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 12TH AUGUST 2008 / 21ST SRAVANA 1930 CRL.A.No. 148 of 2005(A) ----------------------- SC.895/2003 OF ADDL. SESSIONS, FAST TRACK COURT -II, ALAPPUZHA. .................... APPELLANT/ACCUSED: ------------------ UNNIKRISHNAN, S/O. GOPALAKRISHNAN, MEDAYIL VEEDU, AMBALAPPUZHA THEKKU PANCHAYAT, WARD NO.7. BY ADV. SRI.S.SANAL KUMAR SMT.BHAVANA VELAYUDHAN RESPONDENT/ COMPLAINANT: ------------------------ STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY SRI. JAI GEORGE, PUBLIC PROSECUTOR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 12/08/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: scm K.BALAKRISHNAN NAIR & M.C. HARI RANI, JJ ============== Crl.Appeal.No. 148 OF 2005 ==================== Dated this the 12th day of August, 2008. J U D G M E N T BALAKRISHNAN NAIR, J The appellant, aggrieved by his conviction and sentence in S.C.No.895/2003, passed by the Additional Sessions Judge, Fast Track Court- II, Alappuzha, has come up in appeal. The brief facts of the case are the following. 2. The accused and the deceased (Padmakumar) were regular visitors of a toddy shop at Pattathanam. The accused was having a nick name 'Broono'. The deceased used to tease him calling that name. On the fateful day, that is on 9.3.2003, the accused came prepared with an iron bar hidden inside his shirt to avenge the humiliation meted out to him by Padmakumar by calling him 'Broono'. On that day, he picked up a quarrel with Padmakumar as he called the accused 'Broono'. The supervisor of the shop seeing them quarrelling compelled them to go out. They went out and when they reached at a distance of about 74 Crl.Appeal.No. 148 OF 2005 2 meters from the shop in the western direction, they again quarrelled and the accused took out the iron bar and dealt a blow on the head of Padmakumar. The victim fell down. The accused beat him on the leg and again several times on his head. PW2 was present in the scene. He called out for help. When people came running, the accused made his escape. PWs 1, 2 and others took the injured to the hospital, where he was pronounced dead. A crime was registered based on the information lodged by PW1 on the morning of 10.3.2003. The inquest was held by the Circle Inspector of Police, PW12. Postmortem examination was conducted by PW10, Dr.P.Babu. The Circle Inspector of Police (PW12) arrested the accused on 10.3.2003 itself and MO1 iron bar, used for attacking the deceased, was recovered from the place where it was laid by the accused. He completed the investigation and laid the charge before the Judicial First Class Magistrate, Ambalappuzha. The case was committed by the Crl.Appeal.No. 148 OF 2005 3 learned Magistrate to the Sessions Court as per C.P.No.45/2003. 3. The Additional Sessions Judge, Fast Track Court- II, Alappuzha, framed the charge and the accused pleaded not guilty to the charge. From the side of the prosecution PWs 1 to 12 were examined and Exts.P1 to P8 were marked. Material Objects MO1 to 4 were also marked. Exts. D1 and D1(a), the contradictions in the statement of PW2 before the police with reference to his deposition before the court were marked and proved through PW12. 4. The accused was questioned under Section 313 Cr.P.C. He explained the circumstances which appeared in the evidence against him. Learned Sessions Judge, after hearing both sides, found the accused guilty. He was convicted and sentenced to undergo imprisonment for life and also to pay a fine of Rs.5,000/- and in default to undergo rigorous imprisonment for one year. Aggrieved by the conviction and sentence, the appellant preferred Crl.Appeal.No. 148 OF 2005 4 this appeal. 5. Learned counsel for the appellant took us through the deposition of the witnesses. Referring to the relevant portions of the judgment, learned counsel for the appellant submitted that the finding of guilt entered against him by the trial court is unsustainable in law. Learned counsel pointed out that the only witness to the occurrence is PW2. He is a relative of the deceased. He is a chance witness who claims, he came there, after returning from Edathua where he went to see his brother, who is running a tea shop there. Learned counsel for the appellant pointed out that there is material contradictions in the evidence of PW2, with reference to his statement before police, concerning the method of transport used by him to go to Edathua. As per his statement before the police, he went to Thakazhi Ferry using a bicycle, he kept it there, used the ferry to reach the other side of the backwaters and from there he caught Crl.Appeal.No. 148 OF 2005 5 a bus and reached Edathua. But before the court he has sworn that he travelled the entire distance using his bicycle. This material contradiction in the versions of the witness casts serious doubt on the veracity of his evidence, it is submitted. There is no other material to show the presence of PW2 at the scene. Learned counsel for the petitioner also submitted that the accused should have carried the deceased in his lap while travelling to the hospital and there would have been blood stains on his dress. But his clothes were not seized. Nor the taxi driver, who took the injured to the hospital, was examined. Except the oral evidence of PW2, there is nothing to corroborate his presence there. It is also submitted that the evidence of PW1 also is not reliable. According to the said witness, he had given the FI statement on the next day of the incident between 10.00 am. and 11.00 am. As per the entries in the FIR, it is recorded at 2.15 am. on 10.3.2003. PW1 has in his FI statement named the Crl.Appeal.No. 148 OF 2005 6 appellant as accused. In his deposition before the court he has stated that he came to know about the involvement of the accused later. So the above version given by the PW1 before the court would cast serious doubt on the truthfulness of the deposition of the said witness. PW3, the supervisor of the shop was examined to prove the motive in the light of their previous quarrel before the occurrence. But the said witness has spoken before the court that the quarrel between the deceased and the accused took place at 7.30 pm. in the toddy shop. He asked both of them to get out of the shop and they soon went out of the shop. But the incident allegedly took place between 9.30 pm and 10.00 pm. It means they took two hours to reach the scene of occurrence from the toddy shop. So the version of PW3 also cannot be accepted blindly, it is submitted. Learned counsel for the appellant brought to our notice that PW5, who is the owner of the workshop from where the iron bar was allegedly taken by the Crl.Appeal.No. 148 OF 2005 7 accused has turned hostile. He did not support the case of the prosecution that the accused took the iron bar from his workshop. PW7, who is the independent witness to the recovery of the iron bar, MO1, under Section 27 of the Evidence act has also turned hostile. He deposed that he has not seen the recovery of MO1 at the instance of the accused. The learned counsel for the appellant summed up his submissions stating that PW2 cannot be believed for the reason of his relationship with the deceased and also because of the fact that he is a chance witness. Versions given by PWs 3,5 and 7 do not corroborate the prosecution case. The naming of the accused in the FIR, though PW1 came to know the involvement of the accused later, also weakens the case put forward by the prosecution. Learned counsel for the appellant, therefore, submits that the appellant is entitled to get the benefit of doubt and he is liable to be acquitted. Crl.Appeal.No. 148 OF 2005 8 6. Learned Public Prosecutor, in answer, submitted that in the cross examination of PW2, nothing has been brought out to discard his version regarding the attack made by the accused on the deceased. The contradiction regarding his mode of journey to his brother is of no consequence as far as the prosecution case is concerned. There is no reason for him to save the real culprit and implicate an innocent person. Normally no near relative will do that. In the cross examination nothing has been brought out to suggest that there was involvement of some other persons in the incident in which the deceased suffered fatal injuries. Regarding the contradiction in the deposition of PW1, concerning the time of registering of the FIR, learned Public Prosecutor submitted that the time of registration of the crime is revealed by the entry made in the FIR. Further the FIR has reached the Magistrate's Court by 10.30 am. on 10.3.2003. Therefore the statement made by PW1, that the FIS was recorded around 10.30 Crl.Appeal.No. 148 OF 2005 9 am. in the next morning is not correct. Learned Public Prosecutor also submitted that the statement made by PW3 regarding the time of quarrel is an approximate time and it cannot be taken that the quarrel took place exactly at 7.30 pm. He also pointed out that though, PW7 has turned hostile, he has not denied his signature in the relevant mahazar. Therefore his statement, made in favour of the accused, should be taken as a attempt to help him. Same is the case of PW5. Learned Public Prosecutor also submitted that the prosecution has proved the case against the accused beyond reasonable doubt and the learned Sessions Judge has rightly entered the finding of guilt against the accused. So the appeal may be dismissed, it is submitted. 7. We will, now, refer to the evidence of the relevant witnesses. PW1 is a taxi driver. He has stated that on the date of occurrence when he came back to his house after the day's work, he came to know that somebody was lying by the side of Crl.Appeal.No. 148 OF 2005 10 the road. In a motor bike he reached there. There upon he found that Mr. Padmakumar (deceased) was lying there. Blood was coming out from the head. He immediately telephoned to the police station. The injured was taken to the Medical College Hospital by him along with others. On reaching the hospital, the doctor, after examination, pronounced that Padmakumar was dead. PW1 has given the statement before the police. He signed the statement. It was read out to him. He identified his signature in the FI statement which was marked as Ext.P1. He later came to know that the accused killed Padmakumar by beating. In cross examination he has stated that he has given the statement before the police on the next day morning. The statement was taken between 11.00 am. and 12.00 noon. 8. PW2 stated that he knew the deceased Padmakumar, who was the husband of his sister's daughter. He also knew the accused. He has seen the incident, in which, Padmakumar was Crl.Appeal.No. 148 OF 2005 11 killed. The incident took place between 9.30 pm. and 10.00 pm. On 9.3.2003, he came back from Thakazhi in a cycle. He was returning to his house. When he reached on the western side of Pattathanam toddy shop, he heard a sound. He alighted from the cycle. He saw the deceased and the accused quarrelling for the reason that the deceased called the accused his nick name. Padmakumar called the accused 'Broono'. Even on earlier occasions, there was quarrel between them in the toddy shop for calling his nick name. On the date of occurrence, the accused was having an iron bar in his hand. It was having an approximate length of one arm. The accused using the iron bar struck on the head of Padmakumar asking him whether he will call the nick name again. The head of Padmakumar was broken and he fell down. The accused beat on the legs of Padmakumar. He beat on the backside of the head of Padmakumar 3, 4 times. The witness cried out. When the people came running, the Crl.Appeal.No. 148 OF 2005 12 accused ran towards west. He took the iron bar along with him. The witness along with PW1 and others took Padmakumar to Medical College Hospital, Alappuzha. There the doctor who examined the injured pronounced that he was dead. He could recognize the iron bar used by the accused to attack Padmakumar. He identified MO1 iron bar. the witness was extensively cross examined by the defence. Two contradictions in his deposition before the court, with reference to his statement before the police, were marked as Exts.D1 and D1(a). Ext.D1 would show that he had stated before the police that he has kept his cycle at Thakazhi and travelled to Edathua using the ferry raft and thereafter catching bus. But before the court he deposed that he travelled the entire distance using the cycle. The next contradiction, Ext.D1(a), is concerned with his statement before the police to the effect that he returned from Thakazhi in the evening. He has deposed before the court that he came by about Crl.Appeal.No. 148 OF 2005 13 9.00 pm. in the night. 9. PW3 has stated that he is the supervisor of Pattathanam toddy shop. On the date of occurrence, Padmakumar and the accused came to the shop. They talked loudly. Therefore, he asked them to clear out. They were sent out of the shop by about 7.30 pm. PW4 is the village officer who prepared Ext.P2 scene plan. PW5 is the owner of the workshop from where the iron bar was taken by the accused. He has turned hostile to the prosecution and denied that MO1 was lying in the premises of his workshop, along with scrap materials. PW6 is the witness to the scene mahazar. MO1 was recovered under Section 27 of the Evidence Act, based on the confession statement of the accused, by the investigating officer. The relevant portion of the confession statement is marked as Ext.P4 (a). PW7 is a witness to that recovery mahazar. He has admitted his signature in the mahazar. But he denied witnessing Crl.Appeal.No. 148 OF 2005 14 the recovery. PW8 is the witness to the inquest report, Ext.P5. PW9 is the second witness to Ext.P5. PW10 is the Doctor who conducted the autopsy and prepared Ext.P6 postmortem certificate. He has deposed that the cause of death was the injury suffered on the head of the deceased. PW11 was the Circle Inspector of Police, Ambalappuzha, at the relevant time. He recorded Ext.P1 FI statement. He has deposed that Ext.P1 FI statement was recorded by him at 2.15 am. on 10.3.2003 and he sent Ext.P1(a)FIR to the Magistrate's Court. PW12 was the investigating officer who questioned the witness and recorded their statements. He seized MO1 to MO4 material objects. MO1 is the iron bar allegedly used by the accused to inflict injury on the deceased. MO2 is the blood stained soil recovered from the scene as per Ext.P3 mahazar. MO3 and 4 respectively were the shirt and kaily worn by the deceased. They were sent for chemical examination by him. He filed the report before the Crl.Appeal.No. 148 OF 2005 15 learned Magistrate, showing the full address of the accused. He received the chemical analysis report, Ext.P8, which showed that there was human blood in items MO1 to 4. He completed the investigation and laid the charge before the Magistrate's Court. He has been cross examined extensively by the defence. The suggestion that without properly enquiring into the case, he filed the charge, was denied by him. 10. In the 313 statement, after answering the questions concerning various materials which appeared in the evidence against the accused, he stated that he was being called 'Broono' by the people in his village and he was proud of being called like that. Through his counsel, he has also filed a statement in which he submitted that he was falsely implicated because of the influence exerted by one Mr. Radhakrishnan, because of political rivalry. 11. We perused the evidence adduced in this case. We Crl.Appeal.No. 148 OF 2005 16 gave anxious consideration to the rival submissions made by the appellant and the prosecution. The fate of the case will depend upon the view taken by this Court on the evidence tendered by PW2. He is the only witness who has witnessed the incident. As mentioned earlier, his evidence is attacked by contending that he is a near relative of the deceased. So his evidence should be viewed with caution. It is also pointed out that he being a chance witness, his evidence should be subjected to close scrutiny. Unless his evidence is corroborated, it is quite unsafe to act upon it. The above submissions are well founded submissions in law, but whether, in the light of those principles, PW2 should be believed or not, is the matter to be considered. It is well settled that, normally, a relative of the deceased will not screen the real culprit and falsely implicate an innocent person. It is true that PW2 happened to be at the scene by a sheer co-incidence. According to him he was returning after he had visited his brother Crl.Appeal.No. 148 OF 2005 17 who was working at a tea shop at Edathua. When he reached on the western side of the Pattathanam toddy shop, he heard the accused and deceased quarreling aloud and he alighted from the cycle and witnessed the incident. We notice that though he was subjected to extensive cross examination, the above version given by him remained un-shattered. But the defence was able to point out two contradictions in his statement before the court with reference to his statements under Section 161 Cr.P.C. The method of transport used by him to reach Edathua and the time of his return to Thakazhi do not tally with reference to his statement before the court and before the police. So the defence would submit that the said witness should be disbelieved. But the entire evidence of a witness cannot be discarded for the reason that there are two contradictions between his versions before the court and before the police. We notice that the first contradiction brought out does not relate to the relevant incident Crl.Appeal.No. 148 OF 2005 18 in this case. The contradiction regarding the time of arrival by him at Thakazhi may be of some relevance. But the exact time of arrival is not given by him in his S.161 statement. What is stated before the police is that he came in the evening. But before the court he has stated that he returned about 9.00 pm. We feel that the above contradiction with reference to the mentioning of time is not a material contradiction. In many cases, the general statement regarding the time may appear to vary when the time is specifically spoken. We find it difficult to accept the case of the defence that the version of the witness should be discarded in toto for the reason of two discrepancies pointed out by the defence. We are of the view that the trial court has rightly believed his version. Further the narration given by him regarding striking using the iron bar is supported by the medical evidence. PW1, is yet another witness whose evidence is attacked by the defence relying on the discrepancy in his Crl.Appeal.No. 148 OF 2005 19 statement regarding the time of registration of the FIR. He has stated that the statement was recorded next day morning at about 10.30 am. But the FIR would show that it was recorded at 2.15 am. It is pointed out by the prosecution that the FIR reached the Magistrate's Court at 10.30 am. Therefore the statement of the witness cannot be correct. Probably, he might have been called to the police station, as suggested by the prosecution, on the next morning and he might have been questioned also. But we notice that the discrepancy in the time of registration of the crime, spoken to by PW1, does not have any bearing on the prosecution case. Obviously, it can be a mistake committed by PW1. PW1 has also named the appellant as accused in his FI statement. But he would depose that he came to know that it was the accused who committed the crime, later. The said statement can only mean that he did not know who committed the crime, when he came to the scene. But, he later Crl.Appeal.No. 148 OF 2005 20 came to know of it before the FI statement was lodged. But, the deposition has been recorded in such a way as to appear that he came to know who was the accused after lodging the information. The same cannot be correct as the name of the appellant is shown as the accused in the FIR recorded at 2.15 am which reached the Magistrate's Court at 10.30 am. Another circumstance weakening the prosecution case, pointed out by the defence is the time of quarreling between the accused and the deceased in the toddy shop spoken to by PW3 as at 7.30 pm. If that be so, they took about two hours to reach the scene of occurrence which is only at a distance of about 74 meters from the toddy shop. We feel that the time spoken to by PW3 as 7.30 pm should not be mechanically taken as exact 7.30 pm. He has given only an approximate time. The lack of precision in time need not be a ground to discard the evidence of PW3 regarding the quarrel between the deceased and the accused preceding the Crl.Appeal.No. 148 OF 2005 21 fatal attack. PW10, the doctor in his cross examination has stated that the deceased has consumed alcohol and there was smell of toddy. The said version corroborates the version of PW3 that the deceased has visited the shop before his death on that day. So we think the statement of PW3 concerning the quarrel between them can be relied on. The recovery of MO1 by PW12 has been proved through that witness. Though PW7 has denied witnessing the recovery of MO1 as per Ext.P4, he has admitted his signature in the recovery mahazar. Therefore, hostility of PW7 to the prosecution is not of any consequence. 12. We notice that the aforementioned contentions were taken by the accused before the trial court and the said court also dealt with them. We find that the appreciation of evidence done by the court below is legal and proper. We have independently gone through the evidence on record and also considered the contentions raised by the appellant. We feel that Crl.Appeal.No. 148 OF 2005 22 no ground has been made out to interfere with the finding of guilt entered against the appellant by the trial court. We agree with the reasons and conclusions of the trial court. In the result, the appeal fails and it is dismissed. K.BALAKRISHNAN NAIR, JUDGE M.C. HARI RANI, JUDGE bkn/-