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 4TH AUGUST 2009 / 13TH SRAVANA 1931 CRL.A.No. 916 of 2005(C) ------------------------ SC.1078/2003 of I ADDL. SESSIONS COURT, KOLLAM CP.2/2003 of JUDL.MAGISTRATE OF FIRST CLASS-I, KOTTARAKKARA .................... APPELLANT/IST ACCUESED:- ---------------------------------------- RAJAN @ RAJU, THEMPAKKADU, KIP CANAL PURAMPOOKKU, THATTAM, THRIKKANNAMANGAL MURI, KOTTARAKARA. BY ADV. SRI.K.A.HASSAN RESPONDENT/COMPLAINANT:- ------------------------------------------- STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.S.U.NAZAR. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 04/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: A. K. Basheer & P. S. Gopinathan, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Crl.A. No. 916 of 2005 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 4th day of August, 2009. Judgment Basheer, J: Appellant was tried along with two others for the offences punishable under Sections 302 and 323 read with Section 34 of the Indian Penal Code. 2. The court below found the appellant guilty under Section 302 and convicted and sentenced him to undergo imprisonment for life. Accused No.2, the wife of the appellant was acquitted of the charge levelled against her, while accused No.3 who was allegedly their neighbour was found guilty under Section 323 IPC and convicted and sentenced thereunder to suffer simple imprisonment for six months. Appellant impugns the order of conviction and sentence passed against him under Section 302 IPC in this appeal. 3. Briefly put, the prosecution case was that the three accused had assaulted Cw.1 Peter and deceased Nandini at about 3 PM on May 16, 2002 in the lane in front of their house situated at Thrikkanamangal Muri within the limits of Kottarakkara Police Station, because of their previous animosity. According to the prosecution, appellant/accused and his wife Sali (accused No.2) had some grouse against Cw.1 (Peter) and deceased Nandini who had been spreading rumours in the locality that the mother of the Crl.A.916/2005 : 2 : appellant had been leading an immoral life, with the imputation that strangers had been visiting her house. Some time in the morning on the day of the incident, appellant and his wife had allegedly gone to the residence of the deceased and picked up a quarrel in connection with this at about 2.45 PM. CW.1 and deceased Nandini were sitting in their house with Pw.1 (Rakesh). At that time, appellant and his wife Sali (accused No.2) went there along with accused No.3 and asked them how did it matter to them if some people came to their residence. Going by the version given by Cw.1 in Ext.P9 First Information Statement, the three accused started to abuse them. When they got fed up of this they decided to go to the residence of their neighbour Rajan. They got out of their house and came to the lane leading to the house of Rajan. At that time the appellant and accused No.2 came towards them running. The appellant carried a rubber tapping knife (M.O.1) and his wife Sali was having a bamboo stick in her hand. Appellant stabbed at the chest of CW.1 which was warded off by him with his left hand. Accused No.2 hit on his right hand with the bamboo stick twice. Cw.1 sustained an injury on the left ribs and it started bleeding. By that time deceased Nandini caught hold of the appellant beseeching him not to kill Cw.1. At that time accused No.3 kicked at the abdomen of deceased Nandini. She fell down. Crl.A.916/2005 : 3 : Immediately the appellant stabbed at the left side of the chest of deceased Nandini with the tapping knife. She could only utter “my mother”. Appellant told Cw.1 to take away Nandini and bury her and went away from the scene with the knife. The other two accused also left the scene dropping the bomboo stick there. According to Cw.1 he and deceased Nandini were taken to the hospital by his son Rakesh and others who reached the scene. On reaching the hospital, the Doctor declared Nandini dead after examining her. Cw.1 was advised to be admitted in the hospital. The Addl. Sub Inspector of Police attached to Kottarakkara Police Station recorded Ext.P9 statement of Cw.1 at the hospital. Ext.P9 (a) body note was also recorded. Thereafter Ext.P10 FIR was registered by the said officer. Pw.10 Circle Inspector of Police took over the investigation on the next day and recovered M.O.1 tapping knife and M.O.2 bamboo stick. Accused Nos. 1 and 3 were arrested on May 19, 2002 while accused No.2 was arrested on May 18, 2002. The Investigating Officer completed the investigation and laid the charge sheet before the Court. 4. The prosecution examined Pws.1 to 11 and marked Exts.P1 to P13 and M.O.1 to M.O.11. There was no oral or documentary evidence on the side of the defence. 5. Before we deal with the evidence adduced by the Crl.A.916/2005 : 4 : prosecution in support of its case, it may be noticed that the case of the defence as could be seen from the statement given under Section 313 of the Code of Criminal Procedure as well as from the cross examination of the witnesses was that deceased Nandini might have suffered the fatal wound in the course of a scuffle which took place when Cw.1 and the deceased came to their residence and picked up a quarrel with them. In other words, it was not disputed that Nandini died due to the fatal injury suffered on her chest. Of course, according to the prosecution the incident took place on the narrow pathway or lane in front of the house of the deceased, leading to the house of the accused (accused No.3 was admittedly the immediate neighbour of accused 1 and 2). The defence version appears to be that it took place in the courtyard of their house. Pws.1 and 2, the two sons of deceased Nandini were cited as ocular witnesses. They supported the prosecution case and asserted that they saw the incident. Pw.3 deposed that he saw Pw.10 recovering M.O.1 knife from the residence of the appellant on the next day of the incident. 6. The short question that arises for consideration is whether the prosecution has succeeded in proving the charge against the appellant. 7. Pw.1 was aged about 15 years at the time of the incident. Crl.A.916/2005 : 5 : According to him, he and his brother (Pw.2) were residing with their mother in the house which belonged to Peter (Cw.1) at the time of the incident. Pws.1 and 2 were born to Nandini in her marriage with another person from whom she had admittedly separated. According to Pw.1 in the morning on the day of the incident, accused No.1 had come to their residence and abused them. Later in the afternoon the three accused came to their house and started to abuse them further. Cw.1 and his mother being fed up with the abuses decided to go to their neighbour Rajan's house. When both of them were walking through the lane in front of their house, appellant went towards them. Appellant was carrying a tapping knife and accused No.2 was having a bamboo stick in her hand. This witness identified the knife and bamboo stick as M.O.1 and M.O.2 respectively. When appellant stabbed at the chest of Cw.1, he warded it off with his left hand resulting in an injury. Accused No.2 hit Cw.1 on his right hand with M.O.2 bamboo stick. Seeing this his mother tried to pull away the appellant crying aloud “do not kill him. Appellant caught hold of the neck of deceased Nandini and pushed her back. At that time accused No.3 kicked at the abdomen of deceased Nandini. She fell down. Then appellant stabbed on the chest of the deceased with M.O.1 knife. He pulled out the knife and told Cw.1 who was lying down on the Crl.A.916/2005 : 6 : ground to take her away and bury her. Appellant went away with the knife in his hand. Accused Nos.2 and 3 also left the scene. M.O.2 stick was dropped near the residence of accused No.3. According to Pw.2 he saw the incident standing near the steps leading to the lane. Pw.3 was also standing with him. Pw.2 further stated that Cw.1 along with him and Pw.2 took their mother to the hospital. The Doctor after examining her declared her dead. Cw.1 was given treatment. 8. Pw.2 also spoke about the incident on almost identical lines with that of Pw.1. 9. Pw.3 stated in his evidence that the house of accused Nos.1 and 2 was very near to his residence and appellant was a friend of his. He asserted that the Police had come to the residence of accused No.1 and recovered M.O.1 knife from inside the residence. He admitted his signature in Ext.P1 which according to Pw.10 Investigating Officer was prepared by him at the time of seizure. We will refer to this document and the manner in which the recovery was effected a little later. This witness also identified his signature in Ext.P2 scene mahazar under which M.O.2 bamboo stick was also seized. This witness further stated that he had heard the accused and deceased Nandini exchanging words in the morning on the day of the incident. Crl.A.916/2005 : 7 : 10. Pw.4 Village Officer prepared Ext.P3 scene plan . Pw.5 was an attestor to Ext.P4 inquest. He was also an attestor to Ext.P10, the mahazar prepared for seizure of M.O.3 dress (Maxi) and M.O.4 to 7 other dresses worn by the deceased at the time of her death. 11. Pw.6 was yet another witness to Ext.P4 inquest. Pw.7 had prepared Ext.P5 mahazar for recovery of M.O.8 kyli worn by Cw.1 at the time of the incident. Ext.P6 report of the Chemical Examiner was also marked through this witness. 12. Pw.8 conducted autopsy on the body of deceased Nandini and issued Ext.P7 post mortem certificate. Apart from injury No.1 which turned out to be fatal, the doctor had also noticed two abrasions on the right side of the neck and also on the front of chest to the left of mid line on the body of the deceased. He had also noticed an incised wound on the left side of chest below armpit. However injury No.1 which turned out to be fatal as noted by the doctor is extracted hereunder: “1. '-----' shaped incised penetrating wound 2.8 x 1 cm. obliquely placed on the front of left side of chest 6.5 c.m outer to midline and 9 cm below collar bone. Both ends Crl.A.916/2005 : 8 : of the wound were sharply cut. The wound entered into the chest cavity after cutting the cartilage of the 4th rib and adjacent part of 3rd intercostal space, and transfix the pericardium, right ventricle, inter ventricular septum and terminated into the chamber of left ventricles. The chest cavity contained 1100 ml of fluid blood. The direction of the wound was downwards, backwards and to the right for a total minimum depth of 8 cm” The doctor deposed that death was due to the injury sustained to the chest. As mentioned earlier, Pw.10 conducted investigation of the case, in the course of which he arrested the three accused and recovered the alleged weapons used in the crime. He also prepared Ext.P2 scene mahazar and Ext.P4 inquest report. 13. It is vehemently contended by Sri.Hassan learned counsel for the appellant that the court below ought not to have found the appellant guilty on the basis of the totally unsatisfactory and uncorroborated evidence adduced by the prosecution. It is pointed Crl.A.916/2005 : 9 : out by the learned counsel that neither Cw.1 who gave Ext.P9 F.I. statement nor the Addl.Sub Inspector who recorded the same, was examined before the court. There was absolutely no explanation as to why the Officer was not examined. The explanation sought to be put forward for the non examination of Cw.1 was that his whereabouts were not known. According to the prosecution Cw.1 had simply vanished from the hospital 4 or 5 days after the incident. 14. Learned counsel contends that because of the non examination of Cw.1 and the officer who allegedly recorded the FIS and registered the crime, the very foundation of the prosecution case itself had become totally shaky. In this context learned counsel has also pointed out that Cw.1 did not have a case that Pw.2 Ratheesh (younger son of deceased Nandini) was anywhere near the scene at the time when the alleged incident took place. The name of Pw.2 was conspicuously absent from Ext.P9 F.I statement. But according to the learned counsel, Pw.2 was planted at the scene deliberately in order to buttress the evidence of Cw.1. 15. It is also contended by the learned counsel that one witness who was specifically mentioned in the F.I statement was one Podiyan who was in fact shown as Cw.5 in the charge sheet. Crl.A.916/2005 : 10 : But surprisingly and inexplicably Cw.5 was never brought before the court. The meek explanation attempted to be given by the prosecution through Pw.3 was that Cw.5 was laid up with tuberculosis. According to the learned counsel, these infirmities in the First Information Statement and the evidence adduced by the prosecution are sufficient enough to disbelieve the prosecution story. 16. It is true that Cw.1 had stated in Ext.P9 First Information Statement that Podiyan had also seen the incident. According to Pw.3, Podiyan was laid up with tuberculosis. It has to be remembered that the case came up for trial three years after the alleged incident. If the prosecution thought that the evidence of Pws.1 and 2, the two ocular witnesses was good enough to support the prosecution case and therefore Cw.5 need not be examined in the case, it cannot be said that non examination of Cw.5 would be a major flaw or lacuna in the prosecution case. 17. As regards non examination of Cw.1 also the defence cannot clamour much, because it cannot be assumed that the prosecution would have under normal circumstances, withheld such a key witness. The defence did not have a case that Cw.1 was kept away from the court for any specific purpose or that non examination of the said witness has caused any grave prejudice to Crl.A.916/2005 : 11 : the defence. Of course non examination of the officer who recorded Ext.P9 First Information Statement has not been properly explained by the prosecution. Pw.10, in the course of his examination, has stated that his subordinate officer has recorded Ext.P9 First Information Statement at the hospital as directed by him and that Ext.P10 FIR was thereafter registered. Investigation was taken up by Pw.10 pursuant to registration of the crime. The official acts performed by the Asst. Sub Inspector in the course of his duty need not be viewed with suspicion in the absence of any specific allegation of malfeasance or misfeasance. 18. The other contention raised by the learned counsel is that the search and recovery of MO1 knife is manifestly illegal and vitiated. It came out in evidence that Pw10 had conducted search of the residential premises of accused No.1 on the next day of the incident. Ext.P1 is stated to be the search list prepared by Pw10 in connection with the recovery. According to Pw10, he proceeded to the place of search after preparing a search memorandum. He further stated that he had forwarded the said memorandum to the competent Magistrate. But the prosecution did not produce the memorandum which was allegedly prepared or forwarded by the investigating officer before the search. 19. In this context, the learned counsel invites our attention Crl.A.916/2005 : 12 : to Section 165 of the Code of Criminal Procedure and contends that the violation of procedure prescribed in the above provision will totally vitiate the alleged search and recovery. Sub-sec.(1) of Sec.165 of the Code empowers the officer in charge of investigation of a crime to conduct a search, or cause search to be made for recovery of anything necessary for the purpose of investigation into any offence if, the officer has reasonable grounds for believing that such thing or object is available there. But the police officer conducting the search must record in writing the grounds of his belief and must also specify in such writing, so far as possible, the thing for which search is to be made. Sub-sec. (5) of Sec.165 further stipulates that, copies of any record made under sub-sec.(1) or sub-sec.(3) shall forthwith be sent to the nearest Magistrate empowered to take cognizance of the offence, and the owner or occupier of the place searched shall, on application, be furnished, free of cost, with a copy of the same by the Magistrate. 20. As rightly pointed out by the learned counsel the report or memorandum in writing to be prepared by the officer who proposed to conduct a search is conspicuously absent in the case. Therefore, going by the provisions contained in sub-sec.(1) of Sec.165, the alleged search made by the officer cannot be legally Crl.A.916/2005 : 13 : sustained at all. Still further, it has come out in evidence that Ext.P1 search list under which MO1 knife was allegedly recovered, reached the court of the competent Magistrate only on May 20, 2002, three days after the alleged search. There is absolutely no explanation for the delay in forwarding the search list. In that view of the matter also the search and seizure of MO1 cannot be held to be proper or valid at all. 21. But as rightly pointed out by the learned Public Prosecutor, Pw3 was present at the time when the search was held by the investigating officer at the residence of accused No.1. Pw3 was a signatory to Ext.P1. More importantly, the accused has no case that the irregularity in the search has caused any prejudice to him. The learned Public Prosecutor invites our attention to a decision of the Apex Court in this connection. In State of M.P. v. Paltan Mallah (AIR 2005 SC 733), their Lordships, while considering the provisions relating to search and seizure in general and also to Sec.165 of the Code in particular, observed that, “in India, the evidence obtained under illegal search is not completely excluded unless it has caused serious prejudice to the accused.” It was noted by the Court that, the discretion has always been given to the Court to decide whether such evidence is to be accepted or not. In this context, their Lordships had referred to the earlier Crl.A.916/2005 : 14 : decisions of the Court in Radha Krishnan v. State of U.P. (AIR 1963 SC 822) and Pooran Mal v. Director of Inspection [(1974)1 SCC 354]. 22. The following observations of the Court in Paltan Mallah (supra) are apposite: “The provisions contained in the Criminal Procedure Code relating to search and seizure are safeguards to prevent the clandestine use of powers conferred on the law enforcing authorities. They are powers incidental to the conduct of investigation and the legislature has imposed certain conditions for carrying out search and seizure in the Code. The Courts have interpreted these provisions in different ways. One view is that disregard to the provisions of the Criminal Procedure Code relating to the powers of search and seizures amounts to a default in doing what is enjoined by law and in order to prevent default in compliance with the provisions of the Code, the courts should take strict view of the matter and reject the evidence adduced on the basis of such illegal search. But often this creates a serious Crl.A.916/2005 : 15 : difficulty in the matter of proof. Though different High Courts have taken different views, the decision of this Court quoted above have settled the position and we have followed the English decisions in this regard. In the Privy Council decision in Kuruma v. The Queen (1955) AC 197, Lord Goddard, C.J., was of the firm view that in a criminal case the Judge always has a discretion to disallow evidence if the strict rule of admissibility would operate unfairly against an accused. The trend of judicial pronouncements is to the effect that evidence illegally or improperly obtained is not per se inadmissible. If the violation committed by the investigating authority is of serious nature and causes serious prejudice to the accused, such evidence may be excluded.” (emphasis supplied by us) 23. We have considered Ext.P1 search list and also the testimony of Pw3 who witnessed the search and recovery. Nothing has been brought out in evidence to shake the credibility of Pw3. Moreover, Pw10 stated that as soon as he took over the investigation of the case, he was searching for the accused who Crl.A.916/2005 : 16 : were named in the FIR. Going by the evidence of Pws.1 & 2, appellant had carried MO1 knife with him towards his residence. It was under those circumstance that the investigating officer had formed a reasonable opinion that the weapon of offence might be available at the residence of accused No.1. As has been mentioned earlier, the appellant has not been able to substantiate that any prejudice has been caused to him because of the irregularity in the procedure followed by the investigating officer in the matter of search and seizure. We are persuaded to take the above view especially for the reason that the oral testimony of Pws.1 & 2 appeared to be quite credit worthy and unassailable. 24. It is contended by Sri.Hassan, the learned counsel for the appellant that the recovery of MO1 knife is bad for yet another reason. The prosecution has not adduced any evidence to show that the building in question belonged to the appellant. It is also pointed out by the learned counsel that no evidence was let in by the prosecution to show that the appellant was a rubber tapper by profession. But we are not impressed with the above contention especially since the evidence adduced by the prosecution has not been seriously challenged. Pws.1 & 2 had categorically stated that the appellant had used MO1 knife which was usually used for tapping rubber trees. Therefore, it is immaterial whether the Crl.A.916/2005 : 17 : appellant was a tapper by profession or not. As regards the ownership of the house in question, the accused had no case that the building did not belong to him. Further, the evidence on record revealed that the said temporary structure was situated in government poramboke. In that view of the matter, we are not persuaded to accept the plea of the appellant that the search and recovery of MO1 knife was bad. 25. Lastly, it is contended by the learned counsel that the order of conviction passed against the appellant under Sec.302 cannot be sustained, since apparently there was a scuffle between the appellant and other accused on one side and the deceased and Cw1 on the other. But we are afraid the above contention is wholly untenable. The evidence of Pws.1 & 2 will clinchingly show that the appellant had stabbed the deceased when she fell down on the ground after receiving a kick on her abdomen from accused No.3. The act of the appellant was very deliberate. Further, Pw8, who conducted the postmortem, stated that the fatal injury could not have resulted in a scuffle. He stated so after referring to the nature of the injury presumably keeping in view the dimensions of the said injury particularly its depth. In that view of the matter, we are not persuaded to accept the plea of the appellant to alter his conviction from