Kerala High Court
Satheesh Babu vs State Of Kerala on 1 February, 2022
CRL.A.No.1387/2006 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE T.R.RAVI
TUESDAY, THE 1ST DAY OF FEBRUARY 2022 / 12TH MAGHA, 1943
CRL.A NO. 1387 OF 2006
AGAINST THE JUDGMENT IN SC 410/2002 OF II ADDITIONAL SESSIONS
COURT, THIRUVANANTHAPURAM
CP 35/2001 OF JUDICIAL MAGISTRATE OF FIRST CLASS -II,ATTINGAL
APPELLANT/1ST ACCUSED:
SATHEESH BABU
S/O.KARUNAKARAN, KOTTIYIL VEEDU,
KADAKKAVOOR,KADAKKAVOOR DESOM,
VAKKOM VILLAGE.
BY ADV SRI.D.KISHORE
RESPONDENTS/STATE & COMPLAINANT:
1 STATE OF KERALA
REPRESENTED BY ITS PUBLIC PROSECUTOR,
HIGH COURT OF KERALA,ERNAKULAM.
2 THE CIRCLE INSPECTOR OF POLICE
KAZHAKUTTOM POLICE STATION.
BY PUBLIC PROSECUTOR SMT. S.L. SYALAJA
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
10.11.2021, THE COURT ON 01.02.2022 DELIVERED THE
FOLLOWING:
CRL.A.No.1387/2006 2
T.R.RAVI,J.
-----------------------------
CRL.A.No.1387 of 2006
-------------------------------
Dated this the 1st day of February, 2022
JUDGMENT
The 1st accused in S.C.No.410 of 2002 on the file of the Second
Additional Sessions Judge, Thiruvananthapuram has filed this appeal
being aggrieved by the judgment dated 13.7.2006, whereby he has
been found guilty of offence under Section 307 read with Section 34
IPC and has been convicted and sentenced to undergo rigorous
imprisonment for one year and to pay a fine of Rs.50,000/- and in
default of payment of fine to undergo imprisonment for six months.
2. S.C.No.410 of 2002 was tried along with S.C.No.974 of
2004. The above said cases relate to Crime No.49/2001 of
Mangalapuram Police Station. The appellant along with one Subhash
were the accused in S.C.No.410 of 2002 and one Suresh Babu was
the accused in S.C.No.974 of 2004. On the side of the prosecution
PW1 to PW12 were examined and Exts.P1 to P13 were marked. On
the side of the defence, Exts.D1 to D11 were marked.
3. According to the prosecution, on or about 29.1.2001, the
accused conspired to cause the death of one Vinayan and with the
said common intention they armed themselves with iron pipes, iron
rods and spade handle and boarded an Ambassador car bearing
registration No.KL-01/7057 along with one Ajikumar. They followed
Vinayan who was travelling in a scooter and when the scooter reached
about 78 metres and 30 centimeters away from the culvert numbered
as 548/1 at Pallippuram Village, the appellant hit the car against the
scooter in which Vinayan and one Kunjumon were travelling and they
fell down into a pit. Thereafter the accused with the weapons ran to
Vinayan and attacked thereby committing offences under Section
120B and 307 read with Section 34 IPC.
4. According to Vinayan who was examined as PW1, he was
conducting a tyre shop named Krishna Tyres at Kazhakkuttam during
2001. His case is that the incident occurred at about 7.30 hrs. in the
night on 29.1.2001, and he sustained injuries and was treated at
Medical College Hospital. He has stated that he owned a lorry and he
was travelling in the scooter along with the driver of the lorry, towards
a place called CRP at Pallippuram for the purpose of calling loading
workers. It was during the said travel that the Ambassador car hit
them from the side. According to him, when people came out of the
car and started hitting him with spade handle and iron rod, he ran
away, went to a house nearby and requested the person in the house
for a lungi to wear and also to take him to a hospital. He also stated
that he does not know what happened to the assaulters. He further
says that he knew one Kannan who belonged to the area, that he was
given water and he did not remember anything thereafter. He
identified the spade handle and iron rod which were marked as MOs 1
and 2. He also proved Ext.P1 statement given to the Police. PW1 was
declared hostile. When cross examined, he stated that there was
animosity between the accused and himself and that earlier his cousin
Ajayan and the appellant had involved in physical fights.
5. The above said PW1 Vinayan is the accused in
S.C.No.1799/2001. According to the appellant, the car in which he
was travelling had overtaken the scooter in which PW1 was travelling
and during that process, the scooter dashed against the car and fell
down and the witness sustained injuries. According to the defence,
Vinayan and Kunjumon had come with iron pipes to attack the
appellant who ran away to the right side and that one Ajikumar who
was also travelling in the car had opened the door of the car and ran
towards the left. According to the appellant, Vinayan and Kunjumon
followed Ajikumar who jumped into a water channel and they had
caused the death of Ajikumar by suffocating him in the water channel.
Even though these aspects were suggested to the witness during
cross examination, the same were denied.
6. PW2 is the attestor to the mahazar. PW3 is a person who
took the injured PW1 to the hospital. According to him, he boarded
the car only from Kazhakuttam. PW4 is the lady from the house to
which PW1 had gone and asked for lungie and water. According to
her, a person soaked in blood came to the house at about 7.30 hrs in
the night, while she was watching television, and she did not open the
door. Then, PW1 came again along with Surendran who was staying
in the upstair portion of the house and on the request of Surendran,
she had opened the door and given the lungie. According to her, a
car was called for and PW1 was taken to the hospital. PW5 who was
examined is the owner of the house to which the lorry driver of PW1
had gone and requested for water. PW6 is the son of PW4 who also
stated about PW1 coming to the house. PW7 is a person who had
boarded the car in which Vinayan was taken to the hospital from
Kazhakuttam. PW8 is the owner of the car which had allegedly hit the
scooter and according to him he had sold the car for Rs.90,000/-.
PW9 is the pillion rider in the scooter. He has stated that he was
called by PW1 through his brother Byju and while they were going
towards Pallippuram a car came and hit them at a place where there
was no electric light and they had fallen down. He heard somebody
shout "kill him" and he hence ran away. PW10 is the witness to the
seizure mahazar. PW11 is the person who drove PW1 to the hospital
in a car. PW12 is the brother of deceased Ajikumar. PW14 is the
person who recorded Ext.P1 FI statement. PW15 is the Circle
Inspector, who investigated the case and PW16 is the Circle Inspector
who filed the charge sheet.
7. In S.C.No.1799/2001, initiated against PW1 Vinayan on the
murder of Ajikumar, he was convicted. The accused in this case are
the direct cousins of PW1 Vinayan. Admittedly PW1 has been
convicted for the murder of Ajikumar and the 2 nd accused in
S.C.No.410 of 2002 and the accused in S.C.No.974 of 2004 have been
acquitted.
8. The counsel for the appellant pointed out that as far as the
conviction under Section 307 is concerned, the Court itself found that
the case put forward by PW1 was that he was attacked with iron rods
and spade handles but the injuries are very simple in nature. The
Court also found that the "attack portion" deposed by PW1 is not
believable. However, the Court, solely relying on the evidence of PW1
that the car came and hit the scooter from behind and that the
appellant was in the car, came to the conclusion that there is
preponderance of probability to show that hitting the scooter with the
car was to commit murder of PW1, since there was previous
animosity. The Court further seems to assume that if a car hits
against a scooter, in all probability death will be caused to the person
travelling the scooter. It is further concluded that even though the
injury to PW1 was minor and that there was no injury to PW9 who
was the pillion rider, it does not mean that there was no intention to
cause death. The reasoning adopted by the Court below is in my
opinion absolutely perverse. The Court cannot rely on such
conjectures and surmises, when it comes to appreciating a case under
Section 307. Even after finding that the co-accused in the case is not
guilty and after having acquitted the accused in the connected case,
the Court further finds that Section 34 is attracted. Except for the fact
that the accused were travelling together in the car which hit against
the scooter in which PW1 and PW9 were travelling in a place where
admittedly there was no electricity, there is nothing in evidence to
come to such a conclusion. It is well settled that in a criminal trial, the
standard of proof required to establish the guilt is much higher and
unlike a civil case or a departmental enquiry, it is not sufficient to
show a preponderance of probability. The offence should be proved
beyond reasonable doubt. [See Ashoo Surendranath Tewari v.
Deputy Superintendent of Police, EOW, CBI & Anr. [(2020) 9
SCC 636]. The counsel for the appellant also contended that the
evidence of a partly reliable witness cannot be relied on to
corroborate the evidence of another partly reliable witness. It is
pointed out that after finding that there is no legal evidence against
the appellant, the Court below held that it is unsafe to acquit the
appellant, which itself is perverse. I find considerable force in the
contentions raised by the counsel for the appellant.
In the result, the appeal is allowed. The judgment dated
13.7.2006 in Sessions Case No.410 of 2002 on the file of the II
Additional Sessions Court, Thiruvananthapuram is set aside and the
appellant is acquitted. Bail bond, if any, executed by the appellant and
sureties, stands cancelled.
Sd/-
T.R.RAVI
JUDGE
dsn
