IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN FRIDAY, THE 22ND MAY 2009 / 1ST JYAISHTA 1931 Crl.Rev.Pet.No. 2712 of 2004 -------------------------------- SC.192/2002 of ADDL. SESSIONS COURT, (FAST TRACK NO.I), PALAKKAD .................... REVN. PETITIONER(S): PW2 & MOTHER OF DECEASED (DEFACTO COMPLAINANT) AMMINI RAMAKRISHNAN, ULLAS BAHAVAN, KAIDHACHIRA, MANNARKKAD, PALAKKAD DISTRICT. BY ADV. SRI.K.RAMAKUMAR, SENIOR ADVOCATE SRI.T.RAMPRASAD UNNI RESPONDENT(S): ACCUSED & STATE ---------------------------------------- 1. BABY @ SEBASTIAN S/O. DEVASSIA, THONDIYAMTHADATHIL HOUSE, KAITHACHIRA, MANNARKKAD. 2. THOMAS S/O. DEVASSIA, RESIDING AT DO. DO 3. SAVI @ DOMINIC SAVI, RESIDING AT DO. DO. 4. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.S.U.NAZAR SRI.S.VIJAYAKUMAR FOR R1TO3 SRI.P.VIJAYA BHANU FOR R1 TO R3 SRI.P.M.RAFIQ FOR R1 TO R3 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 22/05/2009, ALONG WITH CRL.A.1897/2005, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A. K. Basheer & P. S. Gopinathan, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Crl.R.P.No.2712/2004 & Crl.A. No. 1897 of 2005 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 22nd day of May, 2009. Judgment Basheer, J: Since this criminal appeal and Criminal Revision Petition arise from the same judgment of acquittal, they are being disposed of by this common judgment. While the State has filed the appeal impugning the order of acquittal of the respondents/accused who were charge sheeted for an offence punishable under Section 302 read with Section 34 IPC, the mother of the deceased who was examined as Pw.2 has preferred the revision petition questioning the legality and regularity of the order of acquittal. 2. Respondents/accused, who are three in number, were charge sheeted by Mannarkkad Police for the offence punishable under Section 302 read with Section 34 IPC on the allegation that they had committed murder of deceased Ullas Kumar at about 8 A.M. on October 4, 1998, in furtherance of their common intention, in the rubber plantation belonging to the family of the accused. According to the prosecution accused No.1 had stabbed on the right side of the neck of the deceased with M.O.5 knife commonly used for rubber tapping, while accused Nos.2 and 3 had restrained the deceased. Though the victim was removed to the hospital immediately thereafter, he was declared dead by the doctor of the hospital. Pws.14 and 16 had conducted investigation and charge sheet was laid thereafter by Pw.17. 3. The prosecution examined Pws.1 to 17 and marked Exts.P1 to P15 and M.O.1 to M.O.13 on its side. Ext.D1 was marked on the side of the accused. The learned Sessions Judge after a careful evaluation of the oral Crl.RP.2712/04 & Crl.A.1897/05. : 2 : and documentary evidence on record held that the prosecution has failed to prove the charge against the accused beyond reasonable doubt. Resultantly respondents/accused were acquitted. 4. Learned Public Prosecutor who appears for the State submits that the learned Sessions Judge was not justified in disbelieving Pw.1 and Pw.2, the prime witnesses on the side of the prosecution. The material evidence of the witnesses was not properly considered by the learned Sessions Judge, it is contended by the learned Pubic Prosecutor. In the revision petition, the mother of the deceased who was examined as Pw.2 has raised a contention that the court below was not justified in acquitting the accused on the face of the reliable and cogent evidence adduced by the prosecution. 5. Before dealing with the evidence of the prime witnesses on the side of the prosecution, it has to be noticed that the alleged incident was admittedly a sequel to another incident involving Pw.1 and accused No.1, four days prior to the actual incident. The evidence on record as spoken to by Pw.2 would show that Pw.1 was assaulted by accused No.1 at the residence of one Sugathan, late in the evening of September 29, 1998. According to Pw.1 he had gone to the residence of Sugathan to inform him to attend a mediation talk in connection with a family dispute. At that time accused No.1 who was present at the residence of Sugathan (CW.2) had assaulted Pw.1. Going by the version given by Pw.1 he had suffered injuries on his face and eyes. But admittedly Pw.1 had not reported the matter to the Police. According to Pw.1, he had reported the matter to deceased Ullas Kumar, his brother. Sri.Ullas Kumar came down from Thiruvalla on receipt of this information, on October 3, 1998. 6. The prosecution case is that on the next day morning at about 7.30 a.m. deceased Ullas Kumar had set out to the Rubber estate of accused Crl.RP.2712/04 & Crl.A.1897/05. : 3 : No.1 to meet him and find out the reason for assault on his brother (Pw.1). Thus admittedly the alleged incident took place inside the rubber estate of accused No.1. Accused Nos.2 and 3 are the brothers of accused No.1. It has come out in evidence that the accused are residing in the family house situated in the estate. 7. When examined in court, Pw.1 deposed that deceased Ullas Kumar had gone to meet accused No.1 in an autorickshaw at about 7.30 a.m. Pw.1, his wife and children and also Pw.2, his mother, had followed deceased Ullas Kumar in another autorickshaw towards Kaithachira where their tharwad house is situated. When the autorickshaw reached near the mosque at Kaithachira, Pw.1 found that the autorickshaw in which his brother had gone was coming back towards the mosque which is 1 km. away from his tharwad house. The estate of the accused is on the roadside near the mosque. He saw his brother Ullas Kumar was walking through the estate of the accused. He got down from the autorickshaw and went towards his brother, while his mother, wife and children went to the tharwad house in the same autorickshaw. When he reached near the tharwad house of the accused inside the estate, he saw his brother walking through the estate followed by accused Nos.2 and 3. Accused No.1 was tapping rubber trees at that time. He saw his brother talking something to accused No.1 from a distance. At that time accused Nos.2 and 3 went near the deceased and restrained him, while accused No.1 stabbed the deceased on the right side of his neck with the tapping knife. Ullas Kumar cried aloud. According to Pw.1 at that time he was standing about 100 meters away. Pw.1 also cried aloud and ran towards his brother. Accused Nos.2 and 3 brandished the tapping knife and told Pw.1 not to enter the compound. By that time some people came running to the scene and the accused withdrew Crl.RP.2712/04 & Crl.A.1897/05. : 4 : from the scene. Blood was rushing out from the neck of the deceased. By that time his mother (Pw.2) came running to the place. Pw.1 requested the people who had gathered there to fetch a jeep. Nobody went for the jeep. Therefore he went to get a jeep. His brother (the deceased) was taken to Government Hospital, Mannarkkad in the jeep by about 8.30 a.m. After examining him, the Doctor informed that he was no more. Pw.1 further deposed that the Police recorded his statement from the hospital, which was marked as Ext.P1 in the case. He further deposed that he got admitted in the hospital on the same day for the injury sustained by him in the incident which took place at Sugathan's residence on September 29, 1998. 8. It may at once be noticed that in Ext.P1 F.I statement Pw.1 had no case that accused Nos.2 and 3 had restrained the deceased in order to enable accused No.1 to inflict the wound on him. Significantly, Pw.1 had not even referred to any overt act by these two accused, though he had vaguely stated that accused No.3 was seen there. We will come back to the evidence of Pw.1 a little later. 9. Pw.2 the mother of the deceased stated that she saw the autorickshaw returning from Kaithachira area after dropping deceased Ullas Kumar. She was going to her tarwad house along with Pw.1, his wife and children. Pw.2 further stated that she and Pw.1 saw accused No.1 walking through the rubber plantation of the accused. At that time Pw.1 got out of the autorickshaw. She along with her daughter-in-law and children went towards their family house. When they got down at their house she saw several people running towards the rubber plantation of accused No.1 She also heard someone saying that accused No.1 had stabbed Ullas Kumar. She ran towards the rubber plantation. At that time Pw.1 was there along with several other people. She saw her son on the ground with blood oozing Crl.RP.2712/04 & Crl.A.1897/05. : 5 : out from his neck. She asked him what happened. Ullas Kumar told her that Baby (accused No.1) had stabbed him. She dressed the wound on his neck. She also saw accused Nos.2 and 3 near Ullas Kumar. When Ullas Kumar was taken to the hospital, the Doctor informed that he was already dead. Pw.2 identified the shirt and mundu worn by her son at the time of the incident (M.O.1 series). In cross examination this witness admitted that she was questioned by the Police only on November 6, 1998 more than a month after the incident. She further admitted that she had not told the Police that she had seen accused Nos.2 and 3 at the scene of occurrence or that the people who were present at the scene had also heard Ullas Kumar telling her that accused No.1 had stabbed her. 10. Pw.3 was a witness to the inquest (Ext.P2). Pw.4 who was cited as an eye witness did not support the prosecution case. Pw.5 deposed that she had come to the scene of occurrence immediately after the incident. But she did not speak anything further to advance the prosecution case. She only stated that she saw Ullas Kumar bleeding from his neck. 11. Pw.6 is the other prime witness on the side of the prosecution. She stated that she was a resident in the neighbourhood of the rubber plantation where the alleged incident took place. At about 8 a.m. on the day of the incident while she was standing in the courtyard of her residence she heard someone crying aloud “----------------------------------------” (Mother, Baby stabbed me). On hearing this she went in that direction. Accused No.3 who was present there told her not to enter the property. She saw all the three accused there. Ullas Kumar was standing there holding on his neck. Pw.6 asserted that Pw.1 came to the scene after she reached there. Pw.2 followed Pw.1 a little later. This witness further stated that she came to know about the death of Ullas Kumar later. In cross examination she Crl.RP.2712/04 & Crl.A.1897/05. : 6 : stated that she was questioned by the Police some time in the evening on the same day of the incident. According to this witness she and her father (Moideen) had reached the scene of occurrence first. Several others had reached the scene thereafter. This witness insisted that she had told the Police that she had heard somebody crying aloud “mother Baby stabbed me”. She could not say why the Police had not recorded the said statement. Pw.7 the jeep driver spoke only that Ullas Kumar was taken to the hospital in his jeep. Pw.8 was a witness to Ext.P5 scene mahazar while Pw.9 Village Assistant prepared Ext.P6 scene plan. 12. Pw.10, the Asst. Sub Inspector of Police had recorded Ext.P1 First Information Statement of Pw.1 at the hospital. According to this witness he had also seized M.O.5 knife, M.O.6 sword stick and M.O.7 cover of the sword stick under Ext.P9 seizure mahazar at about 11 a.m. on the day of the incident itself from the courtyard of the tarwad house of the accused. But curiously Pw.9 had not prepared any search memo or search list. He deposed that he had gone to Govt. Hospital, Mannarkkad at about 8.45 A.M. on receipt of the intimation (Ext.P7 series). At that time he saw Pw.1 there who informed him that he had got admitted in the hospital in connection with some injuries sustained by him on September 29, 1998 at the hands of accused No.1 in the residence of Sugathan. After recording Ext.P1 statement he had gone to the Police Station and registered Ext.P8 FIR. According to this witness he had gone to the residence of the accused as directed by the Circle Inspector of Police. Apart from M.O.5 to 7 he had also seized M.O.3 T shirt from the residence of the accused. It may be mentioned that in Ext.P9 mahazar prepared in this connection, the witnesses were only Police officials. At the time when he visited the scene of occurrence, accused Nos.2 ans 3 were present. He found blood stains at Crl.RP.2712/04 & Crl.A.1897/05. : 7 : the scene of occurrence. He admitted that he had not prepared the scene mahazar. In cross examination he further admitted that he had not initialled in Ext.P1 F.I. statement where the names of Kunjaymu and Baby were inserted. Significantly he admitted that those two names were inserted later. He handed over the seized articles to the Circle Inspector of Police on the same day itself and forwarded the FIR to the competent court. Pw.11 conducted the post mortem and issued Ext.P10 certificate. Pw.11 was the photographer who took photograph of the dead body at the hospital. Pw.13 was the Head Constable who had seized M.O.8 and M.O.9 photos under Ext.P12 mahazar. 13. Pw.14 the Circle Inspector of Police deposed that he took over the investigation on the day of the incident itself. He conducted inquest at about 10.30 in the morning in the hospital. Ext.P2 mahazar was prepared in the presence of witnesses after conducting inquest. M.O.10 series clothes were seized at the time of inquest. We do not deem it necessary to refer to the other official acts performed by the officer at the time of inquest. But this witness stated that he had arrested accused Nos.2 and 3 at about 9 p.m. on October 4, 1998 itself. Accused No.1 was arrested at about 10.30 p.m. on the same day. But curiously no arrest memo was prepared . In this context it may also be noticed that M.O.5 knife which was allegedly used for committing the crime along with M.O.6 and 7 the sword stick and its cover were produced before he court only on November 12, 1998 more than a month after the incident. Pw.14 had handed over investigation of the case to his superior officer, the Dy.S.P (Pw.17) on October 16, 1998. In cross examination this witness stated that he came to know that Pw.1 was treated at the hospital for the injury sustained by him allegedly on September 29, 1998. But he did not bother to obtain the wound certificate or such other Crl.RP.2712/04 & Crl.A.1897/05. : 8 : records from the hospital. Similarly he did not also question the Doctor who had treated Pw.1 at the hospital. after his admission there on October 4, 1998. More importantly, Pw.14 also stated that on October 4, 1998 Pw.1 had given Ext.D1 statement before him in which he had not mentioned that he had seen accused No.1 inflicting the stab wound on the deceased. Further, no witness had stated before him that deceased Ullas Kumar had uttered any word after he sustained the wound. Pw.15 Head Constable was a witness to Ext.P9 seizure mahazar. 14. Pw.16, the Dy.S.P, conducted further investigation after he took over charge from Pw.14. According to this witness he continued the investigation till August 8, 2000. In cross examination he stated that Pw.6 had not mentioned the name of accused No.1 as to have inflicted the stab injury on the deceased. He further admitted that though he had questioned the son of accused No.1(Master Libin) on two occasions he was not cited as a witness since his statement was not found to be reliable. In fact Master Libin had stated that he had seen the occurrence. More significantly this witness also stated that he had not conducted any investigation as to how M.O.6 sword stick happened to lying in the courtyard of the residence of the accused. Pw.17 had laid charge sheet on completion of the investigation. 15. As could be seen from the oral testimony of Pws.1 and 2, deceased Ullas Kumar had gone to the rubber estate belonging to the accused on the fateful day. Pw.1 stated that he got down from the autorickshaw when he saw his brother walking through the rubber plantation belonging to the accused. Pw.1 followed the deceased towards the residence of the accused. It is true that Pw.1 stated that he saw the deceased talking to accused No.1 from a distance of about 100 meters. It Crl.RP.2712/04 & Crl.A.1897/05. : 9 : has also come out from the evidence of Pw.1 that he had seen accused No.1 inflicting injury on the deceased. But significantly in Ext.P1 F.I statement the version given by Pw.1 was that accused No.1 had inflicted the injury with some “deadly weapon”.There was no mention about M.O.5 in Ext.P1. Further, Pw.1 had no case in Ext.P1 that accused Nos.2 and 3 had restrained the deceased in any manner, in order to enable accused No.1 to inflict the stab injury. There is not even a whisper about such an overt act by accused Nos.2 and 3 in Ex.P1 F.I statement, though in that statement Pw.1 vaguely mentioned that he had seen accused No.3 in the estate. Coming to the evidence of Pw.2 , the mother of Pw.1 and deceased Ullas Kumar, it may be noticed that she had admittedly reached the scene of occurrence after her son had sustained the injury. But according to this witness she had heard somebody saying that Ullas Kumar was stabbed. When she reached the scene and asked her son as to what had happened , Ullas Kumar had allegedly told her that Baby (accused No.1) had stabbed him. But significantly Pw.2 had not given such a version before the Police. 16. In this context it may also be noticed that the evidence of Pw.6 will show that Pws.1 and 2 had come to the scene of occurrence after this witness had reached there. But the evidence of Pw.1 will show that no one else was present at the scene when the alleged incident took place. We have referred to these aspects in the evidence of these prime witnesses only to indicate that inconsistent versions given by them do not inspire any confidence. The fact that Pw.1 had omitted to mention about the overt acts by accused Nos.1, 2 and 3 will by itself show that the evidence of this witness cannot be believed. Moreover, Pw.10 had admittedly stated that he had made some interpolation in Ext.P1 statement. None of the witnesses Crl.RP.2712/04 & Crl.A.1897/05. : 10 : who were allegedly present in the scene were cited or examined. 17. There is yet another aspect of the matter. It is the admitted position that Police had recovered a bloodstained sword stick (M.O.6) from the courtyard of the accused. The grouping of the blood found on M.O.5 knife and the sword stick was the same (A group). Incidentally the blood group of the deceased also was A. The prosecution had not bothered to offer any explanation about the presence of this sword stick at the scene of occurrence or as to why it was seized and produced as a mahazar object in the case. The conduct of Pw.1, especially the admitted position that he had sustained some injury at the hands of accused No.1 four days prior to the occurrence, will also indicate that the prosecution had not come out with the true facts leading to the incident. Significantly Pw.1 had not made any complaint in connection with the assault on him by accused No.1 on September 29, 1998. But curiously Pw.1 got himself admitted in the hospital for the injury sustained by him on that occasion only on the day when the deceased in this case was taken to the hospital. This conduct of Pw.1 is totally baffling and strange, to say the least. 18. We have carefully perused the entire materials available on record. We have also gone through the judgment of the learned Sessions Judge. The reasoning given by the learned Judge while acquitting the accused, in our view, is eminently justified in the facts and circumstances of the case. It is trite that the scope of interference with the judgment of the trial court in an appeal against acquittal is very narrow and limited, especially if the reasons given by the trial court for acquitting the accused do not suffer from any apparent illegality or infirmity. 19. Having gone through the judgment of acquittal, we do not find any reason to interfere. There is no merit in any of the contentions raised Crl.RP.2712/04 & Crl.A.1897/05. : 11 : either by the State or Pw.2 in the appeal and in the revision petition. Therefore the appeal and the revision petition are dismissed. A.K. Basheer Judge P. S. Gopinathan Judge an.