Rathishkumar @ Iruttu vs State Of Kerala
2023 Latest Caselaw 3335 Ker

             IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
              THE HONOURABLE MRS. JUSTICE C.S. SUDHA
      FRIDAY, THE 24TH DAY OF MARCH 2023 / 3RD CHAITHRA, 1945
                         CRL.A NO. 1169 OF 2007
              AGAINST THE CONVICTION AND SENTENCE IN
 SC 45/2007 OF THE ADDITIONAL SESSIONS COURT (ADHOC-I), KOTTAYAM


APPELLANT/1ST ACCUSED:

          RATHISHKUMAR @ IRUTTU
          ELAMALA HOUSE,KOLLAD KARA,
          PANACHIKAD VILLAGE,KOTTAYAM.
          BY ADVS.SRI.K.GOPALAKRISHNA KURUP
          SRI.S.MANU
          SRI.SUVIN R.MENON




RESPONDENT/COMPLAINANT:

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


          SRI.SANAL P. RAJ-PP



     THIS CRIMINAL APPEAL HAVING COME UP FOR FINAL HEARING ON
3/3/2023, THE COURT ON 24.03.2023, DELIVERED THE FOLLOWING:
 Crl.Appeal No.1169 of 2007
                                        2


                             C.S. SUDHA, J.
                    ------------------------------------------
                        Crl.Appeal No.1169 of 2007
               -----------------------------------------------------
                 Dated this the 24th day of March, 2023


                              JUDGMENT

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

the first accused (A1) in S.C.No.45/2007 on the file of the Court of

Session, Kottayam, challenging the conviction entered and sentence

passed against him for the offence punishable under Section 308 IPC.

2. The prosecution case as stated in the final report/charge sheet

is as follows - A1 due to his enmity towards PW1 as the latter refused to

accede to the demand for money by the former and with the intention of

causing his death, A1 along with his accomplices, namely, A2 to A4, on

15/08/2005 at 12.10 a.m. wrongfully restrained (വട വളഞ) him and then

A1 with a knife in his possession, stabbed PW1 on the left side of his

forehead causing a grievous injury. Thus, A1 to A4 have committed the

offences punishable under Sections 341, 308 read with Section 34 IPC.

3. On the basis of Ext.P1 FIS given by PW1-the injured on

15/08/2005, which was recorded by PW7, the Head Constable, Crl.Appeal No.1169 of 2007

Gandhinagar Police Station, Kottayam, Ext.P5 FIR, that is, Crime

No.379/2005, Gandhinagar Police Station, was registered by PW8, the

then Sub Inspector of the aforesaid police station. PW8 conducted the

initial investigation, which was taken over by PW9, the Sub Inspector of

police who took charge thereafter. PW9 completed the investigation and

submitted charge-sheet against four persons, namely, A1 (Rathishkumar),

A2 (Ani P. James), A3 (Lowrance T.J.) and A4 (Charles George). On

submission of the final report before the jurisdictional Magistrate, the case

was taken on file as C.P.No.09/2006, pursuant to which the case was

committed to the Court of Session, Kottayam, which court took the case

on file as S.C.No.45/2007.

4. When all the accused appeared before the Court of Session,

they were furnished with copies of all the prosecution records. On

24/03/2007, the court framed a charge for the offences punishable under

Sections 341, 308 read with Section 34 IPC, which was read over and

explained to all the accused, to which they pleaded not guilty. The

prosecution examined PWs.1 to 8 and got marked Exts.P1 to P8 and MO1

to prove the case. After the close of the prosecution evidence, all the

accused were questioned under Section 313(1)(b) Cr.P.C. with regard to Crl.Appeal No.1169 of 2007

the incriminating circumstances appearing against them in the evidence of

the prosecution. All the accused denied those circumstances and

maintained their innocence.

5. As the Sessions Court did not find it a fit case to acquit the

accused under Section 232 Cr.P.C., they were asked to enter on their

defence and adduce evidence in support thereof. No oral or documentary

evidence have been adduced by the accused.

6. On a consideration of the oral and documentary evidence and

after hearing both sides, the Sessions Court by the impugned judgment

acquitted A2 to A4. A1 has been found guilty for the offence under

Section 308 IPC and hence convicted and sentenced to undergo rigorous

imprisonment for four years and to pay a fine of ₹5,000/- and in default of

payment of fine, to undergo rigorous imprisonment for six months. It has

also been directed that if the fine amount is paid, the same would be paid

to PW1 under Section 357(1) Cr.P.C. Set off as provided under Section

428 Cr.P.C. has also been allowed.

7. On 29/06/2007, this Court directed the execution of the

sentence to stand suspended and the accused was granted bail. In the

appeal memorandum it is alleged that the conviction and sentence Crl.Appeal No.1169 of 2007

imposed on the appellant/A1 is contrary to evidence and law; that though

prosecution has failed to prove the offence alleged against A1, the trial

court has wrongly convicted him ignoring the major contradictions and

omissions in the testimony of PW1 and PW2; that though there were

independent witnesses available at the scene, none of them have been

examined; the trial court failed to take note of the fact that the prosecution

case is inherently improbable; recovery of MO1 knife is only a farce and

that even assuming that the prosecution case is accepted in toto, the

offence under Section 308 IPC has not been made out. That being the

position, the argument advanced is that A1 is entitled to the benefit of

doubt and hence the impugned judgment is liable to be interfered with.

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

whether the conviction entered and sentence passed against A1 by the

Sessions Court is sustainable or not.

9. Heard Sri.S.Manu, assisted by Sri.Suvin R.Menon, the

learned counsel for the appellant/A1 and Sri.Sanal P.Raj, the learned

Public Prosecutor for the respondent.

10. I make a reference to the evidence adduced by the

prosecution in support of the case. The story narrated by PW1-the injured, Crl.Appeal No.1169 of 2007

in Ext.P1 FIS reads: - On 14/08/2005 at 12.10 a.m., he was assaulted with

a knife by a person called 'Iruttu' (A1) and three other persons. On the

said day by about 09.15 p.m., he heard that George chettan (PW3), an

acquaintance, had been assaulted and injured by Iruttu (A1) and some

other persons, which incident took place near the shop of one Baby

chettan. PW3 had been assaulted with an axe resulting in injuries on his

head. Hearing this, he immediately proceeded to the place near the shop

of Baby chettan. There he saw George chettan (PW3) with a bleeding

injury on his head. PW1 along with his father, Baby (PW2) and Sojan

took the injured in an autorickshaw to the Medical College Hospital,

where PW3 was admitted. While he was with George chettan (PW3) in

the observation ward of the hospital as a bystander, by about 12.10 a.m.,

Iruttu (A1) along with three other persons arrived there. They surrounded

him. A1 saying that PW1 is only an outsider, expressed his displeasure in

PW1 not giving the money demanded by the former. Saying so,

Iruttu(A1) with a knife stabbed him on his left forehead resulting in a

bleeding injury. When the people standing nearby made a hue and cry, the

four assailants left the place. He was immediately taken by his father

(PW2) and Sojan to the casualty where he was examined by a doctor,

pursuant to which he was admitted in the hospital. He is acquainted with Crl.Appeal No.1169 of 2007

Iruttu (A1), who comes to his work place. He can also identify the other

three persons who were present along with Iruttu.

10.1. PW1 has further stated that he is a mason and that during the

relevant time, he was working in the construction site of a building

situated near the ESI hospital. Iruttu (A1) used to come to the work site

and keep demanding money from the workers at the site saying that they

are all outsiders and hence obliged to give him money. According to

PW1, Iruttu (A1) has the habit of not returning the money lent to him and

so he never used to give the latter any money. It was due to that enmity,

Iruttu(A1) had assaulted and injured him. The act of A1 could even have

caused his death. He can identify the knife used to injure him. There are

several witnesses to the incident.

11. PW1 when examined, to a certain extent stands by the case in

Ext.P1 FIS. He identified MO1 knife with which A1 is alleged to have

stabbed and injured him. PW1 deposed that on being stabbed, he had

cried out aloud and then A1 ran away from the scene of occurrence. The

injury required to be sutured. He identified his signature in the FIS and

the same has been marked as Ext.P1. In the cross examination PW1

deposed that he had stated the name of A1 to the police while giving his

FIS. According to PW1, A1 had demanded money immediately before Crl.Appeal No.1169 of 2007

the stabbing incident and it was because he had refused to accede to the

demand, the former had stabbed him. A1 had stabbed him with the

intention to cause his death. To a question whether MO1 is an instrument

used in the hospital for cutting plaster, he answered in the affirmative.

12. PW2, the father of PW1 supports the case of his son.

According to him, the incident had taken place when he along with his son

were attending PW3 who had been admitted in the hospital. On the said

day, he was sitting on the bed of PW3, at which time his son was standing

next to him. A1 came there and stood looking at PW3 for some time. A1

then moved towards his son. He heard his son crying out that he has been

stabbed. He saw blood flowing from the injury sustained by PW1.

Ratheesh (A1) ran away. He took his son to the doctor at the casualty.

The injury required to be sutured. In the cross examination, he denied

having heard any conversation taking place between A1 and his son before

the incident. According to PW2, the incident took place in front of him

and at that time, he had not seen anybody else. (എന മന ല വച ണ സ ഭവ

ഉണ യത മറ ന യ ഞ ന കണ ട ല.)

13. CW2 - Sojan, who along with PW2, is stated to have taken

PW1 to the doctor, has not been examined. He was given up by the

prosecution.

Crl.Appeal No.1169 of 2007

14. PW3 admitted that he is acquainted with PW1 and PW2 and

that on 14th day of August, he had been admitted in the hospital due to

injuries sustained by him. However, he denied having seen the incident in

which PW1 had been injured. According to him, he has only hearsay

knowledge of the fact that PW1 had been injured on the said day. He

further deposed that when the incident in this case took place, he was not

in a conscious state. He admitted that PW1 and PW2 were his bystanders

at the hospital. He denied having stated to the police that he had seen the

incident. He identified A1 in the box. He denied the suggestion put to

him that he is deposing falsehood as A1 had threatened him. PW3

deposed that he is unaware as to who had assaulted and injured him on the

said day before the incident in this case took place.

15. PW4, Lecturer General Surgery, Medical College Hospital,

Kottayam, deposed that on 15/08/2005, at 12.15 a.m., he had examined

PW1 and issued Ext.P3 wound certificate. The injury noted is a lacerated

wound 3 x 0.5 cm over the frontal region of the scalp and 7 cms above

medial end of the left eyebrow. PW4 when asked whether the injury noted

in Ext.P3 certificate could be caused by MO1 knife, replied in the

affirmative. In the cross examination, he deposed that, if timely treatment

had not been provided, the injury could have turned fatal. PW4 deposed Crl.Appeal No.1169 of 2007

that stabbing could cause an incised wound. He admitted that he had not

noted any bleeding from the injury mentioned in Ext.P3 certificate. He

also deposed that had the injury been fresh, he would have noticed

whether the injury had been bleeding or not. To a question whether the

injury was sufficient to cause death, he answered that the site of injury

was on the scalp and therefore had it not been treated timely, it could have

turned fatal.

16. PW5, who is stated to be an attestor to the scene mahazar,

turned hostile and denied having attested the mahazar. He denied any

acquaintance with A1.

17. PW6 admitted his signature in Ext.P4 seizure mahazar.

According to PW6, he had attested in the mahazar, which was prepared in

the vicinity of the quarters of his wife bearing no. E15, situated in the

campus of the Medical College hospital, Kottayam. He does not know

whether A1 was present along with the police on the said day. He had not

noticed the presence of anyone other than the police on the said day.

According to him, the police had showed him a weapon. When MO1 was

shown to him, PW6 deposed that he cannot say whether MO1 is the

weapon that had been shown to him by the police on the day of the alleged

recovery.

Crl.Appeal No.1169 of 2007

18. PW7, Head Constable, Gandhinagar Police Station deposed

that on the basis of the intimation received from the Medical College

Hospital, he had proceeded to the hospital and recorded Ext.P1 FIS on

15/08/2005 at 09.30 a.m. He admitted his signature in Ext.P1. In the

cross examination, PW7 deposed that PW1 has not referred to the name of

A1, (Ratheesh) in the FIS. On the other hand, PW1 referred to his

assailant as 'Iruttu'. When PW7 was asked whether any identifying marks

of the said person had been stated by PW1, he answered that PW1 had

only stated that he could identify the assailant by sight.

19. PW8, Sub Inspector, Gandhinagar Police Station deposed that

on the basis of Ext.P1 FIS, he had registered Ext.P5 FIR on the same day.

He had conducted the investigation in this case, proceeded to the scene of

occurrence and prepared Ext.P6 scene mahazar. Though he had searched

the house of A1, nothing incriminating could be recovered. The search

memo and the search list have been marked as Exts.P7 and P8

respectively. He had questioned the witnesses and recorded their

statements. The further investigation was conducted by PW9. In the cross

examination, he deposed that as per the version of PW2, there was more

than one assailant.

Crl.Appeal No.1169 of 2007

20. PW9, Sub Inspector, Gandhi Nagar Police Station deposed

that on 15/10/2005 he had taken over the investigation in this case. He

had arrested A1 on 27/10/2005. PW9 identified MO1, which according to

him was recovered as per Ext.P4 seizure mahazar on the basis of Ext.P4(a)

disclosure statement given by A1. The recovery was from the sunshade on

the southern side of quarter bearing no. E15 situated in the Medical

College campus.

21. Now the question is whether the aforesaid evidence is

sufficient to find A1 guilty of the offence punishable under Section 308

IPC. It was submitted by the learned defence counsel that the evidence on

record is totally unsatisfactory and insufficient to establish the case

alleged against A1. The version of PW1 in the box is inconsistent with the

version in Ext.P1 FIS as well as the testimony of his father, namely, PW2;

that the recovery of MO1 knife has not been properly established; that in

the light of the charge framed, Section 308 IPC will not alone stand, in the

absence of Section 34 IPC; that there were several other independent

witnesses present at the time of the alleged incident, but none has been

examined; that the ocular evidence and medical evidence do not tally; that

there is no material on record to show how the police identified or Crl.Appeal No.1169 of 2007

concluded that A1 is the assailant in the absence of any identifying marks

of the assailant being referred to in Ext.P1. So, the argument is that A1,

the appellant, is entitled to the benefit of doubt.

22. Per contra, it is submitted by the learned Public Prosecutor

that PW4-the doctor, has deposed that, had timely treatment not been

given to PW1, the same would have proved fatal, which according to him,

proves the ingredients of the offence under Section 308 IPC. Recovery of

MO1 knife is proved through PW6. The overt acts of A1 have been

clearly deposed by PW1 and PW2, who have also identified MO1. There

is no infirmity in the findings of the trial court calling for an interference

by this Court, submits the learned Public Prosecutor.

23. As stated earlier, in Ext.P1 FIS, PW1 speaks of the

involvement of four persons including A1. Going by the version in

Ext.P1, A2 to A4 had actually assisted A1 in the act of wrongfully

restraining/confining PW1 and then in furtherance of their common

intention, A1 is alleged to have stabbed PW1 with MO1 knife. However,

that is not the case of PW1 in the box. His testimony is completely silent

about the role of A2 to A4. This is not a case where, the testimony of

PW1 against the remaining accused is unsatisfactory, but is a case where Crl.Appeal No.1169 of 2007

there is absolutely no reference to the role of the remaining accused in the

crime. Had it been otherwise, or a case where his evidence was

unsatisfactory as against the other accused, the same alone could not have

been a ground to discard his evidence or disbelieve him. However, in this

case quite inconsistent with his version in Ext.P1, PW1 in the box takes up

a different case. No attempt has been made by the prosecution during the

trial to clarify this aspect.

24. PW2's version is again slightly inconsistent with the version

of his son, PW1. True, he also speaks of the incident of stabbing by A1.

PW1 says that a conversation had taken place between him and A1, before

the incident of stabbing took place. According to PW1, A1 used to

demand money from him even before the incident also. On the date of the

incident also, A1 after coming to the place of occurrence, questioned

PW1's reluctance/refusal to accede to his demand for money and is then

stated to have stabbed him. However, PW2 has no such case. This

inconsistency could have been ignored, had other evidence been

satisfactory. But that is not the case here. Further, the presence of other

independent witnesses including CW2 at the scene, is referred to in Ext.P1

FIS. However, no independent witnesses have been examined. It is true Crl.Appeal No.1169 of 2007

that it is the prerogative of the prosecution to decide which witnesses are

to be examined to prove their case. However, when independent

witnesses were very much available and the testimony of PW1 and PW2

are not quite satisfactory, prosecution has certainly a duty to explain why

CW2, an independent witness, though alleged to have been present at the

time of the incident, was given up without being examined to prove the

case.

25. Further, the incident in this case is alleged to have taken place

at 12.10 a.m. PW1 was examined by PW4, the doctor, at 12.15 a.m.

Therefore, the gap between the incident and the medical examination of

PW1 is hardly five minutes. If PW1 and PW2 are to be believed, the

former had sustained a bleeding injury. However, PW4, the doctor, has no

such case. He deposed that had there been a bleeding injury, he would

certainly have noted the same in Ext.P3 wound certificate. It is true that

normally when there is discrepancy between the ocular testimony and the

medical evidence, ocular evidence would prevail, provided the same is

creditworthy. However, in the instant case, that is not the case.

26. Now, coming to the recovery of MO1 knife. PW6 who is the

attestor in Ext.P4 seizure mahazar, does not support the prosecution case. Crl.Appeal No.1169 of 2007

He admits that he is an attestor to Ext.P4. However, he does not support

the prosecution case relating to the recovery. If PW6 is to be believed, it

was the police who had showed him MO1. He does not support the

prosecution story that it was A1 who had taken MO1 knife from the

sunshade of Quarter No.E15 situated in the campus of the Medical

College Hospital. It is true that even in cases where the attesting

witnesses turn hostile or do not support the prosecution case, that alone is

also no ground to disbelieve or discard the prosecution case. However, in

the light of the other unsatisfactory evidence referred to, it may not be safe

to enter into a conclusion of conviction on the basis of a mere recovery.

(See Bijender @ Mandar v. State of Haryana, 2021 ICO 2145).

27. Finally, in Ext.P1 FIS, PW1 only says that he was assaulted

by a person known as 'Iruttu' (ഇരട ). The name of A1, that is, Ratheesh,

is not seen referred to in Ext.P1. The fact that PW1 had not stated the

name of A1 in the FIS, is admitted by the investigating officer also. No

identifying marks have been mentioned in Ext.P1 FIS. It is not clear from

the evidence as to how then, the police had identified or concluded that it

was A1 who was the actual assailant. The trial court in paragraph 15 of

the impugned judgment, has referred to an incident of A1 threatening PW1 Crl.Appeal No.1169 of 2007

with dire consequences if he testified against A1, pursuant to which PW1

is stated to have submitted a request for police protection. The complaint

was forwarded to Gandhinagar police station with necessary directions

and A1 had also been warned from repeating his act. According to the

learned Sessions Judge, this incident could probably have weighed with

PW3, an eye witness, and prompted him to deviate from the prosecution

story and turn hostile. However, no such materials are seen placed on

record to substantiate this finding of the trial court. Going by the version

of PW1 or if PW1 is to be believed, A1 had stabbed him with MO1 knife

which resulted in a bleeding injury. If that be so, the assault or attack

must have been with the sharp edge of MO1 and not with its blunt side.

However, the trial court in paragraph 16 is seen to have come to a

conclusion which version even PW1 does not have. As per Ext.P3 wound

certificate, PW1 had sustained a lacerated injury on his forehead.

According to the accused, had PW1 been stabbed with MO1 knife, an

incised wound alone would have been the result and that the possibility of

causing a lacerated wound by stabbing with MO1 knife is quite remote.

The trial court rejected this argument by concluding that the lacerated

injury must have been caused during the course of the incident by the

blunt side of MO1 weapon hitting PW1. This is a case which PW1 does Crl.Appeal No.1169 of 2007

not have. Going by his case, A1 stabbed him with MO1 knife which

caused a bleeding injury and that the intention of A1 in stabbing him with

MO1 knife, was to cause his death. He has never a case that the assault by

A1 was with the blunt portion of the knife. The trial court seems to have

taken into account extraneous matters to come to the conclusion regarding

the guilt of A1. The evidence on record is unsatisfactory to prove the guilt

of the accused beyond reasonable doubt. Hence, I find that he is entitled

to the benefit of doubt.

In the result, the appeal is allowed. The conviction and sentence of

the appellant/A1 for the offence punishable under Section 308 IPC by the

impugned judgment is set aside and he is acquitted under Section 235(1)

Cr.P.C. The bail bond of the accused shall stand cancelled and he shall be

set at liberty forthwith, if not required in any other case.

Interlocutory applications, if any pending, shall stand closed.

Sd/-

C.S. SUDHA JUDGE

ami/Jms