IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR WEDNESDAY, THE 12TH OCTOBER 2011 / 20TH ASWINA 1933 CRL.A.No. 2334 of 2007() -------------------- SC.903/2004 of ADDL. SESSIONS COURT (ADHOC), TRIVANDRUM CP.11/1994 of JUDL. MAGISTRATE OF FIRST CLASS COURT-II,NEYYATTINKARA .................... APPELLANT(S): ACCUSED: -------------------- EASTER BAI, S/O. JOSEPH, MAHADEVARTHOPPE VEEDU, THEKKEKOLLAMKODE, POZHIYOOR DESOM, KULATHUR VILLAGE. BY ADV. SRI.P.VIJAYA BHANU, SENIOR ADVOCATE SRI.P.M.RAFIQ RESPONDENT(S): COMPLAINANT: --------------------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI. P. RAHIM THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 12/10/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V. RAMKUMAR, & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - CRL.APPEAL NO. 2334 OF 2007 - - - - - - - - - - - - - - - - DATED: 12th October, 2011 JUDGMENT Ramkumar,J. In this appeal filed under Sec. 374 (2) Cr.P.C. the appellant who was the sole accused in S.C. 903 of 2004 on the file of the Addl. District & Sessions Court (Fast Track Court-I), Thiruvananthapuram , challenges the conviction entered and the sentence passed against him by that Court for the offence punishable under Sec. 302 I.P.C. 2. The case of the prosecution can be summarised as follows:- Deceased Oorzilamma, aged 56 years had two daughters by name Mettel Marry (P.W.1) and Asantha Marry (P.W.5). Asantha Marry was given away in marriage to one Dennison who is employed in the Gulf. Accused Nos. 1 and 2 CRL.APPEAL NO. 2334 OF 2007 :2: (Easter Bai and Mani) are the brothers of the said Dennison and A3 (Kamalamma) is their mother . At the time of marriage of P.W.5 a property admeasuring 1 ½ acres was given to P.W.5 and Dennison . However, notwithstanding the said gift, Oorzilamma herself was planting thespecia plants in the property and watering them and taking the income from there. This was not relished by A1 to A3. On 4-11- 1988 deceased Oorzilamma had gone to the property along with her maidservant P.W.2 (Rani) for watering the improvements in the property. At about 1 p.m. on that day the three accused persons out of their enmity towards Oorzilamma for continuing to enjoy the property given to Dennison trespassed upon the property. A3 (Kamalamma) caught hold of the deceased by her hair and wrongfully restrained her asking her who she was to plant the thespecia plants in the property given to her son, water them and take the income therefrom. A1 fisted the deceased on her chest, back, head and other parts of her body. A2 kicked the deceased on her abdomen whereupon the deceased fell down. Then A1 and A2 fisted and kicked CRL.APPEAL NO. 2334 OF 2007 :3: recumbent Oorzilamma on different parts of her body. The deceased went to the nearby house with the help of her relatives. In the evening she was taken to the Government Hospital, Parassala in a car driven by P.W.21. On the way they stopped at Pozhiyoor Police Station from where P.W.23, the head constable recorded Ext.P1 statement of Oorzilamma. Ex.P1 (b) is the F.I.R. registered by P.W.23 the head constable. Thereafter the party proceeded to th Government Hospital, Parassala where P.W.13 (doctor) examined the deceased and prepared Ext.P10 wound certificate at 6 p.m. Finding that her condition was serious, P.W.13 referred her to the Medical College Hospital, Thiruvananthapuram. On 5-11-1988 at 9 a.m. Oorzilamma succumbed to the injuries while undergoing treatment in the Medical College Hospital. The accused persons have thereby committed offences punishable under Sections 341 and 302 read with Sec. 34 I.P.C. 3. On the appearance of A1 to A3 the Court below registered the case as S.C. 96 of 1995 and framed charge against A1 to A3. But thereafter A1 who is the appellant herein was absconding and the case against him was split up. S.C. 26 of CRL.APPEAL NO. 2334 OF 2007 :4: 1995 proceeded against A2 and A3 alone. It is referred to the impugned judgment that in the trial which followed in S.C. 26 of 1995, as per judgment dated 24-3-2004, A2 and A3 were acquitted by the trial Court. The appellant, thereafter, surrendered before the court below which re-registered the case against him as S.C. 903 of 2004. 4. On the appellant pleading not guilty to the charge framed against him by the court below for the aforementioned offences, the prosecution was permitted to adduce evidence in support of its case. The prosecution altogether examined 27 witnesses as P.Ws 1 to 27 and got marked 34 documents as Exts. P1 to P34 and four material objects as Mos 1 and 2 series. 5. After the close of the prosecution evidence, the appellant was questioned under Sec. 313 (1) (b) Cr.P.C. with regard to the incriminating circumstances appearing against him in the evidence for the prosecution. He denied those circumstances and maintained his innocence. The learned Addl. Sessions Judge after trial as per judgment dated 9-11-2007 found the appellant guilty of the offence of murder punishable under Sec. 302 I.P.C. and sentenced him to imprisonment for life and to pay a fine of Rs. CRL.APPEAL NO. 2334 OF 2007 :5: 10,000/- and on default to pay the fine to suffer simple imprisonment for a further period of one year. It is the said judgment which is assailed in this appeal. 6. We heard Sr. Advocate Sri. P. Vijayabhanu, the learned counsel appearing for the appellant and Advocate Sri.P.Rehim, the learned Public Prosecutor who defended the State. 7. The only point which arises for consideration in this appeal is as to whether the conviction entered and the sentence passed against the appellant are sustainable or not ? THE POINT: 8. We will briefly make mention of the prosecution witnesses :- Prosecution witnesses A. P.W.1 (Mettal Mary) is one of the daughters of the deceased. She is not an occurrence witness and has no direct knowledge about the occurrence. She proved Ext.P1 F.I. statement given by the deceased to the Station House Officer at 4.30 p.m. on 4-11-1988. B. P.Ws 2,3,4, 19 and 20 (Rani, Swarnamma, Alphonsamma, Shyamraj and Suresh Kumar) CRL.APPEAL NO. 2334 OF 2007 :6: respectively are the eye-witnesses to the occurrence examined by the prosecution. All of them turned hostile to the prosecution. C) P.W.5 (Asantha Mary) is the other daughter of the deceased. Ext. D1 is the certified copy of her earlier deposition as P.W.7 in S.C. 26 of 1995. D) P.W.6 (Arther) is a relative of the deceased and employer of P.Ws 19 and 20 . He was cited by the prosecution to prove that PWs 19 and 20 were absent from duty on that day. He, however, turned unfriendly to the prosecution. E) P.W.7 (Soman) is the Sub Registrar who proved Ext.P5 attested copy of the filing sheet register maintained in his office pertaining to document No. 1450/1984 which is the sale deed dated 9-5-1984 as per which P.W.5 and her husband Dennison were given 1 ½ acres of property during the time of their marriage. F) P.W.8 (Silvapicha) is the person who received the dead body after the autopsy. G) P.W.9 (Reghunathan) is the Sub Registrar who attested Ext.P6 mahazar dated 2-2-2-2-1993 while the CRL.APPEAL NO. 2334 OF 2007 :7: original of Ext.P5 filing sheet register was seized. He is also an attester to Ext.P7 kychit as per the original of which was seized under Ext.P6 was returned to the Sub Registrar, Kulathoor. H) P.W.10 (Nelson D'cruz) is an attester to Ext.P8 scene mahazar prepared by the Investigating Officer at 11.50 a.m. on 5-11-1988 . I) P.W.11 (Hymavathy Amma) is the Joint Chemical Examiner who proved Ext.P9 chemical analysis report dated 6-12-1988 which showed that the viscera of the deceased contained Zinc Phosphate which is a common ingredient of rat poison. J) P.W.12 (Vijayalekshmi) is the Assistant Chemical Examiner who had examined the viscera and blood etc. taken from the deceased by the autopsy surgeon. K) P.W.13 (Dr. J. Sathyanesan) was the Assistant Surgeon in the Government Hospital , Parassala who had originally examined the deceased at 6.p.m. on 14-11- 1988 and issued Ext.P10 wound certificate . He also proved Ext.P11 case sheet pertaining to the deceased. CRL.APPEAL NO. 2334 OF 2007 :8: L) P.W.14 (Dr.P. Sivasankara Pillai) who was the Professor of Forensic Medicine, Medical College Hospital, Thiruvananthapuram conducted autopsy of the deadbody or Oorzilamma on 6-11-1988 and issued Ext.P12 post post mortem certificate. Relying on Ext.P9 chemical report he gave Ext.P13 final opinion on 14-12-1988 that the deceased died due to the blunt injuries sustained by her. M) P.W.15 (Chandramohan Pillai) is a technician who had assisted P.W.14 in the autopsy. N) P.W.16 (Dr. Umadathan) who was the Medical Legal Advisor to the Kerala Police had conducted an enquiry regarding the allegation that the samples of stomach contents and intestine etc. of the deceased had been tampered with. Ext.P14 is the enquiry report of the expert committee headed by P.W.16. P.W.16 confirmed the allegation that there was tampering of the samples of viscera, stomach contents etc. of the deceased. O) P.W.17 (Kelukutty) who was the Village Officer, Kulathoor proved Ext.P16 scene plan. P) P.W.18 (Dr. Sujatha) who was the Associate Professor CRL.APPEAL NO. 2334 OF 2007 :9: of Forensic Science, Medical College Hospital, Trivandrum proved Ext.P16 mahazar after seizing the postmortem register and Ext.P17 detailed post mortem notes. Some other records seized were returned for the sake of daily use as evidenced by Ext.P18 kycheet. (Q) P.W21 (Nazarudheen) is the driver who had taken the deceased to the police station and thereafter to the hospital. He is an attestor to Ext.P22 inquest report as well. He, however, turned disloyal to the prosecution. (R) P.W.22 (Dennison) who was a police constable had taken the viscera and other samples to the Chemical Examiner's Laboratory . (S) P.W.23 (N.Edvin) who was the head constable of Pozhiyoor police station recorded Ext.P1 F.I. statement of the deceased. He prepared Ext.P1 (a) body note and registered Ext.P1(b) F.I.R. He had also prepared Ext.P8 scene mahazar dated 5-1-1988 at 9.15 a.m. and seized MO1 stick thereunder. (T) P.W.24 (D.Salimraj) who was the Sub Inspector of Pozhiyoor Police Station, recorded the F.I. statement of A3 and registered Crime No. 136 of 1988 constituting the counter case in this case. After CRL.APPEAL NO. 2334 OF 2007 :10: conclusion of the investigation he filed Ext.P26 refer report. (U) P.W.25 (Baby) is the Sub Inspector of Police CBCID , Thiruvananthapuram who conducted the initial investigation after the investigation was taken over by the CBCID. He seized Ext.P28 summary sheet in respect of the deceased kept in the Medical College Hospital as per Ext.P27 mahazar. V) P.W.26 (Kesavan) who was the Circle Inspector of Police, Poovar conducted the major part of the investigation. He proved Ext.P29 report for adding Sec. 302 I.P.C. and to delete Section 323 I.P.C. He also proved MO2 series of garments of the deceased which were seized under Ext.P22 inquest. He had arrested accused Nos. 1 to 3. (W) P.W.27 (Devarajan) is the Administrative Detective Inspector in the CBCID Head Quarters, Thiruvananthapuram who completed the investigation and laid the charge. He seized Ext.P34 (I.P. Register) of Government Hospital , Parassala under Ext. P33 mahazar. After conclusion of the investigation, he laid the charge before Court. 9. Eventhough all the occurrence witness namely, P.Ws 2 to CRL.APPEAL NO. 2334 OF 2007 :11: 4 , 19 and 20 turned unfriendly to the prosecution and did not support the prosecution to any extent regarding the occurrence, the court below convicted the appellant by placing reliance on the solitary evidence furnished by Ext.P1 F.I. statement which was treated as the dying declaration of the deceased falling under Sec. 32 (1) of the Evidence Act. 10. The learned senior counsel appearing for the appellant submitted that it will be unsafe to rely on Ext.P1 F.I. statement given by the deceased and convict the appellant by treating the same as a dying declaration. He relied on the following circumstances to reject Ext. P1:- i) In Ext.P5 sale deed, over and above her signature which resembles a cross, her thump impression was also taken. But surprisingly, in Ext.P1 F.I. statement what we find is only a mark resembling a cross without any thump impression. ii) Eventhough the occurrence took place at 1 p.m. on 4-11- 1998 Ext.P1 F.I. statement is given only at 4.30 p.m. on that day. Pozhiyoor police station is one kilometer away from the place of occurrence. No explanation has been offered in Ext.P1 F.I. statement for the above delay. It was only for CRL.APPEAL NO. 2334 OF 2007 :12: the first time in Court that P.W.1 came out with an explanation that after the occurrence the deceased has attended to by her by boiling hot water etc. iii) Ext.P1 says that 1 ½ acres of land was given to P.W.5 the daughter of the deceased as a gift. But Ext.P5 shows that it is a sale deed and the vendees are both P.W5 and her husband Dennison. iv) P.W.25 the driver of the car in which the deceased was taken to the hospital says that while at the police station P.W.1 alone went inside and the deceased remained in the car itself. If so, the testimony of P.W.23 the head constable that the deceased herself came to the police station and gave Ext.P1 F.I. statement cannot be believed. v) Ext. P1 F.I. statement does not give the names of any of the eye witnesses except P.W.2. If so, the four other persons examined as eye-witnesses were planted by the prosecution and that explains their turning hostile to the prosecution. vi) P.W.23 the head constable of Pozhiyoor Police Station says that the deceased was sent to the Government Hospital, Parassala with a requisition given by him . But Ext.P10 wound certificate shows that the requisition was issued by the Sub Inspector of Police. P.W.24 the Sub Inspector has CRL.APPEAL NO. 2334 OF 2007 :13: no case that he had issued any requisition. This circumstance is to be appreciated in the light of the fact that Ext.P1 F.I. statement reached the Magistrate at Neyyattinkara only at 11 a.m. on 5-11-1988. Even if Ext.P1 F.I. statement is believed and accepted by this Court as a dying declaration what is at best made out is an offence punishable under Secs. 323 and 341. There is absolutely no justification for the conviction under Sec. 302 I.P.C. 11. We are afraid that we find ourselves unable to accept the appellants' argument with regard to Ext.P1 F.I. statement. P.W.5 the daughter of the deceased has credibly deposed that the signature of her mother resembles a cross and Ext. P1 F.I. statement contains the signature of the deceased. Hence, the failure to obtain a thumb impression also of the deceased cannot be a ground to reject Ext.P1 as auspicious. 12. It is true that Ext.P1 F.I. statement is given at 4.30 p.m. on the way to the Government Hospital, Parassala and the occurrence took place at 1 p.m. This delay of 3 ½ hours cannot be treated as fatal even if there is no explanation forthcoming in the F.I. statement. A rustic lady cannot be expected to give explanation for the inconsequential delay of 3 ½ hours while CRL.APPEAL NO. 2334 OF 2007 :14: lodging a first information statement. We do not think that the explanation given by PW1 that until then they were trying to give succour to the deceased is a false pretext to cover the delay, if at all, there was any. There were no visible injuries of such magnitude on the body of the deceased so as to induce PW1 to rush to the Police Station and immediately lodge a complaint. Hence if she was busy attending to her mother, it cannot be said that the First Information Statement was belatedly lodged or that the delay is fatal. 13. It is true that in Ext.P1 First Information Statement the deceased had stated that the 1 ½ acres of land was given to her daughter PW5 by way of gift at the time of her marriage. But a perusal of Ext.P5 will show that it is an outright sale. In the first place the old woman need not know the tenure of the document by which an item of property was given to her daughter at the time of her marriage. Secondly all that she meant in Ext.P1 was that an item of immovable property was given to her daughter. Hence merely from the difference in the nomenclature alone it cannot be said that Ext.P1 statement was not that of the deceased. 14. It is true that PW21, the driver of the car in which the CRL.APPEAL NO. 2334 OF 2007 :15: deceased was taken to the hospital deposed that the deceased was sitting in the vehicle and PW1 alone went inside. It must be remembered that PW21 was examined on 12.9.2007 which is 19 years after the occurrence and it is quite possible that he was not remembering the facts clearly. Anyway, we are not inclined to hold that the testimony of PW21, who recorded the First Information Statement of the deceased to the effect that the deceased herself came inside the Police Station and gave the F.I. statement is false or unbelievable. 15. Merely because Ext.P1 First Information Statement does not give the names of eye witnesses other than PW2, it cannot be concluded that the said statement was not given by the deceased. She cannot be expected to know that it is desirable to mention the names of other eye witnesses in the First Information Statement. It is also possible that PW21, who is only a Head Constable, might not have elicited that information from the deceased. 16. Equally misconceived is the argument based on the requisition given by PW23, who was, at the relevant time, the Station House Officer. If P.W. 23 had issued the requisition it was in his capacity as Station House Officer. Hence there is nothing wrong if CRL.APPEAL NO. 2334 OF 2007 :16: Ext.P1 Wound Certificate showed that the requisition was issued by Sub Inspector of Police, Pazhiyoor who was the Station House Officer. Merely because P.W.24 who was the Sub Inspector, did not issue the requisition, the requisition issued and made mention of in Ext.P10 Wound Certificate cannot be said to be the one not issued by Station House Officer. 17. The court below who had the unique advantage of seeing the witnesses and assessing their credibility was inclined to accept the testimony of PW1 and P.W.23 that Ext.P1 statement was given by the deceased. The court below has also given implicit credence to the medical evidence which clearly showed that the death of the deceased was on account of blunt injuries sustained by her on the chest, abdomen and upper limbs. Ext.P12 Wound Certificate shows multiple contusions numbering more than 11 on her head, upper limb, chest, side and back of trunk which suggest fisting and kicking. No weapons were used. We are, therefore, not inclined to hold that the accused were intentionally or knowingly causing the murder of the deceased by their acts of kicking and fisting. None of them was having any weapon in his hand. The fact that A2 and A3 who were the brother and mother respectively of the CRL.APPEAL NO. 2334 OF 2007 :17: appellant have been acquitted in S.C.No.26/1995 also cannot be lost sight of. Having regard to the entire facts and circumstances of the case, although we are not inclined to disagree with the court below that Ext.P1 constitutes the dying declaration of the deceased, even going by the acts attributed to the accused, particularly, the appellant herein , it cannot be said that there was any intention to cause death by the appellant fisting and kicking the deceased. Eventhough Ext.P12 post-mortem certificate shows the age of the deceased as 65, her age as found in Ext.P1, First Information Statement and Ext.P10 Wound Certificate is only 56 years which must be the age furnished by the deceased herself. It is only in the Post Mortem Certificate that her age is mentioned as 65 which certainly cannot be the age mentioned by the deceased. Hence we are inclined to hold that the deceased was not an aged woman who was assaulted by the accused. In any view of the matter, going by the overt acts attributed to the appellant, he only fisted the deceased over the chest, back, head and other parts of the body. Since the appellant was not wielding any dangerous weapon, the only offence which is made out against the appellant is one punishable under Section 325 IPC. Accordingly, we find that the CRL.APPEAL NO. 2334 OF 2007 :18: appellant is not guilty of the offence punishable under Section 302 IPC and he is acquitted of the same and the sentence imposed on him under Sec. 302 I.P.C. is also dislodged. Instead, he is found guilty of the offence punishable under Section 325 IPC. The appellant has been in custody since 09.11.2007. We hold that the period already undergone by him in jail shall suffice for the conviction under Section 325 IPC. Accordingly, this appeal is allowed in part altering the conviction under Section 302 IPC to Section 325 IPC and reducing the sentence to the period of imprisonment already undergone by the appellant. The appellant shall be released from prison forthwith unless his continued detention is found necessary in connection with any other case against him. Dated this the 12th day of October, 2011. Sd/- V.RAMKUMAR,JUDGE. Sd/-P.Q. BQRKATH ALI,JUDGE. ani/sj. /true copy/ P.S. to Judge CRL.APPEAL NO. 2334 OF 2007 :19: ani/-