IN THE HIGH COURT OF KERLA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR.JUSTICE P.S.GOPINATHAN MONDAY, THE 29TH MARCH 2010 / 8TH CHAITHRA 1932 CRL.APPEAL NO.1146 OF 2005. ------------------------ (AGAINST THE JUDGMENT DATED 4.2.2003 IN SC.NO.258/2001 OF THE SESSIONS COURT, THRISSUR) APPELLANT:COMPLAINANT: --------------------- STATE OF KERALA, REP: BY DEPUTY SUPERINTENDENT OF POLICE, (THRISSUR THROUGH THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM. (CRIME NO.210/1997 OF PEECHI POLICE STATION ) BY SRI.NOBLE MATHEW, PUBLIC PROSECUTOR. RESPONDENTS:ACCUSED: ------------------- 1. MOHANAN, S/O.KANIYAPARAMBIL KOCHUNNY @ KRISHNANKUTTY, PEECHI VILLAGE, THEKKUMPADAM. 2. KRISHNAKUMAR, S/O.VADAKKUMCHERI VEETTIL CHANDRAN, PULIAZHI VILLAGE, OLARIKKARA DESOM. ADV. SRI.P.VIJAYA BHANU THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 08/03/2010, THE COURT ON 29/03/2010 DELIVERED THE FOLLOWING: K.BALAKRISHNAN NAIR & P.S.GOPINATHAN, JJ. = = = = = = = = = = = = = = Crl.Appeal No.1146 of 2005. = = = = = = = = = = = = = = Dated this the 29th day of March, 2010. J U D G M E N T Gopinathan, J. Appeal by the State assailing the judgment of acquittal in Sessions Case No.258/2001 on the file of the Sessions Judge, Thrissur. The Deputy Superintendent of Police, Thrissur prosecuted the respondents herein, the accused before the trial court, alleging offence under Section 341 and 302 read with Sec.34 IPC and Sec.3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. By judgment dated 4.2.2003, the learned Sessions Judge acquitted the respondents under Sec.235(1) of the Code of Criminal Procedure and set them at liberty. Aggrieved by the judgment, this appeal was preferred. 2. The prosecution case is that deceased Baiju, Son Crl.Appeal No.1146/2005. -: 2 :- of Pw5, Saraswathy, belongs to Hindu Vettuva community which is a schedule caste as per Scheduled Castes/Scheduled Tribes (Prevention of Attrocities) Act, 1989. Respondents belong to Hindu Ezhava community which is neither scheduled caste nor scheduled tribe. Respondents, themselves, are alleged to be relatives. The first respondent has a daughter by name Sheena. Deceased Baiju and Sheena were in love. Though Pw5 and others put forward a marriage proposal, it was declined by the first respondent and others on caste consideration. Because of the affair between the deceased Baiju and Sheena, the respondents were nurturing enmity against Baiju. 3. The deceased Baiju was residing in K.E.R.1 Staff Quarters near Peechi Dam. Pw1, a friend of Baiju, is one of his neighbours and was residing in yet another staff quarters. On 26.12.1997 at 4.30 p.m. deceased Baiju and Pw1 proceeded to Mannuthy on a motor cycle ridden by the deceased Baiju. They roamed around the house of Sheena. Crl.Appeal No.1146/2005. -: 3 :- While roaming, they met one of their friends, Shiji and they went for food in Green City Hotel at Pattikkad. By the time, they came to know that there was an NSS programme at Pattikkad school. Baiju and Pw1 decided to go there. They went to the nearby petrol pump, replenished fuel and proceeded. When they reached near Kuruveli Shopping Complex they took a turn hoping that they could go to the school through the road passing through the shopping complex. After proceeding a little ahead, they understood that they were in a wrong route. Pw1 asked Baiju to take a turn. While turning the motor cycle, the first respondent rushed to them and Baiju was stabbed at his chest and abdomen. To facilitate the stabbing, second respondent restrained Baiju by holding at his shoulder. Baiju and Pw1 fell down along with the motor cycle. Pw1 got up and rushed to the nearby police aid post and with the help of a police constable on duty, lifted Baiju with the knife in situ to the Medical College Hospital, Thrissur, where Pw6 was Crl.Appeal No.1146/2005. -: 4 :- working as a Lecturer. Pw6 examined Baiju and declared dead. Leaving the body of Baiju at the hospital, Pw1 went to the Peechi police station wherein Pw7 was the Sub Inspector. He informed the matter. Pw7 recorded the statement given by Pw1 at 9.00 p.m. and registered a case as Crime No.210/97 for offence under Sec.341 and 302 read with Sec.34 IPC. Ext.P1 is the first information statement and Ext.P1(a) is the first information report. 4. Pw8, the Circle Inspector of Police, Ollur took over the investigation. He proceeded to the Medical College Hospital and seized MO1 knife which was handed over to him by Pw6, who removed the same from the body and kept in his custody. Ext.P3 is the seizure mahazar. He conducted inquest on the dead body and prepared Ext.P4 Inquest Report. While preparing the inquest report he seized the jeans, shirt, baniyan, brief, shoes and leather belt worn by the deceased, which were marked as MOs.4 to 9. Pw8, then proceeded to the spot of occurrence and Crl.Appeal No.1146/2005. -: 5 :- prepared Ext.P5 scene mahazar. From the spot of occurrence, he seized a cap, spects, watch, chappals and blood stained clothes which were marked as MO2 and MOs.10 to 13. He, then went to the house of the first respondent bearing Door No.PP.V/336. A lorry bearing registration No.KLH 7713 was seen parked in a shed adjacent to the house of the first accused. Lorry was seized on the strength of a mahazar which was marked as Ext.P6. The left handle of the lorry and the number plates were found stained with blood. That blood was collected with a piece of cloth which was marked as MO14. 5. On 3.1.1998, the respondents were arrested. When interrogated, the first respondent stated that he had kept the clothes at his property and in the event he was led to that place, he would take it and hand it over. Accordingly, Pw8 went to the house along with the first respondent and seized two shirts, one lunki and one double dothi kept packed in a plastic cover. Ext.P7 is the seizure Crl.Appeal No.1146/2005. -: 6 :- mahazar. MOs.15 to 19 are the articles so seized. The material objects seized were forwarded to the Chemical Examiner and obtained Ext.P10 certificate. Ext.P11 is a certificate certifying the community of the deceased. Pw8, on finding that offence under Sec.3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act was also disclosed, a report was filed to that effect. Further investigation was conducted by the Deputy Superintendent of Police who forwarded the final report to the Court of the Judicial Magistrate of the First Class-III, Thrissur, wherein it was numbered as CP.No.23/2000. 6. Finding that the main offences alleged are exclusively triable by a Court of Session, the learned Magistrate, after complying with requisite procedures, committed the case to the Court of Session by order dated 8.2.2001. The learned Sessions Judge took cognizance and issued process to the respondents who were released on bail during the investigation stage. On their appearance, Crl.Appeal No.1146/2005. -: 7 :- after hearing the prosecution and the respondents, charge for offences under Sec.341 and 302 read with 34 IPC and Sec.3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 was framed. The respondents pleaded not guilty. So, they were sent for trial. On the side of the prosecution, Pws.1 to 9 were examined. Exts.P1 to P12 and MOs.1 to 19 were marked. During the course of the cross examination of Pws.1 and 2, certain portions of their case diary statements were marked as Exts.D1 and D2. When questioned under Sec.313 of the Crl.P.C., the respondents took a defence of total denial and further stated that they were implicated due to political motive. No defence evidence was let in. The learned Sessions Judge on appraisal of the evidence arrived at a finding that the prosecution failed to establish the offences alleged. Consequently, the respondents were acquitted. 7. To prove the occurrence, the prosecution examined Pws.1 to 3 of whom Pw3, a neighbouring shop Crl.Appeal No.1146/2005. -: 8 :- keeper turned totally hostile. Pws.1 and 2 had given evidence supporting the prosecution. 8. Pw1 had deposed that he along with late Baiju proceeded from their house at 4.30 p.m. on 26.12.1997 on a motor cycle belonging to Pw1. They went through the side of the house of the first respondent. Baiju was in love with the daughter of the first respondent. On the way they met their friend Shiji. They spent some time along with Shiji and replenished petrol in the Bike from the nearby petrol pump and then they had their food from a hotel. While so, they knew that there was a programme of NSS at Pattikkad school. They proceeded to the school. On the way to the school they took a turn near the Karuveli shopping complex. Immediately they felt that they were on wrong route. Pw1 asked Baiju, who was riding the motor cycle, to take a turn. While they were turning the motor cycle, the respondents rushed to them and the first respondent stabbed three or four times at the chest and abdomen of Baiju. The 2nd Crl.Appeal No.1146/2005. -: 9 :- respondent caught Baiju at his shoulders from back and thus restrained him. As a result of assault, both the riders fell down along with the motor cycle. Pw1 rushed to the nearby police aid post and requested for help. By the time the respondents left the scene. Baiju was lifted to the Medical College Hospital with knife in situ. For lifting Baiju, police constable on duty at the Aid Post and others assisted. The Doctor, after examining Baiju, declared him dead and that MO1 was the knife with which Baiju was stabbed and that he reported the matter to the police and that Ext.P1 is the first information statement. It was further deposed that while they were proceeding to Mannuthy, the second respondent was standing in front of the house of the first respondent and that when the incident occurred there was power cut. But, there were emergency lights in the nearby shops. It was also deposed that Baiju had told him that the first respondent was not interested in the love affair. Crl.Appeal No.1146/2005. -: 10 :- 9. Pw2 had deposed that he was running a cool bar near Peechi Police Station and that on 26.12.1997 between 7.00 and 7.30 pm. while he was waiting for a bus at Pattikkad bus stop, late Baiju and Pw1 were found riding a motor cycle. Following the motor cycle there was a lorry. Motor cyclist took a turn to the shopping complex. The lorry went a little ahead and stopped. The respondents alighted down from the lorry and they went to the motor cycle. The first respondent stabbed Baiju, the rider at his chest and abdomen with a knife and that while the first respondent was stabbing, the second respondent had been holding Baiju and that after stabbing Baiju, respondents returned to the lorry and drove away. He had also deposed that he could witness the incident in the light from the emergency lamps kept in the nearby shops and from the headlight of the vehicles passing thereby. Baiju was taken to the hospital. He had further deposed that Baiju was murdered since the first respondent was not agreeable to Crl.Appeal No.1146/2005. -: 11 :- get his daughter married to Baiju, who had been loving her and that Pw2 had heard that Baiju was intimidated by the first respondent. 10. Pw6, who was working as Lecturer in Medical College, Thrissur had deposed that Baiju was brought dead to the hospital with knife in situ. He took out the knife from the body, kept in the hospital and handed it over to the investigating officer on the next day. 11. Pw9, the Asst.Professor of Forensic Medicine, Medical College, Thrissur had deposed that at 12.30 p.m. on 27.12.1997 he conducted autopsy on the body of Baiju and that Ext.P12 is the postmortem certificate issued by him. Pw9 had noticed the following 12 wounds: 1. Incised penetrating wound 5 x 2.3 cm horizontally placed on the front of chest in midline, 9 cm below upper end of sternum. Both ends were sharply cut. The sternum was separated. The wound entered the left chest cavity through 5th intercostal space and terminated in the upper lobe of left lung by a cut 2.3 cm long 1.2 cm deep. The left lung was collapsed and the left chest cavity Crl.Appeal No.1146/2005. -: 12 :- contained 600 ml of blood. The wound was directed backwards and to the left for a total minimum depth of 6.5 cm. 2. Incised penetrating wound 6.3 x 2 cm obliquely placed on the right side of front of abdomen. Both ends were sharply cut. The upper outer end being 7.5 cm to the right of midline and 10 cm below and inner to right nipple. The wound entered the chest and abdominal cavity by cutting through the 8th space and 7th costal cartilage, cut the diaphrum and terminated in the right lobe of liver by a cut of 10.8 cm long and 6.5 cm in depth. The abdominal cavity contained 800 ml of blood. The wound was directed backwards and downwards for a total minimum depth of 9.5 cm. 3. Incised penetrating wound 4 x 1.6 cm obliquely placed on the right side of front of abdomen 0.9 cm below, injury No.2. Both ends were sharply cut. The wound entered the abdominal cavity and transfixed the mesentery and omentum and terminated in the right posterior abdominal wall between 11th and 12th ribs. The wound was directed backwards and downwards for a depth of 2.05 cm. 4. Superficial incised wound 1.2 x 0.3 cm obliquely placed on the right side of front of chest 3.5 cm above and inner to right nipple. 5. Abrasion 2.5 x 1.7 cm on the front of left leg Crl.Appeal No.1146/2005. -: 13 :- 11 cm below knee. 6. Incised punctured wound 4.5 x 2.2 cm obliquely placed on the front of left thigh, the lower inner end 13 cm above knee. The upper end showed a side cut of 2.3 cm upwards and inwards. Both ends were sharply cut. The wound directed downwards and inwards for a depth of 8 cm. 7. Superficial incised 1 x 0.2 cm on the inner aspect of left hand between 1st and 2nd finger 7 cm above from the tip of thumb. 8. Two superficial incised wounds 1.2 x 0.2 cm; 1 x 0.2 cm, placed one above the other at 0.8 cm apart on the inner border of proximal segment of left 2nd finger. 9. Multiple small anrasopms over an area 2 x 1.6 cm on the back of left elbow. 10. Incised wound 5.2 x 1.4 x 4 cm obliquely placed on the left side of back of abdomen. Both ends were sharply cut, the lower inner end 5 cm to the left of midline and 10.6 cm above giuteal line. 11. Superficial incised wound 1 x 0.4 cm on the right sides of back of trunk 9 cm to the right midline and 13 cm below lower end of shoulder blade. 12. Superficial incised wound 1.2 x 0.4 cm obliquely placed on the left side of front of Crl.Appeal No.1146/2005. -: 14 :- abdomen 20 cm below left nipple 5 cm to the left of midline. 12. Pw9 had further deposed that injury Nos.1 and 2 were individually capable of causing death in the ordinary course of nature. Injury Nos.1 to 4, 6 to 8 and 10 to 12 would be caused with weapon like MO1. The wounds were inflicted with a double edged weapon. Injury Nos.7 and 8 would be caused while defending the attack. Injury Nos.5 to 9 would be caused due to fall on a rough surface and that the injuries were sustained within seven hours of his last meal. The cause of death deposed by Pw9 was not at all challenged in cross examination. By the unchallenged evidence of Pw9, it is convincingly established that death of Baiju was a homicide. The question then remains is as to whether the respondents did it or not? 13. Pw1 was subjected to a searching cross examination. Only one contradiction was brought out in his evidence. During the course of investigation, on 3.1.1998 Crl.Appeal No.1146/2005. -: 15 :- when Pw8 questioned Pw1 pointing out, presumably the second respondent, it was stated that the motor cycle was restrained by him. In the box he had denied of having seen the motor cycle restrained by any person. Other than that, there is no contradiction and his evidence supports the prosecution case in all material particulars. Ext.P1 first information statement would also corroborate with the evidence of Pw1 in material particulars. 14. It is the very case of the prosecution supported by the evidence of Pw1 that on the eve of the incident, Pw1 along with deceased Baiju had been roaming round on a motor cycle ridden by the deceased. They had proceeded to Pattikkad school where there was a programme. They took a turn near a shopping complex. After moving a little ahead they understood that they were on the wrong way and while turning the motor cycle the incident occurred. In the evidence, the registration number of motor cycle was not at all brought out. In Ext.P1 the registration number of the Crl.Appeal No.1146/2005. -: 16 :- motor cycle is mentioned. It was also stated that the motor cycle was belonging to Pw1 and the deceased was riding the same and that due to the stab, the deceased and Pw1 along with the motor cycle fell down. Pw8 had been to the spot of occurrence for preparing Ext.P5 scene mahazar. The motor cycle was lying near the spot of occurrence. The number of the motor cycle was noted as KL-8/E 1133 in Ext.P5. That is the very number mentioned in Ext.P1. The blood stain found on the floor was collected by Pw8 with the help of a cloth. Regarding the spot of occurrence, there is no challenge in cross examination. Blood stains on the ground and the motor cycle lying on the spot lend support to the evidence of Pw8 regarding the spot of occurrence. The fact that Pw1 and the deceased were friends and while they riding the motor cycle, the unfortunate incident occurred, was not challenged in cross examination. Pw1 had also deposed that the knife with which Baiju was stabbed was in situ in the wound. That evidence was Crl.Appeal No.1146/2005. -: 17 :- corroborated by the testimony of Pw6. It was Pw6, who removed the knife from the wound and handed it over to the investigating officer. That evidence of Pw1 is corroborated by Ext.P1. In Ext.P1 it is stated that deceased was stabbed twice or thrice. In the box he had deposed that the deceased was stabbed three or four times. Injuries found on the deceased would show that there were number of insiced wounds. We find that, for that reason, it may not be appropriate to disbelieve Pw1. Rather than the number of stab, the fact is that the deceased was stabbed more than twice. In the situation revealed out in this case, Pw1 may not be exact in counting the stabs. The medical evidence supports the evidence of Pw1. 15. Ext.P1 would show that it was given by Pw1 at 9 pm. on the same day. But in the box he had deposed that the statement was given at 8 or 8.30 am. on the next day. However, the Prosecutor didn't care to clarify the same. He ought to have done it. The evidence of Pw7, who recorded Crl.Appeal No.1146/2005. -: 18 :- Ext.P1, would show that Ext.P1 was given by Pw1 at 9 pm. on the very same day. There is no suggestion to Pw1 or Pw7 that Ext.P1 was later concocted. There is no suggestion to Pw7 that there was any delay in forwarding Ext.P1 and Ext.P1(a) to the court. Ext.P1(a) would show that it was seen received in court at 2.15 p.m. on 26.12.1997. It appears that the date shown is not correct. It might be 27.12.1997 at 2.15 pm., because the incident alleged itself was happened at 7.30 pm. on 26.12.1997. The evidence of Pw8 who investigated the case would show that he reached the casualty department of the Medical College Hospital, Thrissur at 8 am. At what time he got information is not brought out. Pw8 had seized MO1 at 8 am. after preparing Ext.P3 seizure mahazar. Crime number is noted in Ext.P3. There is no suggestion to Pw8 that he went to the Medical College Hospital, Thrissur before Ext.P1 or before registering the crime. Such being the evidence of Pws.7 and 8, it appears that the time and date of the first Crl.Appeal No.1146/2005. -: 19 :- information statement mentioned by Pw1 in Court is either a slip of tongue or because of the faded memory. Pw1 was examined 4 years and 11 months after the occurrence. So, the possibility for fading memory cannot be ruled out. We find that Ext.P1 was given at 9.00 pm. on the very same day as noted in Ext.P1 and deposed by Pw7 and there was no delay at all. 16. There is no case for the defence that the crime was committed at a different place or in any other manner or that it was not Pw1 who had taken Baiju to the hospital. What was suggested to Pw1 in cross examination is that the respondents were implicated due to suspicion. Pw1 had denied the same. It is not disputed that Pw1 was familiar to respondents. The name of the assailants and the address of the first assailant were specifically mentioned in Ext.P1 also. Of course, we do not forget that Pw6 had deposed that it was stated to him that an unknown person was the assailant. We cannot ignore the fact that Pw6 was not in Crl.Appeal No.1146/2005. -: 20 :- the process of investigation, but he was examining the victim. So, he might not have been very particular to enquire as to who was the accused or to record the name of the assailant in the register. So long as the medical officer attending a medico legal case has no machinery to cross check the correctness of the statements given by the bystanders and they have no role in investigation, their query to the bystanders is to understand the cause and not the assailants. Probably, he might have seldom cared as to who was giving information. In the event, he was not informed about the name of the assailant, he may record in the manner stated by him. In the evidence of Pw1, it was not revealed that Pw1 had stated to Pw6 about the assailant. So, the evidence of Pw6 that it was stated to him that the assailant was an unknown person has no significance because, no other person who had witnessed the occurrence had been to the hospital. Someone who had not seen the incident might have stated so to Pw6. From the very inception of the crime itself the assailants names were mentioned by Pw1. In Ext.P1, Pw1 had even stated the address of the first Crl.Appeal No.1146/2005. -: 21 :- respondent as well as the motive. Of course, the motive as stated in Ext.P1 was not brought in evidence. What was brought in evidence is that the deceased was in love with the daughter of the first respondent and that the first respondent was not interested in it. Since the motive is very specifically alleged in Ext.P1, the Public Prosecutor ought to have put it to Pw1 while he was in the box, but, not done. It appears that it was an omission by the Public Prosecutor. However, it is not disputed that the assailants are not familiar to Pw1. So, there is little chance for mistaken identity. 17. It was suggested to Pw1 that Baiju, who was an active worker and a leader of DYFI, had some conflict with BJP workers. Pw1 had deposed that he was not aware