IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI TUESDAY, THE 29TH JULY 2008 / 7TH SRAVANA 1930 CRL.A.No. 31 of 2005() ---------------------- SC.58/2004 of VI ADDL.SESSIONS COURT, ERNAKULAM .................... APPELLANTS/ACCUSED NOS.2 TO 4: ----------- 1. SASIDHARAN @ SASI, S/O.KESAVAN, CHERIYA THUNDIYIL VEETTIL, KUMBALAM KARA, KUMBALAM VILLAGE, ERNAKULAM DISTRICT. 2. KUMARESAN, S/O.E.C.KUMARAN, CORAYIL VEETTIL, KUMBALAM KARA, KUMBALAM VILLAGE, ERNAKULAM DISTRICT. 3. RATHEESH @ CHEEPPAN, S/O.VENUGOPALAN, KOCHUTHARA VEETTIL, PANANGAD KARA, KUMBALAM VILLAGE, ERNAKULAM DISTRICT. BY ADV. SRI.B.RAMAN PILLAI SRI.GEORGE PHILIP SRI.R.ANIL SRI.RAJU RADHAKRISHNAN SRI.ANIL K.MOHAMMED SRI.DELVIN JACOB MATHEWS RESPONDENT/COMPLAINANT: ------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.JAI GEORGE. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 29/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.BALAKRISHNAN NAIR & M.C.HARI RANI, JJ. ----------------------------------------- CRL.APPEAL NO. 31 OF 2005-A ----------------------------------------- Dated 29th July, 2008. JUDGMENT Balakrishnan Nair, J. The accused 2 to 4 in S.C.No.58/2004 of the Sixth Additional Sessions Court, Ernakulam, have come up in appeal, feeling aggrieved by the conviction and sentence imposed on them in the said case by the learned Sessions Judge. They were found guilty of the offence under Section 302 read with Section 34 of the I.P.C., and sentenced to undergo rigorous imprisonment for life and also to pay a fine of Rs.10,000/- each. In default, they were to undergo imprisonment for one year. 2. The prosecution case in brief is as follows: The deceased Mohanan was an employee in the Indian Railways at Kumbalam Railway Station. He was residing in apartment No.6B of the Railway Quarters, Kumbalam. On 6.4.1999 he came back to the quarters after CRL.A.31/2005 2 the day's work in the evening. His son Manu Mohan was in the said quarters. There was some quarrel between the deceased Mohanan and the second accused Sasi during day time, while they were taking lunch together. The second accused felt humiliated by the words of Mohanan. So, to avenge the same, he along with the accused 1, 3 and 4, who are his friends, trespassed into the quarters of Mohanan at 7.50 p.m on 6.4.1999. The first accused, who was armed with a knife, inflicted multiple injuries on Mohanan, while the other accused caught hold of Mohanan by force. The victim Mohanan cried out that he was being killed. The persons in the neighbourhood and the son of the deceased came to the scene. Thereupon, the accused ran away. One Mr.Muraleedharan (PW1), who was residing in the neighbouring quarters, along with others came to the scene. They found Mohanan lying in a pool of blood on the steps of his quarters. Mr.Babu (PW3), another person residing in the neighbouring quarters informed the matter to the Railway Station at Kumbalam and from there the police were informed. The police party came and took the injured to the Medical Trust Hospital, Ernakulam, where he was declared dead at CRL.A.31/2005 3 8.55 p.m. PW1 lodged the information before the Panangad Police Station and Crime No.72/99 was registered, based on his F.I. Statement. Later, the investigation was taken over by the C.I of Police, Trippunithura. Next day he conducted the inquest, prepared the scene mahazar and material objects were seized from the scene. The witnesses were questioned. The first accused Mr.Sudheesh was arrested and the dress worn by him was recovered under a mahazar. Based on the information given by him, the knife for stabbing the deceased was recovered from the wild bush growing near to the second platform of the Kumbalam Railway Station. The successor-in-office of the C.I of Police laid the charge before the Additional Chief Judicial Magistrate's Court. The learned Magistrate committed the case for trial before the Sessions Court. 3. By the time the trial had commenced, the first accused was no more. The accused 2, 3 and 4 pleaded not guilty to the charges framed against them by the learned Additional Sessions Judge. From the side of the prosecution, P.Ws.1 to 15 were examined and Exts.P1 to P15 were marked. M.Os. 1 to 6 were also produced. During the CRL.A.31/2005 4 examination of witnesses, Ext.D1, a portion of the C.D.Statement of PW4, which was at variance with his statement before the court, was marked. The accused were questioned under Section 313 of the Cr.P.C. From the side of the defence, D.Ws.1 and 2 were examined. 4. The learned Additional Sessions Judge, after hearing both sides, found accused Nos.2 to 4, who are the appellants herein, guilty of the offence under Section 302 read with Section 34 of the I.P.C. They were convicted and sentenced to undergo punishments mentioned earlier. The appellants attack their conviction and sentence on various grounds. 5. We heard Mr.B.Raman Pillai, learned counsel for the appellants and also Mr.Jai George, learned Public Prosecutor for the State. The learned counsel for the appellants took us through the depositions of the witnesses and also the documents and materials on record. Reference was made to the relevant portions of the judgment under appeal also. The learned Additional Sessions Judge convicted the appellants, relying on the evidence of PW4 Manu Mohan, who was aged six years at the time of occurrence and eleven years at the time CRL.A.31/2005 5 of examination. The court below has also relied on Ext.P1 F.I. Statement given by PW1, to find the appellants guilty. The learned counsel for the appellants pointed out that the version given by PW4 before the court lacks credence. It is pointed out that the said witness has no case in his Section 161 statement that he had previous acquaintance with the second accused Mr.Sasi. PW4 has admitted that he had been in the quarters with his father only on two occasions. His father was residing with another person. PW4 cannot remember the name of the other person residing with his father. But, he remember the second accused by name. The learned counsel for the appellants pointed out that the said case of PW4 is a new case, spoken to for the first time before the court. Further, PW2 speaks about the second accused coming and enquiring which is the quarters in which the deceased Mohanan resides. If the second accused is a friend of Mohanan, he need not enquire with PW2 regarding the quarters of the deceased. So, the case of PW4 that the second accused was a friend of his father and therefore, he was familiar with him and he can remember his name, is a false version. The witness has spoken like that under CRL.A.31/2005 6 tutoring, it is submitted. The learned counsel also pointed out that though PW3 has spoken to about the presence of PW4 in the quarters of the deceased, no witness has spoken to about his presence at the scene of occurrence, at the time when the witnesses came running there hearing the cries of the deceased. The learned counsel also pointed out that at the relevant time there was power cut, even according to the prosecution. PW4 speaks about a lamp in the hands of his father, the deceased. When the father was attacked, the lamp must have fallen down and therefore, PW4 seeing the incident is improbable. Going by the deposition of PW4, the same will not inspire confidence, it is pointed out. The learned counsel also pointed out that the finding of guilt has been entered against the appellants, relying on Ext.P1 F.I.Statement. The same is impermissible in law. It is not a piece of substantive evidence. It can be used for contradicting the maker of that statement, if he disowns that and it cannot be used for corroboration of other evidence on record. If the evidence of PW4 cannot be acted upon, there is absolutely no evidence to connect the accused with the crime. There is not even an iota of evidence legally CRL.A.31/2005 7 admissible regarding the motive of the accused to commit the crime. Therefore, the learned counsel submits that the appellants are entitled to get the benefit of doubt. 6. The learned Public Prosecutor, in answer, submitted that PW4 is a child witness. His capacity to testify before the court has been examined by the court and only on satisfying about his capacity to depose, his evidence was recorded. Even though there are minor contradictions in his statement, there is no reason to believe that he is a tutored witness. He has spoken to only what he has seen. The materials on record would show that he was present in that quarters on the fateful day when his father was attacked by the accused. If his presence is proved by legally reliable evidence, there is no reason to disbelieve his version, it is submitted. So, the learned Additional Sessions Judge has rightly convicted the accused, relying on the evidence of PW4. Though the learned Public Prosecutor does not support the reliance placed by the learned Additional Sessions Judge on Ext.P1 F.I.Statement, it is submitted that the evidence of PW4 alone is CRL.A.31/2005 8 sufficient to sustain the conviction against the appellants. 7. Before dealing with the rival contentions, we will refer to the deposition of PW4. He has stated that he is studying in sixth standard in Jayakeralam High School, Perumbavoor. He has come to give evidence as told by his mother's elder sister. He is staying with her. His father was an employee in the Railways at Kumbalam. He was staying in the Railway Quarters. Another person was also residing with his father in the quarters. To a specific question whether he was being taken to the quarters by his father, he answered “Yes”. When his father goes for work, he used to stay with Smt.Leela (PW2), who is staying in the neighbouring quarters. On the day his father was killed, he returned after work by about 5.30 p.m. They took food by 7 O'clock and went to sleep. Later, power failed and his father lit a kerosene lamp. After some time, 3 or 4 persons came and knocked at the door. His father went and opened the door. Immediately thereafter, he heard a cry from his father that he was being killed. Thereupon, he went near to the door. He saw three persons holding his father by force and another stabbing him using a knife. The second accused Sasi told his CRL.A.31/2005 9 father that if he divulge that it was they, who stabbed him, they will do away with his son also. PW4 thereafter, identified the second accused, who was in the dock. He further stated that the second accused was a friend of his father. He cried, saying that his father was being killed. The witness also identified the accused 3 and 4 also. Accused 2 to 4 were the persons who attacked his father. When PW1 and PW2 came to the scene, they ran away. The witness was shown the chopper, which was used for stabbing his father. He identified the said weapon, as the one used by the person who attacked his father. The chopper was marked as MO2. In the cross-examination, PW4 stated that he does not know who are the persons who resided on the southern side of the quarters. He does not remember the date on which the incident happened. He came two days before the date of incident to the quarters. He does not know the name of the person who was staying with his father. He does not know whether anyone else was residing in the house of PW1. PW4 stated that the two children of PW2 were residing with her. But, he does not know their name. He used to go to the house of PW2 regularly. He does not know the name of her CRL.A.31/2005 10 husband. He does not know PW3. He also does not know PW1. He knows only his father and PW2. He does not know anyone else. PW2 used to come regularly to their quarters and on the date of incident, PW2 did not go for work. It was she who prepared food for PW4. On the date of incident the younger brothers of his father came and took him to Edakochi by about 9 p.m. Thereafter, he has not gone to the quarters at Kumbalam. He has not gone out for twenty days. During that period no one came to his house to see him. The police also did not come to see him. He does not know where is Panangad Police Station. He has not gone to that station. He has also not gone to Trippunithura Police Station. He has never gone to any Police Station. The above matters, to which he has spoken to, are stated by him for the first time before the court. He has not stated anything about them before the police earlier. He further stated that he has not seen 3 or 4 persons coming and knocking at the door. He stated about the presence of 3 or 4 persons only based on guess work. His father was carrying the lamp. When he saw the lamp, it was in the hands of his father. He does not know when the lamp fell down from the hands of his father. CRL.A.31/2005 11 He also does not know from where MO1 lamp was recovered. He has got previous acquaintance with the second accused only. He states, if he sees the person who stabbed his father, he may not be able to recognize him. He does not know where Sasi caught hold of his father. He also does not know where accused 3 and 4 caught hold of his father. He has not shown anyone to the police. The police have not shown the accused to him or questioned him. He is seeing the accused for the first time in court, after the incident. He has nothing to say, if the police have produced a statement, stated to be given by him. He had mentioned about the previous acquaintance with the second accused to the police. He has nothing to say, if the police have not recorded that statement. He has also nothing to say, if the police did not record the statement of Sasi that if his father divulges as to who stabbed him, his son will be killed. He has gone twice to the quarters of his father. He does not remember how many days he stayed with his father, when he came earlier. He was confronted with his omission to state before the police that the second accused was a friend of his father and he had acquaintance with him. PW4 has no explanation for that. He further CRL.A.31/2005 12 states that he is seeing MO2 chopper for the first time in court. He has denied the suggestion of the defence that he is giving false evidence as tutored by others. 8. The only evidence on record to support the conviction of the accused is the evidence of PW4. So, the fate of the case will depend upon whether this Court believes the testimony of PW4, as was done by the learned Sessions Judge. In this context, the learned Public Prosecutor referred to the decision of the Apex Court in Suryanarayana v. State of Karnataka (2001(9) SCC 129). In that case, the court believed the version of a child witness who was a girl aged 4 years at the time of the incident and 6 years at the time of her deposition before the trial court. The learned Public Prosecutor submitted that going by the principles laid down in that case, there is no reason to discard the evidence of PW4. 9. There is no legal bar in relying on the evidence of a child witness, if it is otherwise reliable and trustworthy. But, going by the facts stated by PW4, we find it difficult to rely on his version. The case of the prosecution is that the first accused stabbed the deceased while CRL.A.31/2005 13 others held him by hand. In that circumstance, it is inherently improbable that the deceased will be able to hold a lamp in his hand. Admittedly, at the relevant time there was power cut and the version of the witness that he identified the assailants in the light of the lamp held by his father lacks credence. Further, the witness has put forward a new case while deposing before the court that the second accused Sasi was a friend of his father. But, PW2 has deposed that the second accused came to her quarters and enquired which is the quarters of the deceased. If the said witness was a friend of the deceased Mohanan, there is no reason for him to enquire about the quarters in which the deceased was residing. PW4 would admit that he came to the quarters only twice. He does not remember the other person who was residing in that quarters along with his father. He does not remember the name of the husband of Leela (PW2). He does not remember the name of the children of PW2. So, it is very difficult to believe that he remembers the name of the second accused. The said witness does not have any such case in his statement recorded under Section 161 of the Cr.P.C. So, we feel that it is quite unsafe to rely on the evidence of CRL.A.31/2005 14 PW4 to convict the accused. We agree with the contention of the defence that the child has made the submissions based on previous tutoring. The version given by him does not inspire confidence. If his evidence is not taken into consideration, practically there is no evidence on record to support the case of the prosecution. In the result, the appeal is allowed. The appellants are acquitted. The conviction and sentence imposed on them in S.C.No.58/04 by the VI Additional Sessions Judge, Ernakulam are set aside. They shall be set at liberty forthwith, if not required in connection with any other case. K.BALAKRISHNAN NAIR,JUDGE. M.C.HARI RANI, JUDGE. Nm/