IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 15TH JANUARY 2009 / 25TH POUSHA, 1930 CRL.A.No. 445 of 2005(T) ------------------------ SC.276/2003 of ADDL. SESSIONS COURT (FAST TRACK COURT NO.II), MANJERI. .................... APPELLANT(S): ACCUSED --------------------- HAMZA S/O. MUHAMMED, KANDANTHODIKA HOUSE, NALLAMTHANNI, EDAKKARA, MALAPPURAM DISTRICT BY ADV. SRI.BABU S. NAIR RESPONDENT(S): STATE -------------------- THE STATE OF KERALA, REPRESENTED BY THE CIRCLE INSPECTOR OF POLICE, NILAMBUR - THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI-31. PUBLIC PROSECUTOR SHRI JAI GEORGE THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 02/01/2009, THE COURT ON 15/01/2009 DELIVERED THE FOLLOWING: K.BALAKRISHNAN NAIR & THOMAS P. JOSEPH, JJ. -------------------------------------- Crl.Appeal No.445 of 2005 -------------------------------------- Dated this the day of January, 2009. JUDGMENT Thomas P.Joseph, J. Appellant faced trial in the court of learned Additional Sessions Judge (Adhoc) II, Manjeri in S.C.No.276 of 2003 for offence punishable under Section 302 of the Indian Penal Code (for short, ‘the Code’) on the charge that on 17.5.2001 at or by about 5 p.m. at Udamboyil, with intention to cause death of deceased Hamza (hereinafter referred as ‘the deceased’), appellant bet the deceased with a glyricidia stick, inflicted injuries and the deceased succumbed to the injuries on 19.5.2001. Learned Additional Sessions Judge found the appellant guilty under Section 302 of the Code, convicted and sentenced him to undergo imprisonment for life and to pay fine of Rs.10,000/- with default sentence. That conviction and sentence are under challenge. 2. Heard both sides. 3. Following points arise for consideration:- I. Whether appellant inflicted injuries on the deceased on the relevant day, time and place as alleged by the prosecution? II. What if any, is the offence committed by the appellant? III. Regarding sentence. 4. Perused the records. Crl.Appeal No.445/2005 2 5. Points I and II. According to the prosecution, deceased on sustaining injuries was taken to the Taluk Head Quarters Hospital, Nilambur. Evidence of PW1, Assistant Surgeon of that hospital and Ext.P1 would show that deceased was brought to that hospital on 17.5.2001 at 7.45 p.m. with injuries suffered in an alleged assault. PW1 noticed lacerated wounds on the scalp and referred the deceased to the Medical College Hospital, Calicut as he suspected head injury. Deceased was taken to the Medical College Hospital, Calicut where, while undergoing treatment he succumbed to injuries on 19.5.2001. PW11, Circle Inspector conducted the inquest at Medical College Hospital on 19.5.2001. Ext.P6 is the inquest report proved through PW11 and PW6, the attestor. PW2, Lecturer in Forensic Medicine conducted the autopsy on 20.5.2001 at about 9.30 a.m. and issued Ext.P2. It is revealed from the evidence of PW2 and Ext.P2 that there were 18 antemortem injuries. PW2 opined that the deceased died due to head injury (injury No.18) and that the said injury is fatal. Thus, it is proved by the prosecution beyond reasonable doubt that deceased sustained injuries on 17.5.2001 and succumbed to it on 19.5.2001. 6. First information (Ext.P3) regarding the alleged incident was given by PW3, brother of the deceased on 19.5.2001 at about 1 p.m. PW9, ASI recorded Ex.P3 and registered the case. Ext.P3(a) is the FIR. According to PW3, he was informed by one Sayed and driver Dasan that his brother (referring Crl.Appeal No.445/2005 3 to the deceased) is being assaulted by somebody at the paddy field at Udamboyil. PW3 reached the place of occurrence and found one Rasheed and Yohannankutty propping up the deceased. Deceased was bleeding from his mouth and head. PW3 and others took the deceased to the Taluk Head Quarters Hospital, Nilambur and then the Medical College Hospital, Calicut. PW3 claimed that on 17.5.2001 at about 9 p.m., deceased, while at Medical College Hospital said, “if you are a man, beat from the front side, do not beat from the rear side, Kundan Hamza”. Thereafter the deceased had not talked anything. He died on 19.5.2001. 7. PW4 is an attestor in Ext.P4, mahazar for scene of occurrence prepared by PW11, Circle Inspector on 20.5.2001. PW5, Village Officer prepared Ext.P5, sketch plan for the scene of occurrence. Going by Exts.P4 and P5 and the evidence of PWs 5 and 11, place of occurrence is the thodu in the paddy field at Udamboyil. It is the further version of PWs 4 and 11 that from the scene of occurrence PW11 seized a glyricidia stick, a bamboo stick, pair of chapels and soil (MOs 1 and 3 to 5). According to PW11, lunki (MO2) found on the body of the deceased was seized to custody at the time of inquest. 8. PWs 7 and 8 are witnesses to the alleged incident. Both claimed to have witnessed the incident. PW7 would say that near the place of occurrence, he had cultivated betel leaf and while returning from that place, saw Nambianthodika Sayed near the forest (it has come in evidence that near the Crl.Appeal No.445/2005 4 place of occurrence it is forest on three sides). He was talking to Sayed. While so, he found the appellant chased by deceased and PW8 coming towards the paddy field from the side of the forest. Appellant ran into the paddy field, collected a stick from there and beat the deceased. The blow fell on the deceased and he collapsed into the thodu. Appellant again beat the deceased 2-3 times. Appellant dropped the stick there itself and left the place. PW3 and others came there and took the deceased to the hospital. PW7 identified MO1 as the glyricidia stick with which the appellant allegedly beat the deceased. Version of PW8 is that himself, deceased and appellant having emerged from the nearby forest, were going along with the paddy field. While so, there was wordy altercation between the appellant and the deceased. Before reaching the paddy field, appellant ran. Deceased chased him. When the deceased reached near the thodu, appellant beat the deceased 3-4 times on the head and other parts of the body with a glyricidia stick. Deceased collapsed into the thodu. PW8 went to get a vehicle (to take the deceased to the hospital). According to PW8, PWs 3 and 7 and one Sayed also came to the scene of occurrence. Deceased was taken to the hospital. After 2-3 days he learned that deceased succumbed to the injuries. PW8 identified MO1 as the glyricidia stick with which the appellant beat the deceased. 9. PW10 proved Ext.P7, report of chemical examination on the material objects. Ext.P7 shows that there was no bloodstain on MO1, glyricidia Crl.Appeal No.445/2005 5 stick. There was however, bloodstain on MOs 6 and 7, the lunkies the deceased and appellant were allegedly wearing at the time of incident. PW11, Circle Inspector stated that he seized the lunki of the deceased (MO6) on 20.5.2001 as per Ext.P8. According to PW11, the driver of the jeep (CW13) in which the deceased was taken to the hospitals produced MO6 before him on 20.5.2001 which he seized as per Ext.P8. He seized (MO2) lunki found on the body of the deceased at the time of inquest as per Ext.P6. PW11 searched the house of the appellant on 20.5.2001 and seized MO7, lunki of the appellant as per Ext.P9. 10. When questioned under Section 313 of the Code of Criminal Procedure (for short, ‘the Cr.P.C.’) appellant denied all the incriminating circumstances and evidence against him and claimed that deceased sustained injuries in a scuffle while playing cards and that he is innocent of the matter. Learned counsel for appellant contended that there is no explanation for what he called, inordinate delay in lodging the first information regarding the alleged incident. He argued that lodging of first information was delayed only to fabricate a case. The incident occurred not in the manner pleaded by the prosecution. There is no explanation for the several injuries found on the body of the deceased. It is further contended that version of PW3 is contradicted by what he, himself stated in Ext.P3, the first information statement. There is contradiction in the evidence of PWs 3, 7 and 8. PW7 is a planted witness. Material witnesses are not examined and material records are not produced by Crl.Appeal No.445/2005 6 the prosecution. MO1 is not the weapon of offence and at any rate, it is not proved that it was seized from the scene of occurrence. MO3 (bamboo stick) was not sent for chemical examination purposely. Learned counsel therefore, pleaded for acquittal of the appellant. Per contra, it is argued by the learned Public Prosecutor that the mere delay in lodging first information is not sufficient to reject the prosecution case. It is also contended by the learned Public Prosecutor that the court below is justified in relying on the evidence of prosecution witnesses and finding the appellant guilty. 11. It is not disputed and Ext.P3 also shows that first information was given by PW3 only on 19.5.2001 at about 1 p.m. though, the incident occurred , according to the prosecution on 17.5.2001 at about 5 p.m. Ext.P1, wound certificate issued by PW1 would show that deceased was brought to the Taluk Head Quarters Hospital, Nilambur on 17.5.2001 at about 7.45 p.m. In Ext.P1, history and alleged cause of injury is stated as ‘assault’. Going by the evidence of PW3, himself and others took the deceased to the hospital. Necessarily, information regarding cause of injury must have been given to PW1 by those who accompanied the deceased. Therefore it is not as if the cause of injury and the incident were suppressed by those who took the deceased to the hospital. They stated at the earliest point of time itself that deceased suffered the injuries in an assault. According to PW3, after his reaching the scene of occurrence, taking the deceased to the hospitals and till his death on 19.5.2001, Crl.Appeal No.445/2005 7 deceased had talked only once. That evidence of PW3 and the nature of injuries suffered by the deceased as disclosed by Ext.P2 and evidence of PW2 would show that it was serious in nature. In such a situation if PW3 or, for that matter any other relative of the deceased had not gone to the police station to comply with the duty to inform the police about the incident, we are unable to say that it was calculated or to suppress anything from the police since, as we have already stated, PW1 was already informed that deceased sustained injuries in an assault. There is no evidence to show that either from the Taluk Head Quarters Hospital, Nilambur or from Medical College Hospital, Calicut, intimation was sent, at any rate in time about the medico-legal case. It may be that PW3 and other relatives of the deceased either thought that police would come to the hospital to record their statement or, they were more concerned about the condition of the deceased. It is also to be born in mind that even in Ext.P3, PW3 did not say that he had witnessed the incident. If Ext.P3 were to be fabricated, it was possible for PW3 to say that he had witnessed the incident. We do not find any circumstance to think either that Ext.P3 is fabricated or that giving that information was delayed purposely to create a false case against the appellant. 12. So far as the contradiction in the evidence of PW3 is concerned, Ext.D1 is pressed into service. Ext.D1 is the marked portion in Ext.P3. Contradiction in Ext.P3 and the evidence of PW3 as proved by Ext.D1 is only Crl.Appeal No.445/2005 8 regarding the description of Hamza as allegedly spoken by the deceased on 17.5.2001 at about 9 p.m. while undergoing treatment at Medical College Hospital. In the evidence PW3 stated the words of the deceased as ‘Kundan Hamza’ while in Ext.P3, it is stated as 'Machuniyan Hamza’ ( ). That contradiction is of no consequence since the presence of the appellant at or near the scene of occurrence is not disputed by him also and it is admitted that appellant and the deceased are first cousins. Moreover, this is not a case of any mistaken identity of the assailant. Another contradiction pointed out by the learned counsel in the evidence of PW3 and Ext.P3 is as to the name of persons who according to PW3, informed him about the incident. In Ext.P3, PW3 stated that 'Meenchadi Abdu' (PW8) and, 'Sayed' informed him about the incident while he was in the shop of one Vijayan on 17.5.2001 at or by about 5.30 p.m. but in evidence, PW3 stated that he was informed about the incident by driver Dasan and Sayed. Contradiction is only that while in Ext.P3, PW3 referred to PW8 as one among the persons who informed him about the incident, in the evidence he did not name PW8 but stated about driver Dasan and Sayed informing him about the incident. After all, PW3 was not a witness to the incident and he was giving evidence a few years after the incident. Some discrepancy in the evidence is quite possible and expected. 13. We shall consider the evidence of PWs 7 and 8. In Ext.P3 itself, Crl.Appeal No.445/2005 9 there is reference to PW8. It is true that there is no reference in Ext.P3 to PW7. But, for the mere reason of PW3 and that too, not a witness to the incident not mentioning the name of PW7 in Ext.P3, it is not justifiable to discard the evidence of PW7 if it is otherwise acceptable. It was suggested to PW7 that he was involved in an arrack case, appellant was a witness against him and hence, he is falsely implicating the appellant. PW7 had no difficulty to admit that he is involved in arrack case and that alleged incident occurred in the forest. But he denied that he is enimical to the appellant as the latter gave evidence against him. If the appellant had given evidence against PW7, appellant could and would have produced the relevant documents concerning that. That was not done. Therefore we are not impressed by the suggestion made to PW7 to discredit him. We are not inclined to think in the facts and circumstances of the case that merely because PW7 was involved in an arrack case, his version has to be disbelieved. 14. So far as evidence of PW8 is concerned, it is contended by learned counsel that PW7 had not told PW11 in the course of investigation that PW8 had witnessed the incident. In his previous statement what PW7 told PW11 is that 'Meenchadi Hamza' also had seen the incident but, PW8 is 'Meenchadi Abdu'. It has come in evidence that Meenchadi Hamza is the brother of PW8. Nobody has a case that Meenchadi Hamza was present at the time of incident. It is quite possible that PW7 though intending to PW8 as having Crl.Appeal No.445/2005 10 witnessed the incident, wrongly mentioned the name of PW8 to PW11 as 'Meenchadi Hamza' instead of 'Meenchadi Abdu'. At any rate, PW8 cannot be disbelieved for the reason that PW7 did not tell the Investigating Officer that PW8 was present at the time of incident. Even the cross-examination of PW8 would show that his presence at the scene of occurrence is not disputed by the appellant. We are not inclined to think for the abovesaid reason that PW8 had not witnessed the incident. So far as evidence of PW8 is concerned, it is contended by the learned counsel that he was 'absconding' for about a week after the incident and his version cannot be believed. According to the appellant, PW8 also had sustained injuries in the incident. We have gone through the evidence of PW8. He denied that he sustained injury in the incident. He claimed that two days after the death of the deceased, he went with his brother Meenchadi Hamza to Thrissur and was there for a few days and thereafter, he was questioned by the police. He came to the police station along with the Secretary of Youth Congress. It was suggested to PW11 also that PW8 sustained injuries in the incident. He pleaded ignorance. PW11 admitted that he questioned PW8 only on 21.5.2001. There is no evidence to show that PW8 sustained injuries in the incident nor are we impressed by the contention that PW8 had made his presence scarce following the incident. According to PW8, there was cards playing before the incident, all had consumed arrack and though he was not involved in cards playing, he also had taken arrack. Being a Crl.Appeal No.445/2005 11 rustic villager, he may have sought the help of a local leader to come to the police station. At any rate, it is not the case of appellant that PW8 is instrumental in the deceased sustaining injuries. We do not find any reason to disbelieve the evidence of PWs 7 and 8. 15. It is contended by learned counsel that non-examination of Yohannankutty and Rasheed referred to in Ext.P3 is fatal. What PW3 stated in Ext.P3 is that when he reached the scene of occurrence, he found Yohannankutty and Rasheed propping up the deceased. According to PW8, that immediately after the incident he had gone to collect a vehicle to take the deceased to the hospital. Nobody said, and nobody claimed also that Yohannankutty and/or Rasheed had witnessed the incident. If that be so, non- examination of Yohannankutty and Rasheed cannot be said to be fatal. 16. We referred to the evidence of PWs 7 and 8 that the appellant beat the deceased with MO1, glyricidia stick. According to the appellant, MO1 is not the weapon of offence and it was planted at the place of occurrence. Learned counsel invited our attention to Exts.P4 and P7, mahazar for scene of occurrence and report of chemical examination. In Ext.P4 as per which MO1 along with MO3 to MO5 were seized by PW11 from the place of occurrence on 20.5.2001, it is stated that MO1 had stains of blood. But chemical examination proved (see Ext.P7) that there was no stains of blood on MO1. MO3, bamboo stick also was seized from the scene of occurrence as per Ext.P4 on 20.5.2001. Crl.Appeal No.445/2005 12 MO3 was not sent for chemical examination. As to how MO3 (bamboo stick) reached the place of occurrence, PW3 has an explanation. He claimed that on hearing that his brother is being attacked at the paddy field, he rushed to that place collecting a bamboo stick and while taking the deceased to the hospital, left the bamboo stick, there. It is true that no such explanation is given in Ext.P3. But, we are also to bear in mind that Ext.P3 is not the encyclopedia of the prosecution and the object of giving first information is only to set the law in motion. Minute details of the incident need not necessarily be given in the first information statement. It is quite natural that when PW3 was informed that his brother was being attacked at the paddy field, he collected a stick and went there. We do not find reason to disbelieve the explanation given by PW3. Since there is no evidence to show that MO3 is involved in the incident, non- sending of MO3 for chemical examination is not fatal. So far as absence of blood on MO1 as per Ext.P7 is concerned, maximum that can be stated is that the statement in Ext.P4 regarding the presence of blood stain on MO1 is not proved to be correct. The possibility of an organic stain or serum being misunderstood as blood stain by named eyes cannot be ruled out. We also take note that the incident was on 17.5.2001, PW11 seized MO1 along with MOs 3 to 5 only on 20.5.2001 and that chemical examination, at the earliest was on 29.6.2001. Absence of blood stain on MO1 as per Ext.P7 cannot disprove the evidence of PWs 7 and 8 that the appellant beat the deceased with MO1. Crl.Appeal No.445/2005 13 17. Next contention is regarding non-explanation of all the injuries on the body of the deceased. In Ext.P1, there is mention of only a lacerated wound over the front of scalp and another lacerated wound on the left side of the left eye. Ext.P1 shows that it was suspecting head injury that the deceased was referred to the Medical College Hospital. It is possible that PW1 had not conducted any thorough examination of the body of the deceased. So far as the several injuries noted in Ext.P2, certificate of autopsy is concerned it is seen that many of the injuries are small abrasions and some are sutured wounds. Evidence of PWs 7 and 8 is that at the paddy field, appellant beat the deceased with MO1 on the head, he collapsed into the thodu and the appellant again beat the deceased, 2-3 times. According to PW7, appellant beat the deceased 3-4 times. In a case of this nature, much importance need not be given to the number of blows which according to PWs 7 and 8 the appellant gave to the deceased. Difference in power of perception, capacity to keep the matter in memory, recollect and reproduce it after a few years can result in difference in the version of witnesses regarding the number of assaults. We also note that on the side of the appellant, there was no serious cross-examination of PW2 regarding the nature of injuries except regarding injury No.18 which according to PW2 proved to be fatal. Possibility of the deceased sustaining the abrasions while he collapsed into the thodu cannot be ruled out. 18. Learned counsel contended that seizure of MO7 is not proved. Crl.Appeal No.445/2005 14 According to the learned counsel, Ext.P9 violates the requirements of Section 100(4) of the Cr.P.C. and the prosecution did not examine the attestor in Ext.P9. 19. PW11 claimed that he searched the house of appellant on 20.5.2001 and seized MO7 as per Ext.P9. Section 100(4) of the Cr.P.C. required the officer conducting the search to call two or more independent and respectable inhabitants of the locality in which the place to be searched is situate or of any other locality if no such inhabitant of the locality is available or is willing to be a witness to the search, to attend and witness the search. Ext.P9 shows that it is attested by only one witness and that witness has not also been examined. Assuming that there is no literal compliance with Section 100 (4) of the Cr.P.C. it is not as if the case of the prosecution has to be thrown out for that statutory violation. It is not as if in any case, a mahazar can be proved only by examining the attestor. PW11 in the discharge of his official duty searched the house of appellant and seized MO7 as per Ext.P9. That document has been proved through PW11. There is no challenge at all, to the evidence of PW11 that he seized MO7 as per Ext.P9. It is idle to contend that Section 100(4) of the Cr.P.C. is violated, attestor in Ex.P9 is not examined and therefore Ext.P9 has to be rejected. 20. Coming to the seizure of MO6, lunki worn by the deceased at the time of incident as per Ext.P8, counsel contended that its attestor is not Crl.Appeal No.445/2005 15 examined. CW13 who had taken the deceased to the hospital in his jeep while washing the jeep had thrown away the lunki of the deceased at that place which he later collected and produced before PW11. PW11 seized it as per Ext.P8. CW13 was not examined by the prosecution. But, that is of no consequence since the evidence of PW11 about seizure of MO6 as per Ext.P8 is not touched in cross-examination. We have gone through the evidence of the prosecution and considered the contentions. We find no reason to interfere with the finding of the court below that appellant inflicted injuries on the deceased on the relevant day, time and place with MO1. 21. What, then is the offence committed by the appellant? PW8 stated