Kerala High Court
Suresh Babu @ Peppatti Suresh vs State Of Kerala on 21 November, 2024
Author: P.B.Suresh Kumar
Bench: P.B.Suresh Kumar
Crl. Appeal No. 229 /2018
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
&
THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR
THURSDAY, THE 21ST DAY OF NOVEMBER 2024 / 30TH KARTHIKA, 1946
CRL.A NO. 229 OF 2018
CRIME NO.171/2006 OF KATTAKADA POLICE STATION,
THIRUVANANTHAPURAM
AGAINST THE JUDGMENT DATED 18.12.2017 IN SC NO.1186 OF
2009 OF SESSIONS COURT, THIRUVANANTHAPURAM (CP NO.19/2009 OF
JUDICIAL MAGISTRATE OF FIRST CLASS, KATTAKADA)
APPELLANT/ACCUSED No.1:
SURESH BABU @ PEPPATTI SURESH
S/O.KRISHNAN KUTTY, RASHMA BHAVAN,
KP XII/621,KAVUVILA,KOTTAMPALLY,
PARACHAL MURI, KULATHUMMAL VILLAGE
BY ADVS.
SRI.S.RAJEEV
SRI.K.K.DHEERENDRAKRISHNAN
SRI.D.FEROZE
SRI.V.VINAY
RESPONDENT/STATE:
STATE OF KERALA
REP BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM 682 031
(CRIME NO. 171/2006 OF KATTAKKADA POLICE STATION,
THIRUVANANTHAPURAM DISTRICT)
BY SRI. E.C. BINEESH, PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
13.11.2024, THE COURT ON 21.11.2024 DELIVERED THE FOLLOWING:
Crl. Appeal No. 229 /2018
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JUDGMENT
Dated this the 21st day of November , 2024
C. Pratheep Kumar, J
This is an appeal preferred by the 1st accused in Sessions Case
No.1186/2009 on the file of the Sessions Court, Thiruvananthapuram, against
the judgment dated 18.12.2017 convicting him under Sections 302 and 324
IPC.
2. The prosecution case is that on 7.5.2006 at 7.45 p.m., when
PW1, along with deceased Sudhakaran, were returning to the house of PW1
in the motor cycle bearing No.KL-02-4361, after shopping from Kattakkada,
the accused who was standing by the side of the canal bund near that
residence, exhorted that he was waiting for the arrival of PW1 and beat him
with a stick on the left side of his head and thereafter, on the left shoulder.
Then, the 1st accused took out a knife from his hip, after dropping the stick,
and stabbed towards the neck of PW1, which when warded off, caused injury
on his right hand. At that time, PW1 along with deceased Sudhakaran fell
down from the motor cycle. Then the 2 nd accused took the stick, beat PW1
and the deceased on the back of their chest. When they tried to run away, the
1st accused stabbed the deceased on the left side of his cheek, neck and also
on the right wrist. When CW2, the father of PW1 came on seeing the
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incident, the 1st accused kicked him down. The 2nd accused beat CW2 with the
stick on the back of his chest and on both hands. When CW2 tried to stand
up, the 1st accused stabbed on the left back of his chest. As a result of the
injury sustained, Sudhakaran died at 8.30 p.m on the same day.
3. The evidence in the case consists of the oral testimonies of PWs1
to 25, Exts.P1 to P26 and Exts.X1 to X6. MOs1 to 18 were identified. No
evidence was adduced by the accused persons. After appreciating the
available evidence, the trial court acquitted the 2 nd accused, while convicted
the 1st accused under Sections 302 and 324 IPC and sentenced him, inter alia,
to imprisonment for life and to pay a fine of Rs.25,000/-. Aggrieved by the
above judgment of conviction and sentence, he preferred this appeal raising
various grounds.
4. Now the point that arises for consideration is the following :-
Whether the impugned judgment of the learned Sessions Judge,
Thiruvananthapuram, convicting the appellant under Sections
302 and 324 IPC is liable to be interfered with, in the light of the
grounds raised in the appeal ?
5. Heard Sri. S. Rajeev, the learned counsel for the appellant as well
as Sri. E.C.Bineesh, the learned Public Prosecutor.
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6. The point :- It was argued by the learned counsel for the
appellant that the evidence of PW1, the only witness available to prove the
charge, is not at all reliable. He would further argue that, the alleged dying
declaration given by the deceased to PW3 was belated and not reliable. He
would also argue that, from the evidence of PWs5, 13 and 18 it is revealed
that CW2 always used to carry a knife with him, while there is no evidence to
show that the 1st accused used to carry any knife. Therefore, according to him,
MO1 knife was carried by CW2 and it was CW2 who used the said knife, at
the time of incident. Further, he would argue that the prosecution has not
disclosed the true genesis of the case and as such, he prayed for giving the
benefit of doubt to the appellant. On the other hand, the learned Public
Prosecutor would argue that the prosecution has succeeded in proving the
charge against the appellant beyond reasonable doubt and therefore, he
prayed for dismissing the appeal.
7. PW1 is the injured as well as the 1 st informant in this case. He
would swear that the deceased is his father-in-law and CW2 is his father, who
is now no more. According to him, on 7.5.2006 at about 7.45 p.m, while he
along with the deceased were returning to his residence in his motor cycle
after shopping from Kattakkada, and when they reached in front of his house,
the 1st accused who was hiding in darkness suddenly appeared before them
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and beat him with a stick on the back side of his neck and thereafter, on the
left shoulder. Thereafter, he dropped the stick and took out a dagger from his
hip and stabbed towards his neck, which when warded off, resulted in causing
injury on his right fore hand. According to him, at that time, he along with the
deceased fell down from the motor cycle. When they tried to stand up, the 1 st
accused stabbed Sudhakaran using the knife on his left neck, right hand and
left cheek. When they screamed aloud and proceeded to his residence, the 2 nd
accused beat him as well as the deceased using the stick. When his father
(CW2) came on seeing the incident, the 1st accused kicked his father. The 1st
accused also stabbed his father on his left side. Thereafter his mother as well
as wife came on hearing the scream. After drinking little water, Sudhakaran
collapsed. Immediately, he was taken to Medical College Hospital
Thiruvananthapuram, wherein it was declared that he died.
8. The motive alleged by PW1 is that on the very same day at about 4
p.m., there was a clash between the 1st accused and PW18 - the elder brother
of PW1, at Kottampally Junction. In that incident, because of the hit inflicted
by PW18 there was bleeding from the nose of the 1 st accused. Thereafter, the
1st accused went to the residence of PW1 and threatened his mother that he
will retaliate, unless PW18 was properly advised. When PW1 reached home,
his mother told him about the arrival of 1st accused and the message conveyed
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by him. Thereafter, PW1 went to his wife's house and from there he along
with the deceased proceeded to Kattakkada for some purchase. On the way,
when they reached Kottampally Junction, he saw the 1st accused standing
there. At that time, after parking his motor cycle, he alone went towards the
1st accused and there was a wordy quarrel with him. He would swear that,
after exchange of few words he pushed the 1 st accused and thereafter he went
away. According to him it was due to that enmity, the 1 st accused along with
the 2nd accused came near to his residence in the evening and attacked them.
9. PW2 is the mother of PW1, she would swear that on 7.5.2006 at
about 4.30 p.m., there was a clash between the 1 st accused and PW18 and
thereafter the 1st accused came to her residence and told her about the incident
and instructed her to advise her son, PW18. According to her, at about 5
p.m., when PW1 came home, she told him about the above incident. At about
5.30 p.m., PW1 went towards his wife's house. Thereafter at 7.45 p.m., while
she was watching TV at the residence of her son PW1, she heard a scream
from channel bund. When she came out of the house, she saw PW1, CW2
and the deceased coming to their residence with bleeding injuries. Though
Sudhakaran was taken to Medical College Hospital, he later on died.
10. PW3 is the daughter of deceased Sudhakaran as well as the wife of
PW1. She would swear that at about 5.30 p.m., PW1 went to her residence.
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Thereafter at about 7 p.m., PW2 came to her residence for watching T.V. At
about 7.45 p.m., they heard a scream and when she along with PW2 ran out
of the house, they saw PW1, CW2 and the deceased coming home with
bleeding injuries. When she asked her father as to what happened, he told her
that Suresh stabbed him.
11. PW4 is the wife of the deceased. She would swear that at about
5.30 p.m., PW1 came to her residence and thereafter, he along with the
deceased proceeded towards Kattakkada for shopping. Thereafter, at about 8
p.m., she came to know about the incident, in which her husband died and
PW1 and CW2 sustained injuries.
12. PW18 is the brother of PW1. He would swear that, he had a clash
with the 1st accused, at about 4 p.m. at Kottampally Junction. Thereafter, at
about 5.30. p.m., again the 1st accused came there and at that time, in order to
avoid further clash with him, he went away from there. PW5 would swear
that he reached the place of incident immediately after the incident and taken
the deceased to the Medical College Hospital. He would swear that at the
Medical College Hospital, Sudhakaran died.
13. PW14 is the Senior Lecturer in Surgery, Medical College Hospital
Thiruvananthapuram, who had examined PW1 on 7.5.2006 and issued
Exhibit P11 certificate. According to PW14, the alleged history given by PW1
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was 'assault by three known persons at Kottampally'. He also deposed that at
the time of examination the patient was conscious. He noticed the following
two injuries on the body of PW1:
"1. 'V' shaped lacerated wound 2x1x1 cm below right elbow.
2. Contusion occiput."
14. PW15 was the Assistant Professor Forensic Medicine, Medical
College Hospital Thiruvananthapuram, who had conducted the postmortem
examination on the body of deceased Sudhakaran and issued Exhibit P12
postmortem certificate. The ante-mortem injuries noted by her on the body of
the deceased are the following:
"INJURIES (ANTE MORTEM)
1. Incised penetrating wound 4xO.5-1.8cm, with sharply cut
ends on the left side of front of neck, oblique, the lower outer end
4.5cm to the left of midline and 10Cm below jawbone, with a side
cut 1x0.5-1.5cm along the upper margin, directed inwards, 2cm
inner to its outer end. The wound showed a tailing 1.3x0.2 cm at its
upper end. The soft tissues of the front of neck were punctured. Left
chest cavity was seen penetrated behind the left sternoclavicular
joint and upper lobe of left lung punctured (1x0.5x0.5cm). Left chest
cavity contained 550ml of fluid blood 300gm of blood clots. Left
lung seen collapsed. The wound was directed backwards and
downwards for a total minimum depth of 5cm.
2. Incised wound '(' the long upper limb 4x0.8x0.2em and short
lower limb 2x0.8x0.2cm on the left side of face 1.5cm above
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jawbone and 7.5cm outer to midline reflecting a flap of skin 3x0.5-
2.8cm, outwards. Tailing lx0.2cm seen at the upper end of the long
limb.
3. Two abrasions 1.5x0.2-0.4 cm and 0.5x0.2cm side by side, on the
inner aspect of right elbow.
4. 'V' shaped incised wound on the front of right forearm, the short
limb lx0.3-0.5x0.2cm and long limb 2x0.3-0.5x0.2 cm, the outer end
of the short limb 1cm inner to the outer border and 2cm above wrist
with a tailing 2x0.2cm on the lower end of the long limb.
5. Two abrasions lx0.2cm and 1.5x0.2cm, 1cm apart and in line
with each other, oblique on the front of left arm, 3cm above elbow."
15. The opinion as to the cause of death according to PW15 is, death
was due to the injury sustained to neck, namely injury No.1. Though it
appears that she has stated that injury No.1 cannot be caused using MO1
knife, it can only be a mistake. Further she deposed that injury No.2 and 4 can
be caused by two separate acts of thrusting with a weapon like MO1 on the
body surface and withdrawing. She also deposed that injury No.3 can be
caused with tip of a sharp pointed weapon like MO1 while inflicting injury
No.4. She also deposed that if the victim warded off the attack, injury No.5
can be caused with the sharp tip of MO1. PW15 further deposed that injury
No.1 is fatal and is independently sufficient in the ordinary course of nature
to cause death.
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16. PW19 was the Assistant Surgeon, Primary Health Centre
Kattakkada, who had examined CW2 on 7.5.2006 and issued Exhibit P15
wound certificate dated 10.12.2008. However, during the cross examination
he clarified that he is not sure whether he had actually treated CW2. In
Exhibit P15, he had only mentioned about a soft tissue injury on the body of
CW2. According to him, in order to ascertain the true nature of the injury
sustained by CW2, the case sheet is to be verified, which is not produced in
this case. PW20 was the Director of Serology, Forensic Science Laboratory,
who had examined some of the properties sent for analysis and issued Exhibit
P16 certificate.
17. At the time of evidence, CW2, one of the injured in this case was
no more and hence the prosecution could not examine him. Therefore, the
only remaining occurrence witness available to prove the charge is PW1, who
is the injured. In this case the learned counsel has relied upon some
circumstances in support of his contention that the prosecution case as such is
not believable. In the above circumstance, it is worthwhile to consider those
circumstances in detail, before appreciating the trustworthiness of the oral
testimony of PW1.
18. MOTIVE FOR THE MURDER: As per the prosecution case,
two other incidents occurred on the very same day, before the incident which
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resulted in the death of Sudhakaran. One of those incidents was at 4 p.m. and
the other was at 5.30 p.m. at Kottampally Junction. First incident at 4 p.m.
was between 1st accused and PW18, the elder brother of PW1. The second
incident was also at Kottampally junction, which was between PW1 and the
1st accused. Deceased Sudhakaran was not a party to any of those incidents.
Prosecution has no case that the accused persons had any sort of animosity
towards deceased Sudhakran. In the above circumstances, the learned counsel
would argue that the prosecution has not explained as to why the accused
persons should attack to death Sudhakaran, as there was no animosity
between them.
19. It is true that the prosecution has no case that the accused had
any axe to grind against deceased Sudhakaran. The specific case of the
prosecution is that, the accused had enmity only towards PWs1 and his
brother PW18. In other words, as per the prosecution case, the only motive
alleged was the enmity of the 1st accused towards PW1 and PW18. Though
the 2nd incident at 5.30 p.m., at Kottampally junction occurred in the presence
of Sudhakaran, admittedly, he remained silent at that time. In the above
circumstances, as argued by the learned counsel, at the time of incident, there
was absolutely no valid reason or motive for the appellant to attack and inflict
injury on the body of deceased Sudhakaran.
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20. CW2 USED TO CARRY KNIFE LIKE MO1: At the time of
evidence, an attempt was made by the learned counsel for the accused to
show that CW2 always used to carry a knife like MO1, while the 1 st accused
never used to carry any such knife. During the examination of the witnesses,
to some extent, the learned counsel has succeeded also. During the cross
examination of PWs 5, 13 and 18, they have admitted that CW2 always used
to carry a knife. PWs 5 and 13 have not stated the description of the knife,
used to be carried by CW2. However, PW18, the son of CW2 clarified that
the knife used to be carried by CW2 was like MO1. Therefore, from the
evidence of PWs 5,13 and 18 it can be safely concluded that, CW2 used to
carry along with him, a knife, like MO1.
21. As we have already noted above, on the ill-fated day, two other
incidents involving the 1st accused occurred at Kottampally Junction, which
were at 4 p.m. and 5.30.p.m. At 4 p.m. the clash was with PW18 and at 5.30
p.m., it was with PW1. PWs 1 and 18 have no case that during those two
occasions, the accused possessed any knife. Further, during the cross
examination, to a specific question put to PW1, he clarified that at 5.30. p.m.
when there was clash with 1st accused, he (the 1st accused) was not in
possession of MO1 knife. Therefore, as argued by the learned counsel, since
the incident at 7.45 p.m. occurred in continuation of the incident at 5.30 p.m.,
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the possibility of the 1st accused possessing a knife like MO1 at 7.45 p.m. is
very remote. The prosecution has no case that after the incident at 5.30 p.m.
the 1st accused managed to obtain MO1 knife from anybody else. The
evidence of PWs 5,13 and 18 that, CW2 used to carry along with him, a
knife, like MO1 assumes much significance in this context.
22. DEFENCE VERSION: The specific case of the accused is that
while he was walking towards his house along the canal bund, near to the
residence of PW1, PW1 along with the deceased waited there and on seeing
him suddenly attacked him, that during the incident, CW2 came with MO1
knife and in the scuffle that followed, PW1 and the deceased sustained
injuries with the knife held by CW2.
23. PRESENCE OF CW2 AT THE PLACE OF OCCURRENCE:
PW2, the wife of CW2 would swear that at about 7 p.m., while she came to
watch TV at the residence of PW1, CW2 was there in her residence.
However, thereafter she had not seen CW2 going out of the house. At about
7.45 p.m., when she heard the scream of PW1 and the deceased, she along
with PW3 ran out of the house and at that time, they saw PW1, CW2 and the
deceased with bleeding injuries. As per the prosecution case, only PW1 and
the deceased came in the motor cycle of PW1 and it was at that time, the
accused persons, who were waiting for their arrival, attacked them, when they
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reached there. As per the evidence of PWs 2 and 3, when they heard the
scream, they immediately ran out of the house and saw PW1, CW2 and the
deceased with bleeding injuries. Therefore, from the evidence of PW2 and 3,
it is revealed that when they heard the scream and rushed to the place of
occurrence, the entire incident was over.
24. The version given by PW1 in Ext.P1 FI statement also assumes
significance in this context. As per the FI statement, CW2 came to the place
of occurrence only on hearing the scream of PW1. If CW2 reached the place
of occurrence on hearing the scream, like PWs 2 and 3, he also could have
reached the place of occurrence only when PWs 2 and 3 reached there. Since
CW2 reached the place of incident before PWs 2 and 3 reached there, and
involved in the incident in which Sudhakaran died, and sustained injury, it is
evident that CW2 was also present at the place of occurrence when the
incident occurred. Presence of CW2 at the place of occurrence at the time of
occurrence was not properly explained by the prosecution and it was
suppressed by PW1 also. In short, the circumstance under which CW2
happened to reach the place of incident at the time of incident remains a
mystery. The presence of CW2 at the place of occurrence casts serious doubt
on the veracity of the prosecution case that it was the accused who were
waiting at the place of occurrence for the arrival of PW1 to attack him. On the
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other hand, the above circumstance probablises the defence version that PW1,
CW2 and the deceased were waiting at the place of incident for the arrival of
the 1st accused, for attacking him. It also substantiates the defence version that
MO1 knife was brought by CW2 from his residence, when he came to the
place of incident.
25. EXPLANATION FOR THE PRESENCE OF THE DECEASED
AT THE PLACE OF OCCURRENCE: After the incident that occurred at 4
p.m. at Kottampally Junction, the 1st accused reached the residence of PW1
and at that time PW1 and PW18 were not present in the house. Therefore, the
1st accused complained about PW18 to his mother PW2 and requested her to
advise PW18, not to attack him again. When PW1 returned home at about
5.30 p.m, PW2 told him about the arrival of 1st accused and about the incident
that occurred at 4 p.m. On hearing the same PW1 went to his wife's house and
came back with the deceased in the motor cycle. During the cross
examination of PWs 1 and 2, the reason for the arrival of the deceased at the
place of occurrence at that time was questioned. PWs 1 and 2 would swear
that PW1 is working in construction field at Kulathoopuzha and that he used
to return home only once in a week. According to PW3, since her husband
used to reach home only once in a week, her father used to come there
everyday, to look after her affairs. However, according to PW1, the deceased
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came to the residence on that day, after purchasing milk powder for his
children. PW4, the wife of the deceased would swear that the deceased went
along with PW1 to Kattakkada for purchasing milk powder for the children
and also for purchasing Ayurvedic medicine for the ailment of her leg.
26. As per the FI statement, PW1 and the deceased were returning
after shopping from a super market in Kattakada. According to PW1, he along
with the deceased came directly from Kattakkada after shopping and when
they reached the place of occurrence, they were attacked by the accused
persons. However, at the place of occurrence, no such items which they
allegedly purchased from the super market were noticed by PW23, while
preparing the scene mahazar. Absence of any such materials, allegedly
purchased by PW1 and the deceased from Kattakkada, at the place of
occurrence, was also highlighted by the learned counsel for the appellant, as a
circumstance against the prosecution case.
27. In this context, it is also to be noted that at about 5.30 p.m, PW1
came to his residence and immediately he went to the residence of
Sudhakaran and thereafter, they together returned to his house. It appears that
when they reached the place of occurrence, CW2 was also there. As we have
already noted above, the prosecution has not explained as to how CW2
happened to reach there at the place of occurrence at the time of incident.
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Similarly, the explanation given for the presence of the deceased that he went
for purchasing baby food, medicine and shopping from super market etc.
appears to be false as no such articles were found at the place of occurrence.
Therefore, it is to be held that, the presence of the deceased at the place of
occurrence was also not properly explained by the prosecution.
28. CHANGE IN PLACE OF OCCURRENCE: Regarding the place
of occurrence also there is inconsistency in the evidence. At first PW1 would
swear that, when they reached in front of his house, the 1 st accused was
standing there. In the FI statement also a similar version was given. However,
thereafter PW1 changed his version and stated that the 1 st accused was hiding
behind the shrubs near the canal bund. As per the evidence of PW1 and the FI
statement, the 2nd accused joined in the attack, only during the course of the
incident. From the evidence of PWs 2 and 3, the place of incident is part of
the canal bund, which is 25.30 meters north-west of the residential building of
PW1. The above inconsistency in the evidence regarding the place of
occurrence also casts doubt in the veracity of the prosecution case.
29. EXAMINATION OF THE ACCUSED: The version given by the
appellant during his examination under Section 313 Cr.P.C assumed
significance in this context. As per the version given by him, he and PW18
were thick friends. They used to consume liquor together and occasionally
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they also used to quarrel, after drinking. 2-3 days after such quarrel, they used
to resolve their dispute and continue their friendship. On the date of incident
also, there was such a clash between himself and PW18. In the evening, PW1
came at Kottampally junction and assaulted him. At that time, he ran away
from the place after getting the blow from PW1. During the night he attended
the program of Pourasamithi and thereafter he alone was returning home
through the canal bund, near the residence of PW1. When he reached near the
residence of PW1, PW1 along with deceased Sudhakaran attacked him. At
that time CW2 also came there and it was followed by a commotion and
scuffle. According to him MO1 knife was brought by CW2 and also that he
had not inflicted injuries on the body of PW1 and deceased Sudhakaran.
Further, according to him, the 2nd accused was not involved in the incident
and his name was deliberately included to wreck vengeance against him. He
would also claim that on the same night, he went to the police station as he
was scared and the police detained him unlawfully till 11.5.2006 and
fabricated documents to the effect that he was apprehended from the KSRTC
bus stand at Aryanad. He would also state that a pair of foot-wear seized from
the place of occurrence belongs to him, as he flew away from there, when he
was attacked by PW1 and the deceased.
30. DESCRIPTION OF MO1 IN THE FIS: In respect of the incident
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that occurred at 7.45 p.m on 7.5.2006, PW1 had given Ext.P1, FI statement
at 11 .00 p.m. on the very same day. Admittedly, the incident occurred during
the night and in the FI statement given by PW1 during the same night, a
detailed description was given about the knife allegedly used by the 1 st
accused to attack him. In the FI statement, PW1 has given the description of
the knife in the following words:
"സ ര ഷ ന കയ ല ന കത ക ഒ ചൺ
ന ളവ , കക പ ട യ , ഒ വശ മ ർചയ ളത ,
മ നയ ളത മ ണ."
31. It was argued by the learned counsel for the appellant that only
because MO1 belongs to CW2, PW1 was able to give a clear picture about
the said knife in the FI statement. As otherwise, according to him, PW1 could
not have given such details about the knife, especially because the incident
occurred during the night. Since the incident occurred during night and in the
FI statement given few hours after the incident, detailed description of MO1
was given, it is another circumstance to suspect the prosecution case.
32. EVIDENCE OF PW1 AT VARIANCE WITH PROSECUTION
CASE: The evidence of PW1, the sole eye witness involved in this case, is
also not exactly in tune with the prosecution case. As per the prosecution
case, when PW1 along with the deceased fell down, the 2nd accused beat both
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of them with stick. However, at the time of evidence, PW1 has no case that
when they fell down, the 2nd accused beat them with a stick. The version
given at the time of evidence is that when they fell down and tried to stand
up, the 1st accused stabbed the deceased. According to PW1, it was when they
proceeded towards the residence of PW1 after both of them sustained injuries
using MO1 knife, the 2nd accused beat them. However, as per the prosecution
case, the 2nd accused beat both of them using the stick even before the 1 st
accused sustained stab injuries. Similarly, as per the prosecution case, when
CW2 came to the place of occurrence, at first, the 1 st accused kicked him
down and thereafter, the 2nd accused beat CW2 with a stick on the back of his
chest and also on both hands. When CW2 tried to stand up, the 1 st accused
stabbed on is left back. However, at the time of evidence, the version given
by PW1 was to the effect that when his father came, the 1 st accused kicked
him and thereafter, stabbed him on his left side. In other words, at the time of
evidence, PW1 has no case that the 2 nd accused beat his father using stick.
Moreover, PW19 who had examined CW2 could not find any injury on his
body, corresponding to the alleged stab, using MO1 knife. From the above
discussions, it can be seen that the evidence of the sole eye witness PW1 is
not in tune with the prosecution case.
33. PRESENCE OF BLOOD IN THE DRESS: It is true that PW23
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arrested the 1st accused, seized MO1 and his clothes. It is also revealed from
the evidence of PW20 and from Ext.P16 report of the Director of Serology
that blood stains were detected in the dress recovered from 1 st accused.
However, the specific case of the accused is that he was present at the place
of occurrence and when he reached there, PW1, the deceased as well as CW2
attacked him and it was followed by a commotion and scuffle. It was in that
scuffle that the deceased and PW1 sustained injuries. He would also claim
that he also sustained minor injuries in the incident. In the above
circumstances, since the accused admits his presence at the place of
occurrence when the incident occurred and also admits commotion and
scuffle with PW1, the deceased and CW2, as argued by the learned counsel
for the appellant, the presence of blood stains in the dress of the appellant will
not help the prosecution to prove the charge.
34. ARREST OF A1 AND RECOVERY OF MO1 SUSPICIOUS:
Recovery of MO1 from the 1st accused is also highly suspicious. According to
PW23, on 11.05.2006 he arrested the 1st accused at the KSRTC bus stand
Aryanad and that on questioning, he had taken out MO1 from his hip and
handed over to him. Further according to him, at the time of arrest also, the 1 st
accused was wearing the very same dress, with blood stains, which he was
wearing at the time of incident. Since the incident was on 7.5.2006, the
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evidence of PW23 that on 11.05.2006 when he saw the 1 st accused at the
KSRTC bus stand Aryanad, he was wearing the very same dress which he
was wearing at the time of incident and that he was carrying along with him
the blood stained knife, as if he was waiting for the arrival of PW23, could
not be believed, without a pinch of salt. In the above context, the version
given by the accused during the examination under section 313 Cr.P.C. that,
during the night on the date of incident itself he went to the police station, as
he was scared and that the police detained him unlawfully till 11.5.2006 and
thereafter fabricated documents to the effect that he was apprehended from
the KSRTC bus stand at Aryanad, appears to us to be more probable, than the
evidence of PW23, to the contrary.
35. The evidence of PW10 who was examined to prove the arrest of
the 1st accused is also not convincing. When he was examined before the
court on 19.6.2017, after more than 11 years, he deposed that he saw the
arrest of the 1st accused by PW23. According to him he was working as helper
to mason. On 11.5.2006 between 4.10 and 4.20 p.m., while he was standing
near the Aryanad KSRTC bus stand, he saw vehicle of Aryanad CI going
inside the bus stand, in speed. So he also went there and saw the arrest of the
1st accused. At the time of arrest the accused took out MO1 knife from below
his dhothy and handed over to police. During the cross-examination he
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admitted that he knew PW1 and even worked under him. He further deposed
that he stood as surety because the deceased was the cousin of a follower of
his political party. The reason given for disbelieving the evidence of PW23,
regarding the arrest of the 1 st accused from the Aryanad KSRTC bus stand
applies equally to the evidence of PW10 also.
36. DYING DECLARATION: The learned Public Prosecutor has
strongly relied upon the alleged dying declaration made by the deceased to
his daughter, PW3, to prove the charge. PW3 deposed that immediately after
the incident, the deceased told her that he was stabbed by Suresh. She does
not know, who is Suresh. As argued by the learned counsel for the appellant,
the Investigating Officer has recorded the statement of PW3 ten years after
the incident. It was at that time she disclosed about the dying declaration
given by the deceased. Though PW1 was present there, he has not heard any
such declaration made by the deceased. Similarly, PW2 who came along with
PW3 also had not heard any such declaration made by the deceased. In the
above circumstances, the learned counsel for the appellant would argue that it
was a tutored version given by PW3, as there was no sufficient evidence to
prove the charge against the accused. In this context, it is interesting to note
that Pws 23 to 25, the investigating officers have not stated before the court
that any such dying declaration was made by the deceased to PW3. In the
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above circumstance, the mere statement given by PW3 in that respect at the
time of evidence is not convincing and reliable, especially, in the facts of this
case.
37. CONCLUSION: In short, the prosecution has not disclosed the
true facts including the genesis of the case before the court. The appellant had
no axe to grind against the deceased and therefore, the prosecution could not
prove any motive for him to attack and murder deceased Sudhakaran. The
evidence of PW1 is not in tune with the prosecution case and is suffering
from several discrepancies and as such, he cannot be styled as a sterling
witness. Similarly, from the evidence on record, it appears that MO2 was the
knife with the possession of CW2 and there was no evidence to show that the
appellant was holding MO1 at any point of time. The defence version that
when the appellant reached near the residence of PW1, it was PW1, the
deceased as well as CW2 who were waiting there and attacked the appellant
is more probable. The dying declaration of PW3 is not convincing and
reliable. In this case, there is no convincing evidence to prove the manner in
which PW1 and the deceased sustained injuries. In the light of the above
circumstances, we are constrained to hold that the prosecution has not
succeeded in proving the charge against the appellant beyond reasonable
doubt and hence he is entitled to get the benefit of doubt. In other words, we
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hold that this Appeal is liable to be allowed and the appellant is liable to be
acquitted. Point answered accordingly.
38. In the result, this appeal is allowed. The impugned judgment of
the learned Sessions Judge, Thiruvananthapuram convicting the appellant
under Sections 302 and 324 IPC is set aside. He is acquitted under Section
386 (b)(i) Cr.P.C and he is set at liberty.
Sd/-
P.B.Suresh Kumar, Judge
Sd/-
C.Pratheep Kumar, Judge
sou/Mrcs/14.11
