IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN WEDNESDAY, THE 8TH JULY 2009 / 17TH ASHADHA 1931 CRL.A.No. 1057 of 2005 ----------------------------------------- SC.531/2004 of Addl. District and Sessions (Adhoc) Fast Track Court II, Pathanamthitta .................... APPELLANT / ACCUSED: --------------------------------------- ABRAHAM GEORGE @ KILI JOY, S/O. GEORGE, VENCHAL PUTHEN VEEDU, PANDANADU MURI, CHENGANNUR VILLAGE, ALAPPUZHA DISTRICT. BY ADV. SRI.MVS.NAMBOOTHIRY SRI.R.VINU RAJ RESPONDENT: ------------------------- STATE OF KERALA REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.S.U.NAZAR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 08/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: A.K.BASHEER & P.S.GOPINATHAN, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Crl.A.No.1057 OF 2005 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 8th day of July, 2009 Basheer, J: Appellant was tried for offence punishable under Section 302 IPC. The court below found him guilty and convicted and sentenced him to undergo imprisonment for life and to pay fine of Rs.5,000/- with a default sentence of imprisonment for one year. The above order of conviction and sentence is under challenge in this appeal. 2. The gravamen of the charge against the appellant/accused was that he had committed murder of one Thomas @ Kunjumon by stabbing him with M.O.2 knife at Chellakkadu within the limits of Ranni Police Station at about 2.45 p.m. on July 25, 2003. Police registered Ext.P12, First Information Report, on the basis of Ext.P3, First Information Statement given by PW1 at 6 p.m. on the day of the incident. The prosecution case was that the victim was taken to Marthoma Medical Mission Hospital at Ranni immediately after the incident. But the victim succumbed to the fatal wounds sustained by him immediately after reaching the hospital. PW16 conducted the investigation of the case. PW17 laid the charge sheet before the court after verifying the records. 3. Prosecution examined PWs 1 to 17 and marked Exts.P1 to P18 and M.O.1 to M.O.3. There was no oral evidence on the side of the defence. However, Exts.D1 and D2 were marked on his side. Crl.A.No.1057 OF 2005 :: 2 :: 4. The prosecution mainly relied on the oral testimony of PWs 1 to 3 and also Ext.P6 seizure mahazar under which M.O.2 knife was recovered. PW1, in his deposition, stated that he was working as a supplier in Sabari Hotel at Manthamaruthi. At about 2.30 p.m. on that day, the accused came to his hotel and asked for a meal. When accused had almost finished his meal, deceased Kunjumon came inside the hotel and told the accused that he wanted to settle certain scores with him. The accused got up from his seat and asked the deceased what score was to be settled. PW1 told the accused to finish his food and go away. After finishing his food, accused paid the money and went out. Outside the hotel, the accused and deceased picked up a quarrel. There was push and pull between them. A little later, the accused came inside the hotel searching for one of his chappals. He traced it out and went out of the hotel. PW1 further stated that he saw the accused going on the other side of the road and the deceased following him. Later, he saw the deceased near the cross in front of the church a little away from the hotel. There were several injuries on the deceased. He further stated that he had given Ext.P3, First Information Statement before the police. 5. PW2, in his deposition, stated that he was working in Sheena Hotel at Manthamaruthi in July 2003. He asserted that he saw the Crl.A.No.1057 OF 2005 :: 3 :: incident. According to this witness, the accused stabbed Kunjumon after taking M.O.1 knife from his waist. He was standing in front of his hotel when he heard a commotion in front of Sabari Hotel which was about 50m away from Sheena Hotel. He saw the accused and deceased engaged in a fight in front of Sabari hotel. Accused walked towards an auto parked on the eastern side of the road. The deceased followed him. He saw the auto driver waiving his hand. Then the accused walked towards the cross erected about 50ft away from the hotel. The deceased went after the accused and asked him to stop. The accused waived off the accused saying go away. According to this witness, immediately thereafter the accused took a knife from his waist and stabbed the deceased. PW2 further stated that the stab fell on the left side of the chest of the deceased. There upon the deceased took a wooden stick and went after the accused. They got engaged in another fight near the cross. The deceased caught hold of the neck of deceased Kunjumon. Both of them fell down. Then he saw the accused stabbing deceased Kunjumon repeatedly. He could not say where the stabs fell. According to this witness, accused ran towards the church thereafter. The deceased got up from the ground and stood holding the railings of the cross. At that time, Mr.Sunny, ward member of the local Panchayat Crl.A.No.1057 OF 2005 :: 4 :: (PW5), came there and took the deceased to the hospital in a taxi belonging to PW6. This witness further stated that he had seen the deceased holding on his chest. PW2 identified M.O.2 knife which according to him was used by the accused for inflicting the injuries. 6. PW3 deposed before the court that he had seen the accused and the deceased in Sabari hotel at Manthamaruthi. The accused had come to the hotel first to take meals. At that time, PW3 was also having his meals. Shortly thereafter deceased came to the hotel. According to this witness, there was no talk between the accused and the deceased inside the hotel. But the accused and deceased were engaged in wordy altercation in front of the hotel. Seeing this, PW3 removed his auto to the other side of the road on the eastern side. He saw the accused and the deceased engaged in a push and pull. The accused came to PW3 and asked him whether he would go for a ride. PW3 refused. At that time, deceased was standing in front of the hotel. Later, he came to know that there was a stabbing incident involving the accused and the deceased. 7. PW4, owner of a stationery cum tailoring shop, he saw the deceased lying with some injuries near the cross. It was between 2.30 p.m. and 3.00 p.m. Crl.A.No.1057 OF 2005 :: 5 :: 8. PW5, as we have mentioned earlier, had taken the injured to the hospital in the taxi car driven by PW6. PW7 was an attester to Ext.P4 scene mahazar. PW8 was the attester to Ext.P5 mahazar under which M.O.1 shirt, M.O.1(a) kyli worn by the accused were recovered. PW9 was the attester to Ext.P6 mahazar under which M.O.2 knife, which was allegedly used by the accused, was recovered. PW10 is the photographer who had taken Ext.P1 and P2 series of photographs, Ext.P7 negatives of the photographs and Ext.P8 cover in which photographs were produced were also marked in the case. PW11 was also a witness to Ext.P9 inquest. 9. PW12, the doctor attached to the Marthoma Medical Mission hospital, deposed before the court that he had examined the deceased at 3.30 pm and issued Ext.P10 certificate. He had noted seven injuries in the certificate. We will revert to the evidence of this witness a little later. 10. PW13, the brother of the deceased reached the hospital on getting information about the incident involving his brother. This witness deposed that he informed the police immediately after reaching the hospital. This witness further stated that the Circle Inspector of Police had reached the hospital immediately and directed the hospital Crl.A.No.1057 OF 2005 :: 6 :: authorities to remove the dead body to the mortuary. 11. PW14 conducted postmortem on the body of the deceased and issued Ext.P11 certificate. The doctor stated that the victim died due to stab wound sustained to lever (injury No.1) which is extracted hereunder: “Deep incised wound (stab wound) 4cm x 0.5cm in external dimension situated over the left side of front of chest, horizontally placed with the outer end square cut and inner end rounded and placed just above the lower rib border and 3cm outer to midline of front of chest. The injury made cut on the costal cartilages near Xyphislernum, and entered the abdominal cavity. No injury to diaphram. The injury then made cut and transfixed the lever by cutting through and through. The wound on lever was obliquely placed with lower end square cut and upper end sharply cut. The wound was directed, downwards and to the right. The total minimum depth of the injury could be 12 cm. The peritoneal cavity was full of fluid blood and clots.” 12. PW15, Sub Inspector, recorded Ext.P3 First Information Statement and registered Ext.P12 FIR. According to him, he arrested the accused on August 2, 2003. PW16, the Circle Inspector, conducted the investigation. He spoke about the various steps taken by him in the course of investigation. PW17 laid the charge sheet before the court after verifying the investigation conducted by his predecessor. Exts.P17 and P18 plan were also marked in this case through this witness. At first blush the evidence of PWs 1 to 3 will certainly appear Crl.A.No.1057 OF 2005 :: 7 :: to be convincing and acceptable. But a closer scrutiny of the entire evidence in the case will reveal that the prosecution case has got many loop holes and missing links. Admittedly, the alleged incident took place between 2.45 and 3.00 p.m. almost in front of Marthoma Medical Mission hospital situated hardly 50 ft. away from the alleged scene of occurrence. Sabari hotel, where PW1 was working, and Sheena hotel, where PW2 was allegedly working, are also situated within a radius of about 20 to 30 feet. Similarly, PW3, the auto driver had parked his autorikshaw in front of Sabari hotel, Ranni. Police Station was admittedly 4 kms away. But Ext.P3, First Information Statement, was admittedly recorded by PW15, Sub Inspector of Police only at 6 p.m. PW1 stated that he had gone to the police station at that time and given Ext.P3 statement. There is absolutely no explanation from the side of the prosecution as to what was the reason for the delay. 13. There is yet another aspect of the matter. PW12, the doctor who examined the victim at 3 p.m. as revealed from Ext.P10 wound certificate had categorically stated that he had reported the matter to the police. PW13, the brother of the deceased stated that immediately after the incident, he had reached the hospital and informed the police. This witness further added that the police had in fact come to the Crl.A.No.1057 OF 2005 :: 8 :: hospital and it was on the basis of the instruction given by the police that the deadbody of the victim was removed to the mortuary at about 4.30 p.m. But as we have noticed already, the police had registered crime only after 6 p.m. 14. Further, PW5, who was admittedly a member of the local Grama Panchayat, had taken the deceased to the hospital in a taxi car driven by PW6. It cannot be believed that this witness would not have informed the matter to the police. It is in the above circumstances, that we have observed that there was no proper explanation for the delay. More importantly, going by the evidence of the witnesses, especially, that of PWs12 and 13, it cannot be assumed that the police did not come to know about the incident earlier than 6 pm. 15. The incident had allegedly taken place near the cross on the public road. The prosecution version is that the police had come to the scene after registering the First Information Report. But in Ext.P4, scene mahazar, there is no mention about any blood stain or blood mark at the alleged scene of occurrence. PW15 did not see any blood mark at the scene of occurrence. He also admitted that while preparing the scene mahazar he had not noticed any blood mark and therefore, he had not recorded the same in the scene mahazar. It is revealed from the Crl.A.No.1057 OF 2005 :: 9 :: evidence of PWs1 and 2 that hotel Sheena is situated very near to Sabari hotel. The distance between the two is hardly 10 to 15 feet. But strangely, the location of Sheena hotel is not mentioned either in the scene mahazar or in the site plan (Ext.P17). 16. According to the prosecution, the accused was arrested on August 2, 2003 at 5.30 p.m. and M.O.2, knife, was recovered from his residence pursuant to the information furnished by him. Though the investigating officer stated that the accused had confessed to have concealed M.O.2 knife in a box at his residence, such a statement was not marked. But M.O.1 and M.O.1(a) shirt and lunki respectively, which were allegedly worn by the accused at the time of the incident, were recovered by the police from the residence of the very same accused on July 27, 2003. But the police could not recover knife from the residence on that day. 17. In this context, we may refer to the specific case of the accused that he was taken into custody by the police on July 23, 2007 itself. He was detained by the police till August 2, 2007 in the police station. Therefore, in the nature of the evidence adduced by the prosecution, we are constrained to hold that there was no proper or legal recovery at all as alleged by the prosecution. Crl.A.No.1057 OF 2005 :: 10 :: 18. What remains is the oral testimonies of PWs1 to 3. It is true that PW1 stated that the accused had come to his hotel to take meals at about 2.30 p.m. on the day of the incident. He also spoke about the altercation between the accused and the deceased both inside the hotel and outside. He also spoke about the scuffle between the two. PW2 stated that he saw the deceased and accused engaged in a scuffle in front of Sabari Hotel. He further stated that saw the deceased following the accused across the road after getting out of the Sabari Hotel. Still further, PW2 stated that the deceased had followed the accused while the former was walking towards the cross. But according to PW2, after asking the deceased to stop, the accused suddenly took out the knife and stabbed deceased on the left side of his chest. 19. In this context, it may be noticed that the fatal injury (injury No.1) was the one which the deceased sustained on the left side of the chest (injury no.1 in Ext.P11 certificate). But going by the evidence of PW2, even after the deceased was inflicted with the injury on the left side of his chest, he had got up and caught hold of the accused and the fight between the two had continued for 2 to 3 minutes. Having carefully examined the evidence of PW2, especially, the manner in which he has narrated the crucial part of the incident, we are not fully Crl.A.No.1057 OF 2005 :: 11 :: convinced that this witness can be believed in toto. 20. In this context, there is one more aspect which has to be taken note to. PW16, the investigating officer, had admitted that he had found some injuries on the accused. According to the accused, he was examined by the doctor who issued a certificate. He further stated that the certificate was available in the CD file. But the said certificate was not produced by the prosecution. 21. But the accused had got the arrest memo prepared by PW15 produced along with the body investigation note. In the body inspection note prepared by the arresting officer, it was clearly indicated that certain injuries were found on the body of the accused. It is further seen that the accused had himself requested for medical aid. 22. We have referred to the above aspect only to indicate that the prosecution had not bothered to place the entire materials before the court. We have also referred to the unexplained delay in lodging the First Information Report and also about the absence of any explanation as to whether or not the police had reached the hospital as alleged by PW13. The specific question put by the defence to the investigating officer as to whether it was at his instance the dead body of the victim was removed to the mortuary, was not properly answered by the said Crl.A.No.1057 OF 2005 :: 12 :: officer. 23. Having carefully examined the entire materials available on record, we have no hesitation to hold that the prosecution has not succeeded in proving the charge against the accused. There are several glaring infirmities in the prosecution case. The evidence adduced by the prosecution can not be accepted in toto. Therefore, the accused, in our view, is entitled to get the benefit of doubt. 24. In the above facts and circumstances, the order of conviction and sentence passed against the appellant is set aside. He is found not guilty and accordingly, acquitted. The accused shall be released from custody forthwith, if his continued detention is not warranted in connection with any other case. Criminal Appeal is allowed. (A.K.BASHEER, JUDGE) (P.S.GOPINATHAN, JUDGE) jes