IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL A No. 761 of 2004()
1. RAJENDRAN @ KUNJUMON, S/O. WILSON,
... Petitioner
2. SURESH BABU @ SURESH,
Vs
1. STATE OF KERALA, REPRESENTED BY THE
... Respondent
For Petitioner :SRI.K.SATHEESH KUMAR
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice J.B.KOSHY
The Hon'ble MRS. Justice K.HEMA
Dated :09/01/2008
O R D E R
J.B.KOSHY & K.HEMA, JJ.
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Crl.A.No.761 OF 2004
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Dated 9th January, 2008
JUDGMENT
Ko
shy,J.
This appeal is filed against the conviction and sentence of the
appellants/accused under section 302 read with section 34 of the Indian
Penal Code. Appellants were charge-sheeted for the offence punishable
under Section 302 read with section 34 of the Indian Penal Code for
murdering one Biju. According to prosecution, on 13.5.2000 at 5 p.m.,
the 2nd accused pushed Biju down by holding around the neck of Biju and
at that time, the first accused inflicted serious cut injuries on both hands
and legs of Biju by cutting with a chopper so many times in quick
succession at a place on the forest `thadam’ 7 metres 25 cms. south-west
from the south-west corner of the house bearing No.646/6 situated in
Nandiyodu Panchayat in Kurupuzha Village and thereafter, both the
accused had taken Biju to the foot-path of the road in the forest property
situated 96 metres north from the above `Thadam’ and left him there.
The injuries inflicted by the accused in furtherance of their common
intention to cause death of Biju were sufficient in the ordinary course of
nature to cause death of Biju and Biju succumbed to the injuries at about
7 p.m. on the same day. The prosecution further alleged that the accused
had enmity towards the deceased Biju in connection with the sustaining
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of injury by the father of the accused from the hands of Biju using
cracker. It is further alleged that on 13.5.2000 at about 4.30 p.m.,
Biju had manhandled the sister of the accused, namely Sakunthala.
2. PW1, the elder brother of Biju, had received information
at about 5.30 p.m. with regard to the sustaining of injury by the
deceased. Immediately, he proceeded to the spot and he found Biju
lying on the side of the road at Chathappu in a pool of blood with
serious injuries. He felt nervous. The people assembled there had
taken Biju in a jeep to the Medical College Hospital. PW1 proceeded
to the hospital in another car. The Doctors examined Biju and
declared him dead at about 7 p.m. on that day. After removing the
dead body to the mortuary, PW1 proceeded to his house. He reached
the house at about 9 p.m. on that day. Thereafter, he had given
Ext.P1 F.I. Statement before PW12 at 11.30 p.m. on the same day
(13.5.2000) and it reached the Magistrate on 15.5.2000. Prosecution
examined 13 witnesses and marked 17 documents and identified 11
material objects. In 313 statement accused denied all incriminating
circumstances and pleaded their innocence. According to them, they
were falsely implicated in the crime. The first accused has further
submitted hat the deceased Biju was an accused in 25 cases and that
the deceased Biju had so many enemies. The father of the accused is
in a critical condition due to the throwing of cracker by the deceased
Biju. The first accused is looking after the affairs of his father. The
first accused has further stated that he is innocent. The 2nd accused
Crl.A.761/2004 3
has stated that he is also endorsing the submissions made by the Ist
accused and that he is innocent. Defence examined one witness.
3. Before analysing the evidence of occurrence witness,
we shall consider the medical evidence. PW5 conducted postmortem
examination and issued Ext.P4 certificate. It shows the following
ante-mortem injuries:
“1. Incised wound 10 x 5 x 3.5 cm. on the
front and inner aspect of right forearm,
the front upper outer end being 2 cm.
below the middle of elbow exposing the
cut muscles, vessels and soft tissues.
2. Incised wound 9.5cm. Oblique involving
the front and inner aspect of right
forearm 5cm. Above the wrist, exposing
the cut ends of muscles, vessels and
bones which showed stepping of edges,
almost seperating the part from above,
attached by skin and soft tissue of back of
forearm.
3. Incised wound 2.5 x 1 x 0.3cm. On the
front of right forearm 0.6cm. above and
parallel to injury No.2.
4. Incised wound 4.5 x 0.3 x 0.2 cm. on front
of right forearm 0.5cm. above and parallel
to injury No.3.
5. Incised wound 5 x 0.5 x 0.3cm. In front of
right forearm 1 cm. above and parallel to
injury No.4.
6. Incised wound 6.5 x 4.5 x 2 cm., involving
the front and inner aspect of left elbow,
exposing the particulars surface of left
ulna with the humerus.
7. Incised wound 4.5 x 0.2 cm. skin deep
Crl.A.761/2004 4
oblique on the front of left forearm 5.5
cm. below and parallel to injury No.6.
8. Incised wound 8 x 1.5 x 0.3cm. Oblique on
the back of left hand, the lower outer end
being 7.5cm. Above the tip of left middle
finger exposing the muscles and tendons
of back of the hand.
9. Incised wound 2 x 0.5 x 0.2 cm. oblique on
back of left ring finger 5.5 cm. above its
tip exposing the tendon.
10. Incised wound 1 x 0.5 x 0.2 cm. oblique on
back of left little finger 6 cm. above its
root, exposing the tendon.
11. Incised wound 4 x 0.8 x 0.4 cm oblique on
the top and outer aspect of left knee.
12. Incised wound 5 x 1.5 x 2.5 cm. on the
front and inner aspect of left knee.
13. Incised wound 3 x 2 x 2cm. On the back of
left foot, horizontal across the heel cutting
the back of calcaneum for a depth of
1.5cm. Downwards.
14. Incised wound 3 x 1 x 0.3cm. (bone deep)
on the front of right leg 28 cm. below the
knee.
15. Incised wound 3 x 1 x 1.5cm. On front of
right leg 0.8cm. Below and parallel to
injury No.14 cutting the leg bone
downwards.
16. Incised wound 1.5 x 0.5 x 0.3cm. on front
of right ankle.
17. Abrasion 2 x 0.2cm. Oblique on right side
of face, the upper outer end 4.5cm. In
front of tragus of ear.
18. Contusion 0.5 x 0.5 x 0.2 cm. on the inner
aspect of lower lip just to right of midline.
19. Abrasion 8 x 4 cm. oblique on back of
trunk, the upper outer end being 8 cm. to
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right of midline and 11 cm. below the
angle of collar bone.
20. Abrasion 4 x 1.5cm. on the back of lower
trunk, the lower inner end 7cm. to right of
midline just above the rim of hip bone.”
PW5 opined that the death of Biju was due to multiple injuries
sustained by him. According to him, injury Nos.1, 2, 6 and 12
together or injury Nos.1 and 2 are independently sufficient in the
ordinary course of nature to cause death. PW5 has further opined
that the bleeding from the other injuries in Ext.P4 might have also
contributed to the cause of death along with injury Nos.1, 2 6 and 12.
It is further in the evidence of PW5 that injury Nos.1 to 16 could be
caused with MO1 chopper. Injury Nos.1, 2 and 6 are injuries on the
hand of Biju. Injury No.12 is an incised wound on the front and inner
aspect of left knee. In cross-examination, PW5 has stated that injury
Nos.1, 2, 6 and 12 in combination resulted the death of Biju. PW5
also proved Ext.P5 certificate issued by the Joint Chemical Examiner
after analysing the viscera and blood of the deceased. Ext.P5 would
show that the blood of Biju contained 81 mg. of ethyl alcohol per
100 ml. of blood.
4. With regard to evidence of witnesses, PW1 is the elder
brother of the deceased. He had not seen the incident. He had also
no direct knowledge regarding the incident. PWs 2 and 3 were cited
to prove the occurrence, but, they turned hostile. Their evidence is of
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no help to the prosecution. They also deposed that they have not seen
the incident and police never questioned them. PW4 is the only
occurrence witness who supports the case of the prosecution.
According to him, he has seen part of the incident though he has not
seen actual infliction of injuries. He deposed that at about 4.30 p.m.
on 13.5.2000, when he reached the place called Chathuppu on his way
to the house of his brother-in-law, namely, Thulaseedharan, for
borrowing some money, he saw both the accused at Chathuppu. The
Ist accused was having MO1 chopper with him at that time. PW4
proceeded to the house of his brother-in-law, and when he reached
there, nobody was there in that house. Thereafter, he came back to
his house. On his way back to his house, he again reached
Chathuppu, when he saw both the accused carrying Biju by holding
the hands and legs of Biju and thereafter, the accused had dropped
Biju on the side of the road. The accused then ran away from there.
PW4 went near to Biju. Then he noticed that Biju was lying in a pool
of blood with serious injuries on his right hand. People assembled
there had taken Biju to the hospital in a jeep. The shirt worn by Biju
was removed as the same was completely stained with blood. Later
on, he came to know that Biju had died. He identified MO1 chopper
carried by A1. He identified MO2 lunki worn by the 1st accused at the
relevant time. PW4 also identified MO3 pants and MO4 shirt worn by
the 2nd accused at that time. PW4 was having acquaintance with the
accused even from his child-hood. The accused had enmity towards
Biju in connection with an incident wherein Biju had thrown crackers
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and caused injury on the father of the accused. PW4 is also having
hearsay information that the sister of the accused, namely,
Sakunthala, was beaten by Biju. Ext.P15 report from the Forensic
Science Laboratory shows that MOs 1 to 4 contained human blood
though group was not detected.
5. PW13 Circle Inspector deposed that MO1 weapon was
recovered at the disclosure of the 1st accused (Ext.P9(a) in the
disclosure statement) and the recovery mahazar was attested by
PW9. PWs 10 and 13 deposed that MOs 2 to 4 and 6 were taken from
the house of the accused by PW13. PW13 also proved Ext.P16 F.I.R in
Crime No.5/2000 of Palode Police Station having F.I. Statement
appended to it. The said case relates to the sustaining of injury by the
father of the accused, namely, Wilson in connection with throwing of
cracker by the deceased Biju. PW13 has further proved Ext.P17 F.I.R.
in Crime No.70/2000 of Palode Police Station registered against athe
deceased in connection with the manhandling of the sister of the
accused, namely, Sakunthala by the deceased Biju.
6. DW1 has been examined by the defence to prove that
PW4 could not see the incident leading to the death of Biju.
According to him, at about 4 p.m., on the day on which Biju sustained
injury, he was present in his property along with PW4. PW4 was
engaged in spade work in the property of DW1 from 8 a.m. till 5 p.m.
on that day. Thereafter, DW1 came to his house along with PW4.
Crl.A.761/2004 8
Then both of them went to the river to take bath. The evidence of
DW1 would show that DW1 and PW4 have came back after taking
bath at about 5.45 p.m. His evidence show that PW4 was with him on
that day from 2 p.m. to 5 p.m. In cross-examination he stated that he
was teaching in a parallel college, that he failed in B.A. and he was an
accused in an abkari case.
7. Trial court mainly relied on recovery evidence as well as
evidence of PW4. PW4 is a chance witness. According to him, he
wanted to get money from his brother-in-law and hence he went
through the place of incident, but, he was not going through the
normal route. He did not go to the shop of his brother-in-law which
was in the junction itself to get the money or to meet him. This
apprehends a doubt regarding the presence of PW4 at the place of
incident. In cross examination PW4 deposed that he was a distant
relative of the deceased. He was a coolie worker and his work is from
8 a.m. to 4.30 p.m. On the date of incident he did not go for work. He
also stated that from his house Thannimmoodu junction is very close.
He further stated that he was going to meet his brother-in-law
Thulasidharan to get money for taking his wife to the hospital. But,
he did not enquire about Thulasidharan at his tea shop in the junction
and he did not take his wife to the hospital on the same day. He did
not report to the police regarding the incident. He did not give water
to the deceased. Even though he was related, he did not accompany
Biju to the hospital and he did not ask anything to Biju or accused. It
Crl.A.761/2004 9
is also deposed that Biju may be an accused in 25 cases. PW4 was
convicted for an offence under section 326 IPC and sentenced to
under go six months imprisonment. The suggestion that he was
employed by DW1 on the date of incident up to 5 p.m. was denied by
him. But, defence evidence also cannot be ignored. Defence
witnesses are to be treated on par with prosecution witnesses as held
by the Apex Court in Munshi Prasad v. State of Bihar (AIR 2001 SC
3031) (JT 2002 (1) SC 275). PW4 is an agriculture labourer and he
was employed by DW1 on the relevant date up to 5 p.m. If that is
believed, PW4 is not a reliable witness as he cannot see the incident
at 4.30p.m. Incident occurred at 4.30 p.m. alleged to be in a forest
area. PW4 did not see the infliction of injuries. According to him, he
saw accused coming with the deceased to the public road at
Chathuppu. After inflicting several injuries on him at the forest area
there is no need for the accused to carry the deceased to the public
road. It is very difficult to believe PW4, as a whole. Explanation of
PW4 for his presence at the scene of occurrence is not believable.
Further, according to PW4, he saw the accused with weapons at 4.30
p.m. on 13.5.2000 in the junction. One of the motive alleged is that
deceased assaulted the sister of the accused, that too, at 4.30 p.m. on
the same day. F.I.R. regarding that incident was marked as Ext.P17
proved by PW13 Investigating Officer. That F.I.R was received at 9
p.m. only after this incident. If that be so, there is no chance of PW4
seeing the accused at 4.30p.m. at forest. If allegations in Ext.P17 are
correct, there is no chance that both incidents took place at the same
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time as part of same crime. But, most probably, Ext.P17 F.I.R. also
was manipulated for popping up a case against the accused after
deceased was found injured, on the basis of suspicion as nobody has
seen the incident. But, Ext.P1 F.I.R was registered at 11.30 p.m..
Even though the incident occurred at 4.30 p.m. and the deceased was
taken to the Medical College Hospital, the matter was not reported to
the police till 11.30 p.m. It reached the Magistrate only on
15.5.2000. All that raise suspicion. PW13 Investigating Officer stated
that immediately after inquest they went to the place of incident and
the house of the accused was searched, but, no incriminating
materials were found out. On the next day another search was
conducted and CW6 produced a pair of chappels and later the
accused were arrested on 19.5.2000. A search was conducted again
on 20.5.2000 and blood stained shirt and pants were found on the
clothe-line of the house. The recovery of MOs 3 to 5 during search is
not believable. It is true that MO1 weapon was recovered as per the
disclosure statement of the accused and it contained human blood,
but, no attempt was made to ascertain the blood group. Further,
since prosecution tried to manipulate other three recoveries, it is
difficult to believe the recoveries. In any event, recovery can be
accepted only as corroborative evidence and it cannot be the sole
basis for conviction especially when prosecution deliberately created
some evidence. PWs 2 and 3 who are alleged to be eye witnesses
turned hostile and did not support any of the version of the
prosecution and PW1 has no case that he has seen the incident. Even
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according to PW4, he did not see the actual infliction of injuries. His
evidence is suspicious. We are of the opinion that the prosecution
failed to prove the case beyond reasonable doubt. It is true that
Ext.P16 F.I.R. shows that there was a previous incident where the
deceased assaulted father of the accused on 7.1.2000. It can be a
motive, but, it can also be a reason for falsely implicating the accused.
Mere existence of motive is not enough to convict a person as it is the
duty of the prosecution to prove the case beyond reasonable doubt.
Prosecution was not able to prove the genesis of the case and was not
able to produce correct facts. In any event, appellants are entitled to
the benefit of doubt. Considering the totality of circumstances, we are
of the opinion that the conviction and sentence passed on the
appellants are not sustainable in law. Hence, we set aside the
conviction and sentence passed against the appellants and they are
acquitted. They should be released forthwith if they are not required
in any other case.
The appeal is allowed.
J.B.KOSHY
JUDGE
K.HEMA
JUDGE
tks
