K.T. Sankaran, J.@mdashJ. Sakkeer, aged 29, who was elected as the Chairman of the Law College, Thiruvananthapuram on 16.1.1995, lost his life on the same night, which according to the prosecution, was the result of a murder. Sakkeer was an active worker of DYFI. After the election as Chairman, he came home during night and went to sleep. His house was a thatched house consisting of two bedrooms. Sakkeer and his father went to bed, Sakkeer in the southern bedroom and the father in the northern bedroom. After the midnight of 16.1.1995, according to the prosecution, the accused persons, nineteen in number, who were members of an unlawful assembly, armed with deadly weapons, illegally trespassed into the house of Sakkeer and inflicted injuries on him and his father Abdul Rasheed. Sakkeer tried to escape, ran to the compound of Shajahan (PW19) and tried to hide somewhere there. The prosecution alleged that the accused chased Sakkeer and inflicted several injuries on him with deadly weapons. Sakkeer was taken to the hospital immediately. The doctor stated that he was brought dead. The trial court found accused Nos. 1 to 5, 7, 8 and 10 guilty of the offences u/s 302 and under other Sections of the Indian Penal Code and accused Nos. 6, 9, 13 and 15 to 19 were acquitted. Against the conviction and sentence, the accused filed Criminal Appeals while the father of Sakkeer filed Revision challenging the acquittal of some of the accused. The High Court disposed of the Criminal Appeals and the Revision by a common judgment dated 2.9.2005, set aside the conviction as well as acquittal and remanded the case to the trial court with certain directions. One of the defects pointed out by the High Court was that the accused were not properly questioned u/s 313 of the Code of Criminal Procedure. The High Court also held that Shajahan, who is the only occurrence witness in respect of that part of the incident which took place in his compound, was not examined. The petition filed by the prosecution to examine Shajahan, who was at that time in Saudi Arabia, was dismissed by the Sessions Court. The High Court also directed to examine Shajahan by video conferencing, in case he is not available in India. The trial court was directed to question the accused afresh u/s 313 of the Code of Criminal Procedure.
2. After remand by the High Court, several correspondences took place and at last, video conferencing was arranged to be held on 26.12.2007. By that time, some of the accused absconded. On 26.12.2007, Shajahan was examined in the presence of the Judicial Magistrate of the First Class V. Thiruvananthapuram, to whom commission was issued for that purpose, at I.T. Mission, Vellayambalam. Prior notice was given to the accused to appear for video conferencing. However, counsel for accused Nos. 2, 3, 8 and 9 reported no instructions as those accused did not appear.
3. After remand, accused Nos. 1, 3, 4, 5, 7, 13, 15, 18 and 19 faced trial. The trial court found accused Nos. 1, 3, 4, 5 and 7 guilty of the offence under Sections 143, 147, 148, 450, 302, 307 and 427 read with Section 149 of the Indian Penal Code and they were sentenced to suffer imprisonment for life and to pay a fine of '' 25,000/- each u/s 302 read with Section 149 of the Indian Penal Code. In default of payment of fine, they were directed to undergo simple imprisonment for two years. They were also sentenced to undergo imprisonment for various terms under the other heads of offences. The trial court acquitted accused Nos. 13, 15, 18 and 19. Accused No. 1 filed Crl. A. No. 1940 of 2008, accused No. 7 filed Crl. A. No. 1217 of 2008, accused Nos. 3 and 5 filed Crl. A. No. 1325 of 2008 and accused No. 4 filed Crl. A. No. 1079 of 2008. These Criminal Appeals are being disposed of by this common judgment.
4. The allegation was that the accused were workers and sympathizers of PDP (People''s Democratic Party). As stated above, Sakkeer, the deceased, belonged to DYFI, Youth Wing of Communist Party of India (Marxist) The prosecution alleged that the accused formed themselves into an unlawful assembly, armed with weapons such as swords, choppers, iron rods, crow bars, clubs, etc, in furtherance of their common intention to commit murder of Sakkeer and attempt to commit murder of his father, and they barged into the house of PW2 (Abdul Rasheed, father of the deceased) at 12:45 am (night) on 16.1.1995 (it should have been 00:45 am on 17.1.1995) On hearing a sound, Abdul Rasheed (PW2) got up The assailants were kicking on the door PW2 saw that the door was collapsed He stepped into the varanda At that time, he saw the accused armed with weapons Accused No. 5 inflicted cut injuries on PW2 with a chopper aiming at his neck, which was warded off by him with his left hand, resulting in injuries on his left arm Accused No. 7 inflicted a blow on the backside of the chest of PW2 with a stick and inflicted injuries The assailants broke open the door of the room in which Sakkeer was sleeping Accused Nos. 1 to 3 entered into the room and inflicted cut injuries on Sakkeer With the bleeding injuries on the head and on his hands, Sakkeer tried to escape He jumped into the varanda of the house and at that time, accused No. 8 tried to catch him But he got only the dothi of Sakkeer. Sakkeer escaped and at that time, he was nude The assailants followed Sakkeer. Sakkeer ran away, crossed the road and went into the compound of Shajahan (PW19) When PW2 made an attempt to follow Sakkeer, he was attacked by accused No. 4 with a crow bar on his head Sakkeer took shelter under the staircase of the house of Shajahan The accused spotted him and attacked him with deadly weapons Shajahan woke up and he opened the door At that time, the accused escaped
5. PW1 Abdul Rasheed, a neighbour rushed to the house of Sakkeer He saw PW2 with bleeding injuries sitting on the varanda of the house of PW3 Nabeesathu Beevi Sakkeer and PW2 were taken to the Medical College Hospital, Thiruvananthapuram by PW5 (son of PW1), Shajahan (PW19) and others At the Medical College Hospital, the doctor declared that Sakkeer was brought dead PW2, the father of Sakkeer, was treated at the Medical College Hospital PW1 gave the First Information Statement at 3 am to the Sub Inspector of Police (PW16), who recorded the same and registered Ext. P1(a) First Information Report In Ext. P1(a) First Information Statement, PW1 mentioned the names of accused Nos. 1 to 6 and the other accused were mentioned as other identifiable persons The investigation was taken over by PW17, Circle Inspector of Police, who conducted inquest (Ext. P2) on the dead body of Sakkeer on 17.1.1995 He prepared the scene mahazar Some of the accused were arrested and on the basis of the disclosure statement made by them recoveries of weapons were made Final report was filed by PW18, the Circle Inspector of Police, who is the succession-office of PW17
6. Originally, PW1 to PW18 were examined, Ext. P1 to P20 were marked and MOs 1 to 13 were identified After remand by the High Court, PW19 was examined and Exts. P21 to P23 were marked
7. PW1 Abdul Rasheed is a neighbor of the deceased He is not an eye witness He fetched a car in order to take Sakkeer and his father to the Medical College Hospital He went to the scene of occurrence after hearing a sound He saw PW2 with bleeding injuries He took his motor bike and brought a car He also went to the compound of PW19 Shajahan to take Sakkeer also in the car He came to know that Sakkeer died when that information was given by Shajahan over phone PW2, Abdul Rasheed narrated the incident which took place in his house on the date of incident He identified the appellants and the other accused who faced trial On hearing a sound, he put on the light inside the house At that time, the front door of his house was broke open by the assailants When PW2 came out, he saw about twenty persons with various weapons He stated that he could identify all the sixteen accused who were in the dock and he identified them PW2 stated that when he came to the varanda, he was attacked by accused No. 5 with a chopper and when he tried to ward off the attack, he sustained injuries on his hand He identified MO1 chopper He stated that accused No. 7 had beaten him with a stick and accused No. 5 attacked him again with a chopper PW2 also stated about entry of accused Nos. 1 to 3 into the room of Sakkeer and the attack made by them on his son When Sakkeer tried to escape, accused No. 8 tried to catch Sakkeer but he got only the dothi of Sakkeer. Sakkeer ran away towards east He was nude at that time At that time, accused No. 2 asked others to catch hold of Sakkeer and the accused chased Sakkeer When PW2 also tried to follow, accused No. 4 gave a blow on his head with an iron rod PW2 stated that about one month before the incident, there occurred a dispute between PDP workers and DYFI workers He stated that the incident took place and he was attacked and his son was murdered by the accused to take revenge
8. PW3 Nabeesath Beevi is an eye witness to the incident which took place in the residential compound of PW3 Her house is very close to the house of the deceased PW3 stated that she saw the accused kicking on the door of the house of Sakkeer, the accused attacking PW2 and also about their unlawful entry into the house of PW2 She also stated that Sakkeer tried to escape and he ran through the courtyard of PW3 and PW4 PW3 cried aloud not to kill him PW2 came to her house and asked for water She gave water to PW2 and bandaged on the injuries sustained by PW2 At that time, she heard a hue and cry from the compound of Shajahan. Shajahan stated to her that Sakkeer sustained injuries and he was lying in his residential compound
9. PW4 also narrated the incident She stated that she and PW3 went to the residential compound of Shajahan and saw Sakkeer lying in a pool of blood
10. PW8 conducted the postmortem examination of the body of Sakkeer and issued Ext. P4 postmortem certificate The following antemortem injuries were noted
INJURIES (ANTEMORTEM)
1. Incised wound, 4 X 15 X 1 cm saggitally placed, on the top of head in the midline and 10 cm above root of nose
2. Incised wound, 7 x 03 x 02 cm oblique, on the outer aspect of right shoulder
3. Incised wound, 14 x 6 x 7 cm horizontal on the front, outer and back aspects of right arm, 3 cm above elbow Muscles, brachial artery, median nerve, basilic vein and humerus bone underneath found severed
4. Incised wound 7 x 3 x 1 cm oblique on the back of right forearm 15 cm below elbow
5. Incised wound, 3 x 1 x 05 cm oblique, on the back of right forearm, 1 cm below injury No. 4
6. Multiple small abrasions over an area, 8 x 4 cm on the back of right hand
7. Incised wound, 4 x 2 x 05 cm on the back of right index finger 4 cm above its tip
8. Incised wound, 25 x 1 x 05 cm on the back of right hand, in between roots of middle and ring fingers
9. Incised wound, 2 x 1 x 03 cm oblique, on the outer aspect of right, 10 cm below tip of hip bone
10. Incised wound, 14 x 6 x 7 cm horizontal, on the outer aspect of right thigh, thigh 12 cm above knee
11. Abrasion, 4 x 2 cm on the front of right knee 12 Incised wound, 19 x 8 x 4 cm oblique, on the outer and back aspects of right leg, 8 cm below knee
13. Incised wound, 2 x 05 x 05 cm oblique, on the outer aspect of right leg, 5 cm above ankle 14 Abrasion, 4 x 2 cm on the front of left knee
15. Incised wound, 15 x 7 x 9 cm oblique on the front and inner aspect of left thigh, lower inner end being, 11 cm above knee Muscles and femoral artery were found cleanly cut
16. Abrasion, 3 x 05 cm on the outer aspect of left thigh, 15 cm above knee
17. Multiple small abrasions over an area, 10 x 8 cm on the outer aspect of left hip
18. Multiple small abrasions over an area, 7 x 6 cm on the left side of abdomen, just above iliac crest 19 Graze abrasion, 11 x 10 cm oblique on the left side of front of chest, 5 cm outer to midline and 4 cm above costal margin
20. Contusion, 6 x 1 x 05 cm with central pallor, vertical on the front of left shoulder
21. Incised wound, 6 x 02 x 02 cm horizontal, on the outer aspect of left shoulder, 6 cm below its tip
22. Incised wound, 3 x 1 x 05 cm horizontal on the back of left forearm, 13 cm below elbow
23. Incised wound, 5 x 2 x 1 cm horizontal on the inner and back aspect of left wrist
24. Incised wound, 5 x 1 x 2 cm on the left palm, 4 cm above loot of little finger
25. Incised wound, 13 x 6 x 15 cm on the left palm, in between roots of index and middle fingers Metacarpal bones underneath found cleanly cut Superficial palmar arch and its branches were found severed
26. Abrasion, 8 x 03 cm horizontal over left buttock
PW8 stated in evidence, with respect to the specific injuries, that they could be caused with a weapon like MO1, MO4 series, MO3 etc He also stated in evidence that injury Nos. 3, 15 and 25 are independently sufficient in the ordinary course of nature to cause death
11. Sri P Vijaya Bhanu, the learned senior counsel appearing for the appellant in Crl. A No. 1940 of 2008 submitted that the video conferencing should have been done as provided u/s 285(3) of the Code of Criminal Procedure For that purpose, it was mandatory that there was an arrangement between the Central Government with the Government of Saudi Arabia in relation to criminal matters He also submitted that the Code of Criminal Procedure having prescribed a procedure for a particular matter, it should have been done only as provided in the Code and not otherwise The learned senior counsel relied on the decision of the Supreme Court in
12. Sri Tom Jose Padmjarekkara, the learned Additional Director General of Prosecution submitted that the learned Magistrate was justified in conducting the video conferencing to examine PW19 in the manner he did and that was as per the direction of the High Court while remanding the case to the trial court He submitted that the decision of the Constitution Bench of the Supreme Court in
Thus, evidence can be both oral and documentary and electronic records can be produced as evidence. This means that evidence, even in criminal matters can also be by way of electronic records. This would include video conferencing.
After referring to the Constitution Bench decision in
23.......This authority, which is of a Constitution Bench of this Court, does suggest that no commission can be issued if there is no arrangement between the Government of India and the country where the commission is proposed to be issued. This authority would have been binding on this Court if the facts were identical. Ms. Jaising had submitted that notwithstanding this authority a difference would have to be drawn in cases where a witness was not willing to give evidence and in cases where the witness was willing to give evidence. She submitted that in the second class of cases commissions could be issued for recording evidence even in a country where there is no arrangement between the Government of India and that country.
24. In this case we are not required to consider this aspect and therefore express no opinion thereon. The question whether commission can be issued for recording evidence in a country where there is no arrangement, is academic so far as this case is concerned. In this case we are considering whether evidence can be recorded by Video-Conferencing. Normally, when a Commission is issued, the recording would have to be at the place where the witness is. Thus Section 285 provides to whom the Commission is to be directed. If the witness is outside India, arrangements are required between India and that country because the services of an official of the country (mostly a Judicial Officer) would be required to record the evidence and to ensure/compel attendance. However new advancement of science and technology permit officials of the Court, in the city where video conferencing is to take place, to record the evidence. Thus where a witness is willing to give evidence an official of the Court can be deputed to record evidence on commission by way of videoconferencing; The evidence will be recorded in the studio/hall where the video-conferencing takes place. The Court in Mumbai would be issuing commission to record evidence by video conferencing in Mumbai. Therefore the commission would be addressed to the Chief Metropolitan Magistrate, Mumbai who would depute a responsible officer (preferably a Judicial Officer) to proceed to the office of VSNL and record the evidence of Dr. Greenberg in the presence of the respondent. The officer shall ensure that the respondent and his counsel are present when the evidence is recorded and that they are able to observe the demeanour and hear the deposition of Dr. Greenberg. The officers shall also ensure that the respondent has full opportunity to cross-examine Dr. Greenberg. It must be clarified that adopting such a procedure may not be possible if the witness is out of India and not willing to give evidence.
13. Sri. P. Vijaya Bhanu submitted that even assuming that recording evidence by video conferencing could be permitted, the safeguards provided by the Supreme Court in Dr. Praphul B. Desai''s case were not followed in the present case. He submitted that an officer would have to be deputed either from India or from the foreign country where the evidence is being recorded, who should remain present when the evidence is recorded and who will ensure that there is no other person in the room where the witness is sitting whilst the evidence is being recorded. That officer will ensure that the witness is not coached/tutored/promoted.
14. The learned Additional Director General of Prosecution submitted that at the time when P W19 gave evidence by video conferencing, he stated in chief examination that no outsider was present in the room. This statement was not challenged in cross examination. It is also pointed out that the witness got communication from Indian Embassy that he should appear for video conferencing, the acknowledgement thereof was marked as Ext. P23. The witness stated that he appeared for giving evidence in accordance with that direction. The learned Additional Director General of Prosecution also submitted that at the time of taking evidence by video conferencing or at any time thereafter before the trial court the accused did not raise any objection with respect to the evidence recorded by video conferencing. He submitted that even if there is any irregularity that would not vitiate the conviction, as provided u/s 465 of the Code of Criminal Procedure.
15. In
16. In the present case, there is no case for the accused or for the prosecution that any arrangement has been made by the Central Government with the Government of UAE in relation to criminal matters, as provided under sub-section (3) of Section 285 of the Code of Criminal Procedure. Going by the decisions of the Supreme Court and of this Court, a commission cannot be appointed to examine such witness in Dubai, UAE. Then the question is whether the witness can be examined by resorting to recording the evidence by video conferencing. The witness was willing to give evidence. Summons was issued to the witness. It was served through Indian Embassy. He was directed to appear before the Embassy. He obeyed. He volunteered to give evidence. Evidence was recorded by video conferencing. No objection was raised at that point of time by any of the accused that the procedure adopted by the commissioner was incorrect. No such objection was also raised at any time during trial. Video conferencing was resorted to by the trial court as directed by the High Court while remanding the case to the trial court. At the time when the High Court issued the direction, the accused did not raise any contention that video conferencing could not be done. The direction issued by the High Court was not challenged either. As rightly pointed out by the learned Additional Director General of Prosecution, the accused are not justified in raising this belated contention complaining about the alleged irregularity in the matter of recording of the evidence of PW19 by video conferencing. If at all there is any irregularity, that does not go to the root of the matter. As provided in Section 465 of the Code of Criminal Procedure, any such error, omission or irregularity in proceedings before or during trial would not be a ground to reverse or alter any finding, sentence or order passed by the court below, in exercise of the appellate jurisdiction of this Court. As held by the Supreme Court in Dr. Praful B. Desai''s case in the era of technological advancement, where a willing witness is to be examined by video conferencing, the absence of any arrangement between Government of India and the Government of a foreign country u/s 285(3) of the Code of Criminal Procedure would not be a bar for examining that witness by video conferencing. The Courts must be alive to the technological development and scientific achievements and should not be rigid in interpreting the procedural provisions in the matter of recording of evidence.
17. The Judicial Magistrate of the First Class, Thiruvananthapuram, who was appointed as the Commissioner, stated in his report thus:
After verifying the feasibility of method and the freedom of witness to speak out matters without any influence from outsiders, his statement was recorded. The proceedings has started at 11.15 a.m. and culminated at 1.40 p.m. On completion of taking down the dictation, it was read over to the witness, who confirmed its correctness and genuineness.
18. Sri. P. Vijaya Bhanu, the learned senior counsel, submitted that oath was not administered to PW19 and, therefore, his evidence cannot be relied on at all. The learned Additional Director General of Prosecution submitted that this is only a procedural irregularity which does not vitiate the conviction and sentence. No such objection was taken at the time of recording of evidence or at any time thereafter before the judgment was rendered by the trial court. He relied on the decisions of the Supreme Court in
19. In
20. In
15. A reading of the section makes it clear that the error, omission or irregularity in the proceedings held before or during the trial or in any inquiry were reckoned by the legislature as possible occurrences in criminal Courts. Yet the legislature disfavoured axing down the proceedings or to direct repetition of the whole proceedings afresh. Hence, the legislature imposed a prohibition that unless such error, omission or irregularity has occasioned "a failure of justice" the superior Court shall not quash the proceedings merely on the ground of such error, omission or irregularity.
21. In
11. This Court in
22. In
23. In
24. Apart from the fact that no prejudice was caused to the appellants, if at all it is taken that no oath was administered to PW19, Section 7 of the Oaths Act makes the position clear. Section 7 of the Oaths Act reads as follows:
7. Proceedings and evidence not invalidated by omission of oath or irregularity-No omission to take any oath or make any affirmation, no substitution of any one for any other of them, and no irregularity whatever in the administration of any oath or affirmation or in the form in which it is administered, shall invalidate any proceeding or render inadmissible any evidence whatever, in or in respect of which such omission, substitution or irregularity took place, or shall affect the obligation of a witness to state the truth.
Even if there was an omission to take oath or make any affirmation that will not invalidate any proceeding or render inadmissible any evidence whatever. Even if it is true that it was not recorded that oath was administered to the witness, we do not think that a Judicial Magistrate of the First Class who recorded the evidence in his own handwriting at the time of video conferencing would not administer oath to the witness before recording evidence.
25. For the aforesaid reasons, we are not inclined to accept the submissions made by Sri. P. Vijaya Bhanu with respect to the video conferencing, recording of the same and absence of administering oath, if any.
26. PW19 narrated the incident which took place in the second phase of the occurrence. He stated that he woke up when his wife and children made a hue and cry. He came to the hall room in the house. He could see what was happening on the southern and south-eastern sides of the house. There was light outside and near the cattle shed. He stated that the light would be put on throughout the night. He saw a person being attacked by about twenty persons. He shouted. At that time, the person who was attacked called him by "Shajikka". The witness came to know that it was Sakkeer who was being attacked. The witness asked them to stop it. He opened the door and came out. At that time the accused ran away. He identified the accused who were present at the time of video conferencing.
27. Sri. B. Raman Pillai, the learned senior counsel appearing for the appellant in Cri. A. No. 1325 of 2008 submitted that the First Information Report was manipulated. The time noted therein was erased and entered as 4 a.m. It reached the Magistrate at 7 p.m. on 17.1.1995. The evidence of PW1 would disclose that PW16, the Sub Inspector of Police, had reached the spot immediately and questioned the occurrence witnesses and others. He also submitted that the names of the assailants are not mentioned in Ext. P6 wound certificate. The learned counsel pointed out that in Ext. P2 inquest report, in the column as to whether any person is suspected or not, nothing is mentioned. That means, even at that time, identity of the assailants was not fixed. He submitted that the accused were arraigned as per the list prepared by a political party. Going by Ext. Pl, Shajahan cannot be an eye witness. The nature of the injuries found on the body of the deceased could not reflect that there was an intention to kill. It is also submitted that accused No. 3 was not present during video conferencing and, therefore, the evidence of PW19 cannot be taken as true as against him.
28. It is true that in the First Information Statement and in the First Information Report the time of occurrence is shown as at 12.45 night on 16.1.1995. 12.45 night on 16.1.1995 means really 0.45 hours on 17.1.1995. The First Information Report reached the Magistrate at 7 p.m. on 17.1.1995. It is clear that there is no delay in lodging the First Information Report or in sending the First Information Report to Court. In Ext. P6 wound certificate issued after examining PW2 Abdul Rasheed, the history and alleged cause of injury was shown as cutting by chopper and beating by iron rod. The fact that the names of the assailants were not mentioned in Ext. P6 wound certificate is not a ground to reject either the wound certificate or the evidence of PW2. It was not the concern of the Doctor who examined PW2 as to who were all involved in the offence. That is a matter for the investigating officer to investigate and find out. The person who sustained injuries need disclose the same to the investigating agency though there is no harm in disclosing the same to the medical officer. Only on the ground that the injured did not mention the names of the assailants to the Doctor who examined him, the case of the prosecution cannot be found to be unbelievable. It cannot also be assumed that innocent persons were arraigned subsequently as accused.
29. In
30. In
31. As regards the entry in the relevant column in the inquest report, the law is well settled in
7. The whole purpose of preparing an inquest report u/s 174 of the Code of Criminal Procedure, 1973 (hereinafter referred to as ''Cr.P.C.'') is to investigate into and draw up a report of the apparent cause of death, describing such wounds as may be found on the body of the deceased and stating as in what manner, or by what weapon or instrument such wounds appear to have been inflicted. For the purpose of holding the inquest it is neither necessary nor obligatory on the part of the Investigating Officer to investigate into or ascertain who were the persons responsible for the death. The object of the proceedings u/s 174 Cr.P.C. is merely to ascertain whether a person died under suspicious circumstances or met with an unnatural death and, if so, what was its apparent cause. The question regarding the details of how the deceased was assaulted or who assaulted him or under what circumstances he was assaulted is foreign to the ambit and scope of such proceedings i.e. the inquest report is not the statement of any person wherein all the names of the persons accused must be mentioned. Omissions in the inquest report are not sufficient to put the prosecution out of court. The basic purpose of holding an inquest is to report regarding the apparent cause of death, namely, whether it is suicidal, homicidal, accidental or by some machinery etc. It is, therefore, not necessary to enter all the details of the overt acts in the inquest report. Evidence of eyewitnesses cannot be discarded if their names do not figure in the inquest report, prepared at the earliest point of time. The inquest report cannot be treated as substantive evidence but may be utilised for contradicting the witnesses of inquest. (See
32. There is no material to indicate that the identity of the accused was not disclosed immediately after the incident and the accused were arraigned based on the list prepared by a political party. It is true that PW16 went to the scene of occurrence even before the First Information Report was registered. PW16 stated in evidence that the First Information Report was registered at 4 a.m. He stated that at first, he got a telephone message and on the basis of that he rushed to the spot. He stated that there was law and order problem on account of the friction between two groups, namely, persons belonging to Marxist party and PDF. He stated that Muslims alone are the residents of the locality. Those who stayed on the costal area and those who resided on the other side of the road were suspected to indulge in violence. He contacted the police station and brought additional police force. After two hours, the Circle Inspector of Police came there. Thereafter, PW16 went to the police station, registered the case and again went to the spot. He categorically denied the suggestion that before registering the First Information Report, he questioned some witnesses.
33. In
11......We notice that the incident happened at about 2.30 p.m. and the police had arrived at the place of occurrence an hour later. PW-1 and the deceased were taken to the Government Hospital, Thalassery where the deceased was examined at about 3.40 p.m. but referred to the Medical College, Kozikhode as his injuries were grave whereas PW-1 was admitted to the Government Hospital. It has also come in the evidence that the ASI, who had taken the injured to the Hospital at Thalassery, was on law and order duty but he nevertheless had gone to the Kuthuparamba Police Station and given information about the incident in that Police Station. The police had arrived, thereafter, at the General Hospital and recorded PW-1''s statement at 5.30 p.m. and on its basis, the formal report had been registered at 7.15 p.m. and immediately forwarded to the Magistrate who received it at 10.00 p.m. The Trial Judge has, however, found fault in this matter by observing that one of the persons accompanying the injured could have gone to the police station and given a statement. To our mind, this observation is farfetched and it does not take into account the realities of life. It is to be noted that the deceased had suffered as many as 58 injuries, most of them incised and cutting wounds with large quantities of blood spilling out, and was in a very serious condition and the first anxiety of everybody, including the attendants and the doctors, was to see him to a hospital. He also died at about 4:00 p.m. We, therefore, fully endorse the findings of the High Court as to the spontaneity of the FIR.
34. The contention put forward that going by Ext. P1, PW19 would not have witnessed the incident is also unsustainable. It cannot be expected that in the First Information Statement it should be recorded that Shajahan (PW19) had also witnessed the incident. The evidence of PW3 and PW4 would clearly indicate that PW19 had witnessed the second phase of the incident which took place in his residential compound.
35. Equally unsustainable is the contention raised by the accused that there was no intention to cause death. Injuries with deadly weapons were inflicted on Sakkeer. The accused forcibly entered into the bedroom of Sakkeer and inflicted cut injuries on his vital parts. He tried to escape and ran away and that too in the birthday suit. The accused chased him and found out the place where Sakkeer was hiding. The evidence would disclose that Sakkeer was brutally and mercilessly attacked by the accused even in the residential compound of PW19. In these circumstances, it cannot be assumed that there was no intention on the part of the accused to cause the death of Sakkeer. The injuries found on the body of the deceased would be relevant in this context. PW8 who conducted the postmortem examination stated in evidence that injury Nos. 3, 15 and 25 were independently sufficient in the ordinary course of nature to cause death. That the injuries were caused on the deceased not at one scene of occurrence alone but at two different places, that deceased was chased by the accused even after he tried to escape, that 26 antemortem injuries were inflicted on his body and the nature of the injuries inflicted on him are telltale that there was clear intention on the part of the accused to commit murder.
36. The contention that accused No. 3 was not present during video conferencing and, therefore, the evidence recorded at the video conferencing cannot be put against him is also unsustainable. Specific notice was given to the accused to appear. Many of the accused were absconding. Accused No. 3 was expected to be present at the time and place where video conferencing took place. He did not appear. His counsel reported no instructions. Deliberate absence of the accused at the time of examination of the witness, and that too a witness whose evidence could be procured with great difficulty, cannot be a ground to reject the evidence of the witness concerned.
37. Sri. Suman Chakravarthi, the learned counsel appearing for the appellant in Crl. A. No. 1079 of 2008 referred to the evidence of PW2, PW4 and PW9 and submitted that the injuries allegedly caused by accused No. 4 are only minor in nature. It is to be noted that PW9 Doctor says that injury Nos. 14, 16 and 17 found on the body of Sakkeer could be caused by a weapon like MO3. The allegation of the prosecution is that accused No. 4 used MO3 crow bar.
38. It is well settled that if a person is a member of an unlawful assembly and the offence was committed in prosecution of the common object of that assembly, individual overt act of each of the accused need not be proved. What is to be proved against a person who is alleged to be a member of an unlawful assembly is that he was one of the persons constituting the assembly and any member or members of the assembly committed the offence in furtherance of the common object of that assembly as defined u/s 141 of the Indian Penal Code. Section 149 of the Indian Penal Code makes it clear that if an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of committing of that offence, is a member of the same assembly, is guilty of that offence. (Vide
39. Sri. Rajeev, the learned counsel appearing for the appellant in Crl. A. No. 1217 of 2008 submitted that accused No. 7 is the nephew of PW2. But in the FIR, the name of accused No. 7 is conspicuously absent. He submitted that in Ext. P6 wound certificate, the name of the accused are not mentioned. He also referred to column 12(a) in Ext. P2 inquest report. The learned counsel pointed out that the house of nine accused persons were searched, but the house of accused No. 7 was not searched. Going by the evidence of PW2, accused No. 7 is implicated on account of the alleged beating with a stick. In Ext. P6 wound certificate there is no mention of any stick and that weapon of offence was not recovered or produced. It is pointed out that for the first time accused No. 7 was implicated as per Ext. P16 report prepared by PW17 on 19.1.1995 and he was arrested only on 26.1.1995. It is pointed out that Ext. P16 report was received in Court only on 27.1.1995, i.e., after the arrest of accused No. 7. Learned counsel submitted that MO2 is the only material produced by the prosecution to connect accused No. 7 with the crime. However, though the prosecution has a case that MO2 contains bloodstains, it was not sent for chemical examination. PW9, the medical officer examined before Court, stated in evidence that the patient only stated that he was beaten with a stick. It is stated that accused No. 7 was implicated at the instance of PW2 who was inimically disposed against accused No. 7.
40. On a perusal of the evidence of the witnesses and the materials produced, it cannot be said that accused No. 7 was implicated on account of the enmity which PW2 was allegedly having against him. It is true that MO2 was not subjected to chemical examination. In
5. In the case of a defective investigation the Court has to be circumspect in evaluating the evidence. But it would not be right in acquitting an accused person solely on account of the defect; to do so would tantamount to playing into the hands of the Investigating Officer if the investigation is designedly defective. (See
6. In
7. As was observed in
PW2 stated in evidence that accused No. 7 was carrying a stick and that he had beaten PW2 with that stick. Accused No. 7 was a member of the unlawful assembly. All the accused came together and they left together the place of incident. It is clear that there was common object and the accused acted in furtherance of that common object. That a particular member of the unlawful assembly was in possession of a less dangerous weapon is not a ground to hold that he cannot be found guilty for the offence u/s 302 or Section 307 of the Indian Penal Code as the case may be.
41. It is well settled that the evidence of an injured witness can be treated as natural evidence. There is no reason why he should tell a lie with respect to the incident or implicate another person, which would have the result of exonerating the real culprit. In
26. Injured Witness The question of the weight to be attached to the evidence of a witness that was himself injured in the course of the occurrence has been extensively discussed by this Court. Where a witness to the occurrence has himself been injured in the incident, the testimony of such a witness is generally considered to be very reliable, as he is a witness that comes with a built-in guarantee of his presence at the scene of the crime and is unlikely to spare his actual assailant(s) in order to falsely implicate someone. "Convincing evidence is required to discredit an injured witness". (Vide
42. PW2, PW3, PW4 and PW19 are the eye witnesses in the case. Among them, PW2 is an injured as well. He is the father of the deceased. At first, PW2 was attacked. Thereafter, the accused barged into the bedroom of Sakkeer and he was brutally attacked. PW3 and PW4 are close neighbours of PW2 and the deceased. It has come out in evidence that from PW3''s house there is a clear view to the varanda of the house of PW2. It is quite natural that PW3 was able to see the incident which took place in the varanda and the courtyard of the house of PW2. It is the consistent case of the eye witness that Sakkeer tried to escape by running to the nearby compound on the opposite side of the road. The incident which took place thereafter was witnessed only by PW19 and he has given a clear version about the same. Nothing is brought out in the cross examination of PW2, PW3, PW4 and PW19 to discredit their evidence. We do not find any ground to disbelieve the oral evidence of the eye witnesses, which was relied on by the court below to arrive at the conclusion that the accused are guilty of the offence alleged against them.
43. The learned counsel for the appellant submitted that even if it is taken that the accused inflicted injuries, those injuries are not on the very vital parts of the body and therefore, the offence u/s 302 is not attracted. It is submitted that at best, an offence u/s 304 is made out. We are not inclined to accept this contention. The nature of the injuries, the manner in which the injuries were inflicted on the deceased and the number of injuries are all indicative of the brutality of the offence and the intention with which such offence was committed. We are not inclined to accept the contention of the accused that only an offence u/s 304 is made out. The court below rightly held that the appellants are guilty of the offences alleged against them. The sentence imposed is also just and reasonable. We do not find any ground to interfere with the well considered judgment of the court below. The Criminal Appeals are, accordingly, dismissed.
The appellants would be entitled to set off u/s 428 of the Code of Criminal Procedure and the remissions earned.
