W/O Of The Deceased vs Vinod on 30 January, 2019

[Cites 12, Cited by 0]

Kerala High Court

W/O Of The Deceased vs Vinod on 30 January, 2019

The appeal is filed by the State challenging judgment dated 5/11/2009 in SC No.49/2008 of the Sessions Court, Alappuzha by which the accused had been acquitted for offence charged under Sections 302, 323 and 324 r/w 34 of I.P.C. Crl.Revision Petition has been filed by wife of the deceased against the very same judgment of acquittal.

2. The short facts of the case are as under:-

Kuttan @ Anandakuttan was found dead in a coconut fibre pond at 6 am on 27/3/2006. The Cherthala Police registered crime No.129/2006 on the basis of a statement given by PW1. Crime was registered alleging offences under Sections 302, 323 and 324 r/w S.34 of I.P.C. After conducting investigation, final report was filed before the Judicial First Class Magistrate Court-I, Cherthala by PW16. The matter was remitted to the Sessions Court, and after completing the trial and other procedural formalities, the accused were acquitted. Prosecution alleged that there was a confrontation between two groups of persons relating Crl.Rev.Petition No.1311/10 & Crl.Appeal No.2117/10 -:6:- to catching of fish at Vaattathuruthu in Vembanad Kayal. The deceased and PW2 were jointly doing the fishing operations. On 26/3/2006, by 5.30 p.m., they proceeded to Vembanad Kayal in a canoe for fishing. They placed their net on the east of Vaattathuruthu for catching fish. A3's canoe was also placed on the northern side of their canoe. There was an altercation between both the groups and a quarrel ensued. The deceased caught hold of the neck of A1 and he fell down inside the canoe. He suffered an injury on his knee. On seeing the aforesaid incident, A3 called back A1 and A4 and they were asked to go back to the river bed. The accused did not do any fishing and they went back. After fishing, deceased and PW2 returned and at about 7.30 pm, they reached the kadavu on the eastern side of their house. When deceased got down from the canoe to the river bed, 2nd accused exhorted to kill him and started beating him. A1 took an oar and hit the deceased on his head. Accused 1 and 2 started beating deceased with stick and their bare hands. Deceased ran towards west, A1 ran behind him with the oar. When PW2 came down, A2 to A4 started beating him with stick and with their bare hands. When PW3 and PW11 came to the Crl.Rev.Petition No.1311/10 & Crl.Appeal No.2117/10 -:7:- scene, they were also beaten up. On hearing the hue and cry, people in the neighbourhood and the inmates of PW2's house came running. After sometime, the deceased came to PW2's house. He was having a wound on his head and was bleeding. PW2 and PW11 took the deceased to the nearby Panachickal hospital. The wound on his head was dressed and they returned. They returned saying that they would consult the Doctor on the next day morning. All of them along with PW3 and PW12 went back to the river bank for collecting fish from the net. Deceased did not join. He was standing near a coconut tree. Since it was raining, he was asked to go to his house. Deceased tied a towel around his head and went towards north. By about 9.00 pm, PW2 contacted the wife of deceased over telephone. He was informed that the deceased did not reach there. They conducted a search, but they could not locate the deceased. PW2, PW3, PW11 and PW12 went to the Government Hospital, Cherthala and they took treatment as outpatient. They took an Out Patient ticket for the deceased but he did not come till 11.30. p.m. They went back to their house and though they enquired about the deceased, he could not be located. They conducted a search in the nearby Crl.Rev.Petition No.1311/10 & Crl.Appeal No.2117/10 -:8:- places, but they could not find him. On 27/3/2006, at 6 a.m, they found Anandakuttan lying dead inside a coconut fibre pond.

3. In order to prove the aforesaid case, prosecution examined PW1 to PW17 and relied upon Exts.P1 to P26. MO1 to MO9 were the material objects produced and proved. Defence relied upon the oral testimony of DW1 to DW4 and marked Exts.D1 to D9.

4. The learned Public Prosecutor and the learned counsel for the revision petitioner had raised common arguments. According to them, sufficient oral testimony was available through the deposition of eyewitnesses to prove that the deceased sustained a head injury on 26/3/2006. Scientific evidence would prove that the deceased died due to the head injury sustained by him in the said incident. When such facts remain proved, the involvement of the accused also stands proved and the Court below committed serious error in acquitting the accused for want of evidence.

5. On the other hand, learned counsel appearing for the respondent/accused contended that first of all, the evidence adduced in the case is not sufficient to prove that the deceased Crl.Rev.Petition No.1311/10 & Crl.Appeal No.2117/10 -:9:- died on account of the injury suffered by him at the hands of the accused. It is in evidence that after the incident which happened at 5.30 p.m on 26/3/2006, the deceased along with PW2 and PW11 had gone to a nearby nursing home and first aid was given. The deceased had no problem at the relevant time. Thereafter the evidence indicates that the deceased had gone to his house. The dead body was found only at 6 am on the next day. In between the aforesaid period, what happened to the deceased is not known and no investigation was conducted in that regard. From the evidence of PW2, PW11 and PW12, it can further be seen that they decided to go the General Hospital, Cherthala for treatment. But, according to the said witnesses, deceased did not reach there. The witnesses did not suffer any injuries. They were not admitted in the hospital. Such being the position, in the absence of any material to conclude as to what happened to the deceased after the incident, the Court below was justified in acquitting the accused.

6. Learned senior counsel also placed before us the proposition that, while sitting in appeal, this Court can interfere only in instances where the Court below had acquitted the Crl.Rev.Petition No.1311/10 & Crl.Appeal No.2117/10 -:10:- accused without referring to the materials on record or if it was found that there is perversity in the findings or sufficient material which was available had not been relied upon. In the case on hand, it is argued that Court below having considered the entire issues, there is no reason for this Court to interfere with the double presumption of innocence.

7. The following judgments had been placed before us:-

(i) Kalyan and others v. State of U.P. (AIR 2001 SC 3976). This judgment had been cited for the proposition that the High Court while considering an appeal against acquittal should interfere only if there are compelling reasons. When the accused goes for trial, there is a presumption of innocence which is reinforced by the order of acquittal. Merely for the reason that a different view is possible, will not be sufficient to overturn a judgment of acquittal.

(ii) In Gopal Singh and Others v. State of M.P. [(2010) 6 SCC 407], it was held that though the High Court is entitled to re-appreciate the evidence, unless there are substantial and compelling reasons for setting aside an order of acquittal, and the view taken by the Court below is a possible view, the High Court Crl.Rev.Petition No.1311/10 & Crl.Appeal No.2117/10 -:11:- will not be justified in interfering with the same.

(iii) The very same propositions have been laid down in Harbeer Singh v. Sheeshpal and others (AIR 2016 SC 4958), Mahavir Singh v. State of M.P. (AIR 2016 SC 5231), Madathil Narayan v. State of Kerala [2017 (1) KLD 350 (SC)], Hakeem Khan and Others v. State of M.P. [(2017) 5 SCC 719] and Babu v. State of Kerala (ILR 2010 (4) Ker.1).

8. We do not think that there could be any dispute regarding the manner in which the Appellate Court can interfere with the findings of the Sessions Court. The question would be, whether in the facts of the present case, there is any material to take a different view from what has already been decided by the learned Sessions Judge, keeping in mind the law on the subject.

9. Before proceeding further, it will be useful to narrate the nature of evidence that had been adduced in the case.

10. PW1 has given Ext.P1 FIS. PW15 the Sub Inspector of Police, Cherthala Police Station recorded Ext.P1 on the basis of which crime was registered. Ext.P12 is the FIR. He conducted inquest on the dead body and prepared Ext.P3 inquest report. Investigation was taken over by PW17, Circle Inspector of Police Crl.Rev.Petition No.1311/10 & Crl.Appeal No.2117/10 -:12:- who visited the place of occurrence and prepared Ext.P4 scene mahazar. Initially, the crime was registered u/s 174 Cr.P.C and after questioning the witnesses and preparing the scene mahazar, PW17 had filed a report altering the offence to one under Sections.302 and 324 of I.P.C. The accused were arrested on 28/3/2006 and the oar was recovered based on the statement of the first accused.

11. PW2, PW3, PW11 and PW12 are the eyewitnesses to the occurrence. PW4 is the Village Officer who had prepared Ext.P2 scene plan. PW5 was the Nursing Assistant at St.Joseph's Hospital. She had dressed the wound of the deceased on 26/3/2006. PW6 is an attestor to Ext.P3 inquest report. He also proves MO1, MO3 and MO4 which are the shirt, lungi and towel of the deceased. MO6 and MO7 were also seized from the dead body of the deceased at the time of inquest. PW7 is an attestor to Ext.P4 scene mahazar and PW8 is an attestor to Ext.P5 seizure mahazar relating to recovery of MO2 lungi and Ext.P6 is the recovery mahazar relating to recovery of MO5 oar. PW9 was the Head Constable who is attached to the Circle Inspector of Police Cherthala and is an attestor to Ext.P7 recovery mahazar. PW10 Crl.Rev.Petition No.1311/10 & Crl.Appeal No.2117/10 -:13:- was a partner of 3rd accused. He deposed regarding the incident which happened at Vembanad Kayal. PW13 was the Civil Surgeon of Taluk Headquarters Hospital, Cherthala. He examined PW12, PW11 and PW2 and issued Exts.P8, P9 and P10 certificates respectively. PW14 conducted autopsy on the body of deceased and Ext.P11 is the post-mortem certificate. Ext.P25 FSL report was also proved through PW17. DW1 is the Medical Record Librarian in Taluk Headquarters Hospital, Cherthala. She is examined to prove Exts.D4 to D7 wound certificates which related to the accused. DW2 is Dr.Krishnan. He is the Assistant Professor in the Department of Forensic Medicine in MES Medical College, Pathanamthitta. He is examined to disprove the findings in Ext.P11 post-mortem certificate. DW3 produced the attested copy of chemical analysis report of blood and viscera of the deceased which is marked as Ext.C1. DW4 was the Sub Inspector of Police attached to Cherthala Police Station.

12. Ext.P11 is the post-mortem certificate and the following were the ante-mortem injuries noticed by PW14.

"1. Lacerated wound of 3x2 cm skin deep on the right side of head. 7 cm above right ear, swelling 5x5 cm on and around it. Scalp was contused internally 14x7 cm Crl.Rev.Petition No.1311/10 & Crl.Appeal No.2117/10 -:14:- on the back and top of head. Skull showed fissured fracture 14 cm involving the back part of both parietal bone. Brain showed contusion 3x3 cm underneath the above injury and also showed diffuse subarachnoid haemorrhage bilaterally.

2. Abrasion 2x1 cm on the right side fo the under surface of chin.

3. Abrasion 1x1 cm on the back of right elbow.

4. Abrasion 3x1 cm on the left side of back of chest 8 cm outer to midline and 15 cm below top of left shoulder."

13. PW14, the Doctor who conducted post-mortem, had opined that the death was due to the combined effect of head injury and drowning. He further opined that injury No.1 is fatal and sufficient in the ordinary cause of nature to cause death and the said injury would have initiated the process by which final death was caused by drowning. Evidence of PW5, the Nursing Assistant of St.Joseph's hospital would show that the deceased approached her at 8 pm on 26/3/2006 for consulting the Doctor. Since the Doctor was away at his quarter, he wanted his wound to be dressed. She deposed that, at that time, he had injury on the head at the middle above the right ear. The Court below found that the medical evidence is sufficient to conclude that death of the deceased is a homicide. Thereafter, the evidence of Crl.Rev.Petition No.1311/10 & Crl.Appeal No.2117/10 -:15:- the witnesses were considered. It was observed that though PWs 1 to 3, 11 and 12 are one way or other related to the deceased, that by itself is not a reason sufficient enough to hold that they are interested. However, it is stated that though the witnesses have given a consistent version regarding the substratum of the prosecution case, there are several suspicious circumstances in the evidence of PWs1 to 3, 11 and 12. Their evidence regarding the manner and circumstances under which the occurrence took place, the manner and circumstances under which the law was set in motion, the manner in which the deceased and others undertook treatment and the manner in which the death of deceased had taken place was found to be highly suspicious and doubtful. First of all, it is observed that PW2, PW3 and PW11 could not say on which part of the head of the deceased the accused had inflicted a blow with MO5 oar. PW2, PW3 and PW11 did not even see that the deceased suffered a wound on his head. PW11 deposed that though the deceased suffered a wound on his head, he did not see any blood coming out from the wound. The evidence of witnesses indicates that first accused was holding MO5 oar with both his hands and he inflicted a blow on the head Crl.Rev.Petition No.1311/10 & Crl.Appeal No.2117/10 -:16:- of the deceased. It is observed that if the hit was so hard, and that too with MO5 oar, in all probability, there is chance for heavy bleeding. Further, though the witnesses stated that first accused had inflicted the blow with MO5 oar on the deceased, he did not beat again. According to the witnesses, he later started beating him with his hands, which is also a suspicious circumstance. The witnesses have also stated that the 2 nd accused had beaten the deceased with a stick, but there is no visible injury of such a beating. PW2 saw the deceased at his house later. But did not see any other injury except the injury on his head and chin. Ext.P11 post-mortem report shows that he was having two more abrasions on the back of right elbow and on the left side of back of chest. How the deceased had sustained such injuries had not been explained. Evidence of PW1 shows that on hearing the hue and cry, he had come to the scene and he saw PWs 2, 3 , 11, 12 and the deceased in the house of PW2. Place of occurrence according to the prosecution is not in front of the house of PW2, but near the river bed. It was further found that though PWs 2, 3, 11 and 12 stated that they had injures like swelling and contusion, Exts.P8 to P10 and evidence of PW13 shows that there Crl.Rev.Petition No.1311/10 & Crl.Appeal No.2117/10 -:17:- was no external injury on their body. They only complained of pain. The place of occurrence stated in the alleged cause before PW13 is also inconsistent with the place of occurrence spoken to by witnesses. Before PW13, all these witnesses stated that they were attacked near their house and not at the river bed. The Court below found that there is some significance in the place of occurrence. Comparison was made with Exts.D4 to D7 wound certificates produced by DW1. Those were wound certificates of accused. They had gone to hospital even before PWs 2, 3, 11 and 12 had gone to Taluk Hospital. Accused mentioned that they were attacked at Vembanad Kayal and at their house. Ext.D4 would show that the accused had abrasion in front of both the knees. In Ext.D5 it was stated that the deceased and PW3 had attacked him in his house. Ext.D6 would show that the accused was attacked by PW2, his father Kuttappan and PW3 at his house. Ext.D7 would show that A4 was attacked at Vembanad Kayal by deceased and PW2. It is in the said circumstances that the Court below found that the place of occurrence substantially differs and there is doubt regarding the same. Court also observed that the manner in which the four witnesses had obtained treatment also Crl.Rev.Petition No.1311/10 & Crl.Appeal No.2117/10 -:18:- raises suspicion. First of all, they did not consult the Doctor at St.Joseph's Hospital, Pallippuram. Deceased has a wound which was got dressed. PW5 deposed that deceased told her that he sustained injury due to a fall from the bike. PW12 stated that he was not aware of what the deceased reported at St.Joseph's hospital regarding the injury he had suffered. Court below also observed that though deceased was not found from the previous day night, FIS was lodged only after finding him dead and FIS was given by PW1. In the FIS, PW1 has only stated that there was a quarrel between two groups at the kayal and at the river bed and the deceased suffered an injury on his head. Crime was registered under S.174 Cr.P.C. It is further found that none of the occurrence witnesses has stated the exact time of death. Evidence of PW12 would indicate that, after collecting the fish, they had gone to the house through the side of the pond and at that time they did not see the deceased in that place. They also conducted a search at that place after coming to know that deceased was missing. Therefore, it was found that the deceased falling into the pond at 9 p.m is highly suspicious and doubtful.

14. Yet another factor which was highlighted by the Court Crl.Rev.Petition No.1311/10 & Crl.Appeal No.2117/10 -:19:- below in having a doubt regarding the prosecution case, is regarding the finding in Ext.C1. Ext.C1 is the chemical analysis report regarding the stomach and part of the intestine of the deceased. It is reported that it contained 80.5 ml of ethyl alcohol per 100 ml of the sample. It is further observed that none of the occurrence witnesses has stated that deceased consumed alcohol between 5 pm and 9 pm. The Court below observes that when the witnesses do not speak about the time he took food and consumed liquor, a serious doubt would be created as to what happened after he left St.Joseph's Hospital and whether anything else happened between the deceased and any other person. It was also found that the res gestae evidence u/s 6, the conduct of the accused u/s 8 and dying declaration u/s 32 of the Indian Evidence Act had not been established. There is only evidence to show that the accused had beaten the deceased with an oar. The Sessions Judge disbelieved the version of PW1, since he never gave a statement before the police at the time of giving Ext.P1 or when he was questioned subsequently that the deceased had given him a narration of events.

15. Similarly, MO5 oar was recovered from the shed Crl.Rev.Petition No.1311/10 & Crl.Appeal No.2117/10 -:20:- situated towards the north-east of the kitchen of the first accused under Ext.P6 mahazar. It was not at all in a concealed state and therefore the court below found that in so far as there is no concealment, it is not a recovery in terms of S.27 of the Evidence Act. It is only an oar which is commonly used for rowing a canoe. In Ext.P25 FSL report, though it was stated that blood was detected in MO5, the origin could not be identified. It was therefore found that there is nothing incriminating in the oar to implicate the accused. Finally it was observed that there is inconsistency between the oral testimony of eyewitnesses and the evidence of PW14 with reference to post-mortem findings which is also an added factor to give the benefit of doubt to the accused. Court below also placed reliance on the testimony of DW2 and it was found that the opinion expressed by DW2 is more acceptable.

16. As already mentioned, our endeavour is to find out whether the aforesaid findings of the Court below are based on sufficient materials, and if so, whether there is any perversity in the said findings. If the approach taken by the Court below is a possible view based on the evidence before it, we do not think Crl.Rev.Petition No.1311/10 & Crl.Appeal No.2117/10 -:21:- that we will be justified in interfering with the order of acquittal.

17. First of all, it will be useful to consider the oral testimony of PW1, PW2, PW3, PW11 and PW12. PW1 of course had not seen the incident by which the deceased sustained injury on his head. But, according to him, he saw the deceased at 7.30 pm on 26/3/2006 with bleeding wound on his head. When he enquired about the same, the deceased told him that the first accused had beaten him on his head with an oar and accused 2 to 4 had attacked him. He also referred to the incident which occurred while doing fishing operation. He asked the deceased to go to hospital. Deceased came back after getting the wound dressed. Thereafter, the deceased was missing and in the morning of 27/3/2006, deceased was found dead at the nearby coconut fibre pond.

18. PW2 also deposed regarding the incident which happened during fishing operation and he further deposed that once they came to the bank of the kayal and deceased got down, 2nd accused exhorted others to kill him and A1 inflicted a blow on the head of deceased by the oar. Thereafter the other accused started beating him with hand and stick. The deceased cried Crl.Rev.Petition No.1311/10 & Crl.Appeal No.2117/10 -:22:- aloud and ran towards west and A1 followed him. PW2 was also attacked by accused Nos. 2 to 4. When PW3, PW11 and PW12 came, they were also beaten up. Thereafter, people in the locality came and they proceeded to PW2's house. While sitting there, deceased also came. He found blood oozing from his head. Deceased was taken to Panachickal hospital by PW11 and PW12 and another person. They came back after getting the wound dressed. Deceased did not meet the Doctor and the wound was dressed by a Nurse and he came back saying that he would meet Doctor on the next day. Thereafter, deceased, PWs 2, 3, 11 and 12 went to the kayal kadavu for collecting the fish. While so, deceased was standing nearby a coconut tree. He was asked to go home since heavy rain and wind was about to pass. Tying a towel on his head, deceased walked towards north. Later, PW2 called deceased's wife and enquired about him. She told him that he did not reach there. Though they conducted a search, he could not be found. Since they have body pain, PW2 and others went to the hospital informing the relatives of deceased to come to the hospital and that they would take an OP ticket for Anandakuttan (deceased). Deceased did not come to the hospital till 11.30 p.m. Crl.Rev.Petition No.1311/10 & Crl.Appeal No.2117/10 -:23:- They came back and made enquiry in the locality and ultimately he was found on the next day at 6 a.m lying dead in the coconut fibre pond.

19. PW3 is the brother of PW2. He also spoke in terms with the narration of events as given by PW2. Same evidence was given by PW11 and PW12 as well. Therefore, from the oral testimony of PW2, PW3, PW11 and PW12, it is rather clear that the first accused had inflicted a blow on the head of the deceased. There were no other injuries on PW2, PW3, PW11 and PW12 and according to them, they had only pain and that is evident from the medical certificates produced in the case. But it should be remembered that when the deceased had gone to St.Joseph's Hospital, he was given first aid and it seems that, to avoid any case, he informed the Nurse that he fell from a motor bike. The question that may arise for consideration would be whether death occurred on account of the injury inflicted by A1 on the deceased. The autopsy report and the evidence of the Doctor (PW14) is that death was on account of the injury as well as drowning. It is further stated by the witnesses in evidence that after 9.00 p.m, no one has seen the deceased. He did not Crl.Rev.Petition No.1311/10 & Crl.Appeal No.2117/10 -:24:- reach home and his dead body was found next day morning at 6.00 am. What happened to the deceased in between is not known. The medical evidence of PW14 has been sought to be controverted by the testimony of DW2. It is therefore necessary to consider the evidence of PW14 and DW2 in order to evaluate the respective contentions regarding the cause of death. As already stated, the Court below had found that going by the evidence of PW14, DW2 and Ext.P11 post-mortem findings, it is highly suspicious and doubtful whether the deceased sustained a forceful hit at the middle of his head, causing the fissured fracture on the back of the parietal bone and the same is the cause of death. It is found that the medical evidence and the postmortem findings are also inconsistent with the prosecution case that the deceased was beaten by A1 with MO5 oar causing external injury as well as internal injury resulting in his death. Of course, the court below had also expressed doubt as to whether occurrence was in the manner as stated by the prosecution.

20. PW14 was the Associate Professor, Forensic Medicine, Medical College Hospital, Alappuzha. Apparently, the injury on the head was a lacerated wound 3x2 cm skin deep on the right Crl.Rev.Petition No.1311/10 & Crl.Appeal No.2117/10 -:25:- side of the head and 7 cm above right ear with a swelling 5x5 cm on and around it. There was contusion internally 14x7cm on the back and top of the head. The skull showed fissured fracture 14 cm involving the back part of both parietal bone. The brain showed contusion underneath the injury and also showed diffused subarachnoid hemorrhage bilaterally. According to the Doctor, death was due to combined effect of head injury and drowning. He further stated that injury No.1 is fatal and sufficient in the ordinary course of nature to cause death and MO5 can produce injury No.1. His further opinion was that the injury will result in bleeding, but due to hair, it may not be seen externally. He further deposed that after sustaining the injury, the injured may do some work, not knowing about the consequences of the injury like pain or restriction of movement, thinking process etc,. He also deposed that if a person is attacked from front, there will be reflex action and subarachnoid hemorrhage can occur in the tromatic way due to the said injury.

21. PW1 has given FIS, which is marked as Ext.P1. While giving FIS, he has not stated about the fact that he got information from the deceased. What he has stated was that Crl.Rev.Petition No.1311/10 & Crl.Appeal No.2117/10 -:26:- there was a quarrel between Vinod (A1) and Sabu. Gireesh (PW2) interfered in the matter and they were asked to move away. Vinod and Sabu came back earlier with their canoe. After sometime, Kuttan and Gireesh came with their canoe to the shore. At that time, accused 1 to 4 went there and quarrelled with them. The members of the family of both the parties and local people interfered and prevented them from further confrontation. Deceased suffered an injury on the right side of his head. He saw blood trickling. PW1 along with another person took him to St.Joseph's hospital and his injury was dressed and by about 8.30 p.m., deceased came back and went along with PW2, Gireesh and others to take their net. Since there was rain, others asked Anandakuttan to go home. After getting the canoe to the shore, PW2 and PW11 went to the house of deceased and he was not seen there. In evidence, PW1 stated that deceased told him that the first accused had inflicted a blow on his head with the Oar. The aforesaid statement apparently is an omission which amounts to contradiction. Attempt had been made by PW1 to improve the case. PW2, PW3, PW11 and PW12 of course says about the incident by which A1 had inflicted a blow on the head Crl.Rev.Petition No.1311/10 & Crl.Appeal No.2117/10 -:27:- of the deceased. But the Court below did not believe their version in its entirety on account of the following facts:-

(i) None of these witnesses had stated the area where deceased suffered the injury.

(ii) PW11 did not see any blood coming from the wound.

(iii) Medical evidence shows that it was a lacerated wound and therefore, bleeding need not be spontaneous.

(iv) But, when in Ext.P1, PW1 says that the injured was bleeding, the evidence of PW2, 3, 11 and 12 that they have not seen the wound and they did not see the blood coming from the wound seems to be suspicious though all of them states that they have seen the first accused beating the deceased with the oar.

(v) Apparently there was only one injury with the oar. No others were attacked with the oar and none of the other witnesses who were there at the relevant time suffered any injury at all.

22. The question to be considered is whether the injury which deceased purportedly suffered at the relevant point of time was the injury taken note of as per the inquest report as well as the postmortem certificate issued by PW14, the Doctor who Crl.Rev.Petition No.1311/10 & Crl.Appeal No.2117/10 -:28:- conducted autopsy. It is in evidence of PW5, the Nursing Assistant of St.Joseph's hospital that she dressed the wound of the deceased. She stated that she dressed a wound above the right ear on the middle of the head. Deceased was talking and she had dressed the wound as directed by the Duty Sisters. During cross-examination she stated that when she asked how the injury happened, he said that he fell from the bike. She also stated that she did not tell the police as to which side of the head he suffered the injury. The dressing was done at 8 p.m. and the accused left to his house as per the evidence of PW2, by around 9 p.m. It is also in evidence that when deceased was not found, they went in search of him and he was not found and he was located only in the next day morning by 6 a.m. Cause of death stated by PW14, the Doctor is injury on the head as well as drowning. It is apparent from the aforesaid evidence that after 9 p.m, when the deceased left the company of PW2, he had gone somewhere and he fell into a water body. What happened in between 9 p.m. until the body was found has not been investigated. Therefore, the Court below was justified in having a suspicion as to whether the blow on the head of deceased by A1 Crl.Rev.Petition No.1311/10 & Crl.Appeal No.2117/10 -:29:- itself was the injury that was taken note of by the investigating officer during inquest and the lacerated wound suffered by him. When PW5 had given the dressing to the injury, apparently she did not find it very serious and she does not say the extent of injury suffered by him. Though PW14 says in evidence that the said injury could be caused by MO1, what was the nature of injury at the relevant point of time is not available.

23. PW14 noted a lacerated injury 3x2cm skin deep on the right side of the head, 7 cm above the right ear and a swelling 5x5cm on and around it. Court below found that the details submitted by PW14 is not sufficient to fix the exact location of the injury, and on going through the post-mortem findings, it is very difficult to find out whether the injury is on the temporal region or parietal region of the head. The Sub Inspector who conducted the inquest noted a contusion at the middle of the head. PW14 has stated that it corresponds to the swelling 5x5cm on and around the lacerated wound. PW14 clarified that the internal contusion of the scalp 14x7cm back of top of head is on and around the fracture line. According to him, blood oozed from the fracture site and spread into the soft tissues on and around the Crl.Rev.Petition No.1311/10 & Crl.Appeal No.2117/10 -:30:- fracture line, developing the contusion. The post mortem findings show that brain showed contusion 3cm underneath the above injury, which according to PW14 is underneath the lacerated injury. Court below found that injury No.1, consists of several parts viz., lacerated injury, contusion, fracture, besides the contusion on the brain, and merely on going through the post-mortem findings it is difficult to find that the statement that the brain showed contusion underneath the above injury is the one underneath the lacerated wound, whereas, it is underneath the fissured fracture. DW2 deposed that the post-mortem findings showed two injuries on the scalp; one external lacerated injury and another scalp contusion which is seen only internally. The second injury according to him, is on the back and top of the head. He further opined that these two injuries could not be possible by a single strike, but an additional force is also needed.

24. As held by the Court below, the experts admit that when the head was cushioned by towel, internal contusion is possible without an external contusion or injury. There is evidence in the case that when the deceased left from the place, where the fish was collecting, he had tied a towel around his Crl.Rev.Petition No.1311/10 & Crl.Appeal No.2117/10 -:31:- head. Therefore, the Court below rightly observed that the possibility of sustaining internal contusion without an external injury even in a subsequent stage cannot be ruled out.

25. That apart, PW14 and DW2 agree on the fact that the fissured fracture starts from the site of the impact. The site of impact is on the right side of the head, 7cm above the right ear. Regarding the fissured fracture noted in the post-mortem findings, PW14 has stated that the fracture started from the site of the impact, i.e., fracture begins from the back of the right margin of the right parietal bone and it crossed to the left parietal bone. The fissured fracture as per the post-mortem findings is on the back part of both the parietal bone. The external injury noted is 7cm above the right ear. Court below found that if the fracture begins from that site and runs parallel, it shall not be at the back of parietal bone. The internal scalp contusion on the back and top of the head and the contusion of the brain correspond to this fissured fracture. Opinion of DW2 is that there was a second impact, one different from that caused the external injury cannot be rejected. Though there is no external injury corresponding to the fissured fracture and internal contusions, the opinion of both Crl.Rev.Petition No.1311/10 & Crl.Appeal No.2117/10 -:32:- the Doctors justifies that such thing could happen under the circumstances stated by them. Court below found that going by the medical evidence of PW14, DW2 and Ext.P11 post-mortem findings, it is highly suspicious and doubtful, whether the deceased sustained a forceful hit at the middle of his head, causing the fissured fracture on the back of the parietal bone. In view of the fact that the medical evidence and the post-mortem findings are inconsistent with the prosecution case, it cannot be held beyond doubt that the deceased was beaten by A1 with MO5 oar, causing external injury as well as the internal injury resulting in his death.

26. PW2, PW3, PW11 and PW12 deposed in their evidence that they along with deceased did not consume any alcohol, whereas the report of the viscera proves that there was sufficient quantity of alcohol in the stomach of the deceased. It is therefore evident that it is possible that after the aforesaid incident, the deceased would have consumed alcohol and he would have fallen into a water body or else, it is also possible that another incident would have occurred by which he suffered an injury on his head and he fell on a water body. From the nature of oral evidence of Crl.Rev.Petition No.1311/10 & Crl.Appeal No.2117/10 -:33:- eyewitnesses and the medical evidence that is available in the case, it may not be possible for this Court to arrive at a different finding than what has already been rendered by the learned Sessions Judge.

27. That apart, as already observed and as laid down in the judgments aforesaid, in order to unsettle a judgment of acquittal, the High Court has to arrive at a conclusion that the findings rendered by the Court below is perverse or unreasonable. Based on the materials placed on record, such a finding cannot be rendered. In the case on hand, Sessions Court had relied upon sufficient material and had expressed doubt in the prosecution case, giving the benefit of doubt to the accused. Under these circumstances, we do not think that, this Court should interfere with the judgment of the Sessions Court.

Crl.Appeal and Crl.Revision Petition are therefore dismissed.

Sd/-

A.M.SHAFFIQUE JUDGE Sd/-


                                                    A.M.BABU

Rp                //True Copy//                       JUDGE
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