IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI MONDAY, THE 15TH MARCH 2010 / 24TH PHALGUNA 1931 CRL.A.No. 1219 of 2006 ------------------------ SC.21/2006 of SESSIONS COURT, ERNAKULAM .................... APPELLANT: ACCUSED --------------------- SHAJI @ ILLICKAL SHAJI, S/O.HAMZA, AGED 27, KAYYATHARA HOUSE, BINNY COMPANY ROAD, PALLURUTHY DESOM, RAMESWARAM VILLAGE. BY ADV. SRI.K.V.SABU RESPONDENT: COMPLAINANT -------------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR MR. NOBLE MATHEW THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 15/3/2010 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.BASANT & M.C. HARI RANI,JJ ============================== CRL.A. NO. 1219 OF 2006 ============================ DATED THIS THE 15TH DAY OF MARCH 2010 JUDGMENT Basant,J. i) Is it safe to place reliance on the oral evidence of PW1? ii) Can the evidence about dying declaration and recovery of MO.1 on the basis of disclosure statement of the appellant be accepted and made use of to draw inspiration for the oral evidence of PW1? iii) Is the court below justified in entering a verdict of guilty conviction and sentence under Section 302 of the Indian Penal Code? These are the three questions that are raised before us for consideration on the basis of the arguments advanced by Sri. K.V.Sabu, Advocate for the appellant. 2. The appellant faces a verdict of guilty, conviction and sentence for the offences punishable under Sections 302 and CRA.1219/2006 -2- 324 I.P.C. He faces the sentence of imprisonment for life under Section 302 I.P.C. and rigorous imprisonment for a period of six months under Section 324 I.P.C. The sentences are directed to run concurrently. Set off under Section 428 Cr.P.C.is allowed. 3. The prosecution alleged that there was a dispute between PW1, brother of the deceased, and the appellant herein at about 8.15 p.m. on 27/7/2003 in a property belonging to one Hariharan. That dispute was about the refusal/failure of PW1 to give the appellant his bicycle when asked for the same. In the course of that dispute, the deceased Shibu Kumar reached the scene. He allegedly tried to save his brother PW1 from the attack of the appellant. The appellant then drew out his knife, MO.1 and inflicted injuries - one on the forehead and one on the abdomen of the deceased. An injury with MO.1 was inflicted on PW1 also. The accused allegedly went away from the scene of the crime with MO.1. The deceased and PW1 were rushed to the local hospital. The deceased was removed from one hospital to other. He ultimately succumbed to his injuries on 30/7/2003. The prosecution alleged that the appellant had thereby committed the offences punishable under Section 324 I.P.C. CRA.1219/2006 -3- (against PW1) and Section 302 I.P.C.(against the deceased). 4. Investigation commenced with Ext.P9 F.I. statement which PW9 Head Constable had allegedly recorded from the deceased while he was undergoing treatment as an inpatient at the Medical Trust Hospital, Ernakulam on 28/7/2003 at 12.30 p.m. That F.I.R.(Ext.P10) registered by PW10, it is seen, had reached the court on 29/7/2003 at 10.30 a.m. Investigation was conducted by police officials including PWs.11 and 12. A successor of them filed the final report/charge sheet against the appellant before the learned Magistrate. The learned Magistrate, after observing the legal formalities, committed the case to the Court of Session. The appellant denied the offence alleged against him and thereupon the prosecution examined PWs.1 to 12 and proved Exts.P1 to P14. Mos.1 to 3 were also marked. 5. The appellant-accused, in the course of cross examination of prosecution witnesses and when examined under Section 313 Cr.P.C. and still later while examining DWs.1 to 3, took up a fairly specific and definite stand. He did not dispute his presence at the scene of the crime. According to him, CRA.1219/2006 -4- friends were having a good time on a holiday. They had consumed alcohol. This spree of consumption of alcohol continued into the late evening of 27/7/2003. There was a free for all at about 8.30/9.00 p.m. In such free for all, the deceased, PW1, the appellant and one Ramesh had suffered injuries. It was not a case of deliberate infliction of injuries on PW1 and the deceased by the appellant as the prosecution now alleges . In some manner all the four had suffered injuries. The appellant contended that at any rate the appellant is not responsible for the fatal injury on the deceased. He examined DWs.1 to 3 on his side. Exts.D1 to D3 were marked. 6. The learned Sessions Judge on an anxious evaluation of all the relevant inputs came to the conclusion that the prosecution has succeeded in proving beyond doubt all the offences alleged against the appellant. Accordingly, the learned Judge proceeded to pass the impugned judgment. 7. Before us, Sri.K.V.Sabu, learned counsel for the appellant has advanced his arguments. The learned Public Prosecutor Sri. Noble Mathew has also advanced his arguments. The learned counsel for the appellant assails the impugned CRA.1219/2006 -5- verdict of guilty, conviction and sentence on the three grounds that we have referred to in paragraph 1 of this judgment. 8. An appellate judgment is and must be read as a continuation of the judgment of the trial court. We note that the learned Sessions Judge has adverted to all the relevant circumstances, evidence adduced as also all matters before him. Specific reference has been made in the impugned judgment to all the relevant inputs. We are, in these circumstances, satisfied that it is unnecessary for us to attempt to re-narrate the relevant facts, circumstances, materials and matters. We shall advert to the relevant materials specifically as and when we discuss the relevant aspects in the course of this judgment. 9. The prosecution primarily relied on the following pieces of evidence. 1)Oral evidence of PW1,brother of the deceased, who allegedly was present at the scene of the crime and who had himself suffered injury allegedly at the hands of the appellant with the same weapon, i.e. MO.1 2) The alleged dying declarations made by the CRA.1219/2006 -6- deceased to PW2, PW3, PW4,PW5 and PW9. 3) The evidence of recovery of MO.1 under Ext.P7 in the presence of PW7 on the basis of the disclosure statement of the appellant marked as Ext.P7(a) to PW12. 10. The question before us is whether the court below was justified from the inputs available in coming to the conclusion that the fatal injury was suffered by the deceased at the hands of the appellant. It will also have to be considered whether the case of the prosecution that PW1 also suffered injuries at the hands of the appellant can be accepted. 11. In support of its case, the prosecution wanted to examine two eye witnesses to the occurrence. PW1, the brother of the deceased and PW2 a common neighbour/friend were examined by the prosecution as eye witnesses. PW1 had suffered injuries also. Of this, PW2 turned hostile to the prosecution. He was declared hostile and was cross examined. In the course of such cross examination, Exts.P1 to P1(c), four case diary contradictions were marked. PW2 surprisingly did not subscribe to his version in the case diary before court. But his evidence shows that the deceased CRA.1219/2006 -7- and PW1 had suffered injuries at the spot identified by the prosecution as the venue of the crime. His evidence further shows that the deceased, PW1 and the accused were present and available at the scene. His evidence further shows that he arranged to take PW1 and the deceased to the hospital also from the scene of the crime. He completely deviated from his version in the case diary that he had actually witnessed the occurrence. Instead, he advanced a version that he did not see the incident but the deceased had stated to him that he had suffered the injury at the hands of the appellant. The learned counsel for the appellant contends that PW2 cannot be believed at all as he has deviated substantially from his earlier version. He has now spoken against the prosecution version that he was an eye witness to the occurrence. To satisfy the prosecution, he has now advanced this theory that the deceased had given a dying declaration to him as to how he had suffered the injury. The prosecution relied on the alleged cause narrated to PW3 and recorded in Ext.P2 wound certificate by PW3 that it was the appellant who inflicted injury on the deceased. The learned counsel for the appellant points out and we note that the CRA.1219/2006 -8- evidence of PW3 does not show that the alleged cause was narrated to PW3 by the deceased in Ext.P2. Similarly, the prosecution wanted to rely on the dying declaration made by the deceased to PW4 in Ext.P4 wound certificate. But Ext.P4 wound certificate does not reveal as to how – i.e. at whose hands, the deceased had suffered the injury described in Ext.P4. In these circumstances, counsel contended that the contents of Ext.P4 cannot be reckoned as a dying declaration. 12. The prosecution primarily relied on the dying declaration made to PW5,Doctor and recorded by him in Ext.P5 wound certificate. Ext.P5 wound certificate prepared by PW5 shows that when PW5 examined the deceased at 10.30 p.m., he found him to be conscious and well oriented. It is the specific case of PW5 that the alleged cause was narrated to PW5 by the deceased, i.e. the injured. The prosecution contends that the oral evidence of PW5 that the deceased had narrated the alleged cause recorded in Ext.P5 has got to be accepted and at any rate the said dying declaration offers convincing assurance for the version of PW1. 13. The incident took place on 27/7/2003. F.I. statement, CRA.1219/2006 -9- Ext.P9 was lodged and the F.I.R., Ext.P10, was registered on 28/7/2003. The same had reached the court at 10.30 a.m.on 29/7/2003. Thereafter, the deceased had expired on 30/7/2003. The appellant herein was arrested by PW12 on 2/8/2003. He was allegedly interrogated and in the course of the said interrogation, the appellant allegedly gave Ext.P7(a)confession statement. On the basis of the confession statement,PW12 proceeded to the house of DW3 and recovered MO.1 which was concealed outside the house by the side of the outer wall under a bag. The prosecution examined PW7, an attestor to Ext.P7. PW7 admitted his signature in Ext.P7 and was not declared hostile. However, in the course of cross examination, PW7 stated that he had not seen the accused taking the knife from its place of concealment and handing it over to PW12. 14. While the learned Public Prosecutor contends that the conclusion of the court below are perfectly justified by the oral evidence of PW1 which is duly supported by the dying declarations made by the deceased to PW2, PW5 and PW9 as also the recovery of blood stained MO.1 used for commission of the crime on the basis of the disclosure statement, Ext.P7(a) of CRA.1219/2006 -10- the appellant, the learned counsel argues that these circumstances cannot be believed at all. 15. We shall now proceed to consider the relevant circumstances. 16. PW1 was present at the scene of the crime. He had suffered an injury which, in a telltale manner, corroborates his version that he was present at the scene of the crime. It is crucial to note that even the accused does not dispute the presence of PW1, the deceased as also the appellant at the scene of the crime. The version of PW1 that he and the deceased had suffered injuries at the hands of the appellant is convincingly corroborated by the alleged cause narrated to PW3 by PW1 and recorded by PW3 in Ext.P3 wound certificate. That certificate was issued by PW3 after examination of PW1, on that night. Thus, inherently and on broad probabilities, we find absolutely nothing to doubt or suspect the version of PW1. PW2, of course, has turned hostile. Notwithstanding his hostility, it is seen that he had spoken about the alleged dying declaration made by the deceased to him. PW2, it is evident, is not a witness, who went out of his way for supporting the prosecution. If he were so CRA.1219/2006 -11- inclined, he could easily have tendered evidence in tandem with the case diary statement (contradictions) marked as Exts.P1 to P1(c). Cross examination of PW2 does not at all suggest that PW2 is an unworthy witness. Be that as it may, we shall not, in this appeal, make use of the evidence of PW2 about the alleged dying declaration made by the deceased to him for any purpose. This is not to say that we reckon PW2 as a witness who had perjured about the dying declaration. We intend only to say that we do not think it necessary to place reliance on the oral evidence of PW2 for any purpose considering the nature of the other evidence available in the case. 17. PW5 is the Doctor, who examined the deceased at the Medical Trust Hospital and issued Ext.P5 wound certificate. We find entries in Ext.P5, which shows that the appellant was conscious and oriented. It is in the wake of such record made in Ext.P5 that PW5 asserts that it was the deceased who narrated to him the alleged cause recorded in Ext.P5. There is not a semblance of data which can persuade the court to doubt the alleged dying declaration made by the deceased to PW5 recorded in Ext.P5 that the deceased suffered the injuries at the CRA.1219/2006 -12- hands of the appellant herein. We cannot afford to ignore that PW5 is an unbiased and independent Medical Officer. We find no interest for PW5 to falsely assert before the court that it was the deceased who narrated the alleged cause to her. In fact, we note that the prosecution had not brought in this evidence during chief examination and it is only in the course of cross examination that it was asserted by PW5 that the alleged cause was narrated to her by the deceased who was conscious and oriented as per Ext.P5. We do, in these circumstances, find the oral evidence of PW5 about the alleged dying declaration of the deceased recorded in Ext.P5 to be absolutely acceptable. Relying on Ext.D2 case diary contradiction of PW5, it is argued that PW5 is not a trustworthy witness. The deceased had injuries. He had to be operated upon immediately. He and his relatives were not able to raise the requisite money. That is why the operation was not done at the hospital of PW5. That is why the deceased had to be referred later to the Medical College Hospital. In these circumstances, PW5 has an animus against the appellant -accused to save the hospital from the blame of not attending to the surgery immediately, contends the learned CRA.1219/2006 -13- counsel for the appellant. We find this theory is absolutely unjustifiable. We have gone through the oral evidence of PW5 in detail. 18. Ext.D2, according to us, is only on the assessment of PW5 as to whether immediate surgery was necessary or not when she examined the deceased. Ext.D2 cannot persuade a prudent mind to doubt or suspect the version of the independent and the unbiased Medical witness (PW5) about the alleged cause narrated to her by the deceased recorded by her contemporaneously in Ext.P5. That dying declaration, we are satisfied, is absolutely inspiring and can be accepted and acted upon. 19. We have evidence of PW9, the Head Constable about the statement of the deceased, which he recorded in Ext.P9 F.I. statement. The deceased was in the I.C.U.at that time and PW9 appears to have recorded Ext.P9 on 28/7/2003 not in the presence of any Medical officer or Para Medical personnel. It is argued in these circumstances that this F.I. statement, Ext.P9 does not deserve to be accepted. In the wake of the dying declaration made to PW5 in Ext.P5, which we have already CRA.1219/2006 -14- chosen to accept , we find it unnecessary to embark on a more detailed discussion as to whether the oral evidence of PW9 about the F.I. statement recorded by him from the deceased can or need be accepted. Suffice it to say that inherently and on broad probabilities, we find no reason not to accept and act upon the oral evidence of PW9 about the genuineness of the dying declaration made to PW9 by the deceased. 20. The prosecution attempts to offer final assurance to the version of PW1 by the evidence of PW12 about the recovery of MO.1 on the basis of the confession/disclosure statement Ext.P7(a) given by the appellant to PW12 under Ext.P7. In the absence of support from the attesting witnesses, of which PW7 is one, we have gone through the oral evidence of PW12 in detail. Inherently and on broad probabilities, we find no reason to doubt or discard the evidence of PW12. It is true that PW12 is a police official. The fact that he is a police official cannot certainly persuade us to approach his testimony with any amount of doubt, suspicion or distrust. The version of PW12 about the disclosure statement and the recovery of MO.1 on the basis of such statement of the appellant is convincingly CRA.1219/2006 -15- corroborated by the contents of the contemporaneous Ext.P7 seizure mahazar. PW7, a witness who did not support the contents of Ext.P7 in greater detail admitted that he had signed as an attestor in Ext.P7. In these circumstances, we are satisfied that the convincing corroboration offered by the contents of contemporaneous Ext.P7 seizure mahazar can be used by us to draw inspiration and support for the oral evidence of PW12. 21. The learned counsel for the appellant submits that two witnesses cited by the prosecution as charge witnesses have been examined by the appellant as DWs. 2 and 3. They were cited to be examined by the prosecution as eye witnesses to the occurrence. Those witnesses when examined as defence witnesses had not supported the prosecution case. They, like the appellant, have no specific case that the deceased and PW1 suffered injuries in any other specific manner. They, i.e. the defence witnesses have no case that the appellant suffered inconsequential injuries described in Ext.D3 proved by DW1 at the hands of the deceased or PW1. They have no specific explanation as to how the appellant suffered the inconsequential CRA.1219/2006 -16- injuries referred to in Ext.D3. Ext.D3 does not give details of injuries. There is no allegation that it was a medico legal case or that the accused had suffered the injuries at the hands of any other. Suffice it to say that the oral evidence of DWs.2 and 3 or the oral evidence of DW1 and Ext.D3 do not in any way generate any distrust or suspicion against the prosecution's case. They are insufficient to generate any reasonable doubt in our mind against the version of the prosecution. 22. The learned counsel for the appellant submits that PW1 is not a trust worthy witness. Going by his version, PW1 was examined by the police official on 28/7/2003 itself even before the F.I.S., Ext.P9, was recorded. The counsel builds up an argument that Ext.P9 is not the real F.I.S. and there must have been an earlier F.I.S. This argument is built up on the statement of PW1 that the police had examined him on 28/7/2003. No police officer has a case that PW1 was examined on 28/7/2003. It is transparently evident that PW1 is getting confused about the date on which he was actually seen by the police official for recording his statement. That innocuous inaccuracy in the oral evidence of PW1 about the date on which CRA.1219/2006 -17- the police officer contacted him does not at all persuade us to reject the oral evidence of PW1. The oral evidence of PW1, according to us, gets convincing assurance from the dying declaration given by the deceased to PW5 and recorded by PW5 in Ext.P5. The final assurance for the version of PW1 is offered by the recovery of MO.1 on the basis of Ext.P7(a) disclosure statement under Ext.P7 in the presence of attestors like PW7 by PW12. We are satisfied, in these circumstances, that the oral evidence of PW1 can safely be accepted. We are unhesitatingly concur with the conclusion of the court below on that aspect. 23. The learned counsel for the appellant argues that in Ext.P9, F.I.S., the deceased had not made a specific statement that the injury,which was attempted to be planted on his chest which he avoided and which fell ultimately on his abdomen had actually landed on his abdomen. Much is attempted to be made out of this omission in Ext.P9. Exts.P9 and P10 read together clearly reveals that such a statement had actually been made by the deceased to PW9 and it was only a human error/inadequacy in the recording of the statement by PW9. PW9 does not bring credit to himself or the police force of which CRA.1219/2006 -18- he is a member by stating that he omitted to specifically record the same. But all the same, we are of the opinion that sinister significance cannot be attached to that innocuous omission/inadequacy on the part of PW9 while recording Ext.P9 F.I. Statement. The deceased had suffered the injury on his abdomen. He had stated that he suffered it at the hands of the appellant. He did state that he was attacked with a weapon. The injury, he alleged was attempted to be inflicted on his chest. He tried to escape and avoided the injury on the chest. But he omitted to state specifically that the stab landed on the abdomen. We do, in these circumstances, reckon that omission to be insignificant. 24. The learned counsel for the appellant argues that no witness had been examined who occupies the house of DW3 from the compound of which MO.1 was recovered. We note that the recovery was not from inside the house. It was concealed outside the outer wall of the house. DW3 was not available in the house. The mere fact that the womenfolk in the house were not arrayed as witnesses in Ext.P7 is, according to us, too unsatisfactory a circumstance to doubt or suspect the evidence of PW12 about the recovery of MO.1. CRA.1219/2006 -19- 25. We are, in these circumstances, satisfied that the evidence of PW1 deserves acceptance. Notwithstanding the fact that he is an injured and the brother of the deceased, we are satisfied that the evidence of PW1 supported convincingly by the dying declarations made in Exts.P5 and P9 particularly in Ext.P5. Final assurance of the version of PW1 is available from the recovery of MO.1 on the basis of the confession/disclosure statement of the appellant which led to the recovery of MO.1 under Ext.P7. We are satisfied in these circumstances that the final conclusion of fact that PW1 and the deceased suffered injuries with MO.1 at the hands of the appellant does not warrant interference at all. 26. The learned counsel for the appellant argues that one of the Doctors(PW5) to whom the deceased was taken after the incident had recorded that he was smelling alcohol. The learned counsel argues that this is in tandem with the version of the appellant that all of them including PW.1, the deceased, the appellant and DW3 were consuming alcohol at the scene of the crime. The mere fact that the deceased was smelling alcohol is no guarantee for the probability of the version of the appellant CRA.1219/2006 -20- that all of them were consuming alcohol at that scene. The very specific version of PW1 is that the deceased had come to the scene while the appellant was engaged in the altercation with PW1. If the deceased who came from outside was found to have consumed alcohol, that is no guarantee or the assurance for the version advanced by the appellant that all of them were consuming alcohol at the scene. All witnesses including the hostile witnesses had adamantly refused that there was