IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI WEDNESDAY, THE 10TH DECEMBER 2008 / 19TH AGRAHAYANA 1930 CRL.A.No. 362 of 2005-D ----------------------- SC.139/1999 of ADDL.SESSIONS COURT, KOTTAYAM .................... APPELLANT/ COMPLAINANT ------------------------- STATE OF KERALA, REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA BY PUBLIC PROSECUTOR MR. JAI GEORGE RESPONDENTS/ ACCUSED ---------------------- 1. JINO, S/O. MATHAI, SANKARAMALA HOUSE, CHERUVANDOOR KARA, PEROOR VILLAGE. 2. C.R.P. @ UTHUP S/O. KURUVILLA, PUTHENPARAMBIL HOUSE, THIRUVANCHOOR KARA, MANARCADU VILLAGE. 3. MATHAI, S/O. MATHAI, SANKARAMALA HOUSE, CHERUVANDOOR KARA, PEROOR VILLAGE. 4. KOCHUMON @ SATHEESH, S/O. UTHUP PUTHENPARAMBIL HOUSE, THIRUVANCHOOR KARA, MANARCADU VILLAGE. ADV. SRI.SURESH BABU THOMAS FOR R1 TO 4 SRI.P.RAVINDRA BABU FOR R1 TO R4 THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 11/11/2008, THE COURT ON 10-12-2008 DELIVERED THE FOLLOWING: K. BALAKRISHNAN NAIR & M.C. HARI RANI,JJ ============================== CRL.A. NO. 362 OF 2005 ============================ DATED THIS THE 10TH DAY OF DECEMBER, 2008 JUDGMENT Hari Rani,J. This appeal is preferred by the State against the judgment in S.C.No.139/1999 on the file of the Additional Sessions Court, Kottayam assailing the acquittal of accused 1 to 4. 2. The accused 1 to 4 were prosecuted for an offence punishable under Section 302 read with Section 34 of the Indian Penal Code with respect to an incident that happened at Peroor Village, Cheruvandoor Kara on the side of the road leading to Festal Company near the house of accused No.3 at about 6.30 a.m. on 14-8-1997, in which one Joseph was stated to have been attacked by accused 1 and 2 and inflicted cut injuries on his head with choppers, the third accused beat him with coffee stick and the 4th accused beat him with the handle of a spade and Joseph succumbed to the injuries sustained, on the way to the hospital. CRL.A.NO. 362/2005 -2- The incident was the off-shoot of previous enmity of the accused towards the injured. On the basis of Ext.P1, F.I.Statement of PW1, PW14, the Sub Inspector of Police, Ettumanoor Police Station registered the F.I.R. in Crime No.285/1997 and PW15, the Circle Inspector of Police, investigated the case. He held the inquest on 14-8-1997 and prepared Ext.P8 inquest report and seized Mos.3 and 4 from the dead body. On 16-8-1997 at 6.30 a.m., he arrested the accused 1 and 3 from Karithas Junction and at the instance of the first accused, MO.6 chopper was seized from the property of the third accused under Ext.P10 mahazar. At the instance of the third accused, MO.1 coffee stick was seized from his property under Ext.P11 mahazar. Investigation was continued by PW15 and on 19-8-1997 at 7 a.m., he arrested the 4th accused. At the instance of the 4th accused, MO.2 spade was seized from the property of the third accused under Ext.P13 mahazar. On 25-8-1997 at about 10.30 a.m., he arrested the second accused. At the instance of the second accused, MO.10 chopper was seized from the property of the third accused under Ext.P14 mahazar. PW15 completed the investigation and laid the charge sheet against the accused for the offence punishable CRL.A.NO. 362/2005 -3- under Section 302 read with Section 34 of the Indian Penal Code before the Court of Judicial First Class Magistrate, Ettumanoor, who committed the case to the Sessions Court, Kottayam as per order in C.P.2/1998. After committal, the Sessions Court made over the case to the Additional Sessions Court, Kottayam for trial and disposal. The learned Additional Sessions Judge, Kottayam framed charges against the accused under Section 302 read with Section 34 of the Indian Penal Code. They pleaded not guilty to the charges. 3. From the side of the prosecution, PWs.1 to 17 were examined. Exts.P1 to P34, Exts.X1 to X4 and Mos.1 to 10 were also marked. Exts.D1 to D5 were marked as defence exhibits. When the accused were questioned under Section 313 Cr.P.C., they denied all the circumstances appeared against them in evidence and maintained their innocence. No witness was examined in defence. The learned Sessions Judge, after hearing both sides, acquitted the accused disbelieving the case of the prosecution. Hence, this appeal. 4. We heard Sri.Jai George, learned Public Prosecutor for the appellant/State and also Sri. Suresh Babu Thomas and CRL.A.NO. 362/2005 -4- Shri.P.R.Ravindrababu, the learned counsel for the respondents/accused 1 to 4. 5. The learned Public Prosecutor argued that the incident is proved by the evidence of PW1 and from the recovery of Mos.1,2,6 and 10 in pursuance of the disclosure statements of the accused 3,4, 1 and 2 respectively. The counsel for the accused argued that the incident as alleged by the prosecution has not been proved beyond reasonable doubt and the sole evidence of PW1 regarding the alleged incident cannot be believed. So also, the recovery of the M.Os. was procured artificially and cannot be relied on. 6. PWs.1 to 4 were examined as eye witnesses. PW1 is the wife of deceased Joseph and the sister of A3. A1 is the son of A3. A4 is the son of A2. PWs. 2 to 4 were the neighbours of PW1 and the accused. All the accused were residing in the same house belonged to A3. The incident occurred near the house of the third accused at 6.30 a.m. on 14-8-1997 on the side of the road leading to Festal Company. Going by the evidence, PW1 lodged the information before Ettumanoor Police Station at 9 a.m. on the same day. PW1 referred to the CRL.A.NO. 362/2005 -5- involvement of A1 to A4 in the said complaint. The third accused is the brother of PW1. It is conceded by PW1 that prolonged litigations were there between them and the third accused both civil and criminal and they have previous enmity towards each other. The same is proved from Exts.D1 to D5 and Exts.X1 series. So, the testimony of PW1 is to be viewed with caution. The fact that the deceased sustained very serious injuries to his head, which are noted at Sl. Nos.1 and 2 in the postmortem certificate, Ext.P16, on 14-8-1997 at about 6.30 a.m. near the house of the third accused and he succumbed to the injuries on the way to the Medical College Hospital is not in dispute. 7. The 2nd accused sustained injuries in the same incident including fracture on his left medial malleolus and undergone treatment from the same hospital as evident from Ext.P31,the wound certificate. The alleged cause of injury was noted therein as 'തന കണ അട ചത നല '. The date and hour of examination was also noted in Ext.P31 as 14-8-1997 at 7.15 a.m. Nothing has been stated by PW1 regarding this fact and she has pretended ignorance about it also. According to PW1, CRL.A.NO. 362/2005 -6- after the incident and on seeing her all the accused including the second accused ran away to the house of the third accused. That version of the said witness cannot be believed. Ext.X2 is the copy of the F.I.S. in Crime No. 288/1997 given by the second accused from the hospital on 15-8-1997 to PW17. Ext.X3 is the copy of the F.I.R. and Ext.X4 is the copy of the refer report. So, the presence of accused No.2 at the scene of occurrence cannot be doubted. While questioning under Section 313 Cr.P.C., the second accused has stated that on the date of incident, in the early morning he got up and went to bath room on the northern side of the house for passing urine. At that time deceased Joseph was waiting there and beat him with a spade on his leg. On account of that he fell down and due to pain he cried loudly and he became unconscious. When he regained consciousness, he was in the Medical College Hospital and he had not committed any offence and he has not given the statement alleged to have been given by him in the counter case and that was not the real statement given by him. 8. Thus it is evident that a counter case has been registered with regard to the same incident against the deceased CRL.A.NO. 362/2005 -7- Joseph, the husband of PW1. But PW1 pretends ignorance regarding the injuries sustained by the second accused in the same incident and about the counter case also. This can only be intentional. So, her evidence lacks credence and cannot be accepted to convict accused 1 to 4 and that too in the absence of other corroboration from other independent witnesses. 9. PW4, who was examined as the independent witness, turned hostile to the prosecution. A different story has been stated by him. He has stated that on the date of incident at bout 6 a.m. when he heard the lament of Joseph, he reached there. At that time, he saw the deceased Joseph lying there by holding the barbed wire fence separating the house of the third accused from the road leading to the Festal Company. At that time nobody was there and he informed about it to PW1 and her son CW2, Tom Joseph, and they removed the deceased from the barbed wire. Immediately a police jeep came there and he helped them to take the deceased in the jeep to go to the hospital. The testimony of PW4, though hostile, will go to show that PW1 was not there at the scene of occurrence and she did not see the incident from the very beginning as deposed by PW1. CRL.A.NO. 362/2005 -8- There is no acceptable evidence to establish that who was the aggressor in the alleged incident and regarding the involvement of accused 1,3 and 4 in the present crime. Thus, the prosecution has not placed the true facts with regard to the incident before court as correctly found by the learned Sessions Judge. 10. The recovery of the weapons alleged to have been used by accused 1 to 4 is not believed by the lower court. According to the prosecution, Mos.1,2,6 & 10 were recovered in pursuance of the disclosure statements of the accused 3,4,1 and 2 respectively on different occasions from different places in the property belonging to the third accused. The investigating officer, PW15 has specifically stated that on 14-8-1997 itself he conducted search of the house of the third accused and the surroundings and no incriminating articles were obtained. Thus subsequently the recovery of Mos.1,2,6 and 10 from the same property of the third accused, which was searched on the date of incident itself, cannot be believed and so it is unsafe to act on the recovery of the above material objects. 11. The learned Public Prosecutor relied on the evidence of PW12, who conducted postmortem examination on CRL.A.NO. 362/2005 -9- the body of the deceased and issued Ext.P16 postmortem certificate wherein it was opined that the deceased died due to head injuries (Injury Nos.1 and 2). The relevant portion of Exhibit P16 reads as follows: 1)Lacerated wound 3.5 x 0.5 cm bone deep on the left parietal region of scalp. 7cm.left midline. On dissection skull showed a fissured fracture 24 cms long, involving both parietal regions of skull transversely. Underneath the brain showed a laceration 4 x 2 x 1 cm on the left parietal region, with infiltration of blood to surrounding area. There was diffuse bilateral subarachnoid hemorrhage. 2)Lacerated wound 4.5 x 1 x 0.5 cm oblique on the left temporal region of the scalp, the lower front end 9 cms.to the left of midline. On dissection there was depressed fracture over an area 3.5 x 1.5 cm over the left temporal bone. 12. In the cross examination, he deposed that he had not noted any stab or punctured wound which could have been caused by the tip of the choppers shown from the court. It was also deposed by PW12 that if a person falls on a barbed wire fence, injuries noted by him in Ext.P16 could be generally caused. CRL.A.NO. 362/2005 -10- 13. It is proved by the evidence of PW12 and also by Ext.P16 that the cause of death of deceased Joseph was due to head injury Nos.1 and 2 noted above and those injuries were fatal in nature and sufficient in the normal course to cause death. But there is no clear and cogent evidence to prove that those injuries were caused by A1 to A4 on the body of deceased Joseph in the incident. 14. It is clear from the judgment rendered by the lower court that after careful consideration of the evidence on record, the lower court found that the prosecution has not succeeded to prove the guilt of accused 1 to 4 in this case and that they acted in furtherance of their common intention to kill the deceased Joseph. We find that the view taken by the lower court that accused 1 to 4 are not guilty in this case is the probable view on the evidence on record and we find that the finding does not suffer from any illegality or perversity. Therefore, we are not inclined to interfere with the findings entered by the lower court that accused No.1 to 4 are not guilty in this case. CRL.A.NO. 362/2005 -11- We find the appeal is devoid of any merits. Accordingly, the judgment passed by the lower court is confirmed and the appeal is dismissed. K. BALAKRISHNAN NAIR, JUDGE M.C. HARI RANI, ks. JUDGE