IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MRS. JUSTICE K.HEMA WEDNESDAY, THE 16TH JANUARY 2008 / 26TH POUSHA 1929 CRL.A.No. 1572 of 2004(B) ------------------------- SC.116/1999 of SESSIONS COURT, KASARAGOD .................... APPELLANT: COMPLAINANT ----------------------------------------- STATE OF KERALA, REP.BY PUBLIC PROSECUTOR. BY PUBLIC PROSECUTOR SRI.P.RAVINDRA BABU RESPONDENTS: ACCUSED ------------------------------------- KOOVAKKAL DEVASSIA @ PAPPACHAN S/O. ANTONY, KUZHIPPANAM, MALOM VILLAGE. BY ADV. SRI.M.K.DAMODARAN (SR.) SRI.SOJAN MICHEAL THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 16/01/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.B.KOSHY & K.HEMA,JJ. ----------------------------------------- Crl.A.No.1572 of 2004 ----------------------------------------- Dated this the 16th day of January, 2008 JUDGMENT Koshy, J. This appeal is filed against acquittal of the respondent, who was charge sheeted for offences under Sections 302 IPC and Section 3 read with 25(1-B)(a), Section 5 read with 27(1) of the Arms Act. The allegation of the prosecution was that the accused and the victim together conducted ginger cultivation, but soon they fell apart over disputes in sharing profits. Therefore, on 30.1.1996, at about 8 PM, while the victim was returning to his house through the pathway in a rubber plantation of his brother, the accused, waiting hidden under a closeby bush, shot him with a fire arm, MO10. The accused fell down. Thereafter the accused inflicted stab injuries by MO9. PW1, the wife of the victim, attracted by the unusual barking and conduct of her dog, rushed out to the pathway, and enroute she saw the accused running away. Reaching the spot of occurrence she found her husband lying soaked in blood. The victim stated to her that he was shot and stabbed by the accused. Her alarm brought PW2 and others to the scene and soon the victim was rushed to Crl.A.No.1572/04 2 hospital where he was declared dead. Elder brother of the victim (CW1) gave FI statement. He accompanied during the hospital. The prosecution relied on the following factors for acquitting the accused for the guilt: (1) Motive; (2) PW1 wife has seen the accused running away from the spot; (3) Dying declaration heard by PW1; (4) Extra judicial confession said to have been given to PW5; and (5) Recovery of the gun as well as the knife on the basis of the disclosed statement of the accused. The trial court found that the evidence shows that there was motive. The accused had long-standing enmity with the victim consequent to disputes arising out of sharing of profits over their joint cultivation of ginger, which is sought to be established by various documents. Even though efforts were made by mediators, the matter was not settled. It is also come out in evidence that he filed Exhibit P8 complaint before the police and thereafter the police investigated and the matter was settled. In any event, there were disputes between them and there may be motive. That fact was accepted by the trial court. The trial court found that mere existence of motive is not sufficient to hold that the accused was the murderer, in the absence of any other circumstances. 2. CW1, who gave the FI statement was not examined for the reason that he was a cancer patient. But no medical evidence was adduced to show that he was unable to be examined in court due to cancer. FI statement, though very important in a criminal case as a Crl.A.No.1572/04 3 first statement regarding the incident, is not a substantial piece of evidence, unless it is proved. PW1 wife of the deceased deposed in terms of the prosecution case. According to her, in view of the barking of the dog, she rushed out to the pathway and found her husband lying and accused running away and she cried aloud and with the help of others, the deceased was taken to the hospital. The trial Judge found that probably at that time he must have been dead and since there was dispute between accused and deceased, she must have assumed that the accused caused the death and there is no likelihood that she actually seen the accused running away. PW2, who is son of the accused, came hearing the cry of PW1. The trial court found as follows: “PW2 would state he too heard the gun shot and the alarm raised by the victim that he was murdered. Soon he heard the cries of PW1 calling his name. He rushed to the rubber plantation and then saw the victim lying injured in the pathway with PW1 closeby weeping aloud. PW1 then told him that the victim, his uncle, had passed away. She directed him to inform her son-in-law and others in the junction and to fetch a jeep. PW1 also admitted that she had stated to PW2 as above. Normally, whatever be the precarious condition of the victim if any semblance of life remained with him PW1 would not have stated that he was already gone. By the time she reached the spot, it seems, the victim had already breathed his last and there was no opportunity to disclose to her Crl.A.No.1572/04 4 who was his assailant. Such a conclusion is irresistible from the conduct of the wife (PW1) telling PW2 that her husband had passed away and also non-mentioning of such disclosure by the victim to the informant, the brother of the victim. Another aspect that is to be taken note of is that PW2 too had heard the gun shot even before PW1 reached the spot of occurrence where her husband was lying. Before reaching the spot she had cried out for the name of PW2 for help and assistance. In Exhibit P23 mahazar prepared over the scene of crime, it is stated that the houses of the victim and also the informant, CW1, are situated in the hill at a distance of approximately 400 meters away from the spot of occurrence. PW1 would state during her cross examination that she did not state anything about the occurrence to the persons who assembled when the victim was brought to the road for transportation to hospital. When questioned by the police and her statement was recorded during investigation, it has come out that she had no case of noticing the accused possessing anything in his hand when he was seen running away, which was her version before the court. In this connection, it has to be noticed that the victim sustained gun shot injuries with a fire arm (MO10) which, according to the prosecution, was subsequently recovered on the disclosure given by the accused. No fire arm or cartridge was seen anywhere near the scene of crime. If in the light shed by the torch PW1 could identify the person Crl.A.No.1572/04 5 running away from a spot close to the scene of crime as the accused normally, she could have also noticed what was in his hand if it were a fire arm. She had noticed that the accused was wearing a lungi alone and not any shirt, but possessing “something” in his hand, while he ran away. The accused running towards her from the opposite direction seeing her turned away and ran towards west, and she saw him in the light shed by the torch, is her version. He was wearing a lungi was noticed by her in the night, from the light shed by torch, but not what was possessed in his hand is hardly susceptible. I find it totally unsafe to accept the testimony of PW1, the wife, that she saw the accused at a spot close to the scene of crime immediately after the occurrence and also her husband had disclosed to her that the accused was his assailant. Her evidence at the most is acceptable only to the extent that after hearing the gun shot she rushed to the spot and found her husband lying in the pathway with fatal injuries. He might have breathed his last by the time she reached the spot is evident by the statement made by her to PW2 that the victim had passed away”. We find that the above findings are not perverse. In the FI statement CW1 did not state that any dying declaration was given. PW2 also did not state so. PW1 did not state to CW1 or PW2 when they came to the place of incident before he breathed his last deceased said that the accused was the assailant. The condition of the deceased, his ability to speak, his Crl.A.No.1572/04 6 mental state etc. were not proved. 3. PW5 has given evidence that on the night of the occurrence, the accused came to her house to meet her son. When he was informed that her son was not there, the accused demanded for something to eat and on his persistence she gave him gruel. After consuming gruel he confided to her that he had committed murder of his enemy. He left the place after leaving MO8 cartridge inside their house. But there is no material to show that she was in such fiduciary possession that accused will confide to her. She did not tell this matter to anybody even after knowing the murder by gun shot occurred in her locality. Her son said to have been gone away returned after funeral. She disclosed to her mother only after 18 days of the incident when she was questioned by the police. Extra judicial confession is a weak piece of evidence and there is no chance that accused has confessed to PW3. Even though on the basis of the alleged disclosure of PW2 to PW17, MO10 gun, which was stated to be the weapon involved in the case, was recovered under Exhibit P5 mahazar, it was proved that the above gun was not used. The trial court also found as follows: “The recovery of that weapon is not supported by any independent evidence nor even by any statement recorded from the accused disclosing his authorship of concealment of that object. The accused challenging the recovery has contended that he was arrested the day before when he surrendered before the Dy.S.P. Kanhangad. To Crl.A.No.1572/04 7 substantiate his case that the arrest was before and not at the time recorded by the investigating agency he has examined DW1, a correspondent of a newspaper, namely, Deepika. That daily published on 18.2.96 containing a news item as to his arrest on the basis of a report forwarded by DW1, the previous day, is also relied by the accused. DW1 has given evidence that on the information collected from the Dy.S.P office, he sent a report to the head office of the newspaper, on the basis of which the news item regarding the arrest of the accused was published in the newspaper on 18.2.96. Though the evidence of DW1 is challenged by the prosecution as not true to facts I find that this witness has no interest for or agaisnt the prosecution, or the accused. He is a totally disinterested witness whose duty as a correspondent was to report matters having news value for publication in the daily. On the basis of the information derived, which according to him, was from the Dy.S.P office he reported the arrest of the accused on 17.2.96, is his version. I find no reason to disbelieve him. Version of the accused that he was arrested the previous day, whatever be the circumstances under which the arrest was made, appears to be more probable in the light of the publication appearing in the deepika daily dated 18.2.96, exhibited as D2, corroborated by the evidence of DW1. That itself is sufficient to discredit the recovery evidence relied by the prosecution as an incriminating circumstance pointing to the guilt of the accused. So that piece of evidence canvassed by the prosecution also does not improve its case.” So, the trial court has correctly found that the alleged dying declaration or the alleged extra judicial confession or recovery evidence cannot be relied on. We fully agree with the above finding. The above findings are not perverse. In any event, it cannot be stated that the above view is not a plausible view. On the basis of possible motive, at the maximum suspicion can be formed against Crl.A.No.1572/04 8 the accused, but mere suspicion is not enough to convict an accused. We see no reason to interfere with the order of acquittal. Hence we dismiss the appeal filed by the State. J.B.KOSHY, JUDGE K.HEMA, JUDGE vgs. Crl.A.No.1572/04 9 J.B.KOSHY & K.HEMA, JJ. ------------------------------ Crl.A.No.1572 of 2004 ------------------------------ JUDGMENT 16.1.2008