IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL.A.No. 1172 of 2001()
1. MADHAVAN
... Petitioner
Vs
1. STATE
... Respondent
For Petitioner :SRI.S.M.PRASANTH
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice V.K.MOHANAN
Dated :16/12/2008
O R D E R
V.K.MOHANAN, J
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Crl. Appeal No. 1172 of 2001
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Dated this the 16th day of December, 2008.
J U D G M E N T
This is an appeal preferred by the sole accused in sessions case No.
160 of 1998 of the Court of the Sessions Judge, Wayanad, Kalpeta
challenging his conviction and sentence under Section 326 of Indian Penal
Code.
2. When the matter was taken for consideration, the learned
counsel for the appellant/accused reported that the appellant/accused is no
more. In this case, it is relevant to note that apart from awarding the
sentence of imprisonment, the court has also sentenced the accused to
pay a fine of Rs.5,000/-. Therefore, in view of Section 394(2) of Code of
Criminal Procedure, the appeal will not be abated due to the death of the
appellant even though the appeal is preferred by the accused. Therefore it
is incumbent for this court to dispose of the appeal on merit. Since the
accused/appellant died during the pendency of the appeal, legally and
technically, the counsel who preferred the appeal cannot prosecute this
appeal unless the legal heirs are impleaded as per the proviso to Section
394(2) of Code of Criminal Procedure and they authorise the counsel to
prosecute the same. However, on the request of this court, the learned
Crl. Appeal No. 1172 of 2001 -2-
counsel assisted this court to dispose of the matter.
3. The prosecution case is that at about 6.30 p.m. on 25.6.1994
when PWs.1 and 2 were standing in front of the shop of Manukuttan, they
heard a cry from the side of the house of one Sreedharan pursuant to
which they went there running and saw the deceased Subramanniyan lying
in a pool of blood on the public road at Cheeral in front of the house
bearing door No. X/671 belonging to one Sreedharan. While PWs.1 and 2
reaching the scene of occurrence they saw the accused coming from the
opposite side with a blood stained chopper in his hand. Subsequently, the
injured was taken to the Priya Hospital, Sulthanbathery initially and from
there he was taken to the Medical College Hospital, Calicut. The doctor
examined the injured and declared as dead. On the next day morning,
PW1 went to the Sulthanbathery Police Station and narrated the incident.
Thus Ext.P1 F.I. statement was prepared, on the basis of which, Ext.P1 (a)
FIR was registered by PW8, the Sub Inspector of Police attached to
Sulthanbathery police station for the offence punishable under Section 302
of the I.P.C. On the basis of the said allegation as mentioned above,
Crime No. 185 of 1994 was registered and after investigation, a final report
was filed against the accused for offence under Section 302 I.P.C. On the
appearance of the accused, after hearing both the prosecution and
defence, the probable charge under Section 302 IPC was framed, which
was read over and explained to the accused who pleaded not guilty.
Crl. Appeal No. 1172 of 2001 -3-
Thereafter PWs. 1 to 10 were examined and Exts.P1 to P12 were marked.
During the trial, MOs.1 to 8 were identified and marked as material objects.
When incriminating circumstance, which brought out during the prosecution
evidence, were put to the accused, he denied the same. It is his further
case that he was undergoing treatment due to ailment and he is having
rheumatic complaint and because of that he was not in a position to lift his
hands and therefore he was in bed rest. It is also his case that he was
implicated the case because of political animosity as he belonged to BJP
and the deceased and the prosecution witnesses are belonged to
Communist Party of India (Marxist). After consideration of the facts and
circumstances and the evidence on record, the trial court found that the
prosecution has failed to establish the case of murder against the accused,
as prosecution miserably failed to establish the intention from the part of
the accused to commit murder of the deceased Subramanniyan and
therefore the trial court found that the only offence attracted against the
accused is under Section 326 of IPC. Thus, after hearing the accused, he
is sentenced to undergo rigorous imprisonment for five years and to pay a
fine of Rs.5,000/- and in default sentence is fixed one year rigorous
imprisonment. It is the above conviction and sentence challenged in this
appeal.
4. I have heard the learned public prosecutor and also got the
assistance of the advocate Mr. S. M. Prasanth, who actually filed the
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appeal. As observed by the court below, it is beyond doubt that the
deceased Subramanniyan died as a result of the injuries sustained by him.
Ext.P8 Postmortem certificate issued by PW9 shows the details of the
injuries sustained by the deceased. PW9 opioned that the deceased died
of bleeding that resulting from incised wounds of legs and left palm –
Injuries Nos. 2, 6 and 8. There is no effective challenge against the said
finding and also the evidence which based on such findings.
5. Going by the evidence of prosecution and the prosecution story
as such, it can be seen that there is no direct evidence to prove the
occurrence that took place which resulted in the injuries on the deceased.
While prosecution depends upon the circumstantial evidence to prove its
case towards establishing the above prosecution allegation, the
prosecution mainly depends upon the oral testimonies of PWs.1 and 2 and
through such evidence the prosecution tried to establish that the deceased
went to the spot from where PWs.1 and 2 heard his cry and at the spot,
witnesses saw the accused going with a blood stained chopper. Apart from
the above circumstances, another circumstances relied on by the
prosecution is the recovery of the MO1 weapon, which alleged to have
been used for inflicting the injury upon the deceased. Now let us examine
the circumstances and the evidence in support of such circumstances let in
by the prosecution. According to PW1, he knows deceased
Subramanniyan. On the fatal day in the afternoon at about 5.P.M. while he
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was standing in the shop belonging to Manukuttan (CW3) for purchasing
grocery items, he heard a cry from the side of the house of one Soman.
Immediately on hearing the cry he went to the spot and saw the deceased
lying on the road with a pool of blood. It is the further case of PW1 that
while he was running to the scene of occurrence, he saw the accused
going towards Cheeral side with blood stained knife. According to PW1, he
reached at the spot, PW2 Sunil was also there on seeing the deceased
lying with bleeding, they took him initially to Priya Hospital, Sulthanbathery
in a jeep from there he was removed to Medical College Hospital, Calicut.
According to PW1 the injured was taken to the hospital and he said
” ?” The other
evidence, infact of, PW2 who is none other than the son of the deceased.
According to PW2, he was also standing in the shop of Manukuttan at the
relevant time. According to him, the deceased came there and with him
there was a packet of fruits which was entrusted with him so as to take to
the house. It is the specific case of PW2 that after entrusting with him the
packet of fruits, his father went towards the side of his house and at that
time PW1 was also at the shop. Thus according to PW2, immediately after
the departure of his father after entrusting the fruit packets with him he
heard a cry as ” ! ” Thus according to
PW2, he went to the spot running and on reaching there he saw the
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accused coming from the opposite side with blood stained knife and the
accused went towards Cheeral side. PW2 also says that he along with
PW1 took the injured to the hospital and thus when they were on the way
to the hospital his father told him as ”
?” So the prosecution relying upon the
evidence of PWs. 1 and 2, has tried to prove the initial occurrence.
6. In this juncture it is relevant to note that there are only two
witnesses cited and examined by the prosecution to establish the incident.
PW1 says that when he was standing in the shop of Manukuttan, he heard
the cry as ” ! ” but PW2 who was on the same position,
deposed that he heard it as ” ! “. Though the
two witnesses are stationed at the same point, regarding the cry, their
versions are contradictory. It is also relevant to note that according to
PW1, when he went to the spot running, he saw the accused going towards
Cheeral side with a blood stained knife. On the other hand PW2 says that
when he was running to the spot he saw the accused coming from the
place of occurrence. During the cross-examination of PW1, the defence
has brought the contradictions with respect to the time. We do not know
whether there was sufficient light to identify the accused. However PW1
says that the accused was going to the Cheeral side, if that be so, there is
no evidence as to which direction, Cheeral side lying from the place of
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occurrence. Probably if the evidence of PW1 was accepted as correct,
there is no positive evidence as to whether PW1 was capable to see the
face of the accused, who was going to the side of Cheeral. Probably in
order to get over such a situation, PW2, son of the deceased, has stated
that he had seen the accused going to Cheeral side, so that he can see his
face. Thus it can be seen that regarding the identity of the accused, there
is no concrete material evidence.
7. It is also relevant to note that though both PWs.1 and 2 were
together took the injured in a jeep to the hospital but PW1 heard as said by
the deceased ” ?”.
Now let us read the version given by PW2. According to him, the
deceased said ”
?” From the above deposition, it can be seen
that in the dying declaration, the deceased did not attribute any overt act
against Madhavan, the accused. But according to PW2 he had stated that
the deceased said that Madhavan had stabbed him and he had not done
any wrong to him. So this is an improved version from that of PW1 so as to
attract the penal liability against the accused. So also regarding the dying
declaration alleged to have made by the deceased, there is no consistency
and the inconsistent versions are sufficient to create doubt regarding the
correctness and genuineness of the so called dying declaration of the
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deceased.
8. Another circumstance which relied on by the prosecution to
connect the accused with the incident is the recovery of MO1 weapon. To
prove this, the prosecution relies upon the evidence of PW5 and attestor
to Ext.P4 Mahazar and also the evidence of PW8, the Sub Inspector of
Police, Sulthanbathery police station and P7, disclosure statement.
According to prosecution on the arrest and questioning, the accused made
a confession statement as per Ext.P7 and on the basis of which MO1
chopper was recovered as per Ext.P4 Mahazar. PW5 is the attestor to
such Mahazar. In this juncture, it is relevant to note that PWs. 1 and 2
through their evidence had categorically stated that they saw the accused
in possession of blood stained knife. PW5 also stated that he had recorded
the recovery of knife. But what is produced before the Court is a chopper,
not a knife. Even if the description is treated as mistake committed by
PWs. 1, 2, and 5, there is another point which create doubt regarding the
prosecution case. As per Ext.P12 chemical examination report, no human
blood was detected on MO1 weapon. The prosecution has no case that
the MO1 weapon was taken from the river, but it was recovered from the
river bank. If that be so, naturally at the time of chemical examination,
human blood stain has to be traced out. But the absence of human blood
on MO1 has to be examined in the background of deposition of PWs.1, 2
and 5. According to him, the weapon was a knife, not a chopper. So the
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circumstances relied on by the prosecution to connect the accused with the
alleged offence is not established with adequate materials and beyond
doubt.
9. In this juncture, it is relevant to note that when a case vesting
upon the circumstantial evidence, it is incumbent on the prosecution to
plead and prove the motive for the commission of the offence. But in the
present case no such motive was alleged. On the other hand, the defence
took a contention that because of political animosity, he was falsely
implicated in the crime. In this juncture it is relevant to note that the trial
court in its judgment especially in paragraph 11 towards the bottom, it is
observed that “the defence has not adduced any evidence to prove that
there is a person in the locality known as Madhavan Drohi.” In the the
evidence of prosecution witnesses, nothing was brought out to show that
there is a person called Madhavan Drohi in the locality. The above
observation is absolutely unwarranted and I am unable to understand
under what circumstance such an observation was made. It is for the
prosecution to specifically plead and prove the allegation as to who had
committed the offence. In the absence of any pleading or motive, It is the
responsibility of the prosecution to specifically plead and prove the overt
act of the accused. Here there is no motive at all attributable against the
accused and absolutely no evidence adduced connected with the motives.
No evidence is adduced by the prosecution to show that the availability of
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the accused adjacent or near to the place of occurrence. In the above
circumstances, the approach of the court below in fixing the liability on the
defence to show that some persons in the name of Madavan was residing
adjacent to the place of occurrence, seems to be incorrect and illegal.
10. In the light of the above facts and circumstances and the
evidence on record, I am of the view that the prosecution could not
establish the circumstances which relied on by them to prove guilt of the
accused and therefore the accused is entitled to get the benefit of doubt.
Consequently, the order of conviction is liable to be set aside.
11. In the result the conviction and sentence imposed on the
accused/appellant under Section 326 of IPC is set aside by allowing this
appeal. As accused/appellant is no more and especially the conviction and
sentence imposed against him is set aside, no further proceedings are
required in pursuance of the impugned judgment.
The appeal is disposed of accordingly.
V.K.MOHANAN, JUDGE
rhs