IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY FRIDAY, THE 26TH OCTOBER 2007 / 4TH KARTHIKA 1929 CRL.A.No. 140 of 1998() ----------------------------- SC.42/1996 of IV ADDL.SESSIONS COURT, ERNAKULAM. .................... APPELLANT: ACCUSED NO.1 --------------- MUHAMMED BASHEER, S/O. NAHUKANNU, SAJEENA VEEDU, MANNAM DESOM, PARUR VILLAGE, PARUR TALUK, (P.C. 5320 OF VADAKKEKARA P.S.) BY ADV. SRI.C.KHALID SRI.A.MOHAMMED SRI.K.J.MOHAMMED ANZAR RESPONDENT/ COMPLAINANT ---------------- STATE OF KERALA, REP.BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. BY PUBLIC PROSECUTOR SRI.NOBLE MATHEW THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 26/10/2007,ALONG WITH CRRP NO. 343 OF 1998 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss J.B. KOSHY, J. -------------------------------------------- Crl.Appeal No. 140 & Crl.R.P.No. 343 of 1998 --------------------------------------------- Dated this the 26th day of October, 2007 Order Two police constables faced trial for offences punishable under section 323, 324 and 320 read with section 34 of the Indian Penal Code. Second accused was acquitted of all charges by the trial court. First accused was found guilty for offences punishable under sections 323 and 324 IPC. He was also found not guilty for the offence punishable under section 302 IPC. Crl. R.P. No.343 of 1996 was filed by the defacto complainant, mother of the deceased, who was examined as PW8 challenging the acquittal of A2 and acquittal of A1 for the offence punishable under section 302 IPC. 2. The prosecution case can be summarised as follows: Both accused were on beat duty on 8.10.1994 in Gothuruth, the coastal area of Ernakulam district. Deceased, a resident of Gothuruth after consuming liquor from a toddy shop, passed through the road in front of St. Antony's Church, Gothuruth at 8.30 p.m. on that day. The deceased who had consumed liquor and used abusive words against the police constables, accused assaulted him with lathi. On sustaining the blows, he ran towards north and he was chased by the accused at a place 500 metres north of the chappel and the constables again Crl.A.No.140/98 & Crl.RP 343/98 2 assaulted and stamped him. While he was leaning towards the fence there, PWs 1 and 3 intervened and took him to his house. From the house, since he felt numbness, he was taken to Santhi Hospital and from there to K.M.K. Hospital, N. Parur and admitted. Since his condition became serious, he was taken to City Hospital, Ernakulam. In the meanwhile, on 9.10.1994, Vadakkekara police registered a crime for offences punishable under sections 323 and 324 read with section 34 IPC. While undergoing treatment in City Hospital, Ernakulam, the victim expired on 27.10.1994 on account of the injuries to cervical segment of spinal cord, namely, tearing of anterior cervical ligament and separation of 6th and 7th cervical vertebrae. F.I.R. is based on Ext.P6 first information statement recorded by PW10, Francis, a head constable. First information statement was taken from the City Hospital. In the first information statement allegedly given by the injured himself, it is stated that he was coming after consuming liquor from the toddy shop to the house near the Chappel and he abused the duty police constables. Then the police constables beat him with hand, lathi etc. On the way, in front of the shop of PW1, police constables again beat him and assaulted him. At that time, PWs 1 and 3, who came there, took him to the house. Since he was restless, his hands Crl.A.No.140/98 & Crl.RP 343/98 3 and legs were tied and put on a cot. Thereafter, he was unable to move and he was taken to Santhi Hospital and from there to K.M.K. Hospital, N. Parur and thereafter to City Hospital, Ernakulam. It was also stated that police constables assaulted him because of the enmity due to calling them abusive words. 3. At the outset, I may state that it is the alleged statement of deceased which was recorded by PW10 on 9.10.1994 at 8.00 p.m. Only thump impression was put on it. It cannot be taken as a dying declaration even if its genuineness is accepted, because state of mind of the deceased was not certified by the doctor at the time of giving the statement and he was not expecting death at that time and he expired only on 29.10.1994 after 20 days. The statement was recorded in the I.C.C.U. of the City Hospital, Ernakulam, but, PW11 doctor stated that no permission was given to anybody to take such a statement. The suggestion of the defence is that police recorded the above statement out of their own imagination as two police constables are accused in this case. PW8 though stated that deceased put up his signature voluntarily, in cross-examination he was contradicted as in 161 statement he has stated that deceased was unable to speak. In the body note attached to Ext.P1 it is stated that he was having Crl.A.No.140/98 & Crl.RP 343/98 4 quadraplegia, but, injuries given in Ext.P10 issued by K.M.K. Hospital was not noticed by him after considering the evidence of PW1 and other certificates, trial judge found that Ext.P1 was not given by the deceased and Ext.P1 statement was manipulated by the police (see para 25 of the trial court judgment) and I agree with the above reasoning. 4. PW1, who admittedly took him to the house along with PW3, gave evidence that while he was standing in front of his house brushing his teeth after dinner, he saw police constables standing in the road near the chappel. When, one police constable lighted torch, he saw that the deceased was coming and then police asked him: are you the accused in the house-breaking case? and according to him, it is A2, who asked this question. By the time the deceased came near the police, A2 beat him on the abdomen and deceased ran away. Then two police constables, A1 and A2, ran after him. About 500 metres away, he saw A1 beating the accused and also kicking the deceased with shoes. Then, he went near A2 and asked can we take deceased? By the time, PW3 also came there and they took the deceased to the house. Before that, first accused gave two more kicks to the deceased. Thereafter, he was taken to the house from there Crl.A.No.140/98 & Crl.RP 343/98 5 along with his brother to K.M.K. Hospital and from there he was taken to City Hospital, Ernakulam in an ambulance. At that time, he was not conscious. He also stated that he saw the incident because of the electric light in the Chappel and nearby houses. He also deposed that while deceased was under treatment, when deceased was unconscious, PW8, along with him entered I.C.U. after telling the nurse and got thumb impression of Thomas in three blank white papers. When he asked why they have taken thumb impression PW8 told him that he need not enquire that, but, obtained his signature below the thumb impression put by the deceased. In cross-examination, it was stated that in Gothuruth, the place of incident, there are many illicit production and sale of arrack centres and he was an accused in several cases like attack of houses of prohibition council members, but, all cases were acquitted. He stated that after this case, police has registered two false cases against him. PW2 is a chance witness who deposed that he is a conductor. His duty ended at Parur and he could have gone through other easiest road to his house, but, he decided to come that way and he saw the incident. The trial Judge who saw the demeanor of the witnesses did not believe him. I am also of the view that he cannot be believed. Admittedly, PW3 is also a person who has Crl.A.No.140/98 & Crl.RP 343/98 6 taken the deceased to his house immediately after the incident along with PW1. He is a fisherman by profession. While he was catching fish by using chinese net, he heard the sound of beating and crying and he rushed to the spot. At that time, he saw A1 beating the deceased. PW4 is the Sub Divisional Magistrate who conducted the inquest of the body. PW8 is the mother who deposed that his son was brought to the house in a very bad condition by PWs 1 and 3 and the deceased stated to her that police constables beat him and he may not live and mother can treat him as lost. 5. Now, we will come to the medical evidence. PW7 is the doctor who issued Ext.P10 wound certificate and he proved Exts.P10 wound certificate and P11 case sheet. Injuries noted in Ext.P10 wound certificate is as follows: "1. Contusion forehead. 2. Linear contusion on back at 3 sites. 3. Abrasion (L) elbow and (L) knee. 3. Small haematoma scalp." It was also stated that the patient was having spine and head injuries. The patient was not moving his lower limbs at all and there was sluggish movement of upper limbs. There was smell of alcohol also Crl.A.No.140/98 & Crl.RP 343/98 7 from the patient. He further stated that the injuries can be caused by assault with lathi, but, it can also be sustained on a forcible contact with somewhat round and elongated surface. He also stated that those injuries cannot sustain on a fall from a height of three feet on a rounded and elongated edge. In the history column, it is stated that assault when the patient was walking after consuming alcohol at Gothuruthu at 9.00 p.m. on 8.10.1994. In Ext.P11 case sheet it was written that patient was beaten up by a group of people likely to be police while walking after consuming alcohol at Gothuruthu at 9.00 p.m. on 8.10.1994. In cross-examination, it was stated that Ext.P10 was prepared on the basis of Ext.P11. He also stated that the patient did not tell him any answer definitely, but, according to him, it seems that he was beaten up by police. PW6 is the doctor in charge of casualty of City Hospital. She stated that she examined the patient at 4.00 a.m. on 9.10.1994. History stated by her was beaten up by police at Gothuruthu at 9.30 p.m. on 8.10.1994 and the patient expired on 27.10.1994. PW11 is the neuro surgeon who treated the patient. He issued Ext.P7 which is as follows: "Thomas, 28 years, male, s/o. Jussa, was ref. from K.M.K. Hospital with history of being beaten up at Gothuruthy. He has sustained injury of the cervical spinal cord C6-7 and has complete Crl.A.No.140/98 & Crl.RP 343/98 8 paraplegia below C7 and till now has shown no improvement. He is unlikely to improve." Doctor deposed that since he was having paraplegia, he will not be in a position to put thumb impression and, therefore, it is unlikely that he has given such a statement. 6. PW5 police surgeon conducted postmortem certificate. Following ante-mortem injuries were noted by him: "1. Partially healed abrasion 9.3 x 0.3 c.m. on the outer side of right little toe. No other abrasions seen on the body. 2. Peeling of outside (bed sore) on an area 0.5 x 0.5 c.m. just above the natal cleft. 3. Contusion 2 x 1 c.m. just above the back of left wrist. 4. Contusion 6 x 3 c.m. on the back of right hand. 5. Contusion 2.5 x 2 c.m. on the back of right forearm just above the wrist. 6. Contusion 5 x 2 c.m. on the middle of the front of right forearm. 7. Contusion 6 x 5 c.m. on the lower part of the back (lumbar area). 8. Contusion 2 x 2 c.m. on the outer aspect of left wrist. All the above contusions were bluish black in colour. No other injuries seen on the body. Crl.A.No.140/98 & Crl.RP 343/98 9 Internal findings are as follows: Scalp, skull and dura mater were normal. Brainas; was slightly congested and oedematous. On dissection of the neck anterior cervical ligament was found torn at the level of C6-7 level. Bodies of 6th and 7th cervical vertebrae were found separated anteriorly. The corresponding segment of spinal cord was found covered with blood clots. Multiple small haemorragic areas were seen inside. Air passages contained no foreign bodies. No larynasal oedema seen. Both lungs were slightly congested. Chambers valves and coronary arteries of heart appeared normal. Right chambers of heart contained a few blood clots. Left chambers were empty. Stomach contained 190 ml. of brownish fluid. No unusual smell. Mucosa was normal. Urinary bladder contained 20 ml. of urine. Liver, spleen, kidneys and all other internal organs were slightly congested, otherwise normal." With regard to the injuries, he explained as follows: "Collection of the blood on the dependent portions of the body due to gravity, after death is called postmortem staining. Marbling is discolouration of the veins after death. It is caused by decomposition of blood inside the veins. Ante-mortem injury No.1 is a partially healed abrasions. It can be caused on contact with a piece of metal or stone. Injury No.2 is noted as a bed sore. Bed sore is due to prolonged lying on bed. Injury Nos.3 to 8 are contusions. Repeated injections to a person cause extra-vasation of blood. Extra-vasation of blood on the subcutaneous tissue will be similar to contusions." Crl.A.No.140/98 & Crl.RP 343/98 10 He further stated that injury Nos.3 to 8 except injury No.7 can be caused by repeated intra-veinous injections and drips. In the case of spinal cord injuries, lumbar puncturing is usually done. Injury No.7 may be due to repeated lumbar puncturing. He also stated that injury to cervical spinal cord usually occurs in falls and it can be possible by a fall if his legs and hands are tied and there was struggle. He also stated that a fall even from a height of five to six feet on one's head may cause a cervical spinal injury and if the fall is from a lesser height, usually, that kind of injuries will not occur. Due to assault also, such an injury can be caused. He further stated that nail marks caused on assault with a stick will remain for three to four days only. The postmortem was conducted much after the incident. 7. Evidence, as a whole, would show that, throughout, the investigation police was helping the accused, the fellow-police constables, but, we can convict a person only on the basis of admissible evidence available in the case. The presence of PWs 1 and 3 at the place of incident cannot be disputed as they are the persons, admittedly, taken the deceased to the house as spoken to by PW8. There is no reason to disbelieve PW8. PW8 is the aged mother of the deceased. She only stated that PWs 1 and 3 took the deceased Crl.A.No.140/98 & Crl.RP 343/98 11 to the house in a precarious condition and her son stated that police beat him and as a result of the injuries, he will not be able to live much. But, PW8, as rightly stated by the learned counsel for the appellant that there may be some exaggerations. As far as PW1 is concerned, he is a natural witness and PW3 has not seen the earlier incident, but only the later incident wherein A1 was beating the deceased. Considering the medical evidence, the trial court found that some of the corresponding injuries are available with regard to the overt act done by A1, but, there is no such corresponding injury on the body. With regard to the overt act done by A2, PW3 did not speak any specific assault by A2. In these circumstances, benefit of doubt was given to A2. Even though PW8 mother has filed a revision petition, we are unable to interfere in the acquittal given on the basis of the benefit of doubt to A2 in a revision petition. It cannot be stated that the above finding is perverse or patently erroneous so as to reverse an order of acquittal in a revision petition. 8. With regard to the overt act committed by A1, the trial court found that, originally, four constables were there, but, thereafter the deceased was chased away by A1 and A2. PW3 deposed that he saw A1 and A2 were assaulting the deceased. PW3 says that even Crl.A.No.140/98 & Crl.RP 343/98 12 though there was only two police constables (A1 and A2) and he saw A1 beating the deceased. A2 was only given the benefit of doubt. It was rightly argued by the counsel for the accused that death might have the combined effect and death happened only after 18 days of the incident, after prolonged treatment. So, it cannot be stated that injuries on the deceased was inflicted by the first accused only. There is clear evidence to hold that injuries inflicted by A1 led to death. Therefore, acquittal of A1 for offence punishable under section 302 cannot be treated as without any reason and no interference in the acquittal of A1 for offence punishable under section 302 IPC is needed in a revision petition. 9. With regard to the finding of guilt of A1 under sections 323 and 324, I have also seen that evidence of PWs 1 and 3 clearly proves that A1 has beaten and assaulted the accused with lathi. There is nothing to disbelieve the evidence of PW3 and, therefore, there is no need for interfering with the conviction entered for offences punishable under sections 323 and 324. 10. Now, with regard to the sentence, it is true that the Sessions Court has taken a lenient view and he was sentenced to undergo three months' rigorous imprisonment under section 323 IPC Crl.A.No.140/98 & Crl.RP 343/98 13 and one year rigorous imprisonment for the offence under section 324 IPC. The incident occurred in 1994. Thirteen years have passed. It is submitted that the appellant, first accused, was under suspension and there was also an order to pay compensation to the deceased. Taking into account all these circumstances, the sentence of rigorous imprisonment of one year under section 324 IPC is reduced to three months rigorous imprisonment and payment of fine of Rs.5,000/-. If the fine is not paid, he shall undergo rigorous imprisonment for another three months. Sentence under section under 323 IPC is not interfered with. The sentences shall run concurrently. He is also entitled to right of set off. I dismiss Crl.R.P.No.343/98. In Crl. Appeal No.140/98, the conviction entered under sections 323 and 324 are confirmed Sentence imposed under section 323 IPC is also confirmed. But, sentence imposed under section 324 is reduced to three months' imprisonment with a fine of Rs.5,000/=. J.B.KOSHY JUDGE vaa J.B. KOSHY, J. -------------------------- Crl. Appeal No.140 & Crl.R.P.343/98 -------------------------- Order Dated:26th October, 2007