IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN THURSDAY, THE 23RD JULY 2009 / 1ST SRAVANA 1931 CRL.A.No. 1149 of 2005 ---------------------- SC.72/1998 of ADDL. SESSIONS COURT-II, MAVELIKKARA .................... APPELLANT(S): -------------- REMANAN, KOYKKARAN PARAMBIL VEEDU, MELPADOM MURI, VEEYAPURAM VILLAGE, MAVELLIKKARA. BY ADV. SRI.SAJITH KUMAR V. RESPONDENT(S): --------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 23/07/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: A.K.Basheer & P.S.Gopinathan, JJ. ================================== Crl.A.No.1149 of 2005 - A ================================== Dated this the 23rd day of July, 2009. JUDGMENT Basheer, J. 1. Appellant was tried along with another for the offence punishable under Section 302 read with Section 34 I.P.C. The crux of the charge levelled against the two accused was that they had, in furtherance of their common intention, committed murder of one Daniel @ Sulthan Kutty on March 28, 1997 at Melpadam within the limits of Veeyapuram Police Station in Alappuzha District. 2. The court below, after evaluating the oral and documentary evidence available on record, found the appellant (Accused No.1) guilty of the charge under Section 302 I.P.C. and accordingly convicted and sentenced him to undergo imprisonment for life. The other accused was acquitted. 3. The prosecution case may be briefly noticed: Deceased Daniel was a sympathizer of Communist Party of India (Marxist), whereas the two accused were workers of Bharatiya Janata Party. There were some sporadic clashes between the workers/sympathizers of the two parties in that area during the relevant period. The prosecution alleged that the two accused, because of the Crl.A.1149/05. 2 political enmity and in furtherance of their common intention to commit murder of Daniel, came to the scene of occurrence on a bicycle through Veeyapuram - Vallakalil road at about 6.30 p.m. on March 28, 1997. When they reached near the 45th culvert situated on the above road, with Accused No.2 riding the bicycle and Accused No.1 sitting on its carrier, they saw the deceased walking ahead of them. As they reached near the deceased, Accused No.1 got out of the bicycle. He moved towards the deceased and hit him with his left hand, which was warded off. Immediately, Accused No.1 took out M.O.4 dagger from his waist and stabbed on the left side of the chest of the deceased. He thereupon pulled out the dagger from the body of the deceased and ran towards east. Accused No.2 followed him on his bicycle. The injured Daniel moved a little forward and fell down near the heap of sand in the nearby residence of one Kunjan. P.W.1, the son of the injured, came to the scene on getting information from P.W.2. The injured was taken to the Government Hospital, Mavelikara in an autorickshaw, and on reaching the hospital, the Doctor declared him dead. P.W.1 gave Ext.P1 First Information Statement at about 9.30 p.m. Ext.P7 First Information Report was registered thereafter by P.W.13, the Sub Inspector. Investigation was conducted by P.Ws.14 and 15 and charge-sheet was laid against the two accused. 4. The prosecution examined P.Ws.1 to 15 and marked Exts.P1 to P16 and M.Os.1 to 5. On its side Exts.D1 and D1(a) (series), which were portions of Section 161 statements of the witnesses were marked on the side of the defence. Crl.A.1149/05. 3 5. As mentioned earlier, the court below found the appellant guilty under Section 302 I.P.C. and convicted and sentenced him while acquitting Accused No.2. It is contended by the learned counsel for the appellant that, the court below was not at all justified in holding the appellant guilty on the basis of the totally unreliable and unworthy evidence adduced by the prosecution. He points out that the evidence of P.Ws.1, 5 and 7 cannot be accepted at all since their testimonies are totally artificial and contradictory to each other. 6. As has been noticed already, P.W.1, the son of the deceased, came to the scene of occurrence after P.W.3 informed him that his father had been stabbed and was lying near the 45th culvert. According to P.W.1, he had gone to the S.B.T. Junction at about 6.15 p.m. At that time, P.W.2 came running to him shouting that “Daniel had been stabbed”. P.W.1 ran towards the scene of occurrence on the western side. He found his father lying in a pool of blood on the southern side of the road towards the east of the culvert over a heap of sand. He rushed back to the junction and fetched an autorickshaw. When he went back to the scene of occurrence, he saw P.Ws.5 and 7 at the scene apart from others. He requested P.Ws.5 and 7 to help him to put his injured father in the autorickshaw. They took the victim to the Government Hospital, Mavelikara. According to P.W.1, his father told him on the way to the hospital that the appellant had stabbed him. On reaching the hospital, the Doctor informed that his father had passed away. This witness identified the dress, namely kaily and shirt worn by his father at the time of the incident as M.Os.1 and 2. Similarly, M.O.3 series chappals were also identified by him. P.W.1 further stated that he went to Veeyapuram Police Station from the Crl.A.1149/05. 4 hospital and gave Ext.P1 First Information Statement. He identified his signature in the said statement. In cross-examination, this witness stated that one could reach the scene of occurrence from S.B.T. Junction within four minutes by walking. He further stated that police came to know about the incident only when he went and reported the matter. He also spoke about the series of clashes between the workers of B.J.P and Marxist party in that area. 7. P.W.2 deposed before court that she was going back to her residence along with one Soumya (C.W.4) at about 6.30 p.m. from Melpadam market after purchasing some fish. When both of them reached near the culvert, she saw Accused No.1 (appellant) jumping out of the carrier of the bicycle being ridden by Accused No.2 and stabbing deceased Daniel with a dagger on the left side of his chest. The appellant/accused pulled out the dagger and ran towards east with the dagger in his hand. At that time, she and Soumya were on the southern side of the culvert. When the incident took place, Accused No.2 was sitting on his bicycle. He left the scene after the incident. She further stated that the deceased moved towards the east and fell on the heap of sand in the residential compound of Kunjan very near to the scene of occurrence. She identified M.O.4 dagger, which, according to her, was used by the appellant to stab the deceased. She also identified the two accused in the box before the court. She also identified M.Os.1 and 2 dress worn by the deceased at the time of the incident. In her cross-examination, she stated that her house was about half a kilometre away from the scene of occurrence and very near to the residence of deceased Daniel. This witness further stated that Sunny (P.W.3) was also present at the scene of occurrence. She was Crl.A.1149/05. 5 shown M.O.4 dagger at the office of the Sub Inspector of Police. She asserted that it was not dark when the incident took place. 8. P.W.3 deposed that he saw the incident while he was going home in a bicycle. When he reached near the culvert in question, he saw the two accused going ahead of him towards Vallakalil junction. They were proceeding towards east. Accused No.2 was riding the bicycle and Accused No.1 was sitting on its carrier. When the two accused reached near the deceased, who was walking along the road, the bicycle was stopped in front of him in such a way so as to block his way. Appellant got out of the bicycle and hit deceased Daniel with his left hand asking whether he would not allow them to live. The hit was warded off by Daniel. Immediately, the appellant pulled out M.O.4 dagger and stabbed on the left side of the chest of Daniel. Blood started to ooze out from the wound. The appellant pulled out the dagger and ran towards the east. Accused No.2, who was sitting on the bicycle, followed the appellant. Daniel walked for a short distance and fell in the court-yard of the nearby house, on a heap of sand. According to P.W.3, on seeing this, he ran towards the junction and informed P.W.1, who was there. This witness also identified the two accused as well as M.Os.1 and 2 dress worn by the deceased apart from M.O.3 series chappals. M.O.4 dagger was also identified by him. 9. P.W.4, in his deposition, spoke about some altercation between him and one Santhosh in which his father had intervened. It appears that the father of P.W.4 was a worker of Marxist party whereas Santhosh was a member of RSS. Crl.A.1149/05. 6 10.P.W.5, the father of P.W.4, deposed that he had gone to the Vallakalil junction market at about 5.30 p.m. on the day of the incident. Thereafter, he came to the ground where some people were playing football. While standing there, P.W.1 came there running and told him that his father had been stabbed by Remanan, the appellant. P.W.5 went to the scene of occurrence along with P.W.1. P.W.1 took Daniel in an autorickshaw to the hospital. On the way to the hospital, Daniel told his son (P.W.1) that the appellant had stabbed him. He did not utter any other word. On reaching the hospital, the Doctor told them that he was no more. This witness stated that he and Daniel were communists-(marxist) and the accused were BJP workers. This witness spoke about some altercations between the workers of the two parties that took place a few days ago. We will deal with the evidence of this witness a little later. 11.P.W.7, in his evidence, stated that he saw the incident while he was going to the residence of his friend from the junction (market). He saw the two accused coming from the west on the bicycle. Daniel was going towards west 30 feet ahead of P.W.7. When the two accused reached near the deceased, the bicycle was stopped in front of Daniel. Appellant (Accused No.1) got out of the bicycle and asked him whether he would not let them live. Appellant hit the deceased with his left hand, which was warded off by Daniel. Appellant stabbed Daniel on the left side of his chest with the dagger. Blood started to ooze out. Daniel got up and walked towards the heap of sand in front of the house of one Kunjan. According to P.W.7, he went towards Daniel and put his head on his lap. Appellant ran away from the scene with the dagger in his hand and Crl.A.1149/05. 7 Accused No.2 followed him on his bicycle. P.W.1 came to the scene with an autorickshaw. He, P.W.1 and P.W.5 put the injured in the autorickshaw and took him to the Government Hospital at Mavelikara. After a short while, Daniel told P.W.1 that appellant had stabbed. This witness identified the dagger (M.O.4). Similarly, he identified M.Os.1 and 2 dress worn by the deceased. We will revert to the evidence of this witness also a little later. 12.P.W.8 was an attestor to Ext.P2 inquest report. P.W.9 conducted autopsy on the body of the deceased and issued Ext.P3 post-mortem certificate. Two injuries, which are extracted hereunder were noted by the Doctor in his certificate. “1.Incised penetrating wound, 6x2 cm. oblique, on left side of chest, its upper back end being 2 cm. below armpit and lower front end being 16 cm. outer to midline and 18 cm. below top of shoulder. Both ends of the wound were sharply cut. The left chest cavity was penetrated by cutting 4th left intercostal space and adjoining ribs, transfixed upper lobe of left lung, pierced pericardium and terminated by entering left atrium by cutting its auricle. The wound was directed forwards and towards the right for a total minimum depth of 7.5 cm. Left chest cavity contained 650 ml. of fluid blood and left lung showed collapse. 2.Incised wound, 3x0.5x0.5 cm. horizontal, on the inner and back aspect of left arm, 2 cm. below armpit.” Crl.A.1149/05. 8 13.The Doctor stated that death was due to penetrating injury sustained to the chest. He further stated that Injury No.2 could have been caused while the weapon was being pulled out from the chest after inflicting Injury No.1. Ext.P4 report of the chemical examiner was also marked through this witness. 14.P.W.10 stated that he was a witness to Ext.P5 seizure mahazar under which M.O.4 dagger was seized by the investigating officer (P.W.15). The appellant produced the same at the time of his surrender before the police. P.W.11 was posted for guard duty of the dead body. P.W.12 village officer prepared Ext.P15 site plan. P.W.13 Sub Inspector recorded Ext.P1 First Information Statement and registered Ext.P7 F.I.R. P.W.14 conducted a part of the investigation at the initial stages, which was later taken over by P.W.15. In his evidence, P.W.15 spoke about the various steps taken by him in the course of investigation. Exts.P9, 10, 11, 16 etc. were also marked through this witness. He had also prepared the scene mahazar (Ext.P8) and conducted inquest on the body of the victim. 15.A scrutiny of the oral evidence adduced by the prosecution will reveal that only P.Ws.2 and 3 had spoke about the incident. It is true that P.W.7 claimed that he had also witnessed the occurrence. But it may be noticed that the evidence of P.Ws.1 and 5 would belie the evidence of P.W.7. Since, according to P.W.5, he was standing at the football ground near the junction along with P.W.7 when P.W.1 went there and informed them about the stabbing incident, according to P.W.7, he went to the scene of occurrence along with P.W.5 and found Daniel lying there with the stab Crl.A.1149/05. 9 wound on him. 16.P.W.1 had no case that either P.W.5 or P.W.7 was at the scene of occurrence when he reached there on getting information from P.W.3. It may be remembered that P.W.1 had reached the scene of occurrence and found his father lying in a pool of blood. He immediately rushed back to the junction and fetched an autorickshaw and went back to the scene of occurrence. According to P.W.1, he saw P.Ws.5 and 7 at the scene when he went back there with the autorickshaw. Therefore, obviously, P.W.7 could not have witnessed the incident as claimed by him. If we believe P.W.7, the evidence of P.Ws.1 and 5 would become suspect, especially that of P.W.5. Having carefully perused the deposition of P.W.7, we are satisfied that the evidence of this witness cannot be relied on. But the court below had placed reliance on the testimony of P.W.7. However, for the foregoing reasons stated by us, the version given by P.W.7 that he had seen the incident cannot be believed under any circumstances. For the very same reason, the evidence of P.W.5 also cannot be entirely relied on. 17.It may be noticed that P.Ws.5 and 7 had a common case that they heard deceased Daniel telling P.W.1 on the way to the hospital that the appellant had stabbed him. In this context, it may also be noticed that P.W.7 had a further case that he had rushed towards Daniel immediately after he sustained the injury and kept his head on his lap. P.W.7 did not have a case that deceased Daniel uttered some words to him; but according to him, the only words uttered by the deceased was while he was in the autorickshaw and that too to P.W.1. Significantly, the prosecution did not have a case that the dress worn by P.W.7 was seized Crl.A.1149/05. 10 in the course of the investigation. If in fact P.W.7 had put the head of the deceased in his lap, definitely there would have been some blood in the dress of P.W.7 because, admittedly, deceased Daniel was bleeding profusely and there was a pool of blood at the place where he was laid down. There is also a shadow of doubt in the version given by P.W.7 that he was at the scene of occurrence and he really did see the incident. As mentioned by us earlier, if we read the evidence of P.W.5 along with that of P.W.7, there can be no doubt that P.W.7 could not have witnessed the incident, as claimed by him. P.W.7 stated that he was standing at the junction till 6.15 p.m. and he went towards the residence of his friend at that time and it was then he saw the incident. But this version is totally unbelievable for the reasons stated by us already. 18.As far as the alleged dying declaration made by the deceased while he was being taken to the hospital in the autorickshaw is concerned, we have already noticed the improbability of the deceased making such a statement. As is revealed from the post-mortem certificate, the fatal injuries sustained by the victim was so deep and serious. It might not have been possible for him to speak at all. However, going by the evidence of P.Ws.1, 5 and 7, they reached the hospital with the injured between 7.30 and 7.45 p.m. The specific case of the prosecution is that the incident took place at about 6.30 p.m. The distance between the scene of occurrence and the hospital is about four kms. Even assuming that P.W.1 had taken about 15 to 30 minutes to get an autorickshaw from the junction, it cannot be believed that the deceased would have managed to utter any words while he was being taken to the hospital. The evidence of P.Ws.5 and 7 being so artificial, their version as regards the dying Crl.A.1149/05. 11 declaration cannot be accepted at all. 19.Coming to the evidence of P.W.1, it is beyond dispute that he had gone to the police station and given Ext.P1 FIS. Of course, this witness had stated that the police had no information about the incident till he went to the police station. Ext.P7 FIR is seen to have been registered at 9.30 p.m. Anyhow, the fact remains that the information about the incident was given by P.W.1. It is true that the defence had a specific case that Ext.P7 was a fabricated document at the behest of party workers of communist Party (Marxist). According to the learned counsel, the appellant was implicated in the case at the instance of the rival political party. In this context, he points out that in the copy of the FIR furnished to the appellant, the vital portion as regards the dying declaration was conspicuously absent. This is pointed out as a crucial aspect in support of the plea of the appellant that the latter part of Ext.P1 implicating the appellant was incorporated at a later stage. Though there is some force in the above contention, we are not persuaded to accept the above plea in toto for yet another reason. 20. As has been noticed already, Pw.2 is the prime occurrence witness in the case. She was aged about 12 years at the time of occurrence of the incident. According to Pw.2, she saw the incident while she was returning to her home along with Sowmya (Cw.4). She narrated the incident quite satisfactorily, in the sense that there was not even a hint of unnecessary exaggeration or embellishments. She stated that the two accused had come on a bicycle and stopped near the deceased who was walking along the road. The appellant got out of the bicycle and went Crl.A.1149/05. 12 towards the deceased and stabbed him with M.O.4 dagger. It is true that the oral testimony of Pw.3 would show that the appellant had asked the deceased whether he would not let others live, before stabbing him. Pw.2 did not have such a case. Further, Pw.3 deposed that accused No.2 had stopped the bicycle in front of the deceased in order to block his way. This aspect was also not spoken to by Pw.2 However the young girl had spoken about the incident without even a hint of exaggeration. In our view, there is absolutely no reason to disbelieve Pw.2. As we have mentioned earlier, Pw.3 had also narrated the incident without much of an embellishment. It was Pw.3 who had run towards the junction and informed Pw.1 about the incident. In the course of cross examination of Pw.3 the defence could not bring out any material contradiction in order to discredit his testimony. In short, if we peruse the evidence of Pws.2 and 3, it can be safely concluded that the prosecution has succeeded in proving its case against the appellant, even if the prosecution cannot get the benefit of the evidence of Pws.1, 5 and 7. 21. As we have mentioned already, the so called dying declaration allegedly made by the deceased to Pw.1 in the autorickshaw in the presence of Pws.5 and 7 cannot be accepted. Similarly the presence of Pw.7 at the scene of occurrence is also totally suspect. As indicated above, even if we do not accept the version given by Pw.5 that he had come to the scene of occurrence along with Pws.1 and 7, the prosecution case remains in tact on the basis of the evidence of Pws.2 and 3. 22. In this context we may also notice that the appellant had admittedly surrendered before the Police on March 31, 1997. Though the Police had Crl.A.1149/05. 13 a definite case that the appellant had appeared before Pw.15 with M.O.4 blood stained dagger, the appellant has stoutly refuted the said allegation. According to the appellant he had not produced any weapon before the Police at the time of his surrender. But in the absence of any vitiating circumstance before us, we do not find any reason to disbelieve either Pw.15 or Pw.10 who was an attestor to Ext.P5 mahazar, under which M.O.4 dagger was seized. 23. As regards the discrepancy in the copy of the FIR furnished to the appellant under Section 208 of the Code of Criminal Procedure, it has to be noticed that the contention raised by the appellant/accused is entirely valid. Though the investigating officer had tried to explain it away by saying that it was not intentional, the investigating agency cannot be absolved of the said lapse. But in the peculiar facts and circumstances of this case, especially since we are not placing any reliance on the so called dying declaration, we are of the view that the appellant cannot succeed on this point. 24. It is further pointed out by the learned counsel that the column prescribed for recording the date and time of receipt of information in the FIR was found to be unfilled. It is true that column 3 (a) remained unfilled, but in column 3(c) there is an entry indicating the time of registration of the FIR as 9.30 p.m. 25. Lastly it is contended by learned counsel for the appellant that the appellant is entitled to leniency inasmuch as no offence under Section 302 IPC would be attracted in any view of the matter. It is contended by Crl.A.1149/05. 14 the learned counsel that only an offence under Section 304 Part II would be attracted since admittedly the victim was inflicted with only a single stab. But having regard to the nature of the injury as revealed from Ext.P43 post mortem certificate, we are not persuaded to accept the above plea to alter the order of conviction and sentence. 26. In this context learned counsel has invited our attention to a decision of the Apex Court in Tholan v. State of Tamil Nadu (1984 (2) SCC 133). We have carefully perused the above judgment. In the facts and circumstances of this case we are afraid that the above decision will have any relevance or