Kerala High Court
Shinu.K.S vs State Of Kerala on 27 January, 2025
Author: P.B.Suresh Kumar
Bench: P.B.Suresh Kumar
2025:KER:5986
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
&
THE HONOURABLE MR.JUSTICE JOBIN SEBASTIAN
MONDAY, THE 27TH DAY OF JANUARY 2025 / 7TH MAGHA, 1946
CRL.A NO. 961 OF 2018
AGAINST THE JUDGMENT DATED 25.06.2018 IN SC NO.1275
OF 2015 OF COURT OF SESSION,KOZHIKODE
APPELLANTS:
1 SHINU.K.S.,S/O.SADANANADAN @ PONNI,
KOCHUPURAKKAL HOUSE, (PERAMBRA KUNNUMMAL),
PERAMBRA AMSOM,THANDORAPPARA.
2 SADANANDAN @ PONNI,
S/O.GOPALAN,KOCHUPURAKKAL HOUSE, (PERAMBRA
KUNNUMMAL),PERAMBRA AMSOM,THANDORAPPARA.
BY ADVS.
SRI.P.VIJAYA BHANU (SR.)
SMT.GOVINDU P.RENUKADEVI
SRI.P.M.RAFIQ
SRI.T.B.SHAJIMON
SRI.V.C.SARATH
SRI.M.REVIKRISHNAN
SRI.VIPIN NARAYAN
SRI.AJEESH K.SASI
SMT.POOJA PANKAJ
SRUTHY N. BHAT
RESPONDENT:
STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
ADV. SRI. ALEX M THOMBRA, SENIOR PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON
15.01.2025, THE COURT ON 27.01.2025 DELIVERED THE
FOLLOWING:
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JUDGMENT
Jobin Sebastian, J.
The first and second accused in S.C. No. 1275/2015 on the file of
the Additional Sessions Court - IV, Kozhikode, have preferred this appeal
challenging the judgment of conviction and order of sentence passed
against them for offences punishable under Sections 341 and 302 read
with Section 34 of the Indian Penal Code.
2. The prosecution allegation can be epitomized as follows:
The first accused is the son of the second accused and the deceased
in this case was their neighbour. The accused and the deceased have been
on inimical terms for the last several years. On 01.01.2014, at 1.00 a.m.,
the accused, the deceased and several others gathered at a place called
Valayakandam to celebrate the New Year, during which a brawl broke out
between the second accused and the deceased. During the brawl, the
deceased caught hold of the collar of the shirt worn by the second
accused. Later, on the same day, at about 2.15 a.m., when the deceased
came back to his house, after the New Year celebration, the second
accused fueled by the earlier incident, uttered abuses against the
deceased by standing in the courtyard of the second accused's house and
thereby provoked the deceased. Upon hearing the same, the deceased
came out of his house and approached the road that passes in front of his
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house. Seeing the same, both the accused also came to the road with a
wooden table leg. Then the second accused wrongfully restrained the
deceased and the first accused beat on the head of the deceased with the
wooden table leg. After the incident, though the deceased was taken to
the Medical College Hospital, Kozhikode, on 04.01.2014, he succumbed to
his injuries while undergoing treatment. Hence the accused are allegedly
to have committed the aforementioned offences.
3. On completion of the investigation, the final report was
submitted before the Judicial First Class Magistrate Court-II, Perambra. As
the case was one triable exclusively by the Court of Session, the learned
Magistrate after complying with all the necessary formalities committed
the case to the Court of Session, Kozhikode. The learned Sessions Judge
took cognizance of the offence. On the appearance of the accused, the
Sessions Judge heard both sides under Section 227 of the Cr.P.C. Being
satisfied that this is not a fit case to discharge the accused, a written
charge was framed against both the accused. When the charge was read
over and explained to the accused, both of them pleaded not guilty and
claimed to be tried.
4. In order to prove the charge leveled against the accused, the
prosecution has examined 25 witnesses as PW1 to PW25. Exts.P1 to P25
were exhibited and marked. MO1 to MO4 were produced and identified.
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After completion of prosecution evidence, when the accused were
questioned under Section 313 of the Cr.P.C., both of them denied all the
incriminating materials brought out against them in evidence.
5. After trial, both the accused were found guilty of offences
punishable under Sections 341 and 302 read with 34 of the IPC and
convicted. For offence punishable under Section 302 read with 34 of the
IPC, the accused were sentenced to undergo imprisonment for life and to
pay a fine of Rs.2,00,000/- (Rupees Two lakhs only) each with a default
clause to undergo simple imprisonment for a period of 8 months each. For
offence punishable under Section 341 read with 34 of the IPC, the accused
were sentenced to undergo simple imprisonment for a period of 1 month
and to pay a fine of Rs.500/- (Rupees Five Hundred only) each with a
default clause to undergo simple imprisonment for a period of one week
each. The substantive sentences were ordered to be run concurrently.
6. According to the prosecution, the accused committed murder
of the deceased due to an animosity stemming from an earlier incident
that occurred during a New Year celebration wherein the deceased and the
second accused entered into a wordy altercation and a scuffle. It is alleged
that the accused are father and son respectively and the deceased in this
case is their immediate neighbour.
7. The incident in this case occurred on 01.01.2014 at 2.15 a.m.
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The law was set in motion in this case on the strength of the FIS given by
the son of the deceased on 02.01.2014 at 2.00 p.m. When the son of the
deceased, the first informant, was examined as PW1, he admitted that he
had only hearsay knowledge about the incident. According to him, the
incident in this case happened on 01.01.2024, at 2.15 a.m., and at that
time he was celebrating New Year at his friend's house. He learned about
the incident when his friend named Vikas informed him over the phone.
Upon knowing about the incident he rushed to his house. When he
arrived at the road in front of his house, he found several people gathered
there. Those present told him that the second accused restrained his
father and the first accused struck his father's head using a wooden table
leg. They further stated that his father had been taken to the hospital.
Then he went to the Medical College Hospital and found his father lying
unconscious in the Intensive Care Unit. On 04.01.2014, his father died at
the hospital. He gave a statement to the police and Ext.P1 is the said
statement. According to PW1, the accused are his neighbours and he
identified both of them.
8. The owner of the lorry in which the injured was taken to
hospital when examined as PW2 deposed as follows:-
According to him, on the date of the alleged incident in this case,
between 2.30 a.m and 3.30 a.m., his neighbour named Anwar came to his
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house and told him that the deceased in this case was lying injured near a
school. Anwar sought his help to take the injured to hospital. Hence, he
took the injured in this case to the hospital. In response to a question put
by the learned Public Prosecutor, PW2 stated that he did not witness the
incident in this case. According to him, when he reached the place where
the injured was lying, Anwar was there. He further deposed that it is not
correct to say that the injured's wife and sister came to the scene. The
accused and the deceased are his neighbours and apart from that the
deceased is his relative. He further testified that the deceased was a
drunkard having a quarrelsome nature which led to his wife and children
living separately.
9. PW3, the witness cited and examined by the prosecution to
prove that a scuffle occurred between the second accused and the
deceased during the New Year celebration, did not support the
prosecution's case, testifying that he did not witness such an incident.
10. When the wife of the deceased was examined as PW4 she
deposed that during the period of occurrence in this case she along with
her husband were residing at a house named 'Kallarakkamadom'. The
incident in this case occurred in the early morning of 01.01.2014,. On the
previous day of the incident, the deceased asked her to stay at the
Tharavad house as he would be returning later after the New Year
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celebration. He further told that if he arrived earlier, he would call her.
Otherwise, she should come in the morning. Hence on the night of
31.12.2013, she resided in the Tharavad house. Her mother and the
sister-in-law were also there in the said house. At around 11.00 p.m., she
went to sleep. In the early morning, on hearing a brawl she woke up from
sleep. She and her sister-in-law came out of the house with the help of a
torch. Then she saw the accused abusing her husband with filthy
language. Thereafter, she saw her husband walking towards the road.
Then she along with her sister-in-law also approached the road. Then she
heard the 2nd accused telling the 1st accused "കൊല്ലടാ നായിന്റെ മോനെ". The
second accused then wrongfully restrained her husband and the first
accused struck her husband's head with a wooden table leg. At that time,
one Mohammed Ali (PW3) and Aravindan (PW2) were present at the scene
and both of them attempted to restrain the accused, but they failed in
their attempt. The incident in this case occurred around 2.15 a.m., and
she witnessed it in the light emitted from the street light. Due to the
blow, the deceased fell unconscious. Thereafter, Aravindan brought a mini
lorry, and Mohammed Ali along with some others took her husband to the
EMS hospital. Since she could not get on the lorry, she did not accompany
her husband to the hospital. Moreover, her son also told her not to go to
the hospital that night and instead asked her to come the next day.
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Accordingly, on the next day morning, she went to the hospital, where her
husband was undergoing treatment in the ICU. On 04.01.2014, her
husband passed away. PW4 identified the wooden table leg shown to her
as the weapon used by the accused to strike her husband's head and the
same was marked as MO1. PW4 identified both the accused before the
Court. According to PW4, at the time of the commission of offence, the
second accused was wearing a white colour shirt and the same was
marked as MO2. Moreover, PW4 identified an off-white colour shirt as the
shirt worn by the first accused at the time of the commission of the
offence, and the same was identified and marked as MO3.
11. When the sister of the deceased was examined as PW5 she
deposed that she resided at a place called Chakkittappara. The incident in
this case happened in the early morning of 01.01.2014. On 31.12.2013,
she came to her Tharavad house as it was informed by the Village Office
that staff from the Village Office would come on 01.01.2014 for the
purpose of effecting mutation of her property. On the night of December
31st, she resided with her mother in the Tharavad house and the wife of
the deceased was also there in the said house. Between 10.30 p.m., and
11.00 p.m., she went to bed to sleep. Thereafter, she heard a commotion
from outside the house. Then her sister-in-law (PW4), called her and both
of them came out of the house. Subsequently, she heard the second
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accused shouting abuses at her brother, the deceased in this case. Then
she along with her sister-in-law proceeded to the house of her brother.
Then the accused came out of the courtyard of his house onto the road
and her brother also went to the road. Then she along with PW4 followed
her brother. In the meanwhile, one Mohammedali attempted to restrain
Ponniasari, the second accused. However, the second accused wrongfully
restrained her brother and uttered to the first accused to kill her brother.
Then the first accused, Shinu beat on the head of her brother using a
wooden table leg. Consequently, her brother collapsed down. She
witnessed the incident in the light emitted from the street light on the side
of the road. The second accused is known to her for about 28 years and
the first accused is known to her for the last eight years. On 04.01.2014,
her brother succumbed to his injuries.
12. When the co-sister of the deceased was examined as PW6,
she deposed that the incident in this case occurred in the early morning of
01.01.2014. On the previous night, while she was sleeping in her house,
she heard a commotion near the deceased's house. Then she rushed to
the road and found the deceased lying in a pool of blood. At that time,
PW4 and PW5 were present, crying loudly. Thereafter, the injured was
taken to the hospital in the vehicle of one Aravindan (PW2). The injured
was unconscious at that time. The second accused was wearing a white
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shirt and the first accused was wearing a brown colour shirt at the time of
the commission of offence. PW6 identified the shirts worn by the first and
second accused and were marked as MO2 and MO3 respectively.
13. The doctor who conducted the autopsy of the body of the
deceased when examined as PW15, deposed as follows:
On 05.01.2014, while he was working as an Associate Professor of
Forensic Medicine and Deputy Police Surgeon at Government Medical
College Hospital, Kozhikode, he conducted the autopsy examination on the
body of the deceased and issued a postmortem certificate. The
postmortem certificate issued by the doctor was marked as Ext.P11.
Referring to Ext.P11 certificate, the doctor testified that he had noticed the
following ante-mortem injuries:-
"1) 'C' shaped sutured wound convexity towards front 13 cm long right
end 7 cm above right eye brow and 5 cm to the right of midline and left end
joins with injury no. 2, 6 cm above its front end.
2) 'C' shaped wound on left side of head with convexity directed to
right side. Front end 9.5 cm to the left of midline at outer end of left eye brow.
Back end 4 cm above left mastoid. Scalp contusion 8 x 6 cm, beneath injury no.
1 and 2, over left fronto parietal area. Multiple fractures of left frontal and
parietal bone 10 x 6 cm. Fractured bones were seen in situ. Extradural blood
clots/foam were seen. Duramater was found sutured. Extradual bleeding diffuse
seen over left temporo fronto parietal area. Fissure fracture 8 cm extending
through left occipito parietal suture to right. Subarachnoid bleeding diffuse all
over the cerebral hemisphere. Cerebro spinal fluid was blood stained.
3) Abrasion 1.5 x 0.5 cm back of trunk, right side 14 cm to the right
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of midline and 23 cm below top of shoulder."
14. Referring to Ext.P11 postmortem certificate, the doctor opined
that the death was due to a traumatic brain injury. When confronted with
MO1 wooden log PW15, the doctor opined that the injuries noted by him
in the post-mortem examination could have been inflicted by a weapon
like MO1. A conjoint reading of the evidence of the doctor and the
postmortem certificate issued by him shows that the death of the
deceased was a homicidal one.
15. As noted earlier, the FIR was originally registered alleging the
commission of the offences punishable under Sections 341, 294(b), 326
read with 34 of the IPC. Section 302 of the IPC was subsequently
incorporated after deleting Section 326 of the IPC subsequent to the death
of the injured. After registration of the original FIR, the initial part of the
investigiation was conducted by the Sub Inspector of Police,
Peruvannamuzhi police station. When the said investigating officer was
examined as PW22, he deposed as follows:-
16. While he was working as a Grade Sub Inspector at
Peruvannamuzhi Police Station, as part of the investigation, he visited the
crime scene and prepared a scene mahazar. Ext.P6 is the scene mahazar
so prepared. According to PW22, a wooden table leg found at the crime
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scene was recovered by him after describing it in Ext.P16 mahazar. He
identified the said wooden table leg which was already marked as MO1.
Thereafter, he interrogated the witnesses in this case and recorded their
statements. According to PW22, it was he who filed a report adding
Section 302 of the IPC before the jurisdictional Magistrate after deleting
Section 326 of the IPC. Ext.P22 is the said report. According to PW22, a
further part of this investigation in this case was conducted by the Circle
Inspector of Police, Perambra. When the Circle Inspector of Police,
Perambra who conducted the investigation in this case was examined as
PW21, he deposed that it was on 14.03.2014, and he took over the
investigation in this case. According to PW21, he recorded the statement
of a few witnesses in this case and a further part of the investigation was
conducted by PW25. When PW25 was examined, he deposed that on
19.11.2014, while he was working as Circle Inspector of Police, Perambra,
he took over the investigation in this case. By that time, the investigation
had almost reached its culmination point. According to PW25, he verified
the investigation conducted by his predecessors and the records in this
case and submitted the final report before the Court. The FSL report
received after examination of Thondi articles in this case was marked as
Ext.P25 through PW25. A perusal of the FSL report which is marked as
Ext. P25 shows that MO1 wooden log which is shown as item No. 4 in the
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FSL report was subjected to scientific examination and on examination
human blood was detected in MO1 wooden log. However, the origin and
group of the blood could not be determined as the blood contained in MO1
was insufficient.
17. As already stated, the FIS that led to the registration of the
present case was given by PW1, the son of the deceased. Admittedly, he
had only hearsay knowledge about the incident. Ext. P1 FIS reveals that
the same was given on 02.01.2014 at 2.00 p.m., approximately 12 hours
after the incident. Consequent to the said FIS, the present case has been
registered as Crime No. 5/2014 of Peruvannamuzhi Police Station. Ext.P14
is the FIR so registered. The FIR was originally registered alleging the
commission of offences punishable under Sections 294(b) and 326 read
with 34 of the Indian Penal Code. The records reveal that subsequent to
the death of the injured, Section 326 of the IPC was deleted and Section
302 of the IPC was incorporated.
18. A conjoint reading of Ext.P1 FIS and the evidence given by
PW1 shows that his statement was recorded by the police at Medical
College Hospital Kozhikode, where the injured was undergoing treatment.
PW1 admitted that Ext.P1 statement was given by him on the strength of
the information gathered by him from others. In short, the evidence of
PW1 regarding the incident alleged in this case and the involvement of the
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accused in the commission of offence cannot be relied upon as it is hit by
the hearsay principle.
19. The crucial evidence that the prosecution relies on to bring
home the guilt of the accused is the oral testimony of PW4 and PW5 who
were cited and examined by the prosecution as witnesses to the
occurrence. Notably, PW4 is none other than the wife of the deceased and
PW5 is his sister. The learned counsel for the appellant primarily assailed
the evidence of PW4 and PW5 on the ground that as both the said
witnesses are close relatives of the deceased, they are interested
witnesses. According to the counsel, their familial relationship renders
them partisan witnesses, and therefore, the court should exercise much
caution when analysing their testimony. We do agree that while analysing
the evidence of a relative witness a court should act with much care and
circumspection. However, it is trite that relationship alone is not a criterion
to discard the evidence of a witness if the same is inspiring the confidence
of the court.
20. In State of Andhra Pradesh v. S. Rayappa and others
[(2006) 4 SCC 512], the Supreme Court observed as under:
"Testimony of a witness otherwise inspiring confidence cannot be
discarded on the ground that he being a relation of the deceased is an
interested witness. A close relative who is a very natural witness cannot
be termed as an interested witness. The term interested postulates that
the person concerned must have some direct interest in seeing the
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accused person being convicted somehow or the other either because of
animosity or some other reasons. On the contrary, it has now almost
become a fashion that the public is reluctant to appear and depose before
the court especially in criminal cases because of varied reasons. Criminal
cases are kept dragging on for years to come and the witnesses are
harassed a lot. They have been threatened, intimidated and at the top of
all they are subjected to lengthy cross-examination. In such a situation
the only natural witness available to the prosecution would be the relative
witness. The relative witness is not necessarily an interested witness.
On the other hand, being a close relation to the deceased they will try to
prosecute the real culprit by stating the truth. There is no reason as to
why a close relative will implicate and depose falsely against somebody
and screen the real culprit to escape unpunished. The only requirement
is that the testimony of the relative witness should be examined
cautiously."
21. In Kartik Malhar v. State of Bihar [(1996) 1 SCC 614], it
was observed that a close relative who is a natural witness cannot be
regarded as an interested witness. The term "interested" postulates that
the witness must have some interest in having the accused somehow or
the other convicted for some animosity or for some other reasons.
22. We are of the view that merely because of the reason that a
witness is a close relative of an injured or a deceased, the evidence of
such a witness cannot be brushed aside in toto on the sole ground of the
said relationship. Anyhow, we are not oblivious that when relying on the
evidence of a relative witness prudence requires a close scrutiny of their
evidence, and the Court while analysing their evidence must be more
circumspect and cautious.
23. Keeping in mind the above, it is to be noted that when the
wife of the deceased was examined as PW4, during the chief examination
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she deposed that she did not accompany her injured husband to the
hospital. She explained that the injured was taken in a lorry and she was
unable to get on it. Additionally, she stated that her son asked her not to
come to the hospital at that time, and instead asked her to come to the
hospital the next day. The evidence of PW4 further shows that on
02.01.2014 in the morning, she arrived at the hospital and at that time,
her two sons were also there in the hospital.
24. As already discussed when Arundas, the son of the deceased,
who lodged the FIS in this case was examined as PW1, he admitted that
he had only hearsay knowledge about the case. Furthermore, his evidence
reveals that the FIS was given by him on the strength of the information
which he gathered from the local people who were present at the crime
scene. Notably, PW1 admitted that it was only on 06.01.2014 that he
learned that his mother (PW4) and his Aunt (PW5) witnessed the incident
in this case and that was only when PW4 and PW5 gave a statement to
the police.
25. At this juncture, it is noteworthy that from the evidence it is
established that PW4, the wife of the deceased, went to the hospital on
the next day morning of the incident and she met her both sons there.
Nevertheless, she did not disclose to them that she had witnessed the
incident in this case. During the cross-examination, she categorically
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deposed that "ബിജുവിനോടും അരുൺദാസിനോടും ഞാൻ കണ്ട കാര്യങ്ങൾ പറഞ്ഞില്ല"
Furthermore, it is striking that PW4 admitted during cross-examination
that, she was present when the police recorded her son's statement and
she heard the police asking if anyone had witnessed the incident, yet she
remained silent.
26. The evidence of PW4 further reveals that she disclosed that
she witnessed the incident in this case, for the first time on 06.01.2014,
when the police recorded her statement. The evidence of PW1, the son of
the deceased, and PW4 shows that when PW1 gave Ext.P1 First
Information Statement to the police at the hospital, PW4 was also present.
PW1 asserted that at the time, when he gave the statement, nobody who
witnessed the incident was present at the hospital and that is why he gave
the statement to the police. Moreover, during cross-examination, PW1
admitted that before recording his statement, the police asked if anyone
had witnessed the incident. To a definite question put by the learned
defence counsel, PW1 deposed that he learned his mother (PW4) and aunt
(PW5) witnessed the incident only on 06.01.2014, when the police came
to record their statements.
27. Of course, the evidence of PW4 that she did not disclose the
incident, she claimed to have witnessed on 01.01.2014, to anyone, until
06.01.2014 is highly doubtful. It is quite strange that she did not even
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mention the incident she witnessed to her sons and the same generates
grave suspicion regarding the evidence of PW1. Furthermore, it is striking
that the deceased's adult sons did not inquire about the incident with their
mother, asking what happened, who committed the crime, or whether she
witnessed the incident till 06.01.2014. This lack of enquiry lacks credulity.
In ordinary circumstances, a wife who witnesses a traumatic incident like
this leading to her husband's death would naturally disclose the details to
her adult children. Therefore, we are of the view that no blame can be
attributed to the assertion made by the learned defence counsel that the
wife of the deceased was cited and examined by the prosecution as a
witness to the occurrence apparently to circumvent lack of direct evidence
in this case.
28. The evidence of PW5, the sister of the deceased, reveals that,
like PW4, she also visited the hospital the next day after the incident and
then the Police reached there. According to PW5, the police enquired
about the events surrounding the case and asked if anyone had witnessed
the incident. However, she did not respond. PW5 does not have a case
that she informed anyone that she witnessed the incident, prior to the
Police recording her statement on 06.01.2014. The fact that PW5 did not
disclose witnessing the incident to anyone including the major sons of the
deceased until her statement was recorded by the police also creates a
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serious dent in the credibility of PW5's evidence. During
cross-examination, PW5 admitted that her statement was recorded by the
Police a few days after the funeral of her brother the deceased in this case
and it was only thereafter she disclosed that she witnessed the incident in
this case to the son of the deceased named Arundas. PW5's conduct in
this regard creates suspicion about her claim of witnessing the incident.
29. Moreover, it is noteworthy that during cross-examination PW5
admitted that she resided at a place called Chakkittappara and came to
her Tharavad house on the previous day of the incident, as the Village
Officer was informed that some staff from the Village Office would be
visiting her Tharavadu property for mutation purpose. It is evident that
PW5 is a chance witness. Although she claimed her visit was related to a
survey of her property and for facilitating the mutation of her property, the
prosecution failed to provide convincing evidence to substantiate this
claim. In cases involving chance witnesses, it is the prosecution's duty to
demonstrate the circumstances or purpose behind the witnesses' presence
at the scene. Unfortunately, such evidence is lacking in this case
considering the above factors we are of the opinion that the evidence of
PW4 and PW5 is suspicious and cannot form the basis for a finding of guilt
against the accused. Apart from the above-said feeble and unreliable
evidence of PW4 and PW5, there is absolutely no other convincing
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evidence to prove the charge levelled against the accused.
In the result, the appeal is allowed, the impugned judgment of
conviction and order of sentence passed against the appellants are set
aside and they are acquitted. They shall be set at liberty forthwith from
the prison concerned, if their continued detention is not required in
connection with any other case. The Registry shall communicate this
judgment to the Jail Superintendent concerned where the appellants are
undergoing incarceration.
Sd/-
P.B. SURESH KUMAR
JUDGE
Sd/-
JOBIN SEBASTIAN
JUDGE
DCS/ncd
