IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 12TH JANUARY 2009 / 22ND POUSHA 1930 CRL.A.No. 398 of 2005() ----------------------- SC.79/2004 of ADDL.SESSIONS JUDGE, FAST TRACK COURT NO.1(ADHOC), MANJERI .................... APPELLANT: ACCUSED --------------------- BASHEER PALLIYALI @ VICHAPPU, S/O.CHEKKU @ MOHAMMED, PALLIYALI HOUSE, NOONJIKKARA, KARUMARAKKAD AMSOM AND DESOM, ERNAD THALUK, MALAPPURAM DISTRICT. BY ADV. SRI.MANJERI SUNDERRAJ SRI.B.PREMNATH (E) RESPONDENTS/ COMPLAINANT -------------------------- 1. STATE OF KERALA, REP. BY C.I. OF POLICE, KONDOTTY POLICE STATION, MALAPPURAM DISTRICT, VAZHAKKAD P.S CRIME NO.8/2002 2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI. JAI GEORGE THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 12/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: A.K.BASHEER & THOMAS P. JOSEPH, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Crl.A.No.398 OF 2005-A - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 12th day of January, 2009 JUDGMENT Thomas P.Joseph, J: Appellant stands convicted for offence punishable under Section 302 of the Indian Penal Code (for short, “the Code”) and sentenced to undergo imprisonment for life and payment of fine of Rs.50,000/=. He faced trial in the Additional Sessions Court (Fast Track-I), Manjeri on the charge that on the night between 16.1.2002 and 17.1.2002 (wrongly stated in the judgment under challenge as 17.1.2004) he forcibly administered pesticide mixed with some ayurvedic medicine to his third wife, Sulekha and caused her death. 2. Heard both sides. 3. Following points arise for consideration. (i) Whether deceased died of poisoning ? (ii) Whether appellant administered poison to the deceased as alleged by the prosecution? 4. Perused records. 2 Crl.A.No.398/05 5. Point Nos.1 and 2 : It is not very much in dispute and proved by the prosecution that Sulekha (hereinafter referred as “the deceased”), wife of the appellant was found dead on the morning on 17.1.2002 in their house. PW5 conducted autopsy on the body of deceased and issued Ext.P3. Evidence of PW5 is that postmortem findings were consistent with death due to poison. Ext.P3 also states that a foetus was developing in the womb of the deceased. 6. According to the prosecution, deceased was the third wife of appellant and was pregnant at time of incident. Motive alleged is that appellant wanted to abort pregnancy but deceased was not agreeable and hence appellant wanted to dispose of her. Prosecution examined Pws 1, 4 and 13, parents and sister of deceased to prove motive. They have given evidence in that line. It is also their version that appellant wanted to marry another sister of the deceased which themselves and the deceased resisted. Deceased even claimed that she will not give consent for that so far as she was alive. PW3, daughter of appellant and deceased was examined to prove that appellant administered poison to the 3 Crl.A.No.398/05 deceased on the night of 16.1.2002. PW3 stated that on the night of 16.1.2002 deceased said that she felt severe headache. She then saw the appellant forcibly administering some black crystals into the mouth of deceased and pouring some water also into the mouth. Following that, deceased told PW3 that appellant cheated her. Deceased requested that she be taken to the hospital. Appellant said that by next day morning everything will be all right. Next day morning, PW3 saw body of the deceased lying in the room. First information regarding the incident was given by PW1, father of the deceased. Case was registered for unnatural death under Section 174 of the Code of Criminal Procedure (for short 'the Cr.P.C.'). PW6, Executive magistrate conducted inquest. Ext.P2 is the inquest report. PW1 expressed doubt regarding cause of death of the deceased. Section 302 of the Code was incorporated in the F.I.R. PW14, circle Inspector conducted investigation and submitted final report alleging commission of offence punishable under Section 302 of the Code. 7. PW14 in his evidence claimed that he arrested the appellant on 19.1.2002 and on information given by the 4 Crl.A.No.398/05 appellant, recovered Mos 1 to 4 as per Ext.P7 from the house of appellant. PW10 is an attester to Ext.P7. Mo1 is a polythene packet which allegedly contained some black crystals (according to the prosecution, it was furedan). Mo2 is a piece of paper and Mo3 is a cash bill dated 9.1.2002. It is the case of prosecution that appellant had purchased furedan as per Mo.3 (cash bill) from the shop of PW9. PW9 gave evidence that about 1-2 years (before his examination in the court below), appellant had purchased furedan from his shop. Ext.P7 is the mahazer for scene of occurrence prepared by Pw14, investigating officer. Ext.P8 is the sketch for the place of occurrence prepared by PW7 Village Officer. Evidence of Pws 7 and 14 and Exts.P7 is to the effect that appellant produced Mos 1 to 4 from among the heap of metals kept in the room in the house of appellant and the deceased. 8. It is contended by learned counsel for appellant that evidence produced by the prosecution is insufficient to show that appellant had administered poison to the deceased. According to the learned counsel, evidence of prosecution witnesses is not believable. 5 Crl.A.No.398/05 9. From the records we noticed that though PW14 who investigated the case had produced Mos 1 to 4 in court as per Ext.P13 and requested as per Ext.P14 dated 4.9.2002 to send the material objects for chemical examination, report of chemical examination was not available at the time of trial. Hence, we called for report from the court of learned Judicial Magistrate concerned as to whether material objects referred to in Ext.P14 were sent for chemical examination. Learned Magistrate reported that material objects were sent for chemical examination. Thereon, we called for the report of chemical examination. Learned Magistrate has forwarded the report of chemical examination dated 30.4.2004 as per his letter dated 5.1.2009. Particles found in Mo1 (recovered allegedly on the information given by the appellant from his house) has been identified as furedan. That report is certainly relevant for consideration. 10. Learned counsel for appellant contends that the said report was not available in the records at the time of trial, its copy was not furnished to the appellant and hence, it is not justifiable to rely on that report or even to send back 6 Crl.A.No.398/05 the case giving opportunity to the prosecution to prove the said report. He contended that such an exercise cannot be done in an appeal preferred by the appellant. 11. Section 386(b)(i) of the Cr.P.C permits appellate court while considering an appeal from conviction to reverse the findings and sentence and acquit or discharge the accused or order him to be re-tried by a court of competent jurisdiction subordinate to the appellate court. Section 391 of the Cr.P.C permits appellate court to take further evidence or direct it to be taken by a court of session or magistrate as the case may be. Reading Section 386(1)(b) and 391, it leaves us in no doubt that even when the appeal is preferred against conviction and sentence, it is well within the power of appellate court to set aside conviction and sentence and send back the case to the trial court to record further evidence. 'Retrial' referred to in Section 386(1)(b)(i) of Cr.P.C does not necessarily mean a fresh trial from the beginning. Where some witnesses were not examined or documents not proved, retrial can be ordered for the purpose of examining such witnesses or proving the documents. (See Lakshmanan 7 Crl.A.No.398/05 Sundaran v. State of Kerala (1989 (1) KLT 261) and Alarambil Rajan and others v. State (1994 (1) KLJ 176). 12. Learned counsel then contends that giving such an opportunity to the prosecution would amount to filling up lacuna in the prosecution case. We are unable to accept that contention as well. A Division Bench of this Court and the apex court considered the question, what is 'lacuna', in Suja P. Chacko v. State of Kerala (1994 (1) KLJ 54) and Rajendra Prasad v. Narcotic Cell (1999 (2) KLT 779) and held that 'lacuna' means the inherent weakness or latent wedge in the prosecution case. If a material that was available in the case was not put in evidence, that is not an inherent weakness or latent wedge in the prosecution case. PW14, investigating officer wanted the material objects to be tested in the chemical examiner's laboratory obviously to ascertain whether the polythene packet (Mo1), among other things, contained trace of Furedan and made a request to the learned magistrate as per Ext.P14 to send the material objects referred therein for chemical examination. When such a request was made, it was the responsibility of the jurisdictional magistrate 8 Crl.A.No.398/05 consider that request. If the request was accepted and the material objects were sent to the laboratory, learned magistrate ought to have ensured that report is obtained and forwarded to the sessions court. We have gone through the report of the chemical examination forwarded by the learned magistrate and find that material objects were sent to the laboratory as per letter dated 4.9.2002. It is true that when the case came up for trial before learned Additional Sessions Judge, that report was not available before that court. But then, noticing from Ext.P14 that a request had been made by the investigating officer as aforesaid to send the material objects for chemical examination, learned Additional Sessions Judge ought to have ascertained whether report of chemical examination was available and if not, summon the same from the office concerned. It is not as if the report of chemical examination was not available. It is only that it was not summoned at the appropriate time either by the law officer who conducted the prosecution or by the courts concerned. In the circumstances, we do not think that giving prosecution an opportunity to prove the said report would amount to 9 Crl.A.No.398/05 filling up any lacuna. 13. We also find that though PW9 was examined to prove that appellant had allegedly purchased furedan from his shop and PW9 supported the prosecution, no attempt was made to prove Mo.3 and for that matter, if necessary Mo1 also through PW9. We are not inclined to think that because relevant evidence which was available was not adduced, appellant should get an acquittal on that ground. That will only be a travesty of justice which cannot be permitted to happen. In these circumstance, we are inclined to send back the case to the learned Additional Sessions Judge, so that report can be proved in evidence, necessarily after giving a copy of the same to the appellant. It will be open to the prosecution to recall Pws 9 and 14 for purpose of proving Mos 1 to 4, report of chemical examination and the connected records, we have adverted above. In the circumstances, we do not express any opinion regarding the sufficiency or acceptability of the evidence let in by the prosecution or on the merit of contentions raised by the appellant. We hasten to add that learned Additional Sessions Judge after recording 10 Crl.A.No.398/05 additional evidence as stated above will further question the appellant if found necessary, under section 313 of the Cr.P.C. Appellant will be given opportunity to adduce evidence as provided under Section 233 of the Cr.P.C. Learned Sessions Judge shall dispose of the case as provided under law. Since conviction and sentence on the appellant are being set aside, we direct that appellant will be released , if not required to be detained otherwise on his executing bond for Rs.25,000/= with two solvent sureties for the like sum each to the satisfaction of learned Additional Sessions Judge. Resultantly this appeal is allowed in the following lines: i. Conviction and sentence on the appellant are set aside. ii. Case is remanded to the court of learned Additional Sessions Judge (Fast Track-I), Manjeri to record further evidence in the light of observations made above and for disposal as provided under law. iii. Superintendent of the jail concerned is directed to cause production of appellant in the court of learned Additional Sessions Judge, (Fast Track-I), Manjeri on or before 31.1.2009. 11 Crl.A.No.398/05 On such production, it will be open to the appellant to execute bail bond as stated above. In case of his release on bail as aforesaid, learned Sessions Judge shall direct him to appear before that court on a specified day for further trial of the case. iv. Learned Sessions Judge is directed to dispose of the case within three months from the date of receipt of a copy of this judgment. The Registry shall send back the entire records together with the report of chemical examination forwarded to this court by the learned Judicial First Class Magistrate as per letter dated 5.1.2009 to the court of Additional Sessions Judge (Fast Track-1), Manjeri. (A.K.BASHEER, JUDGE) (THOMAS P. JOSEPH, JUDGE) cl 12 Crl.A.No.398/05