Kerala High Court
Emmanuel @ Thankachan vs State Of Kerala on 7 November, 2024
CRL.A NO. 2315 OF 2006
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE SOPHY THOMAS
THURSDAY, THE 7TH DAY OF NOVEMBER 2024 / 16TH KARTHIKA, 1946
CRL.A NO. 2315 OF 2006
AGAINST THE JUDGMENT DATED IN SC NO.258 OF 2006 OF
ADDITIONAL SESSIONS JUDGE/SPECIAL COURT (NDPS ACT CASES),
THODUPUZHA
APPELLANT/ACCUSED:
EMMANUEL @ THANKACHAN
S/O.CHACKO, KUZHIKKATTUMYALIL HOUSE,, PANNOOR KARA,
KARIMANNOOR VILLAGE, THODUPUZHA.
BY ADV SRI.UNNIKRISHNAN.V.ALAPATT
RESPONDENTS/STATE:
1 STATE OF KERALA
PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.
2 SAJU JAMES
AGED 44 YEARS
S/O JAMES @ CHACKO, NELLICHUVATTIL HOUSE, KARIMANNOOR
P.O, IDUKKI DISTRICT (IMPLEADED AS PER ORDER DATED
22/8/24 IN CRL. MA 1/24)
3 BIJU JAMES
AGED 49 YEARS
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2
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S/O JAMES @ CHACKO, NELLICHUVATTIL HOUSE, KARIMANNOR
P.O., IDUKKI DISTRICT PIN-685581(IMPLEADED AS PER ORDER
DATED 22/8/24 IN CRL. MA 1/24)
4 TISAI OUSEPH
AGED 49 YEARS
S/O OUSEPH KIRIKUNNEL HOUSE, CHILAVU PANNOOR, PANNOOR
P.O, IDUKKI DISTRICT PIN-685581 (IMPLEADED AS PER ORDER
DATED 22/8/24 IN CRL. MA 1/24)
5 JESSY SABU
AGED 50 YEARS
W/O LATE SABU VARGHESE ,MANAKUZHIYIL HOUSE, PANNOOR
P.O, KARIMANNOR, IDUKKI DISTRICT PIN-685581 (IMPLEADED
AS PER ORDER DATED 22/8/24 IN CRL. MA 1/24)
6 RONY SABU
AGED 20 YEARS
S/O LATE SABU VARGHESE ,MANAKUZHIYIL HOUSE, PANNOOR
P.O., KARIMANNOR, IDUKKI DISTRICT PIN-685581 (IMPLEADED
AS PER ORDER DATED 22/8/24 IN CRL. MA 1/24)
7 ROSHNI SABU
AGED 21 YEARS
D/O LATE SABU VARGHESE MANAKUZHIYIL HOUSE, PANNOOR P.O.
KARIMANNOOR, IDUKKI DISTRICT PIN-685581 (IMPLEADED AS
PER ORDER DATED 22/8/24 IN CRL. MA 1/24)
BY ADV G.GOPAKUMAR (CHERTHALA)
OTHER PRESENT:
PP-SMT.SEENA C.
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 07.11.2024,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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J U D G M E N T
This appeal is at the instance of the accused in S.C.No. 258
of 2006 on the file of Additional Sessions Judge/Special Court for
N.D.P.S. Act cases, Thodupuzha, challenging his conviction and
sentence, under Sections 324 and 307 of IPC, vide judgment
dated 22.11.2006.
2. The prosecution case is that, on 13.05.2004 at
07.30 p.m., there occurred a scuffle between PW1 - Saju James
and the accused and in that scuffle, purse of PW1 fell down.
Knowing that the accused had taken that purse, PW2 - Sabu
asked him to give it back to PW1. Infuriated by that, the accused,
after pushing away PW2 for some distance, through
Kampipalam - Moosarippara road, stabbed on his chest, and neck
with MO1 knife. When PWs 1, 3, and 4 intervened, the accused
stabbed them also with MO1 knife. The injury inflicted on the
body of PW2 was sufficient in the ordinary course of nature, to
cause his death. Accused attacked him with MO1 knife, with his
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knowledge and intention to do away with him.
3. After committal, and on appearance of the accused before
the trial court, charge was framed against him under sections 324
and 307 of IPC. He pleaded not guilty, and claimed to be tried.
PWs 1 to 4 were examined and Exts. P1 to P16 were marked and
MOs 1 to 6 were identified from the side of prosecution. On
closure of prosecution evidence, accused was questioned under
Section 313 of Cr.P.C. He denied all the incriminating
circumstances brought out in evidence, and stated that, due to
some political rivalry, PWs 1 to 5 attacked him, and on the date of
incident itself, he was taken to police station along with some
other persons. DW1 was examined and Ext.D1 was marked from
defence side.
4. After analyzing the facts and evidence, and on hearing
the rival contentions from either side, the trial curt found the
accused guilty under Sections 324 and 307 of IPC, and he was
convicted thereunder. He was sentenced to undergo simple
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imprisonment for 5 years and fine of Rs.10,000/- with a default
sentence of simple imprisonment for 3 months under section 307
of IPC and simple imprisonment for one year under section 324 of
IPC. Aggrieved by the conviction and sentence, the accused
preferred this appeal.
5. When the appeal was taken up for hearing on
22.08.2024, learned counsel for the appellant submitted that,
PW2, the injured is no more, and the matter has been settled,
between the appellant and the injured persons including the legal
heirs of deceased PW2. Crl.M.A. No. 1 of 2024 was filed by the
injured persons, and the legal heirs of deceased PW2 for
impleading them as additional respondents 2 to 7. As per order in
Crl.M.A. No. 1 of 2024 additional respondents 2 to 7 were
impleaded in the appeal. They filed separate affidavits stating
that, in the aftermath of election results, a group clash occurred
at Kampipalam - Karimannoor, and they got injured in that
political clash.
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6. Learned public prosecutor was directed to get instructions
as to the settlement arrived between the accused and the injured
persons. Inspector of Police Karimannoor recorded the statements
of witnesses as to the settlement arrived. Since PW2 the injured
was no more, statement of his legal heirs were recorded and all of
them stated about the settlement and they have no objection in
releasing the accused, after setting aside his conviction and
sentence.
7. The appellant was found guilty and convicted under
sections 307 and 324 of IPC which are serious offences by nature,
and so the settlement arrived was not possible, to be given effect
to, taking into account the larger public interest also. So, in spite
of the so-called settlement arrived between the appellant and the
injured persons, the appeal was proceeded for hearing.
8 Heard learned counsel for the appellant and learned public
prosecutor
9. Learned counsel for the appellant would submit that, on
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13.05.2004, election results were declared, and some political
clash occurred at Kampipalam. The accused as well as the injured
persons were all friends, and there occurred a scuffle, and assault
in which all of them sustained injuries. On the date of incident
itself, the accused, and some other persons were taken to police
station, and later a false case was registered against him, due to
political enmity.
10. Prosecution case is that PW2 received 7 stab injuries.
PW1 deposed that, when PW2 asked the accused to give back the
purse of PW1, accused pushed him away for about 4-5 meters
and inflicted stab wounds on him. Regarding presence of light,
the witnesses admitted that there were no electric light at the
scene of occurrence, but only an emergency lamb in the shop of
one Mr. Josekunju. According to witnesses, PW2 was pushed by
the accused for about 5 meters and thereafter inflicted stab
wounds on his body. Though PW1 deposed that he saw the
accused stabbing PW2, he had not seen the accused taking knife
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from his loin. PW2 - the injured did not state, the presence of
light at the place of occurrence. PW3 - Sri. Biju admitted that he
was standing 2 meters away from the exact place where PW2
received the stab injury. PW4 - Tisai deposed that, while he was
standing in front of the shop of Jose, PW2 came there with
injuries and fell down. PW6 the independent witness cited by the
prosecution turned hostile, and according to him, he saw PW2
with bleeding injuries, and he had not seen the accused assaulting
him with a knife.
11. Though the incident occurred at 07.30 p.m., on
13.05.2004, and the place of occurrence was only about one
kilometer away from Karimannoor police station, the First
Information Statement was given only at 12.00 noon on the next
day i.e., 14.05.2004. PW1 who lodged the FI Statement would
say that, he reached Karimannoor police station on 13.05.2004 at
09.00 am and then the accused was there in the police station.
But the police version is that the accused was arrested only on
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15.05.2004.
12. Learned counsel for the appellant would submit that the
testimony of PW1 would support the case of the accused, that on
the date of the incident itself, the accused and some other
persons were taken into custody by police suspecting their
involvement.
13. Though PWs 3 and 4 were admitted in St.Mary's
Hospital, Karimannoor on 13.05.2004 night itself, according to
police, no intimation was received from that hospital, so as to
register a crime immediately after the incident.
14. Exts.P15 and P16 are the wound certificates of PWs 1
and 2. PW1 was examined by the Doctor at 09.15 p.m., on
13.05.2004 at Medical College Hospital, Kottayam, and the history
of incident was 'stabbed by an unknown person'. Whereas in
Ext.P16 wound certificate of PW2 - Sabu, the history is 'stabbed
by Thankachan'. That certificate shows that Sri. Saju and James
brought Sri.Sabu. PW2 - Sabu deposed before court that after
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the incident he became conscious, on the 3rd day. So, there was
no possibility for PW2 to state before the doctor the name of the
assailant. Moreover, Ext.P16 certificate of PW2 will not show that,
at the time of examination by the Doctor, PW2 was conscious and
oriented. But there is no dispute with respect to the fact that
PW1 was conscious, and his injury was only on the shoulder. But
he had not stated to the doctor the name of the assailant.
15. In Exts.P10 and P11 wound certificates of PWs 3 and 4,
prepared at St. Mary's Hospital, Karimannoor also, the history
stated was received stab injury when tried to disperse, known
persons who were quarrelling. So learned counsel for the
appellant would submit that, if the accused was the real assailant,
since PWs 2 to 4 were having close acquaintance with him, his
name might have been specifically stated to the doctor. Though
Ext.P16 wound certificate shows the name of the accused, even
according to PW2, he was unconscious for 3 days and so that
history might not have been stated by him.
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16. Regarding recovery of MO1 knife, PW9 the recovery
witness turned hostile to the prosecution and according to him, he
signed that mahazar at police station. PW13 - CI of Police,
Kanjar, who arrested the accused and effected recovery would say
that the accused was arrested at 11.0 am on 15.05.2004 at
Moosarippara, from where the confession statement was
recorded. Thereafter they straight away proceeded to
Kampipalam and effected the recovery. But the evidence of PW1
will show that, the accused was under custody of police even at
09.00 am on 14.05.2004. He categorically deposed that, when he
reached the police station at 09.00 a.m., on 14.05.2004, accused
was there at Karimannoor police station.
17. Learned counsel for the appellant contended that in the
group clash which occurred at Kampipalam in connection with
declaration of election results, the accused also had sustained
injuries. In order to prove the same, DW1 doctor was examined,
and Ext.D1 wound certificate was marked. PW13 CI of police, who
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arrested the accused also admitted that, the accused was having
minor injuries on his body. DW1 - Doctor noted 6 injuries on the
body of the accused and the history stated was 'assault by
people'. Taking into account all these aspects, a reasonable
doubt is created in the mind of the Court, regarding the
genuineness of the case as alleged by the prosecution, and the
accused is entitled to get the benefit of that doubt. So it has to
be held that, prosecution failed to prove its case beyond
reasonable doubt.
In the result, the impugned judgment is set aside and the
accused is acquitted under sections 307 and 324 of IPC. His bail
bond is cancelled, and he is set at liberty forthwith.
Sd/-
SOPHY THOMAS
JUDGE
RMV
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PETITIONER ANNEXURES
Annexure 1 Affidavit
