IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE C.S. SUDHA
FRIDAY, THE 1ST DAY OF JULY 2022 / 10TH ASHADHA, 1944
CRL.A NO. 391 OF 2007
AGAINST THE JUDGMENT DATED 26/2/2007 IN SC 336/2006 OF DISTRICT COURT &
SESSIONS COURT, ERNAKULAM
CP 2/2006 OF JUDICIAL MAGISTRATE OF FIRST CLASS -I,KOCHI
APPELLANT/ACCUSED:
KUNJUMON, S/O. PEROOR,
VAZHAKOOTTATHIL VEEDU, SOUTH CHELLANAM DESOM,
CHELLANAM VILLAGE.
BY ADVS.SRI.PEEYUS A.KOTTAM
SRI.ASHIK K.MOHAMMED ALI
RESPONDENT/COMPLAINANT:
STATE OF KERALA,
REPRESENTED BY THE CIRCLE INSPECTOR OF POLICE, MATTANCHERRY,
THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,
ERNAKULAM.
BY ADV.SRI.SANAL P.RAJ, PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING COME UP FOR FINAL HEARING ON 24/06/2022,
THE COURT ON 01.07.2022 DELIVERED THE FOLLOWING:
2
Crl.A.No.391 of 2007
C.S.SUDHA, J.
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Crl.A.No.391 of 2007
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Dated this the 1st day of July, 2022
JUDGMENT
This appeal under Section 374(2) Cr.P.C has been filed by the accused in S.C.No.336/2006 on the file of the Sessions Court, Ernakulam, challenging the conviction entered and sentence passed against him for the offence under Section 308 IPC.
2. The prosecution case as stated in the final report is as follows: - The accused due to his enmity towards the deceased, Sebastian @ Jibin Jacob, and with the intention of causing his death, on 15/09/2005 at 02:00 p.m., stabbed him on the left side of the head of the deceased with a knife causing a grievous injury. The incident is stated to have taken place on the south-eastern side of the gate of the residential building situated in Ward No.XVI of Chellanam Panchayat owned by one George Vazhakottathil. On 17/09/2005 at 10:50 p.m. Sebastian succumbed to the injuries. Hence the accused is alleged to have committed the offence punishable under Section 302 IPC. 3 Crl.A.No.391 of 2007
3. Ext.P1 FIS of PW1 was recorded on 15/09/2005 at 04:30 p.m at the Medical Trust Hospital, where the deceased was admitted and undergoing treatment, by PW7, the then Head Constable of Kannamaly Police Station. Ext.P6 FIR, i.e., Crime No.58/2005 was registered by PW8, the then Sub Inspector of Kannamaly Police Station, for the offence punishable under Section 324 IPC. The initial investigation was conducted by PW8. The investigation was later on taken over by PW11, the then Circle Inspector, Mattancherry, who completed the investigation and submitted the charge sheet before the court alleging the commission of the offence punishable under Section 302 IPC.
4. Pursuant to the appearance of the accused before the court below, on 27/10/2006 charge for the offence punishable under Section 302 IPC was framed. The accused pleaded not guilty. The prosecution examined PWs.1 to 11 and got marked Exts.P1 to P12 and M.O.1 to M.O.3 in support of their case. After closing the prosecution evidence, the accused was questioned under Section 313(1)(b) Cr.P.C. with regard to the incriminating circumstances appearing against him in the evidence of the prosecution. He denied those circumstances and maintained his innocence. He also submitted 4 Crl.A.No.391 of 2007 a statement in writing in which he contends that on the date of the incident he had questioned the deceased who along with PW2 Laiju, CW3 Martin, CW4 Jaison and CW5 Bineesh were sitting in the public road and drinking. This resulted in a quarrel between them. According to the accused, the said persons jointly attacked and assaulted him, causing injuries. As he sustained injuries, he was admitted in the General Hospital, Ernakulam and was under treatment. He was kept under surveillance by the police and thereafter arrested, though he pleaded innocence and informed them of the correct state of affairs. He had also given a statement to PW8, but his statement was not recorded. The police got him discharged from the hospital and recorded his arrest. He has not committed any offence as alleged by the prosecution.
5. As the court below did not find it a fit case to acquit the accused under Section 232 Cr.P.C, the accused was asked to enter on his defense. No oral evidence was adduced by the accused. Exts.D1 to D3 which are the arrest memo; remand report and remand extension report of the accused, have been marked.
6. After considering the oral and documentary evidence and after hearing both sides, the court below by the impugned judgment dated 5 Crl.A.No.391 of 2007 26/02/2007, convicted the accused and sentenced him to undergo rigorous imprisonment for a period of 6 years for the offence punishable under Section 308 Part 1 IPC.
7. The only point that arises for consideration in this appeal is whether the conviction entered and sentence passed against the accused by the court below are sustainable or not.
8. Heard Sri.Ashik K.Mohamed Ali, the learned counsel for the appellant and Sri.Sanal P.Raj, the learned Public Prosecutor for the respondent.
9. The first argument advanced by the learned defense counsel challenging the prosecution case, which according to him has been incorrectly/wrongly accepted by the court below is, regarding the inconsistency relating to the place of occurrence. According to the prosecution, the incident took place outside the compound wall and gate of one George Vazhakkottathil @ Benny, i.e., 5.20 meters to the south-east of the gate post of Benny and 82 centimeters to the south of the southern corner of the compound wall of the house of the said Benny. However, in the court charge, the place of occurrence is stated to be to the west of the house of 6 Crl.A.No.391 of 2007 Benny. PW3, an occurrence witness deposed that the incident took place about 7 ft. to the west of the gate of the aforesaid Benny. Therefore, referring to this, it was argued that the prosecution has no consistent or definite case relating to the place of occurrence, which has been pointed out as one reason to doubt the prosecution case.
10. It is true that there is a slight discrepancy in the place of occurrence as stated above. But the difference pointed out is about just 2 ft. or so. This is not very material as evidence has come on record that the incident had taken place outside the house of Benny. It is not very material whether it was 5.20 meters to the south-east or 7 ft. to the west of the gate of Benny. The fact remains that the incident took place outside the gate and compound wall of Benny. This is consistently spoken to by the witnesses also.
11. The fact that the deceased had sustained injuries on the date of the incident and that he had succumbed to the injuries is not seen disputed. The person(s) responsible and the manner of sustaining the injury are the factors disputed by the accused. PW6 is the doctor, who examined the deceased soon after the incident. He deposed that on 15/09/2005, he was 7 Crl.A.No.391 of 2007 working as Casualty Medical Officer, Medical Trust Hospital, Ernakulam. On the said day at 03:30 p.m., he had examined Sebastian and issued Ext.P5 wound certificate. The patient, according to him, was deeply unconscious and there was smell of alcohol. PW6 has noted three injuries in Ext.P5 wound certificate. When examined PW6 deposed that the injuries seen on the patient which he recorded in the wound certificate are: -
"1. 2x1x1cm incised wound on left temporal area.
2. 4cm long skin deep incised wound in front of left ear.
3. 2cm long skin deep incised wound over the left tragus."
He further deposed that C.T. scan of brain showed left temporal parietal thin acute sub-dural hematoma with mid line shift to right and subarachnoid hemorrhage. Repeat C.T. scan on 15/09/2005 showed left middle cerebral artery area infarct with left anterior temporal infra cranial hemorrhage with mid line shift to right. According to PW6, the aforesaid injuries could be caused by M.O.1 knife, which knife was marked through PW3, who is stated to be an occurrence witness.
12. PW9, Neuro Surgeon of the Medical Trust Hospital, Ernakulam, deposed that on 15/09/2005 at 4.00 p.m., he had examined the deceased who was admitted in the neuro surgical intensive care unit. At the time of 8 Crl.A.No.391 of 2007 admission, his condition was critical. After administering first-aid for the injuries seen on the left side of his head and face, he was placed on ventilator and medicines were started. PW9 also deposed that there were three wounds on the patient's body, which were - (i) 2 cm. long incised looking wound on the left temporal region, the deepest of the three wounds; (ii) 4 cm. long incised looking wound just below and in front of left ear and (iii) 2 cm. long incised looking immediately in front of left ear. According to PW9, the wounds could have been caused with a sharp-edged weapon like M.O.1.
13. PW10 is the Surgeon who conducted the post-mortem examination on the deceased. PW10 when examined, deposed that on 18.09.2005 he was working as Associate Professor, Forensic Medicine at Medical College, Kottayam. On that day between 02:10 and 03:10 p.m., he had conducted autopsy on the body of the deceased. PW10 deposed that he had noted the following antemortem injuries on the deceased -
"1. Sutured incised penetrating wound, 3 cm long. obliquely placed on the left side of the head. Its lower inner end was sharply cut which was 4 cm. outer to the outer end of eye brow. Other end showed splitting of tissues.
Cutting the left temporal bone of the skull the wound entered the cranial cavity and piercing the dura it was seen terminated in the brain matter. The wound was directed backwards, downwards and to the right for a total 9 Crl.A.No.391 of 2007 minimum depth of 6 cm. The subdural and subanachnoid spaces of the brain had diffuse haemorrhages. Sulci of brain narrowed and its gyri flattened.
2. Sutured incised wound 2 cm. long, on the left side of the face just in front of the tragus of ear.
3. Sutured incised wound 5 cm. long, vertically placed on the left side of the face. Its upper end was 2 cm. below the tragus of ear. The margins of the above injuries were slightly healing.
4. Healing superficial lacerated wound 1 x 0.3 cm. on the tip of right big toe."
As per Ext.P9 postmortem certificate, death was due to a penetrating injury to the head, i.e., injury no.1. PW10 also deposed that injury no.1 in the normal course is sufficient to cause death. He further deposed that injuries 1 to 3 could be caused with M.O.1 weapon. The aforesaid facts are not disputed. Therefore, the fact that it is a case of homicide, has been established.
14. Now coming to the question as to whether the prosecution has succeeded in establishing that it was the accused who had inflicted the fatal injury resulting in the death of the deceased. PW1, the uncle of the deceased, who gave Ext.P1 FIS, has admittedly not seen the incident. He has only hearsay knowledge. But an important aspect in his testimony is his reference to the presence of PW2 Laiju, CW3 Martin, CW4 Jaison and CW5 Bineesh at 10 Crl.A.No.391 of 2007 the hospital when Ext.P1 FIS was recorded by PW7. PW2 and CW3 to CW5, as per the final report, are stated to be occurrence witnesses. However, quite curiously, PW7 is seen to have taken the statement of PW1, who had admittedly not seen the incident, and not of the occurrence witnesses. It is true that anybody can set the law in motion by giving information to the police under Section 154 Cr.P.C. There is nothing wrong or illegal in it. However, in this case, when four of the alleged occurrence witnesses were very much present in the hospital when the statement of PW1 was taken, for reasons best known to the police, the statement of the said witnesses which would have been the best course to have been followed, was not taken and the statement of a hearsay witness alone was taken in the initial stage. This is one reason among the few reasons to doubt the prosecution case.
15. PW2, an occurrence witness when examined, has not fully supported the prosecution story. He deposed that on the date of the incident, there was an altercation/quarrel between the accused and the deceased relating to purchase of liquor. The accused abused the mother of the deceased, which resulted in a scuffle between them. Seeing this, he along with CW5 Bineesh pulled back the accused, took him inside the compound of 11 Crl.A.No.391 of 2007 the house of Benny and closed the gate. They stood away from the accused and at that time the deceased was also standing along with them. PW2 further deposed that he was standing facing towards the south. He turned back on hearing a commotion and then he saw the deceased lying on the ground with a stab injury. He along with CW4 and CW5 took the deceased to the hospital. When the deceased was lying injured, CW6 George tied the wound sustained by the deceased near his left ear with a towel (ത ര ). The deceased was first taken to Cortina Hospital. But the hospital authorities refused to take the deceased. They therefore took him to Gautham Hospital, where they were told that the injury sustained was serious and hence, he was taken to the Medical Trust Hospital, Ernakulam. The deceased was in the ICU and after two days he died. PW2 denied having seen the incident or having stated to the police that he had seen the accused stabbing the deceased with a knife. PW2 at the request of the prosecutor, was declared hostile and the prosecutor was permitted to put questions as put in the cross examination. PW2 when confronted with that part of his statement under Section 161 Cr.P.C. where he had stated to the police that he had seen the incident, denied the same. The contradiction was marked as Ext.P2 and the same was proved through PW8, 12 Crl.A.No.391 of 2007 the Investigating Officer. PW2 who was present along with the other witnesses, namely CW3 to CW6, never referred to the presence of PW3 at the place of occurrence, but specifically referred to the presence of CW3 to CW6 at the place of the incident. But none of the said witnesses have been examined for reasons best known to the prosecution.
16. PW3, the wife of CW6 deposed that she had seen the accused stabbing the deceased twice with a knife. According to her, on the said day by about 2 p.m. she heard a commotion and when they went to the scene, they saw the accused standing inside the gate of the house of Benny and the deceased outside the gate. The accused then opened the gate and stabbed the deceased twice on the left side of his head. The deceased fell down. At that time her husband, CW6 was behind her. She then called out loudly that he should be saved and taken to the hospital. Hearing this people gathered. She then took water from the house of Benny and gave it to CW6 her husband, who gave it to Jibin (the deceased) and washed his face. CW6 with a towel, which was on his shoulder, tied the wound sustained by the deceased. Then her husband along with CW5 Bineesh took him to the hospital followed by their friends.
13Crl.A.No.391 of 2007
17. It is true that it is the prerogative of the prosecution to decide which witnesses are to be examined and which witnesses are to be given up. But in this case doubts arise, because witnesses who were present all along with the deceased right from the beginning of the incident till he was taken to the hospital, are seen given up and not examined and the prosecution has examined PW3 alone, the wife of CW6. PW2 does not support the prosecution case. CW3 to CW5 are seen to have been present along with the deceased during their drinking spree. The prosecution has not examined them but examined only PW3 whose presence at the place of occurrence is doubtful. If PW3 could be examined, it is beyond one's comprehension as to why the prosecution gave up the examination of CW6, her husband, who is stated to have washed the wound of the deceased and tied the wound with his towel. This appears quite strange, for which no reasons have been furnished by the prosecution. This is yet another reason to doubt the prosecution story.
18. Further, M.O.1 is alleged to be the knife used by the accused for stabbing the deceased. According to PW8, on 16/09/2005, he prepared Ext.P8 search memo, forwarded the same to court, then proceeded to the house of the accused and recovered M.O.1 knife from the kitchen of the house. In Ext.P8 14 Crl.A.No.391 of 2007 he says that he had received reliable information that there is possibility of the knife being concealed in the house of the accused and therefore he had proceeded to the house of the accused and effected the seizure. Admittedly, this is not a Section 27 Evidence Act recovery effected by the prosecution. PW8 does not make it clear as to who gave him the information. He does not say whether anybody was present at the house of the accused or the person who had identified the house. No documents have been produced to show that the said house is in the possession or ownership of the accused. PW8 also does not say whether anybody was present in the house when he had conducted the search. He also does not say whether the house was locked or open and if it was locked, who had opened it. PW8 in the box does not refer to the presence of witnesses during search. Two witnesses are seen to have attested Ext.P7 search list. But these persons have not been made witnesses or examined before the court below. The search and seizure are alleged to have been conducted on 16/09/2005 at 2 p.m., that is even before the accused was arrested on the same day at 5:15 p.m. In Ext.P7 it is stated that the same has been forwarded to the JMFC concerned on 16/09/2005 at 5 p.m. A correction is seen in the time recorded. Initially it appears that the time recorded was 3 15 Crl.A.No.391 of 2007 p.m. which is seen corrected as 5 p.m. From the endorsement made on Ext.P7, it can be seen that it reached the court only on 01/10/2005.
19. PW8 further deposed that when he had seized M.O.1 knife from the house of the accused, he had put it in a cover but had not sealed it. PW8 does not speak about the place or the manner in which he had kept M.O.1 after the seizure. PW11 says that he had taken over the investigation on 18/09/2005 and then he had taken over M.O.1 to M.O.3 from PW8. M.O.2 is stated to be the towel with which CW6 had tied the wound of the deceased and M.O.3 is the blood-stained soil that is stated to have been seized by PW8, when he had prepared Ext.P3 scene mahazar. PW11 had taken over the investigation only on 18/09/2005 and it is only then he had taken over the material objects from PW8. If that be so, where was M.O.1 kept from 16/09/2005, the date of the alleged seizure, till 18/09/2005 when it is supposed to have been handed over to PW11. PW11 deposed that M.O.1 was in the safe custody of PW8. However, PW8 has no such case. He does not say that after the seizure, he had sealed and kept it safely and securely in his custody. Further, Ext.P10 property list shows that the material objects including M.O.1 was produced before the court only on 22/09/2005. No 16 Crl.A.No.391 of 2007 reasons have been given by the prosecution as to why there was delay in producing the same before the court. Therefore, the seizure of M.O.1 knife is highly doubtful.
20. Further, the charge sheet says that the accused stabbed the deceased once. PW3 has a case that the accused had stabbed the deceased twice. Wound certificate refers to three injuries, whereas the postmortem certificate refers to four injuries, that is, 3 on the head near the left ear and one on the right big toe. If the accused had stabbed the deceased only once, the question is who caused the other injuries? No answer is forthcoming. Further, the accused has a case that he was also injured in the incident. The prosecution admits that the accused had been admitted in the hospital. Ext.D2 remand report prepared by PW8 says that his enquiries revealed that the accused was admitted in the General Hospital, Ernakulam and therefore he placed the accused under surveillance. After the accused was discharged, he arrested the accused on 16/09/2005 at 5:15 p.m. Why was the accused hospitalized ? In Ext.D2 report and in the arrest memo, injuries are seen on the accused also. Ext.D1 arrest memo shows that the accused had an injury on his head above his ear and abrasions on his left elbow. The accused claims 17 Crl.A.No.391 of 2007 that the injury on his head was grievous. There is however no evidence to support the said claim. The prosecution does not offer any explanation as to why the accused was admitted in the hospital after the incident. Probably he might have also have been injured in the incident as claimed by him.
21. The reluctance of the prosecution to examine the friends/associates of the deceased who were very much present along with the deceased right from the afternoon of the fateful day till the injured was admitted in the hospital, throw serious doubts in the prosecution story.
22. Further Ext.P11 is the copy of the forwarding note as per which M.O.1 knife; M.O.2 towel (ത ര ) and M.O.3 blood-stained soil along with the blood-stained gauze were sent for examination. The last item had been handed over by PW10 to the Police. Ext.P12 chemical examination report shows that human blood had been detected in all these items. It is further stated that items 1, 3 and 4, i.e., M.Os.3, 1 and 2 respectively, were stained with B-Group blood. The blood group of the stains found on item no. (2), i.e., M.O.1 knife, could not be ascertained as the result of the test was inconclusive. Therefore, the question that arises is, was the blood seen in M.O.1 knife that of the deceased? No answer is furnished by the prosecution 18 Crl.A.No.391 of 2007 to this aspect also.
23. Further, PW3 who identified the weapon says a knife like M.O.1 had been used in the incident by the accused for stabbing the deceased. PW3 has no case that M.O.1 is the knife used by the accused. Therefore, there seems to be no proper identification of the knife also. The witnesses who could have properly identified the knife, have not been examined. The court below seems to have filled up the gaps in the prosecution story by concluding on the basis of conjunctures and surmises. The prosecution has failed to establish the case beyond reasonable doubt and hence I find that the accused is entitled to get the benefit of doubt.
In the result, the appeal is allowed and the impugned judgment is set aside and the appellant/accused is acquitted under Section 235(1) Cr.PC. His bail bond shall stand cancelled and he shall be set at liberty forthwith.
Sd/-
C.S. SUDHA JUDGE ami/