IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL.A.No. 398 of 2005()
1. BASHEER PALLIYALI @ VICHAPPU,
... Petitioner
Vs
1. STATE OF KERALA, REP. BY
... Respondent
2. STATE OF KERALA, REP. BY
For Petitioner :SRI.MANJERI SUNDERRAJ
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice A.K.BASHEER
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :12/01/2009
O R D E R
A.K.BASHEER & THOMAS P. JOSEPH, JJ.
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Crl.A.No.398 OF 2005-A
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Dated this the 12th day of January, 2009
JUDGMENT
Thomas P.Joseph, J:
Appellant stands convicted for offence punishable under
Section 302 of the Indian Penal Code (for short, “the Code”)
and sentenced to undergo imprisonment for life and payment
of fine of Rs.50,000/=. He faced trial in the Additional
Sessions Court (Fast Track-I), Manjeri on the charge that on
the night between 16.1.2002 and 17.1.2002 (wrongly stated in
the judgment under challenge as 17.1.2004) he forcibly
administered pesticide mixed with some ayurvedic medicine
to his third wife, Sulekha and caused her death.
2. Heard both sides.
3. Following points arise for consideration.
(i) Whether deceased died of poisoning ?
(ii) Whether appellant administered poison to the
deceased as alleged by the prosecution?
4. Perused records.
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5. Point Nos.1 and 2 : It is not very much in dispute and
proved by the prosecution that Sulekha (hereinafter referred
as “the deceased”), wife of the appellant was found dead on
the morning on 17.1.2002 in their house. PW5 conducted
autopsy on the body of deceased and issued Ext.P3. Evidence
of PW5 is that postmortem findings were consistent with
death due to poison. Ext.P3 also states that a foetus was
developing in the womb of the deceased.
6. According to the prosecution, deceased was the third
wife of appellant and was pregnant at time of incident.
Motive alleged is that appellant wanted to abort pregnancy
but deceased was not agreeable and hence appellant wanted
to dispose of her. Prosecution examined Pws 1, 4 and 13,
parents and sister of deceased to prove motive. They have
given evidence in that line. It is also their version that
appellant wanted to marry another sister of the deceased
which themselves and the deceased resisted. Deceased even
claimed that she will not give consent for that so far as she
was alive. PW3, daughter of appellant and deceased was
examined to prove that appellant administered poison to the
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deceased on the night of 16.1.2002. PW3 stated that on the
night of 16.1.2002 deceased said that she felt severe
headache. She then saw the appellant forcibly administering
some black crystals into the mouth of deceased and pouring
some water also into the mouth. Following that, deceased told
PW3 that appellant cheated her. Deceased requested that she
be taken to the hospital. Appellant said that by next day
morning everything will be all right. Next day morning, PW3
saw body of the deceased lying in the room. First
information regarding the incident was given by PW1, father
of the deceased. Case was registered for unnatural death
under Section 174 of the Code of Criminal Procedure (for short
‘the Cr.P.C.’). PW6, Executive magistrate conducted inquest.
Ext.P2 is the inquest report. PW1 expressed doubt regarding
cause of death of the deceased. Section 302 of the Code was
incorporated in the F.I.R. PW14, circle Inspector conducted
investigation and submitted final report alleging commission
of offence punishable under Section 302 of the Code.
7. PW14 in his evidence claimed that he arrested the
appellant on 19.1.2002 and on information given by the
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appellant, recovered Mos 1 to 4 as per Ext.P7 from the
house of appellant. PW10 is an attester to Ext.P7. Mo1 is a
polythene packet which allegedly contained some black
crystals (according to the prosecution, it was furedan). Mo2
is a piece of paper and Mo3 is a cash bill dated 9.1.2002. It
is the case of prosecution that appellant had purchased
furedan as per Mo.3 (cash bill) from the shop of PW9. PW9
gave evidence that about 1-2 years (before his examination
in the court below), appellant had purchased furedan from his
shop. Ext.P7 is the mahazer for scene of occurrence prepared
by Pw14, investigating officer. Ext.P8 is the sketch for the
place of occurrence prepared by PW7 Village Officer.
Evidence of Pws 7 and 14 and Exts.P7 is to the effect that
appellant produced Mos 1 to 4 from among the heap of metals
kept in the room in the house of appellant and the deceased.
8. It is contended by learned counsel for appellant that
evidence produced by the prosecution is insufficient to show
that appellant had administered poison to the deceased.
According to the learned counsel, evidence of prosecution
witnesses is not believable.
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9. From the records we noticed that though PW14 who
investigated the case had produced Mos 1 to 4 in court as per
Ext.P13 and requested as per Ext.P14 dated 4.9.2002 to send
the material objects for chemical examination, report of
chemical examination was not available at the time of trial.
Hence, we called for report from the court of learned
Judicial Magistrate concerned as to whether material objects
referred to in Ext.P14 were sent for chemical examination.
Learned Magistrate reported that material objects were
sent for chemical examination. Thereon, we called for the
report of chemical examination. Learned Magistrate has
forwarded the report of chemical examination dated 30.4.2004
as per his letter dated 5.1.2009. Particles found in Mo1
(recovered allegedly on the information given by the
appellant from his house) has been identified as furedan.
That report is certainly relevant for consideration.
10. Learned counsel for appellant contends that the
said report was not available in the records at the time of
trial, its copy was not furnished to the appellant and hence, it
is not justifiable to rely on that report or even to send back
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the case giving opportunity to the prosecution to prove the
said report. He contended that such an exercise cannot be
done in an appeal preferred by the appellant.
11. Section 386(b)(i) of the Cr.P.C permits appellate
court while considering an appeal from conviction to reverse
the findings and sentence and acquit or discharge the
accused or order him to be re-tried by a court of competent
jurisdiction subordinate to the appellate court. Section 391 of
the Cr.P.C permits appellate court to take further evidence
or direct it to be taken by a court of session or magistrate as
the case may be. Reading Section 386(1)(b) and 391, it leaves
us in no doubt that even when the appeal is preferred
against conviction and sentence, it is well within the power of
appellate court to set aside conviction and sentence and send
back the case to the trial court to record further evidence.
‘Retrial’ referred to in Section 386(1)(b)(i) of Cr.P.C does not
necessarily mean a fresh trial from the beginning. Where
some witnesses were not examined or documents not proved,
retrial can be ordered for the purpose of examining such
witnesses or proving the documents. (See Lakshmanan
Sundaran v. State of Kerala (1989 (1) KLT 261) and
Alarambil Rajan and others v. State (1994 (1) KLJ 176).
12. Learned counsel then contends that giving such an
opportunity to the prosecution would amount to filling up
lacuna in the prosecution case. We are unable to accept that
contention as well. A Division Bench of this Court and the
apex court considered the question, what is ‘lacuna’, in Suja P.
Chacko v. State of Kerala (1994 (1) KLJ 54) and Rajendra
Prasad v. Narcotic Cell (1999 (2) KLT 779) and held that
‘lacuna’ means the inherent weakness or latent wedge in the
prosecution case. If a material that was available in the case
was not put in evidence, that is not an inherent weakness or
latent wedge in the prosecution case. PW14, investigating
officer wanted the material objects to be tested in the chemical
examiner’s laboratory obviously to ascertain whether the
polythene packet (Mo1), among other things, contained trace of
Furedan and made a request to the learned magistrate as
per Ext.P14 to send the material objects referred therein for
chemical examination. When such a request was made, it
was the responsibility of the jurisdictional magistrate
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consider that request. If the request was accepted and the
material objects were sent to the laboratory, learned
magistrate ought to have ensured that report is obtained and
forwarded to the sessions court. We have gone through the
report of the chemical examination forwarded by the learned
magistrate and find that material objects were sent to the
laboratory as per letter dated 4.9.2002. It is true that when
the case came up for trial before learned Additional Sessions
Judge, that report was not available before that court. But
then, noticing from Ext.P14 that a request had been made by
the investigating officer as aforesaid to send the material
objects for chemical examination, learned Additional Sessions
Judge ought to have ascertained whether report of chemical
examination was available and if not, summon the same from
the office concerned. It is not as if the report of chemical
examination was not available. It is only that it was not
summoned at the appropriate time either by the law officer
who conducted the prosecution or by the courts concerned.
In the circumstances, we do not think that giving prosecution
an opportunity to prove the said report would amount to
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filling up any lacuna.
13. We also find that though PW9 was examined to
prove that appellant had allegedly purchased furedan from
his shop and PW9 supported the prosecution, no attempt was
made to prove Mo.3 and for that matter, if necessary Mo1
also through PW9. We are not inclined to think that because
relevant evidence which was available was not adduced,
appellant should get an acquittal on that ground. That will
only be a travesty of justice which cannot be permitted to
happen. In these circumstance, we are inclined to send back
the case to the learned Additional Sessions Judge, so that
report can be proved in evidence, necessarily after giving a
copy of the same to the appellant. It will be open to the
prosecution to recall Pws 9 and 14 for purpose of proving
Mos 1 to 4, report of chemical examination and the connected
records, we have adverted above. In the circumstances, we do
not express any opinion regarding the sufficiency or
acceptability of the evidence let in by the prosecution or on
the merit of contentions raised by the appellant. We hasten to
add that learned Additional Sessions Judge after recording
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additional evidence as stated above will further question the
appellant if found necessary, under section 313 of the Cr.P.C.
Appellant will be given opportunity to adduce evidence as
provided under Section 233 of the Cr.P.C. Learned Sessions
Judge shall dispose of the case as provided under law. Since
conviction and sentence on the appellant are being set aside,
we direct that appellant will be released , if not required to
be detained otherwise on his executing bond for
Rs.25,000/= with two solvent sureties for the like sum each
to the satisfaction of learned Additional Sessions Judge.
Resultantly this appeal is allowed in the following lines:
i. Conviction and sentence on the appellant are set
aside.
ii. Case is remanded to the court of learned Additional
Sessions Judge (Fast Track-I), Manjeri to record further
evidence in the light of observations made above and for
disposal as provided under law.
iii. Superintendent of the jail concerned is directed to
cause production of appellant in the court of learned Additional
Sessions Judge, (Fast Track-I), Manjeri on or before 31.1.2009.
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On such production, it will be open to the appellant to execute
bail bond as stated above. In case of his release on bail as
aforesaid, learned Sessions Judge shall direct him to appear
before that court on a specified day for further trial of the
case.
iv. Learned Sessions Judge is directed to dispose of the
case within three months from the date of receipt of a copy of
this judgment.
The Registry shall send back the entire records together
with the report of chemical examination forwarded to this
court by the learned Judicial First Class Magistrate as per
letter dated 5.1.2009 to the court of Additional Sessions Judge
(Fast Track-1), Manjeri.
(A.K.BASHEER, JUDGE)
(THOMAS P. JOSEPH, JUDGE)
cl
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