{"id":121333,"date":"2008-12-16T00:00:00","date_gmt":"2008-12-15T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/madhavan-vs-state-on-16-december-2008"},"modified":"2017-02-03T12:45:50","modified_gmt":"2017-02-03T07:15:50","slug":"madhavan-vs-state-on-16-december-2008","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/madhavan-vs-state-on-16-december-2008","title":{"rendered":"Madhavan vs State on 16 December, 2008"},"content":{"rendered":"
Kerala High Court<\/div>\n
Madhavan vs State on 16 December, 2008<\/div>\n
       \n\n  \n\n  \n\n \n \n  IN THE HIGH COURT OF KERALA AT ERNAKULAM\n\nCRL.A.No. 1172 of 2001()\n\n\n\n1. MADHAVAN\n                      ...  Petitioner\n\n                        Vs\n\n1. STATE\n                       ...       Respondent\n\n                For Petitioner  :SRI.S.M.PRASANTH\n\n                For Respondent  :PUBLIC PROSECUTOR\n\nThe Hon'ble MR. Justice V.K.MOHANAN\n\n Dated :16\/12\/2008\n\n O R D E R\n                             V.K.MOHANAN, J\n                   - - - - - - - - - - - - - - - - - - - - - - - -\n                     Crl. Appeal No. 1172 of 2001\n                   - - - - - - - - - - - - - - - - - - - - - - - -\n              Dated this the 16th day of December, 2008.\n\n                              J U D G M E N T\n<\/pre>\n
      This is an appeal preferred by the sole accused in sessions case No.<\/p>\n
160 of 1998 of the Court of the Sessions Judge, Wayanad, Kalpeta<\/p>\n
challenging his conviction and sentence under Section 326 of Indian Penal<\/p>\n
Code.\n<\/p>\n
      2.   When the matter was taken for consideration,              the learned<\/p>\n
counsel for the appellant\/accused reported that the appellant\/accused is no<\/p>\n
more. In this case, it is relevant to note that apart from awarding the<\/p>\n
sentence of imprisonment, the court has also sentenced the accused to<\/p>\n
pay a fine of Rs.5,000\/-. Therefore, in view of Section 394(2) of Code of<\/p>\n
Criminal Procedure, the appeal will not be abated due to the death of the<\/p>\n
appellant even though the appeal is preferred by the accused. Therefore it<\/p>\n
is incumbent for this court to dispose of the appeal on merit. Since the<\/p>\n
accused\/appellant died during the pendency of the appeal, legally and<\/p>\n
technically, the counsel who preferred the appeal cannot prosecute this<\/p>\n
appeal unless the legal heirs are impleaded as per the proviso to Section<\/p>\n
394(2) of Code of Criminal Procedure and they authorise the counsel to<\/p>\n
prosecute the same. However, on the request of this court, the learned<\/p>\n
Crl. Appeal No. 1172 of 2001         -2-<\/span><\/p>\n
counsel assisted this court to dispose of the matter.<\/p>\n
       3. The prosecution case is that at about 6.30 p.m. on 25.6.1994<\/p>\n
when PWs.1 and 2 were standing in front of the shop of Manukuttan, they<\/p>\n
heard a cry from the side of the house of one Sreedharan pursuant to<\/p>\n
which they went there running and saw the deceased Subramanniyan lying<\/p>\n
in a pool of blood on the public road at Cheeral in front of the house<\/p>\n
bearing door No. X\/671 belonging to one Sreedharan. While PWs.1 and 2<\/p>\n
reaching the scene of occurrence they saw the accused coming from the<\/p>\n
opposite side with a blood stained chopper in his hand. Subsequently, the<\/p>\n
injured was taken to the Priya Hospital, Sulthanbathery initially and from<\/p>\n
there he was taken to the Medical College Hospital, Calicut. The doctor<\/p>\n
examined the injured and declared as dead. On the next day morning,<\/p>\n
PW1 went to the Sulthanbathery Police Station and narrated the incident.<\/p>\n
Thus Ext.P1 F.I. statement was prepared, on the basis of which, Ext.P1 (a)<\/p>\n
FIR was registered by PW8, the Sub Inspector of Police attached to<\/p>\n
Sulthanbathery police station for the offence punishable under Section 302<\/p>\n
of the I.P.C. On the basis of the said allegation as mentioned above,<\/p>\n
Crime No. 185 of 1994 was registered and after investigation, a final report<\/p>\n
was filed against the accused for offence under Section 302 I.P.C. On the<\/p>\n
appearance of the accused, after hearing both the prosecution and<\/p>\n
defence, the probable charge under Section 302 IPC was framed, which<\/p>\n
was read over and explained to the accused who pleaded not guilty.<\/p>\n
Crl. Appeal No. 1172 of 2001          -3-<\/span><\/p>\n
Thereafter PWs. 1 to 10 were examined and Exts.P1 to P12 were marked.<\/p>\n
During the trial, MOs.1 to 8 were identified and marked as material objects.<\/p>\n
When incriminating circumstance, which brought out during the prosecution<\/p>\n
evidence, were put to the accused, he denied the same. It is his further<\/p>\n
case that he was undergoing treatment due to ailment and he is having<\/p>\n
rheumatic complaint and because of that he was not in a position to lift his<\/p>\n
hands and therefore he was in bed rest. It is also his case that he was<\/p>\n
implicated the case because of political animosity as he belonged to BJP<\/p>\n
and the deceased and the prosecution witnesses are belonged to<\/p>\n
Communist Party of India (Marxist). After consideration of the facts and<\/p>\n
circumstances and the evidence on record, the trial court found that the<\/p>\n
prosecution has failed to establish the case of murder against the accused,<\/p>\n
as prosecution miserably failed to establish the intention from the part of<\/p>\n
the accused to commit murder of the deceased Subramanniyan and<\/p>\n
therefore the trial court found that the only offence attracted against the<\/p>\n
accused is under Section 326 of IPC. Thus, after hearing the accused, he<\/p>\n
is sentenced to undergo rigorous imprisonment for five years and to pay a<\/p>\n
fine of Rs.5,000\/- and in default sentence is fixed one year rigorous<\/p>\n
imprisonment.      It is the above conviction and sentence challenged in this<\/p>\n
appeal.\n<\/p>\n
       4.   I have heard the learned public prosecutor and also got the<\/p>\n
assistance of the advocate Mr. S. M. Prasanth, who actually filed the<\/p>\n
Crl. Appeal No. 1172 of 2001          -4-<\/span><\/p>\n
appeal.     As observed by the court below, it is beyond doubt that the<\/p>\n
deceased Subramanniyan died as a result of the injuries sustained by him.<\/p>\n
Ext.P8 Postmortem certificate issued by PW9 shows the details of the<\/p>\n
injuries sustained by the deceased. PW9 opioned that the deceased died<\/p>\n
of bleeding that resulting from incised wounds of legs and left palm –<\/p>\n
Injuries Nos. 2, 6 and 8. There is no effective challenge against the said<\/p>\n
finding and also the evidence which based on such findings.<\/p>\n
       5. Going by the evidence of prosecution and the prosecution story<\/p>\n
as such, it can be seen that there is no direct evidence to prove the<\/p>\n
occurrence that took place which resulted in the injuries on the deceased.<\/p>\n
While prosecution depends upon the circumstantial evidence to prove its<\/p>\n
case towards establishing the above prosecution allegation, the<\/p>\n
prosecution mainly depends upon the oral testimonies of PWs.1 and 2 and<\/p>\n
through such evidence the prosecution tried to establish that the deceased<\/p>\n
went to the spot from where PWs.1 and 2 heard his cry and at the spot,<\/p>\n
witnesses saw the accused going with a blood stained chopper. Apart from<\/p>\n
the above circumstances, another circumstances relied on by the<\/p>\n
prosecution is the recovery of the MO1 weapon, which alleged to have<\/p>\n
been used for inflicting the injury upon the deceased. Now let us examine<\/p>\n
the circumstances and the evidence in support of such circumstances let in<\/p>\n
by    the   prosecution.     According  to  PW1,   he   knows    deceased<\/p>\n
Subramanniyan. On the fatal day in the afternoon at about 5.P.M. while he<\/p>\n
Crl. Appeal No. 1172 of 2001         -5-<\/span><\/p>\n
was standing in the shop belonging to Manukuttan (CW3) for purchasing<\/p>\n
grocery items, he heard a cry from the side of the house of one Soman.<\/p>\n
Immediately on hearing the cry he went to the spot and saw the deceased<\/p>\n
lying on the road with a pool of blood. It is the further case of PW1 that<\/p>\n
while he was running to the scene of occurrence, he saw the accused<\/p>\n
going towards Cheeral side with blood stained knife. According to PW1, he<\/p>\n
reached at the spot, PW2 Sunil was also there on seeing the deceased<\/p>\n
lying with bleeding, they took him initially to Priya Hospital, Sulthanbathery<\/p>\n
in a jeep from there he was removed to Medical College Hospital, Calicut.<\/p>\n
According to PW1 the injured was taken to the hospital and he said<\/p>\n
”                                    ?”                             The other<\/p>\n
evidence, infact of, PW2 who is none other than the son of the deceased.<\/p>\n
According to PW2, he was also standing in the shop of Manukuttan at the<\/p>\n
relevant time. According to him, the deceased came there and with him<\/p>\n
there was a packet of fruits which was entrusted with him so as to take to<\/p>\n
the house. It is the specific case of PW2 that after entrusting with him the<\/p>\n
packet of fruits, his father went towards the side of his house and at that<\/p>\n
time PW1 was also at the shop. Thus according to PW2, immediately after<\/p>\n
the departure of his father after entrusting the fruit packets with him he<\/p>\n
heard a cry as ” !                               ” Thus according to<\/p>\n
PW2, he went to the spot running and on reaching there he saw the<\/p>\n
Crl. Appeal No. 1172 of 2001          -6-<\/span><\/p>\n
accused coming from the opposite side with blood stained knife and the<\/p>\n
accused went towards Cheeral side.        PW2 also says that he along with<\/p>\n
PW1 took the injured to the hospital and thus when they were on the way<\/p>\n
to the hospital his father told him as ”\n<\/p>\n
                                  ?” So the prosecution relying upon the<\/p>\n
evidence of PWs. 1 and 2, has tried to prove the initial occurrence.<\/p>\n
       6.   In this juncture it is relevant to note that there are only two<\/p>\n
witnesses cited and examined by the prosecution to establish the incident.<\/p>\n
PW1 says that when he was standing in the shop of Manukuttan, he heard<\/p>\n
the cry as      ” !  ” but PW2 who was on the same position,<\/p>\n
deposed that he heard it as ” !                   “. Though the<\/p>\n
two witnesses are stationed at the same point, regarding the cry, their<\/p>\n
versions are contradictory.     It is also relevant to note that according to<\/p>\n
PW1, when he went to the spot running, he saw the accused going towards<\/p>\n
Cheeral side with a blood stained knife. On the other hand PW2 says that<\/p>\n
when he was running to the spot he saw the accused coming from the<\/p>\n
place of occurrence. During the cross-examination of PW1, the defence<\/p>\n
has brought the contradictions with respect to the time. We do not know<\/p>\n
whether there was sufficient light to identify the accused. However PW1<\/p>\n
says that the accused was going to the Cheeral side, if that be so, there is<\/p>\n
no evidence as to which direction, Cheeral side lying from the place of<\/p>\n
Crl. Appeal No. 1172 of 2001           -7-<\/span><\/p>\n
occurrence. Probably if the evidence of PW1 was accepted as correct,<\/p>\n
there is no positive evidence as to whether PW1 was capable to see the<\/p>\n
face of the accused, who was going to the side of Cheeral. Probably in<\/p>\n
order to get over such a situation, PW2, son of the deceased, has stated<\/p>\n
that he had seen the accused going to Cheeral side, so that he can see his<\/p>\n
face. Thus it can be seen that regarding the identity of the accused, there<\/p>\n
is no concrete material evidence.\n<\/p>\n
       7. It is also relevant to note that though both PWs.1 and 2 were<\/p>\n
together took the injured in a jeep to the hospital but PW1 heard as said by<\/p>\n
the deceased ”                           ?”.\n<\/p>\n
Now let us read the version given by PW2.             According to him, the<\/p>\n
deceased said          ”\n<\/p>\n
                          ?” From the above deposition, it can be seen<\/p>\n
that in the dying declaration, the deceased did not attribute any overt act<\/p>\n
against Madhavan, the accused. But according to PW2 he had stated that<\/p>\n
the deceased said that Madhavan had stabbed him and he had not done<\/p>\n
any wrong to him. So this is an improved version from that of PW1 so as to<\/p>\n
attract the penal liability against the accused. So also regarding the dying<\/p>\n
declaration alleged to have made by the deceased, there is no consistency<\/p>\n
and the inconsistent versions are sufficient to create doubt regarding the<\/p>\n
correctness and genuineness of the so called dying declaration of the<\/p>\n
Crl. Appeal No. 1172 of 2001        -8-<\/span><\/p>\n
deceased.\n<\/p>\n
       8.   Another circumstance which relied on by the prosecution to<\/p>\n
connect the accused with the incident is the recovery of MO1 weapon. To<\/p>\n
prove this, the prosecution relies upon the evidence of PW5 and attestor<\/p>\n
to Ext.P4 Mahazar and also the evidence of PW8, the Sub Inspector of<\/p>\n
Police, Sulthanbathery police station and P7, disclosure statement.<\/p>\n
According to prosecution on the arrest and questioning, the accused made<\/p>\n
a confession statement as per Ext.P7 and on the basis of which MO1<\/p>\n
chopper was recovered as per Ext.P4 Mahazar. PW5 is the attestor to<\/p>\n
such Mahazar. In this juncture, it is relevant to note that PWs. 1 and 2<\/p>\n
through their evidence had categorically stated that they saw the accused<\/p>\n
in possession of blood stained knife. PW5 also stated that he had recorded<\/p>\n
the recovery of knife. But what is produced before the Court is a chopper,<\/p>\n
not a knife. Even if the description is treated as mistake committed by<\/p>\n
PWs. 1, 2, and 5, there is another point which create doubt regarding the<\/p>\n
prosecution case. As per Ext.P12 chemical examination report, no human<\/p>\n
blood was detected on MO1 weapon. The prosecution has no case that<\/p>\n
the MO1 weapon was taken from the river, but it was recovered from the<\/p>\n
river bank. If that be so, naturally at the time of chemical examination,<\/p>\n
human blood stain has to be traced out. But the absence of human blood<\/p>\n
on MO1 has to be examined in the background of deposition of PWs.1, 2<\/p>\n
and 5. According to him, the weapon was a knife, not a chopper. So the<\/p>\n
Crl. Appeal No. 1172 of 2001          -9-<\/span><\/p>\n
circumstances relied on by the prosecution to connect the accused with the<\/p>\n
alleged offence is not established with adequate materials and beyond<\/p>\n
doubt.\n<\/p>\n
       9. In this juncture, it is relevant to note that when a case vesting<\/p>\n
upon the circumstantial evidence, it is incumbent on the prosecution to<\/p>\n
plead and prove the motive for the commission of the offence. But in the<\/p>\n
present case no such motive was alleged. On the other hand, the defence<\/p>\n
took a contention that because of political animosity, he was falsely<\/p>\n
implicated in the crime. In this juncture it is relevant to note that the trial<\/p>\n
court in its judgment especially in paragraph 11 towards the bottom, it is<\/p>\n
observed that “the defence has not adduced any evidence to prove that<\/p>\n
there is a person in the locality known as Madhavan Drohi.” In the the<\/p>\n
evidence of prosecution witnesses, nothing was brought out to show that<\/p>\n
there is a person called Madhavan Drohi in the locality.          The above<\/p>\n
observation is absolutely unwarranted and I am unable to understand<\/p>\n
under what circumstance such an observation was made. It is for the<\/p>\n
prosecution to specifically plead and prove the allegation as to who had<\/p>\n
committed the offence. In the absence of any pleading or motive, It is the<\/p>\n
responsibility of the prosecution to specifically plead and prove the overt<\/p>\n
act of the accused. Here there is no motive at all attributable against the<\/p>\n
accused and absolutely no evidence adduced connected with the motives.<\/p>\n
No evidence is adduced by the prosecution to show that the availability of<\/p>\n
Crl. Appeal No. 1172 of 2001        -10-<\/span><\/p>\n
the accused adjacent or near to the place of occurrence. In the above<\/p>\n
circumstances, the approach of the court below in fixing the liability on the<\/p>\n
defence to show that some persons in the name of Madavan was residing<\/p>\n
adjacent to the place of occurrence, seems to be incorrect and illegal.<\/p>\n
       10.    In the light of the above facts and circumstances and the<\/p>\n
evidence on record, I am of the view that the prosecution could not<\/p>\n
establish the circumstances which relied on by them to prove guilt of the<\/p>\n
accused and therefore the accused is entitled to get the benefit of doubt.<\/p>\n
Consequently, the order of conviction is liable to be set aside.<\/p>\n
       11.    In the result the conviction and sentence imposed on the<\/p>\n
accused\/appellant under Section 326 of IPC is set aside by allowing this<\/p>\n
appeal. As accused\/appellant is no more and especially the conviction and<\/p>\n
sentence imposed against him is set aside, no further proceedings are<\/p>\n
required in pursuance of the impugned judgment.\n<\/p>\n
       The appeal is disposed of accordingly.\n<\/p>\n<\/p>\n
                                                  V.K.MOHANAN, JUDGE<\/p>\n
rhs<\/p>\n","protected":false},"excerpt":{"rendered":"
Kerala High Court Madhavan vs State on 16 December, 2008 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 – – – […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,21],"tags":[],"class_list":["post-121333","post","type-post","status-publish","format-standard","hentry","category-high-court","category-kerala-high-court"],"yoast_head":"\nMadhavan vs State on 16 December, 2008 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/madhavan-vs-state-on-16-december-2008\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Madhavan vs State on 16 December, 2008 - 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