IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 14TH JANUARY 2009 / 24TH POUSHA 1930 CRL.A.NO. 464 OF 2005(B) -------------------------------------- SC.187/2003 OF II ADDL.SESSIONS COURT, ERNAKULAM .................... APPELLANT(S): -------------------- CHANDRASEKHARAN @ SEKHAR, CONVICT NO.1065, CENTRAL PRISON, KANNUR. BY ADV. SRI.S.SACHITHANANDA PAI RESPONDENT(S): ----------------------- STATE OF KERALA, REPRESENTED BY A PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SHRI JAI GEORGE THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 14/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: A.K.BASHEER & THOMAS P. JOSEPH, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Crl.A.No.464 OF 2005-A - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 14th day of January, 2009 JUDGMENT Basheer, J: Appellant was tried along with another before the Second Additional Sessions Judge's Court, Ernakulam for the offence punishable under Section 302 read with Section 34 I.P.C on a charge that they had committed murder of one Karuppamma sometime in the night on March 9, 2002 at a public ground in Koothattukulam Panchayat by dropping a heavy granite stone on the leg and other parts of the body of the deceased. Initially only the appellant was arraigned as the sole accused in the case, but later accused No.2 was also implicated. 2. The prosecution case in brief was that the deceased Karuppamma, after she had been deserted by her husband, had been living with accused No.2, Rajan. Karuppamma as well as the two accused were earning their livelihood by picking scraps, bottles etc. As mentioned earlier, Karuppamma was initially living with Rajan. But later, the appellant started to live with deceased Karuppamma about four months prior to the incident. According to the prosecution, at about 8 p.m on the night of March 9, 2002, appellant had come to Koothattukulam Panchayat ground and found that Karuppamma 2 Crl.A.No.464/05 was in the company of Rajan. Appellant went back and came to the scene of occurrence at about 12.30 in the night. At that time, Cw1 and her husband (Pw1) were sleeping a little away from the place where Rajan and Karuppamma had been sleeping. According to Pw1, he saw the appellant walking towards the spot where Karuppamma had been sleeping with Rajan just prior to the incident. Shortly thereafter he heard Karuppamma crying aloud. He and his wife (Cw1) went to the place where Karuppamma and her children were sleeping. On enquiry, Karuppamma told Pw1 and Cw1 that the appellant had dropped a stone on the legs and other parts of her body. On examination of the legs, appellant and Cw1 found that Karuppamma had sustained some injuries on her legs and there was profuse bleeding. They woke up accused No.2 and told him that Karuppamma has to be taken to the hospital. But, accused No.2 informed them that they can take Karuppamma to the hospital in the morning on the next day. Thereafter they carried Karuppamma to the place where they had been sleeping, with the help of accused No.2, since they thought that the appellant might come back again later and attack deceased Karuppamma. In the morning when Cw1 tried to wake up Karuppamma, she noticed that Karuppamma was no more. The matter was reported by Cw1 and Pw1 to the police. Ext.P1 First Information Statement of Cw1 was recorded by Pw9, the Sub Inspector of Police, who registered Ext.P8 F.I.R. Pw10 3 Crl.A.No.464/05 conducted initial investigation and final report was filed before the court by Pw11. As mentioned earlier, accused No.2 was also added as accused No.2 in the case, in the course of the investigation. 3. Pws1 to 11 were examined and Exts.P1 to P13 and Mos 1 to 13 were marked on the side of the prosecution. Ext.D1 series were marked on the side of the defence. 4. Learned Sessions Judge on evaluation of the oral and documentary evidence available on record found the appellant guilty under Section 302 I.P.C. However, accused No.2 was found not guilty and he was accordingly acquitted. 5. It is contended by learned counsel for the appellant that the court below was not justified in holding the appellant guilty since evidence of the material witness, namely Pw1, was not at all trustworthy as it was bristled with contradictions and omissions. It is also contended by the learned counsel that there was no cogent and satisfactory evidence to show that the appellant had gone to the scene of occurrence as alleged. Similarly, the dubious role of accused No.2 in the crime had not been properly appreciated by the court below. 6. Pw1 was admittedly staying with his wife (Cw1) in another part of the Panchayat ground where deceased Karuppamma and her two children used to stay. All these peoples were eking out their livelihood by picking scraps, bottles etc. Pw1 deposed before the court that on the fateful 4 Crl.A.No.464/05 night, by about 8 O' clock, he and his wife had prepared their dinner. After consuming half a bottle of liquor they had finished their meals and gone to bed. Karuppamma, her two young children and Rajan (accused No.2) were sleeping a short distance away near a tree on the other part of the ground. According to Pw1, at about 9 O' clock appellant came to the ground. But he went away when he saw that Karuppamma was sleeping with accused No.2. At about 12 in the night, Pw1 heard a loud cry from that part of the ground where Karuppamma and Rajan had been sleeping. Pw1 stated that he sat up and lighted a beedi. At that time, appellant came with a bucket in his hand. He told Pw1 while passing by that he had done what he had to do. He further threatened Pw1 that if he informed the police, he would be finished off. On hearing this, Pw1 suspected that something untoward might have happened. Therefore, he woke up his wife (Cw1) and went to find out what had happened. According to Pw1, he found Karuppamma asleep. He and his wife woke her up and asked her what had happened. Karuppamma told them that the appellant had dropped a stone on her legs and she was not able to move from there. They woke up Rajan. On examination, they found that blood was oozing out from the legs of Karuppamma. Cw1 tore her saree and put a bandage on her legs. Cw1 and Pw1 took Karuppamma to the corner where they had been sleeping, with the help of accused No.2. When Pw1 suggested to accused 5 Crl.A.No.464/05 No.2 that Karuppamma be taken to the hospital, he told them that it was only a fracture of the leg and she can be taken to the doctor in the morning on the next day. 7. In the morning, Pw1 went to fetch a taxi. At that time, Cw1 came running to him and told him that Karuppamma was motionless. Pw1 came back and found that Karuppamma was no more. Pw1 along with Cw1 went to the police station. Pw1 gave a statement to the police, in which thumb impression of Cw1 was obtained. The First Information Statement was marked in the case as Ext.P1. Pw1 identified Mo1 stone which was allegedly used for causing the fatal injury on the deceased. 8. In the course of cross examination, Pw1 admitted that he had not told the police about the remark allegedly made by the appellant while returning from the place of occurrence. As noticed already, Pw1 had deposed that he saw the appellant coming back from the scene of occurrence. At that time, the appellant had told Pw1 that he had done what he had to do and he had further threatened Pw1 that he would be finished off, if he informed the police. Exts.D1(a) to D1(c) contradictions were marked when Pw1 was examined, to which no reference need be made since they related to accused No.2. 9. We have referred to the oral testimony of P.W.1 a little too elaborately because he was the prime witness for the prosecution. Cw1, the wife of Pw1, could not be examined 6 Crl.A.No.464/05 because she had passed away. Apart from the evidence of P.W.1, the court below had also relied on the evidence of P.Ws.5, 6 and 10 and the Postmortem certificate. 10. P.W.5, brother of deceased Karuppamma was admittedly staying near Manjeri at the time of the alleged incident. He stated before the court that appellant had informed him about the death of his sister when the appellant visited him after a few days. P.W.5 also deposed about the strange conduct of the appellant, who according to Pw5 had been searching for the newspapers for some particular news on all the days when he was at Manjeri. When queried about this, the appellant had reportedly told P.W.5 that he wanted to ascertain whether there was any news report about the death of his sister. P.W.5 had further stated that the appellant had informed him that Karuppamma died due to vomiting of blood. 11. P.W.6 was a witness to Exhibit P5 mahazar under which the Police had recovered M.Os.5 and 6 clothes which were allegedly worn by the appellant at the time of the commission of the crime. He himself had allegedly produced them before the police. 12. It is true that the report of the chemical laboratory revealed that there were stains of human blood on Mos 5 and 6 clothes. But it is significant to note that nobody identified M.Os.5 and 6. Nobody had seen the appellant wearing M.Os.5 and 6 either on the day of the incident or any day before or after the crime. P.W.10 stated before the court that the appellant 7 Crl.A.No.464/05 produced M.Os.5 and 6 in a plastic bag at the time when he was taken into custody. But significantly there was no evidence as regards cross matching of blood groups of either the deceased or the appellant. 13. Learned Sessions Judge accepted the evidence of P.Ws.5, 6 and 10 and held that the circumstances proved through the testimony of these witnesses were corroborated the version given by P.W.1. Similarly the learned Judge also relied on the version given by P.W.1 that at the time when he and C.W.1 had gone to the scene of occurrence at about 12.30. a.m., Karuppamma had told him that appellant had dropped the stone on her legs. 14. The short question that arises for consideration is whether the court below was justified in holding the appellant guilty under Section 302 IPC on the basis of the evidence given by P.Ws.1,5, 6 and 10 referred to above. 15. It has already been noticed that at the time of her death Karuppamma was admittedly sleeping with accused No.2. According to P.W.1, he and his wife (C.W.1) had reached the spot where from P.W.1 had heard a cry. Pw1 further stated that Karuppamma and accused No.2 were found asleep when they reached the spot. Pw1 and his wife woke up both Karuppamma and accused No.2 in order to find out what had happened to the leg of Karuppamma since it was found bleeding. Accused No.2 had allegedly told P.W.1 that Karuppamma need not be taken to hospital immediately, because according to him it was only a 8 Crl.A.No.464/05 fracture on the leg. P.W.1 had further stated that when he woke up from sleep after hearing some sound, he had sat up and lighted a beedi. At that time appellant had allegedly passed by his side and told P.W.1 that he had done what he had to do. He further stated that the appellant told him that she (referring to Karuppamma) could live if she survives. Appellant had allegedly threatened P.W.1 that if he informed the police about the incident, he and his wife would be driven away from Koothattukulam. 16. In this context it may be worthwhile to note Exhibits D1, D1(a) and D1(b) contradictions in the Section 161 statement of P.W.1 given under Section 161 of the Code of Criminal Procedure and as proved through P.W.10. In these statements P.W.1 had reportedly told the police that accused No.2 was seen trying to muffle the mouth of the deceased at the time when he and his wife (C.W.1) reached the scene. It is true that P.W.1 had disowned the above statements (Exhibits D1, D1(a) and D1(b) when he was examined before the court. 17. It may be noticed that the alleged incident had taken place in the darkness of night. Admittedly, the only source of light available in the vicinity was about 300 feet away. Even according to P.W.1 he had lighted a piece of paper to find out what had happened to Karuppamma when he had reached the spot. 18. The strangest part of the narration given by P.W.1 is that according to him accused No.2 and Karuppamma were 9 Crl.A.No.464/05 asleep when he and his wife reached there. It had come out in evidence that deceased Karuppamma and accused had consumed liquor at about 9.00 p.m before taking their supper. The only link by which the prosecution attempted to establish complicity of the appellant with the crime was the alleged statement made by the deceased to P.W.1 when he reached the scene of occurrence with his wife. Pw1 stated that Karuppamma had told him that it was the appellant who had dropped the stone on her legs. Probably the statement given by P.W.1 that the appellant walked past him muttering that he had done what to do (this was marked as an omission) was also one factor which influenced the mind of the learned Sessions Judge while holding the appellant guilty. Having carefully perused the deposition of P.W1, we find it difficult to place reliance on his testimony for reasons more than one. 19. As mentioned earlier, Karuppamma had been initially living with the appellant. Later she had switched her loyalty to accused No.2. According to P.W.1, at 8.00 p.m. in the evening appellant had come to the Panchayat ground and found Karuppamma with accused No.2. P.W.1 stated that this had infuriated the appellant. It was in the above context that the alleged dying declaration of Karuppamma had weighed with the court below. It had come out in evidence that Karuppamma had consumed liquor before she went to sleep. Obviously she was assaulted in her sleep and that too in total darkness. Accused No.2 was admittedly sleeping with her on that night. But, 10 Crl.A.No.464/05 according to P.W.1, even after the incident accused No.2 was found asleep despite the alarm raised by deceased Karuppamma which attracted P.W.1 to the spot. 20. In this context, we have to consider the other piece of evidence, namely, blood stains found on M.Os.5 and 6 which admittedly belonged to the appellant. According to the prosecution M.Os.5 and 6 were produced by the appellant before P.W.10 when he was taken into custody on March 14, 2002. But there is no evidence on record to show that M.Os.5 and 6 belonged to the appellant or that anybody had seen the appellant wearing the same at any point of time. Evidence of P.W.6 was also totally silent about this aspect. P.W.6 had only attested the mahazar under which M.Os.5 and 6 were seized. 21. Thus, on a consideration of the entire materials available on record, we are afraid that the court below was not justified in holding the appellant guilty. In our view, the prosecution did not succeed in proving beyond reasonable doubt that the appellant, and appellant alone, was responsible for the crime. We state so because we are not entirely convinced about the non-involvement of accused No.2. His strange conduct as revealed from the evidence of P.W.1 was not beyond suspicion. However, he was acquitted by the court below. 22. In any view of the matter, we find that the appellant is entitled to get the benefit of doubt. Therefore the order of conviction and sentence passed by the court below is set aside. The appellant is found not guilty and he is acquitted. 11 Crl.A.No.464/05 Appeal is allowed. The Superintendent of Police, Central Prison, Kannur, is directed to release from custody Shri Chandrasekharan @ Sekhar, S/o.Subramaniyan, Indira Nagar, Sivakasi Reserve Lane, Santhur Taluk, Madhura District, Tamil Nadu, forthwith, if his continued detention is not required in any other case. (A.K.BASHEER, JUDGE) (THOMAS P. JOSEPH, JUDGE) cl 12 Crl.A.No.464/05 A.K.BASHEER & THOMAS P. JOSEPH, JJ. Crl.A.No.464 OF 2005-A JUDGMENT 14th January, 2009