IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MRS.JUSTICE K.HEMA FRIDAY, THE 4TH DAY OF FEBRUARY 2011/15TH MAGHA 1932 CRL.A.No. 97 of 2002 (C) ------------------------ AGAINST THE JUDGMENT IN SC.226/1998 of ADDL. SESSIONS COURT, NORTH PARAVUR. APPELLANT/ACCUSED:: --------------------------------- NARAYANAN @ ANAKKARAN NARAYANAN, S/O. CHATHAN, MEPPILIYIL HOUSE, NELLIMOLAM KARA RAYAMANGALM VILLAGE. BY ADVS.SRI.K.S.ARUN KUMAR SMT.M.N.MAYA SRI.C.T.SOMAN RESPONDENT/COMPLAINANT:: ------------------------------------------- STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.K.S.SIVAKUMAR. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 04-02-2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.HEMA, J. ----------------------------------------------- Criminal Appeal No.97 of 2002 ----------------------------------------------- Dated 4th February, 2011. J U D G M E N T The appellant was charge sheeted for offences under Sections 302 and 324 of the Indian Penal Code ( 'the IPC' for short). After trial, learned Additional Sessions Judge convicted the accused under Sections 324 and 304 Part II of IPC. He was sentenced to undergo rigorous imprisonment for two years under Section 324 IPC and to undergo rigorous imprisonment for 8 years under Section 304 Part II IPC. Rs.30,000/- was directed to be paid to the legal heirs of the deceased as compensation, within six months from the date of order, failing which he was sentenced to undergo rigorous imprisonment for two years. 2. According to prosecution, on 16.1.1995 at about 10 p.m., due to enmity developed on account of a quarrel, appellant stabbed deceased Parameswaran alias Mony with a knife, MO1 and inflicted injuries on him, which caused his death. He also voluntarily caused hurt to PW2 by stabbing him with the knife. The incident happened on a public road near Malarvadi Textiles in Kuruppampady town. Both the injured were hospitalised. The deceased died from the hospital on 1.2.1995 at about 7.10 a.m. Crl.Appeal No.97 of 2002 2 3. The first information statement was thereafter given by PW1 to PW10, the Sub Inspector on the same day of death, viz., 1.2.1995. A case was registered under Section 302 and 324 IPC. After investigation, charge was laid against appellant. To prove the prosecution case, prosecution examined PW1 to PW14, marked Exts.P1 to P21 and MO1 to MO7. The accused pleaded innocence and stated that he was taken into custody from his house while he was laid up, due to a fall from the elephant. He is a mahout residing 4 Km. away from Kuruppumpady. On the side of the accused, DW1 was examined and Ext.D1 was marked. 4. The trial court raised a point whether deceased died of the injuries suffered by him on 16.1.1995. After analyzing the medical evidence etc., learned Additional Sessions Judge entered a finding that deceased suffered injuries in the night of 16.1.1995 and succumbed to the injuries on 1.2.1995. The trial court observed that there is no serious challenge from the side of the accused regarding cause of death. 5. Heard both sides. Perused the records. The point for consideration is whether accused intentionally caused death of deceased as alleged by prosecution. In any murder case, the first Crl.Appeal No.97 of 2002 3 and foremost question to be considered is whether the accused caused the death. On a reading of Section 300 of Indian Penal Code which defines murder shows that culpable homicide is murder, if the act by which death is caused is done with the intention of causing death etc. Therefore, in a case involving charge of murder, the court is bound to look into the question whether death is caused due to the act committed by the accused. To arrive at a conclusion on this point, the court has to identify the particular overt act committed by the accused which contributed to the death or caused death. 6. In this case, the allegation is that the accused inflicted two injuries on the deceased; one in front of the left elbow and the other one involving the right eye and right side of the nose. The said injuries are noted by the doctor, PW13 in post mortem certificate, Ext.P14. Those are as follows : “1. Scar of sutured wound 5 cm. long oblique on the front of left elbow (covered with black scab). 2. Sutured wound, 6 cms. long, oblique, involving the right side of nose, inner canthus of right eye and the right upper eyelid (upto the eyebrow). The wound track was traced into the frontal sinus which contained pus. Brain was covered with purulent exudates. Brain also showed bilateral sub-arachnoid bleeding, bleeding into the lateral contricles, and an intra Crl.Appeal No.97 of 2002 4 cerebral clot (5 x 3 cm) in the left frontal lob (not fresh).Scalp tissues just above the left ear were contused (5 x 3 cms).” 7. It is clear from the evidence of PW13 and Ext.P14 that apart from the two injuries on the arm, eye and nose, the deceased had suffered an injury on the scalp tissues just above the left ear. The doctor has given evidence that scalp tissues just above the left ear were contused. It is in evidence that the deceased had fallen down, on sustaining injuries. PW13 has also stated that the contusion found on the left side of the scalp and the bleeding into the brain suggest that the victim had a fall, striking his head on the ground. 8. It was brought out from the evidence of PW13 that deceased had “meningitis” and it is a pus formation in the membrane covering the brain, which was due to the injury. He has also stated that deceased had intra cerebral hemorrhage which could be due to the application of blunt force like fall. He has clearly stated in cross examination that “Meningitis” is one of the causes of death in this case and that there were other causes also like sub arachnoid bleeding, intra cranial bleeding etc. All the three might have contributed to the death. 9. From the evidence given by PW13 and in the light Crl.Appeal No.97 of 2002 5 of the details of the injury noted in Ext.P14, it would appear that the deceased sustained a contusion on the left side of the ear and he had also sustained injuries to the brain, which could contribute to the death. Those injuries could be the cause of death and the doctor has opined accordingly. 10. The injuries on the arm and the one involving right eye and the right side of the nose, which were noted by PW13 at the time of examination were found healed. PW13 has no case that the deceased died due to those two injuries. On the other hand, it was clarified by him that the deceased died due to the head injury. It cannot be said that a healed injury can cause death. The injuries on the arm and on the nose were found to have been healed at the time of post mortem examination. 11. It is also in evidence that the same injuries were noted by other doctors when those injuries were fresh. PW14 is the Civil Surgeon at General Hospital. He examined the deceased on the same night of the incident, that is, on 17.1.1995 at 4.30 a.m. He was brought to the said hospital from Sanjoe Hospital, Perumbavoor. He noted both the wounds and issued Ext.P15 certificate. At the time of his examination, the wound on the left elbow was found stitched. But the incise wounds involving the Crl.Appeal No.97 of 2002 6 right upper eye lid extended to the entire area of nose was not stitched. 12. PW8 is a doctor who examined the deceased on 16.1.1995 in the night prior to the examination by PW14. He gave evidence that he had examined the body of the patient thoroughly and the injuries noted on his body which are recorded in Ext.P4 wound certificate were not profusely bleeding. None of the medical witnesses has a case that any surgery was conducted on the deceased or that the injury found on the face of the deceased was even sutured. The said injury was found healed also at the time of post mortem examination. 13. In such circumstances, from the medical evidence adduced in this case, I find that deceased died due to the head injury sustained by him which affected the brain. The cause of his death was “meningitis”, “sub arachnoid bleeding” and also “intra cranial bleeding”, which according to PW13 could be caused by a fall. He had also noted a corresponding external injury on the left side of the ear and the scalp tissue was found contused. So, the deceased died due to the head injury, which is neither injury on the elbow nor on the face sustained by the deceased. 14. Learned Additional Sessions Judge has not put in Crl.Appeal No.97 of 2002 7 any effort to find out what exactly was the cause of death of the deceased. PW13 has not stated that injury sustained by the deceased on the face or on the elbow were the cause of his death. In any murder case, the court is bound to look into as to what was the cause of death of the deceased. While doing so, I find that the deceased did not die due to the injuries on the face or on the elbow. 15. Now the question is whether the appellant had inflicted injuries on the face and the elbow of the deceased, by using MO1, the knife. The prosecution examined PW1 to PW4 to prove the incident. PW4 did not say anything regarding the incident involving causing of injury. He specifically stated that he did not see the accused inflicting injury on PW2 or the deceased. But, PW1 to PW4 stated about the circumstances under which the deceased was assaulted by accused. 16. PW1 to PW4 gave evidence that on the crucial night, PW1, PW2 and the deceased had gone to the tea shop of PW4 and they had food from the shop. PW4 stated that he was running a tea shop in a cart and that PW1 and PW2 had come to the tea shop along with the deceased and had food from there. All of them stated that accused picked up a quarrel, by Crl.Appeal No.97 of 2002 8 questioning on the priority of serving food. According to prosecution, accused had inflicted injuries on the deceased out of this enmity which was developed in the quarrel. 17. PW1 to PW3 went to the tea shop and after the quarrel with the deceased, PW1 went to the deceased and informed that his brother, who is examined as PW3 and the accused had a quarrel near the place of occurrence. The deceased, who is the elder brother of PW3 came to the spot and enquired about the matter to the accused while he stabbed him. When PW2 rushed to the scene, he was also attacked with the knife. 18. PW1 to PW3 are close associates. PW3 is the elder brother of the deceased. PW1 to PW3 had gone to an arrack shop and thereafter, went to the tea shop of PW4 to have food. PW1 to PW3 are interested in the prosecution. Admittedly, there was a temple festival on the date of occurrence and in the night, there were lot of persons in the locality, in and around the place of occurrence. PW4 had stated that he was too busy on that day because of the business he had. He had closed the shop on the crucial night only by 12 O' clock. 19. But, learned counsel for appellant pointed out that Crl.Appeal No.97 of 2002 9 no independent witness was examined in this case to prove the occurrence. Even though PW4 spoke about the quarrel, according to him, the quarrel took place about 30-45 minutes prior to the incident in this case. PW4 has also not seen the actual incident and he stated that the incident happened slightly far away from the tea shop. The said place was not even at an audible distance. He cannot also see the incident at such distance. 20. There is no explanation why no independent witness was examined to prove the actual incident. This is not a case where there could be absence of any witness to the occurrence. The incident occurred on a public road on a festival day. Yet, a question arises whether the court can discard entire evidence for the sole reason that the prosecution failed to examine independent witnesses to prove the actual incident. The fact that the deceased and PW2 sustained some injuries and they were taken to different hospitals cannot be disputed in the light of the evidence given in this case, both by the occurrence witnesses as well as medical witnesses. 21. However, PW1 to PW3 are interested witnesses and their evidence requires a deeper scrutiny, especially in the absence of independent witnesses regarding the actual Crl.Appeal No.97 of 2002 10 occurrence. Before testing the evidence independently, I shall examine the broad probabilities regarding the involvement of the appellant in the incident. According to appellant, he is residing 4 Km. away from the place of occurrence. He is known in the locality as “Anakkaran Narayanan”. 22. Though two persons were injured on a public road and a person is said to have used a knife to inflict injuries on them, the name of the accused comes to the picture only in the F.I.R. registered after 16th day of the incident, on 1.2.1995. Till 1.2.1995, nobody made any allegation against the appellant regarding the incident, as per the prosecution case. It is relevant to note that even at the time of lodging of the F.I. statement, CW1 (he is not examined) stated in Ext.P6 that one Anakkaran Narayanan is suspected to be involved in this occurrence. 23. The name of the appellant, his description or even involvement of any particular person, who can be identified by sight is not revealed from the medical evidence. The deceased was seen by many doctors and he was examined at different hospitals. The injured, PW2, was discharged on the next day of the incident from the hospital. As per his own evidence, he did not tell the doctor as to who had inflicted injury. The allegations Crl.Appeal No.97 of 2002 11 made to the doctors are disclosed from the evidence given by doctors, PW8 and PW14. Except an allegation of assault, it is not mentioned by the injured to the doctor whether any particular person had caused the injuries. 24. If a person had inflicted injuries, even if he is a person not identifiable by sight, that too, if he had used a knife, it is only probable that such fact will be disclosed to the doctor. As per the evidence, it was PW3, who is none other than the elder brother of the deceased, who had made the allegation regarding the cause of injury to the doctors. Admittedly, he was a witness to the occurrence. But, there is no explanation why the appellant was not implicated at least by his description, while making allegation regarding the cause of injury. 25. PW14, the doctor stated that the alleged cause of injury stated to him was that the injuries were caused in a commotion in Rayamangalam Temple by about 8 p.m. The place of occurrence itself is referred to as a Temple and the cause of injury was given by the elder brother of the patient. If the evidence given by occurrence witnesses is looked into, it is clear that there is no possibility for any other person to make such an allegation. So, from the evidence of PW14 and Ext.P16, it may Crl.Appeal No.97 of 2002 12 appear that the allegation made regarding the incident at the earliest point was that it happened in a Temple in a commotion which took place there. 26. The place was referred to as “Rayamangalam”. But, as per the present allegation, the incident happened in “Kuruppampady”. In the evidence of PW1, he stated that he is residing in “Rayamangalam”, which is 1.5 Kms. away from “Kuruppampady”. It is clear from the evidence that PW1 to PW3 are acquainted with the locality and they can distinguish between “Kuruppampady” and “Rayamangalam”. But, as per the prosecution allegations, the incident happened in the locality in which PW1 resides, viz., “Rayamangalam” Temple. 27. Learned Public Prosecutor submitted that a distinction cannot be made between the two places since the documents in this case will clearly show that Kuruppampady lies within Rayamangalam Village and when a statement is made to the doctor, it is possible that the main place will be referred to as the place of occurrence. Therefore, the discrepancy may not be given too much of importance to disbelieve the prosecution case, it is submitted. It was also pointed out that blood was seen at the scene of occurrence and it was noted in the scene mahazar also Crl.Appeal No.97 of 2002 13 by the Investigating Officer. The scene of occurrence is a public road, as stated by PW11, the Circle Inspector, who prepared the scene mahazar. 28. It is true that a discrepancy can occur, as pointed out by learned Public Prosecutor. But, in the absence of any clarification from the relevant witnesses, I cannot accept this argument. The prosecution ought to have satisfied the court that the incident did not happen at Rayamangalam, but it was in Kuruppampady, which is lying 1.5 Km. away from Rayamangalam. This is all the more important, since the first allegation made to the doctor was that the incident happened in Rayamangalam. 29. The doctor, PW8, who examined the injured from the hospital at Kolencherry, who prepared the wound certificates, Exts.P3 and P4 also, the place of occurrence is stated to be Rayamangalam. But, the prosecution has not explained the discrepancy through the evidence of the occurrence witnesses. It is also pertinent to note in this context that several questions were put regarding the location, even with respect to the distance from place to place. Therefore, this fact could have been easily got explained through the witnesses. But, that has not been Crl.Appeal No.97 of 2002 14 done. 30. However, I do not make the above discrepancy alone a reason to acquit the accused in a case of this nature. A further probe is required into the evidence adduced in this case. While doing so, the most striking aspect is that nobody made any complaint to any person regarding the incident till the 16th day of the incident. If prosecution case is accepted, the report was made for the first time about the incident, on 1.2.1995 after 16 days of the incident. 31. If that be the case, may be, the persons involved did not attach any significance to the incident and something, as alleged would not have happened or this may be due to the fact that there was no particular assailant, who caused the injury but as stated to the doctor in Ext.P15, the incident happened in a commotion in a Temple compound and therefore, no allegation could be made against any particular person. 32. But, in this context, another fact gains significance. It is relevant to note that the injured and the deceased were hospitalised in different hospitals. PW2 was examined by PW8 in a hospital at Kolencherry. He made an allegation of assault to the doctor. The doctor said that he had informed the police. The Crl.Appeal No.97 of 2002 15 deceased was also examined at the hospital and he was referred to the Government hospital only after a few hours, on request, since the relatives could not afford the hospital expenses. 33. Now, coming to the evidence of PW14, it can be seen that he had also examined the deceased within a few hours of the incident, at 4 a.m. on 17.1.1995. He specifically stated that intimation was given to the Central Police Station, Ernakulam. It is also seen from the evidence of PW14 that the deceased was in the hospital for a few days, till his discharge on 20.1.1995. There is no reason to reject the evidence. 34. In such circumstances, I find the possibility of another statement being recorded in respect of the incident prior to the FIR in this case. It is only probable that the doctor would have given an intimation to the police station, especially since the condition of the patient was serious and it is also probable that some statement would be recorded and a crime be registered in respect of the incident. PW14's evidence reveals that he felt that the Central Police Station will intimate the other police station concerned regarding the incident. 35. In this context, the reasons stated for the delay has to be looked into. It was pointed out that as per Ext.P6, the Crl.Appeal No.97 of 2002 16 delay was caused because the first informant felt that police would have taken steps in the matter and that is why nobody made any report till the death. In the light of the evidence adduced in this case, I find every possibility for an earlier report being made to the police, especially since an intimation is stated to be given to the police from the two hospitals before registering the case. 36. During investigation, therefore, Investigating Officer ought to have enquired and investigated into the question whether any earlier statement was recorded by any police officer from the hospital. But, absolutely, no investigation is made into this fact. This is a case where it would have come to the notice of the police officer that there is every possibility that such a statement would have been made. 37. In such circumstances, a serious doubt is cast whether the actual first information statement is actually suppressed in this case. It can reasonably be inferred that a first information statement which could tally with the details of the allegations made to the doctor in Ext.P15 and Ext.P4 must have been in existence. At any rate, there is no explanation from any of the witnesses in this case why no information was given to the Crl.Appeal No.97 of 2002 17 police regarding the incident. 38. Learned Public Prosecutor submitted that the relatives of the deceased would have been in grief as they were running from hospital to hospital and hence, they would not have given any first information statement till 1.2.1995. Of course, such a possibility also cannot be ruled out. But the evidence in this case discloses that even after the death, a person, who is not even an eye witness to the occurrence had lodged a complaint, Ext.P6. Therefore, it is not a case where there was nobody to make a report to the police. In fact, the relatives of the deceased wanted a complaint to be lodged before the police. Even otherwise, if the evidence of the doctors are accepted and intimation was given to the police station, somebody would have come from the police station to the hospital to record the statement. 39. But whether such a statement was recorded has not been investigated into. In this case, the absence of such investigation gains greater significance because the allegations made to the doctor do not tally with the present prosecution case regarding the place of occurrence, the premises where the incident happened and also the involvement of a particular Crl.Appeal No.97 of 2002 18 person in the offence. Now, coming to the further details of the evidence of PW1 to PW3, I have already stated that their evidence is interested. 40. There is also no independent corroboration to the evidence of PW1 to PW3 even though there is possibility for independent witness to see the incident, if the incident happened, as alleged by the prosecution on a public road which is a busy place. The definite case of the prosecution is that injuries were inflicted by the accused with MO1. PW1 to PW3 stated that the deceased was stabbed with MO1 twice and the injuries sustained were on the arm as well as on the