Kerala High Court
Babu @ Radhakrishnan vs State Of Kerala on 17 June, 2022
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE C.S. SUDHA
FRIDAY, THE 17TH DAY OF JUNE 2022 / 27TH JYAISHTA, 1944
CRL.A NO. 1604 OF 2006
AGAINST THE JUDGMENT, CONVICTION AND SENTENCE IN SC 30/2004 OF
ADDITIONAL DISTRICT COURT (ADHOC-I), DATED 14.08.2006.
APPELLANTS/ACCUSED:
1 BABU @ RADHAKRISHNAN
S/O. GOVINDANKUTTY NAIR,
VALLATHOLE HOUSE,
THRIKKANDIYOOR AMSOM.
2 [email protected] GOPALAKRISHNAN
S/O. GOVINDANKUTTY NAIR,
VALLATHOLE HOUSE,
THRIKKANDIYOOR AMSOM.
BY ADV P.M.RAFIQ
RESPONDENT/RESPONDENT:
STATE OF KERALA
REP. BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
BY ADV PUBLIC PROSECUTOR
SMT. MAYA M.N.GP
THIS CRIMINAL APPEAL HAVING COME UP FOR FINAL HEARING ON
17.06.2022, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
2
Crl.Appeal No. 1604 of 2006
C.S.SUDHA, J.
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Crl.Appeal No. 1604 of 2006
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Dated this the 17th day of June, 2022
JUDGMENT
In this appeal filed under Section 374(2) Cr.P.C, the appellants
who are the accused in S.C.No.30/2004 on the file of the Sessions Court,
Manjeri, challenge the conviction entered and sentence passed against them
for the offences punishable under Sections 341, 323, 326 and 308 read with
Section 34 IPC.
2. The prosecution case, as revealed from the final report
filed by PW8, the Investigating Officer, is - the accused two in number, due
to their enmity towards PWs. 1 and 5 and in furtherance of their common
intention of assaulting and causing injuries to the latter, on 31/12/2002 at
10:30 p.m., wrongfully restrained them and voluntarily caused hurt by
beating the witnesses with their hands. The 1 st accused with a sharp weapon
cut PW1 on both his shoulders and hip, causing grievous hurt on his left
shoulder, thereby attempting to commit the offence of culpable homicide not
Crl.Appeal No. 1604 of 2006
amounting to murder. In the incident, PW5 sustained simple hurt. Hence as
per the final report, the accused are alleged to have committed the offences
punishable under Sections 341, 323, 324 and 308 read with Section 34 IPC.
3. Ext.P1 First Information Statement of PW1 was recorded
by PW8, the then Sub Inspector of Police, Tirur Police Station, on the basis
of which Ext.P1(a) FIR, i.e., Crime No.02/2003, was registered. The initial
investigation by PW8 was followed by investigation by PW9, the next Sub
Inspector, who completed the investigation and submitted the charge sheet
before the Court. On appearance of the accused before the court below,
charge was framed on 21.08.2004 for the offences punishable under Sections
341, 323, 326, 308 read with Section 34 IPC. Both the accused pleaded not
guilty.
4. Prosecution examined PWs.1 to 9 and got marked Exts.P1
to P8 in support of their case. PWs.1 and 5 are the injured. PW2 is an attestor
to the scene mahazar. PWs.3, 4 and 7 are the doctors who examined the
injured. PW6 is an eye witness and PWs.8 and 9 are the investigating
officers. Two eye witnesses, namely, Cws.4 & 5; CW 7, an attestor to the
Crl.Appeal No. 1604 of 2006
scene mahazar and CW 12, an Additional Sub Inspector, Tirur police station,
who had taken steps for obtaining the wound certificates have been given up
by the prosecution.
5. After close of the prosecution evidence, both the accused
were questioned under Section 313(1)(b) Cr.P.C. with regard to the
incriminating circumstances appearing against them in the evidence of
prosecution. They denied those circumstances and maintained their
innocence. They also submitted a joint statement in which they state that
PW1 and his accomplices, on almost a daily basis, assemble in a vacant plot
situated to the back of the building by name A.K. building at
Ambalakkulangara junction. The get together is followed by consumption of
alcohol. All the said persons are active workers of DYFI and have criminal
background. On 29.04.2006 at 04:45 p.m., some among the aforesaid
persons had wrongfully restrained a lottery ticket dealer, namely,
Balachandran at Ambalakkulangara junction and had voluntary caused hurt
to him, relating to which a crime had been registered. On the date of the
incident at 07:30 p.m., PW5 and others came to the hotel run by the 1 st
accused and picked up a quarrel with the latter and assaulted him. As the 1 st
Crl.Appeal No. 1604 of 2006
accused did not sustain any serious injuries, he did not immediately go to the
hospital. It was only when he developed severe pain during the night, he
went to the hospital and got necessary treatment. At 10:30 p.m. on the very
same day, when the 1st accused was about to close his hotel, PW5 in a
drunken stupor, approached and informed him that the latter and his friends
were celebrating new year-eve and that they require food for 5 to 7 persons.
The 1st accused replied that the hotel has been closed for the day; that the
workers had already left and therefore it was not possible to serve food as
demanded. This resulted in an altercation between them, followed by a
scuffle. Hearing the commotion, the other witnesses, namely, PW1, PW2,
CW4, CW5 and CW7 joined and started quarreling with the 1 st accused.
Seeing this some other persons who were also celebrating new year-eve,
came to the hotel and a scuffle ensued. The 1 st accused fearing danger to his
life, left the place. He later on came to know that PW1 had sustained injuries
in the melee and has been admitted in the hospital. PW1 never disclosed the
actual cause of injuries to the doctors who examined and treated him. PW1
and his associates were in inimical terms with the accused because the latter
used to tell his customers and local people about the illegal activities of the
Crl.Appeal No. 1604 of 2006
former. Due to this enmity, they have concocted and given a false complaint
against the accused persons.
6. As the court below did not find it a fit case to acquit the
accused under Section 232 Cr.P.C, the accused were asked to enter on their
defense and adduce evidence in support thereof. No oral evidence was
adduced by the accused. Exts. D1 to D2(a) are stated to be the contradictions
in the statements of the prosecution witnesses and Exts.D3 to D5, the FIR
and connected records in another crime, to show the criminal background of
the witnesses.
7. On a consideration of the oral and documentary evidence
and after hearing both sides, the court below by the impugned judgment
convicted and sentenced the accused. Both the accused have been sentenced
to undergo simple imprisonment for one month for the offence punishable
under Section 341 read with Section 34 IPC; rigorous imprisonment for 5
years, a fine of ₹ 5,000/- and in default of payment, to undergo rigorous
imprisonment for 6 months for the offence punishable under Section 326
read with Section 34 IPC; rigorous imprisonment for 5 years, a fine of
Crl.Appeal No. 1604 of 2006
₹5,000/- and in default of payment to undergo rigorous imprisonment for 6
months for the offence punishable under Section 308 read with Section 34
IPC. The 1st accused has been further sentenced to pay a fine of ₹1000/- and
in default of payment to undergo simple imprisonment for three months for
the offence punishable under Section 323 IPC. The entire fine amount on
realization has been directed to be paid as compensation to PW1 under
Section 357(1) Cr.P.C. The substantive sentence has been directed to run
concurrently. The period of remand undergone by the accused persons, that
is, from 11/08/2006 to 14/08/2006, both days inclusive, has been directed to
be given as set off. It is this judgment which is assailed in this appeal by the
appellants.
8. The only point that arises for consideration in this appeal
is as to whether the conviction entered and sentence passed against the
accused by the court below are sustainable or not.
9. Heard Sri.P.M.Rafiq, the learned counsel for the
appellants and Smt.Maya M.N., the learned Public Prosecutor for the
respondent.
Crl.Appeal No. 1604 of 2006
10. The first argument advanced challenging the prosecution
case and the impugned judgment is regarding the non-disclosure of the cause
of injuries and the identity of the assailants by PW.1 to the doctors who
examined him. According to the learned defense counsel, during the
examination of PW1 by PW3, a doctor of the Government hospital, Tirur,
who examined the former on 31.12.2002 at 11:45 p.m., that is, shortly after
the incident, was the first opportunity PW1 got, immediately after the
incident to disclose the cause of the injuries and identify his assailants.
However, he never did so. Ext.P3 wound certificate and the testimony of
PW3 shows that PW1 was examined by the former on 31.12.2002 at 11:45
p.m. According to the prosecution, the incident occurred at 10:30 p.m.
Therefore, without much delay, PW3 is seen to have examined PW1. PW3 in
Ext.P3 wound certificate has recorded bike accident as the cause of injuries.
The injuries noted in Ext. P3 wound certificate are -
"(1) Lacerated wound 5x3x2cm on the medial side of the left hand with
profuse bleeding -flexor muscle cut.
(2) Incised wound 3x2x1 cm. with flexor tendon injury on the right hand.
(3) Incised wound on the right side of scapula.
(4) Abrasion on the neck."
Crl.Appeal No. 1604 of 2006
According to PW3, in the light of the nature of injuries seen on PW1, he
entertained doubts about the cause stated and hence he put a question mark
in column number (9) of Ext.P3, the column for recording history and
alleged cause of injury. PW1 was again examined on 01/01/2003 at 07:30
a.m. by the Chief Medical Officer, Al-Sifa hospital, Perinthalmana and
Ext.P6 wound certificate issued. According to PW7, PW1 had come with a
history of alleged assault.
11. PW5, the other injured, was examined by PW4, a doctor
at Taluk hospital, Tirur on 01/01/2003 at 05:15 p.m. Ext. P5 is the wound
certificate issued by PW4, who deposed that PW5 on examination
complained of pain over his right forearm and right knee. The cause of injury
was stated to have been caused by Babukuttan (A1) beating him on
31/12/2002 at 10:45 p.m. It was pointed out that it was only after PW5
disclosed the cause of the incident to PW4, PW1 also disclosed the cause as
assault. However, he still did not reveal the details like the identity of the
assailants. This was stated to be one ground to suspect the prosecution story.
12. It is true that no duty is cast on the doctor while
examining the injured to note down or record the details of the alleged
Crl.Appeal No. 1604 of 2006
assailants or the cause of the incident in detail, as the primary duty of the
doctor is to treat the patients coming before him. As held in Pattipati
Venkaiah v. State of A.P., 1985 KHC 700: AIR 1985 SC 1715, a doctor is
not at all concerned as to who committed the offence or whether the person
brought to him is a criminal or an ordinary person, his primary effort is to
save the life of the person brought to him and inform the police in medico
legal cases. But this is a case in which a false or incorrect reason has been
given by PW1 as the cause of the injuries, which the doctor by the nature of
injuries seen, doubted it. This is all the more a flaw in the prosecution case
as Ext.P1 FIS and P1(a) FIR came into being much thereafter, that is, on
02/01/2003 at 08:00 a.m. Though it may not be the duty of the doctor to
enquire the names of the assailants, it is a question of attaching credibility to
the evidence of PW1 (Bhargavan v. State of Kerala, AIR 2004 SC 1058:
2004 KHC 39).
13. PW5 when examined by the doctor only refers to the
name of the first accused. PW1 even when examined by the second doctor
has not revealed the identity of his assailants or the alleged cause of the
injuries. In Ext.P3 it is also recorded that there was smell of alcohol when
Crl.Appeal No. 1604 of 2006
PW1 was examined. The court below has given quite an interesting reason
to the argument of the defense on this aspect. According to the court below,
Ext.P3 wound certificate would disclose that when PW1 was examined, there
was smell of alcohol. So, the court says that probably, PW1 might have been
celebrating the onset of new year by consuming alcohol in the company of
his friends. PW1 might have thought that if he revealed the real incident to
the doctor, the blame might come upon him and that probably might be the
reason which prompted him to state road traffic accident as the cause of his
injuries. The court below further goes on to observe that the definite case of
the accused when examined under Section 313 Cr.P.C. is that PW1 had
sustained the injuries in a scuffle. The suggestions given to the witnesses in
the box on behalf of the accused would also suggest that, the defense case is
that scuffle was the cause of the injuries seen on PW1. Therefore, the court
concluded that the accused also do not have a case that PW1 had sustained
injuries in a road traffic accident and so they cannot take advantage of the
incorrect cause mentioned in Ext.P3 to raise doubts regarding the
prosecution case.
14. The explanation given by the court below is one which
Crl.Appeal No. 1604 of 2006
even the accused do not have. PW3, the doctor, deposed that the cause of the
incident had been narrated to him by both the injured as well as the by-
standers. According to PW1, he was not in a proper state of mind to narrate
the cause of the incident. However, PW3, the doctor says that PW1 had no
difficulty in talking. Though PW1 says that during his examination by PW3,
he was not in a proper state of mind, he did seem to have the proper state of
mind to give a false or wrong or incorrect cause of the incident. This is one
among the few other grounds to suspect the prosecution case.
15. The incident is alleged to have taken place on 31/12/2002
at 10:30 p.m. Ext.P1 FIS is seen recorded on 02/01/2003 at 8 a.m. Ext.P1(a)
FIR is seen to have reached the court only on 04/01/2003 at 10:30 a.m. No
reasons are given for the delay in recording the FIS or the delay in the FIS
and FIR reaching the court. This is yet another reason to doubt the case.
16. The next argument advanced is regarding the presence of
light at the place of occurrence. The incident is alleged to have occurred at
10.30 p.m. The place of occurrence is stated to be the front side of the car-
porch of A.K. buildings situated at Ambalakulangara junction Tirur. It is
Crl.Appeal No. 1604 of 2006
submitted that neither the injured nor the occurrence witnesses have stated
anything to the Police regarding the source of light at the place of occurrence
and hence the identity of the assailants as spoken to by PW1 and PW5 is
doubtful. The learned Public Prosecutor in reply referred to Ext.P2 scene
mahazar. It is true that in the scene mahazar prepared by PW8, the
Investigating Officer, it is stated that there is sufficient light at
Ambalakulangara junction, which is situated about 20 meters away from the
place of occurrence. However, the contents of a scene mahazar is not
substantive evidence. Mere production or marking of a scene mahazar
through the Police Officer will not prove the facts stated therein. Relevant
facts which the investigating officer observed at the scene and which are
recorded by him in the scene mahazar must be deposed to by him in Court, if
the Court wants to rely upon them as evidence (Mohanan v. State of
Kerala, 2011 (4) KLT 59; Sivan @ Siva v. State of Kerala, 2012 KHC 629
and Mujeeb Rahman v. State of Kerala, 2020(3) KHC 400).
17. PW8, the investigating officer, who prepared the scene
mahazar, while in the box never deposed regarding the presence of light at
the scene of occurrence. If only had PW8 deposed in the court about the
Crl.Appeal No. 1604 of 2006
source of light he had observed at the place of occurrence, that would have
become admissible as substantive evidence. Here no such admissible
evidence has come on record relating to the source of light available at the
place of occurrence. However, this aspect is not of much importance because
the presence of the accused at the spot is not disputed. The only defense set
up is that PW1 and PW5 were injured not due to the assault by the accused as
alleged by the prosecution, but due to some other reasons. Moreover, the
testimony of PW1 and PW5 regarding the identity of the accused is not seen
challenged. Therefore, the presence or absence of light at the scene of
occurrence is not very material in this case.
18. The next argument is the non-recovery of weapons alleged
to have been used by the accused in the incident. It is true, as pointed out by
the learned Public Prosecutor that, mere non recovery of the weapons alleged
to have been used for the incident, is no reason to doubt or discard the entire
prosecution case. But here is a case where the prosecution offers no
explanation whatsoever for the non-recovery of the weapons. The allegation
of PW1 is that A1 and A2 were armed with a reaper, sword and nunchucks.
PW9 who submitted the charge sheet, quite casually is seen to have deposed
Crl.Appeal No. 1604 of 2006
that no attempts had been made during investigation to recover the weapons
alleged to have been used in the incident. Absolutely no reason(s) have been
given by the prosecution for this failure. Further, neither PW3 nor PW4, the
doctors who had examined PW1 were asked whether the injuries seen on
PW1, could have been caused by a sharp-edged weapon like a sword. This is
yet another reason to doubt the prosecution case.
19. In Ext.P1 FIS, the allegation is that it was the second
accused who had cut PW1 with a sword and caused grievous injuries.
However, in the final report this overt act is attributed to the first accused.
The court charge initially framed was also in tune with the final report filed
in this case. However, in the box PW1 and PW5 spoke in tune with the
version given in Ext.P1 FIS. From the proceedings paper of the court below
it is seen that after all the prosecution witnesses were examined, the final
report was permitted to be amended. The order dated 20/07/2006 reads-
"....... Chargesheet is permitted to be altered to rectify a clerical mistake.
Court also rectified accordingly. .....". In the final report the overt acts of the
accused are seen corrected with red ink as is done when an amendment is
carried out in a plaint. The charge framed by the court is also seen amended
Crl.Appeal No. 1604 of 2006
in a like manner in tune with the final report. What exactly is the provision
under which such a procedure has been followed, that too, after the entire
prosecution witnesses had been examined, is not made clear by the learned
Public Prosecutor. She however pointed out to Section 216 Cr.P.C. to
contend that the court has got power to amend the charge at any stage before
the judgment is pronounced and the irregularity if at all committed, will not
in any way affect the prosecution case in the light of Section 464. Cr.PC. It
was submitted that no finding, sentence or order by a Court of competent
jurisdiction shall be deemed invalid merely on the ground that no charge was
framed or on the ground of any error, omission or irregularity in the charge
including any misjoinder of charges.
20. Section 216 Cr.P.C. says that the Court may alter or add to
any charge at any time before the judgment is pronounced. It is true that as
per the provision, the court can amend the charge. But here is a case where
the final report is seen amended after all the prosecution witnesses were
examined. Even assuming that it was only a clerical mistake, which the court
below could have corrected at the request of the Investigating Officer, the
procedure contemplated under Section 216(2) Cr.P.C. ought to have been
Crl.Appeal No. 1604 of 2006
followed. Sub-section (2) says that every alteration or addition to the charge
shall be read over and explained to the accused. This procedure has not been
followed by the court below. As pointed out by the learned defense counsel,
in the court charge initially framed, the overt acts of the accused are different
from what is stated in the amended charge. So, the procedure contemplated
under Sections 216(2) ought to have been followed because it is the
allegations in charge that needs to be answered by the accused. After
complying with the said sub-section, if need be, the mandate contained in the
other sub-sections to Section 216 ought to have been followed. It is true that
as per Section 464, no finding, sentence or order by a court of competent
jurisdiction shall be deemed to be invalid merely on the ground that no
charge had been framed or on the ground of any omission, error or
irregularity in the charge, unless in the opinion of the court of appeal, a
failure of justice had in fact been occasioned thereby. In this case, the
allegations in charge that was read over to the accused is different from the
one contained in the amended charge. So, the compliance of section 216(2)
seems to have been necessary.
21. It is true as observed by the court below, that flaws in the
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investigation cannot be a reason to throw out the prosecution case. But the
aforesaid defects are not such that the same can be brushed aside easily. Yet
another serious flaw in the investigation conducted is Ext.P7 report submitted
by PW8. PW8 in Ext.P7 says that the investigation so far conducted has not
revealed that the accused had any intention to assault or cause injuries to the
witnesses or that they had made any preparations for that or that they had any
prior enmity towards the witnesses or that they intended to commit culpable
homicide and so the investigation is being proceeded with, after deleting the
offence under section 308IPC. PW8, the Police Officer who had conducted
the initial investigation and submitted Ext.P7, in the chief examination
deposed that he had accidentally/mistakenly submitted Ext.P7 before the
court and that he should not have given such a report. But in the box also he
does not have a case that his investigation did reveal the commission of the
offence punishable under Section 308 IPC. No clarification or explanation is
seen to have been asked by the prosecutor relating to this aspect when PW8
was in the box. In the cross examination he deposed that the said report had
been submitted after a major part of the investigation had been completed.
PW8 is seen to have offered quite a strange explanation for having submitted
Crl.Appeal No. 1604 of 2006
the said report. He deposed that several crimes had been registered during the
new year, into which cases he was conducting investigation. While so, he
was transferred due to which he was upset/worried. This according to him
might have been the reason for submitting the report. Quite a strange
explanation indeed.
22. PW9, the Investigating Officer who is stated to have
completed the investigation and submitted the charge sheet, also did not think
it necessary to take any corrective steps. PW8 and PW9 in a very callous and
casual manner are seen to have conducted the investigation. In the light of
Ext.P7 report, which the prosecution does not seem to be disowning, the
prosecution also seems to have no case of commission of the offence
punishable under section 308 IPC.
23. In these circumstances it can only be held that the
prosecution has failed in proving the guilt of the accused beyond reasonable
doubt. Hence the accused are entitled to get the benefit of doubt.
In the result, the appeal is allowed. The conviction and sentence
of the accused for the offences punishable under section 341, 323, 326 and
308 r/w section 34 IPC by the impugned judgment is set aside and the
Crl.Appeal No. 1604 of 2006
appellants/accused are acquitted under section 235(1) Cr.PC. Their bail bonds
shall stand cancelled and they shall be set at liberty, if not required in any
other cases.
Sd/-
C.S.SUDHA
JUDGE
Jms
