{"id":198095,"date":"2001-11-22T00:00:00","date_gmt":"2001-11-21T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/state-vs-swarnappan-on-22-november-2001"},"modified":"2019-02-04T13:36:04","modified_gmt":"2019-02-04T08:06:04","slug":"state-vs-swarnappan-on-22-november-2001","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/state-vs-swarnappan-on-22-november-2001","title":{"rendered":"State vs Swarnappan on 22 November, 2001"},"content":{"rendered":"<div class=\"docsource_main\">Kerala High Court<\/div>\n<div class=\"doc_title\">State vs Swarnappan on 22 November, 2001<\/div>\n<div class=\"doc_author\">Author: J Koshy<\/div>\n<div class=\"doc_bench\">Bench: J Koshy, K P Nair<\/div>\n<\/p>\n<pre><\/pre>\n<p>JUDGMENT<\/p>\n<p>J.B. Koshy, J. <\/p>\n<p>1. This an appeal field by the State against the acquittal of the accused in SC No. 79<br \/>\nof 1994 on the file of the I Additional Sessions Judge, Thiruvananthapuram. The<br \/>\noffence was alleged to have committed more than two decades ago. It is alleged that<br \/>\naccused was coming for trial after 17 years of occurrence. The advocate of the appellant<br \/>\nwho filed vakalath before this Court died and Public Prosecutor reported that his<br \/>\ninformation is that accused also is dead. But despite granting time, Public Prosecutor<br \/>\nwas not able produce death certificate. Therefore, we are considering the merits<br \/>\nof the case. To prove the case prosecution heavily depends upon Section 299 of the Criminal<br \/>\nProcedure Code.\n<\/p>\n<p>2. The prosecution case as summarised by the learned Sessions Judge is as follows:\n<\/p>\n<p>&#8220;The accused was having previous enmity towards the deceased Velappan Pillai, who was<br \/>\nconducting a medical shop. According to the prosecution, the deceased Velappan Pillai had<br \/>\nadministered injection on one Savin Pillai, who is the brother of the accused herein. Consequent<br \/>\nto the injection, Sivan Pillai died and a case was foisted against the deceased Velappan Pillai,<br \/>\nwho was acquitted by the J.P.C.M. Nedumangad as per the Judgment. After the acquittal, the<br \/>\ndeceased who was a Constable in the C.R.P. approached PW1, the brother of the deceased<br \/>\nVelappan Pillai and wanted his to compensate the deceased Sivan pillai&#8217;s family. PW1 was not<br \/>\nheeding to the demand and hence the accused declared that he would retallate. When the<br \/>\naccused came to the native place on leave, he committed the murder of the deceased<br \/>\nVelappan Pillai.\n<\/p>\n<p>The occurrence took place on 17.10.1980 at about 9.30 PM. The deceased Velappan Pillai<br \/>\nclosed his medical shop at the Aryanad junction and he was proceeding to his house, while the<br \/>\naccused waited for him near a betal shop. When the deceased Velappan Pillai was proceeding,<br \/>\nthe accused followed him and when he reached on the southern side of the old bridge about 25<br \/>\nfeet away, the accused stabbed the deceased with a knife looking like a bionet from behind, on<br \/>\nhis head. While the deceased Velappan Pillai was turning back, he again stabbed the deceased<br \/>\nVelappan Pillai and he sustained injuries on his right armpit and the chest. The deceased cried<br \/>\nand fell down on his right knee. The accused thereafter, without drawing the knife fully out,<br \/>\nwithdrew the knife slightly and then again thrusts it into  the chest, asked him as to whether he did not die.&#8221;\n<\/p>\n<p>3. PW1 who gave FI statement did not see the incident. He saw the deceased on the side of the road with bleeding injuries. PW1 along with others took him to<br \/>\nNedumangad Government Hospital. PW6 doctor examined him and declared him and declared him<br \/>\ndead. There is no dispute reading identification of the dead body or injuries on the<br \/>\ndead body. There were tow deep penetrating incised wounds in the chest and each of<br \/>\nthe injuries were sufficient to cause death. Those injuries as per Ext. P11 postmortem<br \/>\ncertificate issued by PW11 doctor, who conducted postmortem are as follows:\n<\/p>\n<p>&#8220;Injury No.2: Incised penetrating wound 9 x 3 cm obliquely placed across the front of<br \/>\nchest, the upper right end which showed tailing was 5 cm from the right nipple and the Lower<br \/>\nleft end was 2 cm below the nipple level. On dissection, two separate wound tracks were found.<br \/>\nOne penetrated the left chest cavity thought the 5th intercostal space and punctured the lower<br \/>\nlobe on left lung (5 x 3 x 9 cm) wound track was directed downwards, back wards and to the left<br \/>\nhaving a minimum depth of 10 cm. The other would track penetrated the left chest cavity cutting<br \/>\nthought the 5th costal cartilage and sternum (3.5 cm) and punctured both ventricles of the heart<br \/>\nfor a depth of 6 cm. The wound was directed back wards and upwards form a minimum depth of<br \/>\n7.5 cm. The left end of the wound showed splintering and the other end was sharply cut.\n<\/p>\n<p>Injury No. 8: Incised penetrating wound 4 x 1x 5 cm. obliquely placed on the back of chest<br \/>\nacross the milline at the level of 3rd thoracic spine. The upper right end showed contusion and<br \/>\nthe lower left end was sharply cut. The wound perforated the back of 4th thoracic vertebra,<br \/>\nentered the spinal canal and served the right half of spinal cord 1.5 x 1 cm. The wound was directed forwards, downwards and to the left.&#8221;\n<\/p>\n<p>The Session Judge correctly found that he died as a result of the above injuries.\n<\/p>\n<p>4. Prosecution relied on direct evidence. According to the prosecution, PW2,<br \/>\nCW2 and CW3 saw the incident. PW2 deposed  that he did not see the incident at all.<br \/>\nHe did not implicate the accused at all. He turned hostile. No part of his evidence<br \/>\nwas helpful to the prosecution. CW2 and CW3 were not examined. According to the<br \/>\nprosecution, they died. Therefore, prosecution relied on their deposition given before<br \/>\nthe Judicial I Class Magistrate Court, Kattakkada (PW9) under Section 299 of the Criminal<br \/>\nProcedure Code. They were marked as Exts. P7 and P8. Deposition given before<br \/>\nthe Magistrate under Section 299 even though can be accepted as evidence if the witness<br \/>\ndied before trial, it is the duty of the prosecution to prove their death or non-availability.<br \/>\nSection 273 of the Code of Criminal Procedure provides that all evidence shall be taken in the presence of the accused or in the presence of his pleader when his personal<br \/>\nattendance is  disposed with. Section 299 of the Cr. P.C. reads as follows:\n<\/p>\n<p>299. Record of evidence in absence of accused:-\n<\/p>\n<p>(1) If it is proved that a accused person has absconded and that there is no immediate<br \/>\nprospect of arresting him the Court competent to try or commit for trial, such person<br \/>\nfor the office complained of may, in his absence, examine the witnesses (if nay)<br \/>\nproduced on behalf of the persecution, and record their deposition and any such deposition may, the arrest such person, be given in evidence against him on the<br \/>\ninquiry into, or trial for, the offence with which he is charged. If the deponent is dead<br \/>\nor incapable or giving evidence or cannot be found or his presence cannot be procured<br \/>\nwithout an amount of delay, expense or inconvenience which, under the circumstances<br \/>\nof the case, would be unreasonable.\n<\/p>\n<p>(2) If it appears that na offence punishable with death or imprisonment for life has been committed by some person or persons unknown, the High Court or the Sessions Judge<br \/>\nmay direct that any Magistrate of the first class shall hold an inquiry and examine any&#8217;<br \/>\nwitnesses who can give evidence concerning the offence and any depositions so<br \/>\ntaken may be given in evidence against any person who is subsequently accused of<br \/>\nthe offence, if the deponent is dad or incapable of giving evidence or beyond the limits of India&#8221;.\n<\/p>\n<p>5. Section 299 is an exception to the general rule that evidence has to be taken in the<br \/>\npresence of the accused as he has by his own conduct chosen to be absent. (See<br \/>\nTahsildar Singh v. State (AIR Allahabad 214 at 221)). This Section also is an<br \/>\nexception to Sections 33, 145 and other provisions of the Evidence Act incorporating the<br \/>\ngeneral rule that the evidence of a witness which a party had no right and opportunity<br \/>\nto which cross examination is not legally admissible. (See Emperor v. Labbai Kutti<br \/>\n(AIR 1939 Madra 1990)). The object of Section 299 is to preserve evidence, on account of<br \/>\nlong delay in the trial due to the absconding of the accused in a serious offence in the<br \/>\ninterest of ultimate justice. It is settled law that before an exception can be crated all<br \/>\nthe conditions prescribed by the statute should strictly be complied with. (See sheoraj<br \/>\nSingh v. Emperor (AIR 1926 Allahabad 340 at 341). Evidence recorded under this<br \/>\nsection can be availed of only when the witness is dead or cannot be procured. The<br \/>\nfull burden is on the prosecution to prove that those ingredients are satisfied. In<br \/>\nChainchal Singh v. Emperor (AIR (33) 1946 Privy Council 1) the Privy Council held<br \/>\nthat in such cases strict proof is necessary. In Nirmal Sing v. State of Haryana<br \/>\n(2000 AIR SCW 1111) even though their Lordships were satisfied on the facts of that<br \/>\ncase that the burden was discharged by the prosecution. The Court held as follows:<br \/>\n  &#8220;&#8230;.There possibly cannot be any dispute with the proposition of law that for taking the benefits of Section 299 of the code or Criminal Procedure, the conditions precedent therein must be<br \/>\nduty established and the prosecution, which proposes to utilise the said statement as evidence<br \/>\nin trial, must therefore, prove about the existence of the preconditions before tendering the evidence&#8230;.&#8221;\n<\/p>\n<p>6. For application of Sacaton 299 there should be a definite finding to the effect that<br \/>\nwitnesses died at the time of trial or became incapable of giving evidence. Here, the learned Sessions Judge had taken evidence in this regard and came to a definite<br \/>\nfinding of fact that prosecution did not establish that CW2 and CW3 dies at the time of trial or unable to be procured.  In view of statutory mandate under Section 299, there is no infirmity in the evidence acceptable under that Section despite lack of cross examination.<br \/>\nIn spite of absence of cross examination, probative value of evidence acceptable<br \/>\nunder Section 299 is like any other acceptable evidence, but as a rule of evidence, like other<br \/>\nadmissible evidence court may require ti to be corroborated by circumstances of the<br \/>\ncase ad other evidence adduced in the case. Its is the duty of the court to appraise<br \/>\nevidence adduced in the case as a whole. Hence PW2, the only other occurrence<br \/>\nwitness examined by the prosecution turned hostile and denied his presence. This is a<br \/>\npoint against the prosecution. The prosecution also failed to prove that CW2 and CW3 were dead or unable to be procured at the time of trial.\n<\/p>\n<p>7. From the evidence learned Sessions Judge found that the prosecution did not<br \/>\ndischarge this burden. Evidence in this respect were considered by the Sessions<br \/>\nJudge in paragraphs 23 to 26 which read as follows:\n<\/p>\n<p>&#8220;23. The death of CW2, Kamara Pillai is however, seriously challenged in this case and the accessed had denied his death. In the above circumstances, the prosecution has the burden to<br \/>\nprove the death of Sri. Kumara Pillai beyond reasonable doubt. The best evidence to prove the<br \/>\ndeath is by production of the Death Certificate and hence the prosecution marked Ext. P17, the<br \/>\nDeath Certificate which is purported to be the Death Certificate relating to Sri. Kumara Pillai. But,<br \/>\non a perusal of the Death Certificate and the summons issued to Sri. Kumara Pillai, I find that the<br \/>\nfather&#8217;s name and house name in those documents are different.\n<\/p>\n<p>24. Ext. P18 is the summons issued to CW2. The address shown therein is Sri. Kumara Pillai, S\/o. Madhavan Pillai, Pooyamveettu Veedu, Arayanad. But the Death Certificate, Ext. P17 would show the details of the deceased as follows: &#8220;Sri. Kumara Pillai, S\/o. Mathevan Pillai, Poovammoottu<br \/>\nVeedu, Aryanad P.O.&#8221; The name of the father shown in the summons, Ext. P18 is &#8220;Madhavan<br \/>\nPillai&#8221; but in Ext. P17 the death certificate is &#8220;Mathevan Pillai&#8221;. So also, the house is shown as<br \/>\n&#8220;Pooyam Poottu Veedu&#8221; in Ext. P18 whereas in ext. P17, the house name is shown &#8220;Poovam<br \/>\nMottu Veedu&#8221;. In the light of the above discrepancy, the prosecution has a duty t prove<br \/>\nbeyond reasonable doubt that Ext. P17 relates to none other than CW2. Any way, in the light<br \/>\nof the difference in the name of father and the house it is not possible for me to conclude positively<br \/>\nthat Ext. P17 relates to CW2 Kumara Pillai himself.\n<\/p>\n<p>25. With respect to the death of CW3, Sri. Krishnankutty also, the evidence is of similar<br \/>\nnature. PW 14 deposed that while working as a police constable, in the Aryaanad Police Station,<br \/>\nhe had gone in the address shown in the summons issued t CW3, but he could not serve the<br \/>\nsummons, since CW3 was reported to be dead. The death certificate is marked as Ext. P20 and<br \/>\nthe summons issued to CW3 Sri. Krishnankutty is marked as Ext. P21.\n<\/p>\n<p>26. On going through Ext. P20 and P21, I find that there is difference in the name of the father<br \/>\nand the address. The father&#8217;s name shown in Ext. P21 is Kochappi, whereas in Ext. P20, the death<br \/>\ncertificate, the father&#8217;s name is shown as &#8220;Kochan&#8221;. The house name in the summons is<br \/>\n&#8220;Madathuvilakam Veedu, Kottakkakom, Aryanad&#8221; whereas in Ext. P20, the Death Certificate the<br \/>\naddress is shown as &#8220;Vishnu Nagar, Kottakkakam, Kottakkakom P.O.&#8221; Thus there is difference in the name of the father and the address in these two documents and the absence of explanation<br \/>\nfor the discrepancies, it is not possible to hold that Ext P20 the death certificate relates to CW23.\n<\/p>\n<p>27 According to me, the prosecution has failed to establish beyond reasonable doubt that<br \/>\nCW2 and CW3 in this case are no more. None of the relatives of CW2 and CW3 were examined<br \/>\nin this case. None of the witnesses who wee examined in this case were made to speak before court that CW2 and CW3 are no more. IN the above circumstances based on Ext.P17 and P20 alone, I am not able to enter a finding that CW2 and CW3 in this case are dead.&#8221;\n<\/p>\n<p>We are in perfect agreement with the learned Sessions Judge in the above reasons. If Exts. P7 and P8 are not received in evidence, there is no evidence connecting the<br \/>\naccused with the crime except some suspicion.\n<\/p>\n<p>8. In the above circumstances, we agree with the findings of the learned Sessions<br \/>\nJudge that prosecution was not able to prove the charges conclusively against the<br \/>\naccused. Even otherwise, in an appeal against acquittal this court will not  interfere<br \/>\nwith the judgment of the Sessions Court unless the finding of the court below is not a<br \/>\nreasonable possible view. It cannot be stated that the findings of the Sessions Court<br \/>\nare perverse or illegal or view expressed by the court is not a reasonable possible view. Hence we confirm the order of acquittal passed by the court below and dismiss the appeal.<\/p>\n","protected":false},"excerpt":{"rendered":"<p>Kerala High Court State vs Swarnappan on 22 November, 2001 Author: J Koshy Bench: J Koshy, K P Nair JUDGMENT J.B. Koshy, J. 1. This an appeal field by the State against the acquittal of the accused in SC No. 79 of 1994 on the file of the I Additional Sessions Judge, Thiruvananthapuram. The offence [&hellip;]<\/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-198095","post","type-post","status-publish","format-standard","hentry","category-high-court","category-kerala-high-court"],"yoast_head":"<!-- This site is optimized with the Yoast SEO plugin v27.3 - https:\/\/yoast.com\/product\/yoast-seo-wordpress\/ -->\n<title>State vs Swarnappan on 22 November, 2001 - Free Judgements of Supreme Court &amp; 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\/state-vs-swarnappan-on-22-november-2001\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"State vs Swarnappan on 22 November, 2001 - Free Judgements of Supreme Court &amp; 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