Kerala High Court
Chandran Nair vs State Of Kerala on 20 January, 2014
Author: A.M.Shaffique
Bench: A.M.Shaffique
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
&
THE HONOURABLE MR. JUSTICE P.SOMARAJAN
WEDNESDAY, THE 15TH DAY OF NOVEMBER 2017/24TH KARTHIKA, 1939
CRL.A.No. 533 of 2014 (D)
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AGAINST THE ORDER/JUDGMENT IN SC 649/2011 of I ADL.D.C., TRIVANDRUM
DATED 20-01-2014
CRIME NO. 67/2007 OF CHIRAYINKEEZHU POLICE STATION ,
THIRUVANANDAPURAM
APPELLANT(S):
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CHANDRAN NAIR ,
C.NO.8954 ,
CENTRAL PRISON, TRIVANDRUM
BY ADV.A .S FARIDIN(STATE BRIEF)
RESPONDENT(S):
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STATE OF KERALA,
REPRESENTED BY DGP,
HIGH COURT OF KERALA.
BY PUBLIC PROSECUTOR SRI.NICHOLAS JOSEPH
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 14-11-
2017, THE COURT ON 15-11-2017 DELIVERED THE FOLLOWING:
A.M. SHAFFIQUE & P.SOMARAJAN, JJ.
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Crl.Appeal No. 533 of 2014
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Dated this, the 15th day of November, 2017
J U D G M E N T
Shaffique, J.
This appeal is filed by the accused in SC No.649/11 challenging judgment dated 20/1/2014 by which he was convicted and sentenced to undergo imprisonment for life and to pay a fine of `2 lakhs in default of which to undergo RI for two years for offence punishable u/s 302 of IPC, RI for one year for offence punishable under Section 323 of IPC and sentenced to fine of `500/- in default of which to undergo imprisonment for one week for the offence punishable u/s 341 of IPC.
2. The prosecution alleged that one Viswambharan (the deceased) had a fight with the accused on 16/2/2007 at around 12.30 p.m. The occassion for the fight was on account of the accused abusing PW1, niece of the deceased, in front of her shop. During the confrontation, the accused inflicted several blows on the deceased on his face and chest. He was pulled down. The accused CRA No.533/14 -:2:- thereafter lifted Viswambharan's head and repeatedly hit on a concrete stump of a side wall with an intention to kill him. Deceased suffered fatal bleeding wounds on his head and forehead. The accused thereafter pushed him down into a low lying paddy field and inflicted injury on both knees, nose, right thigh etc., and on account of the said impact of the head injury, he died. The nephew of the deceased lodged a complaint before the Sub Inspector of Police, Chirayinkeezh Police station. Crime No.67/2007 was registered alleging offence punishable u/s 294(b) 323, 341 and 302 of IPC. The investigation was conducted by the Circle Inspector of Police, Attingal and final report was submitted by his successor before the Judicial First Class Magistrate Court, Attingal. The case was committed to the Court of Sessions. The accused appeared. Charge was framed in SC No.649/2011. Accused pleaded that he was not guilty of the charges. Court below examined PWs1 to PW13 and marked Exts.P1 to P20. MO1 to MO10 were identified and proved. The accused was questioned under 313 Cr.P.C. He denied the incriminating statements against him. The Court below however found that the accused was guilty of the charges levelled against him and accordingly convicted and CRA No.533/14 -:3:- sentenced him as stated above.
3. Since the appellant could not engage a counsel for appearing in the case, Adv.Sri.A.S.Faridin was appointed as counsel. He argued the case on behalf of the accused. It is argued that the prosecution could not prove the case beyond reasonable doubt. The eye witnesses who have been examined in the case have turned hostile. There was no other material to connect the accused with the crime. Court below placed reliance upon MO10, the shirt which the accused was allegedly wearing at the relevant time. The shirt was seized when the accused was in police custody and there is no recovery in terms of S.27 of the Evidence Act. The Court below completely erred in placing reliance on the testimony of witnesses who had turned hostile and that of the investigating officer to convict the accused.
4. On the other hand, learned Public Prosecutor having argued on the basis of the materials made available, supports the view taken by the Court below.
5. Before proceeding further, it will be useful to refer to the cause of death. The deceased was 68 years at the relevant time. PW5 has conducted post mortem and Ext.P3 is the post CRA No.533/14 -:4:- mortem certificate dated 17/2/2007. Following are the ante- mortem injuries sustained by the deceased:-
"1. Lacerated wound 1x0.5x0.3 cm surrounded by abrasion 1.5x1cm, on its left side on the left side of forehead 2 cm above inner end of eyebrow.
2. Lacerated wound 2.5x1x0.5cm, obliquely placed on left side of forehead its lower inner end on the middle 5.5 cm above root of nose.
3. Lacerated wound 5x2.5x0.5 cm oblique, on left side of head, its lower front end 3 cm above top of ear. Left temporalis seen contused in its whole thickness.
Brain showed bilateral subdural and subarachnoid blood with signs of raised intracranial tension.
4. Abrasion 2x0.5 cm on left side of root of nose.
5. Abrasion 1x0.5 cm on right side of nose 1cm above ala of nose.
6. Graze abrasion 5x3 cm vertical on the outer aspect of right thigh 15 cm below the top of hip bone.
7. Abrasion 0.5x0.5cm on the front of right knee.
8. Abrasion 0.5x0.5 cm on the outer aspect of left ankle.
9. Abrasion 3x2 cm on the front of left knee.
10. Abrasion 1.5x1cm on the back of root of left little finger.
11. Abrasiosn 0.5x0.5 cm each on the back of CRA No.533/14 -:5:- root of left middle and ring fingers.
12. Abrasion 0.5x0.5 cm on the back of left elbow.
13. Abrasion 1x1 cm on the inner aspect of left elbow.
14. Multiple small abrasions over an area 4x3 cm on the back of left shoulder.
Air passages were congested and contained blood stained froth. Lungs were congested and oedematous. Stomach was half full with firm rice, pieces of onion and other unidentifiable food particles having an alcohol like smell, mucosa congested. Liver showed fatty change. Urinary bladder was full with clear urine. All other internal organs were congested, otherwise normal.
The blood group of the deceased determined at the Blood Bank, MCH, Thiruvananthapuram was found to be "O" Rh positive.
Viscera and samples of blood and urine were preserved and went for chemical analysis.
Sample of scalp hair (as requested by the investigating officer and the powdery particles sticking to injury No.2 collected in cotton swab were handed over to PC No.5906 in sealed packet."
6. The Doctor who was examined as PW5 deposed that the death of the injured was on account of the injury caused to the head. There is no dispute about the fact that the Doctor also explained that the injuries cannot be caused by a single fall whereas the injuries would have occurred due to forceful contact CRA No.533/14 -:6:- with a hard object or surface during a scuffle. Apparently, this is an instance where the death of the deceased was caused due to culpable homicide.
7. Next question is whether the accused is involved in the crime. Unfortunately, in this case, all the eye witnesses turned hostile. PW1 in her chief examination stated that she knew the accused. She is running a shop. Deceased Viswambharan is her uncle. On a particular day, when she was in her shop, the accused along with two others came to the shop. Her uncle was sleeping in a room beneath the shop room. The accused and others asked for cigarette. She supplied the same. All the three were talking aloud. Her uncle was drunk. Her uncle had to give evidence in a pathway dispute before Court after a few days. Her uncle thought that the persons who had come had connection with the said dispute and was trying to create problems. He suddenly came up and started a fight. He fell in the nearby paddy field. The accused nor any other person has abused her. In cross examination Exts.P1(a) and P1(b), the earlier statements were marked.
8. PW2 is the sister-in-law of PW1. She also stated that there was a confrontation with the accused and deceased in front CRA No.533/14 -:7:- of PW1's shop. After some time, they found their uncle lying in the paddy field below the road. Her husband came and took him to the hospital. A few feet beyond the shop room, there was a fight with accused and deceased. She also turned hostile and was cross examined and Ext.P2, an earlier statement was marked. She also identified the signature in Ext.P1, FI statement. She identified MO6, the lungi deceased was wearing at the relevant time.
9. PW3 is one Thulasi who knew the accused. He also turned hostile. He was not cross examined.
10. PW4 is one Muraleedharan who knew the accused. He deposed that he has not seen the incident. He was not cross examined.
11. PW5 is the Dr.P.Rema who conducted the post mortem. According to her, death was due to cerebral hemorrhage due to the head injury. She states that injury No.3 alone would be sufficient to cause death which can be caused due to a single impact. She also deposed that injury Nos. 4 to 14 cannot be caused by single fall but by multiple falls.
12. PW6 is an attestor to Ext.P4 inquest report. CRA No.533/14 -:8:-
13. PW7 was the Assistant Director (Biology), Forensic Science Lab, Thiruvananthapuram. He has inspected the scene of occurrence in the above crime and collected various items and his report is Ext.P5. He has also identified MO2 series, MO3 series, MO4 and MO5.
14. PW8 is the Director, Serology, FSL, Thiruvananthapuram. He had analysed various items sent for examination and his report is marked as Exts.P6 and P7.
15. PW9 is the Assistant Chemical Examiner who had issued Ext.P8 report. According to him, the result of examination would show the presence of Ethyl alcohol in items 1 to 4 which are the viscera of the deceased.
16. PW10 is the Village Officer who had prepared Ext.P9 site plan.
17. PW11 has registered First Information Report Ext.P10
(a) based on the FI statement Ext.P10
18. PW12 is the investigating officer who had completed the investigation.
19. PW13 is the officer who had submitted the final chargesheet before Court.
CRA No.533/14 -:9:-
20. Ext.P10 is the First Information Statement and Ext.P10
(a) is the FIR. The signatory to Ext.P10 has not been examined. However, it is marked through PW2 as well as PW11 who was the Sub Inspector of Police at the relevant time. But it is trite law that unless the signatory to Ext.P10 gives evidence before Court, the statements thereon cannot be used as evidence against the accused. Statement recorded by PW11 can only be used for the purpose of contradiction or omission. Therefore, what was required in the case was independent evidence regarding the incident. As already stated, the eye witnesses have turned hostile. They were not properly cross examined. In the result, there is no proof regarding either motive or the commission of the offence. The only evidence is the presence of he accused at the relevant time. But, accused alone was not present. There were two others. From the materials placed, the question is how the complicity of the accused can be related to the commission of offence. The only other material is the MO10 shirt belonging to the accused. MO10 shirt contains blood group O. There is no material to indicate that the deceased was having the same blood group. In Ext.P5, certain blood stains, stone, soil etc., had been collected by the Doctor CRA No.533/14 -:10:- PW7. In the report Ext.P6, it is stated that items 1, 2, 3(a), 3(b), 4 to 6 and 8 contained human blood belonging to the Group O. Those items were one lungi which belongs to the deceased, small mass of cotton wool with dark brown stains, a tuft of black and grey hairs, two pebbles, three stones with dark brown stains, small quantity of dark brown soil and one dirty full sleeve shirt with white brown, grey and black lines. It is reported that the blood stains were found to be belonging to the Group O. The Court below placed reliance on the blood group in MO10 shirt and the answers given by him in his examination under 313, to come to a conclusion that the discovery of the shirt is relevant under Section 8 of the Evidence Act. It is stated that recovery of MO10 under Ext.P18 seizure mahazar is a relevant piece of evidence which bears the blood stains of the deceased. Ex.P18 is the seizure mahazar prepared on 26/2/2007. The incident happened on 16/2/2007. The shirt is recovered from a place 250 metres away from the scene of occurrence. Apparently, there is no evidence to indicate that MO10 belongs to the accused. There is no evidence to prove the said fact other than the knowledge derived by the investigating officer. Of course, it contains the CRA No.533/14 -:11:- blood group O. But, what should be considered is whether the shirt belongs to accused and what exactly is the blood group of the accused. PW12 has been cross examined and the investigating officer clearly stated that the shirt was not obtained after getting information from the accused. The suggestion by the defence was that the said shirt was worn by the accused. At any rate, there is nothing to connect the accused with MO10 shirt. When questioned under 313 Cr.P.C. to question No.36, with reference to the identity of the shirt MO10, his answer was that it is not correct and that when MO10 was shown to witness, he said it does not belong to him.
21. Placing reliance on MO10 and assuming that it belongs to the accused, in the absence of any evidence, had clearly resulted in miscarriage of justice.
22. Of course, the Court below had proceeded on the basis that the numerous injuries on the deceased would show that the victim was subjected to severe attacks on account of which he had succumbed to the injuries. But unless there is evidence before Court to prove the complicity of the accused to the crime, and when all the eye witnesses have turned hostile, and the only CRA No.533/14 -:12:- fact that was proved was a confrontation between a few persons and the deceased at the relevant time, it may not be possible for any Court to convict the accused with such scanty material. Cross examination of the witnesses who have turned hostile and the testimony of PW12 are not enough to convict the accused.
23. In the result, we are of the view that Court below committed serious error in convicting the accused by finding him guilty. In the light of the fact that no evidence worth consideration has been adduced by the prosecution to prove the case against the accused beyond reasonable doubt, the judgment of the Court below is liable to be set aside.
Accordingly, the appeal is allowed. We set aside the conviction and sentence of the accused and he is acquitted of the charges levelled against him. The accused shall be released forthwith, if his presence is not required in any other case.
Sd/-
A.M. SHAFFIQUE, JUDGE Sd/-
P.SOMARAJAN, JUDGE Rp //True Copy// PS to Judge