Kerala High Court
Reji S/O. Sundaran Nadar vs State Of Kerala on 27 January, 2009
Author: Thomas P.Joseph
Bench: A.K.Basheer, Thomas P.Joseph
IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL.A.No. 495 of 2005()
1. REJI S/O. SUNDARAN NADAR,
... Petitioner
Vs
1. STATE OF KERALA, REPRESENTED BY
... Respondent
For Petitioner :SMT.SANGEETHA LAKSHMANA
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice A.K.BASHEER
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :27/01/2009
O R D E R
A.K.BASHEER & THOMAS P. JOSEPH, JJ.
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Criminal Appeal No.495 of 2005
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Dated this the 27th day of January, 2009.
JUDGMENT
Thomas P.Joseph, J.
Case is that on 14.12.1999 at about 7.25 p.m. at the canal bund towards western side of Vellanadu-Kuthirakulam road at Attunada appellant stabbed the deceased, Ponnayyan Nadar, husband of his maternal aunt with knife on account of his enmity due to the deceased pestering his mother with a demand for sexual intercourse. Learned Additional Sessions Judge found that appellant committed the offence punishable under Section 302 of the Indian Penal Code (for short, "the Code"), convicted him thereunder and sentenced him to imprisonment for life and payment of fine of Rs.5,000/-. That conviction and sentence are under challenge in this appeal.
2. Questions raised for a decision in this appeal are whether the prosecution succeeded in proving beyond reasonable doubt that the appellant inflicted injuries on the deceased on the relevant day, time and place and if so, what is the offence made out.
3. First information regarding the alleged incident was given by PW1, younger brother of the deceased at Aryanadu Police Station on 15.12.1999 at 8.30 a.m.. According to PW1 while he was taking food at his Crl.Appeal No.495/2005 2 house situated about 50 metres away from the house of the deceased, PW3, son of the deceased came there and told him that his father (deceased) sustained stab injuries and is lying in the courtyard of the house. PW1 went there and found the deceased, with the wife of the deceased (Thankam) sitting nearby and weeping. Wife of the deceased told him that the deceased had stated that Reji (said to be the appellant) stabbed him on the canal bund. PW1, wife of the deceased and others took the deceased in a tempo van to the Community Health Centre, Vellanadu where the deceased was pronounced dead. PW1 went to Aryanadu Police Station the next day (15.12.1999) and gave first information (Ext.P1) at 8.30 a.m. PW15, Sub Inspector recorded the statement and registered the case. Ext.P1(a) is the First Information Report. PW16, Circle Inspector, Aryanadu Police Station conducted investigation from 15.12.1999 onwards. Ext.P10 is the inquest report. PW13 is an attestor in Ext.P10. MO1, lunki found on the dead body was seized as per Ext.P10. PW16 prepared mahazar for scene of occurrence (Ext.P6) on 15.12.1999 at 12.10 p.m. He seized MOs 3 to 5, blood stained earth, unstained earth and blood stained piece of cloth from the scene of occurrence as per Ext.P6. PW10 is an attestor in Ext.P6. It is the further case of PW16 that he arrested the appellant on 17.12.1999 at 11.30 p.m. at K.S.R.T.C. Bus stand, Crl.Appeal No.495/2005 3 Thiruvananthapuram and on the information given by the appellant, recovered MO2, weapon of offence as per Ext.P7. Ext.P7(a) is the relevant portion of the information allegedly given by the appellant and which led to the discovery of MO2.
4. PW17, Medical Officer of Community Health Centre, Vellanadu examined the deceased on 14.12.1999 at 8 p.m. and issued Ext.P14, wound certificate describing the injuries found on the body of deceased. According to PW17, deceased expired at 8.05 p.m. He immediately informed the matter to the Police. PW12, Lecturer in Forensic Medicine and Assistant Police Surgeon, Medical College Hospital, Thiruvananthapuram conducted autopsy on the body of deceased on 15.12.1999 and issued Ext.P8, postmortem certificate. Evidence of PW12 and Ext.P8 reveal that the deceased had suffered four incised wounds. PW12 opined that death was due to the penetrating wound (injury No.1) to the chest. It is also the opinion of PW12 that injury No.1 is sufficient in the ordinary course to cause death and that the incised wounds referred to in Ext.P8 could be caused with a weapon like MO1. Crl.Appeal No.495/2005 4
5. PW3 is the son of deceased. He was studying in the eighth standard at the relevant time. He claimed that on 14.12.1999 at 6 p.m. the deceased came home and went out by 7 p.m. asking his mother (wife of the deceased) to prepare hot water for him to take bath. The deceased came home by around 7.30 p.m. with bleeding injuries, told him that Reji (appellant) stabbed him at the canal bund and collapsed in the courtyard. PW3 went to PW1 and brought him. The deceased was taken to the Community Health Centre, Vellanadu. According to PW3, the deceased used to pick up quarrel at his maternal home and on the morning of the day of incident also there was such an incident.
6. PWs 2 and 5 are examined to prove the alleged incident. PW2 is residing near the place of occurrence. She refused to support the prosecution. She was confronted with her previous statement to the Investigating Officer. Ext.P2 is the contradiction marked in her previous statement. PW2 heard a loud cry, came out of her house and learnt that the deceased was taken to the hospital. PW5 claimed to have witnessed the incident. He is running a service station at Vellanadu and claimed that on 14.12.1999, he closed the service station at 4 p.m. and went home. He parked his car near the canal bund and went home. He returned to that place at about Crl.Appeal No.495/2005 5 7.30 p.m. to take his car to go to Vellanadu junction and saw a push and pull between the appellant and the deceased at the canal bund. Following that, appellant stabbed the deceased on the chest and abdomen with MO2, knife. Some of the people who gathered there including PW5 took the deceased towards the side of his house and put him there. Thereafter the deceased was taken to hospital.
7. PW4 claimed to have come to the place where the deceased had collapsed. He stated that when he saw, the deceased was slightly conscious but was not able to talk. PW4 along with others took the deceased to the hospital. PW6 is the driver of the vehicle in which deceased was taken to the hospital. He claimed that in his minibus (not a tempo van) the deceased was taken to the hospital. PW7, mother of the appellant was examined to prove the alleged motive but, she refused to support the prosecution. PW8 is a neighbour of the deceased and PW9 is the nephew of the appellant. They were also examined to prove the motive, but they also refused to support the prosecution. Exts.P3 to P5 are the contradictions in their previous statement proved through the Investigating Officer. Crl.Appeal No.495/2005 6
8. PW14, Village Officer prepared Ext.P11, sketch.
PW10 attested Ext.P6, mahazar for scene of occurrence. PW11 is an attestor to Ext.P7, mahazar for alleged recovery of MO2. He claimed that he signed Ext.P7 at the courtyard of house of mother of the appellant on 18.12.1999 at 11 a.m.. PW15 claimed to have recorded Ext.P1 on 15.12.1999 at 8.30 a.m. and registered the case. PW16 deposed to the investigation conducted by him. According to him, he arrested the appellant on 17.12.1999 at 11.30 p.m. at K.S.R.T.C.Bus stand, Thiruvananthapuram and questioned him. On the information given by the appellant [Ext.P7(a)] and as led by the appellant, he reached the place referred to in Ext.P7 wherefrom MO2 (knife) was seized by PW16. PW16 produced the material objects before court and the same were sent for chemical examination. Ext.P9 is the report of chemical examination which states that MOs 1, 2, 3 and 5 were stained with human blood.
9. When questioned under Section 313 of the Code of Criminal Procedure (for short, "the Cr.P.C."), appellant denied the incriminating circumstances and evidence against him and claimed to be innocent. Crl.Appeal No.495/2005 7
10. Learned Additional Sessions Judge accepted the declaration allegedly made by the deceased regarding the assailant as spoken by PW3, evidence of PW5 that he witnessed the incident, recovery of MO2 as per Ext.P7 and found the appellant guilty. It is contended by the learned counsel that learned Additional Sessions Judge was not justified in accepting that evidence and holding the appellant guilty. According to the learned counsel, alleged dying declaration spoken by PW3 cannot be believed in that no independent witness has been examined by the prosecution and there is no reliable and convincing evidence regarding the capacity of the deceased to give any statement as claimed by PW3. Further contention is that the non- examination of wife of the deceased (Thankam) is fatal to the prosecution. Version of PW5 that he witnessed the incident cannot be believed. According to the learned counsel, Police had received information regarding the incident even before Ext.P1. Recovery of MO2 as per Ext.P7 also came under challenge. Responding to the above contentions, learned Public Prosecutor contended that the court below is justified on the facts and circumstances of the case in believing the evidence of PWs 3 and 5 and recovery of MO2 on the information given by the appellant.
Crl.Appeal No.495/2005 8
11. The three items of evidence accepted by the learned Additional Sessions Judge are the declaration allegedly given by the deceased as spoken by PW3, evidence of PW5 that he witnessed the incident and the recovery of MO2 as per Ext.P7.
12. There is no rule that a dying declaration cannot be accepted and acted upon without corroboration. That depends on the facts and circumstances of each cases. Evidence of PW3 shows that at the relevant time he was studying in the eighth standard. It is the case of PW3 that the deceased who came to the courtyard of their house by about 7.30 p.m. with bleeding injuries told him that Reji (appellant) stabbed him and then he collapsed. But we could not find a statement either in the evidence of PW3 or PW1 or even in Ext.P1 that at the time PW3 reached the house of PW1 to inform him about the incident, PW3 had told PW1 that the deceased had told him about Reji stabbing him or made any mention about the assailant. What PW3 told PW1 as is discernible from Ext.P1 is that the deceased suffered stab injuries and is lying in the courtyard. If before PW3 went to the house of PW1 the former had received any information from the deceased or any other source about the assailant, PW3 would have in the normal course told PW1 about the assailant then itself. According to PW1, on getting information that the deceased Crl.Appeal No.495/2005 9 suffered stab injuries, he reached the place where deceased was lying and the wife of the deceased (Thankam) told him that the deceased had told her that it was Reji who stabbed him. The wife of the deceased was not examined. According to PW3, the deceased came to his courtyard with bleeding injuries, made the statement to PW3 and collapsed there. But what PW5 stated is that the people who gathered at the scene of occurrence took the deceased towards the side of his house and put him there. PW5 did not say either that the deceased had gone to the courtyard on his own or, was taken to the courtyard by anybody. It is true that in Ext.P6, PW16 has stated that there were blood drops upto the place of residence of the deceased. But, it is not stated in Ext.P6 that there was blood stains in the courtyard where the deceased allegedly collapsed. There is no convincing evidence to show that the deceased had been to the courtyard of his house after sustaining the injuries.
13. We shall consider whether the deceased was capable of making a statement as claimed by PW3. PW4 saw an assemblage near the house of the deceased and found the deceased with bleeding injuries. The deceased was slightly conscious but was not able to speak. Nobody told PW4 who, the assailant was. If the deceased had made any statement regarding the assailant, people who gathered there would have learnt that from Crl.Appeal No.495/2005 10 PW3 or the wife of the deceased. According to PW1, his house is just 50 metres away from the house of the deceased. He stated that when he saw the deceased, the latter was unconscious. The deceased had not talked to him. PW1 should have reached the place where the deceased was lying immediately after the incident. PW17, Assistant Surgeon, Community Health Centre, Vellanadu deposed that he examined the deceased on 14.12.1999 at 8.00 p.m., the deceased was then unconscious, gasping, was clinically dead by 8.03 p.m. and the death was confirmed at 8.05 p.m. Evidence shows that the deceased had suffered a serious injury on the chest. Even PW3 has no case that apart from stating that Reji stabbed him, the deceased made any further statement. As against the evidence of PWs 1 and 4 regarding the condition of the deceased, what is available is only the version of PW3, son that the deceased did make a statement regarding the assailant. It is not shown by convincing evidence that the deceased was in a fit state of mind and body to make any statement. The wife of the deceased who would have been more competent to give evidence regarding the alleged statement of the deceased has not even been cited as a witness. Evidence of PW17 and Ext.P14 reveals that there was smell of alcohol when he examined the deceased. True, PW17 was unable to explain wherefrom the smell of alcohol emanated as according to him, it may Crl.Appeal No.495/2005 11 have been from the group of people who had come there along with the deceased. But there is no such explanation given by PW17 in Ext.P14 and going by that document smell of alcohol must or could have been from the deceased. Otherwise there was no need to mention that in Ext.P14. When a near relative of the deceased claimed in the above circumstances that the deceased made an oral declaration regarding the assailant, some corroborative material is required, as held by the Apex Court also in Arun Bhanudas Pawar v. State of Maharashtra [(2009) 1 SCC (Cri) 112] such corroboration is not available in this case. Hence we are not inclined to place implicit reliance on the evidence of PW3 regarding the alleged statement given by the deceased.
14. What remains is the evidence of PW5, the star witness of the prosecution. We have referred to his evidence. In short, his evidence is that he had closed his service station at Vellanadu at about 4 p.m. on the day of incident, returned to his house in his car and had parked the car on the road near the place of occurrence, went to his house on foot, returned by 7.30 p.m. to take the car to go to Vellanadu junction and that occasioned him to witness the incident. It is interesting to note that PW5 did not state the occasion for his going to the scene of occurrence at about 7.30 p.m. to PW16 in the Crl.Appeal No.495/2005 12 course of investigation. PW5 admitted that he had not even told PW16 about the car, not to say about parking the car near the place of occurrence and his coming back to that place to take the car. That being an all important matter, PW5 should and would have told the Investigating Officer about that, if that had really happened. It is not explained by PW5 what exactly was the reason or occasion for his allegedly parking the car on the road about 100-150 metres away from the place of occurrence rather that taking the car to his own house, going on foot to his house and then coming back to take the car at about 7.30 p.m.. Assuming that as PW5 claimed he wanted to go to Vellanadu junction, why did he park the car on the road near the place of occurrence rather than taking it to his house and from there, going to Vellanadu junction in that car itself? We note from the evidence of PW5 that he did not also say where exactly he had parked the car. House of PW5 is situated about 100-150 metres east of the place of occurrence. Ext.P11, sketch shows that the canal bund is situated on the west of Vallanadu-Kuthirakulam road and immediately on the east of the canal bund, the road lies parallel to the canal, north-south. About 35 metres east of the place of occurrence that road takes a turn towards east. From towards north of the place of occurrence the road goes towards west. If the house of PW5 is situated 100-150 metres east of the scene of occurrence, we do not find, Crl.Appeal No.495/2005 13 in the absence of any explanation from PW5 any reason for his parking the car somewhere on the road near the place of occurrence shown in Ext.P11. That version of PW5 appears to be quite strange. As against that version of PW5 what he told PW16 as seen from Ext.D1 is that PW5 had closed his service station at about 7 p.m., went home and saw the incident.
15. In chief examination PW5 stated that himself and others who gathered at the scene of occurrence took the deceased towards the side of his house, brought a tempo van and took the deceased to the hospital. PW5 stated that the deceased was wearing a lunki at the time of incident. Later he pleaded ignorance as to what exactly was the cloth the deceased was wearing. He was questioned why his own car which according to him was parked near the scene of occurrence was not used to take the deceased to the hospital. His answer was that on seeing the incident he was scared and went to inform Smt.Valsala, a relative of the deceased residing 100 metres away from the scene of occurrence. But what PW5 said in chief examination is that himself and others who gathered there went near the deceased and carried him towards the side of his house. PW5 then said that he was not among those who took the deceased towards the side of his house. PW5 was not able to say who had gathered at the scene of occurrence and taken the deceased towards the Crl.Appeal No.495/2005 14 side of his house. If as spoken by PW3 the deceased had gone to the courtyard of his house and collapsed there, there was no reason or necessity for PW5 to go to the house of Valsala, said to be a relative of the deceased. Moreover, when the house of the deceased was only about 100 metres away from the scene of occurrence, what was the necessity for PW5 to go to the house of Valsala is also not explained.
16. Another important aspect is regarding the availability of light at the scene of occurrence at the time of incident. True, in Ext.P11 it is shown that there are two electric posts on the road about 35 metres south and north of the scene of occurrence. But, it is not clear whether the bulbs on it were burning at the relevant time. As per the evidence of PW3 at the time the deceased proceeded towards the canal bund from their house at about 7 p.m. and even when the deceased came to the courtyard and collapsed, there was no supply of electrical energy as it was load shedding then. Even as per the version of prosecution incident occurred at about 7.25 p.m. and going by the evidence of PW3 there could not have been power supply at the relevant time. Learned Public Prosecutor, in order to salvage the situation submitted that there was no load shedding at the place of incident and that load shedding was only at the portion of the house of the deceased. But we do not find any Crl.Appeal No.495/2005 15 explanation in that way in the evidence of any of the prosecution witnesses. Therefore we find ourselves difficult to accept that explanation. Even in the absence of evidence regarding the availability of light in the aforesaid circumstances, we note that PW5 was specific about the site where the injuries were inflicted. So far as PW5 has no case that he had been to the canal bund which itself is just over five metres from the road even if it is assumed that PW5 was somewhere on the road, he could not have in the normal course seen the exact site where injuries were inflicted.
17. Yet another aspect we came across is the evidence of PW5 that immediately after the incident, the Circle Inspector (PW16) had been to the scene of occurrence. PW5 was specific that about an hour after the incident, the Circle Inspector and party had been to the scene of occurrence and he had told the Circle Inspector (about the incident) in the way he deposed in court. We find corroboration to the version of PW5 about the Police reaching the scene of occurrence immediately after ..................... from PW17 who claimed that immediately after the deceased was brought to the Community Health Centre, Vellanadu, he had 'informed' the Police about that. Learned Public Prosecutor contends that PW17 may have sent intimation to the Police which could have reached the Police Station only on the next day of the Crl.Appeal No.495/2005 16 incident. But PW17 was specific that he 'informed' the police about the matter within 15 minutes. When PW5 allegedly told PW16 about the incident on 14.12.1999 itself immediately after the incident that statement ought to have been recorded and a case registered. That did not happen and instead, case is registered by PW15 only on 15.12.1999. These circumstances also create suspicion on the case of prosecution. In the circumstances of the case, we are not inclined to accept the evidence of PW5 without sufficient corroboration.
18. So far as MO2 is concerned, we notice from Ext.P9 that MO2 was stained with human blood. But on the facts of this case as we have not placed reliance on the evidence of PWs 3 and 5, recovery of MO2 by itself is of no consequence even if it is assumed that its recovery on the information allegedly given by the appellant is proved.
19. On the facts, evidence and circumstances of this case, we hold that the prosecution has not succeeded in proving the guilt of the appellant beyond reasonable doubt. Appellant is entitled to the benefit of doubt. His conviction and sentence are liable to be set aside. We direct the learned Additional Sessions Judge to issue necessary direction regarding disposal of the material objects after the time for Special Leave Petition is over. Crl.Appeal No.495/2005 17
Appeal succeeds. Conviction and sentence of the appellant are set aside and he is acquitted of the charge against him. He shall be released forthwith if not required to be detained otherwise.
A.K.BASHEER, Judge.
THOMAS P.JOSEPH, JUDGE.
cks Crl.Appeal No.495/2005 18 A.K.BASHEER & THOMAS P.JOSEPH, JJ.
Crl.Appeal No.495 of 2005
JUDGMENT 27th January, 2009.