Surendran vs State Of Kerala
2021 Latest Caselaw 19794 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                PRESENT

                THE HONOURABLE MR. JUSTICE GOPINATH P.

     THURSDAY, THE 23RD DAY OF SEPTEMBER 2021 / 1ST ASWINA, 1943

                        CRL.A NO. 1277 OF 2006

 AGAINST THE JUDGMENT DATED 29-06-2006 IN SC 1079/2003 OF ADDITIONAL
      SESSIONS FAST TRACK COURT (ADHOC)-IV, THIRUVANANTHAPURAM

APPELLANT/ACCUSED:

           SURENDRAN
           S/O.AYYAPPAN PILLAI, ARCHANALAYAM,
           NO. 219, KOCHUKARIKKAKOM, THIRUVANANTHAPURAM.

           BY ADVS.
           SRI.THOMAS ABRAHAM
           SRI.K.B.ARUNKUMAR


RESPONDENTS:

     1     STATE OF KERALA
           REPRESENTED BY PUBLIC PROSECUTOR,
           HIGH COURT OF KERALA, ERNAKULAM.

     2     CIRCLE INSPECTOR OF POLICE
           NEDUMANGADU, THIRUVANANTHAPURAM.

           BY ADV SRI. SANGEETH RAJ, PUBLIC PROSECUTOR

     THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 23.09.2021,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 Crl.Appeal No.1277/2006                 -2-


                               JUDGMENT

This appeal has been filed challenging the conviction and sentence imposed

on the appellant/accused in S.C. No.1079/2003 on the file of the Additional

Sessions Judge, Fast Track Court (Adhoc) No.IV, Thiruvananthapuram in a

prosecution under Section 307 of the Indian Penal Code.

2. Gist of the prosecution case is that on 27-07-2002 at about 11 a.m.

while CW1 was rearing his cow in the property of one Krishnankutty at Vellachira,

Kochukarikkakom, Panavoor Village, the appellant/accused due to some previous

enmity towards CW1 in connection with some property dispute caught hold of his

hand and using the rope tied on to the cow tried to strangulate CW1 by taking the

rope under his right arm pit and neck and by attempting to hold him in that

manner by winding the rope around a rubber tree. It is alleged that as a result of

the said act CW1 lost consciousness and was found bleeding from his mouth and

nose. The prosecution alleged that by the aforesaid act the appellant/accused had

committed the offence punishable under Section 307 of the Indian Penal Code.

3. Following the investigation, a final report was filed before the

Judicial First Class Magistrate Court-II, Nedumangad alleging commission of an

offence punishable under Section 307 of the Indian Penal Code. Since the offence

was exclusively triable by a Court of Session, the learned Magistrate committed

the case to the Sessions Court, Thiruvananthapuram from where it was made over

to the Assistant Sessions Court, Nedumangad. The case was later transferred to

the court of Additional Sessions Judge, Fast Track (Adhoc) Court-IV,

Thiruvananthapuram where a charge was framed against the appellant/accused

under Section 307 of IPC. Following a plea of not guilty, the prosecution led

evidence by examining PW1 to PW13 and marking Exts.P1 to P14 documents and

identifying material objects 1 to 3. PWs 1 to 3 were cited as the occurrence

witnesses. PW4 is a witness who attested the scene mahazar. PWs 5 & 6 are the

witnesses who are stated to have taken the injured (CW1) to the Taluk Hospital,

Nedumangad and from there to the Medical College Hospital,

Thiruvananthapuram. PW7 is the witness who produced M.Os 1 to 3 at the police

station. PW8 is the mahazar witness to the mahazar prepared at the time the

material objects were taken into custody by the investigating officer. PW9 is the

Assistant Surgeon, Taluk Hospital, Nedumangad who examined CW1 on 27-07-

2002 and also issued Ext.P7 wound certificate. PW10 was the Assistant Professor

of Medicine, Medical College Hospital, Thiruvananthapuram who treated CW1

following reference from the Taluk Hospital, Nedumangad. PW11 is the village

officer who prepared the scene plan. PW12 is the Head Constable who recorded

the First Information Statement and registered the F.I.R and PW13 was the Circle

Inspector who conducted the investigation of the case and filed the final report

before the court. Exhibit P1 to P4 are the portions of the case diary statements of

PW1 to PW3. Exhibit P5 is the scene mahazar. Exhibit P6 is the mahazar prepared

at the time of the seizure of material objects. Exhibit P7 is the wound certificate

and Ext.P8 is the discharge certificate issued from the Medical College Hospital,

Thiruvananthapuram. Exhibit P9 is the scene plan and Ext.P10 is the First

Information Statement given by CW1. Exhibit P10 (a) is the body note prepared

by PW12 and Ext.P11 is the F.I.R. Exhibit P12 is the list of properties and Ext.P13

is the report filed by the investigating officer furnishing the name and address of

the accused and Ext.P14 is the arrest memo. Material objects M.O.1 is the 'kalli

mundu' worn by CW1 at the time of the incident. M.O.2 is the 'thorth mundu'

used by CW1. M.O. 3 is the rope alleged to have been used by the accused to inflict

the injury on CW1. CW1 could not be examined as he had passed away, not on

account of the injuries alleged to have been inflicted by the appellant/accused, but

on account of other reasons. Following the closure of prosecution evidence the

appellant/accused was questioned under Section 313 Cr.P.C and he had denied all

incriminating materials appearing against him. Though the appellant/accused

was called upon to tender defence evidence, no defence evidence was adduced. On

an appreciation of the evidence tendered by the prosecution, the trial court came

to the conclusion that the appellant was guilty of the offence punishable under

Section 307 IPC and convicted him for the same. After hearing the

appellant/accused on the question of sentence, the appellant/accused was

sentenced to undergo rigorous imprisonment for 5 years and to a fine of

Rs.5,000/- and in default of payment of fine to rigorous imprisonment for a

further period of 3 months. Set off of the remand period at the investigation stage,

was permitted under Section 428 Cr.P.C.

4. The learned counsel appearing for the appellant would contend that

this is a case where there is a complete lack of evidence regarding the commission

of the offence by the appellant/accused. He would submit that the conviction is

based entirely on the statement given by CW1 to PW9 and that the said statement

as recorded by PW9 was insufficient to enter a finding of guilt under Section 307

of IPC. He submits that the independent witnesses namely PWs 1 to 3 did not

support the prosecution case and denied having seen the appellant/accused

causing any injury to CW1. Though PW1 admitted that he had come to court in the

car of the accused, he stoutly denied the suggestion that he is stating falsehood at

the instance of the appellant/accused. PW2 also denied having witnessed the

incident and stated that he did not know anything about the incident. Similarly,

PW3 deposed that he had only hearsay knowledge about the incident and that he

had not witnessed the incident himself. PW5, the son-in-law of CW1 gave

evidence to the effect that his father-in-law (CW1) had gone out for rearing his

cow and since he had not returned by 11 a.m he had gone looking for him and

while on the search for CW1 (Gopala Pillai) he saw appellant/accused going to his

house. He further deposed that he found Gopala Pillai (CW1) in an unconscious

stage bleeding from his mouth and nose. He also deposed that he had taken

Gopala Pillai together with another person to the Taluk Hospital and from there

to Medical College Hospital Thiruvananthapuram. He also deposed that Gopala

Pillai had told him that the accused had inflicted injuries in the manner described

above. PW6, the brother-in-law of Gopala Pillai deposed that he had taken Gopala

Pillai to the hospital together with PW5 but he had not witnessed the actual

incident. He deposed that Gopala Pillai was not in a position to speak at that time

and after 2 days of the incident Gopala Pillai had told him that the

appellant/accused had injured him in the manner described above. PW6 also

deposed that the appellant/accused had nursed an enmity on account of a

property dispute with Gopala Pillai. PW7 is the witness who produced M.Os 1 to 3

at the police and stated in cross-examination that he had only hearsay

information regarding the incident which is alleged to have been taken place on

27-07-2002. PW8 mahazar witness admitted his signature in Ext.P6 mahazer.

PW9, the Assistant Surgeon, Taluk Hospital, Nedumangad who issued Ext.P7

wound certificate deposed that the cause of injuries on Gopala Pillai was

reportedly as under;

"സസുരരേനന്ദ്രൻ എന്ന സസ്വനന്തം മചച്ചുനൻ റബ്ബർ മരേരതത്തോടസു

രചേർതസു പസുറകകിൽ നകിന്നന്ന് കഴസുതകിൽ കയറകിടച്ചു

മസുറസുകകിയതകിൽ വവെചന്ന്"

He also deposed regarding the injuries noted in the wound certificate and stated

that at the time when he examined Gopala Pillai he was conscious and moving

freely. He has also stated that considering the nature of the injuries it could have

been caused in the manner alleged. He also deposed that the injuries were severe

and could even have caused death. I must note here that there is a contradiction

in evidence of PW9 and PW6 who accompanied Gopala Pillai to the hospital. PW6

had stated that Gopala Pillai was not in a position to speak at the time and he had

told him after 2 days following admission to the hospital that it was the

appellant/accused who caused injuries to him. However, PW9 has deposed that

Gopala Pillai was fully conscious at the time when he examined him on 27-09-

2002 and that he had given the cause of injury as was recorded in the wound

certificate. This is an apparent contradiction. PW10 who treated the victim at the

Medical College Hospital, Thiruvananthapuram also deposed regarding the

injuries on Gopala Pillai and stated that the hoarseness that he noticed in the

voice of Gopala Pillai while treating him was due to strangulation. He also gave

evidence to the effect that if Gopala Pillai had not been treated properly the

injuries would have been caused death. He also opined that the injuries in

question could have caused in the manner alleged by the prosecution. PW11, the

village officer had given evidence regarding Ext.P9 scene plan. The official

witnesses namely PWs 12 and 13 have given evidence regarding the contents of

the First Information Statement where again it is recorded that the injuries were

caused by the appellant/accused in the manner indicated above and on account of

the previous enmity. PW13, the investigating officer who filed the final report has

given evidence regarding the progress of the investigation and filing of the final

report.

5. On an analysis of the evidence I am of the opinion that this is a case

where the independent witnesses have clearly spoken against the prosecution.

None of them have given any evidence that they had actually witnessed the

appellant/accused strangulating Gopala Pillai in the manner indicated above.

Gopala Pillai himself died before the case was taken up for trial. Therefore the

court did not have the benefit of the evidence of Gopala Pillai. PWs 9 and 12 have,

no doubt, given evidence regarding the statement allegedly made by Gopala Pillai

regarding the cause of injuries upon him. However, this by itself is not sufficient

to establish the guilt of the appellant/accused. These statements can at best be

used to corroborate any other evidence tendered in the case and not to establish a

primary fact. The evidence of PWs 5 & 6 also do not conclusively establish the

appellant/accused was responsible for the injuries caused on Gopala Pillai. The

prosecution had not recorded any statement under Section 164 Cr.P.C from

Gopala Pillai. Gopala Pillai passed away on account of other reasons and not on

account of the injury alleged to have been caused by appellant/accused. I am

therefore of the view that the evidence, in this case, is woefully short of being

convincing or beyond reasonable doubt to drive home a conviction under Section

307 IPC against the appellant/accused. The appellant/accused is entitled to the

benefit of the doubt.

In that view of the matter, this appeal is allowed. The conviction and

sentence imposed on the appellant/accused in S.C. No.1079/2003 on the file of

the Additional Sessions Fast Track Court (adhoc) No.IV, Thiruvananthapuram is

set aside. The appellant/accused will stand acquitted.

Sd/-

GOPINATH P.

JUDGE AMG