IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN TUESDAY, THE 2ND DECEMBER, 2008 / 11TH AGRAHAYANA, 1930 CRL.A.No. 279 of 2001(A) ----------------------------- (SC.479/1999 of ADDL.SESSIONS COURT, KOZHIKODE) .................... APPELLANTS/ACCUSED: ---------------------------- 1. SAHADEVAN, S/O.KANNA, KOTTAMBARA, PAYYOLI (VIA), MANIYOOR. 2. BABU, S/O.KANNAN, ANGEVETTIL, PAYYOLI (VIA), MANIYOOR. 3. SASI, S/O.BALAN, PARAVAKANDIYIL, PAYYOLI (VIA), MANIYOOR. 4. BALAN.T.K., S/O.CHANDU, CHALIL, PAYYOLI(VIA), MANIYOOR. BY ADV. SRI.M.R.RAJENDRAN NAIR (SR.) SRI.M.R.SUDHEENDRAN SRI.NIDHI BALACHANDRAN SRI.HARIRAJ SRI.SURAJ.S RESPONDENT/COMPLAINANT: ------------------------------------- STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.P.RAVINDRA BABU. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 18/11/2008, ALONG WITH CRRP NO. 825 OF 2001 THE COURT ON 02/12/2008 DELIVERED THE FOLLOWING: V.K.MOHANAN, J. --------------------------------------------- Crl.A.No. 279 of 2001 & Crl.R.P.No.825 of 2001 --------------------------------------------- Dated this the 2nd day of December, 2008 J U D G M E N T The above two cases arose out of a judgment dated 28.2.2001 in Sessions Case No.479 of 1999 on the file of the Sessions Court, Kozhikode. 2. The above sessions case is instituted upon a report filed by the Circle Inspector of Police, Payyoli in Crime No.96 of 1999 for the offences punishable under Sections 452 and 304 Part II read with Section 34 of Indian Penal Code, against the accused, four in numbers. By the impugned judgment, the Sessions Court convicted the accused under Section 323 read with Section 34 of I.P.C. and accordingly, they were sentenced to undergo rigorous imprisonment for four months each and also to pay a fine of Rs.1000/- each and in default, to undergo simple imprisonment for one month each. It was also ordered that if the fine amount was paid, the entire amount should be paid to PW1 as compensation under Section 357(1) of the Criminal Procedure Code. Set off under Section 428 of Cr.P.C. was also allowed. But, they were found not guilty under Section 304 Part-II, 452 and 324 Crl.A.No. 279 of 2001 & Crl.R.P.No.825 of 2001 :-2-: read with Section 34 I.P.C. Challenging the above order of acquittal passed by the court below, PW1 in the above Sessions Case preferred the above Crl.Revision Petition, against the above accused. The accused by filing Crl.A.No.279 of 2001 challenge their conviction and sentence under Section 323 read with Section 34 of I.P.C. 3. As the above appeal as well as the Crl.Revision Petition arose out of the same judgment of the trial court, these two matters were heard together and being disposed of by this common judgment. 4. The prosecution case is that at about 10.30 p.m. on 1.4.1999, the accused, in furtherance of their common intention to commit the crime, trespassed into the weaving shed situated at Maniyoor Panchayath which belongs to the deceased where he was sleeping and assaulted him with wooden reaper and dragged him to the road and fisted and kicked him and had beaten with hands and pushed him aside and when CW1 intervened, the third accused pushed her down and the accused persons had assaulted the deceased Velayudhan knowing that he was a heart patient and their act was likely to aggravate the Crl.A.No. 279 of 2001 & Crl.R.P.No.825 of 2001 :-3-: death and thus, he died on account of the acts of the accused and thereby they had committed the offences punishable under Sections 452, 323 and 304 Part II read with Section 34 I.P.C. On the basis of the said allegation, initial crime (Crime No.96 of 1999) was registered for the offences punishable under Sections 452 and 302 read with Section 34 I.P.C. During the investigation, a report was filed before the court to delete Section 302 I.P.C. and incorporate Section 304 Part II. Thus, accordingly, the investigation was undertaken and a final report was filed for the offences under Sections 452, 304 Part II, 324 and 323 read with Section 34 of I.P.C. before the Judicial First Class Magistrate Court, Payyoli from where the case was committed to the Sessions Court as per the committal order dated 17.11.1999 of the learned Magistrate in C.P.No.48 of 1999 and the case was taken on file as S.C.No.479 of 1999 by the Sessions Judge, Kozhikode and subsequently, made over to the trial court for disposal. Thus, on appearance of the accused, a formal charge was framed after hearing them and also the Prosecutor, for the offences punishable under Sections 452, 323,324 and 304 Part II read with Section 34 I.P.C. and when the same was read over Crl.A.No. 279 of 2001 & Crl.R.P.No.825 of 2001 :-4-: and explained to the accused, they pleaded not guilty. Consequently, the prosecution adduced evidence by examining Pws.1 to 15 and produced Exts.P1 to P20. The material objects such as MO1 series, Mos.2 and 3 were marked. When the incriminating circumstances were put to the defence, they denied the same. The first accused filed a statement claiming alibi. No evidence either oral or documentary was adduced by the defence except the marking of Ext.D1 contradiction. On the basis of the pleadings and contentions raised and the materials, five points were raised by the trial court for its consideration. After appreciation of the evidence and hearing the prosecution as well as the defence, the trial court found that the prosecution failed to prove beyond reasonable doubt that the accused had knowledge about the fact that the deceased was suffering from heart disease of grave nature and they are likely to know that any injury caused by them would result in the death of the deceased and accordingly, the court held that the accused could not be convicted for the offence punishable under Section 304 Part II of I.P.C., but they could be convicted only under Section 323 of I.P.C. As there is no evidence to substantiate the prosecution Crl.A.No. 279 of 2001 & Crl.R.P.No.825 of 2001 :-5-: allegation under Sections 452 and 324 of I.P.C., the accused were accordingly acquitted. Thus finally, the trial court convicted the accused only under Section 323 I.P.C. read with Section 34 I.P.C. and with respect to the other charges namely, under Sections 452,304 Part-II and 324 read with Section 34 I.P.C., they were acquitted. It is the above acquittal which is challenged by the de facto complainant in the above revision petition. So also the accused challenged their conviction and sentence under Section 323 of I.P.C. 5. I have carefully considered the contentions advanced by Mr.T.G.Rajendran, learned counsel appearing for the revision petitioner and Mr M.R.Rajendran Nair, learned Senior counsel appearing for the appellants and also Sri.P.Ravindra Babu, learned Public Prosecutor for the State. I have also perused the material documents and also the evidence on record. 6. Mr.T.G.Rajendran, learned counsel appearing for the revision petitioner submits that the order of acquittal passed by the court below with respect to the offences punishable under Section 304 Part II, 324 and 452 read with Section 34 I.P.C. are highly arbitrary and illegal. According to the learned counsel, Crl.A.No. 279 of 2001 & Crl.R.P.No.825 of 2001 :-6-: Ext.P6 chemical analysis report and Ext.P7 wound certificate would show that the deceased sustained about 15 injuries. According to the learned counsel, the evidence of PW5 would show that the deceased had died due to heart disease, and the injury sustained by the deceased precipitated the cardiac failure and therefore, the trial court ought to have been held that the accused is liable to be punished under Section 304 Part II. It is the case of learned counsel that when the accused inflicted 15 injuries on the body of the deceased, they had sufficient knowledge that the deceased was a heart patient. It is also the case of learned counsel that the medical evidence is sufficient to show that the death was resulted due to the bodily injuries sustained by the deceased and therefore, the learned counsel submits that the court below is not justified in acquitting the accused for the offences under Section 304 Part II. Thus, the learned counsel submits that by allowing the revision petition, the matter may be sent back to the trial court for fresh consideration after setting aside the order of acquittal or this Court may be pleased to find that the accused are liable to be convicted for the said offence and accordingly, they may be convicted and Crl.A.No. 279 of 2001 & Crl.R.P.No.825 of 2001 :-7-: appropriate sentence may be imposed against them. 7. Though Pws.1 to 15 were examined to prove the prosecution case, the prosecution mainly depends upon the oral testimonies of Pws.1 and 2 to substantiate the allegation. PW1 is none other than the wife of the accused. It is on the basis of her statement to the Police, the crime was registered. Ext.P1 is the First Information Statement given by PW1 to PW13 who in turn registered Ext.P15 F.I.R. PW1 deposed before the court that on the date of the incident i.e., on 1.4.99 at about 10.30 p.m. when herself and PW2 have gone to bed, they heard a crying sound of deceased Velayudhan, asking as to who was beating him and it is also the case of PW1 that the first accused in answer to such question told the deceased that it was he who had beaten him. It is the further case of PW1 that immediately after hearing the above noise, Pws.1 and 2 came out of their house along with the daughter in law of PW1 and thus she saw all the accused persons pressing the deceased against the telephone post situated on the side of the lane and near the weaving shed and beating him with hands on the chest and back. It is also the case of PW1 that when she tried to remove them, Accused No.3 had Crl.A.No. 279 of 2001 & Crl.R.P.No.825 of 2001 :-8-: pushed her and she fell down and thereafter, the accused pushed the deceased into a small drain situated on the side of the road and thereafter, they left from the place of occurrence. She had also stated that she, with the help of others, took the deceased out of the drain and at that time, the said Velayudhan was unconscious and she asked her daughter-in-law to bring some water. Thus, though she tried to give water, the deceased could not take the same and she understood that he was dead. According to PW1, thereafter the matter was informed to the Payyoli Police Station over phone in pursuance of which PW13 attached to the above Police Station came on the spot during the early hours on 2.4.1999 and recorded Ext.P1 statement from her residence at about 4 a.m. on 2.4.1999. It is on the basis of the said information, PW13 registered the crime for the said offences. 8. The investigation was conducted by PW15 by the Circle Inspector of Police, Payyoli who came to the place of occurrence and conducted the inquest on the dead body of the deceased and prepared Ext.P8 inquest report in the presence of PW8 and PW3 who had not signed the inquest report as a Panchayatdar. PW15 seized lunki seen on the body of the Crl.A.No. 279 of 2001 & Crl.R.P.No.825 of 2001 :-9-: deceased. He had also seized MO1 series of wooden reapers and MO3 plastic mug as per Ext.P8 inquest report. Besides the taking up of certain photographs of the deceased and the place of occurrence, PW15 had also questioned certain witnesses. PW3 is a neighbour who came to the place of occurrence after the incident. PW15 had also seized Ext.P2 note book showing the previous treatment of the deceased as produced by PW4, the son of the deceased as per Ext.P3 seizure mahazar. PW9 is the attester to the said mahazar. PW15 had seized Ext.P9 First Information Statement given by PW10 and recorded by PW12. As per Ext.P19 seizure mahazar, PW15 had also seized Ext.P14 intimation produced by the Head Constable 2754 with respect to the incident. As per the request of PW15, the autopsy of the dead body of the said Velayudhan was conducted by PW6, who issued Ext.P4 Post Mortem Certificate. Ext.P5 final opinion and Ext.P6 chemical analysis report were also proved through PW15. Another witness was examined as PW5, the Doctor who treated the deceased for his heart disease during the year 1997 and through PW5, Ext.P2 note book produced by PW4 was proved. Ext.P7 is the wound certificate with respect to PW10 issued by Crl.A.No. 279 of 2001 & Crl.R.P.No.825 of 2001 :-10-: PW7, the Doctor who treated PW10. PW11 is the eye witness to the incident that had taken place between PW10 and the deceased Velayudhan. Ext.P20 is the report filed by PW15 who deleted Section 302 I.P.C and incorporated Section 304 Part II I.P.C. in the offence column in the F.I.R. Thus, the prosecution case is that PW10, the uncle of the first accused was attacked by the deceased at about 7.15 p.m. on 1.4.1999 and in order to retaliate the said incident, the accused four in numbers trespassed into the weaving shed of the deceased where he was sleeping and by using reaper, inflicted blow injury on his body and thereafter dragged him towards the post in the road and he was kicked and beaten by the accused and when PW1 interfered to save her husband, accused No.3 pushed her down and consequently, she had fallen and sustained injury and thus Velayudhan, the husband of PW1 died as a consequence of the injury inflicted by the accused. The trial court, after considering the case, found that the prosecution failed to establish allegation under Section 304 Part II, 452 and 324 of I.P.C. and accordingly, the accused were acquitted with respect to the above offences. According to the trial court, the prosecution could establish the Crl.A.No. 279 of 2001 & Crl.R.P.No.825 of 2001 :-11-: only charge against the accused under Section 323 of I.P.C. The trial court came into such a conclusion mainly based upon the oral testimony of PW1. The court below had disbelieved the version of PW1 about the origin of the incident that the beating of the deceased by the accused using reaper and crying of the deceased as to who had beaten him, and the answer alleged to have given by the first accused etc. According to the court, PW1 has no occasion to see the incident and what she had seen is only the later part of the incident inflicting injury by fisting and kicking the deceased and beating with hands and pushing him aside etc. It is the above finding which is challenged by the appellants. 9. Learned counsel for the appellants submits that absolutely there is no evidence to prove the prosecution case. The learned counsel submits that Ext.P1 First Information Statement and the consequent Ext.P15 First Information Report are concocted documents and the same were manipulated by the Police against the accused. The learned counsel submits that the evidence of PW1 cannot be believed even for a moment. Counsel pointed out the PW1 is none other than the wife of the Crl.A.No. 279 of 2001 & Crl.R.P.No.825 of 2001 :-12-: deceased and she is very much interested in the conviction of the accused because of her animosity towards the accused. Learned counsel submits that though PW1 is the wife of deceased and closely related, her evidence would have been accepted and there is no legal bar, if the same is otherwise free from infirmities, contradictions and embellishments. Learned counsel for the appellants submits that as rightly pointed out by the trial court, the evidence of PW1 regarding the origin of the incident cannot be believed. It is to be taken note of that she had tried to give an account regarding the origin of the incident though she had not actually witnessed the same and such conduct and attempt of the witness is sufficient to discard her evidence. Learned counsel pointed out that PW1 has no consistent version as to how she happened to reach at the place of occurrence and her evidence is full of infirmities and contradictions. Learned counsel pointed out that in Ext.P1, she had stated that in the evening of the date of incident at Manayoor Market, there was some altercation between Kottambra Gopalan and her husband deceased and the accused attacked the deceased because of that animosity. Learned counsel pointed out that Ext.P1 was given at about Crl.A.No. 279 of 2001 & Crl.R.P.No.825 of 2001 :-13-: 4 a.m. on 2.4.1999. When she was examined, she had categorically stated that she came to know about the reason of the previous day incident only at about 10 a.m. on 2.4.1999. She had also deposed that at 2 a.m. on 2.4.1999, when the Police questioned her, she had deposed before the Police that the accused had committed the crime, but she had not known the reason for committing such offence and the above fact had been deposed before the Police. The learned counsel for the appellants submits that PW1 came to know about the reason of the previous day incident at about 10 a.m. on 2.4.1999 and she was not aware of the reason of the previous day incident at the time when Ext.P1 was prepared. But there is no explanation as to how she stated about the reason for the alleged crime in Ext.P1. So the learned counsel submits that Ext.P1 is a concocted and manipulated document created and that too after Ext.P9 Statement connected with the earlier incident. Counsel also pointed out that though the Magistrate court is very adjacent within the vicinity of 11 Kms. from the Police Station and that Police Constables were deputing for court duty and though frequent bus services were available through the places where Crl.A.No. 279 of 2001 & Crl.R.P.No.825 of 2001 :-14-: the court is situated, the F.I.R. and the F.I.S reached in the court only in the evening and there is no explanation for such delay. Thus, the above factual situation creates strong doubt regarding the veracity and genuineness of the prosecution case. It is also pointed out by the counsel that the medical evidence also does not conclusively prove the prosecution case, whereas the same endorsed the possibility suggested by the defence regarding the cause of death of the deceased. According to the learned counsel, even the evidence of PW2, another witness cited and examined by the prosecution, according to the trial court, is an exaggerated version regarding the incident. It is also pointed out that PW3 is a local witness who reached the spot when Pws.1 and 2 were alleged to have reached there. According to PW3, there was no proper light and the deceased was an addict of liquor. Learned counsel pointed out that simply because he had given a correct account regarding the place of occurrence and the habit of the deceased, the trial court discarded his evidence. The prosecution has also failed to produce and examine independent witnesses. Thus, the learned counsel submits that the entire prosecution case is under the shadow of doubt and Crl.A.No. 279 of 2001 & Crl.R.P.No.825 of 2001 :-15-: therefore, the order of conviction and sentence of the court is liable to be set aside. 10. Mr.T.G.Rajendran, learned counsel appearing for the revision petitioner vehemently argued that the available materials and evidence on record are sufficient to hold that the accused have committed the offences punishable under Section 304 Part II and other sections namely 324 and 452 of I.P.C. According to him, the trial court acquitted the accused without assigning any proper and valid reason, but based upon the mis-concept of law involved in the matter. In support of his plea for convicting the accused for the said offences, the learned counsel invited my attention to Ext.P6 chemical analysis report and Ext.P7 wound certificate and also the oral testimonies of Pws.1 and 2 and PW5, the Doctor who issued Exts.P7 and also the evidence of PW12 and Ext.P9 statement of PW10. It is the specific case of learned counsel that prior to the incident in this case, there was another incident by which PW10 was attacked by the deceased on the same date and the said incident was established through the evidence of PW10, PW12 and Ext.P9. PW10 is the uncle of the first accused who was attacked by the deceased and based upon Crl.A.No. 279 of 2001 & Crl.R.P.No.825 of 2001 :-16-: such incident, PW10 was admitted in the hospital from where his F.I.statement was recorded by PW12 Head Constable attached to the same Police Station and thus Ext.P9 is the F.I.statement given by PW10. So on the basis of the said incident, the accused for retaliation attacked the deceased after having trespassed into the weaving shed wherein the deceased was sleeping. Therefore, according to the learned counsel, the accused committed these offences as they were provoked by the earlier incident and after full preparation. On the basis of the oral testimonies of Pws.1 and 2, the learned counsel submits that the deceased sustained injuries initially from the weaving shed and that injury was inflicted by using reaper. It is thereafter, the deceased was dragged into the road and near to the post where he was further attacked by all the accused by using their hands. So there is ample evidence to show that all the injuries sustained by the deceased were inflicted by the accused. It is the further case of the prosecution as well as counsel that the deceased was a person who was suffering from severe cardiac disease, and PW4, the son of the deceased produced the note book showing the treatment undergone by the deceased. Thus, according to Crl.A.No. 279 of 2001 & Crl.R.P.No.825 of 2001 :-17-: the prosecution, the accused was aware of the fact that the deceased was an acute cardiac patient and by inflicting the injuries noted down by PW5 in Ext.P7 and also in the post mortem report Ext.P4, the accused was having the knowledge that the injured would have been died as a result of such injuries. 11. The trial court after an elaborate evaluation of the material and evidence on record and after discussing the legal question involved in the matter, found that Sections 304 Part II, 324 and 452 of I.P.C. are not attracted. Going by the evidence, it can be seen that the prosecution has miserably failed to adduce evidence to show that the accused were having the knowledge that the deceased was a cardiac patient and he was undergoing treatment for the same and also they have the knowledge that the injuries which are alleged to have inflicted by them will cause cardiac arrest as a result of which the injured is likely to die. I have also perused the decisions viz., Vijayan v. State of Kerala (1991(1) KLT 325), Thomas v. State of Kerala (1991(2) KLT 274) and Urmese v. State of Kerala (1959 KLT 1351). On examination of the facts and circumstances and the evidence in the present case, especially in the light of the above legal Crl.A.No. 279 of 2001 & Crl.R.P.No.825 of 2001 :-18-: authorities, I am of the view that the finding arrived on by the court below is absolutely correct and legal. The materials and evidence on record on re-appreciation are not capable to take a different view so as to interfere with the order of acquittal passed by the trial court. Therefore, there is no scope for interfering with the order of acquittal passed by the trial court in exercise of the revisional power of this Court and hence revision petition fails. 12. As pointed out earlier, counsel for the appellants submits that absolutely there is no independent evidence to support the prosecution case since the evidences of Pws.1 and 2 are not free from doubt and therefore, the appellants are entitled to get the benefit of doubt with respect to the offence alleged. As I have observed earlier, the entire prosecution case, especially with respect to the incident were set up based upon the evidences of Pws.1 and 2. The trial court has already found that PW2 is