IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN MONDAY, THE 24TH AUGUST 2009 / 2ND BHADRA 1931 CRL.A.No. 970 of 2005() ----------------------- SC.588/2003 of ADDL. SESSIONS COURT (ADHOC), TRIVANDRUM .................... APPELLANT(S): ACCUSED: ----------------------------- GOPI, S/O. CHELLAPPAN, HOUSE NO.VP.9/361, VELLAYKONAM HARIJAN COLONY, CHOOZHATTUKOTTA, VILAVOORKAL VILLAGE. BY ADV. SRI.M.RAJAGOPALAN NAIR RESPONDENT(S): COMPLAINANT: ------------------------------------ STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.NOBLE MATHEW. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 24/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: A.K.BASHEER & P.S.GOPINATHAN, JJ. == = = = = = = = = = = = = = = = = = Crl.Appeal No.970 of 2005. = = = == = = = = = = = = = = = = = = Dated this the 29th day of June, 2009. J U D G M EN T Basheer, J. The appellant was tried for the offences punishable under Sections 447, 324 and 302 IPC. He was found guilty and convicted and sentenced to undergo rigorous imprisonment for one month for the offence under Sec.447 IPC. He was sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rs.5,000/- with a default sentence of rigorous imprisonment for six months for the offence under Section 324 IPC and for the offences punishable under Sec.302 IPC he was sentenced to undergo imprisonment for life and to pay a fine of Rs.10,000/- with a default sentence of rigorous imprisonment for two years. It was further directed that if the fine amount was realised from the appellant, a sum of Rs.5,000/- shall be paid to PW1 as compensation under Sec.357(1) of the Code of Criminal Procedure. 2. The prosecution case may be briefly noticed. 3. On November 4, 2000 at about 12.30 p.m. deceased Appu was having his lunch in his house. At that time PW1 who had been living with deceased Appu, as his second wife, had gone out near the well in the residential compound of their property to fetch some firewood. According to PW1, appellant/accused came and stood in the lane in front of their house and abuse her in filthy language. Pw1 asked the accused to go away. But the accused snatched a log of firewood (MOI) from her hands and hit on her head. She evaded the hit with her right hand. In that process she sustained any injury on the elbow. She cried aloud and fell down on the ground. At that time deceased Appu came to the scene and picked her up from the ground. The accused hit deceased Appu on his abdomen with MO1 wooden log. Deceased Appu sustained a bleeding injury on his abdomen and he bent down. At that time accused hit deceased Appu on his head with MOI, Appu fell down on the ground on his nose. PW1 stated that the brain matter came out of the skull of Appu. It was bleeding. She sat down and put the head of Appu in her lap. Accused hit PW1 on her head again which fell on the right side of her head. Accused went away towards north in the direction of the residence of Uthaman with MOI wooden log in his hand. According to PW1, the accused went away from the scene saying that Appu should not remain alive to speak falsehood against anybody and that he had come to finish him off. PW1 also stated that some people had come to the scene hearing her cry. Her son was also at the scene. She took the injured to Medical College Hospital, Thiruvananthapuram along with her son and Uthaman. Police recorded her statement at the hospital (Ext.P1) at about 3.30 p.m. Later, Ext.P1(c) First Information Report was registered by the police at 5.30 p.m. on the same day. Initially the police had registered the crime against the accused only for the offences punishable under Sec.447 and 324. But later Sec.307 IPC was also incorporated. Still later, Sec.302 IPC was incorporated after the death of Appu. Investigation was completed and charge sheet was laid subsequently. 4. Prosecution examined PW1 to PW13 and marked Exts.P1 to P10 and MOI and MOII on its side. Exts.D1 to D4, which were contradictory portions of the case diary statements of PW1, PW2 and PW5 were mared on the side of the defence. 5. The learned Sessions Judge after considering the oral and documentary evidence on record held that the prosecution had succeeded in proving the charge against the accused under Sections 447, 324 and 302 IPC. Accordingly, appellant/accused was convicted and sentenced under the three counts as mentioned above. 6. It is contended by learned counsel for the appellant that the court below has committed serious illegality in relying on the highly contradictory versions given by PWs.1, 2 and 5 regarding the alleged incident. He further points out that even going by the recital in Ext.P4 scene mahazar prepared on the next day of the alleged incident, there were fell tale marks of a scuffle involving more than three or four people. Several material objects at the alleged scene of occurrence, which under normal circumstances would have been very crucial pieces of evidence in a criminal prosecution. never saw the light of the day. He has also invited our attention to the material contradictions (Exts.D1 to D4) marked in the course of the examination of witnesses, which according to him, will cut at the root of the prosecution case. In short, it is contended by the learned counsel that the evidence on record did not in any way establish that the alleged incident could have taken place as claimed by the prosecution. 7. Per contra, it is contended by the learned Public Prosecutor that PWs.1, 2 and 5 being rustic witnesses had narrated the incident in a totally convincing manner. It is true that there were some glaring defects in the investigation; but still, the court below was justified in holding the appellant guilty of the offences alleged against him. 8. PW1 claimed that she had been living with deceased Appu as his wife (though there was no legal marriage) along with her minor son born in her first marriage with one Surendran. On the day of the incident deceased Appu had gone for work as usual, in the nearby property of Uthaman. He came back at about 12.30 and was having his lunch in the house. At that time PW1 wanted to collect some firewood kept near the residential compound across the lane. About ten meters away while she was collecting firewood from their property the accused came and stood in front of her house in the lane near the courtyard. Accused abused her in filthy language. She told him to go away. According to PW1, at that time the accused snatched away one piece of firewood (wooden log) and hit her on her head. She tried to evade the hit in which process the hit fell on her right elbow and sustained a wound. She fell down and cried aloud. Appu came to the scene and lifted her from the ground. At that time the accused hit Appu on his head with MOI wooden log. He sustained an injury on his head, Appu get down on his abdomen and went down. When the accused hit Appu on his head with MOI wooden log, Appu fall down on his face. The brain material came out of his skull with blood. PW1 kept the head of Appu on her lap and cried. Thereupon the accused hit PW1 again on her head with MOI. She sustained a wound on the right side of her head. The accused went towards the house of Uthaman with MOI on his hand. According to PW1, while going away from the scene the accused stated that Appu should not remain alive to speak falsehood against nobody and it is therefore that he had come there to finish him off. PW1 identified the wooden log produced before the Court as MOI. According to her, PW2, her son was also there at the scene of occurrence. She took Appu to the Medical College Hospital, Thiruvananthapuram along with Uthaman and her son. Police recorded her first information statement at the hospital. She identified her signature in Ext.P1. Appu remained in the intensive care unit of the hospital till he died on the seventh day (Appu died on Novermber 9, 2000 as is revealed from the records). PW1 further stated that the accused was enimically disposed of towards deceased Appu, since the latter had spoken to the police against one Mohanan, a close friend of the accused, in the course of an enquiry conducted by the police in connection with a complaint. It is because of the statement given by deceased Appu against Mohanan that the accused had assaulted him. Pw.2, the son of Pw.1 who was aged about 9 years at the time of the alleged incident stated that he saw the accused hitting deceased Appu with M.O.1 wooden log. He further stated that he had seen the incident while he was standing along with his mother (Pw.1), Leela (Pw.5), Sura, Uthaman, Ani and Kuttappan. According to this witness, the accused hit Appu with M.O.1 on his head. Initially he had stated that the accused had not hit anyone else. But when he was prompted by the Public Prosecutor he answered that the accused had hit his mother also before hitting Appu. The accused had abused both of them, according to this witness. Ext.D2 was marked in the course of examination of this witness. In this contradictory portion of his statement given before the Police he had stated that he had come out of the house along with his mother and stood in the courtyard and seen the incident. He further stated that he had gone near the well after hearing his mother's call. Deceased Appu had come to the scene later. We will deal with the evidence of this witness further, a little later. 10. Pw.3, Assistant Professor, Department of Forensic Medicine, Medical College, Trivandrum conducted autopsy on the body of the deceased and issued Ext.P2 post mortem certificate. The doctor had noted 11 injuries including an infected bed sore on the back (injury No.11). The injuries (ante mortem) are extracted hereunder: “1.'^' shaped sutured lacerated wound on the right side of top of head the front end of the longer inner limb (2.5 cm long and 0.5 cm deep) being 1 cm. to the right of midline and 12 cm above the root of nose. The front end of the outer short limb (1.5 cm long and 0.5 cm deep) was 12 cm above the top of right ear. 2. Sutured lacerated wound 1.5 cm. long and 0.5 cm. deep vertical on the top of head in the middle 8 cm. above the root of nose. 3. Sutured lacerated wound 2 cm. long and 0.5 cm. deep obliquely placed on the right side of forehead, its lower inner end being 1 cm. to the right of midline and 5.5. cm. above the root of nose. 4. Sutured infected wound 2 cm. long and 0.5 cm. deep surrounded by an abrasion 2 x 2 cm. on the right side of forehead 1 cm. to the right of mid line and 1 cm. above eyebrow. The scalp on the forehead and adjacent part of top and sides was seen contused over an area 23 x 14 x 1cm. and was dark red in dolour. The frontal and parietal bones underneath showed commuted fracture over an area 16 x 9cm with fissured fractures extending to both temporal bones. Extradural haematoma 14 x 11x 2 cm. dark red in colour was seen on both temporo parietal areas with corresponding indentation on the surface of brain. Brain showed bilateral dark red sub arachnoid bleeding, softening inright busal ganglion (2 x 1 x 0.5 cm.) and signs of raised intra cranial tension. 5. Infected wound 1 x 0.5 x 0.3 cm. on the root of nose. 6.Infected wound 2 x 2 x 0.3 cm. on the right ala of nose. 7. Multiple linear abrasions over an area 6 x 2 cm. on the front of right forearm 8 cm. above wrist. 8. Contusion 16 x 15 x 0.5 cm. bluish on the right side of lower abdomen and adjacent part of front of thigh just to the right of symphysis pubis and over and around the top of hip bone with multiple linear abrasions over an area 6 x 4 cm. on the top of hip bone. 9. Multiple small abrasions over an area 4 x 4 cm. along the lower margin of injury on the front of thigh. 10. Abrasions 3 x 2 cm. on the left side of front of chest 10 cm. to the left of mid line and 16 cm. below collar bone. 11. Infected bed sore 3 x 1.5 x 0.2 cm. on the back of head overlying occipit.” Pw.3 in Ext.P2 as well as in her deposition stated that the victim died due to head injury. 11. Pw.4 was the Scientific Assistant who issued Ext.P3 report after examining M.O.1 wooden log. He examined the log in August, 2001 (nearly nine months after the incident). In Ext.P3 report he stated that the wooden stick contained blood which was insufficient for determining the origin and group. The certificate was issued by him on November 12, 2001. 12. Pw.5 is the other material witness on the side of the prosecution. She had been admittedly residing on the southern side behind the residence of Pw.1 which is slightly in an elevated position. This witness stated that at about 12.30 p.m. she heard a hue and cry from the residence of Appu. She saw Pw.1 lying on the ground. Deceased Appu and Pw.2 were standing nearby. The accused was also standing near them with a wooden log. When deceased Appu tried to lift Pw.1 from the ground, the accused hit him on his head with the wooden log. Deceased Appu warded off the hit with his left hand. It hit on his left hand. The accused hit again which fell on the head of Appu. He fell down on his face. Pw.1 kept the head of Appu in her lap. At that time the accused gave another blow on the head of Pw.1. The accused ran towards the house of Uthaman with M.O.1. Pw.5 also spoke about the words allegedly spoken by the accused while running away. This witness categorically stated that Sura alias Surendran and Uthaman were standing at the scene of occurrence seeing the incident. She had pointed out the scene of occurrence. She stated that she did not know the reason for animosity which led to the incident. We will revert to the evidence of this witness also, a little later. 13. Pw.6 stated that she was residing on the northern side of the residence of the deceased. At about 12.30 p.m. on November 4, 2000 she saw the accused running from the side of the well in the residential compound of Appu with M.O.1 in his hand towards the residence of Uthaman. She had given a complaint to the Director General of Police against one Sadasivan and Divakaran alias Mohanan alleging that they had falsely implicated her son Josy Abraham in a case. According to her, these two persons had given a false complaint against her son Josy Abraham and 8 others alleging that they had inflicted cut injuries on them. Though the 9 accused had approached the Magistrate's Court and the Sessions Court seeking anticipatory bail, they did not succeed. It was thereafter that she had given a complaint before the Director General of Police alleging that her son and others were falsely implicated in the case. In connection with the enquiry pursuant to the complaint given by her, some higher Police Officials had conducted an enquiry two weeks prior to the death of Appu. While he was questioned by the Police Officers, deceased Appu had allegedly given a statement against Divakaran alias Mohanan. The prosecution case was that the accused who was a close friend of Mohanan became inimical towards deceased Appu after he gave such a statement against Mohanan before the Police. 14. Pw.7 was an attestor to Ext.P4 scene mahazar. Pw.8 attested Ext.P5 inquest report. Pw.9 Head Constable recorded Ext.P1 First Information statement of Pw.1 and registered Ext.P1(a) First Information Report. 15. Pw.10, Sub Inspector took up the investigation of the case and visited the scene of occurrence on November 5, 2000. He prepared Ext.P4 scene mahazar and recovered M.O.1 wooden log used for commission of the crime allegedly from very near to the scene of occurrence, about 5 meters away from the residence of Cw.6. In the course of investigation he filed Ext.P6 report incorporating Section 307. In cross examination this witness admitted that M.O.1 wooden log was produced by him before the court. But he admitted that it was received in the court only on July 31, 2007, about 8 months after the incident. He said he could not give any explanation for the delay. He thought that M.O.1 might have been kept in the Police Station in order to show it to the witnesses. He further stated that in Ext.P4 mahazar it had not been stated that there were blood stains on M.O.1. He further stated that he did not record that brain matter had been found in the soil, at the scene of occurrence. 16. Pw.11 the Circle Inspector of Police took over the investigation on November 8, 2000. He conducted inquest on the body of the victim and prepared Ext.P5 inquest report. He filed Ext.P8 report before the court requesting to delete Section 307 IPC and to incorporate Section 302 IPC. He arrested the accused on November 29, 2000 at about 6.45 p.m. He recovered two ten rupee notes from the pocket of the accused which were marked as M.O.2 series. In cross examination this witness stated that on November 8, 2000 when he took over the investigation he had instructed Pw.10 sub Inspector to produce M.O.1 before the Court. 17. Pw.12, Circle Inspector, Nemom stated that he conducted investigation in the crime from July 23, 2001 till July 15, 2002. He verified the records and submitted charge sheet before the court after questioning Cw.14. Ext.P9 scene plan prepared by the Village Officer was marked through th is witness. 18. Pw.13 was working as Lecturer in Surgery in the Trivandrum Medical College Hospital during the relevant period. On November 4, 2000 at about 2.10 p.m. he had examined Appu and issued Ext.P10 wound certificate. He deposed before the Court that he noted only the following injury: “Multiple small laceration scar. Bleeding from right ear. “ He further noticed that the patient was drowsy and disoriented. The alleged cause of injury was assault at Choozhattukotta at 12 noon on that day. 19. As mentioned earlier, Pws.1, 2 and 5 had allegedly witnessed the occurrence. Pw.1 stated that the accused came towards her and snatched away one wooden log from her hand and hit on her head. But she warded it off with her hand. It is the specific case of Pw.1 that she received a wound on her hand. She fell down on the ground. At that time her husband came to the scene hearing her cry and lifted her up from the ground. The accused hit deceased Appu on his abdomen with M.O.1 wooden log. He sustained a bleeding injury on his abdomen. When Appu bent down because of the impact of the hit on his abdomen, the accused hit him on his head. Appu fell down to the ground face down. 20. It is significant to note that Pw.1 stated that brain matter came out of the bleeding skull of deceased Appu. She put the head of deceased Appu on her lap and cried. At that time the accused gave another blow on his head with M.O.1 stick. The specific case of Pw.1 was that she was wearing a kyli (coloured dhoti) at the time of the incident. In cross examination this witness conceded that large quantity of blood had been oozing out from the abdomen of Appu. But when it was pointed out that she had no case before the Police that deceased Appu was hit on his abdomen with M.O.1 stick, she stated that she had said so before the Police. Similarly she had also told the Police that when Appu had bent down because of the impact of the hit on his abdomen the accused had hit him on his head. She also stated that she had told the Police that the brain matter had come out of the skull of deceased Appu. The above versions were absent in her statement before the Police. 21. What is significant is that this witness asserted that the red kyli which she had been wearing at the time of the incident was smeared with brain matter and blood. She categorically stated that she did not show the Kyli to the Police. According to her, she changed her kyli and wore a saree before going to the hospital with Appu. Similarly the towel (thorthu mundu) which was used to wipe off the blood on the head of Appu was also left at the scene of occurrence. She further stated that she used another towel (thorthumundu) for bandaging the head of Appu, which she took from her house. Curiously this witness stated that the kyli which she had been wearing at the time of occurrence was still available at home. She further stated that Police had questioned her for the second time three months after the incident. Even at that time she did not choose to show the kyli to the Police. The Police also did not ask her about the same. The towel which was used as a bandage on the head of Appu while he was taken to the hospital was left behind at the hospital. That was also not produced before the Police, since according to her she did not see it. This witness insisted that she had told the Police about the kyli and the thorthu which she had left behind at the scene of occurrence. But she could not say why such a statement was absent in the statement recorded by the Police. She had also informed the Police that the brain matter and blood were splashed on the ground. She also stated that she did not show the Police the saree she was wearing when she went to the hospital. The Police did not seize it. 22. One other striking aspect in the evidence of this witness is that she had taken Appu to the hospital in the autorickshaw of one Ani along with Uthaman and Pw.2 But neither Uthaman nor Ani was examined before the court. But Pw.2 , in no uncertain terms, stated that Suran and Uthaman were present at the scene apart from Pw.1, Pw.5 and Kuttappan when the incident took place. He had a further case that uncle Sura, Ani Annan, Kuttappan uncle apart from him and Pws.1 and 5 had been watching the incident. Pw.5 had categorically stated that Suran alias Surendran and Uthaman were there at the scene of occurrence. But the prosecution did not choose to examine Suran, Uthaman, Kuttappan or Ani. There is no explanation for the non examination of these material witnesses. 23. In the course of cross examination of Pw.1, it had also come out that deceased Appu had been wearing a lunki with green lines at the time of the incident. She had stated that brain matter and blood were found on the lunki. When she was questioned whether it was produced before the Police, she stated that it was changed in the ICU. at the hospital. She forgot to hand it over to the Police. As regards the