IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE V.CHITAMBARESH WEDNESDAY, THE 30TH NOVEMBER 2011 / 9TH AGRAHAYANA 1933 CRL.A.No. 685 of 2007() ----------------------- SC.1032/2005 of ADDL. SESSIONS COURT (ADHOC) III, PALAKKAD CP.67/2004 of JUDL.MAGISTRATE OF FIRST CLASS COURT, MANNARKAD .................... APPELLANT(S): -------------- GOPALAKRISHNAN @ MANI, S/O.SIVASANKARA PILLAI, CONVICT NO.4113, CENTRAL PRISON, KANNUR. BY ADV. SRI.P.VIJAYA BHANU, SENIOR ADVOCATE SRI.M.REVIKRISHNAN RESPONDENT(S): --------------- STATE OF KERALA. PUBLIC PROSECUTOR SRI. ROY THOMAS THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 30/11/2011, THE COURTON THE SAME DAY DELIVERED THE FOLLOWING: R. BASANT & V. CHITAMBARESH, JJ. ------------------------------------------------- Crl. Appeal No. 685 of 2007 ------------------------------------------------- Dated this the 30th day of November, 2011 JUDGMENT Basant,J. (i) Did the court below err in placing reliance on the oral evidence of P.Ws.1 and 3? (ii) Is the accused entitled to the benefit of doubt for the reason that the prosecution has not proved and explained the injuries on the accused? (iii) Is the conviction under Sec.302 IPC justified? These questions arise for determination in this appeal preferred by the sole accused/appellant who has been found guilty, convicted and sentenced under Sec.302 IPC to undergo imprisonment for life. 2. The prosecution alleged that on 9/5/01 at 9.15 p.m. the accused had inflicted fatal injuries on his father-in-law who succumbed to such injuries after he was removed to the hospital. An inconsequential and silly dispute between the father-in-law and the son-in-law had allegedly led to the occurrence. There Crl. Appeal No. 685 of 2007 -: 2 :- was a further allegation that the appellant had caused simple hurt with the dangerous weapon to his mother-in-law/P.W.1 also; but on that aspect the accused was found not guilty and acquitted. 3. The crime was registered on the basis of Ext.P2 First Information Statement lodged by P.W.2, the brother-in-law of the appellant who had not witnessed the occurrence. Ext.P9 F.I.R. was registered on the basis of Ext.P2 First Information Statement. Investigation was completed and final report was filed by P.W.14, Investigating Officer. 4. The learned Magistrate, after complying with all legal formalities, committed the case to the Court of Sessions and the learned Sessions Judge took cognizance of the offence alleged against the accused. He pleaded not guilty to the charge framed against him by the learned Sessions Judge. Thereupon the prosecution examined P.Ws.1 to 14 and proved Exts.P1 to P15. M.Os.1 to 17 were also marked. 5. The accused denied all circumstances which appeared in evidence and which were put to him in the course of 313 examination. According to him, he was not responsible for any injury found on the person of the deceased. Nay, he went Crl. Appeal No. 685 of 2007 -: 3 :- further and asserted that the injuries on the deceased were inflicted by P.W.1, his mother-in-law and P.W.3, a neighbour. He claimed that he had suffered injuries; but, according to him, that injury on him was inflicted by P.W.3. No defence evidence - oral or documentary was adduced by the defence. 6. The learned Sessions Judge came to the conclusion that the evidence of P.W.1 which is duly supported by other circumstances can safely be accepted and acted upon. The evidence of P.W.1 show that the injury was suffered by P.W.1 accidentally when she tried to wrest M.O.2 from the possession of the appellant. On that finding the appellant was acquitted of the charge under Sec.324 IPC. That acquittal has now become final on that challenge. 7. Before us the learned counsel for the appellant/accused and the learned Public Prosecutor have advanced their arguments. The learned counsel for the appellant/accused assails the impugned verdict of guilty, conviction and sentence on various grounds. First of all it is contended that the learned Sessions Judge had erred grossly in placing reliance on the oral evidence of Pws.1 and 2. The learned counsel further argues that the injuries on the accused having not been proved or Crl. Appeal No. 685 of 2007 -: 4 :- explained by the prosecution, reliance ought not to have been placed on the sole testimony of interested P.W.1. The learned counsel vehemently contends that the offence in this case is not proved to be of the aggravated variety of culpable homicide amounting to murder under Sec.300 IPC. The conviction should have been entered only under Sec.299 and 304 IPC contends the learned counsel for the appellant. The learned counsel further argues that at any rate the accused is entitled to the mitigative protection of Exception 4 of Sec.300 IPC. 8. An appellate judgment is and ought to be read as a continuation of the judgment of the trial court which is impugned in the appeal. We deem it necessary that the appellate courts should caution themselves against unnecessary prolixity. It is unnecessary for the appellate court in the appellate judgment to refer to the pleadings, evidence and discussions by the trial court in a ritualistic manner. We feel that an appellate judgment can legitimately start with the opening statement that the impugned judgment is assailed on the specified grounds. That would be an adequate insurance against unnecessary prolixity in an appellate judgment. Pleadings and evidence need be narrated by an appellate court only if the appellate court feels Crl. Appeal No. 685 of 2007 -: 5 :- that there has been any inadequacy or omission on the part of the trial court to refer to pleadings and evidence in the proper perspective. It will be advantageous that appellate judgments are issued along with the judgments of the trial court alone making it crystal clear that they must be read together as an integral whole. 9. We do not, in these circumstances, intend to re-narrate the oral evidence of P.Ws.1 to 14 or the contents of Exts.P1 to P15. Suffice it to say that the counsel have taken us in detail through the oral evidence of P.Ws.1 to 14. Their evidence has been read to us in detail. Exts.P1 to P15 have also been read to us in detail. The other documents before the trial court - including the charge framed by the learned Sessions Judge and the 313 examination of the accused have also been read to us in detail. We shall specifically advert to the relevant material, if necessary, in the course of discussions. 10. P.Ws.1 is the sole person who has witnessed the incident in its totality. P.W.2 is the brother-in-law of the accused and son of the deceased. He had only hearsay information on the basis of which he lodged Ext.P2 First Information Statement. P.W.3, a neighbour, claimed to be Crl. Appeal No. 685 of 2007 -: 6 :- present when the incident began in the house of the deceased. Thereafter he had not witnessed the incident proper. P.W.5 the minor son of the accused was examined in support of the theory of motive. There is no motive to murder the deceased as such. What is at best revealed is only an insignificant dispute and quarrel which unfortunately led to the incident. P.W.4, the another neighbour examined by the prosecution, had also not witnessed the incident proper. He along with P.W.3 was present when the deceased and the injured were removed to the hospital. They do speak about certain alleged utterances of the appellant while the deceased and he were being removed to the hospital. 11. The learned counsel for the appellant, first of all, contends that the learned Sessions Judge should not have accepted and acted upon the oral evidence of P.Ws.1 and 3. P.W.1 is the interested she being the wife of the deceased. P.W.3 is said to be interested he being a neighbour of the deceased. This theory of interestedness of P.Ws.1 and 3 does not in any way impress us. P.W.1 is the wife of the deceased. She is the mother-in-law of the appellant/accused. Similarly P.W.3 is a neighbour of both the accused and the deceased. Significantly nothing has been brought in evidence to suggest Crl. Appeal No. 685 of 2007 -: 7 :- that P.Ws.1 and 3 have any animus against the appellant or interest in the deceased. Their interestedness is identical to the accused as well as to the deceased. In these circumstances, the attempt to brand P.Ws.1 and 3 as interested witnesses and the request to reject their evidence in an omnibus manner cannot be accepted. 12. We do first of all note that the presence of P.Ws.1 and 3 at the scene of the occurrence is not disputed by the appellant. It is the very case of the appellant that both of them were present when the incident commenced. On this aspect there is no dispute whatsoever. It would be puerile for the appellant now to contend that P.Ws.1 and 3 were not present when the incident commenced. Read this with the specific stand taken by the accused in the course of 313 examination that the injuries on the deceased were inflicted by P.Ws.1 and 3. Consider that in the light of the stand taken by the accused that he had suffered an injury on his person and that injury was inflicted by P.W.3. We are adverting to this aspect only to re-assure ourselves that the presence of P.Ws.1 and 3 at/near the scene of occurrence cannot possibly be disputed by the appellant. 13. Their presence at the scene of the occurrence having Crl. Appeal No. 685 of 2007 -: 8 :- thus been confirmed by us, the next question is whether they are exaggerating and giving a one sided version placing all blame for the incident unjustifiably at the doors of the appellant. We feel that this is the only aspect which must zealously be considered by us when the oral evidence of P.Ws.1 and 3 is being appreciated. 14. We shall straightaway refer to the plea that the deceased may have suffered injuries at the hands of P.Ws.1 and 3 and that the accused must have suffered the injury at the hands of P.W.3. Nothing can be farther from reason, logic and commonsense than this theory which is seen speicfically advanced by the appellant in the course of 313 examination. We have been taken through the cross-examination of P.Ws.1 and 3. There is not a semblance of attempt even to suggest that P.Ws.1 and 3 had any motive against the deceased or that P.W.3 had any motive against the appellant to justify the theory that the appellant had suffered any injury at the hands of P.W.3. Inference appears to be irresistible for a prudent mind that the appellant is only attempting to some how wriggle out of the inconvenient situation in which he finds himself pointing compellingly to his contumacious role in the incident in which Crl. Appeal No. 685 of 2007 -: 9 :- the deceased suffered injuries. 15. The evidence of P.W.3 can cover only the first part of the incident. In that part of the incident the deceased or the accused had not suffered any injuries. Go by the case of the prosecution or by the case of the accused it is evident that at the first spot i.e., the house of the deceased neither the deceased nor the accused had suffered any injuries. There was of course a quarrel. It was an unpremeditated and unanticipated quarrel, it is evident from all inputs. The father-in-law was entertaining the son-in-law. Even alcohol was served. P.W.3 a neighbour was also present. It is in the course of such circumstances that an unanticipated quarrel ensued between deceased and the appellant. P.W.3's evidence, it is clear, covers only the first part of the incident. Of course in that incident P.W.1 is shown to have suffered an injury and that is confirmed by the evidence of P.W.9 Doctor and Ext.P6 wound certificate issued by him. There was a bleeding injury for P.W.1 as seen from Ext.P6. That injury, it is further revealed from Ext.P6 was an injury which called for suturing of the wound. It is evident that at the first scene of the occurrence only P.W.1 had suffered injury and such injury was a bleeding injury. Though the prosecution had initially alleged Crl. Appeal No. 685 of 2007 -: 10 :- that the appellant had committed the offence under Sec.324 IPC in having so inflicted the injury on P.W.1, the trial court has found that it was an accidental injury and not injury voluntarily caused. That finding has become final in the absence of any appeal by the State or challenge by P.W.1. In so far as the first part of the incident is concerned which took place in the house of the appellant, there is not a semblance of reason to doubt or suspect the version of P.Ws.1 and 3. 16. The court below trifurcated the incident into three. The first one was what transpired at the house of the deceased where none other than P.W.1 had suffered any injury. The second part of the incident is at the spot marked in the scene mahazar. It is there that the deceased had suffered injuries. On this aspect of the matter, we have only the evidence of P.W.1. P.W.3 along with the wife of the accused and the daughter of the accused had left for his house from the house of the deceased after the first part of the incident. We do have only the evidence of P.W.1 about the incident proper. Her evidence is supported by the nature of the injuries found on the person of the deceased as is revealed from the oral evidence of P.Ws.8 and 9 doctors and Ext.P5 post-mortem certificate and Ext.P7 Crl. Appeal No. 685 of 2007 -: 11 :- wound certificate issued by them. The short question is whether the oral evidence of P.W.1 about the manner in which the deceased suffered injuries can be accepted. The court below which had the occasion and the opportunity to see P.W.1 perform in the witness stand before it chose to place reliance on the oral evidence of P.W.1. Assessed on broad probabilities and for its intrinsic worth, we find no reason to disagree with the conclusion of the court below that reliance can be placed on the oral evidence of P.W.1. 17. The learned counsel for the appellant assails the oral evidence of P.Ws.1 and 3 on three broad aspects. First of all he contends that the description in the scene mahazar suggests that blood was present at scene No.1 i.e., the house of the deceased. Lot of blood is seen in the house of the deceased. There is no satisfactory explanation forthcoming. It is contended that this must suggest that the real incident started or occurred in the house of the deceased. P.W.1 is suppressing that part of the incident which initially took place in the house of the deceased, contends Sri. P.Vijayabhanu, the learned counsel for the appellant vehemently. 18. We have looked into this grievance. The accused does Crl. Appeal No. 685 of 2007 -: 12 :- not also have a specific case that anything more than what is spoken to by P.Ws.1 and 3 did actually take place in the house of the deceased (i.e., scene No.1). This theory is built up by the learned counsel for the appellant on the mere circumstance that blood was found in the house of the deceased as per the description in Ext.P4 scene mahazar. It is in this context that the evidence of P.W.1 about the injury suffered by her at that venue assumes significance. We note that she had suffered a bleeding injury which required suturing by P.W.9 Doctor. Presence of blood in the house of deceased where he resides along with P.W.1 who admittedly had suffered injuries in the course of the incident there cannot in the facts and circumstances of this case - particularly in the light of the stand taken by the accused in the course of cross-examination and 313 examination, be held to generate any reasonable doubt in the mind of the court that P.Ws.1 and 3 are not speaking the truth about the incident that took place in the house of the deceased. Merely from the presence of blood in the house of the deceased as described in Ext.P4 scene mahazar we find it impossible to persuade ourselves to throw over board the evidence of P.Ws.1 and 3 of what they perceived at scene No.1. Crl. Appeal No. 685 of 2007 -: 13 :- 19. The learned counsel for the appellant submits that the description of the scene of the crime at scene/venue No.1 i.e., by the side of the pathway between the two houses does not also support the case of P.W.1 the sole witness who tendered ocular testimony about the incident at that sport. We have looked into Ext.P4 scene mahazar in detail to correctly appreciate this contention. A perusal of Ext.P4 suggests that a lot of blood stained articles were available at the scene. P.W.1 the sole witness or P.W.3 who had witnessed the earlier part of the incident does not explain how these articles were present at the scene. The articles present are M.Os.2 to 11. The learned counsel argues that M.O.2 going by the version of P.Ws.1 and 3 was wrested by P.W.1 from the possession of the appellant and thrown away. How was M.O.2 found to be near the scene of occurrence which as per the description in the scene mahazar is at a distance of about 44 Mtrs. from the house of the house. The evidence of P.W.1 only shows that she had wrested the possession of the knife and thrown it away. We have no better evidence about the spot where M.O.2 fell after it was thrown away by P.W.1. The argument that P.W.1 cannot be attributed with such powers as to throw M.O.2 to such a distance is Crl. Appeal No. 685 of 2007 -: 14 :- strenuously canvassed. This does not at any rate succeed in generating any reasonable doubt in our mind against the version of P.W.1 about the incident at scene No.2. 20. Particular reliance is placed by the learned counsel for the appellant on the description in Ext.P4 of the presence of various articles including M.O.14 iron rod which was found to be blood stained also. There were certain other articles like clothes, utensils etc., also - some of them blood stained at the scene of the occurrence. The learned counsel for the appellant argues that the presence of these articles at scene No.2 is not explained by the version given by P.W.1. 21. The learned Prosecutor promptly replies that the presence of these articles at venue No.2 cannot lead the court to a ready and instant conclusion that those articles are in any way involved in or used in the occurrence by any one. P.W.1 the sole eye witness has no such case. The accused in the course of examination of the prosecution witnesses or when examined under Sec.313 Cr.P.C. does not have even a suggestion that these articles including the blood stained iron rod (കപപര ) M.O.14 was used by any one in the incident that took place. We find merit in the submission of the learned Prosecutor that by all Crl. Appeal No. 685 of 2007 -: 15 :- indications the work of thatching of the house of the appellant was going on and the presence of these articles at the scene of the crime can be explained perfectly in these circumstances. The incident even according to the prosecution had taken place there and blood on the articles at the scene as perceived in Ext.P4 cannot lead a prudent mind to the conclusion that those articles were used in connection with the incident. We find the explanation of the learned Prosecutor to be reasonable and cogent. This is particularly so as P.W.1 has no case that such articles were used in the incident. The accused does not also have a case that such articles had anything to do in the admitted incident at that spot in which he claimed to have suffered injuries. He does not dispute that the deceased had suffered injuries at that spot. 22. In these circumstances, the description of the articles available at the scene of occurrence in Ext.P4 scene mahazar (which includes certain blood stained articles/clothes etc.,) cannot generate any reasonable suspicion in our mind against the version of P.W.1. The second circumstance relied on by the learned counsel for the appellant cannot also, in these circumstances, deliver any advantage to the accused or Crl. Appeal No. 685 of 2007 -: 16 :- persuade us to approach the evidence of P.W.1 with any suspicion or distrust. 23. We now come to the third circumstance relied on by the learned counsel for the appellant. Counsel submits that it cannot now be disputed by the prosecution that the accused had suffered injuries. P.W.1 does not explain the injuries. But we have evidence available which suggests that the accused was found with injuries near the scene of occurrence and had complained immediately that he had suffered injuries at the hands of the deceased. P.W.1 the sole eye witness does not explain the injury on the accused. She asserts that the appellant could not have suffered these injuries at the hands of the deceased. The fact remains that the injuries on the accused is not explained by P.W.1. The sole witness who tendered evidence about the incident is thus not able to offer any explanation for the injury which was allegedly suffered by the appellant. 24. In this context we come to the next aspect. The injury on the accused is not seen proved by the prosecution. The evidence of P.W.11 the police officer who conducted the initial investigation reveals that the accused did have injuries and that Crl. Appeal No. 685 of 2007 -: 17 :- he had lodged a courter FIR. The same was registered. The same was investigated into and according to P.W.1 it was referred. Obviously the same will have to be referred if the allegation is that the deceased had inflicted the injuries on the appellant, the deceased having expired and the charge against him having abated. But P.W.11 has a different version. According to him, it was referred because the Investigating Officer (evidently not he) felt that the injury on the accused was a self-inflicted injury. The Doctor who examined the appellant has not been examined. There is no evidence tendered that the injury (whatever that injury be) suffered by the accused could be a self-inflicted injury. We have, in these circumstances, no doubt that the prosecution has not discharged its burden to prove the injury on the accused at the first instance and then explain the injury on the accused. 25. What are the consequences? This is of greater importance for us. That the accused had suffered injuries appears to be clear from the totality of inputs. We have no authentic evidence to explain the injury. We are unable to render an authentic finding as to whether the said injury could be self-inflicted or not. Does this generate any reasonable doubt Crl. Appeal No. 685 of 2007 -: 18 :- in the mind of the court? This is the crucial question to be answered. 26. It is trite that there is burden on the prosecution to explain the injury on the accused. This is not a mere fetish. There is a reason, rationale and logic behind this obligation that the prosecution must explain the injuries on the accused. A witness who tenders evidence about the incident and is unable to explain the injury on the accused, it is quite possible, may not have actually witnessed the incident. If he does not witness the infliction of the injury on the accused, there is possibility of the contention being true that the witness may not have been present at the scene of occurrence at all. This is first angle from which the absence of explanation for the injuries on the accused has to be considered.