IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 26TH AUGUST 2009 / 4TH BHADRA 1931 CRL.A.No. 435 of 2003() ------------------------------------ S.C.NO.94/2000 OF ADDL.DISTRICT & SESSIONS COURT (ADHOC) FAST TRACK COURT NO.I, MANJERI DTD. 6/03/2003. ..... APPELLANT(S): ACCUSED: ----------------------------------------- NAJEEB, S/O.RAMALANKUTTY, MARATHINGAL VEEDU, MANGALAM AMSOM, KOTTAYI. BY ADV. MR.P.VIJAYA BHANU RESPONDENT(S): COMPLAINANT: ---------------------------------------------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR MR. C.M.NAZAR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 26/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss ORDER ON CRL.M.P.NO.2478/2003 IN CRA.NO.435/2003 DISMISSED 26/08/2009 SD/- M.N.KRISHNAN, JUDGE /TRUE COPY/ P.A.TO JUDGE Kss M.N. KRISHNAN, J. = = = = = = = = = = = = = = = Crl. Appeal NO. 435 OF 2003 = = = = = = = = = = = = = = = Dated this the 26th day of August, 2009. J U D G M E N T This appeal is preferred against the conviction and sentence passed by the Addl. District and Sessions Judge (Adhoc), Fast Track Court-I, Manjeri in S.C.94/00. The accused was charge sheeted for an offence u/s 307 IPC and was found guilty and convicted. He was sentenced to undergo rigorous imprisonment for a period of five years and to pay a fine of Rs.2,500/- and in default to undergo simple imprisonment for a period of six months. It is against that decision the accused has come up in appeal. 2. The points that arise for determination in the appeal are: (1) Whether there are sufficient materials to connect the accused with the crime? (2) Whether the prosecution has suppressed materials before Court? (3) Is the evidence sufficient to warrant a conviction u/s 307 IPC? Crl. Appeal NO. 435 OF 2003 -:2:- Points: 3. For the sake of convenience all these points are answered together. Heard the learned counsel for the appellant as well as the learned Prosecutor. It is the case of the prosecution that at about 11 a.m. on 7.3.1995 the accused had attempted to commit murder of the defacto complainant namely Siddique due to the political enmity by voluntarily assaulting him with a knife on his neck, left thigh and left hand palm in front of a chappel shop belonging to one Muhammadali master. Ext.P2 is the document whereby the law has been set into motion. It is a statement given by Mr. Siddique(PW3) to the police. He had given a statement before the police that he had gone to the Koottayi market on the relevant date and from the market the accused came with a sword and chopped him on the left leg and left hand. According to him one Siddique had caught hold of him to enable the accused to chop him and one Kabir had pelted stones which caused injuries to him on his head. According to him the cause for the enmity is that the accused felt that the complainant had given Crl. Appeal NO. 435 OF 2003 -:3:- information to the police regarding the demolition of the structure of the school. 4. Ext.P1 is the wound certificate. The wound certificate would show that PW3 had sustained lacerated injury in the frontal region, incised wound on the palm and left thigh and abrasion in front of the right knee and there was a suspected head injury. He was referred to the Medical College Hospital, Kozhikode. PW1 is the Doctor who had examined the injured. He speaks about the examination and also the injuries and would also submit in cross examination that PW3 was conscious at the time of examination and that the injuries can be caused when the body comes into contact with harsh objects. PW3 is the injured. 5. It has to be remembered that PW3's categoric assertion before the police on the date of incident is that the accused along with two other persons had attacked him and caused him injuries. But the police on investigation on the basis of a statement alleged to be filed by the complainant exempts two other persons and puts the entire blame on the Crl. Appeal NO. 435 OF 2003 -:4:- accused. But what he has to say as PW3 is significantly otherwise. He would depose in the chief examination that he had shown the accused to the police. He would depose that it was with that MO1 knife he was chopped. He would depose that MO2 was the stone used for hitting on the head. But in the cross examination he would depose that he does not know that the accused is involved in any other cases and when a question is put to him whether any case is registered against PW3 he would deny but would admit conviction in a case. 6. He would further submit that in one case filed by one Ismail though he has not done any crime he has been convicted by the Court. He also admits about some altercation that took place in Koottayi school and two cases are pending against him. He would also state that he knows the difference between the knife and sword. He would admit that MO1 is not a sword. He does not remember what he has told the doctor. He would say that he has stated before the Police that the accused has chopped him with a sword. It is also his version that Siddique has caught hold of him in order to aid the Crl. Appeal NO. 435 OF 2003 -:5:- accused to chop him and that Kabir has pelted stones on him on account of which he became unconscious. So it has to be stated that as per the original version in the first information statement three persons had attacked him subsequently when the police questioned him he exonerates this Siddique and Kabir and when he is cross examined again before the Court he would reveal the very same story which he had stated in Ext.P2. So this has to be stated as a very serious deviation from the case spoken to by PW1 in chief examination. It was not a mistake but deliberate. 7. Again questions were put and he had reasserted that all the three persons had attacked him. He would depose that he had not stated before police that he has been attacked with a knife. So the evidence of PW3 is inconsistent and unless it is properly explained or corroborated with material evidence it may not be sufficient to warrant a conviction of the accused on the basis of that evidence. 8. The next witness who speaks about the incident is PW5. He is one Assainar. According to him he found the Crl. Appeal NO. 435 OF 2003 -:6:- accused and PW3 talking to each other near the market and quarreling between themselves. He only says that it was with a weapon like MO1 the injury was inflicted. He admits that the accused is a sympathizer of CMP party and PW3 that of the Muslim League. According to him he had seen the accused inflicting injuries on PW1 and he had not seen anything else and never had seen Kabir and Siddique there. He also knows the difference between the sword and the knife. He also admits that some incident had taken place in the Madrassa prior to this and he does not know from where MO1 came. 9. PW8 is examined to prove that it was his knife that is used for the offence which is marked as MO1. He would submit that the said knife is used for cutting the lime as well as the betel nut. It is very difficult to believe that a knife with a length of 37 cm with a blade of 22 cm is used for the purpose of cutting lime in order to make the lime juice. According to him he has not seen the accused taking the knife from him. He has also not seen the incident but would state that he has seen the knife with the accused. It is very difficult Crl. Appeal NO. 435 OF 2003 -:7:- to believe such a story and according to him nobody has shown him MO1 and questioned him whether it is his knife. Therefore the evidence of PW8 with respect to the ownership of the knife appears to be totally untrustworthy and that cannot be looked into. 10. PW12 is the Investigating Officer. It is stated that when the accused was apprehended after the period of 27 days he made the statement u/s 27 of the Evidence Act and whereby he was taken to a place in a Mosque wherein there is a kabasthan and it was from there MO1 was recovered. It has to be stated that it was in a public place and even according to PW2 there was absolutely no strain of blood in that knife. It has to be stated that when the complainant submits that he was chopped with a sword and what is produced as a material object is the knife especially in the back drop that PW3 knows the difference between the knife and sword, the Court has to be very much guarded in accepting the recovery that too alleged to have taken place 27 days after the alleged commission of the offence that too from a public place where Crl. Appeal NO. 435 OF 2003 -:8:- all people have got access. Therefore the recovery of MO1 also is suspicious. 11. Now there is a case for the defence that PW3 had attacked the accused and he had been injured and that he was in the hospital and a case had been registered. DWs1. to 3 and documents were marked which evidences that the accused had also sustained injuries in the incident and he had undergone treatment in the hospital. The doctor who had examined him also had deposed about the same. DW3, a witness examined on behalf of the accused had stated that it was PW3 who had attacked the accused and he had seen it. Unfortunately the Court below did not try the case and the counter case together which would have been very ideal to analyze the evidences very correctly but since it is not done one cannot rely upon the same to arrive at a decision. So a summary of the materials available would indicate that PW3 has absolutely no consistent case regarding the attack alleged to be made on him. The story of recovery through PW12 as supported by PW8 appears to be only a story which has to be Crl. Appeal NO. 435 OF 2003 -:9:- simply rejected. The evidence of PW5 also goes directly against the evidence of PW3 and when PW3 insists that he had been attacked by three persons. But the contra evidence adduced by the accused would reveal that there had been some altercations and he had also sustained injuries in the incident. The prosecution has no case that at any point of time that there was any altercation between PW3 and the accused and therefore it has to be stated that the prosecution has suppressed the true genesis of the incident from the purview of the Court. It is in that situation it is desirable to refer to the decision of the Apex Court reported in State of Madhya Pradesh v. Sardar (2001 (3) KLT S.N. Case No.18 page 13). The Court held that in a case of non- explanation of injuries to the accused, Court can draw following inferences: (1) That the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version. (2) That the witnesses who have denied the presence of the injuries on the person of the Crl. Appeal NO. 435 OF 2003 -:10:- accused are lying on a most material point and therefore their evidence is unreliable. (3) That in case there is a defence version which explains the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. But non explanation of injuries may loose its importance where the evidence is clear, cogent and credit worthy and where Court can distinguish the truth from falsehood without much difficulty.” 12. Here from the facts emanating in this case the prosecution has suppressed the materials. Even the injured does not have a consistent case and everything seems to be artificial and coupled with the same non explanation of the injury sustained by the accused looms large and the inevitable conclusion is that the prosecution has not come forward with the true facts of the case and therefore had suppressed the materials and the evidence is lacking which entitles the accused to get the benefit of doubt of acquittal. 13. Therefore the Crl.Appeal is allowed and the Crl. Appeal NO. 435 OF 2003 -:11:- conviction and sentence passed by the trial court is set aside and the accused is found not guilty of the offence u/s 307 IPC and he is set at liberty forthwith. If any amount is lying in Court deposit towards the suspension of sentence as the accused is not guilty he is entitled to withdraw the same on proper application. M.N. KRISHNAN, JUDGE. ul/- Crl. Appeal NO. 435 OF 2003 -:12:- M.N. KRISHNAN, J. = = = = = = = = = = Crl.A. No. 435 OF 2003 = = = = = = = = = = = J U D G M E N T 26th August, 2009