N.K. Balakrishnan, J.@mdashSix accused persons faced trial for offences punishable under Sections 120B, 143, 147, 148, 458, 324, 326, 307, 302, 394 r/w 149 IPC and Sections 115 and 201 IPC and Section 27 of the Arms Act, 1959. After trial, the learned Sessions Judge (Fast Track Court-I), Thiruvananthapuram found accused Nos. 2 to 5 guilty of the offences punishable under Sections 143, 147, 148, 449, 324, 326 and 302 r/w 149 IPC. A1 and A6 therein were acquitted by that court. The convicted accused, A2 to A5 have filed the appeals, Crl. A. Nos. 206/10, 1913/06, 1400/06 and 1384/06. The State has preferred appeal, Crl. A. No. 540/11 challenging the acquittal of A1 and A6. The gist of the prosecution case: Deceased Rajamma and her son Vijayakumar (C.W. 5) and his wife Rajeswary (P.W. 4) and their daughters Padma (P.W. 1) and Lovely (P.W. 3) were residing in the house, C.V. Bhavan, bearing No. 4/717 of Balaramapuram Panchayat. C.W. 5 and P.W. 4 had another daughter by name Meena who fell in love with A1 and later got married against the wishes of C.W. 5 and P.W. 4. Meena and her husband (A1) started residing in the eastern portion of the building, C.V. Bhavan without the consent of C.W. 5 or P.W. 1. That portion was in fact allotted to P.W. 1 as her share. So, P.W. 1 filed a suit against Meena and her husband as O.S. No. 50 of 1998 before the Munsiff''s Court, Neyyattinkara. That suit was decreed in favour of P.W. 1. Execution petition was filed by P.W. 1 against A1 and Meena. Thus A1 had grouse against P.W. 1 and the other members of C.V. Bhavan. To wreck vengeance A1 entered into a criminal conspiracy with A2. A2 was alleged to have been involved in so many criminal cases. The conspiracy alleged to have been hatched was to finish off the family members of C.V. Bhavan. In order to carry out the same A2 got the assistance of A3 to A6. In order to facilitate entry to the terrace of C.V. Bhavan, A1 made a ladder (M.O. 18) and kept slanting on the eastern wall of the northern outside bath room of Libra building which was part of C.V. Bhavan mentioned above. After the midnight of 28.4.2002, i.e. at about 2 AM on 29.4.2002, A2 to A5 wearing socks on the legs and A2 to A4 wearing gloves on their hands climbed up the terrace portion through M.O. 18 ladder. They caused disconnection of the telephone by cutting the wire and thereafter A2 and A4 kicked open the door of the eastern wall of the first floor of the house and trespassed into the first floor. A5 and A6, who also trespassed into the first floor, took their position in the staircase for guarding the scene. A2 to A4 thereafter entered the ground floor of the house through the staircase. A2 forcibly pulled open the door of the northern hall of the house and thereafter trespassed into the northern hall room of that house. Thus accused committed house-breaking by night and trespassed into the residential house in prosecution of their common object to cause the murder of the inmates of that house or anyone of them and also to voluntarily cause grievous hurt to all or any of them. When P.W. 1 questioned them as to who they were, A3 with the sword cut P.W. 1 on her right and left upper arm. A part of the left thumb finger was cut and severed. A3 with the same sword cut P.W. 1 on her left forehead, left hand etc. A3 with the same sword cut P.W. 3 also on her face including nose. He also cut C.W. 5 (Vijayakumar) twice on the left and right sides of his forehead. A2 at that time beat P.W. 4 on the left side of her forehead with a G.I. Pipe. He also beat P.W. 3 on the left side of her wrist. Rajamma, an old lady who was in the same hall was beaten by A2 with that G.I. Pipe on her forehead near right ear. A4 also cut P.W. 3 with a sword on her left hand. P.W. 1 and others started making alarm and then the accused left the scene. Terrified by the unexpected attack by the accused, P.W. 1 and others were afraid to go out of the house to get the help of others to go to the hospital. Hence, they remained in the very same room after locking the door. At about 6.30 AM on hearing the sound of the calling bell, they opened the door and went out of the house. They went to the house of P.W. 22, one of their relatives where P.W. 3 entrusted her child. The people who gathered there sent P.Ws. 1, 3 and 4 to Balaramapuram Police Station in an autorickshaw. A police constable who was in front of the police station on seeing the injured persons, directed them to go immediately to the hospital. When those three persons came out of the station-compound, P.W. 2, the autorickshaw driver who was a member of the ''Act Force'' saw them. He and his two friends hired a taxi and took P.Ws. 1, 3 and 4 in that taxi. On the way the injured told P.W. 2 that two other persons had also sustained serious injuries and they were in their house and so on the way, the car was stopped in front of C.V. Bhavan where the two friends of P.W. 2 got down. The injured persons mentioned above were taken to the Government Hospital, Neyyattinkara, while C.W. 5 and deceased Rajamma were taken in another car by the friends of P.W. 2 mentioned above to the Government Hospital, Neyyattinkara. From there the injured persons were referred to Medical College Hospital, Trivandrum. P.W. 2 who had accompanied the injured persons to the Medical College Hospital, Trivandrum returned to the place near Balaramapuram Police Station where he had kept his autorickshaw. As directed by the police, he went to the police station and gave Ext. P5 F.I.R. Statement which was recorded by P.W. 36, the then Sub Inspector of Police at 9 AM on 29.4.2002 on the basis of which Ext. P5(a) F.I.R. was registered by him as crime No. 184 of 2002. Investigation was taken over by P.W. 37, the then Circle Inspector of Police, Neyyattinkara. P.W. 37 went to the scene of occurrence along with P.W. 12 (Asst. Director of F.S.L.) and prepared the scene mahazar.
2. Rajamma, the injured succumbed to the injuries at 11.10 AM on 29.4.2002 at Medical College Hospital, Trivandrum. The accused were arrested by the police on different occasions and they were questioned. The material objects were recovered based on the disclosure statements of those accused persons. After completing the investigation, the charge sheet was laid against six accused persons for the offences as mentioned earlier.
3. P.W. 1 to P.W. 38 were examined and Exts. P1 to P49 were marked. The material objects, M.O. 1 to M.O. 34 were identified and marked. The accused contended that it is a fabricated case. Exts. D1 to D12 were marked on the side of the defence, out of which Exts. D1 to D9 and Ext. D12 are portions of the statements of the prosecution witnesses marked as contradictions. Exts. D10 and D11 are the certified copies of the judgments in two criminal cases.
4. The learned Additional Sessions Judge after analysing the entire evidence found that the prosecution could not prove the complicity of A1 and A6 beyond reasonable doubt and so they were acquitted giving them the benefit of reasonable doubt. A2 to A5 were found guilty of the various offences as mentioned earlier and they were convicted and sentenced. A2 to A5 challenged the conviction and sentence passed against them in the appeals filed by them. The State challenges the judgment of acquittal passed in favour of A1 and A6.
5. We have heard the learned counsel for the appellants and also the learned Public Prosecutor. The following points arise for consideration:
1. The cause of death of deceased Rajamma?
2. Whether on 29.4.2002 at about 2 AM A2 to A6 in prosecution of the common object of causing the death of Rajamma and others formed themselves into an unlawful assembly and committed trespass into the residential house-C.V. Bhavan and inflicted injuries on P.Ws. 1, 3, 4, C.W. 5 (Vijayakumar) and deceased Rajamma with sword, G.I. pipe etc.?
3. Whether the accused voluntarily caused hurt to P.Ws. 1, 3, 4 and C.W. 5 and grievous hurt to P.W. 1 in the course of the same transaction?
4. Whether the accused in prosecution of their common object caused the death of Rajamma?
5. Whether A1 abetted A2 to A6 to commit the offences as mentioned above?
6. Whether A1 entered into a criminal conspiracy with A2 for causing the death of P.Ws. 1, 3, 4, C.W. 5 and deceased Rajamma?
7. Whether conviction and sentence passed against A2 to A5 are unsustainable on any of the grounds urged by them?
8. Whether the judgment of acquittal passed in favour of A1 and A6 is liable to be set aside and whether they are guilty of the offences with which they were charged?
Point No. 1
6. Ext. P16 is the postmortem certificate issued by P.W. 8 who was then working as Lecturer in Forensic Medicine and Assistant Police Surgeon, Medical College Hospital, Trivandrum. The post-mortem examination was conducted on 30.4.2002. The following ante-mortem injuries were noted by her in Ext. P16:
1. Abrasion 0.5 x 0.5 cm on the left side of face 3.5 cm in front of tragus of ear.
2. Contusion 5.5 x 3.5 x 0.3 on the left side of forehead and adjoining part of head, 4 cm above the outer end of left eyebrow.
3. Contusion 1.5 x 1.5 x 0.3 cm on the right side of forehead 5 cm above the inner end of right eyebrow.
Brain showed bilateral subdural and subarachnoid hemorrhages. Sulci were narrowed and gyri were flattened.
4.''U'' shaped suture incised wound 8 cm long on the inner aspect of right forearm with its lower curved extent just above the wrist. The wound was skin deep at the lower part and the maximum depth of 2.9 cm was at its upper part where ulna bone was seen cut and separated. On removing the sutures the roughly tongue shaped flap could be reflected upwards and inwards. Ulnar artery and ulnar nerve and other tissues in this region were found to be cut and separated.
5. ''U'' shaped incised wound 12 x 2.5 cm involving the inner aspect of left forearm and the adjoining part of hand with its midpoint 4 cm above root of little finger. The wound was skin deep at its lower extent and the maximum depth of 3.2 cm was at its upper part, where the underlying portions of triguetral, lunate, hamate bones and lower end of ulna bone were seen chopped off. Ulnar artery and ulnar nerve and other tissues in this region were found to be cut and separated. The ''U'' shaped flap of tissue could be reflected upwards.
7. It was opined by P.W. 8 that the cause of death of Rajamma was due to combined effects of blunt head injury and incised wounds sustained to the upper limbs. It was also testified by P.W. 8 that injury No. 2 mentioned above was possible to be caused by beating with M.O. 3 G.I. pipe and that injury Nos. 4 and 5 could be caused by cutting with M.O. 1 sword. It was further stated by her that injury Nos. 1 and 3 are also possible to be caused if the deceased was hit against hard and rough surface in the course of the incident. It was also sworn by her that the nature of injury Nos. 4 and 5 would suggest that those injuries could have been caused while trying to ward off such injuries. P.W. 8 was definite in her opinion that death of Rajamma was caused due to the combined effects of the injuries mentioned above. It was contended by the defence that injury No. 1 was only an abrasion and injury No. 2 was only a contusion. But injury No. 2 was actually an injury on the left side of the forehead. The learned counsel for the accused wanted to contend that the injuries were trivial and that the injured happened to die only because she was aged about 80 years. The persons who inflicted the injury were bound to know the consequence of causing such injuries on the head of the deceased who was aged about 80 years and also the consequences of injury Nos. 4 and 5 mentioned earlier. Therefore, the contention that the accused cannot be imputed with the intention or knowledge that the injuries inflicted on the deceased would cause her death is unsustainable. Since the death was caused due to the combined effects of the injuries mentioned above and since the assailants inflicted those injuries after trespassing into the residential house at night with dangerous weapons like sword, G.I. pipe etc. and since the injuries found on the body of the deceased Rajamma were inflicted with such deadly weapons, it cannot be contended that the assailants had no intention to cause such bodily injuries as were likely to cause death of the victim. The unassailable evidence given by P.W. 8 and Ext. P16 would prove to the hilt that Rajamma had a homicidal death. It is also proved that the injuries found on her body could have been inflicted with M.O. 1 and M.O. 3. The point is answered thus.
Point Nos. 2 to 4:
8. There is unimpeachable evidence to show that P.W. 1, Padma and her sister P.W. 3 (Lovely) and their mother-P.W. 4, Rajeswary had sustained injuries in the incident which took place on the night of 28/29-4-2002, i.e., at about 2 AM on 29.4.2002. Before analysing the evidence given by the injured witnesses, it is better to have in mind the scene of occurrence, the scene room as described in Ext. P20 scene mahazar and Ext. P19, the report of the Assistant Director of Biology Division, FSL, Trivandrum who had also examined the scene of occurrence on 29.4.2002 between 3 PM to 5 PM along with P.W. 37. The scene of occurrence was inside the house of C.W. 5 which was known as C.V. Bhavan. That house is situated on the northern side of the National Highway and a few meters to the east of the petrol bunk. The house was facing to the south. C.V. Bhavan was a three storied building with the first floor on the road level. The second floor was a large hall with tiled roof having partial wooden ceiling. That hall had a door on the eastern wall which led to the open terrace that extended upto the top of the eastern most connected building by name V.V.R. Ice-cream Parlour. It was specifically noted that the door at that place was found forcibly opened from outside. The upper latches of the door were found pulled out and a portion of the northern wooden plank of the door was found broken off with the latches of the central horizontal bolt. Besides, it was also noticed that three tiles from the roof by the southern side of the door were seen removed and kept down on the outside terrace. As stated earlier, the ground floor was below the road level which may be referred as cellar also. That floor opened to the compound on the back of the house through a door on the northern wall of the dining hall in the ground floor. That compound lying on the rear side had a free access through the open entrance on the eastern end of the V.V.R. Ice-cream Parlour.
The entrance room with collapsible shutter found on the first floor led to a hall room that led to the staircase room. The wooden staircase on the south-western corner of that room led to the second floor. P.W. 12 could also find a torn rubber hand gloves at the northern corner, on the floor of the staircase room, near the door on the northern wall which led to the living room which was actually the scene of crime. PWs 12 and 37 could note that the door leading to that scene room was also forcibly pulled open from the staircase room which was evidenced by the partially bent horizontal bolt fixed on the central portion on the other side of the door. In the light of the two definite findings that the door of the terrace room was seen forcibly opened from outside since the latches of the door were found pulled out etc. as noted earlier and this finding, namely, that the door of the scene room was forcibly pulled open from outside causing the horizontal bolt to bend etc. as just noted above would prove to the hilt that the offenders had their entry first into the terrace portion and from there entered the first floor and thereafter came down to the scene room through the stair case and thereafter the door was pulled open in the manner indicated above.
9. It was also noted in Ext. P20 scene mahazar and Ext. P19, the report prepared by P.W. 12 that the floor of the living room, namely, the scene room was full of blood and blood stains. A cut portion of the thump with nail which was seen on the floor just in front of the door leading from the stair case room was seized. It was also noted that a pool of blood was seen on the floor near the south-western corner in front of the downward steps (concrete steps leading to the ground floor). There were indications that the blood had flown down through the steps leading to the ground floor. Another pool of blood was seen on the floor near the south-eastern corner from which blood flowed towards the eastern bedroom under the door. PWs 19 and 20 could also see bloody footwear impressions on the floor of that scene room. Two locks of black hairs were seen on the window sill on the north-western corner of the scene room. The door at the north-western corner of the living room led to the bedroom at the western side and blood stains could be seen on the floor of that bedroom as well. Further, it was noted that blood stained cloths were seen on the floor and also on the bed on the cot.
10. The learned Public Prosecutor would submit that the allegation that A1 was found making a wooden ladder is fortified by the observation made in Exts. P19 and P20 that a temporarily assembled wooden ladder was found placed slanting on the outer eastern wall of the bath room situated at the rear side of V.V.R. Ice-cream Parlour. It was observed that through that ladder one could climb on to the terrace of V.V.R. Ice-cream Parlour which extended upto the door opening to the second floor of the scene of occurrence. That means, according to the prosecution one who climbs on to the second floor can get down to the first floor to the scene room by pushing open the door etc. as mentioned above. That ladder which was identified and marked as M.O. 18 was having a height of 258 cm and width of 51 cm which had five wooden steps fastened with wire. Traces of blood could be detected on the first three steps of that ladder. Similarly, trace of blood was detected on the floor of the bathroom and on the sweeping edge of a broomstick. That was seen kept at the north-eastern corner of the bathroom. The aforesaid blood stained articles and other articles were seized by P.W. 37 as per Ext. P20, the scene mahazar. Besides the blood stained slippers, the broken latches and padlock, the trace of blood taken out by using pieces of cotton have also been seized. Some of the items were identified by P.W. 1 and others. Severed piece of the right thump found in the scene room was also seized by P.W. 37 as per Ext. P20 mahazar and that was also sent for examination by the doctor.
11. It was testified by P.W. 8, the doctor who conducted the postmortem examination of Rajamma mentioned above, that on 1.5.2002 the victim (P.W. 1) and her distal portion of the left thump were examined by him. It was certified by P.W. 8 that the amputated portion of the left thumb mentioned above could be of P.W. 1 Padma. The fact that the amputated portion of the left thumb mentioned above was seen in the scene room and was seized by P.W. 37 as per Ext. P20 mahazar and the evidence given by her that the distal portion of the left thumb was got severed when PW 1 was cut by the assailant were not seriously attacked by the defence. It was A3 who was alleged to have inflicted the cut injury to P.W. 1, and caused her thumb portion severed as mentioned above. That case was accepted by the learned Sessions Judge. The evidence given by P.W. 37 would show that as per Ext. P20 he had seized M.O. 16, M.O. 13, M.O. 19, M.O. 20, M.O. 21, M.O. 22 series, M.O. 23, M.O. 24 series, M.O. 25 series, M.O. 26 series, M.O. 27 series, M.O. 28 series, M.O. 29 series and M.O. 30.
12. Ext. P24 is the inquest report prepared by P.W. 37 on the dead body of deceased Rajamma. He seized M.O. 24 series lunki, blouse and shawl as per Ext. P24.
13. It was sworn by P.W. 8 that on 30.4.2002 at 2 PM she had examined a portion of thumb suspected to be of P.W. 1-Padma and with regard to the same Ext. P18 certificate was issued by her. It was certified that incised amputating wound 2.5 x 9 cm and 2.4 cm behind the thumb was noted by her. It was also noted that the proximal portion of distal phalanx was seen cleanly cut. The evidence given by P.W. 5, the Assistant Surgeon, Government Hospital, Neyyattinkara would show that P.W. 3, Lovely was examined by him on 29.4.2002 at 7.10 AM. The injuries noted by him are seen mentioned in Ext. P6 wound certificate. Among other injuries, he noted one incised wound cutting the bone over the nasal bone area and exposing the nasal cavity. That wound measured about 15 x 2 cm. She sustained the injury when she was cut at 2.30 AM on 29.4.2002 from her house. It was so noted by the doctor in Ext. P6. It was opined by P.W. 5 that the incised injury mentioned above could be caused by cutting with M.O. 1 sword and that injury No. 2, a lacerated wound could be caused by beating with M.O. 3. P.W. 1, Padma was also examined by him for which Ext. P7 certificate was also issued. The fact that she lost part of left thumb and terminal phalanx was noted. Besides, another lacerated wound was also found by him. Ext. P8 was also issued by P.W. 5 for having examined C.W. 5, Vijayakumar at 7.20 AM on the same day. C.W. 5 had suffered multiple scalp injuries. As he was very serious, he was referred to the Medical College Hospital, Trivandrum. P.W. 4, Rajeswary was also examined by P.W. 5 for which Ext. P9 certificate was issued. Multiple incised wound over the fore-arm bone with fracture of both the bone and other injuries found on the body of P.W. 4 were noted in Ext. P9. The lacerated injury shown therein could be caused by using M.O. 3. The multiple incised injury shown therein could be caused by cutting with M.O. 1 sword. Deceased Rajamma was also examined by P.W. 5 at 7.20 AM. Ext. P10 is the wound certificate issued by him for that purpose. The injuries found on her body were noted in Ext. P10. Though so many questions were put to P.W. 5 as to the possibility of the injuries being caused in some other manner as well, the opinion given by him that the incised injuries could be caused by cutting with sword and other injuries could be caused by using G.I. pipe deserves to be accepted. It was rightly accepted by the learned trial Judge.
14. It was vehemently argued by the learned counsel for the accused that none of the injured persons mentioned earlier had told the doctor as to who were the assailants who inflicted the injuries. The learned Public Prosecutor would submit that the doctor is not expected to mention the names of the assailants since it is the duty of the investigating officer to find who are the offenders. The learned Public Prosecutor submits that the prime duty of the doctor is to give prompt and proper treatment to the injured/victims and to save the life of the person brought to him. A doctor due to pressure of work may some times, inadvertently commit mistakes in noting down the names of the assailants. Such mistakes may some times affect the case of the prosecution. Therefore, the non-mention of the names of the assailants to the doctor cannot in any way affect the case of the prosecution. The question is whether PWs 1, 3, 4, C.W. 5 and deceased Rajamma had sustained injuries at about 2.30 AM on 29.4.2002. In fact, the defence also does not seriously assail the finding of the learned trial Judge that the aforesaid persons had sustained injuries in the incident which took place in their house (C.V. Bhavan).
15. Ext. P5 is the First Information Statement given by P.W. 2. It was recorded by P.W. 36, the S.I. of Police, Balaramapuram Police Station at 9 AM on 29.4.2002 based on which Ext. P5(a) F.I.R. was registered by him. When Ext. P5 was recorded, Rajamma had not succumbed to the injuries and so the crime was registered under Sections 458, 324 and 307 IPC and also u/s 27 of the Arms Act. It was stated by P.W. 2 that he was having autorickshaw KL 01 B 8969 and that he used to park his autorickshaw at Balaramapuram auto stand (near police station). According to him, on 29.4.2002 at about 6.40 AM three women reached in an autorickshaw in front of Balaramapuram Police Station. Those women were having serious injuries on their bodies. The Head Constable of that Police Station gave direction to those injured persons to go to the hospital immediately. Accordingly, he (P.W. 2) hired a taxi from the taxi stand and all those three persons were taken in that taxi. While they were proceeding to hospital, he was informed that two other persons who had sustained injuries were in their house. His two friends got down near the house of P.Ws. 1 and 3. P.W. 2 proceeded along with the three injured women in the same taxi and they were taken to Government Hospital, Neyyattinkara. His evidence would show that the other two injured persons were also brought to the hospital after some time. It was further stated by him that after those injured persons were examined by the doctor, all of them were referred to the Medical College Hospital, Trivandrum. Accordingly, those injured persons were taken in two ambulances to the Medical College Hospital, Trivandrum. When the relatives of the injured persons reached the hospital, P.W. 2 returned to the place where he had kept his autorickshaw(near Balaramapuram Police Station). When he reached there, P.W. 36 asked him and accordingly he gave Ext. P5 statement to P.W. 36 at 9 AM. His evidence would show that he was a member of the ''Act Force''. His number in that ''Act Force'' was 428. The evidence would show that ''Act Force'' was an organisation intended to provide immediate necessary help to persons who sustained injuries in accidents or other incidents. It was a voluntary organisation. Though P.W. 2 was cross examined in extenso, his credibility could not be assailed at all. The contention raised by the defence that P.W. 2 was at the beck and call of the police and a statement was subsequently collected by the police is found to be a travesty of truth. So many questions were put to P.W. 2 by the defence as to the time or duration he was there in the police station, what was the time taken for recording the statement and so many other irrelevant aspects. But the evidence given by him as to the circumstances under which he happened to give Ext. P5 statement remained unshaken. P.W. 2 has given evidence regarding the dress worn by those three women. That apart, the evidence given by those three women would also support the fact that they were taken in a taxi hired by P.W. 2. The court below was perfectly justified in acting upon the evidence given by P.W. 2. The contention that Exts. P5 and P5(a) were subsequently manipulated or concocted by the police was also rightly not accepted by the learned Sessions Judge.
16. It is argued by the learned counsel for the accused that though the FIR was seen recorded at 9 AM, it reached the court only at 8 PM on that day but no explanation was offered by the police officer for the delay occurred in the FIR reaching the court. It is important to note that Rajamma succumbed to the injuries at 11.30 AM. The fact that crime was registered only u/s 307 and not u/s 302 would strengthen the case of the prosecution that the FIR had come into existence prior to the death of Rajamma. So, the probability factor lies in favour of the case that Ext. P5 was actually recorded at 9 AM as noted in Exts. P5 and P5(a). On a careful scrutiny of the evidence, we find nothing to disbelieve the evidence of P.W. 2.
17. The evidence would show that P.Ws. 1, 3 and 4, the three injured persons were questioned by P.W. 37 on 29.4.2002 itself. Rajamma died at about 11 AM on that day. C.W. 5, the husband of P.W. 1 was also questioned by the investigating officer. He could not be examined before court as by that time he expired. Since P.Ws. 1, 3 and 4 sustained injuries in the incident and since the incident took place inside the northern most hall room mentioned earlier, where there was electric light, it was possible for those three persons to identify the persons who actually attacked and inflicted injuries with swords, G.I. Pipe etc., the prosecution contends. The learned Public Prosecutor would submit that since all the three persons (A2 to A4) attacked P.Ws. 1, 3 and 4 with swords and G.I. Pipe causing serious injuries on the three persons and also on deceased Rajamma and Vijayakumar (C.W. 5) and since there was sufficient time for watching and noting the features of those persons, such identifiable features must have certainly got imprinted or etched in their mind and as such the contention that it was not possible for those three witnesses to identify the three persons cannot be sustained. It is also argued by the learned Public Prosecutor that with regard to the identity of A5 also, the evidence given by P.Ws. 1, 3 and 4 has to be accepted since the evidence is to the effect that A5 was standing near the staircase to guard the scene. As P.Ws. 1, 3 and 4 sustained serious injuries at the hands of A2 to A4 and as there was sufficient electric light to identify those three persons, the argument to the contrary advanced by the learned counsel for the accused cannot be sustained.
18. The learned counsel for the accused would submit that the evidence given by the three witnesses that the aforesaid accused were known to them earlier is only a subsequent story introduced by the prosecution, for, there was no occasion for P.Ws. 1, 3 and 4 to have acquaintance with the accused persons. It is also argued that no Test Identification Parade (TIP) was conducted by the investigating officer and as such it cannot be said that there was proper identification of the assailants. It is argued that though the TIP is not a substantive evidence, it was required to be conducted in cases like this to ensure that the investigating officer proceeded in the right direction and that the persons who were brought to trial were the real accused persons and that there was no possibility of wrong identification or false implication of any person as accused. But this argument is stoutly resisted by Mr. S.U. Nazar, learned Public Prosecutor who would point out that the evidence given by P.Ws. 1, 3 and 4 would make it clear that the aforesaid accused persons were known to them earlier. As mentioned earlier, the fact that the incident did take place at the time and place, namely, in the big room, described as northern most hall, where there was pool of blood at different places would negative the defence plea that the incident did not actually take place in that room. The observations made in Ext. P20 mahazar and Ext. P19, the report prepared by P.W. 12 would strengthen the case of P.Ws. 1, 3 and 4 that the incident did take place in the northern most hall as shown in Ext. P20 mahazar. There is evidence to show that there was sufficient electric light in that room. It was argued by the learned counsel for the accused that according to P.W. 1, she had flashed torch light towards the window and so it would improbablise the case of the prosecution that there was sufficient light. The flashing of torch light was towards the window and not inside the hall. It was by flashing that torch light also the witnesses mentioned above could see A5 and A6 standing by the side of the staircase, guarding the scene. It was in the hall-room the severed portion of the thumb of P.W. 1 was seen.
19. The fact that no TIP was conducted by P.W. 37 is no ground to say that P.Ws. 1, 3 and 4 had no opportunity to identify the persons who inflicted the injuries on them. It is trite law that benefit of an act or omission of the investigating agency cannot upturn the prosecution case if the ocular testimony of the eye witnesses inspires confidence in the mind of the court. Since the incident took place at the dead of night, i.e., at 2 AM, there was no possibility of any other person to witness the crime. As the incident took place inside the house, the inmates are the most competent witnesses. Here, in fact, P.Ws. 1, 3 and 4 sustained injuries also and as such if their evidence infuses confidence, then the court can certainly rely upon their testimony to base a conviction. Mere faulty investigation, even if it is accepted to be so, cannot be a ground for acquittal of the accused provided, there is a ring of truth in the evidence given by the injured eye witnesses. The contention that as P.Ws. 1, 3 and 4 are injured persons and also because they were having animosity towards A1, they should be treated as interested witnesses, also does not gain ground since so far as the complicity of A2 to A5, who were convicted by the learned Additional Sessions Judge, is concerned they were not persons with whom P.Ws. 1, 3 and 4 had any animosity.
20. It is true that when P.Ws. 1, 3 and 4 were cross-examined, some inconsistencies could be brought out by the defence especially because they were cross-examined by three or four counsel appearing for different accused. Such inconsistencies are only regarding matters peripheral in nature and do not go to the core of the matter. In other words, P.Ws. 1, 3 and 4 withstood the incisive cross-examination of the counsel appearing for the various accused. They could give a clear account of the overt acts of A2 to A4. It was A2 who beat with a G.I. Pipe on P.W. 3 and P.W. 4 and deceased Rajamma; it was A3 and A4 who inflicted cut injuries with swords on deceased Rajamma and P.W. 1, P.W. 3 and C.W. 5. Their evidence to that effect remained unshaken. The inconsistency or slight variation is only with regard to the sequence of the blows or cut injuries given by the accused persons mentioned above. Such difference or variation, if any, would only vouch for the truthfulness of the witnesses.
21. The learned Sessions Judge had the advantage of watching the demeanour of the witnesses to assess their credibility. After a thorough scrutiny of their evidence, the learned Sessions Judge placed reliance on their evidence with regard to the complicity of A2 to A4. Their evidence as to the identification of A5 was also accepted by the learned Sessions Judge.
22. The Apex Court in
23. P.W. 11 was the Watchman of the house of C.W. 5. It was stated by him that his duty was from about 6 AM till 7 PM and that on 29.4.2002 at about 6.30 AM when he was taking tea from Soorya hotel which is near to the house of C.W. 5, some people were seen running towards that house and so he also rushed to that house. According to him, when he reached there he saw P.Ws. 1, 3 and 4 having sustained injuries on the head, hand etc; their injuries having been bandaged using pieces of clothes. In order to take them to the hospital, an autorickshaw was stopped and he took P.Ws. 1, 3 and 4 in the autorickshaw to the police station. It was further stated by him that when they reached near police station, one policeman came out and on seeing the injuries on the body of the three injured persons mentioned above, the policeman directed the injured persons to be taken to the hospital. This evidence is actually in tune with the evidence given by P.W. 1 and P.W. 2. P.W. 11 has further stated that when they were proceeding to the hospital as it was revealed that two other injured persons were in the house of C.W. 5, the car was stopped and he got down from the car and thereafter he hired another taxi in which C.W. 5 and his mother, Rajamma were taken to the hospital at Neyyattinkara. Though P.W. 11 was cross-examined at length, nothing could be brought out to discredit that part of his evidence. Since his duty was only during day time, it was not possible for him to see the incident spoken to by P.Ws. 1, 3 and 4. The contention raised by the defence that P.W. 11 has also given false evidence is unworthy of merit.
24. P.W. 23 was the Night Watchman of the shopping complex of C.W. 5. He joined as Night Watchman only on 26.4.2002. He says that he did not hear anybody crying or making alarm during the night of 28.4.2002/29.4.2002. The learned counsel for the accused would submit that had there been any such incident, P.W. 23 would have heard the hue and cry. Since there is sufficient evidence to show that an incident did take place on that night and that five persons sustained injury, out of whom deceased Rajamma died subsequently, the fact that P.W. 23 could not hear any hue and cry will not in any way affect the case of the prosecution. P.W. 23 has asserted that on the next day morning one person approached him and told him that he should inform the son of Venugopalan (Venugopalan is the brother of C.W. 5). At that time he could see three ladies having sustained bleeding injuries which were seen tied with pieces of clothes.
25. The prosecution has also relied upon the evidence of PW 9 and PW 10 to prove the complicity of A2 to A6. PW 9 was a headload worker. It was testified by him that on 28.4.2002 he was engaged in unloading work in Balaramapuram town. After midnight, he and another headload worker were engaged in unloading bags of onion brought from Tamilnadu. His evidence would show that 50 bags of onion were unloaded from a lorry and kept in the shop of one Swaminathan. According to him, the unloading work continued till 2.15 AM. He further says that the aforesaid shop of Swaminathan is to the east of the house of deceased Rajamma. After the work he was returning to his house and at about 2.30 AM he reached near the gate of a new house which was the house of ''Nambalikaran''. [The grandfather of CW 5 was called as ''Nambalikaran''. Hence, the buildings and properties were stated to be known as Nambalikaran''s house, buildings etc.] PW 9 says that five persons were then seen jumping down to road from the compound wall. According to him, it was the way through which he was to go to his house. He also says that in the street light those five persons could be identified as A2 to A6. According to him, it would be at about 2.30 AM that he saw those persons jumping down from the compound wall. He swears that A2 was carrying an iron pipe and A3 and A4 were having swords in their hands. Though he says that A5 was also having a weapon in his hand, he could not identify the same.
26. Now we have to see whether the evidence given by PW 9 that the aforesaid persons were seen jumping down from the compound wall is a tutored version as contended by the defence. It is argued by the learned counsel for the accused that it was quite unlikely that PW 9 could be present on the road at the relevant time. But the evidence given by PW 9 would show that during night-shift work he would be engaged in loading and unloading work. The contention that even according to PW 9 he was having heart ailment and so it was not possible for him to go for unloading work cannot be accepted at all. The fact that he was taking medicines for that purpose is not a reason to say that he should not do such work. It was also argued that PW 9 used to unload cement and other articles to the shop of CW 5. He fairly admitted that fact. The learned Public Prosecutor would submit that since PW 9 is the unloading worker he has to unload materials brought to the shops of so many persons. CW 5 is only one among those shop owners. Therefore, it cannot be said that he came forward to depose in court at the behest of CW 5. It is pertinent to note that all the counsel appearing for the accused cross examined PW 9 one after another and put all sorts of questions to PW 9 but he could withstand the cross examination and could give reasonable explanation as to his presence and as to how he could see the aforesaid incident. It was also argued that it was not possible for a person to hold the weapon and then to climb over the compound wall. But no such impossibility can be there since the person climbing on the compound wall can keep the sword or iron pipe on the compound wall and while getting down, he can hold the same. It was stated by him that he was returning to his house at 2.30 AM since by that time the unloading work was completed. Therefore, there is nothing unusual or unnatural in the evidence given by PW 9 that he could see five persons jumping down from the compound wall as mentioned above. So many unfounded suggestions were put to PW 9. All those suggestions were denied by him. When PW 5 was questioned as to the dress worn by the accused persons then he stated that A3 - Sudhakaran was wearing blue T-Shirt. No further question was put to this witness regarding the dress worn by other accused. Suffice to say, the court below has properly analysed the evidence of PW 9 to hold that five persons were seen jumping down from the compound wall with weapons in their hands as mentioned above.
27. PW 10 is a head load worker belonging to another Union. He also supported the evidence given by PW 9 that on that night he and PW 9 were engaged in unloading work and that onion bags were unloaded from the lorry and were kept in the shop of one Swaminathan. It was stated by him that after the work he went to a shop and had a tea and thereafter, along the way situated by the side of the shop of Swaminathan, proceeded towards his house. While so, he saw five persons standing by the side of the compound wall of a house, which is by the side of a water channel. According to him, two swords, two iron pipes and one knife were seen kept slanting against the compound wall very near to those five persons. He identified accused Nos. 2 to 6 as the persons who were seen there. He would swear that A3 to A6 were known to him earlier. But he says that he had seen A2 prior to that incident only on one or two occasions. It was further testified by him that on the next day he came to know that an incident had taken place in the house of CW 5-Vijayakumar who was described as Nambalikaran. The weapons which were stated to have been seen by him slanting against the compound wall mentioned above were identified by him. It was stated by him that he was questioned by the police with regard to the same. He further says that there after the accused were shown to him and weapons were also shown to him from the police station and then he could identify the weapons also.
28. A blistering attack was made by the learned counsel for the accused stating that PW 9 and PW 10 were witnesses planted by the Investigating Officer to bolster up the case of the prosecution and that it is highly unbelievable that those two persons could have been present at the time or place as spoken to by them. But the evidence given by PW 9 and 10 would show that they were in Balaramapuram town as they were engaged during that night in an unloading work. In spite of the incisive cross examination the evidence given by them on that point could not be shattered. It was contended by the defence that there was another way for PW 10 to go to his house but it was stated by PW 10 that during night nobody used to walk through that pathway. PW 10 has stated that he had unloaded cement bags in the shop of the brother''s son of CW 5. It was stated that he had unloaded bags of manure, fertilizer etc. and kept in the shop of CW 5 also on earlier occasions. That was the consistent version given by PW 9 also. Learned Public Prosecutor would submit that being the headload workers, those witnesses had to engage in such works and so the fact that those two witnesses had unloaded such materials for CW 5 also cannot in any way be a reason to hold that P.Ws. 9 and 10 were hired and tutored for the prosecution.
29. The evidence would show that at about 6.30 AM after PW 1, 3 and 4 opened the door on hearing the sound of calling bell, they went out and PW 3 handed over her baby to PW 22, a woman residing in the nearby house and thereafter PW 1, 3 and 4 went to Balaramapuram Police Station. PW 22 has supported that evidence. It was rightly accepted by the learned Sessions Judge.
30. The learned Public Prosecutor would assail the finding of the learned trial judge acquitting A1 and A6. The learned Public Prosecutor would submit that there is evidence to show that it was A1 who procured A2 to carry out the mission; namely, to attack the inmates of CW 5 to wreck vengeance against them since he (A1) and his wife were attempted to be evicted by PW 1 on the strength of a decree obtained by her against the wife of A1. The fact that PW 1 had obtained the decree and delivery was effected etc. was not assailed by the defence. Therefore, it can be said that the prosecution could prove the motive alleged against A1. According to the prosecution it was A2 who procured other accused persons to carry out the attack and for that purpose A1 had paid money to A2. To prove that aspect PW 10 was examined to say that he had actually seen A1 handing over to A2 a bundle of currency notes. Because of some inconsistency, the learned Sessions Judge was not inclined to accept that version. On a further scrutiny of the evidence it can be seen that there is evidence to show that PW 9 had seen A1 giving some amount to A2. But the contention raised by the prosecution that it was a bundle of currency notes and that it was given to A2 for the purpose as aforesaid is not gatherable from the totality of the circumstances.
31. Conspiracy criminalises an agreement to commit a crime. Since conspiracy takes place in secret or some times clandestinely there may not be direct evidence regarding the same. It was held in
Conspiracy is a clandestine activity. Persons generally do not form illegal covenants openly. In the interests of security, a person may carry out his part of a conspiracy without even being informed of the identity of his co-conspirators. Since an agreement of this kind can rarely be shown by direct proof, it must be inferred from circumstantial evidence of co-operation between the accused. What people do is, of course, evidence of what lies in their minds. To convict a person of conspiracy, the prosecution must show that he agreed with others that together they would accomplish the unlawful object of the conspiracy.
In was also held in the decision cited supra:
Contrary to the usual rule, in conspiracy prosecutions, any declaration by one conspirator, made in furtherance of a conspiracy and during its pendency, is admissible against each co-conspirator. Despite the unreliability of hearsay evidence, it is admissible in conspiracy prosecutions. Thus conspirators are liable on an agency theory for statements of co-conspirators, just as they are for the overt acts and crimes committed by their confreres.
Based on the aforesaid ratio, it is argued by the learned Public Prosecutor that the circumstances pointed out by the prosecution would be sufficient to hold that A1 had conspired with A2 and it was pursuant to that conspiracy A2 had hired or procured the service of A3 to A6 to carry out the mission and as such the verdict of acquittal given to A1 by the court below has to be reversed.
32. The trial judge had the advantage of seeing the witnesses. Hence, the appellate Court should give proper weight and consideration to the appreciation of evidence made by the trial court. The view of the trial judge as to the credibility of the witnesses, the presumption of innocence in favour of the accused etc. have to be given due consideration. A1 and A6 having secured their acquittal, the presumption of their innocence is further reinforced and strengthened by the judgment of the trial court, the learned counsel for the appellant submits. It was held by the apex court in
Thus, the law on the issue can be summarised to the effect that in exceptional cases where there are compelling circumstances, and the judgment under appeal is found to be perverse, the appellate court can interfere with the order of acquittal. The appellate court should bear in mind the presumption of innocence of the accused and further that the trial court''s acquittal bolsters the presumption of his innocence. Interference with the decision of the trial court in a routine manner, where the other view is possible, should be avoided unless there are good reasons for such interference.
33. The other circumstance mainly relied upon by the prosecution is that A1 was found making MO 18 ladder. The evidence would show that it was using MO 18 ladder the other accused facilitated their entry into the terrace portion. That ladder was seen placed on the eastern wall of the northern outside bathroom of Libra building where A1 was residing. Libra building is stated to be the eastern portion of main building-C.V. Bhavan. PW 14 has stated that when he was doing work in the property of one Venu at 1.15 PM on 28.4.2002 and when he (PW 14) was going through the pathway by the side of that house he happened to see A1 and another person making that ladder. They were seen on the rear side of the house of A1. According to PW 14 when asked, A1 was stated to have told him that a ladder which had been placed there was taken away by somebody and so MO 18 was being made since a ladder was highly necessary for him. According to him, when he was returning after lunch he saw MO 18 ladder having been placed on the back of the house of A1. PW 15 also has stated that he also happened to see A1 engaged in making MO 18 ladder. He says that he had also helped A1 in the construction of ladder. He has corroborated the version of PW 14 that he (PW 14) had asked A1 as to the necessity of constructing that ladder. From the evidence as aforesaid, it can be found that MO 18 ladder was made/constructed by A1 on 28.4.2002.
34. PW 15 was examined by the prosecution to prove that he had seen A1 handing over money to A2. According to PW 15 it was a bundle of 50/- rupee currency notes. According to PW 15 it was out of that bundle one note of Rs. 50/- was taken out to purchase cinema tickets for him and A1. He and A1 had gone to M.V. Cinema theatre at 4 PM on that day. It was further stated by PW 15 that after the cinema he and A1 went towards Sri Krishna Kovil; A1 went inside the temple and returned after sometime and went towards Balaramapuram and then he saw A1 again placing a 100/- rupee currency note in his pocket after sandle-paste was put on the currency note. According to him A1 had told him that it was a money of god and therefore it will help him etc. It was further stated by PW 15 that when they were proceeding towards Jayalekshmi Jewellery, an autorickshaw passed them from which one person got down and he approached A1. A1 then handed over money to the other man. According to PW 15, it was to A6 money was so given by A1. The evidence given by PW 14 and 15 did not infuse confidence in the mind of the learned Sessions Judge. According to the learned Sessions Judge, the evidence given by those witnesses was artificial and unnatural.
35. It is vehemently argued by Mr. P. Vijaya Bhanu, learned Senior Counsel appearing for A5 that the prosecution wanted to fasten the criminal liability on A5 with the aid of Section 149 IPC. It is contended that even according the prosecution, A5 was not present in the hall mentioned above where the other three accused were stated to have attacked deceased Rajamma, P.W. 1 and others. Though according to the prosecution, two persons were seen standing by the side of the staircase, one of those persons (A6) was acquitted by the learned Sessions Judge finding that the evidence led by the prosecution to prove his complicity is unconvincing. Therefore, the argument is that out of the five members of the unlawful assembly, who were stated to have trespassed into the building for commission of the offence, since A6 was acquitted, A5 cannot be held liable with the aid of Section 149 IPC. That argument cannot hold good in view of the fact that the consistent case of the prosecution is that all the five persons shared the common object and it was for accomplishment of that common object all the five persons committed house breaking by night and trespassed into the scene room of C.V. Bhavan, and, two out of them, were standing outside that scene room to guard against any other person coming through the staircase. It is not a case where the involvement of five persons in the assembly is not proved. Section 149 IPC prescribes for vicarious or constructive criminal liability for all members of an unlawful assembly where an offence is committed by any member of such 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. In the case on hand, P.Ws. 1, 3 and 4 are consistent in their statement that there were altogether five persons in the assembly. The fact that the common object of that assembly was to cause the death of the inmates of that house or to cause such grievous hurt on those persons cannot be denied at all in view of the proved facts and circumstances of the case. Simply because A6 was acquitted by the learned Sessions Judge because the prosecution could not prove beyond reasonable doubt that it was A6 who was the other member of that unlawful assembly, it cannot be said that there was no unlawful assembly. The evidence on record is clear, cogent and convincing that there were five persons in that unlawful assembly. The argument proceeds on the premise that since one person out of the five is acquitted, then the assembly would be composed of only four persons and if that be so, A5 cannot be held liable with the aid of Section 149 IPC because no overt act was attributed against A5. It was held by the Constitution Bench in
If five or more persons are named in the charge as composing an unlawful assembly and evidence adduced by the prosecution proves that charge against all of them, that is a very clear case where Section 149 can be invoked. It is, however, not necessary that five or more persons must be convicted before a charge u/s 149 can be successfully brought home to any member of the unlawful assembly. It may be that less than five persons may be charged and convicted under Sections 302/149 if the charge is that the persons before the court along with others named constituted an unlawful assembly; the other persons so named may not be available for trial along with their companions for the reason, for instance, that they have absconded. In such a case, the fact that less than five persons are before the court does not make Section 149 inapplicable for the simple reason that both the charge and the evidence seek to prove that the persons before the court and others number more than five in all and as such, they together constitute an unlawful assembly. Therefore, in order to bring home a charge u/s 149 it is not necessary that five or more persons must necessarily be brought before the court and convicted.
The learned counsel for A5 has relied upon the decision of the apex court in
In view of the decision of the Constitution Bench in Mohan Singh case, in the case on hand, even after acquittal of the two accused from all the charges levelled against them, if there is any material that they were members of the unlawful assembly, the conviction u/s 302 can be based with the aid of Section 149.
Therefore, the question is whether there is sufficient material to hold that there were five members in that assembly and whether A5 was a member of that unlawful assembly. It is pointed out by the learned Public Prosecutor that as against the verdict of acquittal passed in favour of A6, appeal has been filed. Even if that appeal does not succeed, still there is evidence to show that there were five members in that unlawful assembly who committed house breaking by night and after trespassing into the room attacked P.Ws. 1, 3, 4 and C.W. 5 and caused the death of deceased Rajamma. The only other question that would survive for consideration is whether the prosecution could prove the identity of A5 as one of the persons of that unlawful assembly of five persons who trespassed into the house for commission of the offence mentioned above.
36. In
37. It was vehemently argued by Mr. B. Raman Pillai, the learned counsel appearing for A2 that identification of the accused for the first time by P.Ws. 1, 3 and 4 in the witness box cannot be accepted at all. The learned counsel has relied upon the decision in
38. The decision in
39. The purpose of a prior TIP is to test and strengthen the trustworthiness of the evidence regarding the identification. It is considered a safe rule of prudence to generally look for corroboration of the evidence given by the witnesses in court as to the identity of the accused if the accused are strangers to them. But if on the other hand, the court is impressed by a particular witness on whose testimony, the court can safely rely, without other corroboration, the absence of TIP cannot nullify the evidence of such witnesses. The TIP is not a substantive evidence. It only aids the investigation and do not form substantive evidence. The substantive evidence is the evidence in the court given on oath. Failure to hold TIP does not make the evidence of identification in court inadmissible, rather the same is very much admissible in law. The previous identification in the TIP is a check valve to the evidence of identification in court of an accused by a witness and the same is a rule of prudence and not law (see the decision of the apex court in
40. It was stated by P.W. 37 that P.Ws. 1, 3 and 4 were again questioned by him on 7.5.2002 and on 18.5.2002. Though suggestions were put to P.W. 37 and P.W. 12 by the counsel appearing for the accused that those witnesses did not state anything about the dress worn by the accused or the weapons used by each of them, those suggestions were denied by P.W. 37. In other words, there was no case for the defence that when those witnesses were questioned by P.W. 37 on 7.5.2002 and 18.5.2002, they had not given statements pertaining to the overt acts of each of those accused and the weapons used by them and also the dress worn by some of those accused. Similarly, though questions were put by the counsel appearing for the accused regarding so many rooms of that main building-C.V. Bhavan and so many other irrelevant aspects, the evidence regarding the observations made by P.W. 37 and P.W. 12 were not effectively controverted by them.
41. It was then contended by the defence that though P.W. 37 would say that a finger print expert was also taken to the spot, no finger prints could be taken from any of the articles or from the door or other parts. P.W. 37 has stated that the finger print expert has also visited the scene room along with P.W. 12. The fact that no finger print was available to be taken is no reason to say that P.W. 37 had not taken steps to get such scientific report, if any, available. It was also stated by P.W. 37 that the sniffer dog was also taken to the scene of occurrence but no material could be collected by using the sniffer.
42. It was stated by P.W. 37 that A3 was arrested by him on 17.5.2002 at 10 PM at a place called Mudavoorpara. It was stated that the accused was then wearing the wrist watch which was identified as M.O. XXXIII. According to the prosecution, an attempt was made by A3 to abscond from that locality and for that purpose, as he required some amount, he had pledged a gold necklace of his brother-in-law Babu at V.V. Funds at Balaramapuram for a sum of Rs. 2200/-. P.W. 37 has stated that when A3 was questioned, he had given such a statement and based on that statement and as led by A3, he went to V.V. Funds mentioned above at 1230 hours on 18.5.2002. It was sworn by P.W. 37 that one Vidyadharan who was in charge of V.V. Funds produced the register showing the particulars of the article pledged. That register was seized as per Ext. P30 mahazar and it was returned to Vidyadharan as it was required by him for their day to day business. It was further stated that Ext. P29 is the receipt which was issued showing the pledging of the gold necklace by A3. The learned Public Prosecutor would submit that Ext. P29 would show that it was signed by the accused as Sudhakarans and it would further show that the pledging was made on 29.4.2002. On the reverse of Ext. P29 the weight of the gold necklace, the gold loan number, the amount given and date are also seen noted. That portion of the receipt was also signed by the accused which was separately marked as Ext. P29(a). There was no case for the accused that the name and address shown in Ext. P29 do not pertain to him. There was no reason for creating such a false document against the accused. The pledging was on 29.4.2002 and A3 was arrested only on 18.5.2002. Hence, there can be no doubt about the correctness of Exts. P29 and P29(a). The learned counsel for the accused would submit that actually the case of the prosecution is that A2 had hired other accused persons by paying huge amount and if that be so, there was no necessity for A3 to pledge the necklace of his brother-in-law only to raise Rs. 2200/-. What was the amount, if any, given by A1 and what happened to the amount, if any given are not matters germane for consideration. What is relevant is whether A3 had pledged the gold necklace on 29.4.2002 and obtained Rs. 2200/-. This circumstance is used by the prosecution only to show that an attempt was made by A3 to abscond from that locality.
43. The prosecution would also rely upon Ext. P26, the seizure mahazar as per which M.O. 10 series gloves (four in number) and M.O. 11 series socks (8 nos.) were seized by P.W. 37 pursuant to the disclosure statement given by A3. According to P.W. 37, when A3 was questioned he gave the information/statement to the effect that the gloves and socks were wrapped in a newspaper and that packet was concealed by him in the second hall situated in the ground floor of a line building situated on the eastern side of the railway over bridge at Balaramapuram. The exact place where it was concealed by him was disclosed by A3 in his statement. As led by A3, P.W. 37 went to that place. The evidence would show that A3 himself showed M.O. 10 series and M.O. 11 series having been concealed at that place in the line building mentioned above and he himself took out and handed over the same to P.W. 37. Ext. P26 mahazar shows the description of the place where from those articles were seized and also the relevant portion of the disclosure statement given by the accused which was marked as Ext. P26(a). It is vehemently argued by the learned counsel for the accused that the seizure of M.O. 10 series and M.O. 11 series is only a figment of imagination of P.W. 37 to make it appear that no finger print happened to be seen at the scene of occurrence because they were wearing gloves and socks. It is further contended that if the assailants had taken precaution by wearing gloves and socks, there could be no reason why they did not choose to wear masks. True, it is a good arguable point, but as to how the accused persons must have thought at the relevant time and why they did not wear masks cannot be answered by the prosecution. Of course, the arguments advanced by the accused is that the assailants must have actually been wearing masks and so it was impossible for the witnesses to see the face to identify the real culprits and it was in order to overcome that difficulty, probably at the instance of P.W. 37, nothing was stated about the masks. Though the argument is attractive, we cannot accede to that submission. Even at the earliest point of time, the case spoken to by the witnesses and stated by P.W. 2 in Ext. P2 did not suggest that the assailants were wearing masks. If, in fact, the assailants were wearing masks, that would have been stated by P.Ws. 1, 3 and 4 at least at one point of time. P.Ws. 9, 10 and other witnesses also did not see the accused wearing masks. Therefore, the court cannot bank upon surmises, suppositions or conjectures to hold that the assailants might have worn masks also. The consistent case is that the accused were wearing gloves and socks which is corroborated by the seizure of M.O. 23 from the scene.
44. It is contended by the defence that if, as a matter of fact, the assailants had caused the telephone line disconnected, then certainly the assailants might have caused the electricity supply disconnected by removing the main fuse or otherwise. But the learned Public Prosecutor would submit that the prosecution cannot answer all such questions based on surmises and conjectures. That apart, it is stated that the accused also must have thought it necessary to have light in the scene room to attack the persons they wanted to annihilate. Whatever that be, those are not grounds which can be projected to impute incredibility to the witnesses.
45. It was also testified by P.W. 37 that when A3 was further questioned, he gave a statement to the effect that his pant and shirt were concealed by him in a particular place of his house and that if he was taken there, those articles would be taken out by him. Based on that statement and as led by A3, P.W. 37 went to the house of A3. The evidence would show that A3 took out his pant and shirt from out of the wooden box kept near the eastern wall of his bedroom. Ext. P31 is the mahazar prepared for the seizure of the same. M.O. 7 series are his pant and shirt mentioned above. The injured witnesses have stated that M.O. 7 series are the pant and shirt which were worn by A3 at the time of the incident.
46. There is also evidence to show that when A2 was questioned, a statement was given by him that T shirt and Kavimundu (saffron colour mundu) were concealed by him in an unoccupied house belonging to his mother''s sister Anantham which is situated near to his own house and that if taken to that place, he would point out the place where those articles were kept and would take out the same. Accordingly, as led by A2, P.W. 37 went to the house mentioned earlier. The aforesaid articles which were underneath the sand kept in a room in the partly constructed house were taken out by A2 and handed over the same. Ext. P32 is the mahazar prepared for seizure of M.O. VI series T-shirt and saffron colour mundu. When A5 was questioned, he also gave such a disclosure statement with regard to the concealment of his pant and shirt and based on that statement P.W. 37 went to that particular house as disclosed by A5 from where A5 took out the same and handed over the same to P.W. 37. Ext. P39 is the mahazar prepared for that purpose and Ext. P39(a) is the relevant portion of the disclosure statement admissible u/s 27 of the Evidence Act. That pant was identified as M.O. 9 series and shirt was identified as M.O. 34 when A4 was questioned he also confessed concealment of the shirt and pant worn by him at the relevant time. As led by A4, P.W. 37 went to the place as disclosed by A4 from where the shirt and pant which were concealed beneath the dry coconuts kept in sacks were taken out by A4. Ext. P40 is the mahazar as per which those pant and shirt identified as M.O. 8 series were seized. Ext. P40(a) is the relevant portion of the disclosure statement given by A4 and admissible u/s 27 of the Evidence Act.
47. When PW 1 was in the witness box a question was put to her that there was money kept in the house C.V. Bhavan and that as directed by her some persons had trespassed into the house to steal that money and as there was dispute with regard to sharing of the amount, the incident took place. That suggestion was denied by PW 1. The nature of suggestion put to PW 1 itself would unravel the fallacy in it. It is true that the amount obtained from the petrol pump was kept in that house as can be seen from the statement of PW 1 and PW 4. That amount was to be given to the uncle of PW 1. The evidence would show that the usual practice was to keep the amount in that house when the employees of the petrol pump used to handover the money during night and on the next day it would be received by the uncle of PW 1. The assailants who trespassed into that house did not go to that room situated downstairs. The amount was seen kept in tact. In other words, nobody did notice the money having been kept there. PW 1 knows where the money used to be kept. As such if the assailants had entered that house for taking that money there was no difficulty to take that amount. Though the investigating officer had taken that money since it was found that, that money had nothing to do with the incident in this case, it was subsequently returned. The argument that the incident must have taken place in relation to that money is totally unfounded. The evidence given by PW 4 would show that the amount so kept was about 3.5 lakhs which was the collection of the just two previous days. In other words, it was the collection of two days. It was stated by PW 4 that the amount which was stated to have been taken by the police was later given to Venugopal, the Proprietor of the petrol pump to whom it was to be paid. Similar is the version given by PW 3 also. In short, the money so kept in the room downstairs was not the aim or object of the assailants. The argument to the contrary advanced by the appellants is devoid of any merit.
48. Though the prosecution wanted to rely upon Ext. P27, Mahazar, as per which the wrist watch alleged to have been gifted by A1 to his nephew (PW 30) was seized, PW. 30 did not support the prosecution. Though PW 30 admitted that he had signed Ext. P27 as per which the wrist watch was seized there was no acceptable evidence to hold that MO 32, the wrist watch was of A2. The case of the prosecution is that MO-32 happened to fall down near the bath room on the back of A1''s house and from there it was taken by A1 and it was given to his nephew, PW--30.
There is no evidence to show that MO-32 belonged to A2 or that it was given by A1 to PW-30. MO-32 which was shown as item No. 48 in Ext. P22, the FSL report was found to contain blood. The origin of the same could not be ascertained. Therefore, that piece of evidence is not sufficient to hold that A1 had stolen or caused the disappearance of evidence against A2. Hence, the court below was perfectly justified in entering a finding that the offence u/s 201 IPC could not be proved against A1.
49. The learned Public Prosecutor would submit that since there was cogent and convincing evidence to hold that near the staircase, two persons were seen and that one among them could be proved by the prosecution as A5 there was no reason to hold otherwise as against A6. In other words, according to the prosecution the evidence given by PW 1, PW-3 and PW-4 was sufficient to hold that the other person found along with A5 was the 6th accused. The court below found that in the statement given by the witnesses to the police, there was no specific averment to the effect that it was A6 who was the person seen along with A5 near the staircase. No doubt, simply because the name of A6 was omitted to be stated to the police the evidence given by PW 1, PW 3 and PW 4 cannot be eschewed but that is one of the circumstances relied upon by the court to entertain a reasonable doubt as to the complicity of A6. So far as the complicity of A5 is concerned, there is another clinching evidence that the material objects i.e., blood stained swords, GI pipes and a chopper were discovered consequent to the disclosure statement given by A5. The confirmation of the statement given by him by the subsequent discovery did rightly persuade by the learned trial Judge to hold that the evidence regarding the complicity of A5 which is otherwise found credible was further fortified. Therefore, the argument advanced by the prosecution that since A5 was convicted, A6 also is to be convicted does not gain ground. The learned Public Prosecutor submits that since the evidence given by PW 9 and PW 10 is that A6 was also found along with A2 to A5 with a weapon in his hand there was no reason to give the benefit of reasonable doubt to A6. According to the learned Public Prosecutor since two persons were seen near the stair case, besides A2 to A4 who were inside the hall and since A5 was near the staircase, there can be no doubt that the other man who was seen by PW 9 and PW 10 along with A5 at that odd hours should be A6 and so the court could have relied upon the evidence given by PW 9 and PW 10 to corroborate the evidence of PW 1, PW 3 and PW 4. No doubt PW 1, PW 3 and PW 4 did identity A6 as the person who was seen standing near the staircase. That was corroborated by the evidence of PW 9 and PW 10. But the learned trial Judge who analyzed the evidence meticulously was not inspired by the evidence given by the prosecution to prove the complicity of A6. As said earlier another trial court would have taken a different view accepting the evidence given by PW 1, PW 3, PW 4, PW 9 and PW 10. But the main plank of the argument advanced on behalf of A6 is that since the trial court found the evidence as against A6 unconvincing, on a reappraisal of the evidence the appellate court cannot substitute its view, when it cannot be held that the appreciation of evidence made by the court below with regard to the involvement of A6 is wholly erroneous, unreasonable or perverse. Since the view taken by the learned trial Judge is also probable, the appellate court cannot substitute its view so as to alter the verdict of acquittal.
50. Though question was put to P.W. 37 with regard to the Krishi Bhavan Building as to whether it was facing towards east or as to the distance from the compound wall etc., no question was put by the defence challenging the exact place from where M.O. 1 to M.O. 5 were seized. The evidence given by P.W. 37 that those weapons were found out based on the information which distinctly related to the discovery of the fact, namely, the concealment of those weapons at that particular place could not be properly assailed. It is for A5 to explain how M.O. 1 to M.O. 5 happened to be concealed by him at the place as mentioned in Ext. P25 mahazar. The relevant portion of the confession statement given by A5 was separately marked as Ext. P25(a).
51. The learned Public Prosecutor would submit that A1 did not dispute Ext. P1 to P4 and also the fact that a decree was passed against his wife in the suit filed by PW 1 and that execution proceedings were initiated against CW 6 (wife of A1). It was contended by the defence that in fact a separate house was constructed by CW 5 (father of PW 1) for the residence of CW 6 and her husband and so it can be seen that CW 5 had no animosity towards his daughter (CW 5)or her husband (A1). If that be so, it is quite unlikely that A1 would have conspired with other accused that too, to finish off the members of C.V. Bhavan, it is argued by the defence. The learned Public Prosecutor submits that though there may be slight inconsistencies in the evidence given by PW 14 and PW 15, on a reading of their evidence in entirety court can get at the truth that A1 and A2 were seen together and that A1 had handed over the currency notes to A2. It is in that background the prosecution relies upon the fact that A1 was found constructing MO-18 ladder to be placed on the rear side of building to have easy access to the terrace portion of that building to facilitate the assailant''s entry into that building. The learned counsel for the accused would submit that the circumstances projected by the prosecution are not sufficient to hold that there was a criminal conspiracy as alleged by the prosecution, especially because the learned trial Judge was not impressed by the evidence given by PW 14 and PW 15 with regard to the alleged close contact and transaction prior to the incident as deposed to by those two witnesses.
52. Similar is the evidence given by PW 9. According to him he had seen A1 and A3 walking and laughing each other and thereafter A1 was seen giving a bundle of 100 rupee currency notes to A2. But when PW 9 was subjected to cross-examination, the answers given by him were not found to be satisfactory. The possibility of PW 9 seeing A1 giving the currency notes to A2 was found to be not credit worthy. Perhaps, another trial Judge may take a different view accepting the evidence of PW 9, PW 14 and PW 15. But the appreciation of evidence made by the learned trial Judge in this case is not so unreasonable to upset that finding by the appellate court. The power of the appellate court in the appeal filed against the acquittal is circumscribed. The verdict of acquittal passed in favour of the accused has bolstered-up the presumption of innocence. Even if it is assumed that the evidence given by PW 9, PW 14 and PW 15 is not wholly un-reliable, still their evidence is insufficient to hold that the prosecution has proved to the hilt the conspiracy alleged. It is true that if the prosecution could prove that there was criminal conspiracy between A1 and A2 for the purpose as aforesaid, then the fact that A3 to A6 did join the group at a later point of time or that they were not aware of the role to be played by each of them would not have come to their rescue. In other words all the members of the conspiracy need not be there at the very inception. But the evidence regarding conspiracy is found to be unconvincing.
53. Apart from the oral testimony of PW 1, PW 3 and PW 4 regarding the complicity and overt act of A2 to A4, the prosecution also relies upon the recovery of the clothes worn by those accused persons at the time of the incident which were stated to have been blood stained. Those witnesses have identified the white T-shirt and ''kavi mundu'' worn by A2 as MO 6 series. According to those witnesses MO 7 series, the brown pant and blue shirt were worn by A3 at the relevant time. The green shirt and blue jeans marked as MO 8 series were worn by A4, it was stated by the witnesses. It was further testified that MO-9, the black pant and MO-17, kakhj shirt were worn by A5. The contention that P.Ws. 1, 3 and 4 did not specifically state before the police as to the identity of A5 was not accepted by the learned Sessions Judge, since, clear and convincing evidence was given by the three witnesses that A5 was one among the two persons standing near the staircase. The further fact that the colour of the pant and shirt worn by A5 as spoken to by the witnesses did reconcile with MO. 9 and MO. 17 also lent assurance to the case of the prosecution regarding the actual involvement of A5 even though he was not inside the hall room where from Rajamma and three aforesaid witnesses were attacked with swords and G.I. Pipe.
54. The evidence would show that the clothes as aforesaid identified by P.Ws. 1, 3 and 4 were forwarded to the FSL for chemical examination. Item Nos. 60 and 61 shown in Ext. P22, the FSL report are the T-Shirt and Dhothi (kavi mundu) referred to above. It was certified in Ext. P22, the FSL report that item No. 60, the T-shirt of A2 mentioned therein contained human blood belonging to ''B'' group and item No. 61, Dhothi of A2 contained human blood belonging to either ''AB'' group or ''A'' group mixed. That would clinch the issue that A2 had caused injuries to at least 2 persons - person of ''B'' group blood and also ''AB'' group or ''A'' and ''B'' group as mentioned above.
55. Item Nos. 56 and 57 are the blue shirt and brown pant of A3. Ext. P22 shows that item No. 56 contained, blue shirt and brown pant of A3. Ext. P22 shows that item No. 56, blue shirt contained blood belonging to ''B'' group. Item No. 57 contained human blood belonging to ''A'' group. Similar findings made against A2 can be made against A3 also based upon the fact that the dress worn by A3 contained human blood of two groups mentioned above. Item Nos. 49 and 50 are the green shirt and blue jeans of A4 which contained human blood belonging to ''A'' group as certified in Ext. P22. It is vehemently argued by the learned counsel for A5 that no blood was detected on the black pant and khaki shirt which were worn by A5 and so it has to be found that A5 was not involved in the crime. But that argument is seen to be fallacious since it is the definite case of the prosecution that A5 and A6 were only standing near the staircase to guard the scene. Since according to the prosecution A5 did not inflict injuries on P.Ws. 1, 3, 4, CW 5 and the deceased Rajamma, there was no possibility of blood having been spattered on the clothes worn by him. Therefore, the absence of human blood on the pant and, shirt worn by A5 would only strengthen the case of the prosecution. If it was a ''manufactured evidence'' as contended by the defence, there would have been blood stains on the pant and shirt worn by A5 also. That would also probabilise the case of the prosecution that the pant and shirt worn by A5 were separately packed, sealed and labelled and forwarded in a tamper proof condition.
56. It has already been mentioned that the blood group of deceased, Rajamma was A +ve. There is evidence to show that MO-12 and MO-13 are the nightly and skirt worn by PW 1 at the time of incident and as such those clothes were blood stained. Those items are shown as item Nos. 43 and 44 in Ext. P22. MO-15 series are the black shirt and white brazier worn by PW 3. They were shown as item Nos. 45 and 46. Item No. 43, 44 and 46 contained human blood belonging'' to ''A'' group. The saree, skirt, blouse and brazier worn by PW 4 were identified by her as MO 14 series. They are shown in Ext. P22 as item Nos. 39 to 42. Those clothes also contained human blood belonging to ''A'' group as certified therein. The evidence is clear and convincing that the dress worn by PW 1, PW 3 and PW 4 were blood stained. Those blood stained clothes contained human blood of the groups mentioned earlier. The evidence given by PW-37 that MO 6, MO-7 and MO-8 series were discovered based on the disclosure statement separately given by A2 to A4 did infuse confidence in the mind of the trial court. On a further scrutiny by this court evidence given to that effect is found to be true and acceptable. Therefore, the evidence that could be obtained is that PW 1, PW 3 and PW 4 had sustained injuries and the blood stains on the clothes contained blood groups ''A'' and ''B''. The clothes worn by A2 to A4 at the relevant time also contained human blood of the group mentioned earlier. Therefore, the unimpeachable evidence as aforesaid would prove to the hilt the active role played by A2 to A4 by inflicting injuries on the persons mentioned above with sword and G.I. Pipes. Those weapons also contained stains of human blood as mentioned earlier. The fact that the witnesses to the mahazars for the seizure of the clothes effected pursuant to the information given by the accused did not fully support the prosecution cannot be a reason to eschew the credible evidence given by PW-37 on that point.
57. The learned Public Prosecutor would submit that the evidence given by the police officer cannot be approached with a penumbra of suspicion or with initial distrust. The presumption should be the other way around (see the decision of the Supreme Court in
58. PW 1 identified MO 1, the sword pointing its special feature as the sword used by the accused to inflict injuries on her. That sword was identified as MO 21. She could also identify MO 2 which was the sword used by another accused to inflict injuries on her sister. It was further identified by PW 1 that A2 was holding the G.I. Pipe which was identified by her as MO 3 with which he (A2) inflicted injuries on deceased Rajamma and others. It was also stated by her that A5 - who was standing near the staircase was holding a long knife which was identified as MO 4. MO 5 was another G.I. Pipe which according to PW 1 was held by A6 who was standing near the staircase. PW 1 has also identified the colour and nature of the dress worn by the accused at the relevant time and those shirts, pant and safron colour mundu etc. were identified by her. It was stated by her that A2 to A4 were wearing gloves on their hands. There is evidence to show that accused were wearing socks also.
59. As stated earlier the blood group of deceased Rajamma was certified in Ext. P16 as a positive. M.O. 1 to M.O. 5, the swords, two G.I. Pipe, one chopper and one knife which were wrapped in thorthu were also sent to the Director of FSL. M.O. 1 to M.O. 5 are shown as items 33 to 37. The thorthu mentioned above was shown as item no. 38. It was certified that items 33, 34, 35, and 37 also contained human blood belonging to ''A'' group. The fact that the thorthu and one weapon were found to contain human blood of ''A'' group would show that the weapon (G.I. Pipe) mentioned above was used for inflicting injuries on the head and other parts of deceased Rajamma. The other weapons must have been used for inflicting injuries on the other three injured or any of them.
60. It was stated that MO 7 series were the dress worn by A2 and MO 8 series were the dress worn by A4 at the relevant time. It was also stated that MO 9 is the black pant which was worn by A5. The gloves which were worn by the 3rd accused were later recovered by the police based on the disclosure statement. Those gloves were identified by PW 1 as MO-10 series four in numbers.
61. It was stated by PW 1 that all the accused who entered the scene room were wearing socks at that time and those socks 8 in Nos. were identified as MO 11 series. It is contended by the defence that admittedly when PW 1, PW 3 and PW 4 were questioned by the investigating officer on 30.04.2002, they did not state the name of the accused persons whereas Ext. P35 report showing the correct names and address of A1, A2 and A4 to A6 and the name of A3 was submitted to the court only on 07.05.2002. Ext. P37 which is another report showing the correct name and address of A3 was already submitted to the Court on 18.05.2002. So it is argued by the learned counsel for the accused that the investigating officer could not collect the names and address of the accused till the dates mentioned above because such particulars were not furnished by PW 1, PW 3 and PW 4 and by other witnesses. It is further submitted by the learned counsel for the accused that though the witnesses would claim to have stated to the police the names of the accused persons, no such statement was recorded by PW 37. It is hence argued that the inference to be drawn is that the names and addresses were not furnished at all by PW 1, PW 3 and PW 4. It was the duty of the investigating officer to have put such relevant questions to the witnesses to get such relevant answers elicited from such witnesses with regard to the names and address and other particulars of the accused. Witnesses cannot be expected to give such particulars unless their attention was drawn to that point by the investigating officer. Therefore, the fact that there was such omission or lapse on the part of the investigating officer cannot be blown-up out of proportion to contend that PW 1, PW 3 and PW 4 are unworthy of credence. It is true that when such statements were not seen recorded by the investigating officer, the court must look for other corroborating materials obtained in this case to lend assurance to the evidence given by PW 1, PW 3 and PW 4 as to the complicity of the accused. The learned Public Prosecutor Sri. S.U. Nazar would submit that there is evidence in abundance in this case to convince the court that the evidence given by PW 1, PW 3 and PW 4 regarding the complicity of the accused persons as mentioned above is true. The learned Public Prosecutor submits that the seizure of the incriminating articles effected by the police based on the disclosure statement given by the accused would strengthen the case of the prosecution to prove that the accused were members of the unlawful assembly which did the offending acts.
62. The prosecution would also rely upon the evidence given by PW 17 to prove that A2 had purchased 3 pairs of gloves from his shop. It was sworn by PW 17 that A2 had on 25.04.2002 purchased from his shop - Nagammal Store at Balaramapuram three pairs of gloves for a sum of Rs. 36/-. According to PW 17 he had previous acquaintance with A2. MO 10 series, the gloves were identified by PW 17. The learned counsel for the accused would submit that the evidence given by PW 17 cannot be believed at all since it is inconceivable how PW 17 could remember with exactitude that three pairs of gloves were purchased from his shop by A2 on a particular date when no bill or other entry was there in the account or bill books maintained by him. The learned Sessions Judge after careful scrutiny found that evidence acceptable. We have carefully scrutinised that evidence. We are in perfect agreement with the view taken by the trial court.
63. PW 37 has stated that A2 was arrested by him on 06.05.2002 at 07.45 PM. When A2 was questioned he gave statement to the effect that the weapons were entrusted by him to A5. It was further stated that based on the disclosure statement given by A2 the aforesaid A5 was questioned with regard to the same and then A5 gave a further disclosure statement:
I have wrapped/covered those weapons with a ''thorth'' and I have kept the same on the terrace/top of Krishi Bhavan Office, Anthiyur. If I am taken to that place I will show and take out the same.
64. It was argued by the learned Public Prosecutor that the information given by A5 that the weapons (MO 1 to MO 5) were handed over by him to A2 was a fact exclusively known to A2 till it was disclosed to PW 37. There was no case for the defence that prior to that A5 had furnished information regarding the concealment of those weapons on the terrace portion of Krishi Bhavan Office mentioned earlier. Therefore, it can be found that it was the information furnished by A2 which led to the discovery of the fact that the weapons were handed over by him to A5. It may be true that if the information so given by A2 had not been confirmed by the subsequent event of recovery of those weapons at the instance of A5 then it could have been at least argued by the defence that A2''s information alone is not sufficient to make it admissible under Sec. 27 of the Evidence Act. But here there is confirmation of that fact by the disclosure statement given by A5.
65. It is trite law that the ''fact discovered'' embraces the place from which the object is produced and the knowledge of the accused as to this and the information must relate to this fact directly. If the information leads to the discovery of the fact that the weapons were concealed at the place as spoken to by A5 and if those weapons were found at the place pointed out by A5 then the factum of concealment of those weapons at that particular place is an information which distinctly relates to the discovery of the fact; namely the concealment of those weapons at that place. A5 alone had the exclusive knowledge of the concealment of those weapons at the place mentioned above, for, the accused have no case that any other person had knowledge of the concealment of those weapons at that place or that PW 37 had come to know of the concealment prior to the disclosure statement given by A5. Since MO 1 to MO 5 were recovered as pointed out by A5 pursuant to the disclosure statement given by A5 there can be no scintilla of doubt that the said statement is perfectly admissible under Sec. 27 of the Evidence Act. It is in that context the admissibility of the statement given by A2 which led PW 37 the Investigating Officer to question A5 as to the correctness of the statement/information given by A2 and the consequent disclosure statement given by A5 pertaining to the concealment of those weapons has to be analysed. There is an unbreakable chain in the information furnished by A2 which led PW 37 to question A5 and to elicit the information from A5 which ultimately led to the discovery of the fact namely; the concealment of the weapons (MO 1 to MO 5) at the place spoken to by A5 as mentioned earlier. Therefore, the argument advanced on behalf of A2 that the statement alleged to have been given by him that he had entrusted the weapons to A5 cannot attract the admissibility under Sec. 27 of the Evidence Act cannot be accepted. In this connection it is profitable to refer to the decision of a Division Bench of this Court in Narayana Pillai Vasudevan Pillai and another v. State of Kerala, 1968 Crl. L.J. 1362. That was a case where the information given by the accused to the police was to the effect that he had thrown away the knife by the side of the tank, which caused the police to search the premises of the tank. During the course of that search the police got the further information that the knife had been picked up from that place by a girl and handed it over to PW 13 in that case and based on that information, the knife was recovered. It was held that a relevant fact had been discovered in consequence to the information obtained by the police from the accused. Some guarantee was afforded by the discovery of the said fact, that the information was true, from the evidence given by PW 7 the girl who picked up the knife from the place where the accused was said to have thrown it and by the discovery of the knife from PW 13 in that case to whom PW 7 had given it. It was the statement of, the accused that led the party to the scene and subsequent discoveries were directed in consequence of the information received from the accused. A similar case was dealt with by the Division Bench of the Madras High Court
66. In Raveendran & Ors. v. State 1989 (2) KU 534 it was held by a Division Bench of this Court:-
The information by an accused leading to discovery of a witness to whom he had given the stolen articles is a discovery of fact within the meaning of S. 27. If the information leading to the discovery of a fact is relating to the concealment of an incriminating object it can be by concealment in a place or by entrustment with a person. What makes the information leading to the discovery of the witness admissible is the discovery of the ''fact'', the connotation of which has been clearly laid down in Pulukuri Kottaya''s case. For the application of S. 27 there is practically no difference between the information that the article is kept concealed in a particular place and the information that the article is given to a particular person. The only difference is that the named person is substituted for the place. Discovery of fact need not be necessarily the material physical fact. ''Fact'' as defined in S. 3 of the Evidence Act includes not only the physical fact but also the psychological fact or mental condition of which any person is conscious. Discovery of the ''fact'' as a direct consequence of the information is made a relevant aspect under S. 27 because it gives assurance to the correctness of the information without further reference to the matter of the information. In appropriate cases authorship of the concealment could be inferred from the information and the surrounding circumstances even if not so specifically stated. Even if the object is not actually recovered but the information is found to be correct, it amounts to discovery of the ''fact'' provided it is the direct follow up of the information. The ''fact discovered'' takes in the place, person and knowledge.
Therefore, so far as the information given by A2 is concerned, the only difference is that the name of the person to whom he had handed over the weapons was substituted for the place. The fact that, that person is also an accused does not alter the position since in this case no information was given by A5 pertaining to the discovery of the fact prior to the information given by A2 to PW 37. In other words, consequent to the statement given by A2 and as led by the accused A5 had to be questioned with regard to the same. It was held by the Apex Court in
The basic idea embedded in Section 27 of the Evidence Act is the doctrine of confirmation by subsequent events. The doctrine is founded on the principle that if any fact is discovered in a search made on the strength of any information obtained from a prisoner, such a discovery is a guarantee that the information supplied by the prisoner is true. The information might be confessional or non-inculpatory in nature, but if it results in discovery of a fact it becomes a reliable information. Hence the legislature permitted such information to be used as evidence by restricting the admissible portion to the minimum. It is now well settled that recovery of an object is not discovery of a fact as envisaged in the section. The decision of the Privy Council in Pulukuri Kottaya v. Emperor is the most quoted authority for supporting the interpretation that the "fact discovered" envisaged in the section embraces the place from which the object was produced, the knowledge of the accused as to it, but the information given must relate distinctly to that effect.
No doubt, the information permitted to be admitted in evidence is confined to that portion of the information which "distinctly relates to the fact thereby discovered". But the information to get admissibility need not be so truncated as to make it insensible or incomprehensible. The extent of information admitted should be consistent with understandability. In this case, the fact discovered by PW 44 is that A-3 Mukinda Thorat had carried the dead body of Dipak to the spot on the motorcycle.
67. Following the earlier decisions it was held by the Ape Court in
At one time it was held that the expression "fact discovered" in the section is restricted to a physical or material fact which can be perceived by the senses, and that it does not include a mental fact, now it is fairly settled that the expression "fact discovered" includes not only the physical object produced, but also the place from which it is produced and the knowledge of the accused as to this, . . . . . . . . . . . . . . . . . . . . . . . . . . .
68. Following the dictum in
It follows that the information furnished by an accused person in the course of his confession statement that he had concealed the stolen articles in a theft case by handing it over to another person/persons (instead of concealing them at a place) is perfectly admissible under S. 27 of the Evidence Act, provided the nexus between the concealed articles and the offence can be established and provided that inspiring assurance is available for the truth of the information furnished . .
The information given by A2 and also the subsequent information given by A5 which led to the recovery of the weapons were so inextricably connected with each other as cause and effect that the recoveries were the direct consequence of the information given by the accused as mentioned above. The entrustment of the weapons to A5 was known only to A2 and the place where those weapons were concealed was known only to A5. These facts were deposed to by PW 37. After scanning the evidence, the learned Sessions Judge placed reliance on that evidence. To hold otherwise we find no materials.
69. The upshot of our discussion is that the accused nos. 2 to 5 and another person, whose identity could not be proved by the prosecution, in prosecution of the common object of causing death of Rajamma or any of the inmates of C.V. Bhavan, formed themselves into an unlawful assembly, committed trespass into that residential house-C.V. Bhavan, and inflicted injuries on PWs 1, 3, 4, and CW 5 (deceased Vijayakumar) and deceased Rajamma with swords, G.I. Pipes etc to which Rajamma succumbed.
70. The finding that A2 to A4 voluntarily caused hurt to PWs 1, 3, 4, and CW 5 and grievous hurt to PW 1 in the course of the same transaction is also found to be correct. Those accused persons trespassed into the residential house at about 2 AM with deadly weapons like swords, G.I. Pipes etc. The manner in which A2 to A4 attacked PWs 1, 3, 4 and deceased Rajamma with those deadly weapons like swords, G.I. Pipes would clearly manifest the intention of the accused persons that they did so in prosecution of the common object of the unlawful assembly which consisted of A2 to A5 and another person whose identity could not be proved to the hilt by the prosecution.
71. It was proved that there was an unlawful assembly. That the common object of that unlawful assembly was to commit the offence as mentioned above, could also be proved by the prosecution. It was in prosecution of the common object of that unlawful assembly, PWs 1, 3, 4, deceased Rajamma and CW 5 were attacked by the accused with swords, G.I. Pipes etc. The contention that A5 could not be treated as a member of the unlawful assembly since even according to the prosecution, he was only standing near the staircase and so, at any rate, he cannot be imputed with the knowledge of causing death of the aged woman cannot be countenanced since the very nature of the entry into the house at about 2 AM carrying deadly weapons like swords, G.I. Pipes etc itself would bespeak the common object of that unlawful assembly. There is evidence to show that A5 and another person who was standing near the staircase were also holding such deadly weapons. The evidence is to the effect that A5 and the other man were standing near the staircase to guard the scene, to prevent any other person coming or entering the scene room. Therefore, the plea that A5 cannot be mulcted with the criminal liability with the aid of Section 149 is found to be bereft of any merit.
72. The fact that it was A5 who had concealed all the blood stained weapons at the place as discussed earlier and it was pursuant to his disclosure statement that those blood stained deadly weapons were recovered is another circumstance to hold that he cannot feign ignorance of the common object of that unlawful assembly. It is trite law that even if the identity of one or more of the members of the unlawful assembly could not be properly established, the other members can be held guilty with the aid of Section 149 of IPC There is evidence to show that the said assembly consisted of five persons and that the common object of that unlawful assembly was to commit the offence as mentioned above. As the evidence on the point is clear, cogent and convincing the findings entered by the Court below, that the members of that unlawful assembly inflicted injuries with sword and G.I. Pipes, which resulted in the death of Rajamma and hence all of them are to be held guilty with the aid of Section 149 of IPC is well merited. Hence these points are answered accordingly.
73. Point nos: 5 and 6: While discussing the foregoing points it was found that the findings entered by the Court below, that there is no acceptable evidence to show that A1 had entered into a criminal conspiracy with A2 and other accused, is not liable to be reversed. Similarly, it was also found that there is no legal evidence to hold that A1 abetted A2 to A6 to commit the offence as mentioned above Hence these points are answered against the prosecution.
74. Point No: 7: In view of the findings on the foregoing points the conviction and sentence passed against A2 to A5 are only to be confirmed.
75. Point No: 8: In the light of the findings entered above the judgment of acquittal passed in favour of A1 and A6 is not liable to be set aside or reversed. In the result, all these Criminal Appeals are dismissed. The conviction and sentence passed against A2 to A5, who are appellants in Crl. A. Nos. 1384, 1400, 1913 of 2006 and 206 of 2010 are confirmed. The verdict of acquittal given by the Court below in favour of A1 and A6 is confirmed.
