Kerala High Court
Sukhalal vs State Of Kerala on 10 October, 2024
Author: P.B.Suresh Kumar
Bench: P.B.Suresh Kumar
2024:KER:75069
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 10TH DAY OF OCTOBER 2024 / 18TH ASWINA, 1946
CRL.A NO. 1163 OF 2017
AGAINST THE JUDGMENT DATED 18.08.2017 IN SC NO.610 OF
2011 OF THE ADDITIONAL SESSIONS COURT - III, ALAPPUZHA
APPELLANT/ACCUSED:
SUKHALAL,
AGED 54 YEARS, S/O.KANDANKUNJU, VELIYIL PRAMBIL
HOUSE, CHERTHALA MUNICIPAL WARD-21, WESTERN SIDE
OF PURUSHANKAVALA, ALAPPUZHA DISTRICT.
BY ADVS.
SRI.M.R.ARUNKUMAR
SRI.P.T.BINDURAJ
SRI.P.SHAMMI NAVAS
RESPONDENT/COMPLAINANT:
STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM-682031.
STI.E.C.BINEESH PP
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
25.09.2024, THE COURT ON 10.10.2024 DELIVERED THE
FOLLOWING:
Crl.A.No.1163 of 2017
-: 2 :-
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P.B.SURESH KUMAR & C.PRATHEEP KUMAR, JJ.
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Crl.Appeal No.1163 of 2017
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Dated this the 10th day of October, 2024
JUDGMENT
P.B.Suresh Kumar, J.
The sole accused in S.C.No.610 of 2011 on the files
of the Court of the Additional Sessions Judge-III, Alappuzha is
the appellant in this appeal. He stands convicted and
sentenced for the offence punishable under Section 302 of the
Indian Penal Code (IPC).
2. The appellant is a barber by profession. The
victim is one Murukan. The victim sustained serious injuries in
an occurrence that took place at about 2.45 p.m. on
26.05.2010 on the footpath in front of the barber shop where
the appellant was working. The victim was taken initially to the
Government Hospital, Cherthala and from there to the Medical
College Hospital, Kottayam and he succumbed to the injuries
at about 7.15 p.m. on the same day while undergoing
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treatment in the latter hospital. A case was registered on the
same day by the Cherthala Police based on information
furnished by a neighbour of the victim namely, Thankachan at
the Medical College Hospital, Kottayam. The investigation in
the case revealed that it was the appellant who caused the
death of the victim. The final report was accordingly filed in the
case against the appellant alleging commission of offence
punishable under Section 302 IPC. The accusation in the final
report is that at about 2.45 p.m. on 26.05.2010, the appellant
stabbed the victim repeatedly with a pair of scissors below his
left underarm, on his left upper side of the back as also on his
left hand, at the footpath in front of the barber shop where the
appellant was working at the relevant time.
3. On the appellant being committed to trial, the
Court of Session framed charge against him, to which he
pleaded not guilty. Thereupon, the prosecution examined 21
witnesses on their side as PWs 1 to 21 and proved through
them 27 documents Exts.P1 to P27. MOs 1 to 5 are the
material objects in the case. Exts.D1 and D2 are the portions of
the case diary statements of the witness who was examined as
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PW2. When the incriminating circumstances in the evidence of
the prosecution were put to the appellant, he denied the same.
Thereupon, on a consideration of the evidence on record, the
Court of Session found the appellant guilty of the offence
alleged against him, convicted and sentenced him to
imprisonment for life. The appellant is aggrieved by his
conviction and sentence.
4. Having found that the conclusions arrived at
by the Court of Session on the factual aspects of the case are
incorrect, in terms of the interim order passed on 28.02.2018,
this Court suspended the execution of the sentence passed
against the appellant and enlarged him on bail.
5. The point that falls for consideration is
whether the conviction of the appellant and the sentence
imposed on him are sustainable in law.
6. Heard the learned counsel for the appellant as
also the learned Public Prosecutor.
7. The essence of the elaborate submissions made
by the learned counsel for the appellant is that there is no
legally acceptable evidence to prove the occurrence alleged by
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the prosecution.
8. PW1 was the first informant. As noted, he is a
neighbour of the victim. PW1 had not seen the occurrence.
According to him, when he went to the Government Hospital,
Cherthala on coming to know about the occurrence, the victim
was being taken in an ambulance to the Medical College
Hospital, Kottayam and PW1 accompanied the victim in the
ambulance to the said hospital and that the victim died while
undergoing treatment. PW2 is the mother of the victim. PW2
had also not seen the occurrence. What was deposed by PW2
was that while she was coming back from a shop, after
purchasing a vessel, through the road in front of the barber
shop where the appellant was working, the appellant who was
standing in front of his shop passed a comment remarking
whether the vessel carried by her was one intended to be
destroyed by her son. It was deposed by PW2 that she
informed the victim as regards the said incident and the victim
then left the home. According to PW2, she later came to know
that the victim questioned the appellant about his conduct and
the appellant then stabbed him to death with a pair of scissors.
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9. PW3 is a person who knew both the appellant
and the victim. He runs a shop on the opposite side of the road
abutting the barber shop where the appellant was working. The
distance between the shops is only about 50 meters. Though
PW3 was cited as an eye witness to prove the occurrence, he
turned hostile to the prosecution by deposing that he had not
seen the occurrence. PW3 deposed that he did not inform the
police also that he saw the occurrence. Despite the said stand,
the statements claimed to have been made by PW3 to the
police were put to PW3 to contradict him and he denied having
made such statements to the police. PW16 is another witness
who was cited by the prosecution as an eye witness to prove
the occurrence. PW16 also deposed that he had not seen the
occurrence. When PW16 was questioned as to whether he
informed the police that he saw the occurrence, he replied that
he does not remember. PW16 however admitted that he knows
the appellant and that he saw the victim sitting on the veranda
of the shop where the appellant was working, with blood on his
body.
10. PW4 is a neighbour of the victim. He had also
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not seen the occurrence. PW4 deposed that by about 2 p.m. on
26.05.2010, while he was going to Cherthala, he saw the
appellant running towards the east and PW3 and PW16 holding
the victim. It was also deposed by PW4 that they later made
the victim sit on the veranda of the shop where the appellant
was working and blood was oozing from his body at that time.
It was the version of PW4 that it was he who took the victim to
the Government Hospital, Cherthala along with others and then
to the Medical College Hospital, Kottayam. PW5 is another
neighbour of the victim. PW5 had also not seen the occurrence.
PW5 was examined by the prosecution only to corroborate the
evidence tendered by PW2, the mother of the victim that the
appellant had passed a comment on her. PW6 is another
neighbour of the victim. PW6 had also not seen the occurrence.
What was deposed by PW6 was that on the relevant day, by
about 2.30 p.m., when he went near the shop where the
appellant was working, he found a group of people there and
the victim was being held by PW3 and PW16 then. It was
deposed by PW6 that he also accompanied the victim to the
hospital. PW7 is another neighbour of the victim. It was in the
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autorickshaw driven by him that the victim was taken to the
Government Hospital, Cherthala. PW7 deposed only the said
fact in his evidence. PW8 is the person who took on rent the
barber shop from PW9, the owner of the barber shop where the
appellant was working at the relevant time. They deposed
only the said facts in their evidence.
11. PW13 was the Assistant Surgeon attached to
the Taluk Headquarters Hospital, Cherthala during May, 2010.
PW13 deposed that on 26.05.2010 at about 3.20 p.m., he
examined the victim and issued Ext.P15 wound certificate and
he noted at that time a lacerated 'K' shaped wound on the
lateral aspect of his left elbow, a penetrating injury on the left
lower lateral chest in the mid axillary line in the rib cage, a
penetrating injury on the left mid back having a dimension of 1
cm and a penetrating injury lateral to the injury on the left mid
back having a length of 1 cm. According to PW13, the victim
was conscious at the time of examination and the history of
the alleged assault was stated to be "സഖല ൽ എനയ ൾ പരഷൻ
കവലയൽ വച കതയതൽ വച at about 3 p.m." PW13, however, did not
state in his evidence as to who informed him about the history
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of the alleged assault. It was also deposed by PW13 that MO4
pair of scissors could produce the injuries sustained by the
victim. It was however clarified by PW13 in his deposition that
when the victim was brought to the hospital, he was under the
shock of the injury and after sometime, he came out of the
shock and stated to PW13 that he was stabbed. PW13 did not
state, however, in his evidence as to who caused the stab
injury. PW14 was the doctor who treated the victim at the
Medical College Hospital, Kottayam. Ext.P16 is the certificate
issued by PW14.
12. PW15 was the doctor who conducted the
postmortem examination on the body of the victim, and
Ext.P17 is the postmortem certificate issued by him. The
following were the ante-mortem injuries noted by PW15 at the
time of postmortem examination on the body of the victim as
deposed by him in his evidence:
"1) Surgical sutured wound 20cm long obliquely placed on the
left side of front of chest, with its upper inner end, 4cm outer
to midline and 11 cms below collar bone. The structures of 5th
left inter costal space was seen cut. The pericardial sac was
seen incised, exposing the heart pericardial sac contained 20
ml of blood stained fluid.
2) Incised penetrating wound 3.4 x 0.8 cm vertical on the left
side of back of chest, with its lower end showed splitting of
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tissues and was placed 5 cm outer to midline and 28 cm
above prominence of hip bone cutting through the 6 th left inter
costal space. The wound terminated by making a cut on back
aspect of lower lobe of left lung, which was seen sutured. The
lower lobe of left lung was collapsed. Chest cavity contained
500 ml of blood. The wound was directed forwards and to the
right for a total minimum depth of 5 cm.
3) Superficial incised wound 1 x 0.5cm on left side of back of
chest with a tailing for a length of 6.5 cm extending outwards.
The wound was placed 10 cm outer to midline and 20 cm
below top of shoulder.
4) Incised wound 2 x 0.5 cm muscle deep, obliquely placed on
the outer aspect of back of left side of chest, 17cm outer to
midline and 15 cm above prominence of hip bone.
5) Incised wound 2.5 cm x 0.5 cm muscle deep on the left side
of front of chest its lower, inner sharply cut end 14 cm outer
to midline and 9 cm above costal margin.
6) Superficial incised wound 1 x 0.4 cm muscle deep on the
left side of front of chest, 4cm above costal margin and 14 cm
outer to midline.
7) '7' shaped sutured wound on the back of left arm and
forearm its upper horizontal limb 3 cm and vertical limb 5 cm
long, muscle deep. Its upper horizontal limb 24 cm below top
of shoulder.
8) Superficial incised wound 0.5 x 0.2cm on the inner aspect
of the left arm, 7cm below armpit.
9) Linear Abrasion 1.5 x 0.2 cm overlying prominence of right
tip bone 14 cm outer to midline."
The opinion given by PW15 as to the cause of death was that
the victim died due to the penetrating injury sustained to the
chest. PW15 also deposed that injuries 2 to 8 could be caused
with MO4 pair of scissors and injury 2 is sufficient to cause the
death.
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13. PW17 was the police officer who registered the
case based on Ext.P1 First Information Statement furnished by
PW1. PW20 was the police officer who conducted a substantial
portion of the investigation in the case and PW21 was the
police officer who completed the investigation and laid the
charge sheet. PW20, among others, deposed that during the
interrogation of the appellant after his arrest, he informed
PW20 that he kept a pair of scissors in the shop where he was
working and when he was taken to that place, he took out from
the drawer of a table kept inside the shop, MO4 pair of scissors
and the same was seized by PW20 as per Ext.P12 mahazar.
Ext.P12 (a) is the disclosure which led to the recovery of MO4
pair of scissors.
14. A reading of the impugned judgment indicates
that it is based on the evidence discussed above, the Court of
Session came to the conclusion that the prosecution has
succeeded in proving the occurrence beyond reasonable doubt.
As noted, even though PW3 and PW16 were cited by the
prosecution as persons who saw the occurrence, both of them
turned hostile and deposed that they did not see the
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occurrence. One among them, namely PW3 had also stated
that he did not inform the police that he saw the occurrence.
Of course, PW16 deposed that he does not remember whether
he informed the police that he saw the occurrence. In other
words, there is no direct evidence to prove the occurrence as
alleged by the prosecution. True, what is recorded as the
history of alleged assault sustained by the victim in Ext.P15
wound certificate issued by PW13 is "Suhalal എനയ ൾ പരഷൻ
കവലയൽ വച കതയതൽ വച at about 3 p.m." But, there is nothing on
record as to who informed the doctor about the said history. At
any rate, the evidence tendered by PW13 that the victim was
under a shock at the time when he was brought to the hospital;
that he recovered from the shock after sometime and that he
stated to PW13 thereafter that someone stabbed him, would
indicate that the said history sustained by the victim as
recorded in Ext.P15 was not one stated to PW13 by the victim.
What was stated by PW13 was only that "അയ ൾ പറഞ എനന
കതയത ണ എന". The evidence tendered by PW13 also does not
connect the appellant with the crime. What remains is the
evidence tendered by PW15, the doctor who conducted the
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postmortem examination and the evidence tendered by PW20,
the police officer who conducted the investigation in the case
about the recovery of MO4 pair of scissors. The medical
evidence tendered by PW15 that the injuries found on the body
of the victim could be produced by MO4 pair of scissors and
the evidence tendered by PW20 that MO4 pair of scissors is
one recovered based on the information furnished by the
appellant, are not substantive evidence and the same cannot,
therefore, be the sole basis of the conviction.
15. The question that remains to be considered is
as to whether the circumstances brought out in evidence
would establish the guilt of the appellant beyond reasonable
doubt. It is trite that in order to convict an accused in a case
based on circumstantial evidence, the facts established shall
be consistent only with the hypothesis of the guilt of the
accused, that is to say, the facts should not be explainable on
any other hypothesis except that the accused is guilty; that
they should exclude every possible hypothesis except that the
accused is guilty and that there must be a chain of evidence so
complete as not to leave any reasonable ground for the
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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. The circumstances established in
the case do not satisfy the requirements of law as enumerated
above to hold that the appellant is guilty, for the facts are not
consistent only with the hypothesis of the guilt of the accused
as they do not exclude every other possible hypothesis.
16. A close reading of the impugned judgment
would indicate that it is based on Exts.P2 to P11 case diary
statements of PW3 proved by the prosecution through the
investigation officer, the evidence tendered by PW13, the
doctor who examined the victim at Taluk Hospital, Cherthala,
the evidence tendered by PW15, the doctor who conducted the
postmortem examination on the body of the deceased and the
evidence tendered by PW20, the investigation officer as
regards the recovery of MO4 pair of scissors that the Court of
Session came to the conclusion that the prosecution has
succeeded in establishing the guilt of the accused beyond
reasonable doubt. Exts.P2 to P11 are only contradictions in the
evidence tendered by PW3 and the remaining is not
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substantive evidence. The impugned judgment, in the
circumstances, is liable to be set aside and we do so.
In the result, the criminal appeal is allowed, the
impugned judgment is set aside and the appellant is acquitted.
Sd/-
P.B.SURESH KUMAR, JUDGE.
Sd/-
C.PRATHEEP KUMAR, JUDGE.
YKB
