MANILUTTAN ALIAS SAJAY Vs. STATE OF KERALA

JUDGEMENT

(1.) Appellant in Crl. A. No. 651 of 2009 is the first accused and appellants in Crl. A.No. 251 of 2009 are accused 2 to 6 in S.C. No. 256 of 2004 on the file of Additional Sessions Court, Fast Track-II, Thrissur. They faced trial for the offences under Section 143, 147, 148, 341 read with Section 149, 324 read with Section 149 and 302 read with Section 149 of Indian Penal Code. Learned Sessions Judge convicted the first accused for the offences under Section 143, 148, 341, 324 and 302 read with Section 149 of Indian Penal Code and accused 2, 3, 4 and 6 for the offences under Section 143, 147, 341 and 324 read with Section 149 of Indian Penal Code and 5th accused for the offences under Section 143, 148, 341 and 324 read with Section 149 of Indian Penal Code. First accused was sentenced to rigorous imprisonment for life and a fine of Rs. 25000/-, and in default, rigorous imprisonment for one year for the offence under Section 302 read with Section 149 of Indian Penal Code, rigorous imprisonment for one year for the offence under Section 148 of Indian Penal Code, rigorous imprisonment for six months for the offence under Section 143 of Indian Penal Code, rigorous imprisonment for one year and a fine of Rs. 2000/- and in default simple imprisonment for six months for the offence under Section 324 read with Section 149 and simple imprisonment for one month for the offence under Section 341. Fifth accused was sentenced to rigorous imprisonment for six months for the offence under Section 143, rigorous imprisonment for one year for the offence under Section 148, simple imprisonment for one month for the offence under Section 341 read with Section 149, rigorous imprisonment for one year and a fine of Rs. 2000/-and in default simple imprisonment for six months for the offence under Section 324 read with Section 149 of Indian Penal Code. The remaining accused were sentenced to rigorous imprisonment for six months for the offence under Section 143, rigorous imprisonment for six months for the offence under Section 147, simple imprisonment for one month for the offence under Section 341 read with Section 149, rigorous imprisonment for one year and a fine of Rs. 2000/- and in default, simple imprisonment for six months each for the offence under Section 324 read with Section 149. Appeals are filed challenging the conviction and sentence. Prosecution case is that on the Onam day of 2001, viz, 31.8.2001, PW1 Sampath, PW2 Raphi, PW5 Rineesh, deceased Baiju and one Jijesh had gone to Brahmakulam Theatre to see the movie "Parakkum Thalika" for the second show. They reached the Theatre by about 8.20 pm. They deputed Jijesh to stand in the queue to purchase tickets for them. PW1, PW2 and the deceased waited away from the ticket counter at the exit point for the return of Jijesh with the tickets. While so, the accused came there and attempted to enter the place where the ticket counter is situated, circumventing the queue. Deceased Baiju prevented them, objecting the attempt to purchase ticket other than by standing in the queue and thereby made their attempt futile. This infuriated the accused. Jijesh could not purchase the tickets as the ticket counter was closed before he could reach the ticket counter. By that time, the accused approached Baiju and others. Accused formed an unlawful assembly with the common object of attacking Baiju and others to teach them a lesson. Fifth accused with a reaper attacked Baiju and when he evaded it, it fell on the thigh of PW1. First accused took MO1 knife from his waist and inflicted injuries on the chest and neck of Baiju, who sustaining the injuries, proceeded towards the verandah with the bleeding injuries. First accused with MO1 knife then inflicted an injury on the left thigh of PW1. The other accused attacked PW2 and PW5 and caused hurt. First accused with MO1 knife inflicted injury on PW2 while he was wrongfully restrained by the second accused. The accused thereafter ran away from the spot. The injured Baiju and PW2 were taken to the Hospital. On examination, Baiju was reported dead. PW1 furnished Ext. P1 F.I. Statement which was recorded by PW15, the S.I. of Police, Anthikad Police Station on reaching the West Fort Hospital, on getting information that in an incident at Brahmakulam Theatre, the injured are admitted in the hospital. Under Ext. P1(a) FIR, PW15 registered crime No. 318 of 2001 under Sections 143, 147, 148, 324 and 302 read with Section 149 of Indian Penal Code. PW17 Circle Inspector took over the investigation. On his instructions, PW15 prepared Ext. P2 inquest report and seized Mos 9 to 12 found on the body and forwarded the body to Medical College Hospital, Thrissur for post mortem examination. PW11, the Associate Professor of Forensic Medicine, Thrissur conducted the autopsy and prepared Ext. P9 Post Mortem Certificate. PW17 prepared Ext. P3 scene mahazar and seized MO2 reaper from the scene of occurrence. Pws 1 and 2 the injured were examined by PW10 Dr. Ravindran on 31.8.2001 at 9.45 pm and prepared Ext. P7 and Ext. P8 wound certificates and admitted them in West Fort Hospital as inpatients. PW17 seized Mos 5 to 9 dresses worn by Pws 1 and 2 under Ext. P4 and P20 mahazars. The accused 1, 2, 3, 5 and 6 were arrested on 15.10.2001. On Ext. P23 information furnished by the first accused, under Ext. P5 recovery mahazar, MO1 knife was recovered in the presence of PW9, one of the attesting witnesses. The Mos. 3 and 4, dresses worn by him at the time of the incident were recovered under Ext. P6 recovery mahazar on Ext. P24 information furnished by him. Mos. 14 to 21, the dresses worn at the time of the incident by the other accused were recovered under Ext. P13 to P16 mahazars. The fourth accused was arrested by PW16, the Successor Circle Inspector who took over the investigation on 30.3.2003 after he surrendered before the Investigating Officer. PW17 submitted Ext. P26 forwarding note to send the Mos for chemical examination and obtained Ext. P19 report. After completing the investigation, PW16 laid the final report before Judicial First Class Magistrate -II, Thrissur, who committed the case to the Sessions Court. Learned Sessions Judge made over the case to Additional Sessions Court for trial. When the charge for the offence under Section 143, 147, 148, 341, 324 and 302 read with Section 149 of Indian Penal Code was framed and read over and explained to the accused, they pleaded not guilty. Prosecution examined 17 witnesses, marked 27 exhibits and identified 21 material objects. After closing the prosecution evidence, when the accused were questioned under Section 313 of Code of Criminal Procedure, they denied the incriminating evidence put to them and contended that they were not involved in the incident at all. It was contended that they had not gone to the Theatre on that day or inflicted injuries on the deceased or Pws 1 or 2 or 5 and they are innocent. Though learned Sessions Judge called upon the accused to enter on their defence and adduce evidence, they did not adduce any defence evidence. Learned Sessions Judge thereafter on the evidence, held that though all the accused are members of an unlawful assembly and the common object of the assembly initially was to teach the deceased and his friends a lesson and accused 2 to 6 were unaware of the knife, in the possession of the first accused or that he will inflict injury with the knife on Baiju and there was no common object for causing the death of Baiju. Learned Sessions Judge further found that first accused inflicted injuries on the chest and neck of Baiju and caused his death, proved by the evidence of PW11 and Ext. P9 Post Mortem Certificate. Learned Sessions Judge also found that those injuries are sufficient in the ordinary course of nature to cause death. As it was found that the common object was not to cause the murder of Baiju and the death of Baiju was caused by the injuries inflicted by the first accused, it was found that first accused is liable for the murder. Learned Sessions Judge accepted the evidence of Pws 1, 2 and 5 as to how they, along with the deceased, reached the scene of occurrence and how they were attacked by all the accused. Learned Sessions Judge farther found that after the first accused inflicted injuries with MO1 knife on the deceased, the other accused were aware that the first accused was armed with MO1 knife and it is likely that he would use the said knife against Pws 1 and 2 and as the first accused inflicted injuries, with MO1, on PW1 and PW2, accused 2 to 6 are also constructively liable for the acts of the first accused. Learned Sessions Judge therefore convicted the first accused alone for the offence under Section 302 read with Section 149 and the other accused for other offences as stated earlier. The conviction and sentence are challenged in these appeals.

(2.) Learned counsel appearing for the appellants and learned Public Prosecutor were heard. Learned counsel appearing for the appellants vehemently argued that there is unexplained delay in reaching Ext. P1(a) FIR before the learned Magistrate and the delay is fatal. It was argued that the delay was due to the deliberations to project a false story and therefore the very foundation of the prosecution case has to fall, Ext. P1 F.I. Statement of PW1 was recorded by PW15 on 31.8.2001 at about 10.30 pm. The incident occurred at about 9.15 pm on the same day. As the deceased sustained fatal injuries, he along with Pws 1 and 2 were taken to West Fort Hospital. Baiju succumbed to the injuries, by the time he reached the hospital. PW15 on getting the information about the incident reached the hospital and recorded Ext. P1 F.I. Statement of PW1 at 10.30 pm. In such circumstances, it cannot be said that there was any delay in recording the F.I. Statement. Based on Ext. P1 F.I. Statement, PW15 registered the crime, after preparing Ext. P1(a) FIR at 11.30 pm. As PW15 had recorded Ext. P1 F.I. Statement from the Hospital and had to return back to the Police Station to register the case, there was no delay in registration of the crime.

(3.) Ext. P1(a) shows that the FIR reached the learned Magistrate at his residence at 6.30 pm on 1.9.2001.31.8.2001 was a public holiday being Onam day. 1.9.2001 is also a public holiday being the day of 3rd Onam. In such circumstances, as the FIR was recorded by the learned Magistrate at his residence at 6.30 pm it cannot be said that there was delay in reaching the FIR before the Magistrate. In such circumstances, the argument based on the delay, either in preparing Ext. P1 or Ext. P1 (a) or reaching the F.I.R. before the learned Magistrate as canvassed by the learned counsel is without substance.