IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA MONDAY, THE 15TH NOVEMBER 2010 / 24TH KARTHIKA 1932 Crl.Rev.Pet.No. 389 of 2002() ----------------------------- CRA.206/1997 of ADDL.SESSIONS COURT, THODUPUZHA SC.87/1995 of ASSISTANT SESSIONS COURT, THODUPUZHA .................... REVN. PETITIONER(S): APPELLANT/ACCUSED ---------------------------------------------------------------- 1. VIJAYAN, S/O.KUNJAN, MAMPUZHA VEEDU, KARIMANNOOR KARA, KARIMANNOOR VILLAGE. 2. GOPI, S/O.KUNJAN, MAMPUZHA VEEDU, KARIMANNOOR KARA, KARIMANNOOR VILLAGE. 3. BALACHANDRAN, S/O.KUNJAN, MAMPUZHA VEEDU KARIMANNOOR KARA, KARIMANNOOR VILLAGE. BY ADV. SRI.P.VIJAYA BHANU, SENIOR ADVOCATE SRI.S.RAJEEV SRI.P.M.RAFIQ RESPONDENT(S): RESPONDENT, COMPLAINANT ------------------------------------------------------------------ STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM(CRIME NO.177/1990 OF KARIMANNOOR POLICE STATION) PUBLIC PROSECUTOR MR. K.S. SIVAKUMAR THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 15/11/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: sou. K. HEMA, J -------------------------- Crl.R.P.No.389 OF 2002 ----------------------------------- Dated this the 15th day of November, 2010 O R D E R Revision petitioners 1 to 3 were charge sheeted for offences under section 452, 342, 307 and 34 of Indian Penal Code ('IPC' for short). They were tried by Assistant Sessions Judge and on conclusion of trial, all of them were found guilty of offence under section 307 read with 34 IPC. Accused 2 and 3 were also found guilty of offence under section 342 IPC. All the accused were acquitted of offence under Section 452 IPC. 2. All the accused were sentenced to undergo Rigorous Imprisonment for a term of seven years each under section 307 read with section 34 IPC. No separate punishment was awarded for offence under section 342 IPC. Set off was allowed. In appeal, learned additional Sessions Judge found that conviction and sentence do not warrant any interference and appeal was dismissed and hence this revision. 3. According to prosecution, on 20.11.1990 at about 7.15 pm, first petitioner (A1) went to the veranda of the house of the Crl.R.P. No.389/02 2 alleged victim in the case and he was taken to the courtyard by catching hold of his hand. When they reached near the southern pillar of the front gate, accused 2 and 3 went to the victim and second accused held him by both his hands and wrongfully restrained him and 3rd accused, handed over the chopper to first accused asking him to kill the victim. First accused accordingly cut the victim on his head with the chopper- MO1 and thereby all accused, in furtherance of common intention attempted to commit murder. 4. To prove prosecution case, PW1 to PW11 were examined and Ext.P1 to P16 and MO1 and MO2 were marked on the side of prosecution. Accused examined DW1 to DW3 on their side and marked Ext.X1 and Ext.X2 and Ext.D1 series. Accused pleaded innocence. On consideration of oral evidence of PW2 and PW8 both the courts held that prosecution succeeded in proving that first accused struck Krishnan on his head with a chopper and second and third accused facilitated this act by restraining Krishnan and that there was intention to murder him and all the appellants shared the intention. 5. Heard both sides, perused the records. Learned senior counsel appearing for appellants argued both the courts Crl.R.P. No.389/02 3 wrongfully placed reliance upon evidence of PW2 and PW8 even though 90% of the facts stated by them are untrue. It is also argued that first accused was injured and he was admitted in the hospital on the same day at about 8 pm and intimation was sent to the police since it was a medico legal case. Intimation was received by police on the 21st as revealed from evidence of PW1. First accused was arrested on 25th, after he was discharged from hospital. The injuries on first accused are suppressed by prosecution. PW2 and PW8 suppressed the fact that first accused sustained injury and hence their evidence is to be discarded, it is argued. 6. Learned Public Prosecutor, in his reply, pointed out that first accused had no case when he was questioned under section 313 Cr.P.C or during cross examination of eye witnesses that he sustained any injury in the incident. Even if he had sustained any injury, in the absence of any evidence to show that the injuries were sustained in the course of incident, prosecution has no duty to explain any injury, it is argued. 7. On hearing both sides and on going through the evidence in this case, I find that both the courts below came to a conclusion that PW2 and PW8 are believable and that the inconsistency and Crl.R.P. No.389/02 4 contradictions in their evidence are not significant. Learned Additional Sessions Judge observed that investigation by local police was dishonest and that it suppressed First Information Statement and created a false First Information Statement etc. Various other adverse observations are also entered against investigation conducted by local police. But on going through the records in the case, I find that the observations made against investigation by local police are not based on the evidence adduced in this case. 8. There is nothing in evidence to show that the actual First Information Statement was suppressed by police and that a false First Information Statement was created. It appears that said conclusion is arrived at only on the basis of evidence of PW2 and PW8, who stated that PW1 went to the police station immediately after the incident and gave a statement to the police. PW2 stated that she gave a statement to the police and it was recorded then and there by police. PW8 also stated that her mother had immediately gone to the police station. 9. The person who, according to PW2 and PW8 recorded the statement of PW2, is the Sub Inspector of the local police station but he was not examined in this case. He was no more. Crl.R.P. No.389/02 5 Therefore, there is only evidence of PW2 and PW8 that such a First Information Statement was given to the Sub Inspector. Going by the evidence of PW2, it cannot be said that she made any detailed statement regarding the incident to the Sub Inspector. According to her, she made only a one line sentence allegation to police and it was recorded by police. It may not be probable that an FIR would be registered on the basis of such a statement. 10. On an analysis of evidence, I find no reason for the Sub Inspector for not registering an FIR with a view to help the accused. There is nothing in evidence to indicate that the Sub Inspector was influenced by accused within such short span of time so as to persuade him to suppress the true statement given by PW2 to him. I do not find anything on record to suggest that Sub Inspector either helped accused or destroyed the case of PW2 or injured in a case of this nature. 11. It is also to be noted that as per evidence, police had removed the injured to the first hospital. According to PW2 and PW8 who are eye witness had also accompanied the injured to the hospital. Having known that an incident of this nature had taken place and the injured sustained very serious injuries, it is only Crl.R.P. No.389/02 6 probable that a Sub Inspector would rush the injured to hospital instead of spending his time in registering FIR, that too on a cryptic statement of PW2. It is also pertinent to note that First Information statement was recorded in this case within one hour of the incident and it was taken to the learned Magistrate also on the same day. It is seen from the First Information Report that it was produced before the Magistrate on the very same day of recording the same, as revealed from the initials, even though the court seal is seen affixed only on the next day at 11 am. 12. Therefore, in the absence of any evidence, it is difficult to believe that Sub Inspector would have manipulated the records within such short interval so as to exclude 2nd and 3rd accused from the array of accused. The court can presume, under section 114 of the Act, that official acts are regularly performed, unless there are reasons to doubt the same. The mere allegation by interested witness that a statement was given to police and that it was suppressed is not sufficient, in the absence of any other evidence to show that FIR was actually suppressed or to make any observation or criticism against police officer or investigation as a whole. There may be cases where FIR would emerge from dubious circumstances and genuineness of the same can be Crl.R.P. No.389/02 7 doubted. But, there must be reason to do so. 13. The case was investigated by Crime Branch Police. The investigating officer, Dy.S.P., Crime Branch conducted investigation in this case but it is pertinent to note that he has no case that any earlier statement was given by PW2 to the Sub Inspector. PW10 was asked whether he had seen any document which is alleged to have been given by PW2 to the police as well as to the Superintendent of Police on the date of occurrence or on the next day of incident. He stated that he did not see any such complaint. PW11 conducted part of investigation and submitted charge sheet. He also has no case that there was any First Information statement given by PW2 to the Sub Inspector or the Superintendent of Police in respect of the incident in this case, implicating second and third accused in the offence. 14. If as a matter of fact, there was any such complaint, it is difficult for both the officers to miss to take note of such fact. They would have questioned the relevant officer to whom PW2 had allegedly given complaint. In the above circumstances, the inference possible is that if at all a complaint was made to local police, it may be cryptic, without any necessary details for registering FIR. In such circumstances, it was unnecessary for the Crl.R.P. No.389/02 8 lower appellate court to make adverse comments against the local police. 15. This is not a case where local police itself completed investigation and submitted the charge. An order was obtained from High Court and investigation was handed over by the local police to the Crime Branch and PW10 took up the investigation with effect from 12.09.1991. The final report was filed only in 1993. For a long period of two years, the crime branch police conducted investigation into the allegations and if as a matter of fact, there was any foul play on the part of local police, such allegation would have been investigated into and the relevant facts would have been brought to light. 16. But except a bare statement given by PW10 in the re- examination that he was convinced that investigation conducted by Head Constable and Sub Inspector was not proper and that he had recorded in the case diary that they have done so intentionally to help the accused, there is no material or evidence to support such a conclusion. The opinion of PW2 ought not to have acted upon, in the absence of evidence to show that such opinion is correct. Both the courts below found that there was an attempt on the part of police to help second and third accused Crl.R.P. No.389/02 9 and the First Information Statement was suppressed etc., but this finding is not supported by evidence on record. The court cannot make any conclusions on surmises. 17. On going through the evidence and records in detail, it can be seen that what is stated in the First Information Statement was that first accused came with a chopper and cut the victim on his head. The allegation made by the injured to the doctor, PW4 was that first accused cut on the head with a chopper on 20.11.1990. The injured was able to talk and the alleged cause of injury was stated by him to doctor. There is no reason to disbelieve the evidence of the doctor, which is of independent nature. There is nothing to doubt veracity of the version of doctor. He has no motive to record any statement which will incriminate first accused or to exclude the name of second and third accused. 18. The injured was not examined in this case as a witness, since he became incapable of speaking due to the consequence of injury. The evidence of PW5 shows that injured Krishnan had a fracture to the skull and he lost memory and ability to talk. It is not stated by PW5 whether he could have spoken at the time of admission. The evidence of PW6, who is a Neuro Surgeon in the Crl.R.P. No.389/02 10 Medical College Hospital, Kottayam reveals the nature of injury sustained by the victim. He stated that the brain was exposed through the wound. 19. There was bleeding from the scalp and brain surface. Wound was exposed, bone fragments removed, bleeding from the scalp was arrested, blood clots were removed from the brain and that lacerated brain was removed. Thus a portion of the brain itself was removed by the medical expert. He deposed that on examination, injured was found to have right sided weakness and that holding, grabbing, eating and writing were impossible. The person had difficulty in making sounds and also loss of memory and difficulty in comprehending orders. Several other serious consequences were also noted by the medical experts. 20. As pointed out by learned defence counsel, statement involving the second and third accused was given by PW2 and PW8 to the police for the first time, after about one year of the incident on 12.9.1991. The incident happened on 20.11.1990. It has come out from the evidence that the alleged eye witness were questioned by PW10, the Dy.S.P only on 12.09.1991 it is only then that the names of second and third accused were stated for the first time to the investigating officer. Prosecution has no Crl.R.P. No.389/02 11 case that prior to 12.9.1991, any report was filed incorporating names of second and third accused in the array of accused. 21. Reports were filed, incriminating the second and third accused for the first time in court as per Ext.P10 and Ext.P11. Ext.P10 is a report filed by Dy.S.P informing that investigation is being continued by incorporating Section 342, 307 and 34 along with Section 452 IPC and for deleting Section 326 IPC. Ext.P11 is a report give by Dy.S.P stating that second and third accused were also found to be involved in the incident and hence the investigation was conducted against them and they were included in the array of accused. The incident happened on 20.11.1990. The said report was filed on 28.2.1992. 22. Learned defence counsel pointed out that though both Ext.P10 and Ext.P11 are dated 22.4.1992 and 28.2.1992 respectively, those reached the court only in 1993 and this fact was admitted by investigating officer in his evidence. It is also revealed from seal of the court on Ext.P10 and Ext.P11. Therefore, it was legitimately argued that involvement of second and third accused was brought to light only at a highly belated, stage, after about three years. Both the courts below did not consider the relevant facts relating to alleged involvement of Crl.R.P. No.389/02 12 second and third accused in the right perspective. This itself is an impropriety which calls for interference in revision. 23. PW2, in her evidence did not state that she had any grievance against local police, as pointed out by learned counsel. There is absolutely no record to show that she had given any complaint against local police. No documents are produced to establish that she had made any complaint against local police. There is only mere assertion that a document was given in writing to Superintendent of police. But copy of such complaint is not produced in court. At least, the copy of the writ petition could have been produced, to reveal whether allegations were made against second and third accused. That was also not done. In such circumstances, the court ought not to have proceeded merely on the basis of oral statement given by PW2, in the absence of any materials on record that PW2 gave a statement to police implicating second and third accused and that such statement was suppressed and investigation was dishonest etc. 24. The mere fact that Crime Branch took up the investigation is not a reason to jump to a conclusion that investigation by local police was dishonest. As per evidence, second and third accused were brought into the array of accused Crl.R.P. No.389/02 13 only on 8.7.1993, about three years after the incident. As per the evidence of PW9, PW2 and PW8 they gave a statement to the police only after about one year of the incident implicating 2nd and 3rd accused. 25. Learned defence counsel also submitted that the version given by PW8 regarding the nature of involvement of 2nd and 3rd accused is improbable. It is pointed out that according to PW8, 2nd and 3rd accused did not enter the courtyard but they were standing outside the compound wall while the injured was standing on the other side of the compound wall, in the courtyard of the house. It is also stated by PW8 that between the courtyard and the compound wall plants were grown. According to PW8, 2nd and 3rd accused had caught hold of injured (who was standing in the courtyard by his right hand and left hand respectively) by standing outside the compound wall.This will be possible only if the accused put their hands over the compound wall tocatch the injured, who was standing on the other side of the compound wall and within the courtyard so as to facilitate cutting of the injured by first accused on the head of the injured. This possibility is too remte but the courts below did not consider the improbability in the an incident, it is strongly argued. Crl.R.P. No.389/02 14 26. In this context, it is also submitted by learned defence counsel that there was independent witness who is referred to as “ Kochettan” who was residing in the close neighbour hood who allegedly had seen 2nd and 3rd accused allegedly running away from the place of occurrence. PW2 and PW8 admitted that said “Kochettan” was present and he had seen at least 2nd and 3rd accused running away from the place of occurrence. But the said person was not not examined in court. 27. Even though PW2 and PW8 had occasion to refer to presence of 2nd and 3rd accused to police, they did not implicate them with any overtact committed against injured. On the other hand, it will only appear from the evidence that first accused was removed from the place of occurrence by 2nd and 3rd accused after the incident. The relevant case diary contradiction is Ext.D1 and it shows that the earlier version to police was that first accused was being pulled away by 2nd and 3rd accused from the place of occurrence. There is nothing to suggest that they participated by committing any overt act against the injured. 28. According to learned defence counsel, there was a reason for belated false implication of 2nd and 3rd accused in the case. It was pointed out that a suit was filed claiming Crl.R.P. No.389/02 15 compensation from accused. Accused was working in a toddy shop and he has no income or property and hence, if a decree is passed, nothing can be recovered from him. Therefore, 2nd and 3rd accused, who were working as school teacher and police constable were deliberately brought into the array of accused to see that the amount is realised from them. In the suit, property of the 2nd accused was attached, as revealed from the evidence of PW2 herself. The 2nd and 3rd accused were brought to the array of accused only as an experiment to try if the injured can realise the compensation if any decreed in the suit, it is argued. 29. Taking all the above facts into consideration, I find that the courts below went wrong in entering a finding of guilt against second and third accused. The relevant facts were ignored and irrelevant facts were looked into, to enter a finding against accused nos.2 and 3. Now coming to the involvement of first accused, I find that evidence of PW2 and PW8 regarding their involvement can be believed, even though certain portions of their evidence regarding involvement of second and third accused is not believable. As per the evidence of PW4, injured himself told the doctor that first accused cut him with a chopper. There is no reason to discard this evidence. Crl.R.P. No.389/02 16 30. In addition to this, the FIR is registered against first accused within one hour of incident. Regarding the involvement of first accused PW2 and PW8 corroborated in all material particulars. The only exaggeration made is in respect of involvement of second and third accused. It is seen from their evidence that they had a particular motive to implicate second and third accused also in the offence. Therefore, even though the part of evidence of PW2 and PW8 is unbelievable, their evidence as a whole cannot be rejected to enter a finding that first accused is totally innocent. While questioned under section 313 of Code of Criminal Procedure, first accused only stated that he is innocent of the allegations made. 31. Learned defence counsel submitted that first accused was in the hospital. It is revealed from evidence of PW9 that first accused was in hospital at 8 pm on 21.11.1990 that is, prior to the examination of injured in this case. It is also in evidence that an intimation was sent to the police since it involved a medico legal case. But according to me, in the absence of any whisper anywhere in evidence that first accused was in the hospital since he sustained injuries in the course of the same incident, at the same place, date and time, mere fact that first accused was Crl.R.P. No.389/02 17 admitted in a hospital is totally insufficient to cast any doubt on the prosecution case or on the veracity of evidence given by PW2 and PW8. 32. No medical evidence is adduced to show whether first accused sustained any injuries, in the course of incident alleged in this case. In the absence of any evidence to show that he was injured in the same incident, prosecution has no duty to explain the injuries. If as a matter of fact, first accused was actually injured in the course of incident, nothing precluded him from putting forward such case at least while PW2 and PW8 were cross examined. The relevant facts could have been brought out in evidence. But it was not even suggested to them that first accused sustained injury in the course of incident. In the absence of an allegation that first accused sustained injury in the course of incident, the court cannot disbelieve the prosecution case. 33. In this context, it is also relevant to mention that nothing is produced by the defence to show that first accused sustained any injuries. Road traffic accident cases, cases involving injuries by self infliction or attempt to commit suicide are also medico legal cases and it is likely that in such cases also person will be admitted in hospital and treated. In the absence of Crl.R.P. No.389/02 18 any materials on record at least to suggest that first accused was injured in the course of the same incident, the mere admission of the first accused in the hospital will be of no benefit at all, to first accused. I am satisfied that the conviction entered against first accused under section 307 read with 34 IPC is only sustainable. 34. Sentence imposed against first accused is for a period of seven years. Learned counsel for petitioner submitted that the incident happened 20 years ago, and leniency may be