Ugatho Goud vs The State Of Kerala
2024 Latest Caselaw 14132 Ker

Kerala High Court

Ugatho Goud vs The State Of Kerala on 29 May, 2024

Author: P.B.Suresh Kumar

Bench: P.B.Suresh Kumar

        IN THE HIGH COURT OF KERALA AT ERNAKULAM
                               PRESENT
       THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
                                    &
       THE HONOURABLE MRS. JUSTICE M.B. SNEHALATHA
 WEDNESDAY, THE 29TH DAY OF MAY 2024 / 8TH JYAISHTA, 1946
                      CRL.A NO. 1120 OF 2022

  AGAINST THE JUDGMENT DATED 16.10.2018 IN SC NO.589 OF
 2017 OF THE ADDITIONAL SESSIONS COURT - III, MANJERI

APPELLANT/ACCUSED:

            UGATHO GOUD,
            AGED 22 YEARS,
            S/O.SAINASI GOUD, MUTHALIYAGUDA VILLAGE,
            NUVANKOTTU P.O., NAVARANGAPUR DISTRICT,
            ORISSA-746 075
            BY ADVS.
            ARUN CHAND
            THAREEQ ANVER K.
            K.SALMA JENNATH
            ABHIJITH S.R.

RESPONDENT/STATE:

            THE STATE OF KERALA,
            REPRESENTED BY THE PUBLIC PROSECUTOR,
            HIGH COURT OF KERALA, ERNAKULAM-682 031.
            SRI.E.C.BINEESH P.P.

     THIS     CRIMINAL     APPEAL        HAVING      BEEN   HEARD    ON
21.05.2024,     THE    COURT   ON       29.05.2024     DELIVERED    THE
FOLLOWING
 Crl.Appeal No.1120 of 2022

                                      -: 2 :-




            P.B.SURESH KUMAR & M.B.SNEHALATHA, JJ.
                  -----------------------------------------------
                      Crl.Appeal No.1120 of 2022
                  -----------------------------------------------
                 Dated this the 29th day of May, 2024


                                 JUDGMENT

P.B.Suresh Kumar, J.

The sole accused in S.C.No.589 of 2017 on the files

of the Court of the Additional Sessions Judge-III, Manjeri is the

appellant in the appeal. He stands convicted and sentenced for

the offences punishable under Sections 302 and 201 of the

Indian Penal Code (IPC).

2. Parthiv, a migrant worker hailed from Orissa

was found lying in his rented room at the place called

Moochikkal in a pool of blood with an injury on his head at

about 4.30 p.m. on 18.12.2016. One Aseeb, who saw Parthiv

informed the matter to one Shihabudheen who was running an

office in another room in the same building. Shihabudheen and

another took Parthiv to a hospital at Chelari first, and then to

the Medical College Hospital, Kozhikode, as the injury suffered

by Parthiv was serious. Parthiv succumbed to the injury while

undergoing treatment at the Medical College Hospital on

01.01.2017. Alavi Haji, the owner of the building informed the

death of Parthiv to Thenhipalam Police, and on the basis of the

said information, a case was registered initially under Section

174 of the Code of Criminal Procedure (the Code). Later, as it

was revealed that it was a case of homicide, the First

Information Report was transferred to the Jurisdictional

Magistrate and the provision under which the case was

registered was altered to Section 302 IPC. The investigation

conducted in the case, thereupon, revealed that it was the

appellant who caused the death of Parthiv. Accordingly, final

report was filed in the case under Sections 302 and 201 IPC.

The accusation in the final report is that at about 2 p.m. on

18.12.2016, the accused, another migrant worker hailing from

Orissa committed murder of Parthiv by hitting on his head with

a hoe, causing a grievous injury on his head, at the room in

which Parthiv was residing, situated in the upstairs of the

building.

3. On the accused being committed to trial, the

Court of Session framed charges against him, to which he

pleaded not guilty. Thereupon, the prosecution examined 17

witnesses as PWs 1 to 17 and proved through them 29

documents as Exts.P1 to P29. MOs 1 to 10 are the material

objects in the case. When the incriminating circumstances

were put to the accused in terms of the provisions contained in

Section 313 of the Code, the accused denied the same. The

Court of Session, thereupon, on a consideration of the

evidence on record, held that the accused is guilty of the

offences for which he was charged, convicted and sentenced

him to undergo imprisonment for life and to pay a fine of

Rs.1,00,000/- for the offence punishable under Section 302 IPC

and to undergo rigorous imprisonment for a period of three

years and to pay a fine of Rs.10,000/- for the offence

punishable under Section 201 IPC. The accused is aggrieved

by his conviction and sentence.

4. Heard Adv.Thareeq Anver K. for the accused

and the learned Public Prosecutor.

5. It was pointed out by the learned counsel for

the accused that the case on hand is a case that rests on

circumstantial evidence and the only circumstance established

by the prosecution is the evidence tendered by the

investigating officer that MO8 hoe with which the injury

suffered by the victim could be caused has been recovered

based on the information furnished by the accused. According

to the learned counsel, in a case of this nature, there shall be a

chain of evidence so complete as not to leave any reasonable

ground for the conclusion consistent with the innocence of the

accused and shall also show that in all human probability, the

death must have been caused by the accused. It was the

argument of the learned counsel that in the absence of any

other circumstances pointing towards the guilt of the accused,

the Court of Session ought not have convicted the accused

solely based on the recovery of evidence, especially when it is

not a substantive evidence. Per contra, the learned Public

Prosecutor supported the impugned judgment pointing out that

the oral evidence tendered by PW8 together with the recovery

evidence and the forensic evidence would establish the guilt of

the accused beyond reasonable doubt.

6. The point that falls for consideration is

whether the conviction of the accused and the sentence

imposed on him, are sustainable in law.

7. The Point: PW4 was the doctor who examined

the victim on 18.12.2016 at the Government Medical College

Hospital, Kozhikode. Ext.P3 is the accident register-cum-wound

certificate issued by PW4. PW4 deposed that the injuries

suffered by the victim as recorded by him in Ext.P3 could be

caused in an attack using a spade and he was shown the

weapon which was used for assault, by the police. PW16 is the

doctor who conducted post-mortem examination of the body of

the victim. Ext.P17 is the post-mortem certificate issued by

PW16. One among the ante-mortem injuries noted by PW16 at

the time of the post-mortem examination is a head injury. The

said head injury has been described by PW16 thus:

"Scab partially fallen healed scalp injury 3x0.5-1cm on left parietal region 1cm behind the curvature of therapeutic artifact No. 1. Scalp showed full thickness blood infiltration with varying colour, dark red to yellowish brown over an area 20x4-12cm over left fronto temporo parietal region. The underlying skull showed a surgically made defect by connecting burr holes over an area 12x9cm on fronto temporo parietal region. The underlying dura was seen cut exposing the protruding cerebral cortex which showed thin organized subarachnoid haemorrhage over, with multiple liquified foci of cortex. Fissured fracture seen over left parieto temporal region 11cm long seen extending from the surgically made defect. The entire brain parenchyma was oedematous. Left fronto temporal lobes and ganglio capsular area showed liquifactive changes and haemorrhagic contusions over 2x2x1cm. Uncal herniation noted bilaterally.

Haemorrhagic contusion 0.5x0.5x0.5cm noted over right occipital lobe (outer aspect). Thin subarachnoid haemorrhage noted over right occipital lobe and both cerebellar hemispheres. Cerebellar coning noted. The roof of left orbit seen fractured."

It was deposed by PW16 that the injury referred to above was

a blunt force impact injury sustained to the head of the victim

and the death of the victim was due to the complications of the

said injury. It was also deposed by PW16 that the investigating

officer had shown to him the weapon allegedly used for

causing the injury and the said weapon is capable of producing

an injury in the nature of one referred to above. Although the

evidence tendered by PW4, the doctor at the Government

Medical College, and PW16 were not consistent as to the

nature of weapon used by the assailant to cause the injury

suffered by the victim on his head, their evidence is sufficient

to hold that it is a case of homicide. In other words, the

prosecution has established beyond reasonable doubt that it is

a case of homicide.

8. The next aspect to be considered is as to who

caused the death of the victim. In order to consider the said

aspect, it is necessary to refer to the relevant evidence. PW1 is

the owner of the building in which the victim was residing. As

noted, it was on the basis of the information furnished by PW1

that the case was registered. PW1 deposed the said fact in his

evidence. In addition, PW1 deposed that the victim was

residing in a room rented out to the latter along with three

others. PW1 further deposed that he knows the accused as he

was also earlier staying in the room adjoining to the room in

which the victim was staying. PW2 is Shihabudheen who took

the victim to the hospital. PW2 is running an office in another

room in the first floor of the building owned by PW1 adjoining

to the room occupied by the victim and others. PW2 deposed

that he came to the building at about 5.00 p.m. on 18.12.2016

on receiving information from PW8, Aseeb, a person working in

a shop in the ground floor of the building and that there was a

quarrel between the migrant labourers in the adjoining room. It

was also deposed by PW2 that when he went to the adjoining

room, he found Parthiv lying in a pool of blood with an injury on

the backside of his head. PW2 also deposed that it was he who

took the injured initially to D.M.H.Hospital, Chelari in a car

along with one Basheer and from there to the Medical College

Hospital, Kozhikode for treatment. PW2 also deposed that he

knows the accused as he was also earlier residing in a room in

the same building. PW2 further deposed that later, the police

party brought the accused to the building and that he

witnessed the accused taking out MO8, a bloodstained hoe and

MOs 9 and 10 clothes from two different parts of the building

and handing over the same to the police.

9. PW3 is another migrant labourer who hails

from Orissa and he deposed that he used to stay at

Moochikkal, when he comes to the State for work. PW3 also

deposed that he knows both the accused and the victim and

according to him, he was also there to take Parthiv to the

hospital. Even though it was deposed by PW3 that on the day

on which Parthiv suffered injury, Parthiv and the accused

prepared food and ate together, in cross-examination, it was

stated by PW3 that he did not see Parthiv and the accused

having food together and he made such a statement based on

the information received by him from others. In cross-

examination, PW3 clarified that there were altogether five

persons in the room in which Parthiv was residing and there

were four others in the adjoining room.

10. As deposed by PW2, PW8 Aseeb is a person

working in a shop in the ground floor of the building owned by

PW1. PW8 gave evidence consistent with the evidence

tendered by PW2. That apart, PW8 also deposed that he

knows the accused, as the latter was residing in the room

adjoining to the room in which Parthiv was earlier staying and

that PW8 saw the accused proceeding to the upstair portion of

the building at about 12.30 p.m. on 18.12.2016. It is seen that

the evidence tendered by PW8 is not consistent with his

previous statements. In the circumstances, even though the

Public Prosecutor put to him questions which might be put in

cross-examination, with the permission of the court as

provided for under Section 154 of the Indian Evidence Act,

nothing relevant could be elicited from him.

11. PW17 was the investigating officer in the case.

PW17 deposed that the accused was arrested on 21.01.2017

and during interrogation, it was disclosed by the accused that

he kept a hoe and a few clothes in the same building and that

he can hand over the same, if he is taken to that place.

According to PW17, the accused was accordingly taken to a

room in the first floor of the building of PW1, and from the

cement rack on the western wall of the said room, he took out

MO8 hoe which was hidden there inside a pile of waste.

Similarly, it was also deposed by PW17 that thereupon, from

another room, the accused took out and handed over to him

MO9 blue baniyan and MO10 maroon trouser and the

investigating officer seized all the said objects in terms of

Ext.P18 mahazar.

12. Ext.P29 is the report of the Forensic Science

Laboratory. It is stated in Ext.P29 that the blood found in MO8

hoe belongs to the victim. It is also stated in Ext.P29 that

though blood was found in MO9 and MO10 clothes as well, the

same was insufficient for determining the origin and group as

also extraction and typing of DNA.

13. From the evidence referred to in the preceding

paragraphs, the circumstances that could be taken as

established in the case, are only the following:

(1) that the victim was residing at the relevant

time, in one of the rooms in the first floor of the building

which belongs to PW1;

(2) that PW8 saw the accused proceeding to the

first floor of the building at about 12.30 p.m. on the day

on which the victim was found lying in a pool of blood in

his room;

(3) that MO8 hoe containing the blood of the victim

was recovered based on the information furnished by

the accused;

(4) that MOs 9 and 10 clothes seized based on

information furnished by the accused, contained blood.

It is seen that it is based on the aforesaid circumstances that

the Court of Session came to the conclusion that it was the

accused who committed the murder of the victim. The pointed

question is whether such an inference is possible from the

circumstances aforesaid.

14. It is trite that the following are the principles

to be applied in a case on circumstantial evidence to answer

the question whether the guilt of the accused has been

established beyond reasonable doubt:

(i) that the circumstances from which the conclusion of guilt is drawn are fully established,

(ii) that the facts so established are consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty,

(iii) that the circumstances are of a conclusive

nature and tendency,

(iv) that they should exclude every possible hypothesis except that the accused is guilty, and

(v) that there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability, the act must have been done by the accused.

Before applying the principles aforesaid to the facts, it is

necessary to note a few aspects that have come on record in

the case. It is settled that in a case on circumstantial evidence,

motive assumes great importance. Even though it is alleged in

the final report that the accused caused the death of the

victim, for the victim has not returned a sum of Rs.2,000/-

borrowed from the accused, no evidence whatsoever was let in

by the prosecution to prove the said fact. In other words, the

reason for the accused to cause the death of the victim

remains to be a mystery. Be that as it may, there is huge delay

in lodging the FIR. As noticed, though the fact that the victim

suffered a serious head injury and the fact that he was

undergoing treatment at the Medical College Hospital,

Kozhikode was known to all persons around him on 18.12.2016

itself, the first information report was lodged only on

01.01.2017, on the death of the deceased. In other words, no

one had any doubt till then that it was a case of homicide.

There is no satisfactory explanation from the prosecution as to

the delay in lodging the first information report. Even though

it is alleged by the prosecution that the death of the victim was

caused by the accused by hitting with MO8 hoe, the said

weapon is not seen shown to PW16 while eliciting his answer to

the question as to whether MO8 could produce an injury in the

nature of one suffered by the victim. What was deposed by

PW16 was only that the weapon allegedly used by the

assailant was shown to him earlier. Even though PW17, the

investigating officer deposed that MO8 was shown to PW16 for

his opinion as to whether the said weapon could produce the

injury suffered by the accused, insofar as MO8 was not shown

to PW16 at the time when he gave evidence, we are unable to

hold conclusively that what was shown to PW16 by the

investigating officer during investigation was MO8. Apart from

all that is discussed above, it has come out from the evidence

on record that the accused remained very much in the locality

even after the alleged occurrence and he was also arrested

from the very same locality. In other words, he did not make

any attempt to abscond. If the circumstances found to have

been established in the case as narrated above are analysed in

the background of the facts discussed above, we are unable to

hold that the facts established are consistent only with the

hypothesis of the guilt of the accused and that the same would

constitute a chain of evidence so complete as not to leave any

reasonable ground for the conclusion consistent with the

innocence of the accused and would show that in all human

probability, the act must have been committed by the accused,

for we are unable to exclude possibility of other alternative

hypothesis. We take this view also for the reason that there

were so many migrant workers staying with the victim in the

same room and the adjoining room. Needless to say, the

accused is entitled to benefit of doubt.

In the result, the Criminal Appeal is allowed. The

conviction of the appellant and the sentence imposed on him

are set aside and he is acquitted. He shall be set at liberty

forthwith and released from custody, if his continued detention

is not required in connection with any other case. Registry is

directed to communicate the above order forthwith to the

concerned prison, where the appellant is undergoing

incarceration.

Sd/-

P.B.SURESH KUMAR, JUDGE.

Sd/-

M.B.SNEHALATHA, JUDGE.

YKB