IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN THURSDAY, THE 9TH SEPTEMBER 2010 / 18TH BHADRA 1932 CRL.A.No. 2530 of 2006() ------------------------ SC.223/2005 of ADDL.SESSIONS COURT, THODUPUZHA CP.26/2001 of JUDL. MAGISTRATE OF FIRST CLASS COURT, ADIMALI .................... APPELLANT(S): ACCUSED. ---------------------- GIREESH, S/O.PEETHAMBARAN, VENGAMATTATHIL VEEDU, CHATTUPARA, MACHIPLAVU KARA, MANNAMKANDOM VILLAGE, DEVIKULAM TALUK, IDUKKI DISTRICT. BY ADV. SRI.V.V.NANDAGOPAL NAMBIAR SRI.P.VIJAYA BHANU, SR. ADVOCATE RESPONDENT(S): COMPLAINANT. --------------------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. BY SR. PUBLIC PROSECUTOR SRI.C.M.NAZAR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 09/09/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PIUS C. KURIAKOSE & P.S.GOPINATHAN, JJ. ----------------------------------------------- Crl. Appeal No. 2530 of 2006 ----------------------------------------------- Dated this the 9th day of September, 2010 JUDGMENT GOPINATHAN, J. The Addl.Sessions Judge, Thodupuzha in S.C. No. 223 of 2005 on her file convicted the appellant for offence under Section 302 and 392 IPC and sentenced to imprisonment for life and fine of Rs.20,000/- under Section 302 IPC and rigorous imprisonment for five years and fine of Rs.5000/- under Section 392 IPC. Sentence of fine is followed by usual default clause. The above conviction and sentence are now under challenge. 2. The appellant was prosecuted by PW-35, then Deputy Superintendent of Police, Crime Branch Special Investigation Team -I for offence under section 302 and 394 IPC. The brief facts of the case is that late Roy, the husband of PW-8 was having a grocery business at Machiplavu, near the shop of PW-9. PW-11 is the father of Crl. A. No. 2530/06 -2- late Roy. On 11-2-1994 as usual, after closing the shop, he returned with the sale collection and at about 7.00 p.m. when he reached at the pathway near his house, the appellant who was hiding behind the plantains, in attempt to rob, inflicted grievous hurt on the head of the Roy with M.O.1 pipewrench, a deadly weapon and he was robbed off a gold chain and about Rs.4000/- which he had as sale collection from his shop. Roy, having sustained injury cried aloud. Hearing the cry PW-5 a neighbour and others gathered. Roy was found bleeding with injuries on his head. He was taken to home. When enquired about, he gibbered not to disturb and wanted to take rest. Having felt that the injuries were not minor in nature, PW-8 along with others took him to a doctor whose name is not revealed out. From there, he was taken to the Morning Star Hospital, Adimaly wherein PW-30 was the Casualty Medical Officer. She gave first aid. Another doctor attached to the same hospital Crl. A. No. 2530/06 -3- advised to take X-ray and scan which facility was not available in that hospital. So, Roy was taken to Dharmagiri Hospital at Kothamangalam. But he was referred to a major hospital and brought to the Medical Trust Hospital, Ernakulam at 11.15 p.m. wherein PW-1 was the Casualty Medical Officer. PW-1 sent Ext.P2 intimation to the Town South Police Station from where it was communicated to Adimaly Police Station. Responding to that, CW-107 Head Constable who is now reported laid up attached to Adimaly Police Station rushed to the hospital and recorded Ext.P8 first information statement given by PW-11, the father of the injured at 5 p.m. on 12-2-1994, on the basis of which Crime No. 43/94 was registered by CW-107 for offence under Section 324 and 427 IPC for which Ext.P23 First Information Report was prepared. On 13-2-1994 CW-107 went to the spot of occurrene and prepared Ext.P24 scene mahazar, on the basis of which certain material objects Crl. A. No. 2530/06 -4- were seized. In spite of the resurrective efforts of the doctors, the injured succumbed to the injury at 11.00 a.m. on 14-2-1994. PW-23 on getting death intimation proceeded to the Medical Trust Hospital, Ernakulam and prepared Ext.P5 inquest report wherein PW-3 is an attestor. While preparing Ext.P5, clothes, which were marked as M.Os. 5 to 8, found on the body were seized. Body was sent for postmortem examination. Thereafter, PW-23 filed Exts .P38 and P39 reports dated 15-2-1994 to delete Sections 324 and 427 IPC recorded in Ext.P23 and to add Section 302 IPC and to proceed with the investigation. Thereafter the investigation was taken over by the Circle Inspector of Police, Adimaly. While so, the investigation was handed over to the Crime Branch. On 21-6-1994 the investigation was taken over by the then Deputy Superintendent of Police, Crime Branch for which Ext.P41 report was filed. The case was re-registered as Crime No. 146/CR/94. Crl. A. No. 2530/06 -5- Thereafter, the investigation changed from hands to hands and more than half a dozen investigation officers proceeded with the investigation. 3. On 23-11-1998, PW-35, then Deputy Superintendent of Police, Special Investigation Team took over the investigation. During the course of investigation he questioned several witnesses and on 1-5-1999 he arrested the appellant. On interrogation the appellant stated that the pipewrench used for inflicting injuries had been kept at a Cola Company owned by PW-29. On the basis of the information so given by the appellant and as led by him, PW-35 went to the Cola Company owned by PW-29 at Machiplavu and seized M.O.1 pipewrench on the strength of Ext.P16 recovery of mahazar wherein PW-18 is an attester. On further interrogation, the appellant disclosed that he had sold the gold chain robbed from the deceased to PW-33 Baby. On the basis of the information given and as led by Crl. A. No. 2530/06 -6- the appellant, PW-35 went to PW-33 and seized M.O.2 gold chain from PW-33 on the strength of Ext.P37 recovery mahazar wherein PW-34 is an attester. After completing the investigation he laid charge sheet before the Judicial Magistrate of First Class, Adimaly for offence under Sections 302 and 394 IPC. The learned Magistrate took cognizance as CP.26/01 and on finding that the offence alleged is triable by a Court of Sessions, the case was committed to the Court of Sessions, Thodupuzha. From there it was made over to the Addl. Sessions Judge. 4. The learned Addl. Sessions Judge after hearing the prosecution and the defence and on satisfying that there are materials to send the appellant for trial for the offence alleged, a charge was framed. When read over and explained, the appellant pleaded not guilty. Hence he was sent for trial. On the side of the prosecution out of 114 witnesses cited, 35 were examined as PWs. 1 to 35. Exts.P1 Crl. A. No. 2530/06 -7- to P64 and M.Os. 1 to 10 were marked. After closing evidence for the prosecution the appellant was questioned under section 313 Cr.P.C. He denied the incriminating evidence and stated that he was falsely implicated. On his side, Secretary of the local Panchayat was examined as DW- 1 and Exts. D1 to D4 were marked. The learned Sessions Judge, on appraisal of the evidence, arrived at a finding of guilty against appellant for offence under Section 302 and 392 IPC. Consequently he was convicted and sentenced as above. 5. The two arguments that were advanced before us are that (1) the death was due to an accidental fall and (2) the appellant was falsely implicated. 6. For a correct appraisal of the case we find that it would be appropriate to refer to the evidence of relevant witnesses. PW-1 had deposed that she was working as Casualty Medical Officer at Medical Trust Hospital, Crl. A. No. 2530/06 -8- Ernakulam since 1987 and that on 11-2-1994 at 11.55 p.m, she examined late Roy, who was brought unconscious, decerebrate and laboured breathing. On examination, both pupils were dilated and sluggishly reacting to light. There was contusion right eye 4 X 1 X 0.75 cm. Lacerated would obliquely placed over the frontal region of the scalp in the middle and slightly towards the right, the lower end being 7 cm. above medial end of right eyebrow. There was boggy swelling near the wound extending towards the right temporo parietal region. There was compound fracture of the frontal bone felt through the wound. There were three minute linear abrasions horizontal and parallel to each other on the medial aspect and just below the right knee. There was contusion 4 X 1 cm. horizontally placed over the superior surface of the right scapula. X-ray skull showed depressed fracture of the right fronto temporo parietal bone. C.T.Scan of the head showed right fronto temporo parietal Crl. A. No. 2530/06 -9- subdural haematoma with mid line shift. Depressed fracture was confirmed and the patient expired at 11.00 a.m. on 14- 2-1994. The injured, as stated by bystanders, was having a history of fall close to his house on 11-2-1994 at 7.00 p.m. at Adimaly. Ext.P1 is the wound certificate issued and Ext.P2 is the copy of the intimation sent by her to the Ernakulam Town South Police Station. It was further deposed that the injury mentioned could be caused with a heavy weapon. 7. PW-2 would depose that on 15-2-1994 he who was Professor of Forensic Medicine and Police Surgeon at Medical College Hospital, Kottayam conducted autopsy on the body of Roy and noted the following antemortem injuries. 1. Sutured bone deep lacerated wound 4.2 cm. long obliquely placed on the front of head, the lower right end bend 7 cm. above the inner end of right eyebrow. On dissection, the scalp tissues on the right side of the front, back and sides of head were found extensively infiltrated with blood. The frontal Crl. A. No. 2530/06 -10- bone underneath the lacerated would showed a fracture resulting in the formation of a triangular fragment of skull measuring 9 cm. at the base and 6 and 7 cm. for the limbs. The base of the triangle was at the top of head and the apex on the front. Fissured fractures were extending from the face towards the parietal bone. The temporal and parietal bones above the right ear showed depressed communited fractures over an area 6 X 4 cm. Fissured fractures were found extending into the roof of right orbit. The right eye was black eye. There was an extradural haematoma measuring 10 X 7 X 2 to 3 cm. over the right frontal, parietal and temporal lobes of the brain. The outer aspect of the right frontal and base of the right temporal lobes showed haemorrhagec softening. There were patechial haemorrhages in the brain on either side and in the bran stain. 2. Contusion 11 X 3.5 cm. on the right side of the head and upper part of the neck just behind the ear. The ear was free of injuries. 3. 3 linear abrasions with red scabs 2 cm. 2.3 cm. and 1 cm. in lengths placed horizontally and parallel to one another; 1.5 cm. and 0.7 cm. apart on the inner aspect of right leg 5 cm. below the knee. 4. Contusion 4 X 0.8 cm. nearly horizontal on the right back of chest over the spine of shoulder blade. It was further deposed that cause of death was due to the injuries sustained to skull and brain (injury No.1) and Ext.P4 Crl. A. No. 2530/06 -11- is the postmortem certificate and that injury No.1 could be caused with a weapon like M.O.1. 8. PW-4 had deposed that she is a neighbour of the deceased Roy and that at about 7.45 p.m. on 11-2-1994 at a pathway near her house which is leading to the house of the deceased, she heard some hue and cry. Since such hue and cry was a routine affair from the nearby Toddy Shop, she did not listen. But, on the next day she came to know about the injury sustained to Roy and that two days later she noticed some blood stains on the wall of her house as well as on trees standing aside. She had further deposed that the appellant had spread some rumours that PW-4 was the assailant. 9. PW-5, yet another neighbour had deposed that at 7.45 p.m. on 11-2-1994 hearing some cry from the pathway near her house she rushed to the spot and found that Roy had sustained some injuries. Herself along with Crl. A. No. 2530/06 -12- mother of Roy took Roy to his house. Roy was having bleeding injuries and clothings were stained with blood. When enquired, Roy told he did not sustain anything and wanted to take rest. Roy was then taken to the hospital. 10. PW-8, the wife of the deceased had deposed that the deceased was running a provision store at Machiplavu and that at 7.45 p.m. on 11-2-1994 he heard the cry of the deceased from the pathway. Herself, mother in law and others rushed to the spot and found Roy with bleeding injuries and his clothes were blood stained. He was taken home and then to the hospital, first at Adimaly and then Dharmagiri Hospital, Kothamangalam and then to Medical Trust Hospital, Ernakulam and that while undergoing treatment he succumbed to the injuries. It was also deposed that before taking Roy to Kothamangalam, he vomited and then became unconscious and that on the day of incident, the appellant was found in and around in a suspicious Crl. A. No. 2530/06 -13- manner. She had further deposed that Roy, while returning from shop, used to carry the daily collections and that Roy was wearing a gold chain. But, she did not care to look whether chain and money missing. She had identified the gold chain which was marked as M.O. 2. M.O.3 was identified as a cross that was put on the chain. She further identified the lungi, shirt, brief, towel and footwear which were marked as M.Os. 5 to 8. 11. PW-10 is an attester to Ext.P7 mahazar, which was prepared by PW-21 on 16-2-1994. On the strength of Ext.P7 mahazar PW-21 had seized a hook and holy cross which were found lying near the spot of occurrence. 12. PW-11 is the father of the deceased Roy. He had identified Ext.P8 first information statement given by him. He had further deposed that at the time of occurrence he was not at the house and he was intimated by a neighbour that Roy was injured and taken to Morning Star Crl. A. No. 2530/06 -14- Hospital at Adimaly. When reached there Roy was taken to Dharmagiri Hospital at Kothamangalam. From there, he was taken to the Medical Trust Hospital, Ernakulam where he was admitted and while undergoing treatment Roy succumbed to the injuries. He had further deposed that Roy was wearing M.O.2 chain. He had also identified M.O.3 and M.O.4 as hook and cross of M.O.2. It was further deposed that while Roy returning from his shop he used to carry the daily collections and the key of the shop building. Though Roy had the key with him, the chain and the daily collection were missing. 13. PW-17 goldsmith would depose that as requested by the brother-in-law of the deceased he made a German Coir Fashion chain like M.O.2 and was given to Roy. M.O.2 was having a hook like M.O.3. 14. PW-18 would depose that he is an attester to Ext.P16, a mahazar prepared for the recovery of M.O.1 Crl. A. No. 2530/06 -15- pipewrench. 15. PW-21 had deposed that he had prepared Ext.P7 mahazar on the basis of which a hook and cross which were identified as M.Os.3 and 4 were recovered. PW-23 would depose that he was Sub Inspector or Police, Adimaly. He would depose about the preliminary investigation. 16. PW-27 would depose that he is the brother-in-law of the deceased and that he got information about the incident on the next day at 2.30 p.m. over phone and rushed to the Medical Trust Hospital where the deceased was admitted in the Intensive Care Unit and he understood that the chain worn by the deceased and the money carried were missing. He had further deposed that he had witnessed the Investigating Officer seizing M.O.3 and M.O.4 hook and cross and that as requested by him PW-17 had made the chain in German Coir Fashion weighing about 1 1/2 sovereign and that M.O.2 is the chain so made by PW- Crl. A. No. 2530/06 -16- 17 on his request and that the deceased was wearing the same. PW-28 is the sister of the deceased and wife of PW- 27. She had also identified M.O.2 chain and M.O.3 hook and M.O.4 cross as that of Roy. She had further deposed that M.O.2 chain in German Coir Fashion was made by the goldsmith known to her and that Roy was wearing the gold chain with the cross. 17. PW-29 would depose that he who is called as Cola George was running a Cola Company at 14th mile, Adimaly and that the deceased Roy was one of his old student and that the appellant had worked in his company on occasions as casual worker and that Ext.P34 is an account book maintained by him in the company during 1994 and that M.O.1 pipewrench belongs to his company and that it was taken from his company by the appellant and handed over to the police and it was seized by the police. 18. PW-30 Dr.Sreekala had deposed that on 11-2-1994 Crl. A. No. 2530/06 -17- she was working at Morning Star Hospital at Adimaly and that at 8.25 p.m. on that day, Roy was brought to the hospital with a deep lacerated wound in the frontal region about 4 X 1 X 3 cms. and that Ext.P9 is the case sheet and that she advised X-ray and scan and that the patient was also attended by Dr. Jayanendrakumar and that the patient was referred to another hospital for C.T.Scan and that the injury mentioned could be caused with a weapon like M.O.1. It was further deposed that the injured was not oriented and he was not responding to queries. The history of the injury was fall as told by the by-standers. 19. PW-32 is an attester to Ext.P36 mahazar prepared for the seizure of Ext.P34 Account Book from PW-29. PW- 33 would depose that he who is a granite worker had purchased a gold chain from the appellant for Rs.3000/- and the value was paid by two occasions and that M.O. 2 is the gold chain so purchased and that it was handed over to the Crl. A. No. 2530/06 -18- police when the police accompanied by the appellant came to him and that it was seized on the strength of a mahazar. PW-34 is an attester to Ext.P37 mahazar on the strength of which M.O.2 was seized by PW-35. 20. PW-35 would depose that he was Deputy Superintendent of Police, Special Investigation Team, Crime Branch and that the investigation of this case was taken over by the Crime Branch on 21-6-1994 for which CW-111 filed a report which was marked as Ext.P42 and that he took over the investigation on 23-11-1998 as Dy. S.P. Administration and from 24-12-1998 onwards he took over the investigation as Dy. S.P., SIT-1 and that Ext.P43 is the report filed by him to that effect. He had forwarded the material objects collected during the investigation by the local police for forensic examination. He questioned the witnesses and recorded their statement. On 27-4-1999 he filed Ext.P48 report implicating the appellant as the accused Crl. A. No. 2530/06 -19- and on 1-5-1999 he arrested the appellant. He had deposed about the interrogation of the appellant and the following recovery of M.Os. 1 and 2 from PWs. 29 and 33 for which Exts.P16 and P37 Mahazars were prepared. He also proved Ext.P16(a) and 37(a) statements of the appellant leading to the recovery of M.Os. 1 and 2. It is further deposed that the appellant was produced before the Judicial Magistrate of the First Class, Adimaly on the next day along with remand report and that Ext.P49 is the arrest card and P50 is the arrest memo and that Ext.P52 is the remand report. It was also deposed that on 18-10-1999 he prepared Ext.P6, a second scene mahazar and that he got the plan of the scene prepared by the Village Officer and that he had forwarded the material objects to the court and that after completing the investigation charge sheet was laid alleging offences under Sections 302 and 394 IPC. 21. The injuries sustained to Roy was proved by the Crl. A. No. 2530/06 -20- testimony of PWs-1, 2, 5, 8, 11 and 30 and also by Exts.P1, P9 and P4. Though the evidence of PWs.5 and 8 would show that Roy was talking soon after the sustaining of injury he did not stated as to how he sustained injury. The nature of injury revealed by the evidence of PW-2 would show that injury was very grave and there was depressed communited fracture over scalp frontal region and there was infiltration of blood into brain cavity. Automatically there would be a shock and loss of orientation. He had lost the equilibrium and had been trying to sit or lie and that was the only request by him to PWs-5 and 8. It appears that the statements by the deceased to PWs-5 and 8 are mere gibberings. As he was in shock, he could not state as to how he sustained injury. In short, he couldn't state as to how he sustained injury. No reliance can be given to gibberings. 22. As mentioned earlier there are two scene mahazars, viz. Exts. P6 and P24. It appears that there is Crl. A. No. 2530/06 -21- slight change of the place of occurrence. Exts. P6 and P24 narrate two different spots as place of occurrence. As to how it occurred is not revealed out by the evidence. However, it is pertinent to note that there was no projecting rock or granite pieces at both spots. Though the evidence on record would show that there were granite stone on either side of the pathway, PWs. 4 and 5 had deposed that there were no projecting stones at the pathway. To PW-2, who had deposed that the major injury found on the deceased could be caused with M.O.1, it was suggested that injury No.1 is possible if the victim falls on a stone with his head. PW-2 had deposed that it is very unlikely and that in such a fall there is possibility for sustaining other injuries apart from the injuries noted in Ext.P1. On an anxious consideration of the evidence of PW-2 with reference to the nature of injuries found, we feel that in the event of an accidental fall on a granite stone or rock as suggested by Crl. A. No. 2530/06 -22- the prosecution there is possibility for sustaining injuries on the face as well as on the body. In the absence of such injuries on the face as well as on the body, on a careful analysis of the evidence of PW2, the postmortem certificate and scene mahazars, we find that the evidence of PW-2 is believable that injury No.1, which led to the death of the deceased, could be possible with a weapon like M.O.1 and there is remote possibility for having sustained such injury by an accidental fall and that Roy had a homicidal death. 23. The next question that arises is whether the appellant is the assailant or not. To connect the appellant with the crime, the only evidence now on record is the recovery of M.O.1 and M.O. 2. There is no eye witness. No motive was also alleged against the appellant. Though the evidence of PW-8 and 11 would show that while Roy returning from shop after closing the same he used to carry money nothing was revealed out in evidence to show that Crl. A. No. 2530/06 -23- on that day either Roy was carrying any money or if he was carrying any money as to what happened to it. The evidence of PW-35 is silent as to whether he had made any investigation regarding the money or even the appellant was