{"id":121820,"date":"2009-01-23T00:00:00","date_gmt":"2009-01-22T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/santhosh-vs-state-of-kerala-on-23-january-2009"},"modified":"2017-02-16T00:01:42","modified_gmt":"2017-02-15T18:31:42","slug":"santhosh-vs-state-of-kerala-on-23-january-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/santhosh-vs-state-of-kerala-on-23-january-2009","title":{"rendered":"Santhosh vs State Of Kerala on 23 January, 2009"},"content":{"rendered":"
Kerala High Court<\/div>\n
Santhosh vs State Of Kerala on 23 January, 2009<\/div>\n
       \n\n  \n\n  \n\n \n \n  IN THE HIGH COURT OF KERALA AT ERNAKULAM\n\nCRL.A.No. 869 of 2005()\n\n\n1. SANTHOSH, S\/O. BABY,\n                      ...  Petitioner\n\n                        Vs\n\n\n\n1. STATE OF KERALA,\n                       ...       Respondent\n\n                For Petitioner  :SRI.P.GOPAKUMARAN NAIR\n\n                For Respondent  :PUBLIC PROSECUTOR\n\nThe Hon'ble MR. Justice A.K.BASHEER\nThe Hon'ble MR. Justice THOMAS P.JOSEPH\n\n Dated :23\/01\/2009\n\n O R D E R\n               A.K. BASHEER & THOMAS P.JOSEPH, JJ.\n               = = = = = = = = = = = = = = = = = = = = = = = = = =\n                      CRIMINAL APPEAL No.869 of 2005\n               = = = = = = = = = = = = = = = = = = = = = = = = = = =\n                Dated this the 23rd        day of January, 2009\n\n                                J U D G M E N T\n<\/pre>\n
                                 ———————-\n<\/p>\n
\nBasheer, J.\n<\/p>\n
      Appellant was tried for the offences punishable under Sections<\/p>\n
302 and 427 of the Indian Penal Code. He was found guilty under<\/p>\n
both counts.    He was sentenced to undergo imprisonment for life<\/p>\n
under Section 302 IPC and to pay fine of Rs.1,00,000\/- and in default<\/p>\n
to suffer rigorous imprisonment for four years. He was also sentenced<\/p>\n
to pay    fine of Rs.5,000\/-      under Section 427 IPC            with a default<\/p>\n
sentence of rigorous imprisonment for six months.                  The appellant<\/p>\n
impugns the said order of conviction and sentence passed against him<\/p>\n
in this appeal.\n<\/p>\n
      2.    Prosecution case in brief was that one Soman (hereinafter<\/p>\n
referred to as “the deceased”) was assaulted by the appellant\/accused<\/p>\n
at about 7.30. p.m. on September 7, 2003 while the deceased was<\/p>\n
driving his autorikshaw.           The alleged incident took place at<\/p>\n
Nallanikunnu near a culvert.            The version given by the deceased<\/p>\n
before the police was that           when he reached near the place of<\/p>\n
occurrence, the appellant waved his hand to stop the autorikshaw.<\/p>\n
Immediately on stopping the autorikshaw the                      appellant came<\/p>\n
CRL. APPEAL NO.869 OF 2005<\/p>\n
                                  -: 2 :-<\/span><\/p>\n
towards him and asked him in a threatening tone that why he did not<\/p>\n
go for a trip on an earlier occasion when demanded by the appellant.<\/p>\n
The front glass of the autorikshaw was smashed by the appellant with<\/p>\n
a sword-stick. When the deceased got out of the autorikshaw, the<\/p>\n
appellant inflicted a cut injury on the left side of his head with the<\/p>\n
sword-stick. Deceased fell down with a loud cry.      Blood was oozing<\/p>\n
from his head. While the deceased lying on the ground the appellant<\/p>\n
kicked him on his chest and back side. One Vijayan and some others<\/p>\n
rushed to the scene on hearing the cry. Appellant ran away from the<\/p>\n
scene towards west with the sword-stick. Vijayan and others who<\/p>\n
rushed to the scene took the deceased in an autorikshaw to the<\/p>\n
hospital. According to the deceased he lost a purse containing 400<\/p>\n
rupees.   Deceased described the sword-stick as having one arm’s<\/p>\n
length with sharp edge on one side. He further stated that he would<\/p>\n
be able to identify the weapon if shown to him. According to the<\/p>\n
deceased the appellant was enmical towards him since he had refused<\/p>\n
to carry arrack belonging to the appellant in his autorikshaw on an<\/p>\n
earlier occasion. The above statement was recorded by the police at<\/p>\n
the Medical College Hospital, Pushpagiri at 4.00 p.m. on September<\/p>\n
12, 2003. We will refer to the first information statement and contents<\/p>\n
CRL. APPEAL NO.869 OF 2005<\/p>\n
                                -: 3 :-<\/span><\/p>\n
thereof which was marked as Exhibit P10, a little later.<\/p>\n
     3.    Prosecution examined P.Ws.1 to 14. Exhibits P1 to P21<\/p>\n
and M.O.1 were also marked on the side of the prosecution.     There<\/p>\n
was no oral or documentary evidence on the side of the defence.<\/p>\n
     4.    Learned Sessions Judge after evaluating the      oral and<\/p>\n
documentary evidence adduced by the prosecution, held that Exhibit<\/p>\n
P10 statement given by the deceased could be treated as a dying<\/p>\n
declaration.   The learned Judge also placed heavy reliance on the<\/p>\n
evidence of P.W.4 who deposed that the deceased had told her about<\/p>\n
the assailant while he was being taken        in an autorikshaw for<\/p>\n
treatment from    Christian Medical Mission Hospital, Pandalam     to<\/p>\n
Medical College Hospital, Pushpagiri.       Resultantly, the learned<\/p>\n
Sessions Judge found the appellant guilty under Section 302 IPC. As<\/p>\n
regards the offence under Section 427 IPC, the court below found that<\/p>\n
evidence adduced by the prosecution with the help of Exhibit P6 body<\/p>\n
mahazar of the autorikshaw and evidence of P.W.6 was sufficient<\/p>\n
enough to prove that appellant had caused damage to the vehicle.<\/p>\n
     5.    It is contended by learned counsel for the appellant that<\/p>\n
the court below has relied on conjectures and surmises, rather than<\/p>\n
on reliable and trustworthy evidence, to hold that appellant guilty of<\/p>\n
CRL. APPEAL NO.869 OF 2005<\/p>\n
                                   -: 4 :-<\/span><\/p>\n
the offence alleged against him. He points out that two eye witnesses<\/p>\n
cited by the prosecution had failed to support his case.    Though the<\/p>\n
alleged incident had taken place on September 7, 2003, Exhibit P11,<\/p>\n
FIR was registered only on September 12, 2003. The delay was not<\/p>\n
explained at all.   It is further contended by the learned counsel that<\/p>\n
identity of the assailant was not at all established in the case. What<\/p>\n
the deceased had reportedly told the police was that one Santhosh<\/p>\n
from Nallanikunnu had inflicted the injury on his head.<\/p>\n
      6.    As mentioned earlier P.Ws.1 and 2 did not support the<\/p>\n
prosecution and therefore they were declared hostile. Though these<\/p>\n
two witnesses were cross-examined at length by the learned Public<\/p>\n
Prosecutor, no material in support of the prosecution was brought out.<\/p>\n
P.W.3 Village Officer prepared Exhibit P4 site plan.<\/p>\n
      7.    P.W.4 wife of the deceased, was the other prime witness<\/p>\n
on the side of the prosecution. In her deposition she stated that her<\/p>\n
husband had been driving his own autorikshaw.          He was an Ex-<\/p>\n
serviceman. On September 7, 2003 at about 7.45 p.m. her husband<\/p>\n
came home as usual driving the autorikshaw. But he was drenched in<\/p>\n
blood. It was noticed by P.W4 that blood was oozing from her<\/p>\n
husband’s head. When P.W.4 asked him about the cause of bleeding,<\/p>\n
CRL. APPEAL NO.869 OF 2005<\/p>\n
                               -: 5 :-<\/span><\/p>\n
deceased asked for some water. By the time she brought water he<\/p>\n
swooned.   She cried aloud.   Some people from the neighbourhood<\/p>\n
came and took the injured to the hospital at Pandalam. After putting<\/p>\n
sutures on the wound, the Doctor informed her that nothing can be<\/p>\n
done there and advised to take him to the Medical College Hospital.<\/p>\n
There was some delay in getting the      vehicle.   But soon,   the<\/p>\n
deceased was taken in an autorikshaw to the Medical College Hospital,<\/p>\n
Pushpagiri. On the way to the hospital, the deceased recovered<\/p>\n
consciousness. P.W.4 asked what had happened. According to P.W.4,<\/p>\n
deceased told her that one Santhosh from Nallanikunnu had hit him<\/p>\n
while he was going in his autorikshaw because of previous enmity<\/p>\n
since  he had refused to transport arrack as required by the said<\/p>\n
Santhosh in his vehicle on an earlier occasion. P.W.4 further stated<\/p>\n
that  her husband was taken to the        Medical College Hospital,<\/p>\n
Pushpagiri and from there to Medical College Hospital at Kottayam<\/p>\n
where he died on September 19, 2003. She further stated that her<\/p>\n
husband was under      treatment at the   Medical College Hospital,<\/p>\n
Pushpagiri  till September 17, 2003. Police had recorded statement<\/p>\n
of her husband while he was undergoing treatment at the Medical<\/p>\n
College Hospital, Pushpagiri.    According to her  when the police<\/p>\n
CRL. APPEAL NO.869 OF 2005<\/p>\n
                                 -: 6 :-<\/span><\/p>\n
recorded his statement he was conscious. In cross-examination P.W.4<\/p>\n
stated that she had no prior acquaintance with Santhosh referred to<\/p>\n
by her husband. She further stated that the information she had had<\/p>\n
about the incident was only as gathered from her husband.<\/p>\n
       8.   The other material witnesses on the prosecution side was<\/p>\n
the two Doctors who treated the deceased, one of whom (P.W.12)<\/p>\n
issued Exhibit P12 wound certificate. He deposed before the court that<\/p>\n
he had examined the deceased on September 7, 2003 at about 8.15<\/p>\n
p.m. At that time people who brought the deceased to the hospital<\/p>\n
had informed him that the injured had suffered the injuries in a road<\/p>\n
traffic accident. Since the condition of the patient was serious, he had<\/p>\n
referred the patient to the Medical College Hospital.<\/p>\n
       9.   The other Doctor, who was the Associate Professor,<\/p>\n
Medical College Hospital, Pushpagiri,     was examined as P.W.7. He<\/p>\n
deposed before the court that the deceased was under his treatment<\/p>\n
from 8th to 19th of September, 2003. According to this witness, the<\/p>\n
deceased was admitted with an alleged history of assault.     Deceased<\/p>\n
had sustained head injury     “with fracture   skull with subaracnnoid<\/p>\n
haemorrhage, pneumocephalus post tranatic CSF rhinorrhoea and post<\/p>\n
trametic menengitis”.       P.W.7 further stated that patient was<\/p>\n
CRL. APPEAL NO.869 OF 2005<\/p>\n
                                 -: 7 :-<\/span><\/p>\n
discharged from the hospital at the request of the relatives and at that<\/p>\n
time the condition of the patient was critical. He further admitted that<\/p>\n
in Exhibit P7 discharge summary, the weapon used for the alleged<\/p>\n
assault had not been indicated.\n<\/p>\n
       10.  The other material witnesses on the side of prosecution are<\/p>\n
P.Ws.8, 11, 13 and 14. P.W.8 conducted the autopsy on the body of<\/p>\n
the deceased at the Medical College Hospital, Kottayam where death<\/p>\n
had occurred. He issued Exhibit P8 Postmortem certificate. In the said<\/p>\n
certificate P.W.8 opined that death was due to head injury.<\/p>\n
       11.  P.W.11, Sub Inspector of Police, in his evidence, stated that<\/p>\n
Exhibit P10 first information statement was recorded by head<\/p>\n
constable Vijayan who is no more. He also stated that Exhibit P11 FIR<\/p>\n
was also registered by the said Vijayan. He further stated that on<\/p>\n
September 15, 2003 he had questioned the deceased while he was<\/p>\n
undergoing treatment at        Medical College Hospital, Pushpagiri.<\/p>\n
According to this witness the deceased had told him that the appellant<\/p>\n
hit him with an iron pipe.\n<\/p>\n
       12.  P.W.13, who was working as a constable in         the police<\/p>\n
station concerned, had     stated that he had signed as a witness in<\/p>\n
Exhibit P13 mahazar under which M.O.1 iron pipe was seized by the<\/p>\n
CRL. APPEAL NO.869 OF 2005<\/p>\n
                                 -: 8 :-<\/span><\/p>\n
police on September 23, 2003. According to this witness M.O.1 was<\/p>\n
recovered from the property of P.W.2.\n<\/p>\n
      13.   P.W.14, DYSP, gave evidence regarding the investigation<\/p>\n
conducted by his subordinate (C.W.15) since he was not available in<\/p>\n
the country at that time. P.W.14 sated that C.W.15 had arrested the<\/p>\n
appellant on September 23, 2003 at about 2.30 p.m. On the basis of<\/p>\n
the information furnished by the appellant, C.W.15 had effected<\/p>\n
recovery of M.O.1 as per Exhibit P13. M.O.1 was produced by C.W.15<\/p>\n
before the Court as per Exhibit P15.\n<\/p>\n
      14.   We have referred to the material pieces of       evidence<\/p>\n
adduced by the prosecution in this case with a view to examine as to<\/p>\n
whether the court below was justified in holding the appellant guilty of<\/p>\n
the charges levelled against him. It may at once be noticed that the<\/p>\n
alleged incident had taken place at 7.30 p.m. on September 7, 2003.<\/p>\n
According to the version given by the deceased and P.W.4, the<\/p>\n
deceased was taken to the hospital at Pandalam by 8.15 p.m., in an<\/p>\n
autorikshaw. Deceased was referred to the Medical College Hospital at<\/p>\n
Pushpagiri by the Doctor at Pandalam since his injury was serious.<\/p>\n
According to P.W.4 while her husband was being taken to Pushpagiri<\/p>\n
hospital he had told her in the autorikshaw that one Nallanikunnu<\/p>\n
CRL. APPEAL NO.869 OF 2005<\/p>\n
                                  -: 9 :-<\/span><\/p>\n
Santhosh had inflicted the injury on his head.        Surprisingly and<\/p>\n
curiously, P.W.4 had not bothered to report the matter to the police on<\/p>\n
her own at any point of time.\n<\/p>\n
      15.   The deceased is seen to have given Exhibit P10 first<\/p>\n
information statement before the police on September 12, 2003 at<\/p>\n
about 4.00 p.m. Exhibit P10 reveals that the police had gone to the<\/p>\n
hospital pursuant to a requisition from the hospital.      There is no<\/p>\n
explanation of any kind about the delay. More importantly, in Exhibit<\/p>\n
P10 the deceased had stated that one Nallanikunnu Santhosh had hit<\/p>\n
him on the left side of his head with a sword-stick. But, what is seen<\/p>\n
to have been    produced in the case as the weapon involved in the<\/p>\n
crime   is an iron pipe. This was marked in the case as M.O.1.<\/p>\n
According to the prosecution, M.O.1 was recovered        as per Exhibit<\/p>\n
P13 based on the information furnished by the accused.             The<\/p>\n
prosecution has not been able to explain          this glaring anomaly<\/p>\n
about the actual weapon      used by the accused in the case.<\/p>\n
      16. In this context, we may also refer to the evidence of<\/p>\n
PW.11, the Sub Inspector,      attached to the    Pathanamthitta Police<\/p>\n
Station. In his evidence, he deposed that the deceased had told<\/p>\n
him, while he was questioned on September 15, 2003, that the<\/p>\n
CRL. APPEAL NO.869 OF 2005<\/p>\n
                                -: 10 :-<\/span><\/p>\n
accused had hit him with an iron pipe.          As we have mentioned<\/p>\n
earlier, no attempt was made by the prosecution at any stage to<\/p>\n
explain as to how the weapon had transformed from sword-stick to<\/p>\n
iron pipe. In our view, this material discrepancy in the prosecution<\/p>\n
case, apart from the unexplained delay in registering the crime,<\/p>\n
will cut at the root of the prosecution.\n<\/p>\n
      17.  In this context, it may also be noticed that the court<\/p>\n
below had placed heavy reliance on the so called dying declaration<\/p>\n
allegedly made by the deceased to P.W.4 and later in Ext.P10 first<\/p>\n
information statement. It is true that P.W.4 had deposed before the<\/p>\n
court that while her husband was being taken to Pushpagiri<\/p>\n
Medical College Hospital at Thiruvalla in an autorikshaw, he had told<\/p>\n
her that he was attacked by one Nallanikunnu Santhosh. It is again<\/p>\n
true that the deceased had not stated anything       about the weapon<\/p>\n
used.   But still, the specific case of P.W.4 was that her husband<\/p>\n
told her who the assailant was. She was aware that         the condition<\/p>\n
of her husband was critical. But still she did not choose to report the<\/p>\n
matter to the police even though admittedly she had been told<\/p>\n
about the assault on her husband as early as on September 7, 2003.<\/p>\n
      18.  Coming to the statement given by the deceased to the<\/p>\n
CRL. APPEAL NO.869 OF 2005<\/p>\n
                                -: 11 :-<\/span><\/p>\n
police on September 12, 2003 while he was undergoing treatment at<\/p>\n
the    Medical College Hospital, Pushpagiri, it can be seen from<\/p>\n
Exhibit P10 that the deceased had informed the police         that he<\/p>\n
was    attacked by   Nallanikunnu   Santhosh with a sword- stick.  It<\/p>\n
appeared    that the deceased had no doubt        about  the  alleged<\/p>\n
weapon used by the assailant. He had described the said weapon<\/p>\n
saying that one edge of it was very sharp while the other side<\/p>\n
was blunt.   He had also referred to the length of the weapon. But<\/p>\n
for some strange reasons, the weapon got transformed into an iron<\/p>\n
pipe.\n<\/p>\n
      19.   Strangely, the prosecution had never bothered to get<\/p>\n
the assailant identified  at any point of time. As has been noticed<\/p>\n
already,   the deceased    had only     stated that one  Nallanikunnu<\/p>\n
Santhosh had attacked him. But there is nothing on record to show<\/p>\n
that it was the appellant    who was the assailant. No attempt was<\/p>\n
made to establish that    Nallanikunnu Santhosh is the appellant.<\/p>\n
This   could  have been     proved by the prosecution without much<\/p>\n
difficulty.\n<\/p>\n
      20.   We have carefully      perused    the   entire   evidence<\/p>\n
available on record. In our view, in the nature of the evidence<\/p>\n
CRL. APPEAL NO.869 OF 2005<\/p>\n
                               -: 12 :-<\/span><\/p>\n
adduced by the prosecution, it may not be safe or proper to hold the<\/p>\n
appellant guilty.  We are satisfied that the appellant is entitled to<\/p>\n
get the benefit of doubt.\n<\/p>\n
      21.   Therefore, the order of conviction and sentence passed<\/p>\n
against   the appellant is  set  aside.  He is found not guilty and<\/p>\n
acquitted.\n<\/p>\n
      22.   The appellant shall be released from custody forthwith,<\/p>\n
if he is not required to be detained in connection with any other<\/p>\n
case.\n<\/p>\n
      Appeal is allowed.\n<\/p>\n<\/p>\n
                                               A.K. BASHEER, JUDGE.\n<\/p>\n
                                          THOMAS P.JOSEPH, JUDGE.\n<\/p>\n
vsv<\/p>\n","protected":false},"excerpt":{"rendered":"
Kerala High Court Santhosh vs State Of Kerala on 23 January, 2009 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>\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-121820","post","type-post","status-publish","format-standard","hentry","category-high-court","category-kerala-high-court"],"yoast_head":"\nSanthosh vs State Of Kerala on 23 January, 2009 - 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\/santhosh-vs-state-of-kerala-on-23-january-2009\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Santhosh vs State Of Kerala on 23 January, 2009 - 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