Kerala High Court
Antony @ Aadu Antony vs State Of Kerala By on 13 January, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.HARIPRASAD
&
THE HONOURABLE MRS. JUSTICE M.R.ANITHA
WEDNESDAY, THE 13TH DAY OF JANUARY 2021 / 23TH POUSHA, 1942
CRL.A.No.836 OF 2016
AGAINST THE ORDER/JUDGMENT IN SC 143/2016 DATED 27-07-2016 OF
SESSIONS COURT,KOLLAM
AGAINST THE ORDER/JUDGMENT IN CP 3/2016 OF JUDICIAL MAGISTRATE OF
FIRST CLASS , PARAVOOR
CRIME NO.796/2012 OF Parippally Police Station , Kollam
APPELLANT/S:
ANTONY @ AADU ANTONY
AGED 52 YEARS, S/O VARGHESE, NEDUVILA VADAKKATHIL,
KUMBALAM, PERYAM, KUNDARA , KOLLAM
BY ADV. SRI.B.N.HASKAR
RESPONDENT/COMPLAINANT:
STATE OF KERALA BY
ASSISTANT COMMISISONER OF POLICE, DISTRICT CRIME
BRANCH KOLLAM REP. BY THE PUBLIC PROSECUTOR, HIGH
COURT OF KERALA, ERNAKULAM
R1 BY DIRECTOR GENERAL OF PROSECUTION
BY SENIOR PUBLIC PROSECUTOR SRI. ALEX M. THOMBA
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 03-12-2020,
THE COURT ON 13-01-2021 DELIVERED THE FOLLOWING:
Crl.A.No.836 of 2016
2
JUDGMENT
Dated : Dated 13th January, 2021
M.R.Anitha, J.
1. This appeal has been filed by the accused in S.C.143/2016
on the file of Sessions Judge, Kollam.
2. The case against the appellant/accused has been charge-
sheeted by the Assistant Commissioner of Police, District
Crime Branch,Kollam City in Crime No.976/2012 of
Parippally police station under Sections 468, 471, 307, 302,
333, 224, 201 and 202 IPC.
3. Prosecution case can be summarised as follows:
Accused is a dossier criminal involved in burglaries and
his name has been included in the records of Kollam Rural
District. He was found to be parking a white Maruti Van
exhibiting fake registration KL/02 V 7369 (Original Reg.No.
being TN/02/ A/ 2734) on the northern side of the road
leading from Parippilly to Kulamada west to Jawahar
Junction on 25.06.2012 at about 00.35 hours by PW2 and
the deceased who were conducting night patrol duty in
KL/01/AO/ 2982 Police Jeep. Being suspicious of his
conduct accused was questioned and taken in the police
jeep for verification of identity from the police station. While
so deceased who was on wheels was trying to turn the jeep
Crl.A.No.836 of 2016
towards right. Then accused with the intention of escaping
from the lawful custody of PW2 at about 00.35 hours
stabbed at the chest and back of the deceased with the
intention of killing him and when PW2 intervened he was
stabbed 2-3 times with the same knife on his abdomen and
inflicted fatal injuries and thereby caused hindrance in
discharging the official duties of PW2 and deceased and
escaped in the Maruti van. The matter was informed over
wireless by PW2 to control room. Accused while reached at
Varkala - Kannamba seeing PW3 and CW4, abandoned the
Omni van and escaped. The driver of the police jeep Sri.
Maniyappan succumbed to the injuries at 01.10 hours on
26.06.2012 at Chathannoor Royal Hospital. PW2 somehow
survived due to timely medical attention at Medicity
Hospital. Thereby accused committed the offence
punishable u/s. 468, 471, 307, 302, 333, 224, 201 and 202
IPC.
4. PW1 who was the Civil Police Officer, Parippally Police
Station gave the FIS, Ext.P1 at 2 am on 26.6.2012 to PW27
who was the SHO of Parippally police station during that
time. Based on the same, he registered the FIR which is
marked as Ext.P27. PW28 who was the Circle Inspector,
Paravoor, during the relevant time conducted the major part
of the investigation of the case. He conducted the inquest
on the body of the deceased and Ext.P28 is the inquest
Crl.A.No.836 of 2016
report. He seized the uniform shirt, banyan belt and other
articles of the deceased by describing in the inquest. MO7
is the uniform shirt, pants , belt and name plate of the
deceased so seized. He prepared the scene mahazar on
the same day and it is marked as Ext.P29. Scientific
Assistant, PW18 inspected the spot and collected the blood
stains found on the road at the place of occurrence in a
cotton gauze and that was seized by PW28 be describing in
Ext.P29 scene mahazar. Ext.P30 is the seizure mahazar
prepared by him for seizing KL 01 A U 2982 Jeep from the
premises of Parippaly police station. The big shopper taken
from MO1 Maruthi Van kept in the jeep and those articles
were seized by him. MO2 is the big shopper, MO3 is the
iron bar, MO4 series are the three screw drivers , MO5 is
the cutting player, MO6 series are one pair of gloves so
seized by him found in the big shopper. MO11 is the torch.
MO12 is the rose towel and MO13 is the yellow towel seized
from the Jeep. MO9 is the police cap worn by PW2 and
MO8 is the shirt, pant, belt and name plate of PW2. He also
got examined Mo1 by the finger print expert,Pw19 and
photographs also have been taken. Ext.P31 is the mahazar
prepared by him for seizing MO1 Omni van. On examination
of the vehicle by the scientific Assistant, fake No.KL/02/V-
7369 was found affixed above original No.TN 02 A 2734 .
That number plate on the front side is marked as MO14 and
Crl.A.No.836 of 2016
on the rear side is marked as MO15. The RC book,
insurance paper, pollution paper, tax token of the Maruthi
van were seized and the RC book is marked as Ext.P5 and
insurance certificate as Ext.P32 series, pollution certificate
as Ext.P33 and tax token as Ext.P34. A pair of blood stained
foot wears found near the brake system and blood stained
hand kerchief found on the left side of the driver seat have
been seized and the foot wears were marked as MO17 and
hand kerchief as MO17. MO18 and 19 are towels found on
the rear side of the vehicle. The scientific Assistant collected
hairs found inside the Van.
5. On the same day he seized the clothes of Pw2 worn at the
time of the incident at Medi city hospital by describing in
Ext.P35 mahazar which were identified as MO8 series.
Ext.P36 is the body mahazar of PW2. He also made
requisition for getting the Maruthi van examined by physics
experts of FSL and that application is marked as Ext.P37.
Ext.P38 is the mahazar of Maruthi van prepared at
Parippaly police station. He questioned PW2 on the same
day at the hospital and as per which Sec.34 was deleted
and Ext.P39 report was filed for adding Sec.468 and 471.
As per the finger prints developed by the experts it was
revealed that the offender involved is the accused who is a
dossier criminal of Kundara police station and that report is
marked as Ext.P17. He is an inter state criminal involved in
Crl.A.No.836 of 2016
theft and house breaking and look out notice was issued for
publishing inside and outside State and special investigation
team was assigned that duty. Ext.P40 is the look out notice.
PW2 was shown the album containing the photos of
criminals in Kollam city on 28.6.2012 at Medic ity hospital
and on verifying the album he pointed the photo of the
accused. It was revealed that during that time accused had
been residing at Prasanth Nagar, Thiruvananthapuram.
Ext.P41 search memorandum was prepared and send to
CJM court, Thiruvananthapuram, for searching the house.
So many stolen articles including household articles and
electronic items were found and seized by describing in the
search list. It is marked as Ext.P42. In the work area of that
house the copy of the rent deed executed in the name of the
house owner on 16.1.12 was found and ID proof attached
with the same was also seized. Ext.P43 is the copy of that
rent deed. Ext.P3 is ID proof attached with that. In the
cupboard a pass book obtained in the name of Rajesh and
the receipts issued from HDFC bank in the name of
Susanna Rajesh were also seized by describing in the
mahazar. Ext.P44 is the gas connection pass book . It
contained the photograph of the accused. Ext.P45 is the
cash receipt issued in the name of Rajesh. Ext.P46 is the
receipt issued in the name of Susanna Rajesh. Issue
certificate for issuance of ID card in the name of Rajesh, TC
Crl.A.No.836 of 2016
6/270 CA issued from the revenue office kept in the
cupboard was seized. Ext.P47 is that certificate. He
prepared the inventory of the GDs and notes of the police
officials of Parippally police station and Ayiroor station and
inventory is marked as Ext.P48. Ext.P2 is the GD of
parippaly police station seized by describing in Ext.P48.
Ext.P49 is the inventory prepared for seizing the CD of
wireless log and voice log. Ext.P50 is the wireless log so
seized. Ext.P51 series are the CDs of voice logs.
Subsequently on 14.7.12 he went to Tamil nadu and seized
the delivery notes with respect to the omni van issued by
various owners at the time of trasfer of the vehicle. The
details of which would be discussed later. He questioned the
witnesses and conducted the investigation till 20.12.13.
6. PW29 his successor continued the investigation. on
13.10.15 he along with police party went to Palakkad on
information that accused had reached in a house at
Palakkad. On further information that the S.I Chittoor police
station (palakkad) had detained him as informed by the City
Police Commissioner at 1.30 pm he reached at Chittor and
arrested the accused at 2 pm. Ext.P26 is the report given by
Chittoor SI. Ext.P62 is the seizure mahazar with respect to
the articles viz, purse, bag etc., seized from the accused at
the time of taking him into custody. Details of the material
objects seized would be dealt with later.
Crl.A.No.836 of 2016
7. Further investigation was conducted by PW30. PW30 was
the City District Crime Branch Assistant Police
Commissioner. He took charge of the investigation as per
the order of the City Police Commissioner.
Ext.P67 is the report filed by him in pursuance of the
same.He questioned the accused and recorded the detailed
statement of Pw2 and completed the investigation as
against the accused and filed final report.
8. PWs 1 to 30 were examined and Exts.P1 to P72 were
marked, MOs 1 to 30 were identified and marked from the
side of the prosecution. Exts.D1 and D2 were marked from
the side of the defence. After closure of the evidence, on
hearing both sides court below found the appellant/accused
guilty under Sections 302, 307, 333, 468 and 471 IPC and
sentenced him to undergo imprisonment for life and to pay
fine of Rs.2 lakhs in default to undergo rigorous
imprisonment for one year under Section .302 IPC , rigorous
imprisonment for ten years and to pay a fine of Rs.2 lakhs,
in default to undergo rigorous imprisonment for one year
under Section 307 IPC, rigorous imprisonment for three
years and to pay a fine of Rs.25,000/- in default to undergo
rigorous imprisonment for three months under Section 333
IPC, rigorous imprisonment for two years and to pay a fine
fo Rs.10,000/- in default to undergo rigorous imprisonment
for one month under section 468IPC, rigorous imprisonment
Crl.A.No.836 of 2016
for two years and to pay a fine of Rs.10,000/- in default to
undergo rigorous imprisonment for one month under
Section 471 IPC.
9. Aggrieved by the conviction and sentence
appellant/accused came up in appeal for various grounds
stated in the memorandum of appeal.
10. Notice was issued to the respondent. Heard
Adv.Sri.B.N.Haskar, the learned counsel for the
appellant/accused and learned Senior Public Prosecutor
Sri.Alex.M.Thombra on behalf of the respondent. Lower
court records were called for and perused.
11. Learned counsel for the appellant/accused (hereinafter
be referred as the accused) assailed the conviction and
sentence on various heads which can be enumerated as
follows:
i) There is inordinate delay in registering the FIR
and forwarding the same to court.
ii) The place of occurrence was shifted by the
prosecution and there is no consistency with regard
to the place of occurrence.
iii) The evidence of PW2 is full of embellishment
and contradiction and hence ought not have been
accepted by the court below.
iv) More than one assailant is involved in the
incident and that has been suppressed by the
Crl.A.No.836 of 2016
prosecution.
v) Finger print evidence adduced by the
prosecution is a concocted one.
vi) The hair sample collected from MO1 is not
matching with that of the accused and no DNA test
has been conducted to conclude that the accused is
the offender.
vii) Accused has been arrested after three years
and no test identification parade has been
conducted and that has caused prejudice to the
accused.
viii) There is concealment of evidence by
prosecution from the registration of FIR till the Final
Report has been filed and there is no conclusive
proof regarding involvement of the accused in the
offence and to connect the accused with MO1.
12. The learned Senior Public Prosecutor on the other
hand would contend that there is direct evidence of injured
witness, PW2. PW3 chased MO1 with in no time and clearly
identified the accused. Crucial evidence of finger print
expert and other evidence ,both oral and documentary
proved the involvement of the accused and hence there is
no reason what so ever to make any interference at the
instance of this court.
Crl.A.No.836 of 2016
13. Before starting the discussion on rival contentions, we
may discuss the aspect of cause of death. The fact that the
death of the deceased was a homicide is not seen disputed.
Moreover, the evidence of PW13 the doctor who conducted
the autopsy on the body of the deceased and Ext.P10
postmortem certificate would leave no room for doubt to
conclude that the death was a homicide. The ante-mortem
injuries as per Ext.P10 reads as follows:
"1. Incised penetrating wound 5.6x2 cm, obliquely
placed on right side of front of chest, with its lower inner
sharply cut end 9.5 cm outer to mid line and 10.5 cm
below the collar bone through which lung tissue was
seen protruding out. Upper outer end was rounded. The
wound track seen directed upwards, backwards and to
the left for a total minimum depth of 4.5 cm. The 3 rd
intercostal space on the right side was pierced over an
area of 7x2 cm, cutting through the full thickness of front
surface of right lung (pale and in a collapsed state),
further piercing the pericardium over an area of 5x0.7 cm
and remaining in the cavity of the right ventricle through
an incised wound 2x0.2 cm on the front surface of heart
situated near the root of the pulmonary trunk. Chest
cavities contained 860g of clotted blood together with 150
ml of fluid blood.
2. Incised punctured wound 3.5x0.9x4.3 cm,
horizontally placed on back of right shoulder, its inner
rounded end being 6 cm outer to midline and 4 cm below
root of neck, outer end was sharply cut. The wound track
was directed upwards and to the left confined to the
muscular plane.
3. Incised wound 2.7x0.3x0.4 cm, obliquely placed on
the right side of forehead, overlying the eyebrow with its
lower outer end 5.5 cm outer to root of nose.
4. Incised wound 1x0.3x0.3cm, vertical involving
outer end of right lower eyelid.
Crl.A.No.836 of 2016
5. Incised wound 3x0.5 cm, bone deep obliquely
placed on front aspect of left ring finger, lower inner end
2 cm above tip of finger.
6. Incised wound 2x0.5 cm bone deep obliquely
placed on front surface of left middle finger, lower inner
end being 3 cm above tip of finger.
7. Incised wound 1x0.3x0.5 cm obliquely placed on
front surface of tip of left little finger.
Injury No.(5), (6) and (7) were in the same plane.
14. PW13-doctor stated that injury No.1 noted in Ext.P13
is sufficient in the ordinary course of nature to cause death.
He stated that injury No.1 & 2 can be caused with the same
weapon. According to him injury No.5, 6 & 7 are possible to
be sustained when victim attempted to grab the weapon.
He also opined that injuries noted in Ext.P10 are possible to
be caused while the victim is seated on the front seat and
the assailant seated on the back seat of the jeep on the
back of the victim.
15. Cross examination of PW13 was mainly on the aspect
of the position of the victim and assailant when the injuries
are caused. Suggestions were also put to show the
involvement of other persons and possibility of a scuffle
during the incident. Injury No.1, which according to the
doctor is a fatal one, would show that it is a deep
penetrating injury on the front of chest and its lower inner
sharpened cut end 9.5 cm outer to midline and 10.5 cm
below the collar bone through which lung tissue was seen
protruding. So on evaluating the evidence of PW13 and
Crl.A.No.836 of 2016
Ext.P10 postmortem certificate it can safely be concluded
that the death of the deceased was a homicide.
16. Point (i). PW1 who was the Civil Police Officer
attached to Parippally police station during the relevant time
has lodged FIS. According to him, he was doing watcher
duty on 25.6.2012 at Parippally police station and was
taking rest. At about 12.40 am, PW6 who was on GD charge
duty called him and informed that PW2 and the deceased
who had gone for night patrol duty were attacked by
somebody at Kulamada. Hence himself and PW5
Madhusoodhanan were directed to go and enquire and they
ran towards Parippally junction. PW5 told him that a
message was received from control room that people came
by Maruthivan stabbed and escaped. They went towards
Kulamada by an autorikshaw from Parippally junction. The
auto drivers informed them that a Maruthi van had gone in
high speed from east to west. After passing Neduvila
junction when they went forward, jeep of Parippaly police
station was found across the road facing south putting light.
PW2 was holding at his abdomen and found to be lying
behind the jeep on the road and deceased was found at the
driver seat stooping on the steering. When he tried to call
the deceased, PW2 asked them to take him immediately to
hospital. Since the condition of PW2 was serious he was
taken to Medicity hospital by an autorikshaw since he was
Crl.A.No.836 of 2016
unable to get into the jeep due to the injury sustained on the
abdomen. Thereafter, deceased was taken to Royal
hospital, Chathannor and after some time doctor declared
him dead.
17. PW5 is Madhusoodhanan who was doing watcher duty
on that day at Parippaly station accompanied PW1 and
deposed in corroboration with him.
18. PW6 was the GD charge on 25.6.2011 at Parippally
police station. According to him, on 26.6.2012, at 12.40 am,
a wireless message of PW2 was received informing that a
thief stabbed them and escaped and immediately they were
requested to come to Jawahar junction. He in turn informed
PW1 and 5 and send them and he took charge of the
watcher duty and intimated the fact to the higher officials
through phone. He recorded the same in the GD. Upto 2.00
am he was on GD charge. He produced Ext.P2 which is the
GD kept in the station from 21.6.2012 onwards. The entry
from 00.00 of 26.6.2012 is of him and it is marked as Ext.P2
(a). He also stated that the fact regarding the discovery of
Maruthi van by Ayiroor police has been recorded in the GD.
On perusing Ext.P2 (a) it is seen that the arrival of PW1 and
5 after taking the deceased and PW2 to hospital and their
return to the station has been recorded there. The FIS given
by PW1 and registration of FIR No.797/12 under Secs 302,
307, 333 r/w 34 IPC is also recorded therein.
Crl.A.No.836 of 2016
19. PW27 was the SHO, Parippally police station on
26.6.2012 who recorded Ext.P1 FIS of PW1 and registered
Ext.P27 FIR. Ext.P27 would show that it has been reached
at court at 4.00 pm on 26.6.2012.
20. According to the learned counsel for the accused, in
spite of receiving the intimation regarding the commission of
cognizable offence, PW1 did not register the FIR. He would
also contend that PW26 who was the Grade Sub Inspector
attached to Paravur police station during the relevant time
was informed about the factum of death. But FIR was not
registered. So according to him, even though PW1 was
intimated about the incident at about 12.40 am and PW26
was informed about the incident at about 1.15 am they did
not register the FIR and Ext.P27 would show that it has
been registered only at 2.30 am. There is inordinate delay in
registration of the FIR and that has caused prejudice to the
accused. It is also his contention that FIR has been received
before the court only at 4.30 pm. Since police officers are
the victims and the witnesses are also police officers, the
delay of about two hours in registering the FIR, according to
him, caused serious prejudice to the accused.
21. It is to be noted that the evidence of PW1 is that he
was informed about a wireless message received by PW6
from PW2 about the stab by a thief and to reach the spot.
There is nothing in evidence to show that they have got any
Crl.A.No.836 of 2016
details regarding the incident or about the assailants. More
over, the wireless message received was also that they
have been stabbed and to reach the spot immediately. So
naturally being a colleague, the first preference would be to
save the lives of the officials who have sustained injury and
take them to the hospital. Nobody can expect that at that
time, they will register the FIR before going to the spot and
collecting the details of the incident.
22. With regard to the delay in reaching the FIR,
admittedly it has been reached at the court at 4.30 pm on
the same day. The distance from the police station to the
court is not in evidence. Moreover during cross-
examination, PW27 stated that after registration of the FIR
at about 2.30 - 3.00 am he went to the hospital to visit the
deceased and also to the hospital where PW2 is undergoing
treatment and thereafter he was in search of the accused as
directed by the Circle Inspector. He categorically explained
during cross-examination why he has not registered the FIR
immediately on receiving the information at 12.45 am.
According to him since the person who witnessed the
incident and the person who had taken them to hospital
were present , there was no necessity to register suo motu
FIR. It has to be remembered that this is a case in which a
police officer was stabbed to death during the course of
discharge of his duty and another police official PW2
Crl.A.No.836 of 2016
sustained grievous injuries at the hands of the thief and
Ext.P2(a) would show that on timely action of the police
force together the Maruthi van, in which the accused was
escaping after inflicting the cut injuries upon the deceased
and PW2 had been, chased at about 1.00 am immediately.
So the registration of FIR at 2.30 am cannot at any moment
be taken as a delayed one. So also, the fact that FIR had
been reached at court at 4.30 pm also cannot be taken as
an inordinate delay in the facts and circumstances of this
case.
23. It is relevant in this context to quote Kanhaiya lal v.
State of Rajasthan ( 2013 5 SCC 655) and Kilakkatha
parambath Sasi v. State of Kerala AIR 2011 SC 1064)
wherein it has been held that mere delay in lodging the
FIR cannot be regarded by itself as fatal to the
prosecution. However it is obligatory on the part of the
court to take notice of the delay and examine , in the
backdrop of the case whether any acceptable
explanation has been offered, by the prosecution and if
such an explanation has been offered whether the same
deserves acceptance being found to be satisfactory.
Thus whether the delay creates a dent in the
prosecution story and usures in suspicion has to be
gathered by scrutinizing the explanation offered for the
Crl.A.No.836 of 2016
delay in the light of the totality of the facts and
circumstances. Greater degree of care and caution is
required on the part of the court to appreciate the
evidence to satisfy itself relating to the explanation of
the factum of delay.
24. It has been held in Amar singh v. Balwinder singh
AIR 2003 Sc 1164) that there is no hard and fast rule
that any delay in lodging the FIR would automatically
render the persecution case doubtful. It necessarily
depends upon facts and circumstances of each case. In
this case as stated above it has come out in evidence
that driver of the police jeep died out of the attack of the
accused and PW2 the Grade Sub Inspector who led the
patrol duty also sustained grievous injuries due to the
attack of the accused. On getting wireless message
PW1 was deputed by PW6 to the spot and deceased
and PW2 were taken to the hospital and thereafter on
reaching the station that PW1 gave the FIS at 2.00 am.
So in the peculiar facts and circumstances of this case it
cannot be said that the delay caused in registering the
FIR within 2½ hours is inordinate or unexplained.
25. In State v. Marllikarjuna @ Mallu (2007 Crl.LJ 910
(AP)) ; it has been held that delay in reaching FIR is not
Crl.A.No.836 of 2016
fatal unless it is shown that there was false implication
of accused . Here actually at the time of registering the
FIR the name of the accused was not stated. Only after
getting the report of the finger print expert PW19 and on
questioning PW2 and getting the accused identified
through his photographs in the album kept in the station
that a report naming the accused has been filed before
the court. So at any rate, the contention to the contra
advanced by the learned counsel for the accused has no
merit at all.
26. Point (ii) - The learned counsel contents about the
shifting of place of occurrence. According to him,
prosecution did not have any consistent case with regard to
the place of occurrence and the evidence of witnesses
PW1, 2 and 5 and the documents from the side of the
prosecution do not go in corroboration.
27. According to PW1, PW6 informed him and PW5 that
PW2 and the deceased have been at Kulamada area and
accordingly he along with PW5 went from Parippally
junction in an autorikshaw towards Kulamada area. PW2,
the injured, deposed that while they had been going to
Kulamada area and reached near Jawahar junction, they
saw a white Maruthi van parked on the northern side of the
road. In Ext.P29 the scene mahazar, the place of
Crl.A.No.836 of 2016
occurrence is stated as place about 100 metres west to
Jawahar junction in Parippally Kulamada road. During
cross-examination when PW2 was questioned about the
place of occurrence, he categorically stated that while going
from Parippally station to Kulamada they saw the Omini van
before reaching Jawahar junction. The scene plan Ext.P24,
prepared by PW23, the Village officer, also would go to
show that the place of incident is on the side of the road
leading from Parippally to Kulamada before reaching
Jawahar junction. PW23 was the Village officer, Parippilly.
He deposed that at the request of the investigating officer in
the above crime he inspected the place of occurrence and
as per the scene mahazar a plan was prepared and it is
marked as Ext.P24. Though it was prepared in the year
2015 he categorically stated that it was prepared on the
basis of the scene mahazar, inspecting the spot. In Ext.P13
,wound certificate of the deceased while stating the alleged
cause, it has been stated that patrolling duty was at
Kulamada, Parippally. In Ext.P14 the wound certificate of
PW2 the alleged cause is stated as assault by unknown
person while on patrol duty at Kulamada, Parippally at 00.05
am on 26.6.2012. In this context it is relevant to note that
PW2 during cross-examination, categorically stated that he
was not fully conscious while they reached the hospital.
The doctor asked something to him and he stated
Crl.A.No.836 of 2016
something to the doctor and thereafter he was taken to
Medicity hospital and underwent a major surgery there. So
the evidence of PW2 itself would go to show that he was not
fully conscious while reaching at the hospital.
28. So also, in Ext.P50, the wireless log, what is stated is
that on 25.6.2012 at about 00.41 hours, the message shown
is "stabbed while coming in a Maruthi van (not clear)" and it
is further stated "to come to Parippally". Again it is
recorded at 00.42 that "not clear, officer has been stabbed,
come to Parippaly area". At 00.44 it is recorded as "myself
has been stabbed. Somebody should inform, it is Kulamada
area". At 00.45 hours it is recorded that while the persons
came by Omni van were caught hold of, he has been
stabbed.The wireless log itself would show that the
informations were not clear
29. PW15 the R.M.O attached to Chathannoor Royal
Hospital who examined PW2 stated during cross
examination that it has been stated in Ext.P13 and 14 that
the incident occurred at Kulamada. But the alleged cause
recorded in Ext.P13 and P14 is that while doing patrolling
duty at Kulamada, Parippally. But he do not remember as to
whether PW2 the injured had stated the alleged cause to
him. He further stated that usually he will record the matters
stated by the patient. PW2 himself would state that he was
not fully conscious when he reached the hospital and this
Crl.A.No.836 of 2016
aspect is not challenged during cross-examination. More
over, on perusing Exts.P13 and P14 what could be gathered
is that the reference was actually with regard to the road
through which the patrolling duty was conducted.
30. The learned counsel also drew our attention to
Ext.P2(a), the GD of Parippally police station dated
26.6.2012 (mistakenly stated as 26.5.2012) wherein there is
an entry at 00.40 hours that from Parippaly mobile wireless
set, a message was received that at Kulamada they were
stabbed and escaped by Maruthi van and when that
message was got, there was a direction from control room
to Parippaly wireless that they have to go immediately to the
place of incident and accordingly, he had sent PW1 and 5.
So that seems to be a message from the wireless set given
by PW2 after the deceased and himself have been stabbed
by the assailant. So the statement that it was at Kulamada
area cannot be said as inconsistent since they were going
on patrol duty from Parippaly to Kulamada and before
reaching Kulamada and Jawahar junction, the incident
occurred. PW2 during cross-examination, as pointed out
earlier, categorically stated that Omni van was found while
they are going from Parippaly station to Kulamada before
reaching Jawahar junction.
31. PW4 who is residing near the Jawahar junction was
examined from the side of the prosecution. He stated that
Crl.A.No.836 of 2016
on that day, he heard a cry that a thief had stabbed and he
put on the light and saw a police jeep in front of his gate
through the window . A person in police uniform was crying
holding his abdomen. He went out of the house and the
man in uniform asked him to take to hospital and when he
reached near the gate, in an autorikshaw two police men
came. Though he was cross-examined at length it could be
seen that nothing could be brought out to discredit his
testimony. He asserted during cross-examination that he
heard a cry that thief had stabbed them and escaped. He
also stated during cross-examination that even though he
was about to help the injured, police came before that. He
stated that Kulamada is about one kilometre away towards
east from Jawahar junction.
32. The evidence of PW23 the village officer Parippaly
who prepared Ext.P24 scene plan clearly noted the house
of PW4 just on the southern side of the place of
occurrence. That would strengthen the evidence of PW4
that on hearing the cry of PW2 , he reached the spot and at
that time two policemen came by autorikshaw and they have
taken him to the hospital. His evidence also would make it
clear that Kulamada, Jawahar junction and place of
occurrence etc., are not distant places. In other words,
Kulamada area is not far away from the place of incident or
Jawahar junction. So the description given by PW2 through
Crl.A.No.836 of 2016
wireless that the incident occurred at Kulamada cannot be
taken as a material inconsistency with regard to the place of
occurrence as contended by the learned counsel for the
accused. So there is no inconsistency with regard to the
place of occurrence as alleged by the accused.
33. Point (iii) - The learned counsel would contend that the
evidence of PW2 the victim is full of contradictions and
embellishments and is not tallying with the medical evidence
and hence the evidence of PW2 is not reliable. PW2 is the
main witness examined by the prosecution to prove the
occurrence. He is an injured witness also. The fact that
PW2 and deceased were on patrol duty on 25.06.2012
during the relevant time is proved through the evidence of
PWs 1, 2 5 and 6. Exts.P2 and P2(a) the G.D. Entries also
would substantiate that fact. PW2 during evidence stated
that after taking 2 - 3 persons in a jeep from Kulamada area
to police station, after ten minutes they went to Kulamada
area. While reached near Jawahar junction on the northern
side of the road a white Omni van was found to be parked.
Since that vehicle was not there while they went before, he
stopped the jeep in front of the van and along with the
deceased they went near the driver seat of the van. Then a
person was found to be stooping in the driver seat and
when he called him he lowered the glass and put on the
light on his direction and found the accused in the driver
Crl.A.No.836 of 2016
seat. On questioning him he stated that the vehicle was
parked since he felt sleepy and his avocation was stated as
catering. Then he opened the rear door of the van and there
was no seat on the back. A big-shopper was found on the
floor and on examining the same an iron bar, three
screwdrivers, cutting player, gloves etc were found. When
asked about it, accused told that he has got the work of
panthal also. When the documents of the vehicle and his
licence were asked, he told that those were not with him.
Since the tools and other things were found in the van they
have got suspicion that he is a thief and decided to take him
to police station for release after verification and hence the
big-shopper was taken to the jeep and after closing the door
of the van the deceased put the big-shopper near the front
side seat and the key of the van was put above the
dashboard of the police jeep. The accused was made to be
seated on the rear side of the police jeep behind the driver
seat and PW2 sat just near him and directed the deceased
to take the vehicle and he turned to close the rear door of
the jeep. Then accused with his left hand caught hold
through the neck of the deceased and appeared to have
been hitting at his chest. PW2 suddenly took away his left
hand. Then a knife was found on the right hand of the
accused and deceased fell down to the seat with a moan .
Thereafter accused stabbed thrice on the left side of the
Crl.A.No.836 of 2016
abdomen of him. When accused found that he is almost
collapsed, he jumped from the jeep and took the key of the
van from the jeep and escaped by driving the van towards
west. Suddenly he got out of the jeep and gave wireless
message to the control room and cried aloud seeking for
help and 1 - 2 neighbouring people came out. At the same
time PW1 and 5 came in an autorickshaw and he directed
them to take Maniyan Pillai immediately to the hospital. Due
to the injury sustained to the abdomen he cannot get into
the jeep and in an autorickshaw of Paripally stand he went
to Royal hospital. On the way he was shifted to a police
jeep. Thereafter he was taken to Medicity hospital and he
underwent a major operation and admitted there for ten
days. While undergoing treatment an album was shown
containing the photographs of criminals and he identified
the accused as the assailant. Subsequently he saw the
accused while brought to Paravoor police station after
arrest. The motive behind the incident according to him is
that being a dossier criminal he might have stabbed them to
escape from the custody. His blood group is also stated as
A+ve. The identification of the accused according to him
was with the torch light and the street light. He identified
MO1 as the Maruti van. MO3 - 6 series were identified by
him as the articles found in the big-shopper MO2 . The
uniform of the deceased is identified as MO7 and that of
Crl.A.No.836 of 2016
him as MO8. MO9 his cap also was identified by him.
34. According to the learned counsel, PW2 has no
previous acquaintance with the accused and there was no
occasion for him to identify the accused since there was no
light and the evidence of PW2 that they came out of the
jeep and went near the van and asked the accused to lower
the glass and put on the light and then accused was found
seated in the driver seat and stooped down etc are not
stated by him to the police at the time of questioning. So all
those are materials omissions. But it is to be noted that
according to him after the attack upon the deceased when
he intervened the accused stabbed him thrice at his
abdomen. The corresponding injuries are noted in Ext.P14
and the evidence of PW15 proved the injuries sustained by
him. The injuries sustained by PW2 noted in Ext.P14 are :
"1. Stab injury 6x0.5 cm over Hypogastric above
Umbllicas
2. Lacerated wound left sub coastal region 6cm x
0.5 cm
3. Lacerated wound 6cm x 0.5 cm with vessels
exposed over left sub coastal region above
midaxillary live.
4. Lacerated wound 1cm over left forearm.
5. Suspected fracture left Rib.
6. X-ray showed fracture left lower Rib."
35. PW14 was the HOD Surgical Department, Travancore
Crl.A.No.836 of 2016
Medical College Hospital, Kollam who issued Ext.P12
discharge certificate pertaining to PW2. PW14 deposed that
the injuries sustained by the victim were severe and patient
was saved only due to timely medical attention. Ext.P12
discharge summary also would go to show that laprotomy
was done. The diagnosis is also noted as penetrative injury
to abdomen. The date of admission is 26.06.2012 and date
of discharge is 05.07.2012. the operative findings is stated
as stab injuries over left abdomen wall (3). During cross
examination it was brought out that after a serious
laptrotemy the patient in ICU for 3- 4 days and for three
days sedative medicine would be provided to such patients.
But it was clarified during re examination that there would
not be any difficulty in talking while taking sedatives and
there would not be any difficulty to recollect matters also. So
the fact that PW2 sustained injury along with the deceased
in this incident is proved through the testimony of PW2 and
the supporting medical evidence adduced through PW14
and 15 and Exts.P12 and P14. The fact that PW2 sustained
injury would prove that PW2 was very much present at the
spot while the deceased sustained injury. His evidence that
the deceased was on the driver seat and was about to start
the vehicle for going to police station and at the time the
accused was being seated on the back seat is also spoken
to by him.
Crl.A.No.836 of 2016
36. During examination of PW13-the doctor who
conducted autopsy on the body of the deceased, attempts
were made to establish that the assailant and the victim
were face to face while sustaining injury No.1. Then his
answer was that it is very unlikely. Another question was put
that if a victim is sitting in the front seat and the assailant is
sitting on the back of the jeep if an injury noted in No.1 of
Ext.P10 to be caused the hand has to be aired like a circle,
then his specific answer was that the assailant has to reach
out and it means he has changed the position. He also
stated that it could not be caused in the sitting position of
the assailant. Again a question was put to him that by sitting
on the back side of the jeep and holding around the neck by
the left hand and if a stab is made from the back it would
touch on the right chest or right abdomen then his answer
was that there is possibility for the same. But it is to be
noted that injury No.1 is a penetrative wound on right side of
front of chest . So if the assailant is sitting on the back as
has been pointed out by the doctor this injury is quite
possible to be inflicted while the victim sitting on the front
side of the seat. The other injuries, injuries No.3 and 4 are
also could be caused by sitting in the back by stretching out
the hands towards front seat where the driver is seated.
PW13 categorically explained that injury No.5, 6 and 7 can
be caused while the victim attempted to grab the weapon. It
Crl.A.No.836 of 2016
is true that PW2 during evidence stated that while he was
turning towards back to close the rear door that he heard a
sound like hitting upon the deceased and he came to know
that accused was stabbing the deceased only when he saw
the knife on his right hand and when he was also stabbed
with the same knife. So the act of the accused in attacking
the deceased appear to be sudden when PW2 turned back
to close the rear door. So all the injuries as has been stated
by PW13 the doctor are possible to be caused while the
victim sitting in the driver seat and the accused raising from
the rear seat and catching him from behind by his left hand
through the shoulders and stab with right hand holding the
knife.
37. During cross examination a question was put to the
doctor that the width of injury No.1 is 5.6,7 and 2 cm at
different portions ,then he categorically stated that that was
on account of relative motion of the victim and the assailant.
The victim would have taken every effort to resist the act
and that might have resulted in the motion of the victim as
pointed out by the doctor. So also it was put to the doctor
during cross examination that injury No.2 could be caused
only if the assailant and victim are in a distance, then the
categoric answer of the doctor was that there should be
some distance. That also is in corroboration with the
prosecution case because it has come out that the victim
Crl.A.No.836 of 2016
was sitting on the front driver seat and accused was sitting
on the back side. So definitely there would be distance in
between them. The doctor also stated that injury No.3 and 4
i.e. involving the right side of forehead over eyebrow and
the incised wound vertical involving the outer end of right
lower eyelid are possible to be caused with the same
weapon which caused injury No.1 and 2. It is further stated
by the doctor that injury No.5, 6 and 7 are defensive wounds
in a single infliction. It is categorically stated by the doctor
further that injury no.1 to 7 showed a possibility of a scuffle.
38. The prosecution case is that while the victim was
sitting on the front side driver seat accused suddenly caught
hold of him with his left hand holding around the neck and
stabbed at his right chest. So there would be some motion
from the part of the deceased in order to escape from the
attack which can also be similar to that of a scuffle. So at
any rate the evidence of PW13 the doctor cannot be said as
in contradiction or conflict with the ocular evidence of PW2.
39. So the contention of the learned counsel that the
medical evidence is not corroborative with the oral evidence
of PW2 is appeared to be baseless. Moreover more sanctity
has to be given to the evidence of PW2 being an injured
witness who sustained injury in the course of the same
incident. There are umpteen decisions pinpointing the
evidentiary value of an injured witness which stands on a
Crl.A.No.836 of 2016
higher pedestal than other ocular witnesses.
40. In this context it is relevant to quote Vijay Sankar
Shinda and others v. State of Maharashtra (AIR 2008
SC 1198) = 2008 KHC 4068) wherein it has been held
that evidence of injured witness who is examined as a
witness lends more credence because he would not
falsely implicate a person thereby protecting the actual
assailants.
41. It is also relevant to quote Raghunath Singh @ Manna
& Ors. v. State of U.P. [1969 (3) SCC 188] wherein it
has been held that contradictions and inaccuracies must
be sufficient in nature to cast doubts on the substantial
parts thereof. It is also held that in the absence of
cogent grounds or compelling circumstances it is unable
to come to a finding different from that reached by three
out of the four Judges who heard the appeals. In that
case two ladies were murdered and husband of one
among them was attempted to be murdered and the
question arose whether the evidence of Rameshwar
Singh the husband of one among them is admissible or
not. It is relevant in this context to extract paragraph
No.21 of the judgment which reads as follows:
Crl.A.No.836 of 2016
"The rejection of Rameshwar Singh's testimony
with regard to the presence of Amar Nath Singh or of his
versions that the first information report was dictated at
his house while the Sessions Judge found that it was laid
at the police station or the comment of the Sessions
Judge that the investigation in the case was not above
board or the variance about the time of the occurrence as
between 11 and 12 O' clock in the first information report
and between 10 and 11 O' clock as given in one of the
so-called dying declaration or of the disparity in the
statements about the exact nature of the weapons used,
whether they were all pharsas or whether some of them
were gandasas, are not, in our opinion, matters sufficient
to discredit the main version of Rameshwar Singh with
regard to the commission of the crimes for the
appellants."
42. Point (iv) - According to the learned counsel the
records produced from the side of the prosecution itself
would prove that more than one assailant is involved in the
incident. But prosecution shaped the case pinpointing the
accused as the sole assailant. Exts.P1, 27, 28, 31, 10, 15,
61, 60, 66 according to him would establish that there were
more than one assailant. PW13 was questioned in this
aspect by suggesting that injury No. 3 and 4 may not have
been caused with the same weapon with which injury no.1
and 2 have been inflicted. But the specific answer of the
Crl.A.No.836 of 2016
doctor was that possibility cannot be ruled out. So the
answer of the doctor would go to show that possibility of
causing the injuries with the same weapon cannot be ruled
out. So there is nothing to infer from the medical evidence
that more than one weapon have been used in causing the
injuries upon the deceased.
43. It is true that Ext.P27 FIR was registered under Secs
333, 307 302 r/w 34 IPC and in the FIR contents also there
is reference that when the deceased and PW2 tried to take
accused persons who came by Omni van to the Jeep they
were attacked. But it is to be noted that in Ext.P1, the
statement given by PW1 is that he was informed by PW6
that the deceased and PW2 who went for night patrol duty
have been stabbed by somebody. In Ext.P28 inquest page
10, in the statement given by the brother of the deceased,
though there is a statement about the checking of Maruthi
Omni van near Jawahar junction by PW2 and deceased and
there is further reference that while the people came by
Maruthi van was taken into the jeep for his escape, he
stabbed PW2 and the deceased. So there is reference with
regard to the assailant in singular and also in plural in the
inquest.
44. The learned counsel relied on Ext.P31 the scene
mahazar , it does not have any relevance in this aspect.
Ext.P15 is the wound certificate of Pw2 . It also would not
Crl.A.No.836 of 2016
state about the number of assailants in the alleged history.
So it will not in any way improve the case of the defence to
prove the involvement of more than one assailant.
45. Ext.P60 is the remand report of accused Nos3 and 4
who were arrested on 23.7.2012. It is true that in that there
is reference with regard to 'assailants' who came by the
Omni van and 'their' attack while attempting to take into the
jeep by the deceased and PW2.
46. Ext.P61 is the remand report with respect to 2 nd
accused dated 5.2.2013. In that also there is reference with
regard to the accused persons travelling in the Omni van.
47. Ext.P66 which is the remand report of the 1 st accused
dated 14.10.2015. There also the same averment with
regard to the accused persons and their overt act while they
were being taken to the police jeep has been reiterated.
Learned counsel would contend that Ext.P66 remand report
is on 31.10.015 ie , after three years of the incident and in
that also the reference is with respect to accused persons.
Ext.P50 wireless log also was relied on by him. But on a
close examination of Ext.P50 it would show that the entry at
00.41 hours on 25.6.2012 is that, "came in a Maruthi van
and stabbed (not clear)". Again at 00.42 hours, there is an
entry that , "not clear", it is informed about the stab of an
officer and asked to come to Parippaly area. Again at 00.44
hours, there is an entry that "I have been stabbed , and
Crl.A.No.836 of 2016
somebody must come soon to Kulamada area". At 00.47
hours, there is an entry that persons came by a white Omini
van stabbed the mobile party of Parippally at Kulamada
area and escaped and checked the coming vehicles. So it
appears that the entire reference with regard to the persons
travelling in Omini van is based on the wireless message of
PW2. MO50 wireless log would also reveal that the
message was not clear . So it appears that the same matter
was carried forward in the subsequent remand reports . On
the other hand, the statement given by PW2 on 27.6.2012
who is the injured witness would clearly show that he was
stating only about a single person who was sitting in the
driver seat. Nowhere in his statement there is any reference
with regard to more than one person. More probative value
has to be given to the statement of PW2 being an inured
who was present along with the deceased at the time when
the incident occurred. It would be more clear on analysing
the evidence of PW28 and P39 report filed by him as early
as on 27.6.2012 immediately after questioning Pw2 which
would state that on investigation it has been revealed that
offence under S.34 has not been made out and hence
report was filed for deleting S.34 IPC and for adding
S.468,471 IPC. So all other statements in the remand
reports, P1 FIS etc., are based on the wireless message
which itself was said to be not clear in Ext.P50. That may be
Crl.A.No.836 of 2016
the reason why reference with regard to more than one
person had crept in the GD, wireless log etc., and the
subsequent remand reports also might have been so
prepared based on the earlier remand reports. Since the
evidence of Pw2 is clear and cogent from the inception
while he was questioned by the investigating officer on
27.6.2012 itself and it is with regard to one person who was
sitting in the driver seat of the Omini van all other reference
in the documents like remand reports, inquest, FIR, FIS etc.,
can just be ignored. So also in the remand report itself
though more than one accused have been referred to they
are the wives who are alleged to be residing with the 1 st
accused and the charge against them is for harbouring him
and for causing disappearance of evidence etc. The medical
evidence also corroborate with the prosecution case of
causing injury by a single weapon. So the contention of the
learned counsel that more than one assailant is involved
also could not be substantiated by the defence by bringing
out any convincing material before the court.
48. Point (v) - According to the learned counsel the
evidence of finger print adduced from the prosecution is not
acceptable and the chance prints did not contain the place
and date. Learned counsel contends that Ext.P2(a) GD
dated 26.5.2012 of Parippaluy police station would show
that the scientific assistant Sarojam and Party reported in
Crl.A.No.836 of 2016
the station at 11 hours after examining vehicle KL 02
-V.7369 Maruthi van involved in crime 796/2012. it is further
recorded that along with that vehicle CPO 5461 and 5631
appeared in the station. Then it is recorded that both
vehicles are being examined. So that according to the
learned counsel would indicate that, MO1 Maruthi van has
been taken to the police station at 11.00 am itself. So the
evidence of PW19 that he examined MO1 Maruthi van at
about 12 noon on 26.6.2012 at the place of occurrence is
false.
49. It is to be noted that in Ext.P2(a) there is an entry at 11
hours on 26.5.2012 that CPO 5461 , 5631 had reported in
the station along with the vehicle . But PW19 finger print
expert deposed that he examined the vehicle at 12 noon at
Kannambancheri junction and collected the chance prints.
PW26, who was the Grade SI attached to Paravur police
station during the relevant time deposed that on 25.6.2012
while he was doing night patrol duty, he was entrusted with
the guard duty of MO1 by the CI, Paravur. He also stated
that at about 1.15 am on 26.6.2012 he was contacted
through wireless by the Paravur CI to reach at Kannamba
and accordingly he along with police party reached there. It
is also his evidence that accordingly he guarded the vehcle
MO1, till 3.30 pm on 26.6.2012. During cross-examination
also he asserted that he attended the guard duty at
Crl.A.No.836 of 2016
Kannamba till 3.30 pm and that there was no rain on that
day and arrangements were also done to protect the vehicle
from rain. He stated that sniffer dog came to the spot at 3 -
3.30 am and they have not examined the vehicle. He also
stated about the preparation of the scene mahazar at about
1.00 pm on 26.6.2012 by the Circle Inspector. So the
evidence of PW26 also would corroborate with the evidence
of PW19 that he inspected the vehicle at Kannamba at
about 12 noon . The GD entry in Ext.P2(a) about the taking
of vehicle to the station at 11.00 hours may be a mistake. It
is so explained by PW28 also. It is also to be noted that
even in the entry, there are separate initials. So Ext.P2(a)
GD entry will not supersede the evidence of PW19 and
PW26.So also no question was put to Pw6 who said to have
made the relevant entries in this regard.
50. PW19 deposed that he inspected MO1 Maruthi van at
Kannambancheri junction and took 13 chance prints and
those were developed and police photographer took the
photos of the prints and among the 13 chance prints , 9
were unfit for examination and 4 were fit for examination.
Further he stated that out of the four, P1 and P2 marked
were blood prints and those were obtained from the outer
side of the front door of Maruthi van. The chance print, P5
was obtained from a spray bottle found inside the vehicle
and P7 was obtained from side rear view mirror. According
Crl.A.No.836 of 2016
to him, those four chance prints were examined and it was
found to be that of Antony, son of Varghese involved in
crime 885/2009 of Karunagappaly police station and crime
554 /2009 of Kolllam west police station and hence Ext.P17
report was filed on 27.6.2012. On 14.10.2015 he again
examined the finger print of the accused forwarded by the
Circle inspector and the finger prints obtained from the
place of occurrence in this case and were found to be
identical and accordingly Ext.P18 report was filed. Ext.P19
is the detailed report filed by him . Along with Ext.P19, P2
specimen finger print also has been included., he
categorically stated the chance prints Ext.P1,P2, P 5 and 7
obtained from Omini van are the left middle left ring and
right thumb finger prints of the accused. During cross-
examination of PW19 the attempt of the accused was to
establish that since the identifying fingerprints of the
accused are kept in the server of the fingerprint bureau
there is no difficulty in producing those fingerprints before
court. Questions were also put to him to establish that the
pattern of all chance prints could not be understood by him .
But he deposed that to identify the fingerprints pattern is not
necessary. Then questions were put to him with regard to
Chromatography, a technique which is to determine the age
of the fingerprints. But he categorically stated that it is not
the duty of the fingerprint expert to determine the age of the
Crl.A.No.836 of 2016
fingerprints. Again he was questioned that there is nothing
to show that Ext.P2 print was taken by him. Then he would
state that his initial is there. So though he was cross-
examined at length, there is nothing to discredit his
testimony or the certificate issued by him (Ext.P17 to P19)
had been brought out. So the fact that 4 fingerprints (among
them two were blood stained, obtained from the outer front
door of MO1 Omini van) of the accused was obtained from
MO1 on examination on the immediate next day of the
incident points in abundance the involvement of the
accused in this case.
51. Point (vi) - Learned counsel would contend that though
hairs were collected from the Van and the articles found in it
and it was send to FSL along with the sample hairs of the
accused, as per Ext.P20 FSL report it does not connect
with the accused. The learned counsel also would contend
that no DNA test was conducted to conclude that accused is
the offender.
52. PW18 was the Scientific Assistant DCRB Alappuzha
who inspected the scene of occurrence in the above crime
and collected eight items as per Ext.P16 list and handed
over to the investigating officer. As per Ext.P16 the following
items were collected:
Item No.1 Blood stained cotton gauze from the road.
Crl.A.No.836 of 2016
Item No.2 Blood stained cotton gauze, swab taken
from the steering and gear liver of the
vehicle.
Item No.3. Hairs found from the front seat.
Item No.4 Hairs from the cloth found in the vehicle
Reg.No.KL-02-V-7369
Item No.5 Hairs found from the gloves which was
found in the vehicle Reg.No.KL-01-AU-
Item No.6 Blood stained cotton gauze, swab taken
from the front side of the vehicle Reg
No.KL-01-AU 2982
Item No.7 Blood stained cotton gauze, swab taken
from the front left seat of vehicle
Reg.No.KL-01-AU-2982
Item No.8 Blood stained cotton gauze, swab from the
front right door of the vehicle KL-02-V-7369
53. PW17 was the casuality medical officer attached to
District hospital, Koallam during the relevant time . He
collected the blood and hair of the accused as per the
instruction of the investigating officer.
54. Ext..P72 the FSL report pertaining to the hair samples
collected by PW18 as per Ext.P16 list. The result of
examination would state that though the hairs collected
marked as item Nos.39, 40, 41 were subjected to
examination, the result of examination is that out of six
hairs, four hairs in item No.39 and out of four hairs, three
hairs in item No.40 are human scalp hairs which are not
similar to the sample scalp hairs of the accused. It also says
that two of the six hairs in item No.39 and two of five hairs in
Crl.A.No.836 of 2016
item No.40 are human body hairs which are not similar to
sample body hairs of the accused. Item No.41 which though
reported as human scalp hair it is impossible to report
whether or not it is similar to the scalp hairs of the accused.
So Ext.P72 report with respect of the hairs collected from
the MO1 van will not aid the prosecution to connect the
accused with the offence.
55. But Ext.P20 FSL report would prove that Mo7 the
uniform pants ,shirt and baniyan of the deceased contained
human blood with A Group.Pw2 deposed during evidence
that his blood group is A+.That fact is not
challenged.Ext.P20 FSL report would prove that the uniform
pants ,shirt contained human blood belonging to group
A.Where as the sample blood of the accused is determined
to be group 'O'.Mo12 ,13 found inside Mo1 as per Ext.P20
contained human blood of group 'O'.Prosecution has got a
case that during the course of attack upon the deceased
accused sustained minor injury.So the prescence of Group
"O" blood in kerscifs found inside Mo1 would corroborate
with the prosecution case that after attacking Pw2 and the
deceased accused escaped in Mo1 and during that time
blood stains from his minor injuries had smeared on the
kerchiefs inside the van.
56. Point (vii) - Learned counsel would contend that
though the accused was arrested after 3 years, no test
Crl.A.No.836 of 2016
identification parade was conducted and identification of the
accused by PW2 and 3 ought not have been accepted. He
would also contend that no description or the identifying
features of the accused have been given by PW2 and 3
while giving statement.
57. The evidence of PW2 would indicate that there was
occasion for him to see the face of the accused while sitting
in the Omni van and also while taking him into the jeep and
it is also his evidence that he was sitting just beside him in
the rear seat of the jeep and when the accused attacked the
deceased, he intervened and then he was also attacked. So
there is every chance of PW2 for properly identifying the
accused and on the near dates, while he was undergoing
treatment at Medicity hospital the album containing the
photographs of the criminals were shown to him and from
that, he identified the accused as the assailant. Ext.P17
report also received from Pw19 the finger print expert that
chance prints developed and photographed is that of the
accused. On the basis of the same Look Out notice was
issued. When PW28 the investigating officer was
questioned in that regard he stated that since look out notice
has already been given, ( it has been marked as Ext.P40)
he did not make any attempt to conduct the test
identification parade because the identity of the accused
has been made public. So the fact that test identification
Crl.A.No.836 of 2016
parade was not conducted by itself will not in any way cause
any prejudice to the accused. The prosecution case is also
that the sketch of the accused was prepared as per the
information given by PW3 who had also occasion to see the
accused while chasing the Maruti van on the date of
incident. So the omission to conduct TIP also cannot be
taken as a ground for the accused to allege prejudice.
58. Point (viii). The next argument of the learned counsel
is that the prosecution could not adduce any evidence to
connect the accused with MO1 Maruti Omni van. He also
would contend about the delay in taking the statements of
witnesses who have been examined by the prosecution in
connection with the vehicle. Though it has come out that the
original colour of the vehicle as per the RC was red and it
has been changed to white subsequently no convincing
evidence in that regard is also forthcoming. In short,
according to the learned counsel, accused has no
connection with MO1 vehicle seized in this case. The
argument so advanced by the learned counsel is not at all
seems to be sustainable in view of the evidence of PW7 to
12 examined from the side of the prosecution.
59. PW7 was the landlord of the accused while he had
been residing at Prasanth Nagar, Ulloor, Trivandrum. There
he was residing in the name, Rajesh. PW7 deposed that in
order to give the 2nd floor on lease he had given an
Crl.A.No.836 of 2016
advertisement in Manorama daily and in accordance with
that, accused contacted him and on enquiring his
whereabouts he stated that his father is no more and the
step mother and sister are residing with him and her
husband is at abroad. His occupation was stated as
computer assembling and a rent of Rs.7000 was fixed and 6
month's rent was given as advance and he was paying the
rent regularly and resided there for six months. He also
stated about a white Maruti Omni van owned by him and
there was a sticker in Tamil on the front wind glass right side
of the vehicle and there was no seat on the back. He
deposed that one day when he came back from the temple
in the morning accused and Susanna who was introduced
to him as his mother were found on the front side of the
house carrying two bags and on seeing him accused
suddenly twisted his head so as to hide from him. Then
accused told him that he is going to Chennai to sell a
property and his pregnant sister is in the house and he was
asked to give some attention to her. It was during that
period that the photograph of the person who murdered
Maniyan Pillai came in the newspaper and on seeing the
photograph he became suspicious and verified with the
photo of the accused and he intimated the Medical College
Police Station and they came and obtained the rent deed
Ext.P43 xerox copy of the driving licence and one
Crl.A.No.836 of 2016
photograph of the accused which were with him. The copy
of the ID proof is marked as Ext.P3 in that the name of the
accused is shown as Rajesh. During cross examination he
stated that on seeing the photograph of the accused in the
newspaper on the same day he contacted the police and
police came on the same day to his house and he handed
over the original of the rent deed and copies of the I.D. Card
and photo to the police. So the evidence of PW7 would
prove convincingly that accused had been residing at
Prasanth Nagar, Ulloor, Thiruvananthapuram during the
time of occurrence in a fake name as Rajesh and fake I.D.
Card as Rajesh is also concocted by him and it is marked as
Ext.P3.
60. PW7, 10 and 11 speaks about a Tamil sticker on the
front wind glass of MO1. PW7 also stated that the Maruti
van owned by the accused was not having any seat on the
back side. That has been deposed by PW2 and PW3 in
corroboration.
61. Further the evidence of PW8 would prove that he had
a Maruti Omni Van with registration No. TN 02 A 2734
during 2009 and the colour of that vehicle was red and that
was sold by him in the year 2009 to one Manikandan PW9.
Ext.p4 is the delivery note issued by Manikandan while he
purchased the vehicle. Ext.P5 is the original R.C. of the
vehicle. He stated that in Ext.p5 his photograph and the
Crl.A.No.836 of 2016
photograph of the person who sold the vehicle to him has
been affixed. His statement was recorded by the magistrate.
During cross-examination he stated that he was questioned
in the year 2012, though the authenticity of Ext.P4 delivery
note was questioned during cross examination stating that
his name and address is not noted in Ext.P4, Ext.P5
registration certificate contained his photograph as deposed
by him. That is not seen challenged during cross-
examination. So the evidence of PW8 would prove the fact
regarding the purchase of MO1 by him from the original
owner.
62. PW9 purchased MO1 from PW8. He stated Ext.P5 as
the original document of the vehicle (R.C.). He would state
that since he felt red colour as unsuitable, he changed the
colour to white and after a long period he sold the vehicle to
Jeeva (PW10). And at that time he handed over Exts.P4
and P5 to her.
63. PW10 Jeeva stated that she purchased maruti omni
van from PW9 and Ext.P5 registration certificate was
handed over to her at the time of purchase. And after one
month she sold the vehicle to Sathyaprakash and at that
time she gave Ext.P8 delivery note. She also identified MO1
as the vehicle so purchased by her. During cross-
examination she sated that she was questioned twice by
Kerala police. She also is in acquaintance with
Crl.A.No.836 of 2016
Sathyaprakash to whom she sold the vehicle.
64. PW11 Sathyaprakash stated that he is in
acquaintance with PW10 Jeeva and purchased a Maruti
Omni van from her with white colour and at that time Ext.P5
R.C. Book and a delivery note Ext.P6 were handed over to
him . Then he sold the vehicle to one Rajasree and she
issued Ext.P7 delivery note in white paper. He also states
about a sticker in the name Sreemurukan Thunai on the
vehicle and he identified that vehicle as MO1. He also
admitted to have questioned twice by the police .
65. PW12 is Rajasree who purchased the vehicle from
PW11. Ext.P7 is the delivery note signed by her while
purchasing the vehicle . She would state that subsequently
she made an advertisement to sell that vehicle and Antony
contacted him and he told the vehicle to Antony and at that
time copy of the driving licence and kychit had been given to
him and Ext.P8 is the delivery note issued by Antony the
accused. Ext.P9 is the I.D. Proof given by the accused. That
was given by taking copy from the original kept by him. She
also stated that at the time of sale she handed over the
documents pertaining to the vehicle to the accused.
According to her she had been questioned twice by the
police. Ext.P8 dated 18.11.2011 issued by the accused to
PW12 contained the name and address of the accused.
Ext.P9 copy of the I.D. Proof that is the driving licence also
Crl.A.No.836 of 2016
shows the name and address of the accused. So the
production of those documents by PW12 would prove the
sale of MO1 vehicle by her to the accused. Though
questions were put to PW12 with respect to Ext.P8 (by
mistake in the deposition it is stated as Ext.P9, actually
Ext.P9 is the copy of the driving licence) stating that it does
not contain the chassis number and engine number of the
vehicle she would state that registration number has been
stated and it is also stated,' as per R.C.' So the evidence of
PW12 would prove the purchase of MO1 Maruti Omni Van
by the accused from PW12. Though at the time of argument
the learned counsel advanced an argument about the delay
caused in questioning the witnesses pertaining to MO1
vehicle no such question seen put to any of those
witnesses. Moreover all of them stated that they have been
questioned twice and PW8 categorically stated that he was
questioned in the year 2012 once. PW10 and 11 stated that
they were questioned twice. So there seems to have no
delay in questioning these witnesses. Moreover PW28
during examination stated that he had authorized a special
team for making investigation with respect to the accused
and sent to Tamil Nadu. No question also seem to have
been put to PW28 with regard to the alleged delay caused in
questioning the witnesses.
66. It has been held in Ranbir and others v State of Punjab
Crl.A.No.836 of 2016
(AIR 1973 SC 1409 and [email protected] v state of Madhya
Pradesh (AIR 2004 SC 261) that for the court to take notice
of the delay in recording the statements of witnesses,it is
necessary for the defence to question the Investigating
Officer about it so that he may give an explanation for that.If
that is not done court will ignore the delay. Moreover in this
case accused also could not establish that there was any
delay caused in questioning Pw 8 to 12. So by examining
PW8 to PW12 prosecution could prove beyond any
reasonable doubt about the purchase of the vehicle MO1
Maruti Omni van by the accused. In corroboration with that
evidence of pw7 would prove that accused was having this
white Maruti van and one day he was found with two
baggage claiming to go to Chennai to sell a property and at
that time the Maruti Van was not brought by him and on
enquriy by PW7 he stated that the Maruti van is in the
garage. It was within few days his photograph was found as
the accused in the murder of Maniyan Pillai and he
intimated the medical college police and on the same day
the police came and collected the documents pertaining to
the accused in connection with the rental arrangement
along with copy of the I.D. card. The identity card given by
the accused to PW7 is in the name of Rajesh. So that also
would prove the prosecution case that he has been residing
in a fake identity in Thiruvananthapuram probably due to his
Crl.A.No.836 of 2016
involvement in various crimes.So the contention of the
learned counsel that prosecution could not adduce any
evidence connecting the accused with MO1 is against the
facts circumstances and evidence adduced in this case.
67. The evidence of PW22 the Joint RTO , would state that
he had given the registration particulars of KL2 V/7369
vehicle at the request of the investigating officer in the
above crime and Ext.P23 is the particulars given by him. He
would further state that as per P23 KL2E 7369 is a hero
Honda motorcycle and the registration of the vehicle is in
the name of one Sanofer. That was the number displayed
on Mo1 at the time of incident.
68. PW21 is the retired MVI who inspected MO1 Maruthi
van on 27.6.2012 bearing two registration numbers viz..
KL.02/ V-7369 and TN.02-A2734 while working at RTO
office Kollam as MVI. Ext.P21 is the certificate issued by
him. According to him the chassis number was false and
locally carved ST-91-IN-982668 the engine number found as
F8-BIN-102993 is said as correct. He took the pencil mark
of engine number and chassis number found on the vehicle
and appended with Ext.P21 and it is marked as Ext.P21(a).
He also stated that the chassis number and engine numbers
found in Ext.P21(a) are corresponding to those numbers in
Ext.P5 (original RC). So the above evidence would establish
that after purchasing Maruthi Omni van MO1 from PW12, he
Crl.A.No.836 of 2016
affixed a fake registration number and chassis number on
the vehicle. That would in turn make his preparation and
plan to commit criminal acts and to escape from the
clutches of law by exhibiting wrong registration number on
the vehicle.
69. The learned counsel also content that the finding by
the court below that he has put forth a false plea of alibi is
incorrect because he left Kerala in the year 2011. But it is to
be noted that though the evidence of PW8 to 12 would show
that he has been at Tamil Nadu during 2011 his address in
Ext.P9 the driving licence handed over to PW12 is of
Kollam though Ext.P8 would show an address at Chennai
also. On perusing Ext.P8 it is seen that he has shown his
address at Kundara, Kerala State and Camp alone is shown
at Chennai. So Ext.P8 would not support the contention of
the defence that he left Kerala in the year 2011. On the
other hand the evidence of PW7 would indicate that in the
year 2012 he took the flat on rent from PW7 and has been
residing there during the period when the incident
happened. Subsequently he left Kerala and his arrest was
from Palakkad on getting information that he is coming from
Coimbatore to Palakkad. The statement of the accused
during examination under 313 CrPc is to the effect that he
is an accused in about 200 theft cases and look out notice
was published by the Ettumanoor police in the year 2011.
Crl.A.No.836 of 2016
Thereafter he left kerala and never came to Kerala. He also
claims that he has been arrested from Coimbatore Ukkadam
bus stand by Palakkad police.
70. The evidence of PW7 would prove that he took the
building on rent in the year 2012 and has been residing in
his building for about six months. The incident in this case
was on 26.6.2012 . So it has been proved that he had been
in Kerala from the beginning of 2012 onwards though he
claimed that after the look out notice by Ettumanoor police
in the year 2011 he left Kerala . So it appears that it is after
this incident that he left Kerala as has been stated by PW7.
So the contention of the learned counsel that no false plea
of alibi was taken and he left Kerala in the year 2011 itself
cannot be accepted at all.
71. Evidence of PW25 the SI, Nenmara, who was the SI
of Chittor (Palakkad district) as on 13.10.2015 would show
that he intercepted the accused at Karumanda Koundannor
at 8.00 am on 13.10.2015 and brought to the police station.
He gave Ext.P26 report in connection with the same to the
Circle Inspector, Paravur, the investigating officer. On the
same day he handed over the accused to CI Biju and
entrusted the bags and other articles in possession of
accused with the Circle Inspector. During cross-examination
he stated that he identified the accused on seeing his photo
and name.
Crl.A.No.836 of 2016
72. PW29 who continued the investigation of PW28 the CI,
Paravur, stated that on an information that accused is
coming to a house of a lady at Palakkad, attempt was made
under the leadership of Special branch police Dysp,
Palakkad . Hence he went to Palakkad along with party as
informed by the City police commissioner about the
detention of accused by SI , Chittoor. He reached Chittoor
police station at 1.30 pm and arrested the accused . Ext.P62
is the seizure mahazar prepared by him for seizing the
articles possessed by the accused which were handed over
by PW25 and he identified MO20 as the purse containing
the PAN card of the accused with his photograph in the
name Selvaraj and that is marked as MO21. The driving
licence of the accused in the name of Selvaraj is marked as
MO22. The bag found in the possession of the accused has
been marked as MO23. MO24 is the Mathrubhoomi daily
dated 13.10.2015 found in the bag. MO25 is a Tamil daily
dated 6.10.2015 found in the bag. MO26 is a red torch found
in MO23 bag, MO27 is another torch found in MO23, MO28
is the plastic comb found in the bag, MO29 is the Seiko 5
watch found in the bag, MO30 is a pair of gloves found in
MO23 and MO31 is the monkey cap and MO32 is a black
purse, MO33 is a big shopper, MO34 series are the three
screwdrivers. MO35 is the tester, MO36 is the wire cutter,
MO37 is the electric wire with holder, MO38 is a knife
Crl.A.No.836 of 2016
wrapped in a newspaper found in MO23. Ext.P63 is the
arrest memo and P64 is the inspection memo. Ext. P65 is
the report stating the name and address of the accused. So
the evidence of Pw25 and PW29 would prove that while
accused was arrested from Palakkad, Karumanda, he was
holding MO23 bag and it contained a PAN card with his
photograph with a different name as Selvaraj. Driving
licence MO22 also obtained in the name of Selvaraj. That
would in turn show that after this incident he adopted a fake
name as Selvaraj and was living in that address in Tamil
Nadu. He is also carrying the screwdrivers, knife etc. the
two newspapers, one in Tamil and Malayalam daily also
would indicate that he wanted to be in in touch with the
state of affairs of both the States. Even admittedly by him
there are about 200 theft cases against him. Seizure of a
knife from MO23 bag which has been identified as MO38
would show that he is in the habit of carrying knife with him
along with screwdrivers , wire cutter etc., for his dubious
acts.
73. On a close scrutiny of the judgment passed by the
court below we are of the considered view that all the facts,
circumstances and evidence adduced have been discussed
in detail and the learned Sessions Judge has come to a
right conclusion regarding the guilt against the accused. We
find no reason whatsoever to interfere with the same.
Crl.A.No.836 of 2016
74. In the result appeal is found to be devoid of any merit
and hence dismissed confirming the conviction and
sentence passed against the accused/Appellant.
SD/-
A.HARIPRASAD
Judge
SD/-
M.R.ANITHA
Judge
Shg/Mrcs/17.12x.
