IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL.A.No. 869 of 2005()
1. SANTHOSH, S/O. BABY,
... Petitioner
Vs
1. STATE OF KERALA,
... Respondent
For Petitioner :SRI.P.GOPAKUMARAN NAIR
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice A.K.BASHEER
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :23/01/2009
O R D E R
A.K. BASHEER & THOMAS P.JOSEPH, JJ.
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CRIMINAL APPEAL No.869 of 2005
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Dated this the 23rd day of January, 2009
J U D G M E N T
———————-
Basheer, J.
Appellant was tried for the offences punishable under Sections
302 and 427 of the Indian Penal Code. He was found guilty under
both counts. He was sentenced to undergo imprisonment for life
under Section 302 IPC and to pay fine of Rs.1,00,000/- and in default
to suffer rigorous imprisonment for four years. He was also sentenced
to pay fine of Rs.5,000/- under Section 427 IPC with a default
sentence of rigorous imprisonment for six months. The appellant
impugns the said order of conviction and sentence passed against him
in this appeal.
2. Prosecution case in brief was that one Soman (hereinafter
referred to as “the deceased”) was assaulted by the appellant/accused
at about 7.30. p.m. on September 7, 2003 while the deceased was
driving his autorikshaw. The alleged incident took place at
Nallanikunnu near a culvert. The version given by the deceased
before the police was that when he reached near the place of
occurrence, the appellant waved his hand to stop the autorikshaw.
Immediately on stopping the autorikshaw the appellant came
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towards him and asked him in a threatening tone that why he did not
go for a trip on an earlier occasion when demanded by the appellant.
The front glass of the autorikshaw was smashed by the appellant with
a sword-stick. When the deceased got out of the autorikshaw, the
appellant inflicted a cut injury on the left side of his head with the
sword-stick. Deceased fell down with a loud cry. Blood was oozing
from his head. While the deceased lying on the ground the appellant
kicked him on his chest and back side. One Vijayan and some others
rushed to the scene on hearing the cry. Appellant ran away from the
scene towards west with the sword-stick. Vijayan and others who
rushed to the scene took the deceased in an autorikshaw to the
hospital. According to the deceased he lost a purse containing 400
rupees. Deceased described the sword-stick as having one arm’s
length with sharp edge on one side. He further stated that he would
be able to identify the weapon if shown to him. According to the
deceased the appellant was enmical towards him since he had refused
to carry arrack belonging to the appellant in his autorikshaw on an
earlier occasion. The above statement was recorded by the police at
the Medical College Hospital, Pushpagiri at 4.00 p.m. on September
12, 2003. We will refer to the first information statement and contents
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thereof which was marked as Exhibit P10, a little later.
3. Prosecution examined P.Ws.1 to 14. Exhibits P1 to P21
and M.O.1 were also marked on the side of the prosecution. There
was no oral or documentary evidence on the side of the defence.
4. Learned Sessions Judge after evaluating the oral and
documentary evidence adduced by the prosecution, held that Exhibit
P10 statement given by the deceased could be treated as a dying
declaration. The learned Judge also placed heavy reliance on the
evidence of P.W.4 who deposed that the deceased had told her about
the assailant while he was being taken in an autorikshaw for
treatment from Christian Medical Mission Hospital, Pandalam to
Medical College Hospital, Pushpagiri. Resultantly, the learned
Sessions Judge found the appellant guilty under Section 302 IPC. As
regards the offence under Section 427 IPC, the court below found that
evidence adduced by the prosecution with the help of Exhibit P6 body
mahazar of the autorikshaw and evidence of P.W.6 was sufficient
enough to prove that appellant had caused damage to the vehicle.
5. It is contended by learned counsel for the appellant that
the court below has relied on conjectures and surmises, rather than
on reliable and trustworthy evidence, to hold that appellant guilty of
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the offence alleged against him. He points out that two eye witnesses
cited by the prosecution had failed to support his case. Though the
alleged incident had taken place on September 7, 2003, Exhibit P11,
FIR was registered only on September 12, 2003. The delay was not
explained at all. It is further contended by the learned counsel that
identity of the assailant was not at all established in the case. What
the deceased had reportedly told the police was that one Santhosh
from Nallanikunnu had inflicted the injury on his head.
6. As mentioned earlier P.Ws.1 and 2 did not support the
prosecution and therefore they were declared hostile. Though these
two witnesses were cross-examined at length by the learned Public
Prosecutor, no material in support of the prosecution was brought out.
P.W.3 Village Officer prepared Exhibit P4 site plan.
7. P.W.4 wife of the deceased, was the other prime witness
on the side of the prosecution. In her deposition she stated that her
husband had been driving his own autorikshaw. He was an Ex-
serviceman. On September 7, 2003 at about 7.45 p.m. her husband
came home as usual driving the autorikshaw. But he was drenched in
blood. It was noticed by P.W4 that blood was oozing from her
husband’s head. When P.W.4 asked him about the cause of bleeding,
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deceased asked for some water. By the time she brought water he
swooned. She cried aloud. Some people from the neighbourhood
came and took the injured to the hospital at Pandalam. After putting
sutures on the wound, the Doctor informed her that nothing can be
done there and advised to take him to the Medical College Hospital.
There was some delay in getting the vehicle. But soon, the
deceased was taken in an autorikshaw to the Medical College Hospital,
Pushpagiri. On the way to the hospital, the deceased recovered
consciousness. P.W.4 asked what had happened. According to P.W.4,
deceased told her that one Santhosh from Nallanikunnu had hit him
while he was going in his autorikshaw because of previous enmity
since he had refused to transport arrack as required by the said
Santhosh in his vehicle on an earlier occasion. P.W.4 further stated
that her husband was taken to the Medical College Hospital,
Pushpagiri and from there to Medical College Hospital at Kottayam
where he died on September 19, 2003. She further stated that her
husband was under treatment at the Medical College Hospital,
Pushpagiri till September 17, 2003. Police had recorded statement
of her husband while he was undergoing treatment at the Medical
College Hospital, Pushpagiri. According to her when the police
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recorded his statement he was conscious. In cross-examination P.W.4
stated that she had no prior acquaintance with Santhosh referred to
by her husband. She further stated that the information she had had
about the incident was only as gathered from her husband.
8. The other material witnesses on the prosecution side was
the two Doctors who treated the deceased, one of whom (P.W.12)
issued Exhibit P12 wound certificate. He deposed before the court that
he had examined the deceased on September 7, 2003 at about 8.15
p.m. At that time people who brought the deceased to the hospital
had informed him that the injured had suffered the injuries in a road
traffic accident. Since the condition of the patient was serious, he had
referred the patient to the Medical College Hospital.
9. The other Doctor, who was the Associate Professor,
Medical College Hospital, Pushpagiri, was examined as P.W.7. He
deposed before the court that the deceased was under his treatment
from 8th to 19th of September, 2003. According to this witness, the
deceased was admitted with an alleged history of assault. Deceased
had sustained head injury “with fracture skull with subaracnnoid
haemorrhage, pneumocephalus post tranatic CSF rhinorrhoea and post
trametic menengitis”. P.W.7 further stated that patient was
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discharged from the hospital at the request of the relatives and at that
time the condition of the patient was critical. He further admitted that
in Exhibit P7 discharge summary, the weapon used for the alleged
assault had not been indicated.
10. The other material witnesses on the side of prosecution are
P.Ws.8, 11, 13 and 14. P.W.8 conducted the autopsy on the body of
the deceased at the Medical College Hospital, Kottayam where death
had occurred. He issued Exhibit P8 Postmortem certificate. In the said
certificate P.W.8 opined that death was due to head injury.
11. P.W.11, Sub Inspector of Police, in his evidence, stated that
Exhibit P10 first information statement was recorded by head
constable Vijayan who is no more. He also stated that Exhibit P11 FIR
was also registered by the said Vijayan. He further stated that on
September 15, 2003 he had questioned the deceased while he was
undergoing treatment at Medical College Hospital, Pushpagiri.
According to this witness the deceased had told him that the appellant
hit him with an iron pipe.
12. P.W.13, who was working as a constable in the police
station concerned, had stated that he had signed as a witness in
Exhibit P13 mahazar under which M.O.1 iron pipe was seized by the
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police on September 23, 2003. According to this witness M.O.1 was
recovered from the property of P.W.2.
13. P.W.14, DYSP, gave evidence regarding the investigation
conducted by his subordinate (C.W.15) since he was not available in
the country at that time. P.W.14 sated that C.W.15 had arrested the
appellant on September 23, 2003 at about 2.30 p.m. On the basis of
the information furnished by the appellant, C.W.15 had effected
recovery of M.O.1 as per Exhibit P13. M.O.1 was produced by C.W.15
before the Court as per Exhibit P15.
14. We have referred to the material pieces of evidence
adduced by the prosecution in this case with a view to examine as to
whether the court below was justified in holding the appellant guilty of
the charges levelled against him. It may at once be noticed that the
alleged incident had taken place at 7.30 p.m. on September 7, 2003.
According to the version given by the deceased and P.W.4, the
deceased was taken to the hospital at Pandalam by 8.15 p.m., in an
autorikshaw. Deceased was referred to the Medical College Hospital at
Pushpagiri by the Doctor at Pandalam since his injury was serious.
According to P.W.4 while her husband was being taken to Pushpagiri
hospital he had told her in the autorikshaw that one Nallanikunnu
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Santhosh had inflicted the injury on his head. Surprisingly and
curiously, P.W.4 had not bothered to report the matter to the police on
her own at any point of time.
15. The deceased is seen to have given Exhibit P10 first
information statement before the police on September 12, 2003 at
about 4.00 p.m. Exhibit P10 reveals that the police had gone to the
hospital pursuant to a requisition from the hospital. There is no
explanation of any kind about the delay. More importantly, in Exhibit
P10 the deceased had stated that one Nallanikunnu Santhosh had hit
him on the left side of his head with a sword-stick. But, what is seen
to have been produced in the case as the weapon involved in the
crime is an iron pipe. This was marked in the case as M.O.1.
According to the prosecution, M.O.1 was recovered as per Exhibit
P13 based on the information furnished by the accused. The
prosecution has not been able to explain this glaring anomaly
about the actual weapon used by the accused in the case.
16. In this context, we may also refer to the evidence of
PW.11, the Sub Inspector, attached to the Pathanamthitta Police
Station. In his evidence, he deposed that the deceased had told
him, while he was questioned on September 15, 2003, that the
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accused had hit him with an iron pipe. As we have mentioned
earlier, no attempt was made by the prosecution at any stage to
explain as to how the weapon had transformed from sword-stick to
iron pipe. In our view, this material discrepancy in the prosecution
case, apart from the unexplained delay in registering the crime,
will cut at the root of the prosecution.
17. In this context, it may also be noticed that the court
below had placed heavy reliance on the so called dying declaration
allegedly made by the deceased to P.W.4 and later in Ext.P10 first
information statement. It is true that P.W.4 had deposed before the
court that while her husband was being taken to Pushpagiri
Medical College Hospital at Thiruvalla in an autorikshaw, he had told
her that he was attacked by one Nallanikunnu Santhosh. It is again
true that the deceased had not stated anything about the weapon
used. But still, the specific case of P.W.4 was that her husband
told her who the assailant was. She was aware that the condition
of her husband was critical. But still she did not choose to report the
matter to the police even though admittedly she had been told
about the assault on her husband as early as on September 7, 2003.
18. Coming to the statement given by the deceased to the
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police on September 12, 2003 while he was undergoing treatment at
the Medical College Hospital, Pushpagiri, it can be seen from
Exhibit P10 that the deceased had informed the police that he
was attacked by Nallanikunnu Santhosh with a sword- stick. It
appeared that the deceased had no doubt about the alleged
weapon used by the assailant. He had described the said weapon
saying that one edge of it was very sharp while the other side
was blunt. He had also referred to the length of the weapon. But
for some strange reasons, the weapon got transformed into an iron
pipe.
19. Strangely, the prosecution had never bothered to get
the assailant identified at any point of time. As has been noticed
already, the deceased had only stated that one Nallanikunnu
Santhosh had attacked him. But there is nothing on record to show
that it was the appellant who was the assailant. No attempt was
made to establish that Nallanikunnu Santhosh is the appellant.
This could have been proved by the prosecution without much
difficulty.
20. We have carefully perused the entire evidence
available on record. In our view, in the nature of the evidence
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adduced by the prosecution, it may not be safe or proper to hold the
appellant guilty. We are satisfied that the appellant is entitled to
get the benefit of doubt.
21. Therefore, the order of conviction and sentence passed
against the appellant is set aside. He is found not guilty and
acquitted.
22. The appellant shall be released from custody forthwith,
if he is not required to be detained in connection with any other
case.
Appeal is allowed.
A.K. BASHEER, JUDGE.
THOMAS P.JOSEPH, JUDGE.
vsv