IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI TUESDAY, THE 19TH AUGUST 2008 / 28TH SRAVANA 1930 CRL.A.No. 192 of 2005() ----------------------- SC.55/1993 of SESSIONS COURT, KOLLAM .................... APPELLANT /COMPLAINANT: ---------------------- STATE OF KERALA, REP.BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. BY PUBLIC PROSECUTOR, S.U.NAZER RESPONDENTS/ACCUSED -------------------- 1. RETNAKARAN, S/O. PARAMU, RAJESH BHAVAN, ELAPPAKKODU, PUNNALA VILLAGE, PUNNALA MURI. 2. SASI @ CHUKKU SASI, S/O. PARAMESWARAN, SWAMIKKONATHIL, THEKKEKARA VEEDU, ELAPPAKKODU, PUNNALA VILLAGE. 3. VIJAYAN S/O. SUKUMARAN, BINDHU VILASOM VEEDU, ELAPPAKKODU, PUNNALA VILLAGE 4. VASUDEVAN S/O. PARAMESWARAN BIJI VILASAM, ELAPPAKODU, PUNNALA VILLAGE. BY ADV. SRI.V.V.RAJA SRI.M.T.SURESHKUMAR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 18/08/2008, THE COURT ON 19/08/2008 DELIVERED THE FOLLOWING: K. BALAKRISHNAN NAIR & M.C.HARI RANI, JJ. ------------------------------------- Crl.Appeal.No.192 OF 2005 -------------------------------------- Dated this the 19th day of August, 2008 J U D G M E N T ~~~~~~~~~~~ Balakrishnan Nair, J. State is the appellant. Aggrieved by the acquittal of accused 1 to 4 by the judgment dated 31.8.2002 in S.C.No.55/1993 of the Sessions Judge, Kollam, it has preferred this appeal. The case of the prosecution in brief is as follows: 2. Kunjupennu, the wife of PW12, died on 3.5.1992. To attend her funeral, the witnesses PWs 1 to 6, PW13 and others were assembled there. Though the death took place at 1 p.m. the body was cremated only at 8 p.m. People were waiting for the arrival of a daughter of Kunjupennu. While so, suddenly, the accused 1 to 5 came to the house of Kunjupennu carrying sticks. The 5th accused abused the persons present there using filthy language and also mentioning their caste. Kunjupennu and her relatives were members of Kurava community, which is a Crl.Appeal.No.192/2005 2 scheduled caste as per the Presidential order in the State of Kerala. When the 5th accused started abusing, Mr.Sankaran took exception to the same and asked them to stop using abusive language. While so, the other accused, who were carrying sticks started attacking the people indiscriminately. The 4th accused was carrying a chopper. He attacked PW3 using that chopper. When he tried to attack PW3 a second time, her husband PW4 prevented the same and by accident the chopper hit on the head of A1. Thereupon, A1 went to his house and came back with a chopper and started attacking the people assembled there. Seeing this Sankaran ran away. The 1st accused chased him and inflicted a cut injury on his back. He fall into a nearby water channel (thodu). Thereupon, he was again attacked by A1 using the chopper. Before the arrival of A1 with the chopper at the scene, the other accused have manhandled Sankaran. He fell down. He was kicked and hit on his chest and ribs. Because of the injury caused by A1 using chopper and the resultant bleeding and Sankaran died. PW1 lodged Ext.P1 F.I. Statement. Based on that, Ext.P1(a) First Information Report was sent to the Magistrate concerned. The crime was registered on the very same night at 11.10 p.m. All the accused were named in the Crl.Appeal.No.192/2005 3 F.I.R. They were arrested and based on the confession statement of A1, MO1 chopper was recovered. Initially, the investigation was conducted by PW14, Circle Inspector of police. Later, as authorised by the Deputy Superintendent of Police, the investigation was completed by PW16 Sub Inspector of Police. PW16 verified the investigation and filed the final report under Section 173 in the above crime before the Magistrate's Court. 3. The case was committed to the Sessions Court, Kollam for trial. The accused were charged for the offences punishable under Sections 302 and 324 of I.P.C. and also for the offences under Section 3(1) (x), 3(1) (xi) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. The accused pleaded not guilty to the charges. From the side of the prosecution, PWs 1 to 15 were examined. Exts.P1 to P12 and MOs 1 to 8 were marked. From the side of the defence Exts.D1 to D6(a) were marked which were the contradictions in the deposition of the prosecution witnesses, with reference to their statement under Section 161 of Cr.P.C. All the accused were acquitted by the learned Sessions Judge by judgment dated 26.11.1993. One of the main Crl.Appeal.No.192/2005 4 grounds for acquittal of the accused was non-examination of the Investigating Officer, PW16. The State challenged the judgment in appeal before this Court and this Court remitted the matter, directing the learned Sessions Judge to take coercive steps against the Investigating Officer to procure his presence and examine him. Later, the Investigating Officer was examined as PW16. The learned Sessions Judge considered the matter afresh and again acquitted the accused. After remand when the trial commenced, A5 absconded. So the case against him was split up and the trial proceeded against A1 to A4, who are respondents in the present appeal, filed by the State. 4. The learned Public Prosecutor attacks the acquittal of the accused on various grounds. He has taken us through the depositions of the witnesses and all the materials on record. He took us through the judgment under appeal also. The learned Sessions Judge found that the death of Sankaran was homicidal based on the medical evidence and the deposition of the witnesses. The learned Judge also found that PWs 2 to 5 sustained injuries in the incident that took place at 8.30 p.m. on 3.5.1992. Crl.Appeal.No.192/2005 5 5. The next point considered by the learned Sessions Judge was whether the accused were responsible for the death of Sankaran and causing injuries to PWs 2 to 5. The answer of the learned Sessions Judge was in the negative. The point to be considered in this appeal is whether the said finding is sustainable or not. 6. We notice that the learned Sessions Judge declined to believe the version of the occurrence witnesses, PWs 1 to 6 and PWs 12 and 13. All of them were interested witnesses and were harbouring hostility towards the accused. Though the case of the prosecution does not speak of any motive, from the deposition of the above witnesses it has come out that those witnesses and the deceased were not willing to work for the accused and therefore the accused were harbouring ill-will towards them. The learned Sessions Judge declined to believe PW1 for the reason that his statement before the court does not tally with the version given by him regarding the incident in Ext.P1 F.I.R. The Investigating Officer has not questioned him and not recorded any separate statement under Section 161 of the Cr.P.C. He has spoken about the overt acts of each and Crl.Appeal.No.192/2005 6 every accused before the court. But, those facts are not mentioned in Ext.P1. Of course, F.I statement need not give all the details of the incident. But, if through the the first informant something else is also to be proved, his statement should be recorded under Section 161 of Cr.P.C. and furnished to the accused in advance, so that they will not be taken by surprise as to what the witnesses is going to speak before the court . So, his version which is not in conformity with Ext.P1 lacks any probative value and the learned Sessions Judge has rightly declined to act upon it. Likewise, the other occurrence witnesses stated before the police that PW1 attacked A1, Ratnakaran with a chopper. The said Ratnakaran suffered a head injury and based on the information lodged by him a crime has been registered against PW1 and others and a final report was also filed against them by the police after investigation. But before the court, PW2 and other occurrence witnesses have given a different version regarding the reason for the injury suffered by A1. They said A4 attacked PW3 using a chopper. PW4 intervened and prevented a second cut on PW3 using the chopper. Then the chopper used by A4 hit on the head of A1 Ratnakaran. So against their version before the police under Crl.Appeal.No.192/2005 7 Section 161 Cr.P.C, all of them have consistently spoken about the new case of accidental injury on the head of A1 Ratnakaran. Going through their evidence it would clearly appear that the witnesses were tutored and they were not speaking the truth. As per the evidence of the occurrence witnesses, A1 attacked Sankaran using a chopper. Later, when he reached the bank of a thodu, A1 inflicted a cut injury from behind. Sankaran fell into the thodu. A1 again inflicted further cut injury on Sankaran who was lying in the thodu. The thodu is at a distance of about 20 metres from the house of the Kunjupennu. As per the statement before the police under Section 161 of Cr.P.C., the witnesses saw the incident in the light of torches and also star light. But, while deposing before the court they said that they saw the incident in the light of a petromax lamp which was there in the house of Kunjupennu. The version of the witnesses regarding the light available for seeing the incident appears to be inherently improbable. The learned Sessions Judge has, therefore rightly, chosen not to believe their version. 7. We feel that the said view taken by the learned Sessions Judge cannot be described as perverse, warranting Crl.Appeal.No.192/2005 8 interference by the Appellate Court. From the materials on record, it would appear that A1 sustained injuries in the incident which took place at about 8.30 p.m. on the night of 3.5.1995. But, the said fact has been suppressed in this case. The prosecution has not chosen to place those facts, so that the court can know the correct facts relating to the commission of the crime. So the credibility of the prosecution case is considerably affected by the above said suppression. As mentioned earlier, the witnesses have spoken before the court against what they have spoken before the police. The cumulative effect of all those circumstances is that the accused are entitled to get the benefit of doubt. Therefore, the learned sessions Judge has rightly acquitted the accused. We agree with the reasons and conclusions of the learned Sessions Judge. In the result the appeal fails and it is accordingly dismissed. (K.BALAKRISHNAN NAIR, JUDGE) (M.C.HARI RANI, JUDGE) ps Crl.Appeal.No.192/2005 9 K.BALAKRISHNAN NAIR & M.C.HARI RANI, JJ. =================== Crl.A.NO.192 OF 2005-A =================== JUDGMENT DATED 19TH AUGUST, 2008 =======================