IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN TUESDAY, THE 16TH JUNE 2009 / 26TH JYAISHTA 1931 CRL.A.No. 751 of 2005() ----------------------- ( SC.364/2001 dated 10.01.2005 of the Additional Sessions Judge (Ad Hoc)II, Kasaragod ) .................... APPELLANT / FIRST ACCUSED. ------------------------------------------- P.GOPALAN, S/O.KUNHAPPA, PALAR VEEDU, ADHUR VILLAGE. BY ADV. SRI. BINDHU SREEKUMAR SRI. K.G.RENGANATH SRI. C.K.SREEDHARAN RESPONDENT / COMPLAINANT. --------------------------------------------- STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR MR. S.U.NAZAR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 16/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: kkms/ A.K.BASHEER & P.S.GOPINATHAN, JJ. = = = = = = = = = = = = = = == = = = = = = CRL. A. No. 751 OF 2005 = = = = = = = = = = = = = == = = = = = = = Dated this the 16th day of June 2009. JUDGMENT Basheer J: Appellant was tried along with another, before the Additional Sessions Judge (Ad hoc)-II, Kasaragod), for offences punishable under Section 302 and 307 read with Section 34 of the Indian Penal Code and also under Section 3 read with Section 25(1B) (a) of Arms Act 1959. 2. The learned Sessions Judge while holding accused No. 2 not guilty of the charge levelled against him, has found the appellant (accused no.1) guilty and accordingly convicted and sentenced him to undergo imprisonment for life under Section 302 of the Indian Penal Code. He was also directed to pay a fine of Rs. 10,000/- and in default, to undergo rigorous imprisonment for one year. The learned Sessions Judge further sentenced the appellant to undergo rigorous imprisonment for 4 years and pay a fine of Rs.5,000/- under Section 307 of the Indian Penal Code. In default of payment of fine, appellant was further directed to undergo rigorous imprisonment for 6 months. As regards, the offence under the Arms Act also the appellant was sentenced for CRL. A. No. 751 OF 2005 2 rigorous imprisonment for one year and pay a fine of Rs. 5,000/- with a default sentenced of rigorous imprisonment for 3 months. The above order of conviction and sentence is under challenge in this appeal. 3. The prosecution case may be briefly noticed. On April 16, 2000. PW.1 to 3, 5 and deceased Balakrishna Naik were travelling in a Jeep having registration No. KL-14-B-3939. They were returning from Manadkam to Benthadka after attending a public meeting convened by Communist Party of India (Marxist) to register their protest against the murder of one of their party colleagues. At about 7 P.M. when the Jeep reached a place called Kakkachal, on the way to Benthadka, they saw the two accused sitting in a Jeep bearing registration No. KL-13-B-1375. The Jeep was found stationary in the middle of the road. When the Jeep in which the deceased and prosecution witnesses were travelling overlook the other Jeep, it was stopped about 10-15 meters away in front of the stationary Jeep. At that time, accused No. 1 got out from Jeep bearing No. KL-13B-1375 and fired at the persons sitting inside the jeep. According to the prosecution, the pellets from the gun shot hit deceased CRL. A. No. 751 OF 2005 3 Balakrishna Naik and PW.5 on the left side of their head and face. Though both the injured were rushed to the Care Well Hospital at Kasaragod. Balakrishna Naik was declared dead on reaching the hospital. PW.5 was taken to another hospital for expert treatment. PW.1 who was a co-passenger along with PW.5 and the deceased gave Ext. P1 First Information Statement before PW.23, Circle Inspector of Police, Adhur at about 8.45 P.M. at Care Well Hospital. PW.23 took up the investigation of the case after registering Ext. P1(a) First Information Report and laid the charge sheet on completion of the investigation. 4. The prosecution examined PW.1 to 23 and marked Ext. P.1 to P.25 and MO-1 to MO-32 on his side. Ext. D1 to D4 were marked on the side of the defence. 5. The learned Sessions Judge held that the prosecution had succeeded in establishing that the appellant had committed murder of deceased Balakrishna Naik using MO-1 pistol. It was further found that he had committed the offence punishable under 307 I.P.C. in as much as the evidence on record clearly established that he had attempted to commit murder of PW.5. According to the learned Sessions Judge, the evidence adduced CRL. A. No. 751 OF 2005 4 by the prosecution was satisfactory enough to hold that the appellant had, in violation of the provisions contained under Section 25(1-B)(a) of the Arms Act, 1959 used MO-1 pistol without license issued by any competent authority. 6. It is contended by learned counsel for the appellant that the prosecution had totally failed in proving the charge against the appellant. The evidence of PWs 1 to 5, the so called ocular witnesses might not to have been believed by the court below. The alleged recovery of MO-1 pistol was totally unbelievable. He further points out that the appellant was a victim of political vendetta at the hands of the rival political party and the entire evidence on the side of the prosecution was fabricated and cooked up by the investigating agency. 7. PW.1 deposed before the court that he had been travelling in Jeep bearing Register No. KL-14-3939 along with PW2, 3, 5 and deceased Balakrishna Naik and two others. PW3 was driving the Jeep. At about 7 P.M., when the vehicle reached near Kakkachal, they heard the sound of a whistle. A Jeep bearing Registration No. KL-13B-1375 was found parked on the middle of the road just ahead of them. PW.1 further stated that CRL. A. No. 751 OF 2005 5 their Jeep overtook the stationary Jeep and stopped about 10 to 15 meters in front of the other jeep. Accused No. A1 who was in the Jeep got out and fired at the rear side of the jeep in which PW.1 and others were travelling. The gun shot hit deceased Balakrishna Naik and PW.5 who were sitting in the back seat on the right hand side. Balakrishna Naik was hit on the left side of his head. PW.5 was also hit on the left side of his head. Accused No. 1 immediately got into the jeep which went in reverse for a short distance and sped away from the scene. The two injured were immediately rushed to the Care Well Hospital, Kasaragod. The Doctor who examined Balakrishna Naik declared him dead. PW.5 was taken to Mangalore for better treatment. PW.1 stated that accused No. 1 had fired at the passengers in his jeep because of previous animosity towards them in connection with the murder of his elder brother. PW.1 and some others were charge sheeted in that murder case. PW.1 asserted that he saw the incident and identified the accused in the twilight and also from the head light of another jeep that had passed by. PW.1 stated that PW.23 had recorded his statement at Care Well Hospital at about 8.45 P.M. He identified his signature in Ext. CRL. A. No. 751 OF 2005 6 P1 statement given by him. He also identified MO-1 pistol which was used by the appellant for committing the crime. 8. PW.2 in his evidence narrated the alleged incident in tune with what PW.1 had deposed before the court. Therefore, we do not propose to deal with the oral testimony of this witness in detail. 9. PW.3 deposed that he was driving the jeep in which PW.1, PW2, PW5 and the deceased were travelling. As regards the alleged incident, this witness also gave an almost identical version as given by PW.1 and 2. He also spoke about the political rivalry between his party ( Communist Party of India (Marxist) ) and the Congress Party to which the appellant admittedly belonged. This witness also referred to various cases involving the workers of the two parties, including the witnesses. 10. PW.4 was stated to be the driver of the jeep bearing No. KL-11- F-2084. According to this witness, he passed by the alleged scene of occurrence and saw the two jeeps parked there. He further stated that he saw one man standing in front of a blue jeep a few meters behind the jeep bearing registration No. KL-14B-3939. He had seen some object in the hand of the CRL. A. No. 751 OF 2005 7 man standing near the jeep. He heard some noise. He also heard the sound of a gun shot also. He stated that he was frightened and therefore did not stop his vehicle. He disowned his statement before the police that he understood that it was the appellant who had fired the shot. This portion was marked as Ext. P2. Similarly he disowned the version given by him to the police that he had identified the two accused in the headlight of the jeep. This portion in the statement was marked as Ext. P2(a). 11. PW.5 is the injured witness. As mentioned earlier, PW.5 had sustained injuries on the left side of his head while he was travelling in the jeep. In Ext. P17 wound certificate issued by PW.21, the Doctor attached to Community Health Complex, Mangalore, the following injuries were noted. 1. laceration is 1 x 1 cm over the left temporal area with the fragment of led shot embedded inside the temporal muscle (concussive head injury). 2. Abrasion 1 x 1 cm on the L Cheek below the injury No. 1. 12. After narrating the alleged incident in almost identical lines with the evidence in PW.1, 2 and 3, PW.5 further stated CRL. A. No. 751 OF 2005 8 that he was not fully conscious when he reached Care Well Hospital. He came to know that he had been taken to a Hospital in Mangalore only on the next day. Similarly he came to know about the death of Balakrishna Naik two days later. This witness also stated that he and deceased Balakrishna Naik were sitting in the rear seat of the jeep on the left hand side. PW.2 ( Pulichal Gopalan ) was sitting in the opposite seat, facing him and deceased Balakrishna Naik. He also identified MO-2 and MO-3, shirt and Dhothi worn by him at the time of the incident. MO-4 and MO-5 banyan and chappel were also identified by him. This witness also stated that political rivalry was the reason behind the attack on him and Balakrishna Naik. 13. PW.6 was a witness to Ext.P3 scene mahazar prepared by the PW.3 on April 17, 2000. PW.7 was a witness to Ext.P1 mahazar under which MO-1 gun was allegedly recovered by PW.22, the Assistant Superintendent of Police on April 20, 2000. We will deal with the evidence adduced by the prosecution as regards the alleged recovery, a little later. PW.8 was a witness to Ext. P5 mahazar under which MOs 2 to 4 were seized. PW.9 was a witness to Ext. P6 mahazar under which jeep bearing No. CRL. A. No. 751 OF 2005 9 KL-14B-3939 was seized. MO-5 chappel was also recovered under this mahazar. PW.10 Village Assistant prepared Ext.P7 Site Plan. PW.11 was stated to be the owner of the jeep referred to above. PW.12 Head Constable registered Ext. P1(a) F.I.R. 14. PW.13 who was allegedly residing near the scene of occurrence did not support the prosecution. She deposed before court that she was never questioned by the police. She had not heard any gun shot on the alleged day of the incident nor had she seen two jeeps on that day. The contradictory portions in her statement were marked as Ext. P8 and P8(a). 15. PW.14 was also declared hostile. However he admitted his signature in the mahazar (Ext.P9) under which KL-13B-1375 jeep was taken into custody. PW.15 also failed to support the prosecution case and therefore he was declared hostile. He was supposed to have witnessed seizure of the jeep referred to above. He stated that he had not put his signature in Ext.P9 mahazar. He asserted that he had not been questioned by the police. 16. PW.16, who was working as Joint Director in the Forensic Science Laboratory at the time when he was examined CRL. A. No. 751 OF 2005 10 in Court, deposed that he had visited the alleged scene of occurrence. He examined the two jeeps allegedly involved in the incident at the police station. He noticed three punctured holes on the rear left upper corner portion of the canvass of the jeep bearing registration No. KL-14-B-3939 in which the witnesses and the deceased were travelling. The bore of each hole was 6mm and these holes were found spread over an area of 8 x 6.5 cms. On chemical examination, presence of lead could not be detected on the edges of any of the holes. Similarly, seven punctured holes were found spread over an area of 33.5 cms x 17.5 cms on the right side of the jeep bearing registration No. KL-13-B-1375. Three out of the seven holes found on the plastic sheets were comparatively larger in size and diameter, varying from 2.5 cm to 3.5 cms. Diameter of other three circular holes were 10.3 diameters. We do not propose to refer to the details furnished by this witness in Ext. P10 report issued by him at this stage. 17. But it may be noticed that in Ext. P11 report issued by this witness, he had stated that the punctured holes found on jeep KL-14B-3939 could be caused by a single discharge from a CRL. A. No. 751 OF 2005 11 pistol like MO-1. He further stated that item numbers 2 and 3 pellets could be used for firing with MO-1 weapon. More significantly PW.16 stated that signs of firing could not be detected in the barrel of MO-1 gun. This witness also stated that it was not possible to say whether the wads in item number 4 and 5 (MO-11 and MO-11(a)) (a distorted air cushion wad and slightly broken and deformed air cushion wad respectively) had been fired from MO-1. MO-11 was allegedly recovered from the scene of occurrence by PW.16 whereas MO-11(a) was allegedly found in the jeep in which the accused had been travelling. In cross-examination, this witness asserted that he could not find compound of nitrates from the barrel wash of MO-1 pistol. He also did not find any sign of firing inside the barrel of MO-1 gun. He also stated that he could not say whether the two wads (item No. 4 and 5) (MO-11 and 11(a)) had been fired from MO-1. He could not also estimate the range of firing that allegedly occurred in the case. We will revert to the evidence in this witness a little later. 18. PW.17 Police Constable was a witness to P12 mahazar prepared by the investigating officer at the time when MO-11 CRL. A. No. 751 OF 2005 12 wad was produced by PW.16. PW18 who was supposed to be a witness to Ext. P3 scene mahazar did not support the prosecution. Therefore, he was declared hostile. 19. PW.19 conducted autopsy and issued Ext. P14 postmortem report. He had noted the following antemortem injuries. 1. Lacerated wound, 1x1 cm on the left side of front of head, 5cm above the outer end of eyebrow. An irregular metallic piece measuring 1x1 cm was found lodged in the scalp tissues under the injury. 2. Lacerated wound 0.5 x 0.5 cm on the left side of top of head, 5 cm above injury no. 1. An irregular metallic piece measuring 0.3x0.2 cm was found lodged in the soft tissues underneath. 3. Lacerated wound 0.8x0.6 cm on the top of head, 4 cm above injury no. 2 in the 11' O clock position. 4. Lacerated wound 0.9x0.4 cm on the left side of top of head, 4 cm above injury no. 3, in the 12' O clock position. 20. PW.19 while referring to Ext. P14 certificate stated that, he had noticed that the skull showed two entry wounds (1.5 x 1 cm involving the temporal bone and 1 x 0.5 cm involving the parietal bone) underneath injuries 3 and 4. There was a fissured fracture running between the two wounds. The metallic CRL. A. No. 751 OF 2005 13 piece measuring 0.8 x 0.8 cm was found lodged in the dura. The fronto-parietal region of the brain was found lacerated. Two irregular metallic pieces (1 x 0.5 cm and 0.3 x 0.3cm) were recovered from the deeper part of the lacerated brain, along with a few small pieces of fractured bone. Brain also showed bilateral subdural and subarachnoid bleeding and features of increased intracranial tension. PW 19 certified that the victim had “ died of multiple injuries sustained to the brain from the discharge of a smooth-bored fire arm”. 21. PW.20 who was working as Junior Superintendent in the Taluk Office deposed that no license had been issued to any person in respect of MO-1 gun. He produced Ext. P15 and 16 registers maintained at the office in connection with grant of license of fire arms. 22. PW.21 Doctor had examined PW.5 at Unity Hospital, Mangalore and issued to Ext.P17 certificate. 23. PW.22, Assistant Superintendent of Police gave evidence that he had arrested the appellant on April 20, 2000 at about 3 P.M. This witness further stated that pursuant to Ext. P18, statement given by the appellant he had effected recovery CRL. A. No. 751 OF 2005 14 of MO-1 pistol from the forest adjoining the property of the appellant shortly after his arrest. MO-1 pistol was found wrapped in a Malayalam Newspaper (Mathrubhumi) and kept at the foot of a Lexwamica (Kanjiram Tree). We will deal with the evidence of this witness in detail a little later. 24. PW.23 Circle Inspector conducted the investigation. He spoke about the steps taken by him in the course of the investigation. 25. It is no doubt true that PWs 1 to 3 and 5 had narrated the alleged incident in more or less identical terms. PW.5 who was one of the victims in the crime did of course assert before the court that he saw the appellant using MO-1 pistol to shoot at him and the deceased. All these witnesses have been categoric in saying that they identified the assailant in the twilight and also from the head light of a jeep which passed by the scene of occurrence. The case of these witnesses is that while they were coming in the jeep, they noticed the jeep of the accused stationary on the middle of the road. Their jeep overtook the assailants' jeep and stopped a few meters in front. It was at that time that the assailant (the appellant) got out from the front side CRL. A. No. 751 OF 2005 15 of the jeep and fired with MO-1 pistol. 26. It is not in dispute that the deceased and PW.5 were sitting in the rear side of the jeep on its right hand side. PW.2 and two others were sitting in the seat facing them on the left hand side. The evidence will show that deceased Balakrishna Naik collapsed into the lap of PW.2 immediately after he sustained the wound on his head. 27. There is no case for the prosecution that the assailant had fired more than one shot. But the evidence of the Forensic expert (PW.16) will show that several pellets can come out of a single gun shot from a fire arm like MO-1 pistol. Therefore the prosecution case that the deceased had sustained the fatal wound from a weapon like MO-1 cannot be disbelieved. Similarly the fact that PW.5 had sustained the injuries on his head and face from a fire arm like MO-1 cannot also be disputed. 28. That the deceased died due to multiple injuries sustained to the brain from the discharge of a smooth fire arm is beyond controversy. But the short question is whether the prosecution has succeeded in establishing that it was the appellant who had committed the crime with MO-1 gun. CRL. A. No. 751 OF 2005 16 Learned Public Prosecutor would vehemently contend that there is no reason to disbelieve PW.1 to 3 and 5. He also tries to get support from the evidence of PW.4. He contends that all these witnesses in unequivocal terms had asserted that they had seen the appellant shooting at the victims with MO-1 fire arm. He further submits that MO-1 pistol was recovered under Ext.P18 pursuant to the information furnished by the appellant under Section 27 of the Evidence Act. In short, it is contended by the learned Public Prosecutor that the finding entered by the court below is eminently justified in the facts and circumstances of the case. 29. Since MO-1 is the weapon allegedly used by the appellant for committing the crime, the evidence adduced by the prosecution in this regard has to be evaluated first. As mentioned earlier, PW.22, Assistant Superintendent of Police had effected recovery of MO-1 pistol from a forest area adjoining the property of the appellant. But significantly this witness admitted in the course of his evidence that he had not been in charge of investigation of this case at any point of time. He conceded that PW.3 was in charge of the investigation. But CRL. A. No. 751 OF 2005 17 according to this witness, he had arrested the appellant on April 20, 2000 at about 3 P.M. He further stated that the appellant had confessed to the crime and given a statement that he had concealed MO-1 weapon on the boundary of the forest under a tree. It was on the basis of the said confession made by the appellant that PW.22 had allegedly recovered MO-1 pistol. According to this witness, recovery of MO-1 was effected about 25 meters away from the residence of the appellant whereas Ext. P4 mahazar will show that the alleged recovery was 250 meters from the property of the appellant. There is no clue as to under what capacity PW.22 had proceeded to effect recovery of MO-1 pistol since he candidly admitted that he was not in charge of the investigation of the case. It is true that in his capacity as a police officer, he could have arrested a suspect in a crime. But what is more baffling is the fact that this officer took it upon himself to take the accused to a spot where he had allegedly concealed the weapon. There is no explanation from the officer as to why he carried out this exercise even though he had nothing to do with the investigation. We have highlighted this aspect only to indicate the defence version as far as MO-1 CRL. A. No. 751 OF 2005 18 weapon is considered. It is the definite case of the defence that MO-1 weapon was produced by PW.1 and other party workers of the Communist Party of India (Marxist) before the investigating officer a few days after the alleged incident. There is yet another aspect of the matter. There is nothing to show that the forest area is not a public place. From the description in the mahazar, it is clear that it is an open area with easy access to all and sundry. Therefore we find considerable force in the contention raised by the learned counsel for the appellant that no reliance can be placed on the alleged recovery of MO-1 gun and that too as spoken to by PW.22. 30. In this context we may refer to the evidence of PW.16, the Additional Director of Forensic Science Laboratory. As has been noticed already, this witness asserted before the court that there were no signs of firing in the barrel of MO-1 gun. He further stated that it was not possible to say whether the wads (MOs-XI and XI(a)) had been fired from the same