IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN TUESDAY, THE 23RD JUNE 2009 / 2ND ASHADHA 1931 CRL.A.No. 925 of 2005() ----------------------- SC.375/2002 of ADDL. SESSIONS COURT (ADHOC), TRIVANDRUM CP.226/2001 of JUDL. MAGISTRATE OF FIRST CLASS COURT-III, NEYYATTINKARA .................... APPELLANT / ACCUSED --------------------------------- KANNAN @ BIJU, S/O.RAJU, KULANGARAKONAM, PUTHUVAL PUTHEN VEEDU, PALLICHAL VILLAGE. BY ADV. MR. SASTHAMANGALAM S. AJITHKUMAR MR. KRISHNADAS P. NAIR MR. PRABHU VIJAYAKUMAR SMT. K.L.SREEKALA MR. HARIDAS P.NAIR MR. M.JAYAKUMAR MUTHUKUDAM RESPONDENT / COMPLAINANT -------------------------------------------- STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR MR. S.U.NAZAR MR. NOBLE MATHEW THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 23/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: kkms/ A.K.BASHEER & P.S.GOPINATHAN, JJ. = = = = = = = = = = = = = = == = = = = = = CRL. A. No. 925 OF 2005 = = = = = = = = = = = = = == = = = = = = = Dated this the 23rd day of June 2009. JUDGMENT Basheer J: Appellant and four others were tried before the Additional Sessions Judge's Court (Fast Track) No.1, Thiruvananthapuram for offences punishable under Sections 143, 147,148, 341, 114 and 302 read with Section 149 of the Indian Penal Code and also under Section 27(1) of the Arms Act, 1959. 2. The court below, after evaluating the oral and documentary evidence on record, found that the prosecution had failed to establish the charge against Accused Nos. 2 to 5 and accordingly they were found not guilty and acquitted. 3. However accused No.1, the appellant herein, was found guilty under Section 302 I.P.C. and convicted and sentenced thereunder to suffer imprisonment for life and to pay a fine of Rs.60,000/- with a default sentence of rigorous imprisonment for three years. It was directed that Rs. 50,000/- out of the fine CRL. A. No. 925 OF 2005 2 amount, if realized, shall be paid to the legal heirs of deceased Santhosh Kumar as compensation under Section 357(1) of the Code of Criminal Procedure. The above order of conviction and sentence is impugned in this appeal. 4. The prosecution case may be briefly noticed. 5. On February 11, 2001, PW.2 was riding his M-80 Scooter with deceased Santhosh Kumar as his pillion rider from Balaramapuram junction via Mudavoorpara - Thannivila - Mukkampalamoodu road. When they reached near Mudavoorpara junction, two other bikes came from behind. In one of the bikes (M-80 Scooter bearing Reg. No. KL-01-G-4437) Accused Nos. 1, 4 and 5 were riding. In the other (Bajaj Scooter bearing Reg. No. KBV-572), accused Nos. 2 and 3 were riding. Accused No.4, one of the pillion riders of the bike, which was being driven by Accused No. 1, was carrying a sword in his hand. The accused asked PW.2 and the deceased to stop their scooter. But PW.2 did not heed to the demand and proceeded further. But immediately, the assailants overtook the scooter driven by PW.2 and stopped in front. Accused No. 1, came down from the scooter and went towards PW.2 and the deceased. He told the CRL. A. No. 925 OF 2005 3 deceased that he wanted to speak to him and asked him to go with him. Accused No. 1 took the deceased about 10 metres away to the open ground over the Railway tunnel. When PW.2 attempted to go along with deceased Santhosh Kumar, he was prevented from doing so by the other accused. When Accused No.1 and deceased Santhosh reached the open ground, accused No. 1 allegedly took out MO-1 knife from under his shirt and stabbed on the left side of the chest of deceased Santhosh. Accused No.1 stabbed again; but deceased Santhosh tried to ward it off with his left hand. In the process, he sustained injury on the upper side of the left arm. Deceased Santhosh turned and tried to run away. At that time, accused No.1 stabbed him from behind on the left side of his back. According to PW.2, Santhosh had cried aloud saying, “Kannan (Accused No.1) stabbed” him. According to the prosecution, accused No.1 came back towards the Scooter with the knife in his hand. He handled over the knife to accused No.2 who had, in the meanwhile, taken the Scooter near to the ground and was waiting for accused No.1, without switching it off. Accused No. 3 had also walked up behind the Scooter of accused No.2. Accused No.2 drove away the Scooter CRL. A. No. 925 OF 2005 4 with accused no.1 and 3 on the pillion. Accused No. 4 and 5 also followed them in their bike. 6. It came out in evidence that deceased Santhosh was taken to Medical College Hospital a little later by some people, because in the meanwhile PW.2 had gone in search of a vehicle. By the time, PW.2 came to the scene later, he was informed that the deceased had been taken to the hospital. According to PW.2, he went to the Medical College Hospital to enquire about what had happened to the deceased. He came to know that Santhosh Kumar had succumbed to the injuries. Ext. P3, First Information Statement was filed at Balaramapuram Police Station by PW.1 before PW.13, Assistant Sub Inspector of Police at 6.30 a.m. on the next day. Ext. P3(a) First Information Report was registered thereafter. PW.16 conducted investigation and laid the charge sheet. 7. Prosecution examined PWs 1 to 17 and marked Ext. P1 to P16 and MO.1 to MO.8 on its side. Contradictions in the statements of PWs 3 and 4 were marked as Ext. D1 to D10 on the side of the defence. As mentioned earlier, the court below held the appellant guilty under Section 302 I.P.C. and convicted and CRL. A. No. 925 OF 2005 5 sentenced him while acquitting the other accused. 8. It is contended by learned counsel for the appellant that the court below was not justified in holding the appellant guilty since the prosecution had failed totally in proving the charge against him. The court below has relied on conjectures and surmises rather than on any satisfactory or cogent evidence to find the appellant guilty. He further points out that Ext. P3, First Information Statement will by itself cut at the root of the prosecution case. The evidence of PWs 2 to 4 ought not to have been relied on by the court below under any circumstances. 9. Per contra, it is contended by the learned Public Prosecutor that PWs 2 to 4 had in unambiguous terms spoken about the overt act of the appellant in the crime. It is true that there was some lacuna in the evidence adduced against the other four accused. But it did not mean that the evidence against the appellant was not strong enough to hold him guilty. 10. It is not disputed by the defence that deceased Santhosh Kumar died due to the deep penetrating injury sustained by him on his chest. Injury No.1 as noted by PW.1, the Doctor, who conducted autopsy is extracted hereunder. CRL. A. No. 925 OF 2005 6 “1. Incised penetrating wound 2.5x1cm, oblique, on the left side of front of chest, its upper inner end 8cm outer to midline and 17.5cm below collar bone. Both ends were sharply cut. The chest cavity was seen penetrated by cutting the 5th left intercostal space and 5th costal cartilage, pierced the pericardium and front wall of left ventricle and terminated in the cavity. The wound was directed backwards and to the right for a total minimum depth of 3.4cm. Left chest cavity contained 750ml of fluid blood and two handful of blood clots. Left lung was partially collapsed.” 11. The other injuries especially injury Nos. 2 to 5 will also probabilise the prosecution version as regards the alleged assault on the deceased. Since no arguments have been advanced on this aspect we do not deem it necessary to deal with the other injuries noted in the postmortem certificate. In our view, such an exercise will be unnecessary especially in the light of the defence taken up by the appellant and the co-accused as is discernible from the questions put to the witnesses in the course of cross-examination. 12. In his statement given under Section 313 of the Code of Criminal Procedure, the appellant set up the defence of denial of any involvement in the case. But in the course of cross- CRL. A. No. 925 OF 2005 7 examination by the defence counsel, the specific suggestion put to the prime witnesses was that the deceased might have sustained the fatal injuries when he went to the scene of occurrence in an inebriated condition and picked up a quarrel with the local people. 13. PW.2 to 4 are the prime witnesses on the side of the prosecution. PW.2, as we have indicated already was taking the deceased as his pillion rider on the fateful day. PW.2 deposed that their scooter was chased by two bikes carrying the five accused. While accused No. 1 was driving one of them with Accused 4 and 5 as his pillion riders, the other scooter was being driven by accused No.2 with accused No.3 as his pillion rider. The assailants had managed to overtake the scooter being driven by PW.2 when he refused to stop it as demanded by the accused. PW.2 further stated that as soon as the scooter was stopped, Accused No.1 got down from his bike and came towards him and deceased. Accused No.1 told the deceased that he wanted to speak to him and asked him to go along with him to the ground nearby, about 10 metres away. At that time, accused No.2 took his scooter near the ground without switching off the ignition, CRL. A. No. 925 OF 2005 8 apparently waiting for accused No.1. Accused No.3 walked behind the scooter. Accused No.4 and 5 told PW.2 not to go towards Accused No.1 and Santhosh. According to PW.2, accused No. 4 brandished the sword in his hand while walking. Accused No.1 took out a steel knife with a black handle kept underneath his shirt and stabbed at the left side of the chest of the deceased. The second stab was warded off by the deceased with his left hand which resulted an injury on his hand. When the deceased turned and started to run, Accused No.1 stabbed him again on his left back side. At that time, PW.2 pushed aside accused No. 4 and 5 and ran towards Santhosh. Accused No.1 came towards the scooter and handed over the knife to accused No.2. He drove away the scooter with Accused No.2 and 3 as his pillion riders. Accused No. 4 and 5 also followed them towards Mukkampalamoodu. PW.2 identified MO.1 knife that was used by Accused No.1 to commit the crime and MO.2 series dress (shirt and dothi) worn by accused No.1. Similarly, he identified MO.3 and MO.4 series dress worn by the deceased also. He further stated that even before he came back with a car to take deceased Santhosh to the Hospital, somebody else had taken him CRL. A. No. 925 OF 2005 9 to the hospital. He saw the incident in the tube light on the electric post nearby. He further stated that Suresh Kumar and Babu (PW.3 and 4) had also seen the incident apart from the autorikshaw driver. He identified his signature in Ext.P3, First Information Statement given by him before Balaramapuram Police. According to PW.2, accused murdered deceased Santhosh Kumar because of the previous animosity in connection with a stabbing incident in which deceased Santhosh had assaulted accused No.1. 14. PW.3 stated that he was a milk vendor. He had reached the scene of occurrence while he was riding his bicycle along the road in question. He had gone to that area to meet one Mohanan to collect some money paid by him for purchase of a cot. This witness spoke about the incident in almost identical terms of what PW.2 had narrated. This witness further stated that he also ran towards deceased Santhosh as was done by PW.2. The five accused went away from the scene in the two bikes in which they had come. PW.2 and himself stopped an autorikshaw which came that way and requested the driver to take the injured to the hospital. But the driver refused to oblige. CRL. A. No. 925 OF 2005 10 At that time, PW.2 took his scooter and went away to fetch a vehicle. Shortly thereafter a tempo came that way. The injured was taken to the Medical College Hospital in that tempo. PW.3 stated that he did not accompany the victim in the tempo. But he took a bus and went there. When he reached the hospital, he came to know that deceased Santhosh was no more. PW.2 too reached the hospital later. PW2 informed him that the accused had murdered Santhosh because of the previous animosity. This witness also identified the dress of the deceased and accused as well as MO.1 knife. 15. PW.4 deposed that he had come to the scene of occurrence in an autorikshaw. According to this witness, he saw the five accused persons coming in two scooters. They were following the bike driven by PW.2 in which deceased was a pillion rider. This witness also spoke about the incident in almost identical lines with the versions given by PW.2 and 3. This witness further stated that the driver of the auto refused to take the injured to the hospital since according to him, the head light was not functional. This witness also identified MO.1 to 5. 16. PW.5 was a witness to Ext.P4 Inquest Report. PW.6 CRL. A. No. 925 OF 2005 11 was an attester to Ext. P5 scene mahazar. PW.7 was an attester to Ext.P6 seizure mahazar for recovery of MO.1 knife. PW.8 was a witness to Ext. P7 seizure mahazar under which MO.4 series dress worn by accused No.2 were taken into custody. PW.9 was an attester to Ext. P8 seizure mahazar under which MO.2 series dress worn by Accused No.1, was seized. PW.10 and 11 were attesters to Ext. P9 and P10 mahazars under which the Scooter and Motor Cycle driven by the accused were seized. PW.12 Head Constable recorded Ext. P11 First Information Statement of accused No.1 who was allegedly assaulted by deceased Santhosh and Binu with a sword. Crime No. 180/00 was registered in the Balaramapuram Police Station in this connection. The alleged incident had taken place on June 11th, 2000. 17. PW.13 Assistant Sub Inspector of Police had recorded Ext.P3 First Information Statement given by PW.2 in this case. Ext.P3(a) F.I.R. was subsequently registered. 18. PW.14 Head Constable arrested Accused No.1 when he admittedly surrendered before the Police on February 14, 2001 at 2 p.m. PW.15, the Sub Inspector of Police prepared CRL. A. No. 925 OF 2005 12 Ext. P5 scene mahazar on February 12, 2001. He also recorded the arrest of accused No.2. PW.16, the Circle Inspector conducted investigation. He spoke about the various steps taken by him in the course of investigation. Ext. P15 report given by the Forensic Science Laboratory was also marked through this witness. PW.17 prepared Ext. P16 scene plan. 19. We have carefully perused the testimonies of PWs 2 to 4. It is undoubtedly true that there is some variation and embellishment between the version given by PW.2 before the Police (Ext. P3) and his deposition before the court. For instance, in Ext. P3, PW.2 had no case that he actually saw accused No.1 stabbing the deceased. What he had said in Ext. P3 was that Accused No.1 had taken the deceased along with him to the ground about 10 metres away. When they reached the ground PW.2 heard deceased Santhosh crying aloud saying that he was being killed. Immediately, he further heard deceased Santhosh further crying aloud, “Kannan stabbed me”. But PW.2 stated before the court that he saw Accused No.1 taking MO.1 knife kept underneath his shirt and stabbing deceased Santhosh Kumar on the left side of the chest. He CRL. A. No. 925 OF 2005 13 further stated that the second stabbing attempt was prevented by Santhosh with his hand. When Santhosh turned and tried to run away, accused No.1 stabbed him on the left side of his back. It is pointed out by the learned counsel for the appellant that this is a clear attempt of embellishment on the part of PW.2. It has to be remembered that going by the version given by PW.2 in the statement as well as before the court, accused No.1 had taken the deceased to the nearby ground hardly 10 metres away. Any how apparently accused No.1 and deceased had not gone far away from the place where PW.2 had been standing. It must be remembered that the place where the incident took place was an open ground which was admittedly being used by children as play ground. Therefore apparently there was no difficulty as far as visibility is concerned. 20. Similarly in Ext. P3 statement, PW.2 had no case that he was prevented from going along with the deceased and accused No.1 or that he prevented from doing so by accused nos. 4 and 5 under the threat of a sword. Of course PW.2 stated before the court that accused No.5 had brandished the sword in his hand towards him and asked him to remain where he was. It CRL. A. No. 925 OF 2005 14 is true that a close scrutiny of the evidence of PWs 2 to 4 may give an impression that there is some artificiality; especially in the deposition of PW.4. According to this witness, he had come to the scene as a passenger in an auto passing by the place of incident. The auto was stopped. This witness went on to say that he witnessed the entire incident sitting in the auto. But he vanished from the scene immediately after the incident. He stated that the driver refused to carry the injured to the hospital since the headlight of the auto was not functional. 21. But in our view, the evidence of PW.2 cannot be brushed aside lightly even if the evidence of PW.4 may not be totally convincing. The evidence of PW.3 also cannot be ignored in toto. 22. It has to be noticed that there is no dispute about the scene of occurrence. The evidence of PW.2 as regards his taking the deceased as a pillion rider on his scooter along the road where the incident took place, has not been seriously challenged. The only suggestion put by the defence in the course of cross- examination of these three witnesses is that deceased Santhosh might have sustained the injury in an altercation with the local CRL. A. No. 925 OF 2005 15 people. More importantly even if we ignore the version given by PW.2 before the court about the actual witnessing of stabbing of the deceased, it has to be noticed that this witness had categorically stated that he had heard the deceased crying aloud that Kannan (the appellant) had stabbed him. Similarly there may be something strange about the conduct of PW.2 after he allegedly left the scene of occurrence in search of a vehicle. According to PW.2, he could not get a vehicle though he tried to get one at two or three places. Ultimately, he went to the hospital after coming back to the scene of occurrence and finding that the injured had already been taken to hospital in another vehicle. Stranger still, this witness did not go to the police immediately. Admittedly, the First Information Statement was recorded only at 6.30 a.m. on the next day. But the learned Public Prosecutor submits that the fact that PW.2 had reported before the Police in the early hours of the next day itself will indicate that there was no attempt of manipulation of any kind. Learned Public Prosecutor further points out that PW.2 had stated that after coming to know about the death of deceased Santhosh, he had been trying to contact the relatives of the CRL. A. No. 925 OF 2005 16 deceased. Thus having carefully considered the evidence of PWs 2 to 4, we are satisfied that these witnesses need not be disbelieved as urged by the appellant even though the evidence of PW.4 may not be entirely satisfactory. 23. The other contention raised by the learned counsel is in connection with the alleged recovery of MO.1. He points out that the prosecution theory is totally discredited by the manner in which MO.1 was allegedly recovered. PW.16 had deposed before the court that MO.1 knife was recovered pursuant to the disclosure statement given by accused No.1 under Ext. P6(a). Learned Counsel points out that the alleged recovery was effected from an open area on the side of a railway track. 24. It may be true that the place from where MO.1 was recovered might have been an open area; but we do not find any reason to discard the disclosure statement given by the appellant. Further Ext. P15 report of the Forensic Science Laboratory clearly indicates that MO.1 knife contained human blood stains. 25. In this context, it may have to be observed that in many cases, the investigating agency and Forensic Science Laboratory CRL. A. No. 925 OF 2005 17 seem to be totally indifferent and casual in discharge of their official duties. For instance, in this case, no attempt is seen to have been made to carry out a grouping test of the blood of the victim and blood stains found on the weapon and other objects. The laboratory found blood stains not only on the dress worn by the deceased but also on those worn by the appellant himself. Similarly, blood stains were found on MO.1 knife and also in the soil sample which was recovered from the scene of occurrence. If only blood grouping of the deceased had been done and consequently the group of blood found on the various mahazar objects had been found out, it would have been a clinching piece of evidence to conclusively prove the prosecution case. It must be ensured by the investigating agency that such basic procedural steps are peremptorily taken by it in the course of the investigation. It may not be difficult at all to take these elementary steps by making a requisition to the Doctors and the laboratory to furnish a report in this regard. 26. In this case, we have noticed yet another glaring omission on the part of the investigating agency. The court below has acquitted accused No.2 to 5 primarily on the ground CRL. A. No. 925 OF 2005 18 that the witnesses had failed to identify the assailants accurately. If only, the investigating agency were a little more diligent and careful, this obvious lacuna in the prosecution case could have been avoided. We do not propose to make any further observation on this lapse committed by the investigating agency. The authority concerned has to necessarily address these issues in future, so that the investigative process is made more efficient and fool proof. 27. Having carefully perused the entire materials available on record and having considered the arguments advanced by the learned counsel for the appellant, we do not find any reason to interfere with the order passed by the court below. Though learned counsel for the appellant has made an impassioned plea to show some leniency in the matter of sentence, we are not satisfied that this is a fit case in which any such indulgence is to be shown. There is no merit in this appeal and therefore it is dismissed. A copy of this judgment shall be sent to the Chief Secretary, Home Secretary and Director General of Police for appropriate CRL. A. No. 925 OF 2005 19 action in the light of