IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 10TH JUNE 2009 / 20TH JYAISHTA 1931 CRL.A.No. 1124 of 2003 ------------------------------ SC.143/1999 of ADDL. SESSIONS COURT (ADHOC-2), THRISSUR ........................................... APPELLANT(S): ACCUSED --------------------------------------- COLLECTOR RAVI @ RAVIKUTTAN S/O. VELUNNY PULIATHPARAMBIL HOUSE, GANDHI NAGAR, POLOOKKARA DESOM, NADATHARA VILLAGE, THRISSUR DISTRICT. BY ADV. SRIP.G.SURESH RESPONDENT(S): COMPLAINANT ------------------------------------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI. C.M.NAZAR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 10/06/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N. KRISHNAN, J. = = = = = = = = = = = = = = = Crl. Appeal NO. 1124 OF 2003 = = = = = = = = = = = = = = = Dated this the 10th day of June, 2009. J U D G M E N T This appeal is preferred against conviction and sentence passed by the Addl. Sessions Judge, Fast Track Court-II, Thrissur in S.C.143/99. The accused has been found guilty and convicted u/s 307 of IPC and directed to undergo simple rigorous imprisonment for a period of one year and to pay a fine of Rs.15,000/-. It is against that decision the accused has come up in appeal. The brief facts necessary for the disposal of the appeal are stated as follows. It is the case of the complainant/PW1 that he was residing in the house of PW2 doing goldsmith work and on 5.12.97 he had gone on a motor bike to see the 'Shashti' festival celebration which was going on in nearby place. While he was proceeding through the main road he found a large crowd and therefore he stopped the bike and at that time it is alleged that the accused asked him what is his business there and thereafter chased him took Crl.A. 1124 OF 2003 -2- a sword from his waste and had chopped him resulting in injuries to him on the head, finger etc. and thus had committed the offence u/s 307 IPC. 2. On the contra, the case of the accused is of a total innocence. In the trial court PWs.1 to 10 and DW1 were examined. Exts.P1 to P10 and D1 to D2(a) and MOs.1 to 4 were marked. On an analysis of the materials the trial court found the accused guilty and convicted him thereunder. The points that arise for determination in the appeal are; (1) Whether there is sufficient evidence to connect the accused with the crime and whether he had committed the offence u/s 307 IPC? (2) Whether the conviction and sentence passed by the Court below calls for any interference. Points 1 and 2: 3. It is the case of the complainant namely PW1 that on 5.12.97 while he was going in a motorbike to see the 'Shashti' festival celebration and as he found the road over Crl.A. 1124 OF 2003 -3- crowded he stopped the bike and at that time the accused called him and asked him what business he had in that place and thereafter chased him telling that he will kill him and then chopped him with a sword resulting in injuries to him. Ext.P1 is the First Information Statement. It is given by the defacto complainant. I had meticulously gone through Ext.P1 statement and the definite case of the defacto complainant is that when he reached in front of Satheesan's house the accused who was following him had chopped him with the sword and thereafter again on his finger and also on his head and he had fallen down there. He had also spoken about the presence of the tube light which has been put for the purpose of 'Shashti' festival. Though he speaks that PW3, Radhakrishnan came to the spot he does not speak anything about the presence of PW2 at that time. I am conscious of the fact that registration of F.I.R. is not the encyclopedia of all the things that had happened in a criminal case. But it has to be stated for the reason that the evidence of PW1 when he was in the box is totally an expansion which has to be meticulously Crl.A. 1124 OF 2003 -4- scrutinized. It is also to be remembered that there is a delay of more than two days delay in filing the FIR which also speaks in volume about the fact that all is not well with the case. 4. Now I will refer to the evidence of PWs.1 and 2. PW1 in the chief examination had spoken about the incident as narrated and Ext.P1 statement but would add that he had fallen near the wall of one Varkey Master's house. He would also state in the chief examination that at that time PW2, PW3 and the wife of PW2 also came running to the spot. It is also his definite case that they had seen the accused running away. Ext.P1 does not contain such a statement that they had seen the accused running away from the place. In cross examination it is deposed by him that there is no enmity between him and the accused. To a large number of questions he pretends either innocence or negligence and he had stated that the matters which he has made in the chief examination had really been told by him to the police but it might not have been recorded. It is true that each and every aspect need not be mentioned in the first information statement. But relevant Crl.A. 1124 OF 2003 -5- materials like the witnesses seeing the accused and presence of the light etc. are important matters that one would always like to mention in the First Information statement. Though he had stated in the chief examination that he cried aloud saying that “............................................................................................” but such a statement is not seen in ExtP1. When he was asked whether in Ext.P1 it is stated that he had fallen near the wall of Varkey master's house, he would say he had stated so. But it is absent. He had admitted about his statement to the effect that there been tube light at the spot. Similarly he has not stated before the police that, “...................................... .....................................................................................” It is also his case that he alone had seen the incident of chopping and nobody else had seen as there was no crowd at that point of time. It is suggested to him that every year there used to be tussle, altercations and fight during the 'Shashti' festival and he had sustained injuries in such an incident. PW1 is son of the brother-in-law of PW2. He had stated in the chief examination that he had seen the accused Crl.A. 1124 OF 2003 -6- running with the sword to the northern direction. In the cross- examination he has admitted that the distance between his house and the alleged place of incident is 100 mt. and there are large number of houses in the locality. He would say that they were the first persons to reach the spot. He also admits that there were some misunderstanding between them and the accused on account of his political allegiance. He has stated that the main road was about ½ mile away from the place of incident and there were no tube lights in the way where the incident is alleged road and tube lights were only put in the main road. He would reiterate that they had seen the accused running towards the north. 6. PW3 is also the relative of PW2 and it is the case of PW1 that he uttered calling his name that the accused is chopping him. But this witness has not supported the case of the prosecution. He has categorically stated that he had not seen the accused running away with any weapon. PW.4's evidence does not help neither the prosecution nor the accused. PW5 is a doctor who has been examined also as a Crl.A. 1124 OF 2003 -7- witness of the defence and a combined reading of the evidence of PW1 and DW1 would show that he was not the real person who had examined the person immediately when he waS admitted in the hospital. The materials available would show that the accused had sustained injuries in the incident. PW6 is examined to prove the seizure of the sword. He had been examined on the ground that while he had gone with respect to a case missing of his motorbike, he found the accused handing over the sword to the police but unfortunately for the prosecution he gives a total denial of the same. PW7 and 8 are official witnesses and PW8 would say he had only recorded what was stated by PW1 before him at the time of recording the First Information Statement. PW9 is the police who had prepared Ext.P8 as well as Ext.D1 sketch. He was examined to prove some mistake that has cropped in the marking of the place in Ext.D1. PW11 is the Investigating Officer. In a case of this nature where even according to the complainant that nobody else had seen the incident, the evidence tendered by such witness should be beyond Crl.A. 1124 OF 2003 -8- reasonable doubt for its acceptability. The evidence of PW1 on a reading itself does not inspire confidence or acceptability. What is stated in Ext.P1 is attempted to be enlarged to a maximum scale and whatever questions are put to him he would depose that he has told the police. It is true that one need not state what had happened in detail for the reason if he had sustained injuries it would not have been possible for him to give such information. But here PW1 asserts that he had told the police very relevant materials which according to him would connect the accused with the crime. Unfortunately he had not stated so as seen from the omissions recorded. The place of incident is very important. In Ext.P1 it is stated, that he was chopped very near the house of Satheesan and he had fallen there. But at the stage of evidence it is shifted to near Varkey master's house which is 60 mts. away from Satheesan's house. It has also to be remembered that he speaks about the presence of tube light put for the celebration but PW2 would categorically admit that there was no such tube light at all in that place. It has also to be remembered all Crl.A. 1124 OF 2003 -9- these incidents even according to the defacto complainant is at a place where large number of people had assembled for the festival. He was unable to move the motorbike because of the crowd and therefore he stopped the bike. If an incident as narrated by him had been taken place certainly large number of persons would have seen it. The case of PW1 that nobody had seen it makes it very difficult to believe. It has also to be remembered that even though nobody was there to witness the actual chopping the starting point admittedly was from a very crowded place. Not even a single person is questioned to show whether such an altercation had taken place at that place. This also shows that all is not will with the case of the prosecution. PW2 would depose that he along with his wife had seen the accused running away from the said road with a sword used for chopping the complainant. A perusal of the sketch which are Exts.D1 and P8 would show that their house is situated on the southern side. It is admitted by him that the accused ran away from the place of incident towards north. Crl.A. 1124 OF 2003 -10- Since the house of PW2 is on the southern side and the distance is 100 mts there was no possibility to see the accused as he was proceeding from north to further north. So it is also a very strong indication against the case of the complainant. So an analysis of the entire materials available in this case would show that story spoken to by the complainant and supported by PW2 does not appear to be totally acceptable or reliable. It is true that motive need not be proved in a case when there is direct evidence and it assumes importance in a case of circumstantial evidence. It is also to be stated in this case that one cannot expect an ordinary human being without any reason chases somebody and chopping him. The evidence of PW1 and 2 would make it very clear that the accused had no axe to grind against the complainant. So this also makes the case of the complainant weak. So from an analysis I feel this is a fit case where it has to be held that the prosecution has not succeeded in proving that the accused is responsible for causing the injury on the PW1 and therefore that benefit should go to the accused. When it is so the conviction and Crl.A. 1124 OF 2003 -11- sentence passed by the Court below is liable to be interfered with and I do so. In the result the Crl.A is allowed and the conviction and sentence passed by the learned Sessions Judge u/s 307 IPC is set aside. The accused is found not guilty for the offence u/s 307 IPC and therefore he is acquitted and set at liberty. M.N. KRISHNAN, JUDGE. ul/- Crl.A. 1124 OF 2003 -12-