Kerala High Court
K.S.Sebastian vs State Of Kerala on 30 October, 2009
Author: Thottathil B.Radhakrishnan
Bench: Thottathil B.Radhakrishnan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE THOTTATHIL B.RADHAKRISHNAN
&
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
SATURDAY, THE 20TH DAY OF SEPTEMBER 2014/29TH BHADRA, 1936
CRL.A.No. 2491 of 2009 ( )
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SC 70/2006 of ADDITIONAL SESSIONS COURT,PATHANAMTHITTA DATED 30-10-2009
APPELLANT/ACCUSED 1 & 2:
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1. K.S.SEBASTIAN, S/O. K.D. SEBASTIAN,
KOCHUKUNNEL HOUSE, NOOROKKAD, KUNNAM
KOLLAMULA.
2. K.D.SEBASTIAN, S/O.DEVASYA,
KOCHUKUNNEL HOUSE, NOOROKKAD, KUNNAM
KOLLAMULA.
BY ADVS.SRI.B.RAMAN PILLAI
SRI.R.ANIL
SRI.ANIL K.MOHAMMED
SRI.JOSEPH P.ALEX
SRI.SUJESH MENON V.B.
SRI.SHYAM ARAVIND
RESPONDENT/COMPLAINANT:
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STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR
HIGH COURT OF KERALA, ERNAKULAM.
PUBLIC PROSECUTOR SRI. ROY THOMAS
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 31.05.2014
ALONG WITH CRA.2605/2009 THE COURT ON 20.09.2014 DELIVERED THE
FOLLOWING:
smv
C.R.
THOTTATHIL B.RADHAKRISHNAN
&
P.B.SURESH KUMAR, JJ.
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Crl. Appeal Nos.2491 of 2009
and 2605 of 2009
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Dated 20th September, 2014.
J U D G M E N T
P.B.Suresh Kumar, J.
The accused in S.C.No.70 of 2006 on the file of the Additional Sessions Court, Pathanamthitta are the appellants. Among them, accused Nos.1 and 2 are the appellants in Criminal Appeal No.2491 of 2009 and accused No.3 is the appellant in Crl.Appeal No.2605 of 2009. They were found guilty and convicted of the offences punishable under Sections 323 and 302 read with Section 34 of the Indian Penal Code, hereinafter, referred to as 'the IPC', for short. The sentence of imprisonment for life was imposed on the accused for the offence punishable under Section 302 of the Crl. Appeal Nos.2491 of 2009 and 2605 of 2009 2 IPC and simple imprisonment for a period of 6 months was imposed on them for the offence punishable under 323 of the IPC.
2. One Scaria died in an occurrence took place on 16.03.2004. Accused Nos. 2 and 3 are the younger brothers of Scaria and the first accused is the son of the second accused. The case of the prosecution is that on the relevant day, at about 06.00 a.m., while Scaria was going to the local police station to lodge a complaint, at a place near the house of the accused, the accused assaulted him and poured acid forcibly into his mouth. Scaria was taken first to the Taluk Hospital, Kanjirappally and then to the Medical college Hospital, Kottayam. According to the prosecution, Scaria died on the way to Medical College Hospital, Kottayam.
3. A case was registered in connection with the occurrence on the same day by Vechoochira police, on the basis of the information furnished by the son of the deceased. PW16 investigated the case and PW17 laid the final report, alleging commission of the offence punishable under Section 302, read with Section 34 of the IPC.
4. On appearance, the accused pleaded not guilty. The Crl. Appeal Nos.2491 of 2009 and 2605 of 2009 3 prosecution thereupon, examined 17 witnesses and marked 26 documents. 7 material objects were also caused to be identified by the witnesses. Ext.D1 case diary statement of PW2 was marked at the instance of the accused in the course of proceeding.
5. Among the witnesses examined, PW1 was the son of the deceased who lodged the First Information Statement, PW2 was the wife of the deceased, PWs 3 and 4 were the neighbours of the accused, PW5 was the member of the local Panchayat representing the ward of the accused, PW10 was the Civil Surgeon attached to Taluk Hospital, Kanjirappally, and PW14 was the doctor who conducted the post mortem examination on the body of the deceased. Among the documents marked, Ext P8(a) was the disclosure statement allegedly given by the second accused to the police, Ext P10 is the Accident Register-cum-Wound Certificate issued from the Taluk Hospital, Kanjirappally, Ext P13 was the post mortem certificate of the deceased and Ext P27 was the Chemical Analysis Report on the viscera collected from the body of the deceased. Among the material objects, MOs 4 and 5 were the clothes worn by the deceased at the time of occurrence and MO7 Crl. Appeal Nos.2491 of 2009 and 2605 of 2009 4 was the bottle of sulphuric acid, allegedly recovered from the second accused.
6. After the evidence of the prosecution, the accused were questioned as provided for under Section 313 of the Code of Criminal Procedure. They denied the incriminating circumstances appearing against them in the evidence. In addition, the first accused had stated that on the relevant day morning at about 5.00 a.m., the deceased came to his house, inflicted injuries on him with a chopper and ran away. The second accused had stated in the court that he did not give any statement to the Circle Inspector of Police nor did the Circle Inspector of Police recovered any bottle from him. As this was not a case of no evidence for the prosecution, the court of Session had called upon the accused to enter on their defence. The accused, however, chose not to adduce any evidence. Thereafter, the case was taken up for judgment, after hearing the prosecution and the accused.
7. On a perusal of the records of the case, the Court of Session found that the viscera collected from the body of the deceased was though sent for chemical analysis, the report of the Crl. Appeal Nos.2491 of 2009 and 2605 of 2009 5 chemical analysis was not obtained. As the court felt that the report of the chemical analysis on the viscera is essential for a just and fair disposal of the case, the evidence was re-opened and the committal court was directed to obtain the chemical analysis report on the viscera. Thereafter, PW14 was summoned again and the chemical analysis report of the viscera was marked as Ext.P27.
8. Later, the Court of Session found that there was no charge against the accused under Section 323 of the IPC. Accordingly, the evidence was re-opened again and an altered charge was read over and explained to the accused. The accused pleaded not guilty to the altered charge as well. As the prosecution and the accused submitted that they do not have any further evidence to let in, the case was taken up again for judgment.
9. The Court of Session, on an appreciation of the evidence on record, found that the accused are guilty of the offences punishable under Sections 323 and 302, read with Section 34, of the IPC.
10. We have heard Senior Counsel, Sri. B. Raman Pillai for accused Nos.1 and 2, Sri. Sibi Chenappady for accused No.3 Crl. Appeal Nos.2491 of 2009 and 2605 of 2009 6 and the Public Prosecutor, Sri. Roy Thomas for the State.
11. The point arises for consideration is whether the conviction of the accused and the sentence imposed on them are sustainable in law.
12. The ante-mortem injuries on the body of the deceased, as noted in Ext.P13 post-mortem certificate are the following:
"1. abraded contusion on back of left shoulder 1x1cm, 3cm below top of shoulder.
2. Abraded contusion on back of middle of left shoulder 1x1cm, 6cm below top of shoulder.
3. abraded contusion on back of left side of chest 0.5x0.3cm vertical, 7cm below shoulder bone and 11 cm outer to back midline.
4. Abraded contusion on back of left side of chest 0.5x0.5cm, 9cm below shoulder bone and 12cm outer to back midline.
5.Abraded contusion on back of left side of chest 8cm below shoulder bone 0.5x0.2 cm, vertical, 13cm outer to back midline.
6. Needle punch mark seen on front of right elbow (surgical).
7. Abraded contusion on front of left knee 5x0.2 cm vertical.
8. Abraded contusion on front of right leg 2.5cmx1cm transverse 27cm below knee.
9. A cresentric abrasion on left side of chest 0.8x0.2cm transverse 13cm below arm pit.
Crl. Appeal Nos.2491 of 2009 and 2605 of 2009 7
10. Peeling of mucosa of lower lip on left side 0.5x0.5cm, no infiltration of blood around."
In Ext.P13 post mortem certificate, the opinion as to the cause of death was reserved, pending receipt of the chemical analysis report on the viscera collected from the body of the deceased. PW14, the doctor who conducted the post mortem examination, deposed that all the injuries noted in the body of the deceased, except injury No, 6 could be caused by a scuffle or on account of a fall on a hard surface like a gravel road. He also deposed that corrosion of the mucosa of the surface of the mouth and lips was noticed. He further deposed that the corrosion of the aforesaid parts of the body indicates that a corrosive substance came in contact with that area. He also deposed that corrosion was found from the mouth portion to small intestine area of the body. He has concluded that the deceased had ingested a corrosive substance. Later, based on Ext.P27 report of the chemical analysis, PW14 deposed that formic acid was the corrosive substance ingested by the deceased and Scaria died due to formic acid poisoning.
13. Having found that the death of Scaria was due to formic acid poisoning, the question was whether the death was Crl. Appeal Nos.2491 of 2009 and 2605 of 2009 8 homicidal, as alleged by the prosecution. The prosecution has relied on the oral evidence of PWs. 1, 2, 3, 4, 10 and 11 and the attended circumstances, to establish the guilt of the accused.
14. PW1 has stated that he came to know from the daughter of his brother that the deceased was lying on the road, near the house of the accused and it was on that information, he proceeded to the scene. According to PW1, when he enquired with the deceased as to what happened to him, he told him that he was assaulted and acid was forcibly poured into his mouth by the accused. According to PW2, there was a quarrel on the previous day of the occurrence between the deceased and the accused, concerning the drying up of a tamarind tree on the property of the deceased. She has stated that on the date of occurrence, while the deceased was going to the police station to lodge a complaint against the accused, the first accused pelted stones at the deceased and abused him using filthy language. She has also stated that thereafter, the accused together had assaulted him. According to her, she then went to the nearby house to inform the matter to the police over telephone and when she came back, she found her husband Crl. Appeal Nos.2491 of 2009 and 2605 of 2009 9 lying on the road in a bad condition. PW2 further stated that the deceased had told her that the accused had poured acid forcibly into his mouth.
15. PW3 is the husband of PW4. They are residing close to the scene of occurrence. Both of them turned hostile to the prosecution. PW3, however, stated in his evidence that as usual on the relevant day, while he was milking the cow at about 05.00 a.m., he heard the noisy quarrel between the accused and the deceased and at about 8.00 a.m, he found the deceased lying on the road near the house of the accused. PW4 had stated that on the relevant day at about 08.00 a.m., she has seen the deceased being taken to the hospital. PW5 deposed that when he reached the scene, he found the deceased lying on the road. PW5 has clarified that the deceased was able to talk at the relevant time. He also deposed that he took the deceased to the Taluk Hospital, Kanjirapally along with the children of the deceased, and the cause of injury was disclosed to the doctor at the Hospital, by the deceased himself.
16. The oral evidence adduced in this case indicates that there used to be frequent quarrels between the accused and the Crl. Appeal Nos.2491 of 2009 and 2605 of 2009 10 deceased, and on the previous day of the occurrence also, there was a noisy quarrel between them. On the date of occurrence, going by the version of the first accused, the deceased came to his house and inflicted injuries on him using a chopper, whereas, the prosecution version is that the deceased was going to the police station and on the Panchayat road near the house of the accused, the accused assaulted him and poured acid forcibly into his mouth. There is no direct evidence for the said occurrence. The oral evidence would only indicate that the deceased was attacked by the accused on the relevant day morning on the road near their house and after sometime, he was found lying at the same place. Ext.P10 is the Accident Register Cum Wound Certificate issued from the Taluk Hospital, Kanjirappally. Ext P10 has been prepared and issued by PW10. PW10 deposed that the deceased had told him at the time of the examination that accused Nos. 2 and 3 had assaulted him and poured acid into his mouth. The said fact has been recorded by PW10 in Ext P10 certificate also. PW10 had also stated in his evidence that the deceased was conscious and in a steady state of mind at the time of examination. We must notice here that there is Crl. Appeal Nos.2491 of 2009 and 2605 of 2009 11 no reason for PW10 to record the cause of injury as indicated above in Ext P10, if the deceased had not told him the said fact. Further, the said statement of the deceased was recorded by PW10 at 09.40 a.m. itself on the same day. The evidence of PW10 in this regard has been corroborated by PWs 1 and 2 also. The said evidence of PW10 being one relating to a statement made by a person as to the cause of his death, is admissible under Section 32 of the Evidence Act. We have indicated earlier that PW14 had deposed that the cause of death of the deceased was formic acid poisoning. As such, from the aforesaid materials, it can be safely concluded that accused 1 and 2 had caused the death of the deceased by pouring formic acid into his mouth.
17. The learned senior counsel for the accused at the outset pointed out that this is not a case of homicide and it can only be a case of suicide. First of all, there is no material on record to infer that the deceased had some reason to commit suicide on that particular day. Further, as observed by the Court of Session, if at all the deceased wanted to commit suicide by consuming acid, there is no reason for him to consume acid on the public road. He could Crl. Appeal Nos.2491 of 2009 and 2605 of 2009 12 have very well consumed acid in his house itself. Again, as noticed by the Court of Session, the clothes worn by the deceased, when he was found lying on the road, were clothes usually worn by people for formal occasions and the same would only probabilises the case of the prosecution that the deceased was proceeding to the police station. In the said circumstances, we are unable to agree with the said argument of the learned counsel.
18. The learned senior counsel for the accused then contended that the evidence tendered by PW14 based on Ext.P27 report of the chemical analysis of the viscera has not been put to the accused, when they were examined as provided for under Section 313 of the Code of Criminal Procedure, and therefore, the same cannot be used against the accused. He has relied on the decisions of the Apex Court in State of Uttar Pradesh v. Mohd. Iqram [(2011) 8 SCC 80] and Dharampal Singh v. State of Punjab [(2010)9 SCC 608], in support of the said contention. In the context of this argument, the learned Public Prosecutor, relying on the decision of the Apex Court in Paramjeet Singh v. State of Uttarakhand [(2010) 10 SCC 439] pointed out that it would not be enough for the accused Crl. Appeal Nos.2491 of 2009 and 2605 of 2009 13 to show that they have not been questioned or examined on a particular circumstance or evidence, but it must be shown that such non-examination has actually and materially prejudiced them and has resulted in failure of justice. As held by the Apex Court in Paramjeeth Singh (supra), the omission to put a vital piece of evidence alone should not result in setting aside of the conviction and sentence as an inevitable consequence, unless it is shown that some material prejudice has been caused to the accused. Coming to the facts of the present case, in the examination of the accused under Section 313 of the Code of Criminal Procedure, they were told that PW14 had deposed that the deceased died on account of the ingestion of a corrosive substance like sulphuric acid. No explanation was offered by the accused for the said evidence of PW14. The evidence tendered by PW14 thereafter, based on Ext.P27, was only that the corrosive substance ingested by the deceased was formic acid. The accused have not demonstrated the prejudice caused to them on account of the non-mentioning of the name of the corrosive substance ingested by the deceased, in their examination under Section 313 of the code of Criminal Procedure. The defence of the Crl. Appeal Nos.2491 of 2009 and 2605 of 2009 14 accused was only that they have no connection whatsoever with the occurrence. We are, therefore, of the view that no prejudice has been caused to the accused on account of the non-mentioning of the name of the corrosive substance ingested by the deceased when they were examined under Section 313 of the Code of Criminal Procedure. As such, it cannot be contended that the evidence tendered by PW14 based on Ext P27 Chemical Analysis Report cannot be relied on by the prosecution against the accused.
19. The learned senior counsel for the accused, relying on the decision of the Apex Court in Uka Ram v. State of Rajastan [AIR 2001 Supreme Court 1814] and the decision of this Court in Johnson v. State of Kerala [2003(1) KLT 572], contended further that the veracity of the dying declarations has to be tested with the other evidence in the case before accepting the same as evidence. According to him, in view of the strained relationship between the deceased and the accused, the statement claimed to have been made by the deceased to PW10 should not have been acted upon. In this context, it has to be mentioned that dying declarations are made by persons in extreme situations at the point of their death. Such Crl. Appeal Nos.2491 of 2009 and 2605 of 2009 15 statements are made admissible upon the principle "Nemo moriturus praesumitur mentire" i.e., a man will not meet his maker with a lie in his mouth, which means that a sense of impending death produces in a man's mind the same feeling as that of a conscientious and virtuous man under oath. In other words, a person on the verge of death is not likely to tell lies or concoct a case to implicate an innocent person in a crime. True, as the maker of the statement is not subjected to cross-examination, it is essential for the Court to ensure its correctness. As such, before placing reliance upon a dying declaration, the Court should satisfy that the deceased was in a steady state of mind to make the statement. The Court should also rule out the possibility of the statement being the result of either tutoring, prompting or vindictive or product of imagination. Once the Court is satisfied that the dying declaration was true, voluntary and not influenced by any extraneous consideration, the same can be the sole basis of the conviction, as the rule requiring corroboration is not a rule of law, but only a rule of prudence. Coming to the facts of this case, PW10 has categorically stated in his evidence that the deceased was in a steady state of mind at the time when he was Crl. Appeal Nos.2491 of 2009 and 2605 of 2009 16 examined by him. Further, there is nothing on record to infer that the statement made by the deceased to PW10 was vindictive in any manner. There is also no material to think that the said statement was vitiated by tutoring or prompting. In the nature of the overt acts attributed against the accused, it cannot be said that the statement referred to above is a product of imagination. It has come out in evidence that the property disputes between the deceased and the accused were settled long ago. The quarrel on the previous day of the occurrence was only in respect of the drying up of the tamarind tree. The said dispute, according to us, cannot be accepted as a reason sufficient to falsely implicate the accused in a case like this, as contended by the learned counsel.
20. The learned senior counsel for the accused then contended that the case of the prosecution was that the accused had poured sulphuric acid into the mouth of the deceased and since the said case was found against, the accused cannot be convicted. We are unable to accept this argument also. It is true that in the initial charge, it was mentioned that what was poured into the mouth of the deceased was sulphuric acid. The said charge was based on the Crl. Appeal Nos.2491 of 2009 and 2605 of 2009 17 alleged recovery of MO7 bottle containing sulphuric acid from the second accused. Ext P27 report of the chemical examiner indicates that the alleged recovery of MO7 bottle is either a recovery conceded by the accused to mislead the investigation or it is a farce recovery. Even before Ext P27 was admitted in evidence, the second accused has taken the stand in his statement given under Section 313 of the Code of Criminal Procedure that he has no connection whatsoever with the recovery. As such, it has to be held that the alleged recovery of MO7 bottle is a farce recovery. It is trite that the justice delivery system cannot be dependant on the probity of the investigating officer. As such, even if it is found that the investigating officer had done some illegality, the same would not by itself cast doubt on the prosecution case and result in the acquittal of the accused. If the case of the prosecution is otherwise established by cogent evidence, the same can be the basis of the conviction of the accused. In so far as it is found that the statement given by the deceased to PW10, as corroborated by the evidence of Pws 1 and 2, can be the sole basis of the conviction of accused Nos 1 and 2, the falsity of the recovery would not affect the prosecution case at Crl. Appeal Nos.2491 of 2009 and 2605 of 2009 18 all.
21. The learned senior counsel for the accused then contended, relying on the evidence tendered by PW14, that it is not possible for two persons to pour anything into the mouth of another of equal health and if such an occurrence takes place, there will be more injuries on the body of the person concerned, than what was found on the body of the deceased. At the outset, it has to be pointed out that the evidence tendered by PW14 in this regard is only his opinion. The question whether two persons would be able to pour something into the mouth of another depends on the facts of each case. In the instant case, it has come out in evidence that the accused have assaulted the deceased before the occurrence. In a situation like this, it cannot be said that two healthy persons cannot pour something into the mouth of another, who is tired and exhausted on account of the assault. The Court of Session has rightly rejected the said contention of the accused and we find no infirmity in the said view of the Court of Session.
22. Now what remains to be considered is the question as to the complicity of the first accused. In Ext.P10 statement, the Crl. Appeal Nos.2491 of 2009 and 2605 of 2009 19 deceased did not mention the name of the first accused. Instead, in the said statement, the deceased had categorically mentioned the names of accused Nos.2 and 3. There is no material on record to indicate that the first accused had poured acid into the mouth of the deceased or that he had helped accused Nos 2 and 3 in pouring acid into the mouth of the deceased. True, PW1 and 2 had given evidence that the deceased had told them that the accused together had poured acid into his mouth, but Ext P10 statement had been given by the deceased after he had communicated with PWs 1 and
2. As such, it is not safe to rely on the said evidence of PWs 1 and 2 to convict the first accused. We are, therefore, of the view that the first accused is entitled to the benefit of doubt, in so far as the offence under Section 302 of the IPC is concerned. At the same time, in view of the evidence tendered by PW2, we do not find any reason to interfere with the conviction of the first accused under Section 323 of the IPC.
In the result, (1) Criminal Appeal No.2605 of 2009 is dismissed. (2) Criminal Appeal No.2491 of 2009 is allowed in part. The Crl. Appeal Nos.2491 of 2009 and 2605 of 2009 20 conviction of the first appellant and the sentence imposed on him by the Court of Session, for the offence under Section 302 of the IPC, are set aside and he is acquitted of the charge under Section 302 of the IPC. He shall be set at liberty forthwith and be released from custody, if his continued presence is not required in connection with any other case. The conviction of the first appellant for the offence punishable under Section 323 of the IPC and the sentence imposed on him for the said offence are confirmed. The Registry is directed to send the gist of this judgment forthwith to the concerned prison, where he is undergoing incarceration. The conviction of the second appellant and the sentence imposed on him by the Court of Session are confirmed.
Sd/-
THOTTATHIL B. RADHAKRISHNAN, JUDGE.
Sd/-
P.B.SURESH KUMAR, JUDGE.
smv