IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI FRIDAY, THE 19TH FEBRUARY 2010 / 30TH MAGHA 1931 CRL.A.No. 641 of 2006() ----------------------- SC.101/2001 of II ADDL. SESSIONS COURT, TRIVANDRUM CP.130/2000 of JUDL. MAGISTRATE OF FIRST CLASS COURT-I, ATTINGAL .................... APPELLANT: ACCUSED NO.1: --------------------------- SUBHASH, S/O. VISWAMITHRAN, KUNNUVILA VEEDU, A.P.NO.111/1344, KOLICHIRA, CHEMBUMOOLA, AZHOOR VILLAGE, AZHOOR DESOM (FROM KADAKAMVATTATHIL VEEDU,CHIRAYINKEEZHU DESOM, SARKARA VILLAGE). BY ADV. SRI.B.RAMAN PILLAI SRI.GEORGE PHILIP SRI.R.ANIL SRI.RAJU RADHAKRISHNAN SRI.ANIL K.MOHAMMED SRI.DELVIN JACOB MATHEWS RESPONDENT: COMPLAINANT: --------------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SHRI NOBLE MATHEW THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 19/02/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.BASANT & M.C.HARI RANI, JJ. *********************** Crl.Appeal No.641 of 2006 ***************************** Dated this the 19th day of February, 2010 JUDGMENT BASANT, J. Was the court below justified in placing reliance on the evidence of PW1 alone in part to found a finding of guilt, conviction and sentence against the appellant alone in this prosecution under Section 302 I.P.C (while the court found the evidence of such PW1 not worthy of credence to enter a verdict of guilty and conviction against the other accused and against the appellant himself for other offences) ? This is the crucial question that is raised before us by the learned counsel for the appellant in this appeal. 2. The appellant along with 3 others faced indictment for offences punishable under Sections 341, 307 and 302 r/w 34 I.P.C. The 4th accused was not available for trial. We are informed that the 4th accused has subsequently expired and the charge against him was abated. Accused 1 to 3 alone were available to face the trial. Accused 2 and 3 were found not guilty and acquitted of all the charges levelled against them. The appellant has suffered a verdict of guilty, conviction and Crl.A.No.641/06 -2- sentence for the offences punishable under Sections 341 and 302 I.P.C. He was acquitted of the charge under Section 307 I.P.C. Under Section 341 I.P.C, no separate sentence was imposed. The appellant is now undergoing the sentence of imprisonment for life imposed on him under Section 302 I.P.C. 3. The charge against the appellant/accused is that he, in furtherance of the common intention which he allegedly entertained along with the co-accused on account of prior animosity towards PW1 and the deceased, wrongfully restrained PW1 and the deceased who were proceeding on PW1's scooter along the public road at Kadakam junction within Chirayinkeezhu Police Station limits at 8.35 p.m on 09.04.1999. The appellant was allegedly wielding M.O1 sword. He allegedly inflicted the fatal injury on the head of the deceased Leen, who was a pillion rider in the scooter which PW1 was riding. It is further alleged that accused 2, 3 and 4 in furtherance of their common intention which they shared with the appellant had inflicted injuries on PW1 with the intention of causing his death. PW1 hurriedly escaped from the scene on his scooter. The deceased succumbed to the injuries shortly thereafter. Crl.A.No.641/06 -3- 4. Crime was registered on the basis of Ext.P1 F.I statement lodged by PW1 before PW11 head constable while he was in the hospital at 9.30 p.m. On the basis of that, Ext.P1(a) F.I.R was registered at 10.30 p.m on 09.04.99. The F.I.R Ext.P1 (a), we do straight away note, reached the learned Magistrate only on 12.04.1999 at 10.30 a.m. Investigation was completed by PW14, who filed the final report/charge sheet before the Magistrate. 5. Cognizance was taken by the learned Magistrate. The case was committed to the Court of Session. Accused 1 to 3 denied the charges levelled against them and thereupon the prosecution was directed to adduce evidence. The prosecution examined PWs 1 to 18 and proved Exts.P1 to P22. M.Os 1 to 8 were marked. The accused denied all circumstances which appeared in evidence and which were put to them. They took up a defence of total denial. As a court witness the wife of the deceased was examined as CW1. On the side of the accused, DW1, a witness cited by the prosecution but given up by them, was examined. No defence exhibits were marked. Crl.A.No.641/06 -4- 6. An appellate judgment is essentially continuation of the judgment of the trial court. It must be read as such. The court below has adverted in detail to the oral and documentary evidence relied on by the prosecution and the defence. The learned counsel for the appellant has read to us the oral evidence of PWs 1 to 18, CW1 and DW1 in meticulous detail. We have also been taken through Exts.P1 to P22(a). We do not, in these circumstances, think it necessary or proper to re-narrate the oral and documentary evidence relied on by the prosecution and defence. Suffice it to say that we have been taken through and we have considered all such evidence in meticulous details. 7. The prosecution essentially places reliance on the oral evidence of PWs 1 and 2. PW1 is one of the injured who was riding the scooter in which the deceased was proceeding along with PW1 as the pillion rider. PW2 is allegedly a person who was available near the occurrence and had witnessed the incident along with some others. According to the prosecution, there was a motive for the incident. Accused 1 had a motive against PW1 on the basis of an incident which had taken place about 3 months earlier, ie. on 09.01.1999. The 2nd accused allegedly had Crl.A.No.641/06 -5- entertained motive against the deceased on the basis of an incident which had taken place on the previous date, ie. 08.04.1999. PWs 4, 5 and 15 were examined by the prosecution to prove the alleged motive. Exts.P22 and P22(a) as well as P20 and P13 were marked to support and substantiate the alleged motive between PW1 and the 1st accused in relation to the incident which took place on 09.01.99. The prosecution further relied on the circumstance that the appellant was arrested on 27.04.99 by PW18. According to the prosecution, the appellant after arrest gave a confession statement when he was interrogated. In such confession statement, he allegedly furnished information about disposal of M.O1 sword with which the appellant had allegedly inflicted the fatal injury on the deceased. On the basis of that information, which is recorded as Ext.P16, M.O1 was recovered by PW18 under Ext.P6 seizure mahazar. The prosecution also attempted to corroborate the evidence of PW1 with the evidence of PW2. PW2, it is now not disputed, is the husband of the niece (sister's daughter) of the deceased. He was allegedly present near the scene of occurrence and had witnessed the occurrence. The deceased Crl.A.No.641/06 -6- was taken to the hospital from the scene of the occurrence by DW1. PW2 had admittedly not accompanied the deceased to the hospital. According to the prosecution, it was PW2 who helped the prosecution to locate the scene of the crime and that fact is recorded in Ext.P4 scene mahazar. 8. The court below on an anxious consideration of all the relevant circumstances came to the conclusion that the prosecution's version can be accepted only to the extent to which PW1 speaks about infliction of the injury by the appellant/1st accused on the deceased with M.O1. The court below placed reliance on the oral evidence of PW1 to that limited extent. The court below did not place reliance on the oral evidence of PW2. The court below did not even place reliance on the evidence of recovery of M.O1 under Ext.P6 on the basis of the information Ext.P16 furnished by the accused to PW18 in his confession statement. The court below however came to the conclusion that it would be safe to place reliance on the oral evidence of PW1 to that limited extent. Even the version of PW1 that the other accused had inflicted injury on PW1 was not believed by the court. That explains how the court below found the Crl.A.No.641/06 -7- appellant guilty of the offence under Section 302 I.P.C while acquitting the appellant as also accused 2 and 3 of all the other charges. 9. Before us, the learned counsel for the appellant Sri.B.Raman Pillai as also Sri.Noble Mathew, the learned Public Prosecutor, have advanced their arguments. The learned counsel for the appellant has trained all his guns against the course adopted by the court below - placing reliance on the oral evidence of PW1 solely for the purpose of entering a verdict of guilty and conviction against the appellant under Section 302 I.P.C. The counsel argues that the court below should have noticed that PW1, as found by the court below, belongs to the category of witnesses, on whose testimony, safe reliance cannot be placed. Having held so, the court below, in the absence of any circumstances to corroborate the evidence of PW1, erred grossly and perversely in placing reliance on the oral evidence of PW1 in part - to enter a verdict of guilty and conviction under Section 302 I.P.C against the appellant alone. 10. The learned Public Prosecutor on the other hand contends that the oral evidence of PW1 on this crucial aspect is, Crl.A.No.641/06 -8- at any rate, absolutely inspiring and that course adopted by the court below cannot be faulted for that reason. The learned Public Prosecutor however submits that the State is entitled to support the findings of the court below by assailing the other findings of the court below. The learned Public Prosecutor argues that the court below had adopted super human standards of evidence when disbelieved PW2 as also the evidence of recovery of MO1 on the basis of information furnished by accused/appellant in his confession statement. The learned Public Prosecutor, in these circumstances, while supporting the verdict of guilty, conviction and sentence, submits that the verdict can be supported by assailing the findings of the court below with regard to the acceptability of the oral evidence of PW2 and the recovery of M.O1 also. 11. As already stated, the million dollar question to be decided in this case is whether the oral evidence of PW1 could be safely accepted by courts to enter a finding of guilt against the appellant to support the charge under Section 302 I.P.C. 12. Various circumstances have been narrated by the learned counsel for the appellant in support of his contention Crl.A.No.641/06 -9- that the oral evidence of PW1 should have been approached with care, caution, doubt, reservation and suspicion. At any rate, implicit reliance on the uncorroborated testimony of PW1 should not have been placed by the court below to enter crucial findings against the appellant, submits counsel. The learned counsel argues that the court below was eminently justified in not accepting and acting upon the oral evidence of PW2 and the fanciful evidence regarding recovery of M.O1 under Ext.P6 on the basis of the information Ext.P16 allegedly furnished in the alleged confession given to PW18. 13. We shall straightaway consider the question whether the court below had erred in placing reliance on the oral evidence of PW1. Initially while considering the same, we shall not embark on a consideration whether the oral evidence of PW2 and the evidence of recovery of M.O1 was rightly rejected by the court below. If necessary, after considering the acceptability of oral evidence of PW1, those questions shall be visited again. 14. The learned counsel for the appellant first of all contends that there was bitter animosity for PW1 to falsely implicate the appellant. The counsel points out that PW1 is a Crl.A.No.641/06 -10- wealthy, affluent and influential person. He points out that PW1 has a cassette shop, a business in smuggled goods and a kerosene business as also real estate business. Such PW1 wields a lot of influence in the society as also with the police, it is argued. As an incident of such influence wielded by PW1, the learned counsel points out that in respect of the incident which took place on 09.01.99, even though Ext.P13 wound certificate was there, which showed that the appellant had suffered injuries and was referred to the Medical College Hospital from the local hospital, no crime at all had been registered by the police. Only Ext.P22 and P22(a) petitions were available. They were entered in the petition register as can be seen from Ext.P20. The learned counsel builds up an argument that it is because of the influence and affluence of PW1 that no action was taken against him in respect of Exts.P22 and P22(a) and that it is he who has really directed the police and was in the driving seat in the proceedings against the appellant/accused. We find it easy to accept the contention of the learned counsel for the appellant that the oral evidence of PW1 deserves to be looked at carefully and with caution in the light of this dimension of the challenge Crl.A.No.641/06 -11- against his testimony. 15. The prosecution places crucial reliance on the fact that PW1 had suffered injuries in the incident. On that aspect we entertain no semblance of doubt at all. Ext.P14 wound certificate issued by PW16 shows clearly that PW1 had reported before the doctor at 9.30 p.m on 9.4.1999 with injuries. The doctor had found such injuries. We do not entertain any semblance of doubt that PW1 had suffered injuries as alleged by him. The counsel argues that the name of the assailant has not been furnished to the doctor PW16 in Ext.P14. We are not persuaded to agree with this attempt to make much out of the omission on the part of PW1 to mention the name of the assailant to the doctor. It cannot be forgotten that shortly thereafter the statement of PW1 is shown to have been recorded by the police. We shall come to that aspect later. Suffice it to say now that we are satisfied that PW1 had suffered injuries in the course of the incident in which the deceased Leen had also suffered injuries. To that extent we readily agree with the prosecution that the oral evidence of PW1 has a ring of truth around it. We do not attach any significance to the omission to mention the names of Crl.A.No.641/06 -12- the assailants to PW16 doctor. We must say that the counsel had pointed out to us that this doctor cannot be said to be not in the habit of recording the names of the assailants as that is eloquently clear from Ext.P13 wound certificate issued by him about 3 months earlier in which name of the assailant and details of the incident were given in detail. Be that as it may, we are unable to agree that the omission to mention the name of the assailant to a Medical Practitioner is by itself a valid circumstance to doubt or suspect the version of a witness, who is shown to have suffered injuries in the course of the same occurrence. 16. The learned Public Prosecutor further relies on the prompt and expeditious Ext.P1 F.I statement lodged by PW1, which was recorded by PW11 at 9.30 p.m on 09.04.1999, the incident having taken place at about 8.30 p.m earlier on that date. On this aspect there is great disagreement and argument. The evidence of PW11 as also PW1 reveal that Ext.P1 F.I statement was lodged at 9.30 p.m on 09.04.1999 after PW1 was examined by the doctor and admitted in the hospital. A reading of the contents of Ext.P1 makes it absolutely clear that the Crl.A.No.641/06 -13- statement was recorded after such admission. We do not find any reason to disbelieve the evidence of PW11 on this aspect. It is the very strong case of the appellant that Ext.P1 F.I statement was not prepared at that point of time. It was prepared much later, it is contended. The police had ample time to shape the F.I.R at the instance of PW1 to implicate the appellant. It is argued that this fact is borne out eminently and convincingly by the fact that Ext.P1(a) F.I.R had reached the court only on 12.04.1999 at 10.30 a.m. We have no hesitation to agree that such delay must be frowned upon. The learned Public Prosecutor points out and we find the same to be correct as per the calendar that 10.04.99 and 11.04.99 were holidays, being second Saturday and Sunday. Ideally this could be no excuse for F.I.R not being sent to court immediately. But one cannot afford to ignore the circumstance that Ext.P1(a) had reached the court on the next working day at 10.30 a.m. 17. The learned counsel for the appellant places reliance on precedents to contend that such delay must be taken serious note of. We have no hesitation to agree with the counsel on that aspect. The significance of the delay in the F.I.R reaching the Crl.A.No.641/06 -14- court will have to be assessed and evaluated in the facts and circumstances of each case. For this purpose we have looked into Ext.P1 F.I statement in detail. Ext.P1, it is seen, reveals that the name of the 4th accused was not known at that stage. PW2 a relative of the deceased is claimed to be an eye witness. It is so recorded in Ext.P4 scene mahazar dated 10.04.1999. That mahazar had reached the Court on 12.04.99 along with Ext.P1 (a). But in Ext.P1, it is not stated that PW2 is an eye witness. These certainly are indications to suggest that Ext.P1 F.I statement was not manipulated and devised with malafide intention at a later point of time prior to 12.04.99. Though dissatisfied that Ext.P1(a) F.I.R had not reached the court on 09.04.99 or on the next date, we are unable to attach crucial or sinister significance to such delay in the F.I.R reaching the court in the facts and circumstances of this case. In these circumstances, we find merit in the contention of the learned Public Prosecutor that the fact that PW1 had suffered injuries along with the deceased in the course of the same incident and the fact that PW1 had given Ext.P1 F.I statement to PW11 within about one hour of the occurrence giving clearly the precise Crl.A.No.641/06 -15- nature of the complicity of the appellant are of great significance. In this context, we take note of the fact that PW1 in Ext.P1 had not attributed any overt act to the appellant against himself. In fact, there is no allegation of any specific overt act on the part of the appellant against PW1 in Ext.P1 or in evidence. That certainly does not appear to reveal a malicious attempt to falsely implicate the appellant by PW1 in Ext.P1. 18. The learned counsel for the appellant contends that even assuming that PW1 was with the deceased and he may have suffered injuries in the course of the same transaction, his version that he had identified the accused cannot be accepted. The counsel builds up his argument on the premise that from 8 to 8.30 p.m on that day, there was power cut in that area and it was impossible that anyone could have identified the assailant in such circumstances. Even according to PW1, the injury was inflicted from behind by the assailants and the possibility of the appellant seeing them in the light of a scooter is remote. The counsel proceeds to argue that till 8.30 p.m there was power cut and there could have been no light to facilitate identification of the assailants by PW1. On that aspect we find that no precise Crl.A.No.641/06 -16- evidence is available. Even though PW10, an Engineer of the Electricity Board, was examined, his evidence does not show that till 8.30 p.m there was power cut at the scene of occurrence. We have the evidence of PW1 that there was light to enable him to identify the assailants. The counsel argues that this is a total falsity spoken to by PW1. According to the counsel, the F.I.R has been manipulated to shift the time to 8.35 p.m only for the purpose of explaining the availability of light. The learned counsel points out that in Exts.P10 and P14 - which are the wound certificates in respect of the deceased and PW1, the time of the alleged occurrence is stated to be 8.30 p.m. The counsel also relies on the oral evidence of DW1 to contend that the version in Ext.P10 was given by DW1. It is that DW1 who stated that he found the deceased lying with injuries at 8.30 p.m. The counsel argues that DW1 could have seen the deceased. 19. We are unable to accept this contention. PW1's evidence clearly shows that there was light at the scene of occurrence. Even in Exhibit P1 it has been stated that there was light available. Moreover, in the facts of this case, we do not think it to be a case where the prosecution must strain to make Crl.A.No.641/06 -17- light available to facilitate identification of the assailants as the very case of the prosecution is that PW1 and the deceased were travelling in the scooter in the night and the miscreant had stopped the scooter while they were proceeding. The light of the scooter must certainly have been available. It was certainly not necessary to go out of way to invent the source of light. It is in this context that we take into account the oral evidence of PW1 which shows that light was available at the scene of the crime. The learned counsel argues that in Exhibit P1, the source of light is stated to be light from an adjoining house. There is no specific statement that light from the electricity post was available. The learned counsel points out that from Exhibit P4 and other evidence, what can now be assumed is that there was possibility of light from the two electricity posts near the scene of crime. There is no evidence adduced to show that light from the building which PW1 claims to be available in Exhibit P1 was actually available. We are unable to agree that the omission to precisely mention the source of light in the FIR is sufficient to approach the evidence of PW1 with any amount of undeserved doubt or suspicion. We note that PW1 had clearly stated in Crl.A.No.641/06 -18- Exhibit P1 that there was light. He had also identified three of the four assailants and that is stated very clearly in Exhibit P1. In these circumstances, the laborious arguments built on the ground of omission of PW1 to precisely mention the source of light available at the scene of the crime does not command for our acceptance. 20. The learned counsel then argues that there was no motive whatsoever for the appellant to assault the deceased. The learned counsel relied on Exhibit P14 to contend that on an earlier occasion when the appellant had suffered injuries, it was the deceased who took him to the hospital. He also relies on the evidence of PW1 to contend that the deceased was residing in the house of the sister of the appellant. All these circumstances are pressed into service to contend that the deceased and PW1 had very good relationship and that it was extremely, unlikely, nay impossible that the appellant could have entertained any motive against the deceased. 21. In this context, we must note that even the prosecution does not have a specific case as to what precisely was the motive. It is contended that there was motive for the Crl.A.No.641/06 -19- first accused against PW1 and the second accused against the deceased. There was no specific assertion that the appellant had any motive against the deceased. In the circumstances of the case, it appears to us, that the dominant motive could only have been against PW1 himself though he fortunately did not have to bear the brunt of the attack. That possibility cannot be ruled out. The prosecution had relied on the motive against