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 15TH JULY 2009 / 24TH ASHADHA 1931 CRL.A.No. 1055 of 2005 -------------------------------------- SC.397/2001 of ADDL. DISTRICT & SESSIONS COURT (ADHOC-I), PATHANAMTHITTA CP.101/2000 of JUDL.MAGISTRATE OF FIRST CLASS COURT-I, PATHANAMTHITTA .................... APPELLANT: ------------------- RAJAN, AGED 40 YEARS, S/O. GANGADHARAN, C.NO.8892, CENTRAL PRISON, TRIVANDRUM-695 012. BY ADV. SMT.SANGEETHA LAKSHMANA RESPONDENT: ----------------------- STATE OF KERALA, REP. BY A PUBLIC PROSECUTOR. PUBLIC PROSECUTOR SRI. NOBLE MATHEW THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 15/07/2009, THE COURT ON 15/07/2009 DELIVERED THE FOLLOWING: A. K.BASHEER & P. S. GOPINATHAN, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Crl. A. No. 1055 of 2005 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 15th day of July, 2009 JUDGMENT Basheer, J: Appellant was tried along with another before the Additional Sessions Court-I (Ad Hoc), Pathanamthitta for offences punishable under Sections 341 and 302 read with Section 34 of Indian Penal Code. The charge against the two accused was that they had, in furtherance of their common object, restrained deceased Raju John and murdered him. While accused No.2 caught hold of deceased Raju from behind, accused No.1 (appellant) allegedly stabbed Raju with MO-1 knife in his groin resulting in a fatal injury. The victim succumbed to the injuries at the hospital shortly after the incident. 2. Both the accused were tried on the above charge. The prosecution examined PWs 1 to 15 and marked Exts.P1 to P25 and MO-1 to MO-4 on its side. There was no oral or documentary evidence on the side of the defence. Crl. A. No. 1055 of 2005 :: 2 :: 3. At the conclusion of the trial, the court below found that the prosecution had succeeded in proving the charge only against the appellant, and accordingly convicted and sentenced him to undergo imprisonment for life under Section 302 IPC. However, the appellant was acquitted of the charge under Section 341 IPC. The court below held that accused No.2 was not guilty of the charges levelled against him and accordingly acquitted him. 4. Before we deal with the oral testimony of the prime witnesses on the side of the prosecution namely PWs 1, 2 and 4, it is necessary to take a brief look at the case of the prosecution as revealed from Ext.P12 First Information Statement. It may at once be noticed that the first informant (CW1) passed away some time later and therefore, he could not be examined before the Court. 5. According to CW1, on November 16, 1997 at about 4.15 P.M., he and his friend deceased Raju John were standing near the well talking to each other by the side of the Kurichimuttam-Piralasseri road near Exhikkadu Colony. At that time, the two accused, namely,Rajan (A1) and Kunjumon (A2) came and stood a short distance away from where they Crl. A. No. 1055 of 2005 :: 3 :: had been standing. Then, Sobhana, wife of Prasannan (PW1) came along with road taking a cow with her. The two accused stepped in front of Sobhana and prevented her from moving further asking her where was her husband. Sobhana did not reply. The accused told her that she would not be allowed to move further if she did not answer their question. At that time, the deceased asked the accused why they were restraining the lady. Suddenly, accused No.2 went towards the deceased asking him what business he had to interfere in the matter and caught hold of the deceased restraining him from moving further. Accused No.2 told accused No.1 to finish him off. Accused No.1 took a knife from him his waist and stabbed at the groin of the deceased. Blood started to ooze out. The victim fell down crying aloud. CW1 further stated that accused No.1 went along with the knife in hand towards his residence in the colony. Accused No.2 also went behind accused No.1. According to CW1, he, Prasannan and some others took the injured in a car to Chengannur Government Hospital. The doctor examined the injured and told them to take him to some other major hospital. Immediately, CW1 and others took the deceased to Pushpagiri Medical College Hospital, Thiruvalla. CW1 stated that the Crl. A. No. 1055 of 2005 :: 4 :: injured passed away on the way to the hospital. This was confirmed by the Doctor after examining the victim. CW1 thereafter went to Aranmula Police Station and gave Ext.P12 statement which was recorded by PW13 at 6.15 P.M. CW1 had also referred to the previous animosity that the accused had, towards the deceased in connection with an incident involving the relative of Gopi, the nephew of accused No.2. 6. Now we will refer to the oral testimonies of PWs 1, 2 and 4. 7. PW1 Sobhana deposed before the Court that while she was taking her cow along the road at about 4.15 - 4.30 P.M. on November 16, 1997, someone from among the persons who were standing near the well had asked her where her husband was. She answered that her husband was not at home. According to the deceased who was standing near the well told A1 and A2 not to say anything to PW1. She further stated that she went home thereafter. A little later her husband came home. Then she heard some commotion from the road. She stated that she did not see the incident in question. But she saw accused No.1 running away. PW1 disowned her statement to the Police that accused No.1 and 2 had abused her when she refused to answer their query about her husband. She also Crl. A. No. 1055 of 2005 :: 5 :: dishonoured her statement that deceased Raju had intervened and told the two accused not to restrain her. PW1 was declared hostile and cross examined by the Public Prosecutor. In her cross examination, she stated that she had not told the police that accused No.2 had caught hold of deceased Raju John from behind when accused No.1 stabbed him with a knife in his groin. She asserted that she had never told anything to the police in the manner in which it was seen recorded. 8. PW2 deposed before the Court that he was standing on the road side talking to deceased Raju John shortly after 4 p.m. on the day of the incident. According to this witness, accused No.1 was standing near the well. There was a wordy altercation between accused No.1 and the deceased. Accused No.1 came towards the deceased and a “push and pull” ensued. At that time, accused No.1 took a knife and stabbed the deceased below his abdomen. This witness further stated that accused No.1 ran away towards south with the knife in his hand. He identified MO-1 knife with which accused No.1 stabbed the deceased. According to this witness, he and some others caught hold of the deceased, as he sat down after sustaining the wound. We will revert to the evidence of this Crl. A. No. 1055 of 2005 :: 6 :: witness a little later. 9. PW3 deposed before the Court that he had not seen the incident, and so he was also declared as hostile. But surprisingly, no further questions were put by the learned Public Prosecutor to this witness nor was he confronted with any of his statements to the police. 10. PW4 stated that he had seen accused No.1 running with a knife in his hand. he stated that the knife he saw in the hand of accused No.1 was somewhat like MO-1. 11. PW5 was a witness to Ext.P4 inquest report; and PW6 an attestor to Ext.P5 scene mahazar. PW7 attested Ext.P6 recovery mahazar under which MO-1 knife was allegedly recovered by the police. The evidence of this witness will also be referred to again a little later. 12. PW8, the brother of the deceased produced MO-2 series dress worn by the deceased at the time of the incident. PW9 Police Constable stated that he had taken the dead body of the victim to Medical College Hospital, Kottayam from Government Hospital, Chengannur. PW10, Village Officer prepared Ext.P8 Scene Plan. 13. PW11, who was working as Assistant Surgeon in Chengannur Crl. A. No. 1055 of 2005 :: 7 :: Government Hospital at the relevant point of time, had examined the injured when he was taken there immediately after the incident. He issued Ext.P9 wound certificate in which it was noted by him that pulse of the injured was feeble and he collapsed due to Hemorrhagic Shock. His B.P. was not recordable. He noted an incised wound to 2 x 1 cm at the inguinal region. 14. PW12 conducted postmortem on the body of the victim and issued Ext.P11 postmortem certificate. The following antimortem injury was noted by the Doctor in Ext.P11 certificate. “Incised stab wound 3 x 0.5 cm, obliquely placed on the front of left thigh. It's upper outer end showed splitting of tissues which was just below the inguinal region and 8 cm. outer to the midline. Other end was cleanly cut. The wound perforated the muscles of the front of thigh and terminated in the back muscle of thigh to cut the femoral artery, femoral vein and other soft tissue in its track. The wound was directed backwards downwards and to the right for a total depth of 8 cm”. 15. PW13 Sub Inspector recorded the First Information Statement of CW1. He had registered Ext.P13 FIR thereafter. This witness had also seized MO-3 series dress worn by accused No.1 after his arrest on November 17, 1997. PW14 conducted investigation. He spoke about the Crl. A. No. 1055 of 2005 :: 8 :: various steps taken by him in the course of investigation, including recovery of MO-1 knife, preparation of inquest report Ext.P5 scene mahazar, etc. PW15 verified the investigation conducted by PW14 and laid the charge before the Court. 16. It can be noticed from Ext.P12 First Information Statement indisputably given by CW1 within two hours of the alleged incident, that accused No.2 had restrained the deceased and caught hold of him while accused No.1 stabbed the deceased in the groin region with MO-1 knife. It is also revealed from Ext.P12 that the CW1 and deceased were friends, and they were standing near the well talking to each other. While so the two accused came and stood near them. PW1 Sobhana, came that way taking a cow with her. The two accused stopped her from moving further without answering their question as regards the whereabouts of her husband. CW1 was very specific in Ext.P12 statement that accused No.2 had caught hold of the deceased exhorting accused No.1 to finish him off. Thereupon accused No.1 had taken out a knife from his waist and stabbed the deceased in his groin. It is also revealed from Ext.P12 that CW1, one Prasannan and some others had taken the injured in a car to Chengannur Crl. A. No. 1055 of 2005 :: 9 :: Hospital. The above aspects are unambiguously clear from the First Information Statement given by CW1 before the police within two hours of the occurrence. But when we come to the evidence of PW2, the prosecution has a strikingly different version (as fairly conceded by the learned Public Prosecutor). According to PW2, he was standing near the road and talking to deceased Raju John. This witness further stated that accused No.1 was standing near the well. Some wordy altercation took place between the deceased and accused No.1. A scuffle between the two followed. According to PW2, the appellant took out a knife and stabbed the deceased below the abdomen. 17. One striking feature of the evidence of this witness is that there is not even a whisper about the presence of accused No.2 at the scene, leave alone any overt tact by the said accused. It may be remembered that the main plank of the prosecution case (and the charge itself) was that accused No.2, in furtherance of the common object, had restrained the deceased by catering hold of him and accused No.1 had stabbed him with MO-1 knife. But surprisingly, PW2 had given a total go by to the prosecution case. Not surprisingly, he did not even refer to the presence Crl. A. No. 1055 of 2005 :: 10 :: of CW1 at the scene. He also did not say anything about what transpired after the incident. He stopped by saying that he and some others had prevented the victim from falling down after he sustained the stab injury. Who took the injured to the hospital? PW2 had no clue. Who else was present at the scene of occurrence? PW2 did not seem to have any idea. Many such unanswered questions have undoubtedly created suspicion about the credibility of this prime witness on the side of the prosecution. The prosecution cannot expect this court to hold the appellant guilty on the basis of the sole testimony of PW2 who blatantly deviated from the prosecution case as revealed from Ext.P12, First Information Statement. 18. We are not unaware of the probative value of the First Information Statement. It is only an information furnished by an informant about an occurrence. Such a statement or report which only sets the law in motion need not be the chronicle of all events that took place, but still in the facts and circumstances of this case, the startling deviation made by PW2 contrary to what CW1 had stated in Ext.P12 cuts at the root of the prosecution case. 19. There is yet another aspect of the matter. According to the Crl. A. No. 1055 of 2005 :: 11 :: Investigating Officer (PW14), MO-I knife was recovered from the residence of one Vasu and that too from the ceiling inside the house. No inmate of Vasu's residence was examined. There is also no evidence to show that the appellant could get easy access to this residence at any given point of time. Of course, it can be argued by the prosecution that it need not be explained as to how the accused managed to conceal the weapon of the crime in a particular place. But in our view, non-examination of any of the inmates of the house and the failure in revealing the lie and nature of the house occupied by Vasu and his family will cast a shadow of doubt over the prosecution case. The prosecution has got a lot to explain about the strange recovery effected in this case. 20. We have carefully perused the entire materials available on record. In our view, there are several gaping holes in the prosecution case which cannot be brushed aside or overlooked. If any lingering doubt remains in the mind of the Court, definitely the benefit should go to the accused. 21. Having considered the oral and documentary evidence adduced by the prosecution, we are not at all satisfied that the Court below was Crl. A. No. 1055 of 2005 :: 12 :: justified in convicting the accused. In our view, PW2 could not have been believed. The evidence of PW1 and PW4 did not in any way help the prosecution. 22. In the above facts and circumstances, the appellant is found not guilty and acquitted and the order of conviction and sentence passed against him is set aside. Criminal Appeal is allowed. The appellant shall be released from custody forthwith, if his continued detention is not warranted in connection with any other case. A.K. BASHEER, Judge P. S. GOPINATHAN, Judge kkms/ Crl. A. No. 1055 of 2005 :: 13 :: A. K.BASHEER & P. S. GOPINATHAN, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Crl. A. No. 1055 of 2005 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - JUDGMENT Dated 15th July, 2009