Kunjumon, S/O. Peroor vs State Of Kerala
2022 Latest Caselaw 8113 Ker

                 IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                    PRESENT
                     THE HONOURABLE MRS. JUSTICE C.S. SUDHA
           FRIDAY, THE 1ST DAY OF JULY 2022 / 10TH ASHADHA, 1944
                             CRL.A NO. 391 OF 2007
  AGAINST THE JUDGMENT DATED 26/2/2007 IN SC 336/2006 OF DISTRICT COURT &
                           SESSIONS COURT, ERNAKULAM
         CP 2/2006 OF JUDICIAL MAGISTRATE OF FIRST CLASS -I,KOCHI
APPELLANT/ACCUSED:

            KUNJUMON, S/O. PEROOR,
            VAZHAKOOTTATHIL VEEDU, SOUTH CHELLANAM DESOM,
            CHELLANAM VILLAGE.
            BY ADVS.SRI.PEEYUS A.KOTTAM
            SRI.ASHIK K.MOHAMMED ALI


RESPONDENT/COMPLAINANT:

            STATE OF KERALA,
            REPRESENTED BY THE CIRCLE INSPECTOR OF POLICE, MATTANCHERRY,
            THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,
            ERNAKULAM.
            BY ADV.SRI.SANAL P.RAJ, PUBLIC PROSECUTOR



     THIS CRIMINAL APPEAL HAVING COME UP FOR FINAL HEARING ON 24/06/2022,
THE COURT ON 01.07.2022 DELIVERED THE FOLLOWING:
                                            2

Crl.A.No.391 of 2007


                                  C.S.SUDHA, J.
                           ------------------------------------
                                Crl.A.No.391 of 2007
                       -------------------------------------------
                       Dated this the 1st day of July, 2022


                                 JUDGMENT

This appeal under Section 374(2) Cr.P.C has been filed by the

accused in S.C.No.336/2006 on the file of the Sessions Court, Ernakulam,

challenging the conviction entered and sentence passed against him for the

offence under Section 308 IPC.

2. The prosecution case as stated in the final report is as follows: -

The accused due to his enmity towards the deceased, Sebastian @ Jibin Jacob,

and with the intention of causing his death, on 15/09/2005 at 02:00 p.m.,

stabbed him on the left side of the head of the deceased with a knife causing a

grievous injury. The incident is stated to have taken place on the south-eastern

side of the gate of the residential building situated in Ward No.XVI of

Chellanam Panchayat owned by one George Vazhakottathil. On 17/09/2005

at 10:50 p.m. Sebastian succumbed to the injuries. Hence the accused is

alleged to have committed the offence punishable under Section 302 IPC.

Crl.A.No.391 of 2007

3. Ext.P1 FIS of PW1 was recorded on 15/09/2005 at 04:30 p.m at

the Medical Trust Hospital, where the deceased was admitted and undergoing

treatment, by PW7, the then Head Constable of Kannamaly Police Station.

Ext.P6 FIR, i.e., Crime No.58/2005 was registered by PW8, the then Sub

Inspector of Kannamaly Police Station, for the offence punishable under

Section 324 IPC. The initial investigation was conducted by PW8. The

investigation was later on taken over by PW11, the then Circle Inspector,

Mattancherry, who completed the investigation and submitted the charge

sheet before the court alleging the commission of the offence punishable

under Section 302 IPC.

4. Pursuant to the appearance of the accused before the court below,

on 27/10/2006 charge for the offence punishable under Section 302 IPC was

framed. The accused pleaded not guilty. The prosecution examined PWs.1 to

11 and got marked Exts.P1 to P12 and M.O.1 to M.O.3 in support of their

case. After closing the prosecution evidence, the accused was questioned

under Section 313(1)(b) Cr.P.C. with regard to the incriminating

circumstances appearing against him in the evidence of the prosecution. He

denied those circumstances and maintained his innocence. He also submitted

Crl.A.No.391 of 2007

a statement in writing in which he contends that on the date of the incident he

had questioned the deceased who along with PW2 Laiju, CW3 Martin, CW4

Jaison and CW5 Bineesh were sitting in the public road and drinking. This

resulted in a quarrel between them. According to the accused, the said

persons jointly attacked and assaulted him, causing injuries. As he sustained

injuries, he was admitted in the General Hospital, Ernakulam and was under

treatment. He was kept under surveillance by the police and thereafter

arrested, though he pleaded innocence and informed them of the correct state

of affairs. He had also given a statement to PW8, but his statement was not

recorded. The police got him discharged from the hospital and recorded his

arrest. He has not committed any offence as alleged by the prosecution.

5. As the court below did not find it a fit case to acquit the accused

under Section 232 Cr.P.C, the accused was asked to enter on his defense. No

oral evidence was adduced by the accused. Exts.D1 to D3 which are the arrest

memo; remand report and remand extension report of the accused, have been

marked.

6. After considering the oral and documentary evidence and after

hearing both sides, the court below by the impugned judgment dated

Crl.A.No.391 of 2007

26/02/2007, convicted the accused and sentenced him to undergo rigorous

imprisonment for a period of 6 years for the offence punishable under Section

308 Part 1 IPC.

7. The only point that arises for consideration in this appeal is

whether the conviction entered and sentence passed against the accused by the

court below are sustainable or not.

8. Heard Sri.Ashik K.Mohamed Ali, the learned counsel for the

appellant and Sri.Sanal P.Raj, the learned Public Prosecutor for the

respondent.

9. The first argument advanced by the learned defense counsel

challenging the prosecution case, which according to him has been

incorrectly/wrongly accepted by the court below is, regarding the

inconsistency relating to the place of occurrence. According to the

prosecution, the incident took place outside the compound wall and gate of

one George Vazhakkottathil @ Benny, i.e., 5.20 meters to the south-east of the

gate post of Benny and 82 centimeters to the south of the southern corner of

the compound wall of the house of the said Benny. However, in the court

charge, the place of occurrence is stated to be to the west of the house of

Crl.A.No.391 of 2007

Benny. PW3, an occurrence witness deposed that the incident took place

about 7 ft. to the west of the gate of the aforesaid Benny. Therefore, referring

to this, it was argued that the prosecution has no consistent or definite case

relating to the place of occurrence, which has been pointed out as one reason

to doubt the prosecution case.

10. It is true that there is a slight discrepancy in the place of

occurrence as stated above. But the difference pointed out is about just 2 ft.

or so. This is not very material as evidence has come on record that the

incident had taken place outside the house of Benny. It is not very material

whether it was 5.20 meters to the south-east or 7 ft. to the west of the gate of

Benny. The fact remains that the incident took place outside the gate and

compound wall of Benny. This is consistently spoken to by the witnesses

also.

11. The fact that the deceased had sustained injuries on the date of

the incident and that he had succumbed to the injuries is not seen disputed.

The person(s) responsible and the manner of sustaining the injury are the

factors disputed by the accused. PW6 is the doctor, who examined the

deceased soon after the incident. He deposed that on 15/09/2005, he was

Crl.A.No.391 of 2007

working as Casualty Medical Officer, Medical Trust Hospital, Ernakulam. On

the said day at 03:30 p.m., he had examined Sebastian and issued Ext.P5

wound certificate. The patient, according to him, was deeply unconscious and

there was smell of alcohol. PW6 has noted three injuries in Ext.P5 wound

certificate. When examined PW6 deposed that the injuries seen on the patient

which he recorded in the wound certificate are: -

"1. 2x1x1cm incised wound on left temporal area.

2. 4cm long skin deep incised wound in front of left ear.

3. 2cm long skin deep incised wound over the left tragus."

He further deposed that C.T. scan of brain showed left temporal parietal thin

acute sub-dural hematoma with mid line shift to right and subarachnoid

hemorrhage. Repeat C.T. scan on 15/09/2005 showed left middle cerebral

artery area infarct with left anterior temporal infra cranial hemorrhage with

mid line shift to right. According to PW6, the aforesaid injuries could be

caused by M.O.1 knife, which knife was marked through PW3, who is stated

to be an occurrence witness.

12. PW9, Neuro Surgeon of the Medical Trust Hospital, Ernakulam,

deposed that on 15/09/2005 at 4.00 p.m., he had examined the deceased who

was admitted in the neuro surgical intensive care unit. At the time of

Crl.A.No.391 of 2007

admission, his condition was critical. After administering first-aid for the

injuries seen on the left side of his head and face, he was placed on ventilator

and medicines were started. PW9 also deposed that there were three wounds

on the patient's body, which were - (i) 2 cm. long incised looking wound on

the left temporal region, the deepest of the three wounds; (ii) 4 cm. long

incised looking wound just below and in front of left ear and (iii) 2 cm. long

incised looking immediately in front of left ear. According to PW9, the

wounds could have been caused with a sharp-edged weapon like M.O.1.

13. PW10 is the Surgeon who conducted the post-mortem

examination on the deceased. PW10 when examined, deposed that on

18.09.2005 he was working as Associate Professor, Forensic Medicine at

Medical College, Kottayam. On that day between 02:10 and 03:10 p.m., he

had conducted autopsy on the body of the deceased. PW10 deposed that he

had noted the following antemortem injuries on the deceased -

"1. Sutured incised penetrating wound, 3 cm long. obliquely placed on the left side of the head. Its lower inner end was sharply cut which was 4 cm. outer to the outer end of eye brow. Other end showed splitting of tissues.

Cutting the left temporal bone of the skull the wound entered the cranial cavity and piercing the dura it was seen terminated in the brain matter. The wound was directed backwards, downwards and to the right for a total

Crl.A.No.391 of 2007

minimum depth of 6 cm. The subdural and subanachnoid spaces of the brain had diffuse haemorrhages. Sulci of brain narrowed and its gyri flattened.

2. Sutured incised wound 2 cm. long, on the left side of the face just in front of the tragus of ear.

3. Sutured incised wound 5 cm. long, vertically placed on the left side of the face. Its upper end was 2 cm. below the tragus of ear. The margins of the above injuries were slightly healing.

4. Healing superficial lacerated wound 1 x 0.3 cm. on the tip of right big toe."

As per Ext.P9 postmortem certificate, death was due to a penetrating injury to

the head, i.e., injury no.1. PW10 also deposed that injury no.1 in the normal

course is sufficient to cause death. He further deposed that injuries 1 to 3

could be caused with M.O.1 weapon. The aforesaid facts are not disputed.

Therefore, the fact that it is a case of homicide, has been established.

14. Now coming to the question as to whether the prosecution has

succeeded in establishing that it was the accused who had inflicted the fatal

injury resulting in the death of the deceased. PW1, the uncle of the deceased,

who gave Ext.P1 FIS, has admittedly not seen the incident. He has only

hearsay knowledge. But an important aspect in his testimony is his reference

to the presence of PW2 Laiju, CW3 Martin, CW4 Jaison and CW5 Bineesh at

Crl.A.No.391 of 2007

the hospital when Ext.P1 FIS was recorded by PW7. PW2 and CW3 to

CW5, as per the final report, are stated to be occurrence witnesses. However,

quite curiously, PW7 is seen to have taken the statement of PW1, who had

admittedly not seen the incident, and not of the occurrence witnesses. It is

true that anybody can set the law in motion by giving information to the

police under Section 154 Cr.P.C. There is nothing wrong or illegal in it.

However, in this case, when four of the alleged occurrence witnesses were

very much present in the hospital when the statement of PW1 was taken, for

reasons best known to the police, the statement of the said witnesses which

would have been the best course to have been followed, was not taken and the

statement of a hearsay witness alone was taken in the initial stage. This is one

reason among the few reasons to doubt the prosecution case.

15. PW2, an occurrence witness when examined, has not fully

supported the prosecution story. He deposed that on the date of the incident,

there was an altercation/quarrel between the accused and the deceased

relating to purchase of liquor. The accused abused the mother of the

deceased, which resulted in a scuffle between them. Seeing this, he along

with CW5 Bineesh pulled back the accused, took him inside the compound of

Crl.A.No.391 of 2007

the house of Benny and closed the gate. They stood away from the accused

and at that time the deceased was also standing along with them. PW2 further

deposed that he was standing facing towards the south. He turned back on

hearing a commotion and then he saw the deceased lying on the ground with a

stab injury. He along with CW4 and CW5 took the deceased to the hospital.

When the deceased was lying injured, CW6 George tied the wound sustained

by the deceased near his left ear with a towel (ത ര ). The deceased was

first taken to Cortina Hospital. But the hospital authorities refused to take the

deceased. They therefore took him to Gautham Hospital, where they were told

that the injury sustained was serious and hence, he was taken to the Medical

Trust Hospital, Ernakulam. The deceased was in the ICU and after two days

he died. PW2 denied having seen the incident or having stated to the police

that he had seen the accused stabbing the deceased with a knife. PW2 at the

request of the prosecutor, was declared hostile and the prosecutor was

permitted to put questions as put in the cross examination. PW2 when

confronted with that part of his statement under Section 161 Cr.P.C. where he

had stated to the police that he had seen the incident, denied the same. The

contradiction was marked as Ext.P2 and the same was proved through PW8,

Crl.A.No.391 of 2007

the Investigating Officer. PW2 who was present along with the other

witnesses, namely CW3 to CW6, never referred to the presence of PW3 at the

place of occurrence, but specifically referred to the presence of CW3 to CW6

at the place of the incident. But none of the said witnesses have been

examined for reasons best known to the prosecution.

16. PW3, the wife of CW6 deposed that she had seen the accused

stabbing the deceased twice with a knife. According to her, on the said day by

about 2 p.m. she heard a commotion and when they went to the scene, they

saw the accused standing inside the gate of the house of Benny and the

deceased outside the gate. The accused then opened the gate and stabbed the

deceased twice on the left side of his head. The deceased fell down. At that

time her husband, CW6 was behind her. She then called out loudly that he

should be saved and taken to the hospital. Hearing this people gathered. She

then took water from the house of Benny and gave it to CW6 her husband,

who gave it to Jibin (the deceased) and washed his face. CW6 with a towel,

which was on his shoulder, tied the wound sustained by the deceased. Then

her husband along with CW5 Bineesh took him to the hospital followed by

their friends.

Crl.A.No.391 of 2007

17. It is true that it is the prerogative of the prosecution to decide

which witnesses are to be examined and which witnesses are to be given up.

But in this case doubts arise, because witnesses who were present all along

with the deceased right from the beginning of the incident till he was taken to

the hospital, are seen given up and not examined and the prosecution has

examined PW3 alone, the wife of CW6. PW2 does not support the

prosecution case. CW3 to CW5 are seen to have been present along with the

deceased during their drinking spree. The prosecution has not examined them

but examined only PW3 whose presence at the place of occurrence is

doubtful. If PW3 could be examined, it is beyond one's comprehension as to

why the prosecution gave up the examination of CW6, her husband, who is

stated to have washed the wound of the deceased and tied the wound with his

towel. This appears quite strange, for which no reasons have been furnished

by the prosecution. This is yet another reason to doubt the prosecution story.

18. Further, M.O.1 is alleged to be the knife used by the accused for

stabbing the deceased. According to PW8, on 16/09/2005, he prepared Ext.P8

search memo, forwarded the same to court, then proceeded to the house of the

accused and recovered M.O.1 knife from the kitchen of the house. In Ext.P8

Crl.A.No.391 of 2007

he says that he had received reliable information that there is possibility of the

knife being concealed in the house of the accused and therefore he had

proceeded to the house of the accused and effected the seizure. Admittedly,

this is not a Section 27 Evidence Act recovery effected by the prosecution.

PW8 does not make it clear as to who gave him the information. He does not

say whether anybody was present at the house of the accused or the person

who had identified the house. No documents have been produced to show that

the said house is in the possession or ownership of the accused. PW8 also

does not say whether anybody was present in the house when he had

conducted the search. He also does not say whether the house was locked or

open and if it was locked, who had opened it. PW8 in the box does not refer

to the presence of witnesses during search. Two witnesses are seen to have

attested Ext.P7 search list. But these persons have not been made witnesses or

examined before the court below. The search and seizure are alleged to have

been conducted on 16/09/2005 at 2 p.m., that is even before the accused was

arrested on the same day at 5:15 p.m. In Ext.P7 it is stated that the same has

been forwarded to the JMFC concerned on 16/09/2005 at 5 p.m. A correction

is seen in the time recorded. Initially it appears that the time recorded was 3

Crl.A.No.391 of 2007

p.m. which is seen corrected as 5 p.m. From the endorsement made on Ext.P7,

it can be seen that it reached the court only on 01/10/2005.

19. PW8 further deposed that when he had seized M.O.1 knife from

the house of the accused, he had put it in a cover but had not sealed it. PW8

does not speak about the place or the manner in which he had kept M.O.1

after the seizure. PW11 says that he had taken over the investigation on

18/09/2005 and then he had taken over M.O.1 to M.O.3 from PW8. M.O.2 is

stated to be the towel with which CW6 had tied the wound of the deceased

and M.O.3 is the blood-stained soil that is stated to have been seized by PW8,

when he had prepared Ext.P3 scene mahazar. PW11 had taken over the

investigation only on 18/09/2005 and it is only then he had taken over the

material objects from PW8. If that be so, where was M.O.1 kept from

16/09/2005, the date of the alleged seizure, till 18/09/2005 when it is

supposed to have been handed over to PW11. PW11 deposed that M.O.1 was

in the safe custody of PW8. However, PW8 has no such case. He does not

say that after the seizure, he had sealed and kept it safely and securely in his

custody. Further, Ext.P10 property list shows that the material objects

including M.O.1 was produced before the court only on 22/09/2005. No

Crl.A.No.391 of 2007

reasons have been given by the prosecution as to why there was delay in

producing the same before the court. Therefore, the seizure of M.O.1 knife is

highly doubtful.

20. Further, the charge sheet says that the accused stabbed the

deceased once. PW3 has a case that the accused had stabbed the deceased

twice. Wound certificate refers to three injuries, whereas the postmortem

certificate refers to four injuries, that is, 3 on the head near the left ear and

one on the right big toe. If the accused had stabbed the deceased only once,

the question is who caused the other injuries? No answer is forthcoming.

Further, the accused has a case that he was also injured in the incident. The

prosecution admits that the accused had been admitted in the hospital. Ext.D2

remand report prepared by PW8 says that his enquiries revealed that the

accused was admitted in the General Hospital, Ernakulam and therefore he

placed the accused under surveillance. After the accused was discharged, he

arrested the accused on 16/09/2005 at 5:15 p.m. Why was the accused

hospitalized ? In Ext.D2 report and in the arrest memo, injuries are seen on

the accused also. Ext.D1 arrest memo shows that the accused had an injury

on his head above his ear and abrasions on his left elbow. The accused claims

Crl.A.No.391 of 2007

that the injury on his head was grievous. There is however no evidence to

support the said claim. The prosecution does not offer any explanation as to

why the accused was admitted in the hospital after the incident. Probably he

might have also have been injured in the incident as claimed by him.

21. The reluctance of the prosecution to examine the

friends/associates of the deceased who were very much present along with the

deceased right from the afternoon of the fateful day till the injured was

admitted in the hospital, throw serious doubts in the prosecution story.

22. Further Ext.P11 is the copy of the forwarding note as per which

M.O.1 knife; M.O.2 towel (ത ര ) and M.O.3 blood-stained soil along with

the blood-stained gauze were sent for examination. The last item had been

handed over by PW10 to the Police. Ext.P12 chemical examination report

shows that human blood had been detected in all these items. It is further

stated that items 1, 3 and 4, i.e., M.Os.3, 1 and 2 respectively, were stained

with B-Group blood. The blood group of the stains found on item no. (2), i.e.,

M.O.1 knife, could not be ascertained as the result of the test was

inconclusive. Therefore, the question that arises is, was the blood seen in

M.O.1 knife that of the deceased? No answer is furnished by the prosecution

Crl.A.No.391 of 2007

to this aspect also.

23. Further, PW3 who identified the weapon says a knife like M.O.1

had been used in the incident by the accused for stabbing the deceased. PW3

has no case that M.O.1 is the knife used by the accused. Therefore, there

seems to be no proper identification of the knife also. The witnesses who

could have properly identified the knife, have not been examined. The court

below seems to have filled up the gaps in the prosecution story by concluding

on the basis of conjunctures and surmises. The prosecution has failed to

establish the case beyond reasonable doubt and hence I find that the accused

is entitled to get the benefit of doubt.

In the result, the appeal is allowed and the impugned judgment is set

aside and the appellant/accused is acquitted under Section 235(1) Cr.PC. His

bail bond shall stand cancelled and he shall be set at liberty forthwith.

Sd/-

C.S. SUDHA JUDGE ami/