Kerala High Court
Accused vs Station House Officer on 6 November, 2012
Bench: M.Sasidharan Nambiar, C.T.Ravikumar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE M.SASIDHARAN NAMBIAR
&
THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR
TUESDAY, THE 6TH DAY OF NOVEMBER 2012/15TH KARTHIKA 1934
CRL.A.No. 830 of 2008 ( )
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SC.139/2005 of SESSIONS COURT,KASARAGOD
APPELLANT: ACCUSED
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T.J.THOMAS @ THOMACHAN
S/O.JOSEPH,AGED 46 YEARS, OUPATHU THETTIYIL VEEDU
CHIKKANDAMOOLA,BANDADIKA VILLAGE
KASARAGOD DISTRICT.
BY ADVS.SRI.V.A.SATHEESH
SRI.V.T.MADHAVANUNNI
RESPONDENT(S)/COMPLAINANT:
--------------------------
1. STATION HOUSE OFFICER, BEDAKAM POLICE STATION,
KASARAGOD DISTRICT REPRESENTED BY THE
PUBLIC PROSECUTOR
HIGH COURT OF KERALA AT ERNAKULAM.
2. THE STATE OF KERALA REPRESENTED BY THE
PUBLIC PROSECUTOR, HIGH COURT OF KERALA
AT ERNAKULAM.
R1 BY ADV. PUBLIC PROSECUTOR SRI.GIKKU JACOB
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 06-11-2012,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:-
M.SASIDHARAN NAMBIAR &
C.T.Ravikumar,JJ.
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Crl.A.No.830 of 2008
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Dated this the 6th day of November,2012
JUDGMENT
Ravikumar,J.
Appellant in S.C.139/2005 stands convicted and sentenced under section 302 of the Indian Penal Code by the Court of Sessions, Kasaragod as per judgment dated 28.2.2008. This appeal is filed against the said conviction and sentence.
2. Deceased, his brothers PW1 (O.S. Saju) and Joy, sister Bindu along with their parents were residing in Onpathu Thottiyil Veedu in Chikkandamoola. The appellant was residing in Oupath Thottiyil Veedu in Chikkandamoola nearby the house of PW4 Sukumaran Nair. The house of the deceased is Crl.A.830/2008 2 not far away from the appellant's house and the route from there to the appellant's house passes in front of the shop of PW3 Anandan and the house of Sri.Varkichan, a common friend of the deceased and the appellant situates on the wayside. The case of the prosecution is as follows:- The deceased Siju who was in his twenties and the appellant and the said Varkichan who were in their forties form a drinking club. The said habit of the trio always displeased the members of the family of the deceased. On the morning of the fateful day viz, 13.8.2002 also they were seen together by PW1, and he told the appellant and Varkichan not to consume liquor in company with his brother, the deceased. Then, there occurred a quarrel between PW1 and the appellant. Thereafter, in the evening at about 5.30- 6 p.m the appellant came to the house of the deceased when his parents alone were in the house. The appellant quarrelled with the father of the deceased and beat him. The deceased came to the Crl.A.830/2008 3 house at about 6.30 p.m and he was told about the incident. Thereupon, the deceased went to the house of the appellant to question his excess in slaping his father and on being questioned the appellant got exacerbated and inflicted injuries on the deceased with M01 axe and caused his death. On the next day morning, the brothers of the deceased viz., PW1 and Joy found the body of Siju in the property of the appellant. Thereafter, PW1 went to Bedakom Police Station and lodged Ext.P1 First Information Statement and PW7, the then Sub Inspector of Police recorded the same and on its basis registered Ext.P7 First Information Report. PW8, the Investigating Officer went to the scene of occurrence and conducted inquest and prepared Ext.P4 inquest report on 14.8.2002. M03, M04, M05 series, M06, M07 and M08 were seized from the scene of occurrence after describing them in the inquest report. Thereupon PW8 made requisition for conducting post mortem and forwarded the body for Crl.A.830/2008 4 post mortem. PW9 Dr.Sujith Sreenivas conducted autopsy on the body of Siju and issued Ext.P8 post mortem certificate opining that Siju died of Chop injury to the left side of chest involving major blood vessels and lung. Appellant surrendered before PW8 on 16.8.2002 at about 11 a.m and he was then arrested. On the information furnished by the appellant PW8 recovered M01 axe under Ext.P2 recovery mahazar. As certain injuries were found on the body of the appellant, PW8 got him examined by Dr.V.S. Kumar who was then attached to the Taluk Head Quarters Hospital, Kasaragod and he issued Ext.P11 wound certificate noting the injuries found on the body of the appellant. The material objects were sent for chemical analysis to Forensic Science Laboratory through court. Ext.P13 is the forwarding note and Ext.P14 is the chemical analysis report. After completing the investigation PW8 laid final report before the Judicial First Class Magistrate Court, Kasaragod and it was then Crl.A.830/2008 5 committed to Sessions Court, Kasaragod. After preliminary hearing learned Sessions Judge framed charge against the appellant under section 302 IPC and it was read over and explained to the appellant. He pleaded not guilty.
3. To prove the charge against the appellant prosecution examined PW1 to PW11 and marked Exts.P1 to P15 and identified M0s 1 to 8. On the side of the defence Exts.D1 to D4, the portions of 161 statements of PW1, 2 and 3 respectively, were marked. After closing the prosecution evidence appellant was examined under section 313 of the Code of Criminal Procedure. All the incriminating circumstances were put to the appellant. The appellant denied all such circumstances. Finding that it is not a fit case for acquittal under section 232 of the Code of Criminal Procedure, learned Sessions Judge asked the appellant to enter on his defence. However the appellant did not adduce any evidence either oral or documentary. Crl.A.830/2008 6 Learned Sessions Judge on considering the evidence found the appellant guilty and convicted him under section 302 IPC and sentenced him to undergo imprisonment for life.
4. We have heard the learned counsel appearing for the appellant and the learned Public Prosecutor.
5. The prosecution relied on circumstantial evidence to prove the charge against the appellant. Learned counsel appearing for the appellant contended that the chain of circumstances is incomplete in this case and even the facts established by the prosecution could not be said to be consistent with the hypothesis of the guilt of the accused. The learned counsel further contended that there was delay in producing M01 before court and that the crucial incriminating circumstance that the appellant had sustained injuries in the melee between him and the deceased recorded in Ext.P11 was not put to the appellant Crl.A.830/2008 7 for explanation in the examination under section 313 of the Code of Criminal Procedure. It is contended that even then, that incriminating circumstance was relied on and inference was drawn based on it to find the appellant guilty as is obvious from paragraph 21 of the judgment and therefore the conviction and sentence of the appellant are liable to be interferred with on that sole score. On the other hand, learned Public Prosecutor contended that there is complete chain of circumstances against the appellant and it conclusively and unerringly point to the guilt of the accused. The learned Public Prosecutor contended that the conviction and sentence imposed against the appellant are perfectly legal and call for no appellate inteference.
6. It is not in dispute that the body of Siju was found in the property of the appellant on the morning of 14.8.2002 at about 6.30 a.m. At the outset, it is to be noted that it is nobody's case Crl.A.830/2008 8 that Siju had a natural death. The evidence of PW9 with Ext.P8 post mortem certificate would show that death of Siju was caused due to the chop injury on the left side of the chest involving major blood vessels and lung. In Ext.P8 post mortem certificate PW9 noted the following Antemortem injuries.
1. Chop wound 7.5 x 2.5 cm vertical on the left side of front of chest upper and just below the clavicle, 10 cm outer to the midline. The margins were contused. The lower end appeared blunt and the upper end pointed.
There was a superficial cut 1.5 x 0.2x 0.1 cm extending downwards from the lower end of the wound. There was a contused abrasion 3 x 1.5 cm just outer to the lower end of the wound and another contusion 1.5 x 1 cm just outer to the wound 2 cm below its Crl.A.830/2008 9 upper end. The underlying muscles, axillary artery vein and nerve were cut. The wound entered the chest cavity between the 2nd and 3rd rib through a defect 7 cm long 11 cm outer to midline. There was a incised wound 4 x 0.3 x 1 cm on outer aspect of front of upper lobe of lung. Lung was partly collapsed. Left chest cavity contained 100 ml of blood. Heart showed evidence of air embolism. The depth of the wound was 1.5 cm at its upper end, 4 cm at its middle and 6 cm at its lower end. The lower end of the wound was directed downwards and inwards.
2. Chop wound 6 x 2.3 x 1.5 cm oblique on the outer aspect of right thigh. The front upper end was 13 cm below the top of hip bone and had marginal Crl.A.830/2008 10 contusion. There was a contusion 2 x 1.5 cm around the back lower end of the wound. The wound was 1 cm deep at its back lower end, 2 cm deep at its middle and 5.5 cm deep at its front upper end. The direction of the wound at its front upper end was upwards and towards the front. The margins of the wound were contused.
3. Incised wound 7 x 1.5 x 1.5 cm transverse over the front of lest wrist, the margins of which were contused. The underlying tendens were cut. The underlying carpal bone was cut partially at the outer aspect of wrist.
4. Incised wound 1 x 0.5 x 0.3 cm raising a flap of skin, on the outer aspect of right thumb at its root.
5. Multiple small abrasions over an Crl.A.830/2008 11 area 6.5 x 4 cm on the forehead at its middle.
6. Abrasion 3.5 x 1 cm on the left side of head just outside the outer end of eye brow.
7. Multiple small abrasions over an area 4 x 2.5 cm on the left side of lower jaw 4.5 cm outer to the midline.
8. Lacerated wound 2.5 x 1x0.3 cm on the right side of back of head 3 cm behind the middle of ear. There was underlying contusion over an area 2.5 x 2 cm.
9. Horizontal abrasion 8 x 0.5 cm on the back of neck 2.5 cm above the root.
10. Multiple small abrasions over an area 9 x 5 cm on the left side of back of trunk 3 cm outer to midline and just above the top of hip bone.
Crl.A.830/2008 12
11. Abrasion 1.5 x 1 cm on the right side of back of trunk 3 cm outer to midline and just above the top of hip bone.
12. Abrasion 0.5 x 0.5 cm on the right side of back of trunk 6 cm outer to midline and 13 cm below the shoulder blade.
13. Abrasion 1.5 x 1 cm on the inner aspect of right forearm 7 cm above the wrist.
14. Abrasion 1 x 0.5 cm on the inner aspect of right forearm 2.5 cm above the wrist.
15. Abrasion 6 x 5cm on the outer aspect of left thigh 19 cm above the knee.
16. Abrasion 1.5 x 0.5 cm on the inner aspect or right thigh 4 cm above the knee.
Crl.A.830/2008 13
17. Multiple small abrasions over an area 4 x 3 cm on the right leg just below the knee.
There was no challenge against the evidence of PW9 as also against Ext.P8 post mortem certificate. The evidence of PW9 with Ext.P8 would reveal that injury No.1 caused the death of Siju and it was sufficient in the ordinary course of nature to cause death. The nature of the said injuries sustained by Siju as revealed from Ext.P8 persuade us to accept the evidence of PW9 who deposed that injuries No.1 and 2 are possible with a weapon like M01 and further that injujry No.1 was sufficient in the ordinary course of nature to cause death and though injury No.2 by itself is not sufficient in the ordinary course of nature to cause death it contributed to the cause of death. In short, evidence as aforesaid would conclusively prove that the death of Siju was a case of homicide.
7. The next question to be considered whether Crl.A.830/2008 14 the appellant is responsible for the homicidal death of Siju? The prosecution relied on circumstantial evidence to prove the charge against the appellant. No doubt, in a case of circumstantial evidence, the onus lies on the prosecution to prove the complete chain of events that unerringly point towards the guilt of the accused. In this context, it is apposite to refer to the decision of the Hon'ble Supreme Court of India in Sharad v. State of Maharashtra (AIR 1984 SC 1622). While discussing the nature, character and essential mode of proof required in a criminal case which rests on circumstantial evidence alone their Lordships observed:-
(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.
It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but a legal distinction Crl.A.830/2008 15 between 'may be proved' and 'must be or should be proved' as was held by this Court in Shivaji Sahebrao Bobade v. State of Maharashtra, (1973) 2 SCC 793 : (AIR 1973 SC 2622) where the following observations were made :
"certainly, it is a primary principle that the accused must be and not merely may be guilty before a Court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions."
(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty.
(3) the circumstances should be of a conclusive nature and tendency.
(4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable Crl.A.830/2008 16 ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
153. These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence."
Similar views were expressed by the Hon'ble Supreme Court in the subsequent decisions in State of U.P v. Satish (2005) 3 SCC 114) and Paramjeet Singh v. State of Uttarakhand (AIR 2011 SC 200).
8. Bearing in mind the said principles laid down by the Honourable Supreme Court in the aforesaid decisions as to how the circumstantial evidence should be scrutinised we may examine the case on hand. The evidence of PW2, the mother of the deceased would show that at about 5-5.30 hours in the evening on 13.8.2002 the appellant came to the residence of the deceased and at that time she and her husband, the father of the deceased, alone were available in the house. The appellant told Crl.A.830/2008 17 the father of the deceased that it was not he who made his son Siju a sot and slaped him on his face and then left the house. At about 6.30 p.m deceased came to the house and on being told that his father was beaten by the appellant, the deceased left the house telling that he would come back after asking the appellant about the same. On a careful consideration of the evidence of PW2, we find no reason to disbelieve her version that the appellant came there between 5-5.30 p.m on 13.8.2002 and beat her husband and on being told about it the deceased went to ask the appellant about it especially in the absence of serious challenge. The evidence of PW3 is that while going to the house of the appellant the deceased met him and told him that his father was slaped by the appellant. The said evidence of PW3 was also not seriously challenged by the appellant. As noticed earlier, the shop of PW3 Anandan abuts the way leading to the house of the appellant and Crl.A.830/2008 18 therefore, we find nothing unusual or untrustworthy in the statement of PW3 that while going to the house of the appellant the deceased met him and told him regarding the slapping of his father by the appellant. The evidence of PW4 K.Sukumaran Nair would show that at about 7.15 p.m on that day while he was hearing the radio news on market rate of commodities he heard a cry from the house of the appellant. Soon he went to the shop of PW3 and told PW3 about the same and thereafter, they went to the house of the appellant. Though they repeatedly called the appellant he did not respond. They found the door of the house ajar but found none in the house. PW4 further deposed that upon lighting the torch they found inside a lighted kerosene lamp and served out rice and curry. The said version of PW4 is corroborated by the evidence of PW3 and it is evident from the evidence of PW3 that the other person joined them in the search was Varkichan, a common friend of the deceased and the Crl.A.830/2008 19 appellant. The evidence of PW4 was also not seriously challenged by the appellant. The oral testimony of PW1 is to the effect that after the the deceased left to the house of the appellant he reached his house and was then told about the incident and also the departure of Siju the deceased to see the appellant. He would further depose that the deceased used to return home round about 8.30-9 p.m and hence they waited him till 9.30 p.m. Thereafter PW1 along with the other brother Joy went to the shop of PW3 and then along with PW3 went to the house of PW4. All of them went together to the house of the appellant. It was further deposed that they found lighted kerosone lamp and served out rice and curry inside the house and since Siju was not seen there they returned. In the morning PW1 along with his brother Joy once again went to the premises of the appellant and there they found the body of Siju over small dried twigs on the side of a mud wall. The evidence of Crl.A.830/2008 20 PW1 would thus reveal that the lighted kerosene lamp and the served out rice and curry found inside the house of the appellant shortly after 7.15 p.m on 13.8.2002 by PW3 and PW4 remained as such, even after about 2 hours when he along with the others went there in search of Siju. The appellant was not found there and the body of Siju was found in the appellant's property in the morning. There is no serious challenge against the evidence to that effect given by PW1. Thus, a scanning of the evidence of PW2, PW3, PW4 and PW1 would reveal no material contradiction to render their evidence unreliable or untrustworthy and they would reveal that Siju, after about 6.30 p.m came to his residence and on being told about the slapping of his father by the appellant went to the house of the appellant to ask him about the same and then,a cry of somebody was heard from there and in the morning of 14.8.2002 the body of siju was found in the appellant's property. PW1 deposed that when Crl.A.830/2008 21 the body of Siju was overturned it was found that he had sustained injuries with an axe. As already noticed, PW9 Dr.Sujith Srinivas deposed that injuries No.1 and 2 are possible with a weapon like M01 axe. M01 axe was recovered based on the information furnished by the appellant. The evidence of PW4 corroborates the version of PW8 that the axe was recovered from the premises of the appellant. Ext.P14 Chemical Analysis Report would show that M01 axe was stained with human blood. Learned counsel appearing for the appellant however, contended that recovery of M01 axe ought not to have been treated as an incriminating circumstance against the appellant on account of delay in its production before the court. However, on scanning the evidence, we do not find any reason to disbelieve or discard the recovery of M01 and production of the same before the court. Section 27 of the Evidence Act is, in fact, founded on the doctrine of confirmation by the Crl.A.830/2008 22 subsequent facts and practically, the section partially remove the ban on reception of confessional statements under section 26. Certainly, the disclosure statement by an accused in police custody would be admissible in evidence only if the same leads to discovery of a particular fact. It is not in dispute that the appellant surrendered before police and then, he was arrested and the confessional statement was made while he was in custody. PW8 proves Ext.P2(a) as the disclosure by the appellant herein and M01 axe was recovered from the property of the appellant where he was residing during the relevant period, based on the information furnished by the appellant after describing in Ext.P2. PW8 deposed to that effect and the evidence of PW4 corroborates the same to the extent of recovery of M01 axe from the premises of the petitioner. There is no inordinate delay which by itself could render the whole of the prosecution case doubtful or there is no revelatory Crl.A.830/2008 23 fact showing any kind of manipulation in this case.In short, we are of the view that the prosecution has succeeded in establishing relationship of cause and effect between the information furnished and the fact discovered and in the circumstances the statement in Ext.P2(a) that relate distinctly to the recovery of M01 axe is admissible. In the above circumstances recovery of M01 axe based on Ext.P2(a) disclosure statement forms an incriminating circumstance against the appellant. True that the mere recovery of M01 axe at the instance of the appellant cannot by itself be an incriminating circumstance. But, the evidence of Pws. 1 to 4 and 8 as explained above would certainly make it an incriminating circumstance against the appellant. It is also relevant to note that human blood was also detected on M01 axe. Thus, a careful evaluation of the evidence in this case reveals the existence of an unbroken chain of circumstances which are Crl.A.830/2008 24 consistent only with the hypothesis of the guilt of the accused. In the said circumstance, we find the chain of circumstances so complete and incompatiable with the innocence of the accused. The following facts and circumstance also assume relevance in this case. Even on the fateful night when PW1 along with PW3 and PW4 came to the property of the appellant and looked inside the house PW1 saw the lighted kerosene lamp and the served out rice and curry seen by PW3 and PW4 hours before. Going by normal human conduct it could not be expected that one would leave the house that long, that too, after serving out the rice and curry and keeping a kerosene lamp lighted and the door of the house opened. There is absolutely no dispute with respect to the fact that the body of Siju was found in the morning of 14.8.2002 in the premises of the appellant. The appellant was not there when the body of Siju was found in his premises and also at the time when Crl.A.830/2008 25 police came there and PW8 conducted the inquest. But then, the trial court used the evidence of PW10 with Ext.P11 to conclude the presence of the accused in his house and the quarrel between the appellant and the deceased. The counsel for the appellant argued that the incriminating circumstance arising from the evidence of PW10 and Ext.P11 was not appropriately put to the appellant in his examination under section 313 Cr.P.C and therefore, the appellant is entitled to get acquitted on that sole score. Before dealing with the said contention, it is only appropriate to refer to the decision of the Hon'ble Supreme Court in Shaikh Maqsood v. State of Maharashtra reported in (2009) 6 SCC 583 rendered following the earlier decisions in Hate Singh Bagat Singh v. State of Madhya Bharat (AIR 1953 SC 468), Tara Singh v. State Crl.A.830/2008 26 (AIR 1951 SC 441) and Ajay Singh v. State of Maharashtra [(2007) 12 SCC 341] and holding that the examination of an accused under section 313 Cr.P.C is not an empty formality besides expressing regret and concern over failure of the trial court to indicate the incriminating material to the accused. The decision in Shaikh Maqsood's case (supra) in so far as it is relevant reads thus:
8. "12.The purpose of Section 313 of the Code is set out in its opening words-- 'for the purpose of enabling the accused personally to explain any circumstances appearing in the evidence against him'. In Hate Singh Bhagat Singh v. State of Madhya Bharat it has been laid down by Bose, J.(AIR p.469, para 8) that the statements of the accused persons recorded under Section 313 of the Code 'are among the most important matters to be considered at the trial'. It was pointed out that:(AIR p.470, para 8) '8....The statements of the accused recorded by the committing Magistrate and the Sessions Judge are intended in India to take the place of what in England and in America he would be free to state in his own way in the witness box [and that they] have to be received in evidence and treated as evidence and be duly considered at the trial...' Crl.A.830/2008 27 This position remains unaltered even after the insertion of Section 315 in the Code and any statement under Section 313 has to be considered in the same way as if Section 315 is not there.
13.The object of examination under this section is to give the accused an opportunity to explain the case made against him. This statement can be taken into consideration in judging his innocence or guilt. Where there is an onus on the accused to discharge, it depends on the facts and circumstances of the case if such statement discharges the onus.
14.The word 'generally' in sub-section (1)(b) does not limit the nature of the questioning to one or more questions of a general nature relating to the case, but it means that the question should relate to the whole case generally and should also be limited to any particular part or parts of it. The question must be framed in such a way as to enable the accused to know what he is to explain, what are the circumstances which are against him and for which an explanation is needed. The whole object of the section is to afford the accused a fair and proper opportunity of explaining circumstances which appear against him and that the questions must be fair and must be couched in a form which an ignorant or illiterate person will be able to appreciate and understand. A conviction based on the accused's failure to explain what he was never asked to explain is bad in law. The whole object of enacting Section 313 of the Code was that the attention of the accused should be drawn to the specific points in the charge and in the evidence on which the prosecution claims that the case is made out against the accused so that he may be able to give such explanation as he desires to give.
15.The importance of observing faithfully and fairly Crl.A.830/2008 28 the provisions of Section 313 of the Code cannot be too strongly stressed:
'30....it is not sufficient compliance to string together a long series of facts and ask the accused what he has to say about them. He must be questioned separately about each material circumstance which is intended to be used against him...The questioning must, therefore, be fair and must be couched in a form which an ignorant or illiterate person will be able to appreciate and understand. Even when an accused person is not illiterate, his mind is apt to be perturbed when he is facing a charge of murder.....Fairness, therefore, requires that each material circumstance should be put simply and separately in a way that an illiterate mind, or one which is perturbed or confused, can readily appreciate and understand.' The same view was reiterated by the Hon'ble Supreme Court in Ranvir Yadav v. State of Bihar reported in (2009) 6 SCC 595.
9. For a proper appreciation of the contention of the appellant regarding inappropriate questioning under section 313 Cr.P.C as to the incriminating circumstance arising out of the evidence of PW10 and Ext.P11 wound certificate evidencing injuries on his Crl.A.830/2008 29 body and to see whether the aforesaid incriminating circumstance was appropriately put to the appellant to enable him to understand it as an incriminating circumstance and also to offer his explanation therefor, if any, it is only worthwhile to refer to the questions having, at least, some relevance with reference to the aforesaid incriminating circumstance put to the appellant during his examination under section 313 Cr.P.C. As regards the incriminating circumstance arising from Ext.P11 wound certificate as also the evidence of PW11, the following questions alone were put by the trial court:-
(Q) PW8 also states that Ext.P11 is the certificate prepared after examination of the accused .({]Xnsb ]cntim[n(v X?mdm!nb k@+n^n!AmWv Ext.P11 Fspw PW8 ]dbpsp.
(A) False (IfhmWv ).
(Q)PW10 states that on 16.8.02, Dr.V.S.Kumar issued Ext.P11 certificate on examination of the accused.Crl.A.830/2008 30
(16.8.02-\v tUmIvS@ V.S.Kumar {]Xnsb ]cntim[n(v Ext.P11 k@+n^n!Av issue sNbvXpshsv ]dbpsp.) (A) False (IfhmWv ).
10. A careful reading of the above questions put by the court to the appellant during his examination under section 313 Cr.P.C would reveal that apart from putting the question regarding what he got to say on the statements made respectively by PWs 8 and 10 regarding the issuance of Ext.P11, the court had not appropriately put the question so as to enable the appellant to understand the incriminating circumstance arising therefrom and to offer his explanation on such incriminating circumstance. True that the appellant had not offered any explanation as to the said statements made by PWs 8 and 10 whilst only described them as false. Ext.P11 wound certificate issued by PW10 would reveal that while noting two Crl.A.830/2008 31 superficial abrasions found on the body of the appellant each having 2= inches length and 2mm width the alleged cause of the said injuries was noted therein as hereunder:-
"Allegedly fell down when he was caught by one Mr.Siju when Mr.Siju assaulted him at 13.8.02, 7.30 P.M Chikkandamoola."
11. In the context of the contentions raised by the appellant, it is also relevant to note how the trial court used the said incriminating circumstance against the appellant after putting the above extracted twin questions. In paragraph 21 of the judgment, the trial court held:-
"From the evidence of PW10 it is clear that in Ext.P11 accused himself disclosed that the deceased Siju was present in his house and accused and Siju fell down and sustained injury. He also stated that Siju assaulted him on 13.8.02 at 7.30 p.m. In such a situation the evidence of PW4 is relevant that he heard the cry of the deceased is a connecting link in this Crl.A.830/2008 32 case. The evidence of PW10 and the evidence in Ext.P11 is also admissible to connect the presence of the accused in his house and a quarrel between the accused and the deceased. Eventhough Dr.V.S.Kumar who treated the accused was examined, I am of the opinion that the accused sustained injury in the quarrel and this is an admission made by the accused to the doctor. Nothing has been stated by the accused to show that he was acted in exercises of private defence.
Every person has right to defend his own body and the body of any other person against any offence affecting human body. Accused has no case that he has exercised the right of private defence when the decdeased assaulted him. In the absence of such a case, I can conclude that accused inflicted injury to an unarmed person."
12. A careful reading of the above extracted questions that were put to the appellant during his cross examination under section 313 Cr.P.C and the manner in which they were used against the appellant would undoubtedly reveal that the actual incriminating materials found available Crl.A.830/2008 33 against the appellant on account of the evidence of PW10 and from Ext.P11 wound certificate were not appropriately put to the appellant in such a manner to make him understand the incriminating aspect and to offer his explanation, if any, therefor. Fairness in a criminal trial makes it imperative on the court to draw the attention of an accused to every inculpatory material so as to enable him to explain it. Questions relating such incriminating circumstances must be so framed to enable the accused to understand the incriminating aspect and appreciate what use the prosecution desires to make of the evidence against him. In State of H.P. v. Wazir Chand reported in AIR 1978 SC 315, the Hon'ble Supreme Court held that the court should guard against cross-examination of the accused as he has to be questioned with Crl.A.830/2008 34 regard to the circumstance appearing against him in evidence and not the inference that flows from the circumstances. In short, to serve the purpose and object of the provision under section 313 Cr.P.C, the particular material circumstance appearing against the accused must be put to him in plain and simple language capable of conveying the incriminating aspect. Evidently, what was put to the appellant in his examination under section 313 Cr.P.C was that PW8 and PW10 stated in their oral examination that Ext.P11 certificate was issued after his examination. The fact that Ext.P11 is the wound certificate and that the appellant himself disclosed thereunder to Dr.V.S Kumar, that he sustained the injuries in the melee between him and the deceased were not specifically put to the appellant with a view to provide him the opportunity to offer Crl.A.830/2008 35 explanation, if any, on the said circumstance. Without indicating the said relevant details to the appellant, the said incriminating circumstance was relied on and inferences flowing from Ext.P11 was also drawn against the appellant. Going by the decisions of the Hon'ble Supreme Court in Harijan Megha Jesha v. State of Gujarat (AIR 1979 SC 1566), Sharad Biridhichand Sarda v. State of Maharashtra (AIR 1984 SC 1622) and Nirmal Pasi v. State of Bihar [2003 (1) Crimes 244], the circumstances not put to the accused have to be completely excluded from consideration. In short, we have no hesitation to hold that the aforesaid incriminating circumstance should not have been used against the appellant for the reason that it was not appropriately put to the appellant in his examination uder section 313 Cr.P.C.
13.Now, the question is whether on account Crl.A.830/2008 36 of the said lapse in not indicating the said incriminating circumstance to the appellant, he is entitled to get acquitted as contended. In that context, the observation made by the Hon'ble Supreme Court in the decision in Dayal Singh v. State of Uttaranchal (2012 Crl.LJ 4323) assumes relevance.
"28.Where our criminal justice system provides safeguards of fair trial and innocent till proven guilty to an accused, there it also contemplates that a criminal trial is meant for doing justice to all, the accused, the society and a fair chance to prove to the prosecution. Then alone can law and order be maintained. The Courts do not merely discharge the function to ensure that no innocent man is punished, but also that a guilty man does not escape. Both are public duties of the judge. During the course of the trial, the learned Presiding Judge is expected to work objectively and in a correct perspective. Where the prosecution attempts to misdirect the trial on the basis of a perfunctory or designedly defective investigation, there the Court is to be deeply cautious and ensure that despite such an attempt, the determinative process is not sub-served. For truly attaining this object of a 'fair trial', the Court should leave no stone unturned to do justice and protect the interest of the society as well."
The aforesaid decision would make it clear that Crl.A.830/2008 37 it is the duty of the court to ensure that a guilty man does not escape even while ensuring that no innocent man is punished. Therefore, while eschewing the incriminating circumstance which was not put to the accused in examination under section 313 Cr.P.C mentioned above, this Court has duty to see whether the rest of the circumstantial evidence could still form a complete chain, incompatible with the innocence of the appellant and unerringly point to his guilt or whether the remaining evidence is conclusive enough to attach culpability on the appellant-accused. We are also of the view that the society would be the ultimate looser in case of failure to discharge such a bounden duty. It is also to be noticed that it would open to the appellate court to call upon for explanation as regards such an incriminating circumstance established against an appellant- Crl.A.830/2008 38 accused, but not put to him by the trial court if it was found to be an omission on the part of the trial court as the appeal is an extension or continuation of original proceedings. [(See State v. Nalini (AIR 1999 SC 2640)]. But, if the court decides to eschew its consideration such a course of action is unwarranted. To attain the object of a fair trial in this case, we think it only appropriate to evaluate the other circumstances established by the prosecution to see whether even after eschewing the aforesaid incriminating material that was not put to the appellant, adhering to the object and purpose of section 313 Cr.P.C, whether an unbroken chain of circumstances unerringly point to the guilt of the accused would be available. If the answer is in the affirmative merely because of the lapse on the part of the trial court to Crl.A.830/2008 39 put the aforesaid incriminating material in the proper manner it cannot result in the acquittal of the appellant. We have already adverted to all the circumstances established by the prosecution sans the incriminating circumstance that was not put to the appellant and found that they form a chain and the chain of circumstances thus obtained is complete and incompatible with the innocence of the appellant and that it is consistent only with the hypothesis of the guilt of the appellant. When that be so, the contention of the appellant that on the failure of the trial court in not appropriately putting the particular incriminating circumstance as mentioned above should fetch acquittal to the appellant cannot be upheld. We are of the considered view that the eschewal of the aforesaid incriminating material would not Crl.A.830/2008 40 result in the breakage of the chain of circumstances in this case and even after its eschewal the chain of circumstances would remain in tact, complete and conclusive and it would unerringly point to the guilt of the accused. In such circumstances, we find no reason to interfere with the finding of the learned Sessions Judge that it was the appellant who inflicted the injuries that caused the death of Siju.
14. Now the question to be decided is what offence has been committed by the appellant? We have already found that injuries 1 and 2 noted by PW9 in Ext.P8 are sufficient in the ordinary course of nature to cause death. The said injury cannot be said to be inflicted accidentally. On the evidence it is proved that those particular injuries are inflicted intentionally by the accused and they are sufficient in the ordinary courses of nature to cause death. In the said circumstance Crl.A.830/2008 41 clause thirdly of Section 300 would apply. None of the exceptions in Section 300 would apply in the circumstances. Therefore the offence committed by the appellant is punishable under section 302 of Indian Penal Code. As regards the sentence only the lesser sentence of imprisonment for life is imposed by the learned Sessions Judge. In the said circumstance, we find no reason to interfere with the sentence as well.
Appeal is, therefore,dismissed confirming the conviction and sentence passed by the Sessions Judge, Kasaragod in S.C.139/2005.
M.SASIDHARAN NAMBIAR JUDGE C.T.Ravikumar Judge tpl/-spc M.SASIDHARAN NAMBIAR, J.
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W.P.(C).NO. /06
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JUDGMENT tpl/-
M.SASIDHARAN NAMBIAR & C.T.RAVIKUMAR,JJ.
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Crl.A.830 /2008
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JUDGMENT 6TH NOVEMBER,2012