IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE P.BHAVADASAN THURSDAY, THE 5TH NOVEMBER 2009 / 14TH KARTHIKA 1931 CRL.A.No. 1768 of 2005(D) ------------------------- JUDGMENT DATED 2.6.2005 IN SC.173/2002 OF THE SESSIONS COURT, MANJERI ....................................................... APPELLANT: COMPLAINANT: --------------------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SHRI.NOBLE MATHEW RESPONDENTS: ACCUSED: ----------------------- 1. MADATHIL NARAYANAN, S/O. NARAYANAN MOOSAD, THRIKKANDIYOOR AMSOM & DESOM. 2. RAVINDRAN @ RAVI, S/O. VELAYUDHAN, THIRUNILATHKANDY HOUSE, THALAKKAD AMSOM. 3. SUNIL KUMAR @ SUNIL, S/O. RAMAN, KAPPALPADI HOUSE, THALAKKAD AMSOM & DESOM. 4. SURENDRAN @ SURA, CHANDANAPARAMBIL HOUSE, PUTHUPPALLY AMSOM & DESOM (SPLIT UP). 5. BALAKRISHNAN, S/O. VELUKUTTY, NIRATHALA HOUSE, THALAKKAD AMSOM & DESOM. 6. MANOJ KUMAR @ MANOJ, S/O. NARAYANAN, THALAKKAD AMSOM & DESOM. CRA 1768 OF 2005 -2- 7. SIVAPRASAD, S/O. CHELLAPPANKUTTY, KUTTIVILAYIL HOUSE, EDAMALA, QUILON. 8. NANDAKUMAR, S/O. VELUK, KOOLIPPARAMBIL HOUSE, NIRAMARUTHOOR AMSOM. ADV. SRI.P.S.SREEDHARAN PILLAI FOR R1, R3 & R5 SRI.K.B.SAJEESH SRI.P.GOPINATH SRI.C.S.SUNIL SMT.C.G.PREETHA SRI.M.PRAVEESH SRI.N.BHASKARAN NAIR FOR R2, R4, R6, R7 & R8 THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 07/10/2009, ALONG WITH CR.M.C. NO.2543 OF 2005 & CR.R.P.NO.1820 OF 2005, THE COURT ON 05.11.2009 DELIVERED THE FOLLOWING: K. BALAKRISHNAN NAIR & P. BHAVADASAN, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Crl. Appeal No. 1768 of 2005, Crl..R.P. No. 1820 of 2005 & Crl.M.C. No.2543 of 2005. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 5th day of November, 2009. JUDGMENT Bhavadasan, J, Eight persons were sought to be prosecuted for the offence of murder and also for the offence of attempt to murder. The fourth accused among them absconded. The rest stood trial. They were all acquitted of the charges levelled against them. 2. Crl. Appeal No. 1768 of 2005 has been filed by the State aggrieved by the acquittal of the accused. Crl.R.P. 1820 of 2005 is by P.W.4, namely Sumayya, who is the wife of the deceased and Crl.M.C. 2543 of 2005 is filed by P.W.22, who is the investigating officer against whom strictures were passed by the learned Sessions Judge, who tried the case. 3. The prosecution unfolds the story thus: Crl.A.1768/05 & con.cases. 2 The deceased Yasir, earlier known as Ayyappan originally belonged to the Goldsmith community. He owned a small jewellery shop. He and his wife, P.W.4, had two children then. Yasir, his wife and children converted into Islam. However, he ventured to continue his traditional avocation. P.W.2, Abdul Azeez, earlier known as Babu belonged to Thiyya community. He was working with late Yasir. Attracted by the way of life of Yasir, he too converted into Islam. 4. P.W. 4 is the wife of late Yasir. At the time of the incident, the couple had three children. Even though he embraced Islamic religion and adopted the name Yasir, he continued to visit his tarawad house occasionally to meet his mother. Gopalan, the elder brother of Yasir and his family also continued to visit Yasir and vice versa. Yasir also owned an autorickshaw bearing registration No.KL 10 C 8345. 5. On 17.8.1998, as usual, by about 10.30 p.m., Yasir along with P.W.2, Abdul Azeez, returned home from his shop. Crl.A.1768/05 & con.cases. 3 They had food and were chatting in the house. Then the younger child of Yasir developed fever. They decided to take her to a Homoeo doctor. P.Ws. 2, 4, the deceased and the sick child went in the autorickshaw owned by Yasir to see the doctor. They met P.W.16 a Homeo practitioner. On their way back home, they met Gopalan, the brother of Yasir and another person (P.W.3). The auto was stopped. Yasir asked them to get into the autorickshaw and they did so. The autorickshaw found it difficult to negotiate an ascent on the road. P.W.3 and Gopalan pushed the autorickshaw from behind. P.W.4 claims to have seen about 5 to 8 persons passing the autorickshaw going down the road. She was able to identify two of them. When the autorickshaw entered the lane to their house, P.W.4 saw the school bag and umbrella, which belonged to her daughter lying on the way. They reached home. Their elder child P.W.5 Abida, as soon as she opened the door, began to cry. When enquired about the reason, she replied that about three persons had come to the house and one of them had Crl.A.1768/05 & con.cases. 4 peeped through the window. When she asked for his name, he replied that his name was Andru. The deceased Yasir and P.W.2 then wanted to find out who those persons were. They decided to go in search of them. P.W.3 and Gopalan accompanied them. P.W.4 and her children went to sleep. 6. In the early hours of 18.8.1998 P.W.13, a fire man attached to Tirur Fire Station received a phone call. He was informed that two persons were lying injured by the side of an autorickshaw near Pazhangulanga Junction on the Kallingal road. He passed on the information to the police station at Tirur. P.W.1, the Police Constable, who was on duty at the relevant time, attended the call and he recorded the information he received in the GD kept in the station. Thereafter, he along with PC No.2949 Abdul Jabbar went to the place mentioned in the call in a trucker. They found one person with bleeding injuries lying on the road, and a little further near the autorickshaw another person also lying with bleeding injuries with his feet in the autorickshaw. The Crl.A.1768/05 & con.cases. 5 registration number of the autorickshaw was KL 10 C 8345. P.W.1 was able to recognise the injured as Yasir and Abdul Azeez. Though P.W.1 sought the help of nearby inhabitants to remove the victims to the hospital, none obliged. P.W.1 along with his companion removed the injured to the Government Hospital, Tirur. On reaching the hospital doctor examined both of them and pronounced Yasir dead. After giving first aid, P.W.2 was referred to the Medical College Hospital at Calicut. P.W.2 was unable to talk at that time. On instructions received from P.W.22, he returned to the station and registered Crime No.282 of 1998 of Tirur Police Station for the offences punishable under Sections 307 and 302 Indian Penal Code as per Ext.P1 FIR. He sent a copy of the same to his superior officer. 7. P.W.22, the then Circle Inspector of of Tirur Police Station, took over the investigation on getting information by about 2.30 p.m. on 18.8.1998 from P.W.1. He conducted inquest over the body of Yasir and prepared Ext.P4 report. He seized M.O.5 Crl.A.1768/05 & con.cases. 6 series of clothes. He sent the body for autopsy. Autopsy was done by P.W.10, Forensic Surgeon attached to MCH, Calicut, who prepared Ext.P5 report. P.W.22, the investigating officer procured Exts.P7 and P8 wound certificates relating to the victims from P.W.12, the doctor who had attended to them intially when they were taken to Government Hospital, Tirur. He then prepared Ext.P15 scene mahazar and seized about 25 items found at the spot. He recorded the statements of witnesses. Considering the seriousness of the offences and the gravity of the situation, he constituted a special squad for investigation. All that he had was the description of the physical features of some persons. Feeling suspicious, he arranged to have surveillance over the fourth accused, who was suspected to have been involved in communal riots. He was given to understand that from the date of the incident accused No.4 had not returned home. On 28.8.1998 at about 10.15 p.m. he got information that fourth accused was at home. He arrested him from there and prepared all the necessary documents. Crl.A.1768/05 & con.cases. 7 During further investigation the roles of the other accused were revealed and all were arrested except accused Nos. 7 and 8, who were not available. Based on Ext.P3(a) confession statement said to have been furnished by the first accused, M.O.1 series of swords were recovered as per Ext.P3 mahazar. As per Exts.P2(a) confession statement said to have been given by the second accused, M.O.6 torch was recovered as per Ext.P2 mahazar. On 29.8.1998 accused Nos. 7 and 8 were arrested. On 1.9.1998 after P.W.2 was discharged from hospital, his statement was recorded. P.W.22 had the materials seized by him during investigation send for chemical analysis. Exts.P20 and P21 are the reports. He filed report seeking to have Sections 143, 147 and 148 IPC incorporated. He completed investigation and laid charge before court. 8. JFCM, Tirur, before whom final charge was laid took cognizance of the offence. On appearance of the accused before the said court, all legal formalities were complied with. Crl.A.1768/05 & con.cases. 8 The learned Magistrate found that the offences were exclusively triable by a court of Sessions and therefore committed the case to Sessions Court, Manjeri. The said court made over the case to Additional District and Sessions Judge (Ad hoc) No.II, Manjeri for trial and disposal. 9. The latter court, on appearance of the accused before it, after hearing both sides, framed charges for the offences punishable under Sections 143, 147, 148, 302 and 307 read with Section 149 Indian Penal Code. The accused pleaded not guilty of the charges and claimed to be tried. Prosecution therefore examined P.Ws. 1 to 23 and had Exts.P1 to P21 marked. M.Os. 1 to 13 were identified and marked. After the close of the prosecution evidence, the accused were questioned under Section 313 of the Criminal Procedure Code. They denied all the incriminating circumstances brought out in evidence against them and maintained that they were innocent. Presumably finding that the accused could not be acquitted under Section 232 Cr.P.C., they Crl.A.1768/05 & con.cases. 9 were asked to enter on their defence. The accused had D.W.1 examined and Exts. D1 to D13 marked. On a consideration of the materials before it, the trial court came to the conclusion that the prosecution had miserably failed to establish the case against the accused and therefore acquitted the accused of all the charges levelled against them. The said acquittal is assailed in the appeal and the revision. 10. The question that arises for consideration is whether the court below was justified in acquitting the accused. 11. The fact that Yasir was attacked by a group of persons and that Abdul Azeez, P.W.2 suffered injuries are facts not in dispute. It is also not in dispute that later in the night Yasir succumbed to his injuries. Exts.P7 and P8 are the wound certificates of Yasir and Abdul Azeez respectively. Ext.P5 is the postmortem report of Yasir prepared by P.W.10. Ext.P14 is inquest report relating to Yasir. The available evidence is clear to the effect that the death of Yasir was homicidal. Crl.A.1768/05 & con.cases. 10 12. The prosecution mainly relies on the evidence of P.Ws. 2, 3, 4, 5, 6, 7, 8, 12, 14, 19 and 22 taken along with Exts.P2, P2(a), P3, P3(a), P6, P7, P9. P20 and P21 to prove its case. P.W.2 is the injured witness and P.W.3 is occurrence witness. P.W.4 is the wife of the deceased and P.W.5 is the daughter of the deceased. P.W.6 is an independent witness. While he was returning after a function, he had occasion to see accused Nos. 7 and 8. P.W.7 is the witness to the recovery of M.O.6 torch, which belonged to Yasir. Ext.P2 is the relevant mahazar. P.W.8 is the witness to the recovery of M.O.1 swords based on Ext.P3(a) confession statement said to have been given by the first accused. P.W.12 is Dr.V.M.Thomas, who had examined Yasir and P.W.2 at the first instance and Exts.P7 and P8 are the wound certificates.P.W.14 is the Magistrate, who had conducted identification parade and the report is Ext.P9. P.W.19 is the Finger Print Expert, who furnished Ext.P.11 report and P.W.22 is the investigating officer. P.W.13 is the leading fireman of the Fire Crl.A.1768/05 & con.cases. 11 Station in Manjeri, who passed on the information regarding the injured persons to P.W.1. P.W.17 is the person who had informed P.W.13 about the injured persons. Exts.P2 and P2(a) are the confession statement of second accused and the mahazar relating to recovery of M.O.6 torch. Exts.P3 and P3(a) are the mahazar and confession statement of the first accused relating to the recovery of M.O.1 sword. Ext.P5 is the postmortem certificate and Ext.P6 is the discharge certificate relating to P.W.2. Exts.P7 and P8 are the wound certificates as already noticed. Ext.P11 is the report of Finger Print Expert and Exts.P20 and 21 are the chemical analysis reports. 13. The principal witnesses in this case are P.Ws.2, 3, 4 and 5. Among them P.W.3 is an independent occurrence witness. P.W.2 was the employee of the deceased and he was injured in the incident. 14. Learned Public Prosecutor pointed out that the court below has grossly erred both on facts and in law in acquitting Crl.A.1768/05 & con.cases. 12 the accused. According to the learned Public Prosecutor, it is very unfortunate that the court below has not considered the real issues involved in the case in the proper perspective. The court below has gone on the basis of wild imaginations leading to erroneous conclusions. It was unfair on the part of the court below, to find that the entire evidence was cooked up and the documents were manipulated. The evidence of P.Ws.2 to 5 are clinching and their testimony get sufficient support from the documentary evidence also. The strain undertaken by the court below to criticize the evidence of P.Ws. 1 ,13 and 17 was unnecessary and the court below has failed to evaluate the evidence in the proper manner. The conclusions drawn are faulty and the legal principles applied are erroneous. Undue importance was given to the delay in recording the statement of P.W.2 and observations made without properly appreciating the evidence and circumstances were totally unjustified. So also the comment about P.W.3 that he was a planted witness. Unfortunately the court omitted to note that Crl.A.1768/05 & con.cases. 13 P.W.2 was an injured witness and that P.W.3 was an independent witness, who had nothing against the accused. According to the learned Public Prosecutor, equally unfortunate is the observation that police personnel were personally interested in registering a crime and to manipulate the evidence on record. The reasons given to reject the evidence of P.Ws. 1, 13 and 17, according to the learned Public Prosecutor, is, to say the least, ridiculous. The emphasis laid regarding the cause of injury in the wound certificate of P.W.2 and the deceased to reject the prosecution case, according to the learned Public Prosecutor, shows the blissful ignorance of law. Wound certificates are not intended to be a source of information regarding the identity of the accused and their purpose is entirely different. The court below has misread the evidence regarding the arrest of accused No.4 and the subsequent observations are, to say the least, very unkind and unfortunate. Learned Public Prosecutor emphasised that the oral evidence of P.Ws. 2 to 6, the recovery of M.Os. 1 and 2, the factum of Crl.A.1768/05 & con.cases. 14 identification of the accused at the identification parade, the report of the Finger Print expert Ext.P11, the chemical analysis reports Exts.P20 and P21 clearly establish that the objectionable acts were committed by the accused persons. There has been an erroneous and faulty approach by the court below and the improper way of appreciation of evidence has led to miscarriage of justice. 15. Learned counsel appearing for the defence on the other hand pointed out that the prosecution has only to blame themselves for the circumstances created by them which caused several dents in the prosecution story and made it highly suspicious. The counsel maintained that it could be very easily seen that the evidences were manipulated and they were unreal and artificial. The oral testimony of the witnesses does not appeal to common sense. The prosecution has no acceptable explanation regarding the conduct of P.W.1 in registering the FIR without an FIS. He could not have registered the crime on his own. Learned counsel also pointed out that when an information of two persons Crl.A.1768/05 & con.cases. 15 lying injured on the road was received by P.W.13, and when the Fire Station had an Ambulance, he ought to have rushed to the aid of the victims. It cannot be believed that he simply informed P.W.1 about the incident and remained passive. The court below has considered these aspects in great detail and found that the story regarding the registration of FIR is totally unacceptable for cogent reasons. The court below has also given convincing and valid reasons for discarding the testimony of P.Ws. 2 to 6. According to the learned counsel, the Finger Print's report is unhelpful in the light of the evidence given by the Finger Print Expert and his report is unreliable. The investigating officer while recovering M.O.1 swords had no case that the swords had blood stains on them and therefore chemical analysis report, which shows that there were blood stains on the swords can be of no help. The prosecution had no explanation whatsoever regarding delay in recording the statement of P.W.2, the prime witness in the case. The failure to question P.W.2 soon after the incident shows that the Crl.A.1768/05 & con.cases. 16 police officers were creating documents and manipulating the evidence to enable the real culprit to escape. P.W.3 is a chance witness. The evidence of P.Ws. 4 and 5 are too artificial to gain acceptance. 16. Learned counsel for the defence pointed out that the lower court which had the privilege of watching the demeanour of witnesses, on an impartial consideration of the evidence in the case, had come to a definite conclusion that the prosecution has failed to establish the case against the accused persons. 17. The defence counsel also cautioned this court that as an appellate court, though the court has ample power to re- appreciate and re-evaluate the evidence in the case, the appellate court should be very slow in upsetting the order of acquittal. Learned counsel stressed that unless it is found that the order of acquittal is perverse, unreasonable and unjustifiable on the basis of the materials on record, it may not be proper to interfere. It is also pointed out that if two views are possible, the one taken by the Crl.A.1768/05 & con.cases. 17 lower court should prevail. 18. Before going into the evaluation of evidence in the case in an attempt to find out whether the conclusions of the court below are proper or improper, it will be useful to ascertain the power of the appellate court while dealing with an appeal against acquittal. 19. It will be beneficial to refer to the statutory provision and precedence on the point. 20. Section 378 of the Code of Criminal Procedure deals with the right of appeal. Section 385 deals with the procedures to be followed while hearing the appeals which are not summarily dismissed, and Section 386 deals with the power of the appellate court while dealing with an appeal. For the present purpose, it will be sufficient to refer to Section 386 of the Code alone, which reads as follows: “386. Powers of the Appellate Court.- After perusing such record and hearing the appellant or his pleader, if he appears, and the Public Prosecutor, if he appears, Crl.A.1768/05 & con.cases. 18 and in case of an appeal under Section 377 or Section 378, the accused, if he appears, the Appellate Court may, if it considers that there is no sufficient ground for interfering, dismiss the appeal, or may - (a) in an appeal from an order of acquittal, reverse such order and direct that further inquiry be made, or that the accused be re-tried or committed for trial, as the case may be, or find him guilty and pass sentence on him according to law; (b) in an appeal from a conviction- (i) reverse the finding and sentence and acquit or discharge the accused, or order him to be re0tried by a Court of competent jurisdiction subordinate to such Appellate Court or committed for trial, or (ii) alter the finding, maintaining the sentence, or (iii) with or without altering the finding, alter the nature or the extent, or the nature and extent, of the sentence, but not so a to enhance the same; (c) in an appeal for enhancement of sentence- (i) reverse the finding and sentence and acquit or discharge the accused or order him to be re-tried by a Court competent to try the offence, or Crl.A.1768/05 & con.cases. 19 (ii) alter the finding maintaining the sentence, or (iii) with or without altering the finding, alter the nature or the extent, or the nature and extent, of the sentence, so as to enhance or reduce the same; (d) in an appeal from any other order, alter or reverse such order; (3) make any amendment or any consequential or incidental order that may be just or proper: Provided that the sentence shall not be enhanced unless the accused has had an opportunity of showing cause against such enhancement: Provided further that the Appellate Court shall not inflict greater punishment for the offence which in its opinion the accused has committed, than might have been inflicted for that offence by the Court passing the order or sentence under appeal.” 21. A reading of the provision relating to appeal clearly shows that the provision confer unfettered and full power to the appellate court to review the evidence. The Code places no limitation on this power. On a re-appreciation of the evidence, the appellate court is entitled to come to its own conclusion. But self Crl.A.1768/05 & con.cases. 20 imposed constrains restrict the scope of interference in the case of acquittal due to various reasons. 22. The power to re-appreciate and re-evaluate the evidence and the scope of interference with an order of acquittal have come up for consideration before various courts on innumerable number of occasions. It is unnecessary to refer all the decisions on this point. 23. In Ramachandra Reddy v. Public Prosecutor (AIR 1976 SC 1994), it was held as follows: “Mr. P.Rama Reddy for the State submitted that Ext.P2 was corroborated by the presence of at least accusd No.1 near the petrol pump slightly before the occurrence took place. The presence of accused No.1 in Tada Bazar near his village is not completely inconsistent with his guilt and being a resident of the village close by his presence in the Bazar can be explained on account of various reasons. It was then submitted that the accused had been absconding. The accused, however, surrendered within 14 days and this is not a circumstance which can outweigh the effect of Crl.A.1768/05 & con.cases. 21 the suspicious circumstances under which the dying declaration was made. It seems to us that as the deceased did not know the names of the appellants nor did he know them from before he was not able to identify his assailants and the names were supplied by P.W.2 his cousin just before the dying declaration was made. Putting the prosecution case at the highest, there can be no doubt that the view taken by the learned Sessions Judge that the dying declaration did not amount to a truthful disclosure cannot be said t be against the weight of the evidence on the record and even if the High Court was in a position to take a view different from the one taken by the Sessions Judge on the same evidence, this would not be a ground for the reversing the order of acquittal. In Ram Jag v. State of U.P. (AIR 1974 SC 606) this Court observed as follows: “Such regard