IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 5TH FEBRUARY 2009 / 16TH MAGHA 1930 CRL.A.No. 543 of 2005() ----------------------- SC.73/1999 of ADDL.SESSIONS COURT, THALASSERY .................... APPELLANT/ACCUSED: ------------------------- CHAPPILI DAMODARAN, S/O. KELAN, CHAPILI HOUSE, THALATHANNI, ALAKODE AMSOM DESOM, KANNUR DISTRICT. BY ADV. SRI.P.NARAYANAN RESPONDENT/COMPLAINANT: ----------------------------------------- STATE OF KERALA REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. PUBLIC PROSECUTOR SRI.S.U. NAZAR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 05/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: A.K.BASHEER & THOMAS P. JOSEPH, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - CRL.A.NO.543 OF 2005 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 5th day of February, 2009 JUDGMENT Basheer, J: Appellant, who was tried for the offences punishable under Sections 449 and 302 I.P.C, was found guilty by the trial court. Accordingly, he was convicted and sentenced to undergo imprisonment for life under Section 302 I.P.C and rigorous imprisonment for 5 years for the offence punishable under Section 449 I.P.C. It was directed that the appellant shall undergo the sentences concurrently. The above order of conviction and sentence is under challenge in this appeal. 2. The prosecution case may be briefly noticed. 3. The appellant and deceased are living in the same neighbourhood, approximately at a distance of 150 meters. The appellant is admittedly an Aadivasi (tribal). It is also on record that the appellant and the deceased were related to each other (appellant is the son of the uncle of the deceased). Appellant had some animosity towards the deceased as the latter had refused to advance some money as demanded by the accused. According to the prosecution, on October 06, 1997 some time in the morning, there was some quarrel between the accused and the deceased in connection with the demand made by the accused for money. There was some pelting of stones also between the two. At about 1 2 Crl.A.No.543/2005 p.m., deceased Damodaran was taking food (rice gruel) sitting on the veranda of his hutment. At that time, the accused came to the hutment and cut at the neck of the deceased with Mo1 chopper. Pw2, Nisha, a minor aged 7 years at that time, and Pw3, the mother of the deceased, witnessed the incident. The deceased succumbed to fatal injuries sustained by him on his neck on the spot itself. Pw1-Raghavan, the brother of the deceased, reported the incident at Alathur Police Station in the evening. Pw12, the Sub Inspector, recorded Ext.P1 F.I. Statement of Pw1 and registered Ext.P1(a) F.I.R at 6.30 p.m on that day. The police visited the scene of occurrence and conducted the inquest. Postmortem was conducted on the next day viz. on October 07, 1997 by Pw8, and Ext.P4 certificate was issued. The doctor opined that death was caused due to shock and haemorrhage due to the injuries sustained by the deceased on his neck. The accused was arrested on the same day at about 4 p.m and after completing the investigation, charge sheet was laid before the court. 4. Prosecution examined Pws 1 to 14 and marked Exts.P1 to P9 and Mos 1 to 4 on its side. Exts.D1 to D4 were marked on the side of the defence. 5. Learned Sessions Judge after a careful evaluation of the oral and documentary evidence on record held that the prosecution had succeeded in proving the charge against the accused under the two counts, for which he was tried. 3 Crl.A.No.543/2005 Accordingly, he was found guilty and convicted and sentenced, as mentioned earlier. 6. It is contended by learned counsel for the appellant/accused that the learned Sessions Judge was not justified in holding the appellant guilty on the basis of the totally unreliable and contradictory evidence adduced by the prosecution. He contends that Ext.P1 F.I. Statement and Ext.P1(a) F.I.R were concocted or created for the purpose of the prosecution case. It is also contended by him that the delay in filing the F.I.R was not at all explained by the prosecution. The other contention raised by the learned counsel is that the so called witnesses on the side of the prosecution, namely Pws 2 and 3, gave totally contradictory version in their depositions. Similarly Pws 4 and 5, who had spoken about the so called extra judicial confession, also ought not to have been believed by the learned Sessions Judge. He has a further contention that there was no satisfactory evidence about the exact scene of occurrence. He points out that the witnesses had spoken about the animosity that Pw1 had nurtured against the accused. But still the learned Sessions Judge glossed over that vital aspect. 7. Pw1 is the brother of the deceased. He gave Ext.P1 First Information Statement before the police. According to this witness, he had gone out some time in the morning along with his father to Karinkayam. Some time at noon when he came back to the town, one Chappili Narayanan told 4 Crl.A.No.543/2005 him about the death of his brother (deceased). Immediately he came to his house where the deceased had been staying along with him and his mother (Pw3). He saw his brother lying dead on the veranda. Pw2 told him that the appellant had inflicted cut injury on the deceased. According to Pw1, he went to Alathur police station and reported the matter. The police recorded his statement which was read over to him. He identified his signature in the statement which was marked as Ext.P3. He asserted that he had absolutely no education at all, but he conceded that he could write his name. He also spoke about the altercation between the accused and the deceased in connection with the money transaction. He also stated he knew that his brother had not given money to the accused as demanded by him. In cross examination, Pw1 admitted that he had not told the police that it was Nisha (Pw2), who had told him that the cut injury was inflicted on the deceased by the accused. Similarly he had also stated that he had gone to the police station on the next day morning as directed by the police when they had come to the scene of occurrence in the evening of the incident. We will refer to some other alleged contradictions as highlighted by the learned counsel at a later stage. 8. Pw2 was aged 7 years at the time of the incident. She was examined in the court after four years when she was 11 years old. Pw2 was examined by the learned Sessions Judge after putting certain questions to her to test her 5 Crl.A.No.543/2005 capacity and capability to give evidence in the case. The learned Sessions Judge noticed that Pw2 was capable enough to answer the questions. In her chief examination Pw2 stated that she had been living with her father and sister a little distance away from the house of Pw1, where the deceased sustained the fatal injury. She stated that she saw the accused inflicting the cut injury on the neck of the deceased with Mo1 chopper. She was standing on the right hand side of the “lean to” in front of the house. The accused came to the house some time around noon while the deceased was having his lunch on the veranda. Pw2 stated that the accused inflicted two cut injuries on the neck of the deceased. She cried aloud. At that time Pw3, grandmother, rushed to the scene. Some others also gathered. She told those people what had happened. In the cross examination, this witness had stated that she was giving evidence in the court on the basis of the instruction received from the advocate, Pw1, her parents as well as the police. But in re-examination, this witness asserted that what all she had stated before the court were true. The advocate had only told her to speak what she had actually seen. 9. Pw3 is the mother of the deceased. In her deposition she stated that she had seen the accused cutting at the neck of the deceased with Mo1 chopper. She stated that she had seen the accused coming to the compound of their residence with a chopper in his hand. At that time she had 6 Crl.A.No.543/2005 warned his son, the deceased, to withdraw from the scene. But the deceased is stated to have told her that if the accused wanted to finish him off, let him do so. According to Pw3, the appellant had inflicted the injury on the neck of her son. In cross examination this witness stated that Nisha and herself were in the courtyard at the time when the incident took place. She further stated that she had told Pw1 about the incident when he came later. She also stated that the altercation between the accused and the deceased was some time in the afternoon. We will refer to certain other contradictions in the deposition of this witness along with that of Pw2, a little later. 10. Pw4 deposed before the court that he saw the accused with Mo1 chopper in his hand going towards his house. Pw4 is none other than the uncle of the accused. He stated that the accused told him that he had killed Chappili Damodaran (deceased) and was coming after finishing him off. 11. Pw5, the daughter of Pw4, also gave evidence in similar lines. Pw5 further spoke about the altercation between the accused and the deceased some time in the morning on the day of the incident. 12. Pw6 had come to the scene of occurrence on hearing some hue and cry from there. According to this witness, Nisha (Pw2) told him that the accused had killed her Paappan (deceased). He saw the deceased lying dead there. He stated that he was present at the scene on the next day 7 Crl.A.No.543/2005 when the police conducted inquest on the dead body. This witness further stated that deceased Damodaran was his aunt's son. He also stated that he had witnessed the altercation between the accused and the deceased in the morning on the day of the incident. 13. Pw7 was an attestor to Exts.P2 and P3 mahazars under which Mos 1 to 3 were recovered. Mo1 is the chopper, Mos 2 and 3 are the blood stained lunki and shirt respectively which were allegedly worn by the accused at the time of commission of the crime. 14. Pw8 was the doctor, who conducted autopsy on the body of the deceased and issued Ext.P4 postmortem certificate. He stated that the injury seen on the neck of the deceased could have been inflicted by a chopper. He further stated that death might have occurred within 20 to 30 minutes after sustaining such an injury. Pw9, Village Officer, prepared Ext.P5 site plan. Pw10, a clerk attached to the Court of the Judicial Magistrate of First Class, Thaliparamba, forwarded the material objects for chemical examination to the laboratory. Pw11 was a witness to Ext.P8 scene mahazar. This witness stated that he was residing about 250 meters away from the scene of occurrence. Pw12, the Sub Inspector, recorded Ext.P1 First Information Statement and registered Ext.P1(a) F.I.R. Pw13 conducted investigation through whom Exts.D1 to D4 contradictions in statements of the witnesses were marked. Pw13 stated that he had conducted inquest and effected 8 Crl.A.No.543/2005 recovery of Mos 1 to 6 and also arrested the accused. He had also questioned the witness in the course of the investigation. Pw14 laid the charge before the court. 15. Before we deal with the contentions raised by the learned counsel for the appellant it may be relevant and pertinent to point out that the material witnesses on the side of the prosecution(as also the accused) are admittedly adivasis. It is also beyond controversy that PWs 1 to 5 were, for all practical purposes, very poor and illiterate. PW2 was aged only 7 years at the time of commission of the crime and PW3 was aged 70 when she was examined. We have referred to this aspect only to indicate that no court could expect a totally fool proof or blemishless testimony from such witnesses. 16. True, there are variations and minor contradictions in the version given by the material witnesses. But those contradictions/omissions have to be considered in the backdrop of this inherent social and historical handicap being suffered by this class of people. We hasten to add that we may not be understood as laying down the proposition that this Court can forsake its solemn duty and responsibility to assess the evidence as it is brought in by the prosecution. But our endeavor in highlighting this aspect is only to alert ourselves that these illiterate witnesses would not or might not have had any inkling of the implications of certain statements made by them in the course of their examination. To certain questions put to them in the course of examination by the defence counsel, 9 Crl.A.No.543/2005 these witnesses might have given answers contrary to some statement made by them in the earlier part of the cross examination itself, leave alone the version given by them in the chief examination. In our view the evidence of these witnesses will have to be examined keeping in mind the above undeniable reality about the intellectual capacity of this oppressed class. 17. It is contended by learned counsel for the appellant that the First Information Statement and FIR registered by the Police were concocted in order to foist this crime on the accused. It is also contended by him that the prosecution had totally failed to explain the delay of 23 hours in reaching the FIR before the jurisdictional Magistrate. It is seen from Ext.P1(a) that the crime was registered at the Police Station at 6.30 p.m. on October 6, 1997. According to PW1 he came to know about the death of his brother sometime in the afternoon and rushed to the house. He saw his brother lying dead in the house. According to this witness he went to the Police Station in the evening and his statement was recorded by the Inspector. He put his signature in the statement. It is true that Ext.P1(a), FIR reached the court of Judicial Magistrate of First Class, Thaliparamba at 5 p.m. on the next day, viz. October 7, 1997. It is also true that the prosecution has not bothered to give any explanation for this delay; obviously because this was not very much highlighted by the defence in the course of trial. Anyhow whether such an objection was raised or not, it was the bounden duty of the prosecution to explain the delay. The question is whether non- 10 Crl.A.No.543/2005 explanation of delay of 23 hours is fatal to the prosecution case. Our answer has to be in the negative for reasons more than one. It may be remembered that PW1 had set the law in motion. His duty ended when he reported the matter to the Police. PW12, the Sub Inspector, stated before the court that PW1 had given the statement at the Police Station at 6.30 p.m. on the day of the incident itself. We do not find any reason to disbelieve the above version given by PW12. PW12 in his deposition had further stated that a Constable was being deputed for court duty every day. Obviously, the Constable who was entrusted with the responsibility to deliver the FIR to the court might have taken it only on the next day. It is seen from the endorsement that the learned Magistrate had put his initials on the FIR at 5 p.m. In the absence of any other vitiating circumstance we are not persuaded to accept the contention of the learned counsel that the delay is fatal. 18. Yet another reason pointed out by the learned counsel for the appellant in support of his contention that Ext.P1 was concocted, is that PW1 had admitted in cross examination that he had gone to the Police Station on the next day as directed by the Police Officer and signed a paper. When Ext.P1 was put to him he said that this was the paper in which he had put his signature. The other ground raised by the appellant is that in Ext.P1(a) the name of the accused was shown as “Chappili Damodaran” but in Ext.P9 inquest report the name of the accused was shown in column 12(a) as “Chappili Damodaran @ 11 Crl.A.No.543/2005 Koolambithara Babu”. The inquest was conducted by PW13 on October 7, 1997 in the presence of the local people. Even though there is no explanation for not furnishing the alias name to PW12, it is a fact that in column 12(a) of the Inquest Report alias name is indicated. But no question in this regard was put to either Pw12 PW13 while they were examined in court. Further, even assuming that the appellant had such an alias name, it does not mean that the failure (even if it be termed so) of PW1 to mention the alias name to the Police Officer at the time when he gave the first information statement would be fatal to the prosecution case. 19. As far as the statement given by PW1 that he had gone to the Police Station on the next day and put his signature in a piece of paper is concerned, it cannot be said that it would indicate that there was any foul play on the part of the Police. It has to be noticed that no question was put to PW13 on this aspect when he was examined in the court. PW12 had recorded the statement of PW1 as part of his official duty. It has to be presumed that the official acts are performed regularly unless shown otherwise. Going by the provisions contained in Section 114 of the Evidence Act the court “may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case”. Having perused Ext.P1(a) and having considered the evidence of PW1, we do not find any reason to 12 Crl.A.No.543/2005 assume that PW12 had manipulated Ext.P1(a) or that PW1 had not given Ext.P1 statement in the evening of October 6, 1997. 20. In support of the contention of the appellant that he was implicated in the case at the behest of PW1, it is contended by the learned counsel that accused was all along available in the very same locality till he was arrested at 4 p.m. on the next day and that too from his own residence. It is contended by the learned counsel that if in fact the accused had been named in the FIR as alleged by the prosecution on the previous day itself, there was no reason why the Police would not have arrested him immediately. We are unable to accept this contention also. It is on record that PW13 had visited the scene of occurrence in the morning on the next day. He had completed the inquest by about 11 a.m. Thereafter going by the version of PW13 he had prepared the scene mahazar. It was thereafter he had arrested the accused and effected recovery of MOs 1 to 3 on the basis of the information furnished by the accused. We do not find any incongruity in the above investigative process. Therefore, we have no hesitation to hold that non-apprehension of the accused in spite of his presence in the locality (as claimed by him) would indicate that the subsequent arrest of the accused was an after thought by the Police. 21. Coming back to the evidence of the material witnesses of the prosecution, we have already mentioned that PW1 had informed the Police that the accused had inflicted the fatal injuries on his brother as informed by his mother (PW3). But in 13 Crl.A.No.543/2005 chief examination PW1 had deposed that it was Nisha (PW2) who told him that the appellant had inflicted the injuries on the neck of the deceased. In this context, it may also be noticed that PW3 had deposed before the court that she had told PW1 as to who had inflicted the injuries. Therefore, the minor contradiction or minor variation in the statement given by PW1 in his chief examination will not, in our view, affect the veracity of his statement at all. 22. Yet another flaw pointed out by the learned counsel in the testimony of PW1 is with regard to the exact time when he received information about the death of his brother. In Ext.P1, PW1 had stated that it was at 5.30 p.m. he was informed by Chappila Narayanan that some calamity had occurred in his residence. But in chief examination PW1 stated that he came to know about the death of his brother at noon. Later in his cross examination he stated that he came home from town by about 1.00 p.m. We have carefully gone through the deposition of PW1 and also perused Ext.P1. As mentioned by us earlier, PW1 had only set the law in motion on the basis of the information gathered by him, be it from PW2, Nisha or his mother, PW3. Yet again, the question as to whether he came to know about the death at noon or at 5.30 p.m. as indicated in Ext.P1 may also be of no great significance because going by Ext.P1(a) PW1 had reached the Police Station late in the evening and FIR was registered at 6.30 p.m. As mentioned by us earlier, the minor contradictions or variations in the deposition of this witness (who 14 Crl.A.No.543/2005 is an illiterate as asserted by him in his chief examination itself) have to be appreciated in the context of his social background. 23. PW2 was admittedly seven years old at the time when the incident took place. It may at once be noticed that she was examined in the court four years after the incident when she was hardly 11 years old. It is true that there is some minor variation in the version given by this witness as regards the injury sustained by the deceased. PW2 stated that the cut injury on the deceased was inflicted on the left side of the neck while PW8, the doctor noticed the injury on the right side of the neck extending up to the left side. It has to be remembered that a child who happened to witness such a gruesome act of violence cannot be expected to give a photographically precise description of what she had seen at such a tender age. More importantly, it may be well neigh impossible for such a young child to recollect and describe the gruesome act after a lapse of four years. Therefore, the mere fact that PW2 had stated that she had seen the appellant inflicting the injury on the left side of the neck may not have any great significance at all, in the peculiar circumstances of this case, particularly in view of the assertion made by PW3 in her deposition. Yet another aspect pointed out by the learned counsel in this connection is that PW2 had stated that appellant had inflicted two cut injuries on the deceased while in Ext.P4, postmortem certificate the Doctor had referred to “only the injury on the right side of the neck”. In re-examination the Doctor had stated thus - 15 Crl.A.No.543/2005 “almost entire neck was cut. If more than one cut was inflicted on a same place, it cannot be distinguished.” The above explanation given by the Doctor is the apt answer to the contention raised by