IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN TUESDAY, THE 26TH MAY 2009 / 5TH JYAISHTA 1931 CRL.A.No. 1769 of 2005() ------------------------ SC.126/2005 of ADDL.SESSIONS COURT (ADHOC), KOTTAYAM .................... APPELLANT(S): -------------- 1. AJEESH, S/O.KESAVAN, PUTHEN PARAMBIL HOUSE, VELOOR KARA, VELOOR VILLAGE, KOTTAYAM. 2. LEELAMMA, W/O.KESAVAN, PUTHEN PARAMBIL HOUSE, VELOOR KARA, VELOOR VILLAGE, KOTTAYAM. BY ADV. SRI.SURESH BABU THOMAS SRI.P.RAVINDRA BABU SRI.M.P.MADHAVANKUTTY RESPONDENT(S): COMPLAINANT -------------------------- STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.S.U.NAZAR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 26/05/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: A. K. Basheer & P. S. Gopinathan, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Crl.A. No. 1769 of 2005 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 26th day of May, 2009. Judgment Basheer, J: Appellants were tried for the offences punishable under Sections 109 and 302 read with Section 34 Indian Penal Code. The trial court found appellant No.1 guilty under Section 302 IPC and accordingly convicted and sentenced him to undergo imprisonment for life and also to pay a fine of Rs.10,000/- and in default of payment of fine to undergo rigorous imprisonment for a further period of one year. Appellant No.2, the mother of appellant No.1, was acquitted of the charge under Section 302 IPC. However she was found guilty under Section 109 read with Section 323 of the Indian Penal Code and convicted and sentenced to undergo simple imprisonment for six months and to pay a fine of Rs.500/- with a default sentence of simple imprisonment for one month. The above order of conviction and sentence is under challenge in this appeal. 2. The prosecution case in brief was that the victim Sajan had gone to the courtyard of the residence of the appellants at about 6.15 p.m. on March 20, 2003 and picked up a quarrel with them. When deceased Sajan refused to go away from the courtyard in spite of repeated demands made by appellant No.1, his mother (accused No.2) had allegedly instigated her son (accused No.1) to give him a thrashing and send him away. Thereupon appellant No.1 had gone inside the house and come out with a cricket bat and hit the deceased Crl.A.1769/2005 2 on his head once. When the deceased fell down accused No.1 had reportedly hit him on his leg and waist. Deceased Sajan became unconscious. Accused No.1 dragged him through the courtyard to the nearby road and left him there. Aneesh, the elder brother of accused No.1 and one Ponnu (Cws.12 and 13) thereafter informed the Police. The Police party came in a jeep a little later and took Sajan to District Hospital, Kottayam. According to the prosecution Cw.12 and 13 had also accompanied the Police in the jeep to the District Hospital. As advised by the Doctor, who examined Sajan at the District Hospital, he was later taken to the Medical College Hospital by his relatives. Sajan succumbed to the injuries at about 11 p.m. on the next day, viz., on 21st March, 2003. Pw.1 had given Ext.P1 First Information Statement at 8.30 a.m. on March 22, 2003. Kottayam West Police had conducted investigation and laid the charge sheet against the accused/appellants. 3. Pws.1 to 13 were examined on the side of the prosecution and Exts.P1 to P11 and M.O.1 were also marked. Ext.D1 was marked on the side of the defence. The learned Additional Sessions Judge (Ad Hoc) - I after a careful evaluation of the oral and documentary evidence available on record found that the prosecution had succeeded in proving the charge as against accused No.1 and accordingly convicted and sentenced him as mentioned earlier. But the trial court found that there was no evidence warranting conviction of accused No.2 for the offence under Section 302 IPC. However she was found to have committed an offence under Section 323 read with Section 109 IPC. Crl.A.1769/2005 3 4. It is contended by learned counsel for the appellants that the court below had egregiously erred in holding the appellants guilty on the basis of the sole interested testimony of Pw.2, who was none other than the sister of the deceased. The evidence of this witness (Pw.2) was bristled with contradictions and omissions. It was totally impossible for the said witness to have seen the incident as alleged by the prosecution not only for the reason that she was staying about one furlong away from the scene of occurrence but also since the version given by her in the court clearly indicated that she was not present at the scene as alleged. 5. The other contention raised by the learned counsel is that two of the material witnesses viz., Cws.12 and 13 were withheld from the Court by the prosecution for no apparent reason. He contends that if these two witnesses had been examined, the true picture would have come to light. Learned counsel further contends that even assuming the prosecution story is to be believed, the deceased was guilty of trespass since admittedly he had gone to the courtyard of the residence of the appellants and picked up a quarrel with them. Therefore even assuming accused No.1 had used some force to drive the trespasser away, it cannot be said that an offence under Section 302 would be attracted. It is further pointed out by the learned counsel that even according to the prosecution, accused No.1 had hit the deceased with M.O.1 bat on the head only once. Therefore Section 302 would not have been, under any circumstances, attracted. 6. Before we deal with the oral testimony of the witnesses Crl.A.1769/2005 4 examined on the side of the prosecution, it may be noticed that the defence set up by the accused, as is discernible from the questions put to the witnesses in the cross examination and also from the statement given by accused No.2 under Section 313 of the Code of Criminal Procedure, was that the deceased had a fall and sustained the fatal injury. It may also be noticed that the deceased and appellants are close relatives. Admittedly accused No.2 is the wife of the maternal uncle of deceased Sajan. In other words, accused No.1 and deceased are cousins. 7. As mentioned earlier, Ext.P1 First Information Statement was recorded by Pw.11 at 8.30 a.m. on March 23, 2003 when Pw.1 had reported the matter to the Police. But when he was examined in court , Pw.1 stated that he had not seen accused No.1 hitting the deceased with a cricket bat. He denied having stated so before the Police. But significantly Pw.1 admitted his signature in Ext.P1 statement. This witness was declared hostile and the prosecutor was permitted to confront him with his statements given before the Police. Pw.1 stated that he had studied upto Xth Standard. He disowned his statement to the Police to the effect that the deceased had come to the courtyard of the residence of the accused on the alleged day of the incident and abused accused No.2 which resulted in accused No.1 hitting the deceased on his head with the cricket bat. The relevant portion in the First Information statement was read out to Pw.1. However he denied to have stated so before the Police. According to this witness he came to know that deceased Sajan had died due to a fall from a coconut tree Crl.A.1769/2005 5 near the residence of the two accused. He had also come to know that deceased Sajan had died because of the hit given by accused No.1 with a cricket bat. But he did not bother to find out which was the true version. Though this witness admitted that he had given a statement at the Police station, he stated that he had given his signature in a blank paper. 8. Pw.2 the sister of the deceased turned out to be the prime witness on the side of the prosecution, as Pws.1 to 3 and 4 who were also cited as occurrence witnesses turned hostile. In her deposition Pw.2 stated that she was residing about 6 to 7 meters away from the residence of the accused on the northwest corner. According to this witness deceased Sajan had gone to the courtyard of the residence of the accused with some coconuts. She went to the residence of the accused on hearing loud voices. Accused No.2 told Sajan that she did not need any coconut, which resulted in some wordy altercation between them. At that time accused No.1 came out of the house. Some kind of push and pull ensued between the accused and the deceased. Accused No.2 asked accused No.1 to send away the deceased after giving him some beatings. At that juncture accused No.1 went inside the house and came out with a cricket bat and hit Sajan on his head with it. Sajan fell down. Accused No.1 beat Sajan on his back and legs also. Thereafter accused No.1 caught hold of the legs of Sajan and pulled him towards Puthuvathukkal Kottappalli road nearby, and dumped him there. Pw.2 stated that when she came to the court yard of the accused knowing about the incident her two children were with Crl.A.1769/2005 6 her. She ran back to the junction 180 meters away in search of her husband. She could not find him anywhere. By the time she came back Sajan was taken in the Police jeep to the hospital. She stated that Cws.12 and 13 had gone in the Police jeep with Sajan. She went to the Medical College Hospital on the next day. She saw her brother in the ICU. She identified M.O.1 cricket bat with which accused No.1 had hit the deceased. In cross examination some contradictions and omissions in the statement given by her to the Police were brought out. We will deal with the evidence of Pw.2 in detail a little later. 9. Pw.3 in his deposition stated that he knew the accused and the deceased. He admitted that he was living in the neighbourhood of the accused. But he asserted that he had not gone to the residence of the accused to watch television in the evening of March 20, 2003. He further stated that he had not seen accused No.1 hitting the deceased with the cricket bat. He denied to have stated so before the Police. He was declared hostile. The statement given by this witness to the Police to the effect that deceased Sajan had gone to the residence of the accused and quarrelled with accused No.2 and accused No.1 had hit him with M.O.1 cricket bat etc. was denied by him when those statements were read out to this witness by the Prosecutor. This witness also stated that he had heard that Sajan died due to the injury sustained by him when he fell down from a coconut tree. He stated that he had heard that the deceased tried to pluck some coconuts from the residence of the accused, which resulted in some altercation. 10. Pw.4 who was also cited as an ocular witness did not support Crl.A.1769/2005 7 the prosecution case. He also denied to have stated before Police that he had seen petitioner No.1 beating the deceased with M.O.1 cricket bat. According to the prosecution, this witness was present at the residence of the accused watching cricket on the television in the evening on that day. The statement allegedly given by this witness to the Police was read out to him. But this witness asserted that he had not stated that he had seen the alleged incident. 11. Pw.5 is the Police Constable who came in a jeep on receipt of information. He took deceased Sajan to the hospital. In his deposition this witness stated that on March 20, 2003 he was in charge of Police Control Room. At about 6.40 p.m. he got a telephonic message from one Ponnu that one person had been detained and if the Police did not come immediately he was likely to escape. Pw.5 further stated that he passed on this information to the Addl. Sub Inspector of Police and the person in charge of the General Diary. As directed by the Additional Sub Inspector he proceeded to the scene in his jeep along with Driver Kurien and Cws.15 and 16. When he reached Puthuvathukkal-Kottappally road he found one person lying face down on the road in an unconscious condition. He was put in the jeep by the people around there. Pw.5 proceeded to the District Hospital Kottayam along with two persons who were present at the scene. On his way he informed the matter at the Police station. On his way to the hospital he asked Aneesh and Ponnu (Cws.12 and 13) as to what had happened. These two person informed Pw.5 that the injured had a fall. On reaching the hospital, the Doctor who examined the Crl.A.1769/2005 8 injured directed that the patient be taken to Medical College Hospital. According to Pw.5, Cws.12 and 13 took the injured to the Medical College Hospital in an auto rickshaw and he came back to the Police station. 12. Pw.6 was a witness to Ext.P2 scene mahazar which was prepared on March 22, 2003, the day on which the crime was registered by the Police. Pw.7 was a witness to the recovery of M.O.1 cricket bat under Ext.P3. Pw.8 who was working as a Lecturer in Surgery, Medical College Hospital had examined the deceased on March 20, 2003 at about 9 p.m. and issued Ext.P4 wound certificate. He stated that he had noticed bleeding from the right ear of the injured. There was a lacerated wound with an abrasion on the left side of the face. C.T. scan revealed contusion in right post temporal cortex. The patient was conscious. The bystander told him that the injured had suffered a fall. This witness further stated that fracture of temporal bone could be possible by a blow with M.O.1 bat. 13. Pw.9 conducted post mortem and issued Ext.P5 certificate. The following injuries (ante mortem) were noted by this witness at the time of post mortem: “1. Inverted ,U, shaped sutured incised wound 34.5 cm. the left side of head. Its front end 3.5 cm. above outer end of left eye brow. Lower end in front of tragus of left er. Scalp was infiltrated with blood all over the head. Skull was removed over an area 13 x 6.5cm. on the left side of head. Comminuted fracture 10 x 6 cm. Crl.A.1769/2005 9 involving right temporal parietal and occipital bones. Fracture extended into the base of middle and posterior cranialfossa. Extradural haemorrhage on the right temporal region. Bilateral sub cural and sub arachnoid haemorrhage. Contusion and laceration of left temporal, both parietal and right occipital lobes (Surgically modified injury). 2. Contused abrasion 5 x 3 cm. on the left cheek. 3. Contused abrasion 6.5 x 5 cm. involving the front and under surface of chin. 4. Contused abrasion 11 x 10 cm. involving the back of right elbow. 5. Contused abrasion 11 x 4 cm. involving the front and inner side of right knee. 6. sutured lacerated wound, skin deep 2.5 cm. on the upper and of front of right leg. 7. Contused abrasion 6 x 1.5 cm. on the left side of hip at the level of iliac crest. 8. Contused abrasion 8 x 2 cm. on the back of left elbow. 9. Abrasions 7 x 4 cm. on the right side of back of chest 8 cm. out to mid line and 18 cm. below top of shoulder. P.w.9 stated that the deceased died due to the head injury sustained by him. This witness had asserted that the injuries found on the victim were not likely to have been caused due to a fall from a height. Crl.A.1769/2005 10 14. Pw.10 Village Officer prepared Ext.P6 scene plan. Pw.11 Sub Inspector of Police stated that he had recorded Ext.P1 First Information Statement given by Pw.1. He had registered Ext.P1 (a) First Information Report. Pw.12 conducted investigation. He referred to the steps taken by him in the course of the investigation. He specifically referred to the recovery of M.O.1 cricket bat under Ext.P3 mahazar. This witness further stated that M.O.1 bat was recovered from inside the residence of the accused on the basis of Ext.P3(a) statement given by accused No.2. He had prepared Ext.P2 scene mahazar. He also conducted inquest and prepared Ext.P7 inquest report. He had questioned the witnesses. Pw.13 laid the charge sheet before the Court. 15. The thrust of the argument of the learned counsel for the appellants is that no reliance can be placed on the solitary testimony of Pw.2 to hold the appellants guilty. He points out that Pw.2 being the sister of the deceased was apparently anxious to help the prosecution. It is contended by the learned counsel that Pws.1, 3 and 4 had categorically stated that Pw.2 was residing about one furlong away from the scene of occurrence. Though Pw.2 stated that she was residing about 6 meters away from the residence of one Puthenparambil Devaki, no documentary evidence like voters' list, ration card etc. were produced in support of the above claim. If only Pw.2 had been residing in the building which was admittedly owned by Devaki as a tenant as alleged by her, there would have been some document evidencing such tenancy. It is also pointed out by the learned counsel that Pw.2 had admitted that her home is one furlong away. Therefore Crl.A.1769/2005 11 according to the learned counsel, Pw.2 was planted by the prosecution as an eye witness though she could not have been present at the scene as alleged. 16. But we are afraid the above contention is wholly untenable. In Ext.P1 First Information Statement itself Pw.1 had stated that Pw.2 was present at the scene when the incident took place and that she had also seen the incident. Moreover we have carefully gone through the deposition of Pw.2. She appears to be a natural witness. It is true that there are some minor contradictions and omissions in her oral testimony. For instance, according to Pw.2, she had told the Police that the deceased had gone to the residence of the accused with some coconuts; but the Police had not recorded that in her Section 161 statement. Further, according to the Police, Pw.2 had stated that she had gone to the hospital to see her brother on the day of the incident itself. But Pw.2 stated before the Court that she had visited the hospital only on the next day. 17. But the learned counsel has highlighted certain aspects in the conduct of Pw.2 which according to him would suggest that Pw.2 was not at all present at the alleged scene of occurrence. According to the learned counsel, the fact that PW2 had not tried to find out what had gone wrong with her brother, especially since he had fallen unconscious after being hit on the head was quite unnatural. She had not chosen to seek the help or assistance of the people in the neighbourhood nor had she bothered to rush to the relatives who were staying about one furlong away. It is further pointed out that PW2 had Crl.A.1769/2005 12 visited the hospital only on the next day. All these, according to the learned counsel, would show that PW2 was not an ocular witness as alleged by the prosecution. 18. We are unable to agree. As mentioned by us earlier, PW2 had rushed to the scene of occurrence and seen her brother being beaten up. She was carrying her two children in her two arms. The conduct on the part of PW2 in rushing to the junction in search of her husband where he had been working as a headload worker is quite probable and natural. Admittedly, she is a rustic uneducated woman working as coolie. Her capacity to capture, retain and narrate the incident with photographic precision may not be as accurate as would be expected from an educated person. Moreover, PW2 had deposed before the court that immediately after the incident she had telephonically informed her mother about the incident. 19. In this context, we may refer to one other significant aspect. CW12 is none other than the elder brother of accused No.1. According to the prosecution, he along with CW13 had gone to the hospital in the jeep along with injured Sajan. According to the prosecution, he had informed the police that Sajan had fallen down and sustained some injury. However according to PW5, the information that he received was quite another. But the crucial aspect is something else. If in fact Sajan had fallen from a coconut tree and sustained some grievous injury, the normal conduct or reaction of not only the two accused who are close relatives, but also CW12 would have been to give emergent medical aid to the injured person. Surprisingly there is nothing on Crl.A.1769/2005 13 record to indicate that any of these persons had bothered to give any medical aid to the deceased, if in fact their version about a fall is to be accepted. This indicates that the defence now sought to be set up by the appellant that deceased Sajan had suffered injury due to a fall is too far fetched and unbelievable. 20. More importantly, the defence had not specifically pointed out from which coconut tree or from whose property Sajan had fallen down and suffered the injury. This, in our view, will go a long way to weaken the defence case. More significantly, no coconut tree was noted in the scene mahazar. 21. It may be noticed that accused No.2 in her statement recorded under Section 313 of the Code of Criminal Procedure had stated that she had heard some sound of falling object and later she found that Sajan was lying on a heap of fire wood beneath the coconut tree. If that be so, the conduct of the accused and CW12 and 13 in not attempting to give medical aid to the injured is totally in explicable. Having kept all these facts and circumstances in perspective, we are unable to accept the defence version that deceased Sajan might have suffered the fatal injury due to a fall from a coconut tree. 22. Coming back to the evidence of the alleged ocular witnesses namely, PW1, 3 and 4, it may at once be noticed that all the three of them were neighbours and friends of accused No.1. The specific case of the prosecution was that these three youngsters had been watching cricket match on the television in the house of the accused at the time of the alleged incident. But these three witnesses turned hostile to the Crl.A.1769/2005 14 prosecution. A perusal of Ext.P1 (the authorship of which is not much in dispute) will undoubtedly show that PW1 had narrated the entire incident to the police. We do not find any reason to assume that prosecution had fabricated Ext.P1 statement. More importantly such a case had not been advanced by the defence. Though PW1 while admitting his signature in Ext.P1 stated that he had put his signature in a blank paper, we are not able to accept this version. 23. The other contention raised by the appellant is that CW12 and 13 had been kept away from the court by the prosecution. We are unable to understand how non-examination of these two witnesses would have prejudicially affected the defence. If in fact the defence was of the view that these witnesses were material, nothing prevented the accused from summoning them as witnesses on