That evidence renders further corroboration to the case of the prosecution that the incident took place as alleged.

From the paddy field, where Sri.Jayesh fell down and was attacked by the assailants, soil and grass parts were seized by PW24, a Scientific Assistant attached to the DCRB. That was simultaneous to the preparation of the scene mahazar. It may be noted that PW33, a Civil Police Officer from Nedumudi Police Station, was on guard duty at the scene of occurrence. He reached there soon after the incident and he was on duty there till a scene mahazar was prepared by the investigating officer. It is true that the possibility of PW14, Raju to be at the place of occurrence at 3.30 p.m. on 29.03.2014 and to point out the place of occurrence to PW41, the investigating officer appears doubtful as submitted by the learned counsel for the accused. The postmortem examination of Sri.Jayesh lasted till 4.30 p.m. on 29.03.2014, and PW14 having come to his house along with the body only, the possibility of PW14 being present at 3.30 p.m. at the place of occurrence is doubtful. Preparation of the scene mahazar undoubtedly would have lasted for quite some time. Therefore, PW14 should have reached there during the course of preparation of the scene mahazar. No Improbability as canvassed by the learned counsel for the accused can be inferred, in the light of the overwhelming evidence about preparation of the scene mahazar. Further, the version of the investigating officer is quite in tandem to the contents of Ext.P10, which is a contemporaneous document. PW18 who stated to have attested Ext.P10 tendered evidence confirming that fact. Soil and grass parts seized from the place were found contained human blood. In such circumstances, we find no reason to doubt Ext.P10 mahazar or its contents. That lends confirmation to the oral testimony of PWs 14, 16 and 17 that the incident took place at their house and the nearby paddy field. The above evidence also proves that there was enough light at the house and its premises at the time of occurrence.

PWs.7 and 8 are neighbours of Sri.Jayesh. Both of them deposed that after 10.30 p.m. on 28.03.2014 they heard a heated exchange of words from the house of Sri.Jayesh. PW7 is a lady. Both PWs.7 and 8 stated that they did not bother to go to the house of Sri.Jayesh on hearing such sounds, being it late night. Their version, however, rendered support to the case of the prosecution that such an untoward incident took place at the house of Sri.Jayesh and nearby paddy field. It is further corroborated by the evidence of PW6, who is the person in possession of the paddy field, where Sri.Jayesh was brutally attacked. He deposed that he saw police taking injured Jayesh to the ambulance and it was after about 11.00 p.m. on 28.03.2014. His evidence also renders assurance to the case of the prosecution regarding the place of occurrence.

During cross-examination of PW14, Exts.D3 to D11 contradictions were brought out. Similarly, Exts.D12 to D22 are the contradictions in the evidence of PW16. Exts.D23 to D29 are the contradictions in the evidence of PW17. We observe at the outset that most of the said contradictions were not proved as required in Section 145 of the Evidence Act. Section 145 reads as follows:-

“145. Cross-examination as to previous statements in writing.—A witness may be cross-examined as to previous statements made by him in writing or reduced into writing, and relevant to matters in question, without such writing being shown to him, or being proved; but, if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him."

The Apex Court in V.K.Mishra and another v. State of Uttarakhand and another [AIR 2015 SC 3043] explained the procedure for contradicting a witness with his previous statement and proving the same. It was held,-

“18. Under Section 145 of the Evidence Act when it is intended to contradict the witness by his previous statement reduced into writing, the attention of such witness must be called to those parts of it which are to be  used for the purpose of contradicting him, before the writing can be used. While recording the deposition of a witness, it becomes the duty of the trial court to ensure that the part of the police statement with which it is intended to contradict the witness is brought to the notice of the witness in his cross-examination. The attention of witness is drawn to that part and this must reflect in his cross-examination by reproducing it. If the witness admits the part intended to contradict him, it stands proved and there is no need to further proof of contradiction and it will be read while appreciating the evidence. If he denies having made that part of the statement, his attention must be drawn to that statement and must be mentioned in the deposition. By this process the contradiction is merely brought on record, but it is yet to be proved. Thereafter when investigating officer is examined in the court, his attention should be drawn to the passage marked for the purpose of contradiction, it will then be proved in the deposition of the investigating officer who again by referring to the police statement will depose about the witness having made that statement. The process again involves referring to the police statement and culling out that part with which the maker of the statement was intended to be contradicted. If the witness was not confronted with that part of the statement with which the defence wanted to contradict him, then the court cannot suo moto make use of statements to police not proved in compliance with Section 145 of Evidence Act that is, by drawing attention to the parts intended for contradiction.”

(underlines added)

Thus, if a previous statement of a witness to the police is intended to be contradicted, attention of the witness should be brought to that part of the statement. He has to be given an opportunity to explain while inviting his attention to the statement before the police. Simply by bringing out that the statement given in court is contradictory to his statement in police or that such a statement was not given in police, that would not amount to proof of a contradiction for the purpose of Section 145 and the same cannot be used to impeach credibility of that witness under Section 155(3) of the Evidence Act. It is seen that while bringing out the aforesaid contradictions in the evidence of PWs.14, 16 and 17, their attention was not seen invited to such contradicted statements and omissions purported to be amounting to contradictions, and they were not given an opportunity to furnish their explanations in regard to such contradictions or omissions. Therefore, most of the so-called contradictions are not proved in terms of Section 145 of the Evidence Act, which is a condition precedent if to be used for impeaching their credibility. However, we may consider whether such contradictions, even assuming that those contradictions are proved, would impeach their credibility.

Exts.D3, D4 and D8 are pointed out to be serious contradictions in the evidence of PW14. Ext.D3 is as to whether the 1st accused Abhilash placed a sword at the neck or hand of PW14, while threatening to chop off his hands. Ext.D4 occurred while PW14 stated in court that Sri.Jayesh ran some distance to north and then to west in his attempt to escape from the clutches of the assailants, whereas, he stated before the police that Sri.Jayesh ran towards west along the back side of the house. While it was stated in court that Sri.Jayesh was carried to the vehicle on a mat holding its corners, the statement in police was only that he was carried on a mat. Those are apparently trivial contradictions and inconsequential. Those are only natural variations while a witness, who happened to witness such a horrendous incident of his son being hacked by a group of persons using dangerous weapons such as swords and iron bar, and inflicting fatal injuries narrates it in court. Similar kind of contradictions were occurred in the evidence of PWs.16 and 17 as well. PW16 is none other than the wife of the deceased. She had exaggerated a little the overt acts of the assailants. But, such exaggerations do not have the effect of affecting the substratum of her evidence regarding the actual incident. On going through the evidence of PW17, the mother, particularly the cross-examination, we find it so natural and spontaneous. We are therefore of the view that the contradictions in the evidence of these witnesses, even if taken as duly proved, do not impeach their credibility.

Accused Nos.1 to 4 were arrested by PW41 on 03.04.2014. From the information received from them that the dress they wore at the time of occurrence were entrusted with accused No.9, PW41 arrested the 9th accused. On the basis of information gathered from accused No.9 and as shown by him, the dress of accused Nos.1 to 4 were recovered from his house. Ext.P12 is the mahazar for the said recovery. MOs.8 to 12 are the dress. PW41 further stated that the swords said to have been used by accused Nos.1 to 3 were recovered from the possession of accused No.10 on the basis of information revealed by accused Nos.1 to 4. It was after the arrest of the 10th  accused and gathering information from him about the place where the weapons were concealed, PW41 along with the said accused went to the place as led by him and recovered the weapons, which are the three swords identified to be MOs.5 to 7 during trial. Ext.P11 is the mahazar for recovery of MOs.5 to 7.

From the evidence of PW41 and the respective mahazars, Exts.P11 and P12 recovery of MOs.5 to 7 weapons and MOs.8 to 12 dresses of the accused is proved. PW19 is an attestor to Exts.P11 and 12. Although he admitted to have signed, denied having seen the recovery. PWs 14, 16 and 17 identified MOs 5 to 7 as the swords in the possession of accused Nos.1 to 3 respectively. Similarly, MOs.8 to 11 were identified by PWs.14, 16 and 17 as the dress of accused Nos 1 to 3. MO12 was identified by PWs.16 and 17 alone to be the shirt of the 2nd accused Sajan. PW14 could not identify it. A torch said to have been in the possession of the assailants was also recovered by PW41. Ext. P7 is the mahazar under which the torch, MO13 was recovered. PWs 11 and 12 were cited as its attesting witnesses. They did not subscribe to that version of the prosecution as though PW12 admitted having signed Ext.P7.

We have anxiously considered the testimony of PW41 with due regard to the submissions of the learned counsel for the accused. We are of the view that his testimony is convincing. MOs.5 to 7(weapons), MOs.8 to 12 (dresses of accused Nos.1 to 4) and MO13 (torch) were sent for examination in the Forensic Science Laboratory, Thiruvananthapuram. Ext.P60 is the report issued after the examination. It was reported that all those weapons and torch were stained with human blood. PW41 could recover MOs.5 to 7 weapons based on the information given by accused Nos.1 to 4. Despite there having an intervening factor that the 10th accused from his custody had produced MOs.5 to 7, PW41 could discover that those weapons in the custody of the 10th accused based on the information furnished by accused Nos.1 to 4 while they were in the custody of PW41 alone. MOs.5 to 7 were recovered by PW41 based on Ext.P11(a) disclosure statement of accused No.10. We found above that the evidence regarding the recovery of those weapons is reliable. Hence we conclude that the said disclosure statements are relevant under Section 27 of the Evidence Act.

MOs.5 to 13 were recovered at the instance of accused Nos.1 to 4. It is proved by cogent and convincing evidence that accused Nos.1 to 4 were clad with Mos.8 to 12 dresses, and wielded and used Mos.5 to 7 weapons to attack Sri.Jayesh. Inasmuch as the recovery of those objects was based only on the information given by accused Nos.1 to 4, it sufficiently corroborates the oral testimonies of PWs.14, 16 and 17 that accused Nos.1 to 4 were the persons trespassed into their house, committed mischief there, abused and manhandled PW14 and hacked Sri.Jayesh to death.

While accused Nos.1 to 4 chased after Sri.Jayesh, one among the accused had a torch. PWs.14 and 16 followed them. PW14 had a torch with him. From the evidence of those witnesses and also PW17, it can well be seen that while accused Nos.1 to 4 were assaulting Sri.Jayesh, PWs.14 and 16 reached almost near to them. The torch in the possession of PW14 was not recovered and that is highlighted by the learned counsel for the accused as a reason to disbelieve PWs.14, 16 and 17 as regards identity of accused Nos.1 to 4. We have pointed out above that the said accused were there in the house where there was enough light for a quite long time. They attempted repeatedly to get hold of Sri.Jayesh. During that time, they were arguing with those witnesses and a struggle for saving Sri.Jayesh had taken place. It shows that there was enough time and opportunity for them to see and identify all the assailants and notice their features even. PW16 deposed that she knew accused Nos.2 to 4 earlier, although not by name. The Apex Court in State of U.P. v. Babu and others [AIR 2003 SC 3408] held that when the FIR was lodged promptly and assailants were able to be identified with the help of a torch light and gas light, the failure to recover the torch light is not fatal. It was also held that not noting the availability of the gas light in the site plan is also not a crucial aspect. Therefore, the prosecution's failure to seize and produce the torch used by PW14 is of no consequence in the circumstances of this case.

Of course, none of those witnesses could name accused Nos.2 to 4 while giving statements before police. But they stated that they could identify each one of them. They gave statements identifying those accused in police. These witnesses testified that they understood names of accused Nos.2 to 4 in that process. Considering the nature of the incident, the length of time for which the incident lasted and the availability of sufficient light to see and identify each one of the assailants, there need not be any doubt regarding identification of accused Nos.1 to 4 before the court by PWs.14, 16 and 17. As alleged by the accused, the prosecution did not bother to hold a test identification parade. Touching that aspect, it was also contended that the torch said to have been with PW14 at the time of occurrence was not recovered and produced before the court and is fatal to the prosecution. As pointed above, the initial part of the incident occurred at the house where there was enough light. In front of PWs.14, 16 and 17 the accused had chased Sri.Jayesh, whom they also followed. In that course those accused pounced at Sri.Jayesh and attacked him. PWs.14 and 16 could reach near them, but could not intervene because the accused were so ferocious. While the accused were leaving the scene, PW17 also could reach there. In such circumstances, we find that the version of those witnesses that accused Nos. 1 to 4 attacked Sri.Jayesh using swords and iron bar at the paddy field, in continuation of the melee at the house, and caused his death is quite believable.

The learned counsel for accused Nos.2 to 4 by placing reliance on the evidence of DW1 and Ext.D34 contended that the 2nd accused Sajan was not in a position to do any of the alleged acts because of his shoulder injury and that makes the prosecution case unbelievable. DW1 deposed that while he was working as an Orthopedician in the General Hospital, Alappuzha examined one Sajan on 18th March who came with complaints of shoulder dislocation. He was not sure and it is not evident from Ext.D34 as to whether such examination was in the year 2014. DW1 stated that due to that infirmity the injured may suffer another dislocation if the hand is rotated and that there would not have any difficulty for any other movement. As such even if the 2nd accused had such an infirmity during the time of occurrence, that would not have hindered him committing the subject offences. Hence contention of the the learned counsel in this regard is untenable.

It is thus proved beyond doubt that accused Nos.1 to 4 were the assailants. The case of the prosecution is that the 6th accused also reached the house in the company of accused Nos.1 to 4. None of the said witnesses gave evidence in court identifying the 6th accused. Therefore the finding of the learned Sessions Judge that the prosecution failed to prove the identity of the 6th accused, although such another person was also a member of the assembly that committed the offences, cannot be found fault with. Hence we find no reason to interfere with the conviction of accused Nos. 2 to 4.

Points No. (iii):

We found above that MOs.8 to 13 dresses were recovered from the custody of accused No.9 and MOs.5 to 7 weapons were recovered from the possession of accused No.10. On the basis of the information given by accused Nos.1 to 4 the investigating officer could recover those objects from the custody of accused Nos.9 and 10. From the respective mahazars, Exts.P11 and P.12 it is seen that at the time of seizure, PW41 could not realise that the said clothes or the weapons had blood stains. He deposed that fact in court also. Only on the examination in FSL, was it revealed that those objects were blood stained. When PW41 on his physical examination could not see that those articles were blood stained, that creates a doubt that at the time of accused Nos.9 and 10 receiving those articles they could understand that the same were the dress worn by accused Nos.1 to 4 at the time of commission of the offence and the weapons were used by them as weapons of offence. Only if a person knowing or having reason to believe that an offence has been committed, causes any evidence of the commission of that offence to disappear or with the intention of screening the offender from legal punishment conceals something which amounts to disappearance of evidence, he can be held liable for an offence under Section 201 of the I.P.C. The evidence let in by prosecution is insufficient to prove such an intention or knowledge on the part of accused Nos.9 and 10. Hence, the conviction of accused Nos.9 and 10 under Section 201 of the I.P.C. is liable to be set aside.

In addition to the offences for which accused Nos. 2 to 4 are commonly convicted, accused No. 2 was convicted for the offences under Sections 324 and 449 of the IPC. Similarly, accused No.4 was convinced for an offence under Section 324 of the IPC additionally. When the learned Sessions Judge found that accused Nos. 1 to 4 along with another person came together and as part of the same transaction had committed the offences, every member of the group is constructively liable for all the offences committed by each member of that assembly by virtue of the provisions of Section 149 of the IPC. It is proved that in prosecution the common object of the assembly to murder Sri.Jayesh, members of the assembly did various acts of offences. All offences were in the course of the same transaction. In view of that matter, the learned Sessions Judge went wrong while acquitting accused No.3 for the offence under Section 324 and 449 of the IPC and accused No. 4 for the offence under Section 449 of the IPC, while accused Nos.2 was convicted for those offences as well. However, that order of acquittal is not challenged and hence we are not interfering with the said order.

Having regard to the nature of the offence and other circumstances borne out from the records we find no impropriety in the sentence imposed on accused Nos. 2 to 4.

In view of what are stated above, Crl.Appeal Nos. 504 of 2022 and 746 of 2023 are dismissed. Crl.Appeal No. 886 of 2021 is allowed. Accused Nos.9 and 10, who are the appellants in Crl.Appeal No. 886 of 2021, are acquitted and they are set at liberty.