IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA MONDAY, THE 30TH AUGUST 2010 / 8TH BHADRA 1932 CRL.A.No. 271 of 2010(D) ------------------------ SC.34/2009 of SESSIONS COURT, KOTTAYAM CP.2/2009 of JUDL. MAGISTRATE OF FIRST CLASS, KOTTAYAM .................... APPELLANT(S): -------------- JOY @ KOCHU JOY, C.NO.4580, CENTRAL PRISON, THIRUVANANTHAPURAM-12. BY ADV. ADV.GOPAKUMAR G [ALUVA] STATE BRIEF RESPONDENT(S): --------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. PUBLIC PROSECUTOR SRI. K.S.SIVAKUMAR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 30/08/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.HEMA, J. ----------------------------------------------------- Crl. Appeal No. 271 of 2010 ----------------------------------------------------- Dated this the 30th day of August, 2010. JUDGMENT This appeal arises from the conviction and sentence passed against the appellant under Section 304 Part II of Indian Penal Code ('IPC' for short) to undergo rigorous imprisonment for 7 years and to pay a fine of Rs.10,000/- and in default to undergo rigorous imprisonment for one year. 2. The appellant was charge-sheeted for offence under Section 302 IPC. According to the prosecution, on 28.1.2008 at about 12 a.m., the appellant stabbed deceased Sunny with MO1 knife and inflicted injury on his abdomen. He was immediately taken to the hospital and treated there for three days. On the fourth day on 1.2.2008 at about 8.30 a.m. he succumbed to the injuries 3. According to prosecution, PW2 and the deceased Sunny are friends. The deceased Sunny is a cobbler. On the crucial night, he went to the deceased's place for having supper, as usual. The accused also came there and PW 2 was asked by the deceased to purchase a glass. PW2 asked the [Crl.A.No.271/2010] 2 deceased for money and this irritated the accused and he assaulted PW2. The deceased intervened, by asking why he was assaulting PW2 and stated that he was his friend. Immediately, the accused stabbed the deceased with a knife on his stomach. 4. On sustaining the injury, the deceased started walking to the road, and he staggered and fell down on the road, in front of PW1. According to prosecution, PW1 is a Head Constable who was on duty at the Aid Post in the Railway station and he came to the road on hearing some noise, while he saw a person coming towards him. He was found to stagger and he fell down in front of him. On seeing that he had sustained injury and his intestine had come out through the injury, he informed the police over wireless set and the police came to the scene from the police station and removed to the deceased to the hospital. 5. On the statement given by PW1, on the next day of the incident, a crime was registered under section 324 of IPC. Since the deceased died subsequently, the section was altered to section 302 IPC. Investigation was conducted and charge was laid against appellant. [Crl.A.No.271/2010] 3 6. The prosecution examined PWs. 1 to 16, marked Exts.P1 to P18 and Mos. 1 to 15. The accused was questioned under Section 313 Cr.P.C. He stated that he had not gone to Kottayam at any time in his life. (The incident happened at Kottayam, as per the prosecution case). He was taken into custody on 12.12.2008, along with another person by the police and he was taken to Fort Police Station, Trivandrum. From there, he was taken to Kottayam Police Station. The police had enmity towards the accused and that is why he is falsely implicated in this case. On the side of the accused DWs.1 and 2 were examined and Exts.C1 and C2 were also marked. 7. Considering the evidence on record, the court below found that the evidence reveals that the accused stabbed deceased and the act committed by accused falls under Section 304 part II of IPC. He was accordingly convicted under the said Section. Learned Assistant Sessions Judge found that the evidence of PW1 who lodged the First Information Statement is not of much significance. But, the evidence of PWs. 3 and PW 4 was accepted to enter a finding that the accused was present along with the deceased on the crucial [Crl.A.No.271/2010] 4 night. On the basis of the evidence of PW2, the alleged eye- witness, it was found that the accused stabbed the deceased with MO1. 8. According to the court below, there are some contradictions and omissions in the evidence of PW2, but such variations could not make any significant impact on the prosecution version on the incident. The court below also believed the evidence relating to recovery of knife (MO1), pursuant to the confession statement given by the accused, 9. Heard both sides. Perused the case records. On going through the records and on hearing both sides, I find that the most material piece of evidence in this case is the version of PW2. He is the sole alleged eye-witness to the occurrence. According to him, he had gone to the deceased, who was his friend, on the crucial night of 28.1.2008. He saw the deceased and the accused having liquor. In the meantime, the accused assaulted PW2 while the deceased asked him why he was assaulting his friend, addressing the accused as 'Kochu joy'. The accused immediately aimed a stab at PW2, while the deceased came in between, and the stab fell on the deceased's stomach. PW2 also deposed that on sustaining the [Crl.A.No.271/2010] 5 injury, the accused went to the road and fell down on the road. 10. PW1 gave evidence that he was working as the Head Constable in the traffic police station, and on the crucial day, he was on duty at the Railway Aid Post. He went to the road on hearing some noise, while the deceased was found staggering on the road and he fell in front of him. He immediately informed the matter to the Police Station. The police reached there, and he was taken to the Medical College Hospital, Kottayam. PW12, the doctor examined the accused at the hospital. He was subjected to an emergency operation and the deceased was treated there for 3 days. On the fourth day, on 1.2.2008 at 8.30 a.m. he succumbed to the injuries. 11. PW1 gave the first information statement on the next day i.e. on 29.1.2010 at about 8.30 a.m. The F.I.R. was registered under Section 324 IPC, but the Section was altered to Section 302 IPC after the death of deceased on 1.2.2008. The accused was arrested on 15.12.2008 and pursuant to a disclosure statement made by him, MO1 knife which was kept hidden near the entrance to the railway station was recovered. After the completion of investigation, charge-sheet was laid against the appellant under Section 302 IPC. [Crl.A.No.271/2010] 6 12. on a reading of the evidence of PW2, it is clear that the incident happened all of a sudden and his definite case is that the only overt act committed by the accused on the deceased was infliction of a single stab with the knife, MO1. But, the medical evidence (which consists of oral testimony of the doctors and Exts.P8 and P7, the wound certificate and post mortem certificate) is not consistent with such evidence. As per the post-mortem certificate there were as many as 9 other injuries of considerable measurement on the body of the accused. 13. Injury nos. 1 to 9 in the post-mortem certificate Ext.P7 include an abraded contusion with healing edges on back of left shoulder, 3x1.5 cm transverse, 6 cm below tip of shoulder; recently healed abraded contusion on outer aspect of right thigh 3 x 3 cm, 9 cm below tip of shoulder; another recently, healed abraded contusion on anterior superior illiac spine region of right side 2.5 x 0.5 cm vertical; recently healed abrasion on top of out region of right shoulder 4 x 3 cm transverse and various other injuries of considerable nature including recently healed abraded contusion on front right knee 11 x 5 cm. There are also other injuries of considerable [Crl.A.No.271/2010] 7 measurement and description on the body of the deceased. The nature of injuries and the site of injuries are such that that prosecution ought to have explained the injures. 14. There are recently healed or partly healed injuries on the deceased at the time of conducting postmortem examination. It is in evidence that the injured was treated in the hospital for three days after the incident, that too after a surgery. It is likely that he would have been given post- surgical care. It is brought out from the evidence of PW11, the doctor, who conducted post-mortem examination that injuries 1 to 9 mentioned in Ext.P7 could be caused by an attack on the deceased with hard object. 15. But, no investigation seems to have been conducted to find out how the deceased had sustained the various injuries described in the wound certificate or post-mortem certificate. The injuries detailed as injury nos. 1 to 9 in the post-mortem certificate are quite significant and those cannot be ignored. The sole eye-witness to the occurrence did not explain such injuries. Hence, the inference would be, either he did not witness the incident or that he is not speaking the truth abut the incident. The lower court did not make any [Crl.A.No.271/2010] 8 probe into this aspect or felt the need to ascertain how the injuries could have been caused while appreciating the prosecution case and the evidence adduced by it. 16. PW2 is the sole eye witness and his case is that the deceased sustained only a single stab wound on the stomach. He has no case that the deceased sustained any injuries other than the single stab wound. Had the injuries other than the fatal injury been sustained during the course of incident, in an attack with hard object, as stated by PW11, it will necessarily cast a doubt on the veracity of the version given by the eye witness who said that the deceased was stabbed only once. If PW2 was actually a witness to the occurrence, normally, he would have been in a position to explain the major injuries which were inflicted during the course of incident. 17. If the evidence of sole eye-witness, PW2 does not gain support from medical evidence, the court must have been cautious, while acting upon the same to convict a person. The evidence of the sole witness being contradictory to other scientific evidence and is tainted due to certain discrepancies and omissions, the court ought to take greater care while placing reliance upon the same. [Crl.A.No.271/2010] 9 18. Admittedly, PW2 did not inform the police about the incident on any date, though the deceased was his own friend. He also did not take any effort to give any medical aid to the deceased. He also did not cause any alarm to attract the attention of anybody for rescuing the deceased. He also did not do any thing to prevent the accused from escaping. 19. The incident having been taken place near the railway station, it would have been quite easy for PW2 to attract the attention of people of the locality. But his conduct is strange. PW2 was questioned only after 3 days of the incident and that too, only on the date of death of deceased Sunny. Though the deceased was in the hospital for about 4 days, it is not clear whether he gave any statement to doctor regarding the incident, during treatment. No document is produced by prosecution relating to treatment and post- surgical treatment. 20. There is another aspect which is worthy of consideration. It has come out from the evidence that at the time when the deceased Sunny was examined by the doctor, for the first time, after the incident in the hospital, the alleged cause of injury was stated to be an attack with “one-sided [Crl.A.No.271/2010] 10 serrated edged weapon”. The evidence of PW 12 and the wound certificate, Ex P8 show that the doctor was specifically told about the details of the weapon which was used for the offence and those were recorded by the doctor in Ext. P8 also. If that be the case, who was that person, who saw the weapon which was used for the offence? Who could be the person who could give such a clear description of the weapon to doctor within a short period after the incident. Was there any other eye-witnesses than PW2? Who gave the details to the doctor and why such person was not examined by the prosecution? The prosecution/Investigating machinery is silent about it. 21. It is also relevant to note that though the deceased was referred to as “Sunny” by the prosecution, the doctor has noted even the actual name of the deceased as “Saji Joseph” in Ext.P8. It appears from Ext.P8 that there was a by-stander for the deceased. Who was that person? According to the doctor, it was the police personnel who told the doctor that it was an assault by “one-side serrated edged knife”. But, no probe is made to find out whether such police official was an eye witness to occurrence or, if he is not an eye witness, [Crl.A.No.271/2010] 11 from whom did he come to know about the details of the weapon and the correct name of the deceased who had seen the weapon. 22. No probe is made to find out whether there was any other eye witness than PW2, to the occurrence, who could see the knife which was used for the offence and who could give its clear description to the doctor. The above aspects cannot be brushed aside lightly because, the present prosecution case is that a knife was recovered pursuant to a statement given by accused under Section 27 of the Evidence Act. 23. It is also relevant to note that though the deceased Sunny was hospitalised for 3 days and he was treated, no effort was taken to ascertain whether he was conscious at any time before his death or whether he made any statement to the doctor regarding the assailant or the knife. The doctor who actually treated the deceased after surgery is not questioned. 24. Medical records relating to the treatment given to the deceased are not looked into by the investigating officer. Those are not seized nor produced. It is likely that within the period of more than 3 days, deceased might have regained [Crl.A.No.271/2010] 12 consciousness and the treatment record might reveal such facts. This is specially so, since the details of weapon is recorded in the wound certificate itself. It was necessary for the investigating agency to ascertain who was the assailant, as per the version of the deceased. It is not explained whether any steps were taken to record the dying declaration. It is pertinent to note that It is pertinent to note that nobody stated that throughout the period of treatment, the deceased was unconscious. 25. Apart from all these, PW3, a police constable gave evidence that he saw the accused and the deceased in the company of PW2 at 9.30 p.m., on the road and he made enquiries about them etc. PW2 has no case that he was present on the road in the company of the accused and the deceased at any time on the date of occurrence or that PW3 saw them or made enquiries with them. If the case of PW2 is accepted, there could be little chances for anybody to see the deceased and PW2 in the company of the accused on the road. His case is that the incident happened immediately on his seeing accused and deceased together, but it was not from the road. [Crl.A.No.271/2010] 13 26. In short, a deeper scrutiny of the evidence of PW2 ought to have been made, and it should have been tested against other evidence like medical evidence, the evidence of PW3 etc. But, such a probe is not seen made by learned Additional Sessions Judge while appreciating the evidence. There are various vital questions which must ordinarily occur to the mind of a judge, who takes up a treasure-hunt for truth by assessing the worth of the prosecution case. There are certain facts in this case which may raise a reasonable doubt in the mind of the court regarding various aspects. Such doubts ought to have been cleared. 27. In the absence of explanation from the side of the prosecution on the various aspects, it will not be proper to convict a person, by merely relying upon, whatever was orally stated by the sole alleged eye witness, PW2. His evidence ought to have been tested on the touch-stone of other evidence and circumstances. The prosecution ought to have been asked to clarify the various aspects by evidence and circumstances. A more detailed probe ought to have been made by the court into the various vital facts. Without getting a clear picture of what had transpired, the [Crl.A.No.271/2010] 14 lower court ought not to have entered a conviction. 28. Many aspects required a deeper scrutiny in the light of what is discussed by me in this judgment. Such an exercise would be essential to take a right decision in the case. In the absence of sufficient evidence or materials on record, such doubts cannot be cleared. At the same time, based on the materials now available in court, if the accused is acquitted, I am of opinion that it will result in miscarriage of justice. 29. In my considered opinion, the case needs to be remanded for fresh consideration and disposal. The trial court may re-call and re-examine any witness or witnesses as the court may deem fit and proper, to take a right decision in this case. If found necessary, it is left to the trial court to examine even other witness who is not examined and also insist upon production of the relevant any documents. The court may also recall any witnesses or examine any witness or insist for production of denouement either at request of the prosecution or the defence or even suo motu as the court may deem fit and proper. 30. The lower court will be at liberty to look into all the aspects discussed in the judgment and also the needful, in [Crl.A.No.271/2010] 15 accordance with law, as the court may deem it fit and proper. Anyway, it may not be proper to convict or acquit an accused on the basis of the evidence which is at present available on record. In the result, the following order is passed: (1) The conviction and sentence passed against appellant are set aside. (2) This case is remanded to the trial court for fresh consideration and disposal, in accordance with law, in the light of the observations made in this judgment, after giving notice to both sides though counsel. (3) Being an old case, this case shall be disposed of, within four months from date of receipt of this judgment. This appeal is allowed by way of remand. Sd/- K.HEMA, JUDGE. krs. [Crl.A.No.271/2010] 16 K.HEMA, J. ----------------------------------------------------- Crl. Appeal No. 271 of 2010 ----------------------------------------------------- Dated this the 30th day of August, 2010. JUDGMENT