IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN TUESDAY, THE 9TH JUNE 2009 / 19TH JYAISHTA 1931 CRL.A.No. 1898 of 2005 ------------------------ SC.461/2001 of ADDL. SESSIONS COURT (ADHOC), THODUPUZHA .................... APPELLANT: ------------ C.I. OF POLICE ADIMALI, REP. BY PUBLIC PROSECUTOR. BY PUBLIC PROSECUTOR SRI.NOBLE MATHEW. RESPONDENT(S): --------------- 1. BABY @ SEBASTIAN, S/O.DEVASSIA, KUZHIMATTATHIL HOUSE, MAMATTIKANAMKARA, RAJAKAD VILLAGE. 2. SHAJAN @ ROYCHAN, S/O.SEBASTIAN, KUZHIMATTATHIL HOUSE, MAMATTIKANAMKARA. ADV. SRI.K.GOPALAKRISHNA KURUP FOR R1 SRI.P.CHANDY JOSEPH FOR R1 & 2 THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 09/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: A. K. Basheer & P. S. Gopinathan, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Crl.A. No. 1898 of 2005 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 9th day of June, 2009. Judgment Basheer, J: State has preferred this appeal against the order of acquittal passed by the Sessions Court holding the respondents/accused herein, not guilty of the offences punishable under Sections 302, 201 read with Section 34 of the Indian Penal Code. The court below held that the prosecution case was not “free from reasonable doubt” and therefore the accused were entitled to get the benefit of doubt. 2. A young man named Jojo, aged about 22 years, and an autorickshaw driver by profession, was deeply in love with Pw.2 Smitha aged 16 years. She is the daughter of respondent No.1/accused No.1. Respondent No.2/accused No.2 is the brother of accused No.1. 3. The prosecution alleged that Jojo and Smitha having found that the latter's family was vehemently opposed to their relationship and respondent No.1 having ruled out any possibility of a marriage alliance between the two, had decided to flee from the village at about 11 p.m. on July 19, 2000. Jojo and Smitha started off from Mammattikkanam Kara by about 11.45 p.m. The two accused sensing that the two lovers had already chalked out a plan to elope, allegedly followed and intercepted them. Accused No.1 caught hold of the neck of Jojo and pushed him down into the paddy field which was filled with mud and water. He sat on the body of Jojo and the other accused pushed the head of Jojo into the mud and strangulated and killed him. Crl.A. No. 1898 of 2005 2 Pw.1 who was stated to be residing with his parents a little away from the alleged scene of occurrence informed the matter to one Ravi, who was the Secretary of the local Grama Panchayat. Mr.Ravi in turn informed the Police. Pw.31 Sub Inspector of Police of Rajakkad Police Station reached the scene of occurrence by about 12.45 a.m. and recorded Ext.P1 statement of Pw.1. Subsequently Ext.P57 First Information Report was registered by Pw.31 after going back to the Police Station. The case was thereafter investigated by Pw.32 Circle Inspector of Police and charge sheet was laid by him before the Court against the appellants and their mother, Thressiamma. 4. The prosecution examined Pws.1 to 32 and marked Exts.P1 to P57 and M.Os.1 to 5 on its side. Exts.D1 to D4, portions of the case diary statements of the witnesses, were marked on the side of the defence. 5. In the course of the trial the learned sessions Judge noticed that almost all the prosecution witnesses who had allegedly seen the incident or had occasion to see the two accused at the scene of occurrence, had turned hostile, barring Pw.6 and Pw.17. The learned Judge took the view that it was not safe to rely on the evidence of Pw.6, since he was only a chance witness. The evidence of Pw.17 was also found to be untrustworthy since he had allegedly kept away from the scene for a few days. It was in the above circumstances that the learned Sessions Judge held that the prosecution had not succeeded in proving Crl.A. No. 1898 of 2005 3 the charge against the accused beyond reasonable doubt. 6. It is contended by learned Public Prosecutor Sri.Noble Mathew that the court below has committed serious illegality in discarding the evidence of prosecution witnesses especially that of Pws.6 and 17. According to the learned Public Prosecutor, the evidence of the prosecution witnesses (though they had been declared hostile by his counterpart in the trial court with undue haste), cannot be discarded or eschewed in toto, in the facts and circumstances of the case. He points out that the residents of that locality had the misfortune to witness a young man being beaten up, smothered and throttled in a paddy field. All the people who had gathered at the scene of occurrence on hearing the hue and cry had seen the two accused with dirt smeared all over their body, after the fight with the young man who struggled for his life in the paddy field which was filled with mud and water in the monsoon rains. The body of the young man was pulled out of the paddy field and dumped in the nearby property. Many of the witnesses had seen the two accused walking away after committing the crime. Pw.2, the girl in love (daughter of accused No.1) was wailing and weeping. She had tried to restrain and dissuade her father and uncle from finishing off her lover. In the process she was also hurt. It is further pointed out by the learned Public Prosecutor that the material witnesses were questioned by the Police within hours of the incident. Significantly, the First Information Report was registered Crl.A. No. 1898 of 2005 4 within two hours after the incident, against the two respondents/accused along with their mother on the array of the accused. But still these witnesses, for reasons only best known to them, ditched the prosecution. It is submitted by the learned Public Prosecutor that if only the Court below had perused the entire materials available on record and read the evidence of the witnesses in its proper perspective, it would not have acquitted the accused. 7. Per contra, it is submitted by Sri. Gopalakrishna Kurup, learned counsel for the accused that the court below had properly examined the oral and documentary evidence adduced by the prosecution. The court below had occasion to see the demeanour of the witnesses. He further submits that in an appeal against acquittal, the scope of interference is very narrow and limited and this Court may not be justified in interfering with the order of the trial court, even if a second view is possible. 8. Before we examine the oral testimony of the witnesses, it may be relevant and profitable to take a brief look at the First Information Statement, admittedly given by Pw.1 within two hours of the alleged incident. 9. It may be remembered that Pw.1 had admitted his signature in Ext.P1. It was stated by Pw.1 that he was residing with his parents and sister (Pws.7 to 9). At about 9 p.m. all of them had finished their dinner and gone to bed. Sometime late in the night all of them woke up Crl.A. No. 1898 of 2005 5 hearing their dog barking incessantly. When they came to the front window and looked outside, they saw Pw.2 crying aloud standing on the ridge (varamba) of the paddy field belonging to Pw.3. Thressiamma (mother of the accused) was standing near Pw.2 with a country torch in her hand. Accused No.1 and his younger brother Shajan (accused No.2) were seen dragging a person from the paddy field to its ridge. They dragged the body into the adjoining land and dumped it there. Thressiamma also helped the two accused in doing so. The younger son and daughter of accused No.1 were also standing there. All of them went towards their house thereafter. The time was around 11.45p.m. Pw.1 further stated that they called out the neighbours. By that time Pws.3 and 4 had also gone running to the scene. Pw.1, his parents and sister (Pws.7 to 9) went to the scene. They found Jojo lying motionless, with mud smeared all over his body. His eyes and mouth were open. They realised that Jojo was dead. Pw.1 further stated that Jojo had been in love with Pw.2. He also referred to an incident which took place about one year ago when Jojo had allegedly taken Smitha from the school. In connection with that incident, Pw.2 was issued transfer certificate from Rajakkad school. Accused No.1 was against the love affair between his daughter and deceased Jojo. Pw.1 claimed that deceased Jojo who was an autorickshaw driver like him, was his friend. He further stated that he saw the incident in the light of the country torch carried by Crl.A. No. 1898 of 2005 6 Thressiamma. He along with Saji, Lijo and Santo went to meet Ravi, the Secretary of the local Panchayat and informed him about the incident. Mr. Ravi telephoned the Police and the Police came to the scene immediately. But Pw.1 deposed that he did not told the Sub Inspector that he had seen the incident. In fact this witness disowned all his statements in Ext.P1 implicating the two accused. The contradictory portions in the statement of Pw.1 which he had disowned while he was examined in the court were marked as Exts.P2 to P8. We will deal with the evidence of this witness elaborately a little later. 10. Pw.2, the girl who was admittedly in love with deceased Jojo also turned hostile to the prosecution. In fact this witness went to the extent of saying that she had not been in love with Jojo. She further stated that she had not gone out of her house in the night of July 19, 2000 with Jojo. Jojo had not come to her house at about 11 p.m. and knocked at her door. She also disowned her statement before the Police that accused No.2 had beaten her on her back and had picked up a fight with Jojo. Accused No.1 (her father) had not hit Jojo. She further asserted that accused No.2 had not pushed the head of Jojo into the mud in the paddy field. She had not told the Police that the body of Jojo was pulled out of the paddy field and put on the varamba (boundary). But significantly this witness admitted that she had sustained some injury and had gone to the hospital to get treatment for the injury on her hand. But according to her, she sustained the injury Crl.A. No. 1898 of 2005 7 while cutting grass. She disowned her statement before the Police that the injury had been sustained by her in the push and pull with the accused. The contradictory statements of this witness were marked as Exts.P9 to P17. We will deal with the evidence of this witness also later. 11. Pw.3 George admitted that he had come out of his house in the mid night on the day of the incident hearing some loud cry. He put on the light and went to the scene. He found Jojo lying in the mud in the property of his younger brother. He also admitted that he had seen Pw.1 in the courtyard of his house. But he denied having told the Police that he had seen the accused at the scene of occurrence. Therefore Pw.3 was also declared hostile. This witness further admitted that the saplings in the paddy field which belonged to him were trampled and dislevelled. He denied having informed the Police that he had seen the two accused pulling out the body of Jojo from the paddy field and dumping it on the varamba of the field. The contradictory portions in the deposition of this witness were marked as Exts.P18, P25 and P26. 12. Pw.4, the brother of Pw.3 also did not support the prosecution. Though he had allegedly told the Police in his statement under Section 161 of the Code that he had heard accused No.1 saying that he had finished off Jojo, he had disowned that statement. He further stated that he had not informed the Police that he had seen the Crl.A. No. 1898 of 2005 8 two accused along with their mother Thressiamma at the scene of occurrence. He also stated that he had not seen Pw.2 with a bag in her hand. 13. Pw.5 who according to the prosecution had reached the scene of occurrence along with Pw.6 while they were returning to their home from Rajakkad also did not support the prosecution. But he admitted that he knew Pw.6. But he disowned his statement before the Police that he and Pw.6 had gone to the scene of occurrence in the paddy field on hearing a cry. That portion of the statement given by him before the Police under Section 161 of the Code of Criminal Procedure was marked as Ext.P21. According to the prosecution, this witness had told the Police that on reaching the scene he had found the head of a human being protruding from the mud and a man with a shirt pushing the head down to the mud. This statement was also disowned by Pw.5. That portion was marked as Ext.P22. Similarly he had told the Police that he had seen a girl and an old woman standing at the scene of occurrence. But this statement was also disowned by him which was marked as Ext.P23. The man with the shirt was identified by Pw.5 before the Police as accused No.2 while the man without shirt was identified as accused No.1. This statement before the Police was also disowned by Pw.5. This was marked as Ext. P24. 14. Pw.6, as mentioned by us earlier, did in fact stand by the Crl.A. No. 1898 of 2005 9 version given by him to the Police as a whole. He stated that he knew deceased Jojo and the two accused. He asserted that he saw the incident. He and Pw.5 were returning from Rajakkad and proceeding towards Koothumkal. When they reached near Mamattikkanam at about 11.30 p.m. they heard dogs barking and a hue and cry. They went towards the paddy field from where the noise came. He saw two people in the paddy field, one wearing shirt and other without shirt. One of them was searching for something. A head protruded out of the mud. The man in shirt who was standing in the paddy field pushed the head down to the mud. This witness stated that he was scared and got away from the scene immediately. He identified accused No.2 in the court as the man who had been wearing shirt at the time of the incident and the other person without shirt as accused No.1. He also stated that he saw a girl standing with a bag and an old woman standing nearby with a country torch made of hay. He could not identify the person who was lying in the mud in the field at that time. But when he went to the scene of occurrence on the next day, he identified the deceased Jojo. He stated that he had seen the incident in the light of the country torch and the moon light. 15. In cross examination of this witness it was brought out that he had gone to Rajakkad to meet a contractor who owed some money to him. Since Pw.5 had requested for a loan from him, he had asked Pw.5 to meet him at Rajakkad in the evening. Since in the evening Crl.A. No. 1898 of 2005 10 they could not meet the Contractor, he and Pw.5 had gone for a movie. Even after the movie they could not meet the contractor. They took a tea from a nearby shop and proceeded towards Koothumkal. It was at that time that they heard the loud cry from the paddy field nearby. We will deal with the evidence of this witness more elaborately a little later. 16. Pw.7 the father of Pw.1 also admitted that he woke up from his sleep hearing loud barking of dogs. He saw some people moving with light through the paddy field. He also went to the scene. But he stated that he did not see the incident. Therefore he was declared hostile. He disowned his statement before the Police that he had seen the two accused pulling out somebody from the paddy field. This portion of the statement was marked as Ext.P27. He had not told the Police that he had heard Thressiamma saying “Let us go. Leave him if he is dead”. This portion was marked as Ext.P29. He further stated that he had not seen the two accused with m ud smeared all over their dress and body. This portion was marked as Ext.P30. He had not told the Police that the two accused had gone towards their residence after pulling out the body of Jojo from the paddy field and dropping it at the Varamba. This portion was marked as Ext.P31. 17. Pw.8 the wife of Pw.7 also did not support the prosecution. She stated that she had not seen the incident. The contradictory portions in her statement given under Section 161 of the Code of Crl.A. No. 1898 of 2005 11 Criminal Procedure were marked as Exts.P32 to P34. Pw.9, the daughter of Pws.7 and 8 and sister of Pw.1 deposed before the court that she had not seen the two accused pulling out the body of Jojo from the paddy field. She had not seen the mother of the two accused standing near the scene with a country torch in her hand. The contradictions in her statement were marked as Exts.P35 to P37. 18. Pw.10 was also declared hostile. She stated that she did not tell the Police that she had seen the incident. She disowned her statement that she had seen two people pulling out the body of Jojo from the paddy field and an old lady standing near them. This portion of her statement given to the Police under Section 161 of the Code was marked as Ext.P38. The other contradictory statement was marked as Ext.P39. 19. Pw.11, the son of accused No.1 obviously did not support the prosecution. He deposed that he had not told the Police that when he woke up in the night his sister Smitha (Pw.2) was not found in the house. He further stated that he had not told the Police that he and Noble (Pw.12) had gone with his grandmother (Thressiamma) to the scene of occurrence. That portion of the statement was marked as Ext.P40. He disowned his statement before the Police that he had seen his father (accused No.1) and uncle (accused No.2) engaged in push and pull with his sister in the paddy field. He also did not tell the Police that the two accused had pulled out the body of Jojo from the Crl.A. No. 1898 of 2005 12 paddy field. That portion of the statement was marked as Ext.P41. Pw.12, the other son of accused No.1 and brother of Pw.11 also disowned whatever he had allegedly told the Police about the occurrence. The relevant portions of his statement were marked as Exts.P42 and P43. 20.Pw.13, the father of deceased Jojo deposed before the Court that his son was in love with Pw.2 Smitha since 3 years before the incident. Smitha used to write letters to his son.One such letter was produced by him before the Police. At about 1 a.m. on the night of the incident, the Sub Inspector had come to his residence and woke him up. He was informed by the Sub Inspector that his son was no more. He fell unconscious. This witness further stated that he had gone to the residence of accused No.1 four days prior to the incident seeking marriage alliance for his son with Pw.2. But the request was turned down. In cross examination this witness further stated that two bags were available in his house. But after the incident the bags were found missing. His son had also with him Rs.2500/-, apart from a gold chain weighing 1 ¾ sovereigns. He was also having a watch. His son was working as an autorickshaw driver.He used to come home late. In cross examination this witness further stated that he had gone to the house of accused No.1 seeking marriage alliance along with Pws.13 to 16. 21. Pw.14, the mother of deceased Jojo also spoke about the love affair between her son and Pw.2. She stated that Pw.2 used to Crl.A. No. 1898 of 2005 13 send greeting cards and letters to her son in their residential address. Earlier, when the school authorities had given complaint before the Police about the affair between Jojo and Pw.2, the Sub Inspector had summoned Pw.2 and Jojo. Pw.2 and Jojo informed the Sub Inspector that they were in love. She advised her son not to continue the relationship since the girl was still a minor. For a few days the boy and girl stopped meeting each other. But thereafter Pw.2 started to come again to their residence. Pw.14 further stated that her son had informed her that he wanted to save Pw.2 somehow. When they went to the residence of accused No.1 seeking marriage alliance, she had told Pw.2 to stop writing letters to Jojo . At that time the grandmother of Pw.2 told Pw.14 that Pw.2 had not been writing letters to Jojo. At that time Pw.14 had shown some of the letters written by Pw.2 to her son. Accused No.2 categorically told that there was no possibility of an alliance. Accused No.1 also said that there was no question of giving his daughter in marriage to Jojo. Therefore they came back. According to this witness the accused had threatened that if Jojo went to their residence he would be killed Pw.14 in cross examination stated that Pw.2 had told her that her uncle (A2) would never allow her to live with Jojo. It was because of this that they had gone to the residence of the accused seeking marriage alliance. 22. Pw15, the younger brother of deceased Jojo in his deposition Crl.A. No. 1898 of 2005 14 stated that Pw.2 used to send letters to his brother in the residential address. He had accompanied Pw.13 and others when they went to the residence of the accused seeking marriage alliance for Jojo with Pw.2. Pw.16 stated that he had accompanied the others to the house of the accused. 23. Pw.17 was the other witness who supported the prosecution case. He was the neighbour of the accused. This witness stated that after 10 p.m. on the date of the incident Jojo had come to his residence with two bags in his hand. He informed Pw.17 that he was going to take away Smitha (Pw.2) with him. Pw.17 had come out of his residence and stood waiting for Jojo on the pathway as requested by him. Jojo came with Pw.2 after 11 p.m.. They bid farewell to Pw.17 and his wife and went away. 24. They went inside the house and slept. After about one hour, Thressiamma, the mother of the two accused woke them up. When P.W.17 went out, Thressiamma informed him that she was going to the hospital with Accused No.2 and requested P.W.17 to remain at her house. P.W.17 further stated that their "child" (apparently referring to Smitha) had eloped with one person and that they had killed him. When P.W.17 and his wife went to the residence of Thressiamma, as requested by her, P.W.2 Smitha was seen crying. Mud was smeared all over her body. She told P.W.17 that her daddy and uncle (Accused Nos.1 and 2) had killed Jojo. Immediately,