Kerala High Court
Reji vs State Of Kerala Represented By on 29 June, 2012
Author: V. K. Mohanan
Bench: V.K.Mohanan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE V.K.MOHANAN
FRIDAY, THE 29TH DAY OF JUNE 2012/8TH ASHADHA 1934
CRL.A.No. 741 of 2007
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[AGAINST THE ORDER DTD.23.4.2007 IN SC.685/2005 of ADDITIONAL DISTRICT
& SESSIONS COURT (ADHOC-I), ERNAKULAM]
APPELLANT(S)/ACCUSED IN SC 685/2005:
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REJI, S/O.IYPE PAULOSE,
VAZHAPPILLYKUDIYIL HOUSE, KOMBANADU,PERUMBAVOOR.
BY ADVS.SRI.P.P.JACOB
SRI.B.MANIMOHAN
RESPONDENTS(S)/COMPLAINANT IN SC.NO.685/2005:
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1. STATE OF KERALA REPRESENTED BY
PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.
2. THE CIRCLE INSPECTOR OF POLICE,
KURUPPUMPADY POLICE STATION,PERUMBAVOOR.
R1 BY PUBLIC PROSECUTOR SMT.LALIZA.T.Y.
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 29-06-2012,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
V. K. MOHANAN, J.
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Crl.A.No. 741 of 2007
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Dated this, the 29th day of June, 2012
JUDGMENT
The challenge in this appeal is against the judgment dated 23.4.2007 in S.C.No.685 of 2005 of the court of Additional Sessions Judge (ADHOC-I), Ernakulam at the instance of the sole accused therein, by which the appellant herein is found guilty under Section 307 of I.P.C.
2. The prosecution case is that the accused attempted to commit murder of PW1 by forcefully administering poison to PW1 in an ambassador car driven by the accused as PW1 compelled him to marry her and the said incident has taken place at 3 p.m. on 14.1.2004 in front of Kuruppampadu St.Mary's Jacobite Syrian Church at the by-lane, leading to the church from Aluva-Munnar road at Rayamangalam Village.
3. On the basis of the above allegation, Crime No.42/2004 was registered in the Kuruppampady Police Station for the offence under Section 307 of I.P.C., and when the investigation Crl.A.No.741 of 2007 :-2-:
was completed, a formal report was filed in the committal court viz., Judicial First Class Magistrate Court, Perumbavoor wherein CP No.87/2004 was instituted and subsequently, the learned Magistrate committed the case by his order dated 7.9.2005 in the above proceedings and accordingly, S.C.No.685 of 2005 was instituted. When the accused appeared in the trial court, after hearing the prosecution as well as the accused, a formal charge was framed against the accused for the offence punishable under Section 307 of I.P.C. and when the same was read over to the accused, he denied the same and pleaded not guilty, consequently, the prosecution adduced its evidence by examining Pws.1 to 12 and producing Exts.P1 to P8. Though no defence document is produced, Dws.1 and 2 were examined from the side of the defence. No material object is produced by the prosecution. Finally, the learned Judge of the trial court has found that the prosecution has proved its case beyond reasonable doubt that the accused administered poison on PW1 and thus found that the Crl.A.No.741 of 2007 :-3-:
accused attempted to murder PW1 by his act to do away with her. Thus, the accused is found guilty for the offence punishable under Section 307 of I.P.C. and he is convicted thereunder. On such conviction, the accused is sentenced to undergo rigorous imprisonment for three years and to pay fine of Rs.10,000/- and in default, he is directed to undergo simple imprisonment for two more months. It is also ordered that if the fine amount is recovered, the same shall be paid to PW1 as compensation under Section 357 of Cr.P.C. Set off was allowed. It is the above finding and order of conviction and sentence challenged in this appeal.
4. I have heard Sri.P.P.Jacob, learned counsel for the appellant and Smt.Laliza, learned Public Prosecutor for the State.
5. To substantiate the prosecution allegation against the accused and particularly, to prove the incident, the prosecution mainly depends upon the evidence of PW1 who is none other than the victim in this case. When PW1 was examined, she has deposed that she was in love with the accused for six years before the Crl.A.No.741 of 2007 :-4-:
incident and the accused was a driver by profession. According to PW1, as she was 23 years of old, during the above period, several marriage proposals were brought by the family and she had averted the same. It is the further case of PW1 that on the date of the incident, at the instance of the accused, and on his invitation, she came out from the house with a pair of dress and the accused brought a car and they travelled together in the above car talking about the problems that she faces in her house. Thus, according to PW1, she demanded the accused to marry her, but he replied that he was unable to marry her and to take her to his home. According to PW1, they travelled in the said car from 10.45 a.m. till 3 p.m. during which they have taken cooldrinks and chips. It is the further case of PW1 that when the car reached at Kuruppampadi, the same stopped and the accused asked PW1 to get out of the car and PW1 was not prepared to oblige that demand and she again demanded the accused to marry her. But the accused was not prepared for the same. It is the further allegation of PW1 that Crl.A.No.741 of 2007 :-5-:
when the accused got down from the car and asked her to consume something which he gave to her and when PW1 was reluctant to consume the same, the accused forcefully thrust the said material into her mouth and she felt dizzy and uneasiness. According to her thus she was taken to the Government Hospital, Perumbavoor and then to L.F.Hospital, Angamaly. She has stated that with respect to the above incident, she gave a statement to the Police and she identified the same as Ext.P1 and the same was given on 31.1.2004 when she was in the I.C.U. of the Little Flower Hospital at Ankamaly.
6. PW2 is the mother of PW1, who says that she had gone to the hospital and met PW1 where she was admitted. She has also stated that PW1 was not willing to accept the two or three marriage proposals brought to her. PW3 is the owner of the car in which the accident was allegedly occurred. According to PW3, he had employed the accused to drive the car during the period when PW1 was in the hospital. PW4 is a grocery shop owner. According Crl.A.No.741 of 2007 :-6-:
to him, she knows PW1 and she had travelled in a car driven by the accused. PW4 has stated that as directed by PW1, he had made telephone call to bring the car. PW5 was a Panchayath Member during the year 2004. When he was examined, it is deposed that he knows PW1 and he was one among the persons, who had taken PW1 to Little Flower Hospital, Ankamaly. He had also stated that besides himself, the car driver viz., Johny and the driver PW1 Eldhos were also with them. He had also stated that PW1 was unconscious and taken to the Little Flower Hospital in the car and he knows the accused. According to him, the accused was in the Perumbavoor Hospital and he had also come to the Little Flower Hospital. He had also deposed that the accused has not stated anything when they were going to the hospital. He had also stated that he had heard about the love affairs of the accused and PW1. He had also deposed that after some days of the incident, he had gone to the house of the accused with the father of PW1 to speak with the accused. But, Reji was not available in the house. He had Crl.A.No.741 of 2007 :-7-:
also deposed during the cross-examination that he was told that PW1 was taken to the Hospital by the accused and the accused told him that the poison was consumed in the car. PW6 is a shop owner in the locality who is an attestor to Ext.P3 scene mahazar. PW7 is also an attestor to Ext.P4 mahazar prepared for the seizure of the car.
7. PW8 is the then Assistant Surgeon, Taluk Head Hosptial, Perumbavoor who examined PW1 and issued Ext.P5 wound certificate. When PW8 was examined, she had deposed about the examination done by her on PW1 and the issuance of Ext.P5 certificate. According to PW8, she referred PW1 to a major hospital doubting the case as Organo Phosphorous poison. PW9 is the then Casualty Medical Officer of the Little Flower Hospital, Ankamaly who issued Ext.P6 certificate. When she was examined, he testified that he examined PW1 with a complaint of Organo Phosphorous poison on 14.1.2004 and the patient was treated as inpatient and discharged on 10.2.2004. PW9 is of the opinion that Crl.A.No.741 of 2007 :-8-:
poisoning was serious and PW1 would have died if she was not properly attended to. PW10 is the then Village Officer of Rayamangalam Village who prepared Ext.P7 site plan with respect to the scene of occurrence. It was PW11, who recorded Ext.P1 F.I.statement of PW1 and registered Ext.P8 F.I.R. in the Kuruppampady Police Station. The investigation was undertaken by PW12 the then C.I. Of Police, Kuruppumpadi. When PW12 was examined, he had deposed that he had prepared Ext.P3 scene mahazar and seized the car as per Ext.P4 seizure mahazar. According to him, the accused could not be arrested as he was absconded. He had also stated that he had questioned the witnesses and recorded their statement. During the cross- examination, he was not able to state about the person who pointed out the scene of occurrence. He had also stated that there were several shops and persons near the place of occurrence. He had also deposed that no inspection was done in the car. He deposed that he is aware of the solid substance viz, furdan. He had also Crl.A.No.741 of 2007 :-9-:
stated that he had questioned CW8 and CW8 has stated that the remnants of the poison was brought and shown by Eldho, but the said Eldho was not questioned by him. He had also admitted during the cross-examination that in the car, there would have been the possibility of the presence of poison, but it would not be seen after some days. If examined immediately after the incident, the same could have been detected. PW12 has also stated that when he was asked as to whether he had noticed any mark of force exerted on PW1, he said, he did not examine her body. He had also stated that he is aware that they have talked about the marriage. He had also deposed that the accused, who had taken PW1 to the Perumbavoor Hospital, thereafter the accused with the help of the people of PW1, had taken her to the Little Flower Hospital. It is on the basis of the above evidence and materials, the trial court convicted the appellant.
8. Sri.P.P.Jacob, learned counsel for the appellant submitted that the story of PW1 is unbelievable as she is not Crl.A.No.741 of 2007 :-10-:
reliable, especially when she is inimical to the accused. Learned counsel submitted that the evidence of PW1 is not helpful for the prosecution since her evidence contains full of contradictions and infirmities. According to the learned counsel, the facts brought on through the examination of PW1 are not probable and no prudent man can believe the same. It is also the submission of the learned counsel that the investigation was improper and illegal and during the trial of the case, the prosecution has miserably failed to produce the material and also to prove that what allegedly administered by the accused to PW1 was poison. In support of the above submission, it is pointed out that the investigating agency has not traced out the remnants of the material, allegedly used by the accused. It is the further submission of the learned counsel that there is serious omission from the part of the prosecution in examining the brother of PW1 and thereby suppressed the material facts from the scrutiny of the court. It is also the submission of the learned counsel that there is no reliable evidence to show that the Crl.A.No.741 of 2007 :-11-:
accused had possessed the poison so as to administer the same to the victim/PW1. Learned counsel has also pointed out the material contradiction in the prosecution case. As per the police charge, the accused forcefully put the poison at the mouth of PW1 whereas in Ext.P1 F.I.statement, according to PW1, after opening the packet, the accused himself had taken it and put it into the mouth of PW1 with force. But, during the examination of PW1, she has stated that the cover containing poison itself inserted to the mouth. So, regarding the overt act, the police version and the version in Ext.P1 F.I.statement and the deposition of PW1 are contradicting each other. The learned counsel has pointed out that there is no sufficient medical evidence to prove that the accused has administered poison on PW1/the victim. It is also the submission of the learned counsel that even as per the scene of occurrence and site plan, there were various shops near to the scene of occurrence and the locality is busy, but nobody has been examined from the locality to prove the incident and thus, the independent evidence is Crl.A.No.741 of 2007 :-12-:
prevented by the prosecution. Learned counsel has strongly argued that the prosecution has miserably failed to trace out the source of the poison since no material is produced by the prosecution to show that the poison was in his possession. According to the learned counsel, there is unexplained substantial delay in registering the F.I.R. Since though the incident has allegedly taken place on 14.1.2004, the F.I.R. was registered only on 31.1.2004 and the said delay is not properly explained.
9. It is the further submission of the learned counsel that even as per the evidence and materials of the prosecution, it was the accused who has taken the victim firstly to the Government Hospital, Perumbavoor and thereafter, to the Little Flower Hospital at Angamaly, which fact points towards the innocence of the accused. According to the learned counsel, going by the prosecution allegation, there is every possibility for PW1 to consume the poison, since as per the prosecution allegation, the accused refused the request of PW1 to marry her Crl.A.No.741 of 2007 :-13-:
and to take her to his home and the fact that the accused rescued the victim to the hospital to save her life to show that he is innocent and he is in no way responsible for the incident taken place on 14.1.2004. Thus, according to the learned counsel for the appellant, the trial court miserably failed to consider the above facts and circumstances involved in the case according to its true perspectiveness, but wrongly found that the accused has committed the offence charged against him. Thus, the counsel submitted that the above finding and order of acquittal, conviction and sentence are liable to be set aside. In support of his contention, the learned counsel placed reliance upon the decisions reported in Ramgopal v. State of Maharashtra [AIR 1972 SC 656] and Harijana Thirupala v. Public Prosecutor [2002(6) SCC 470].
10. On the other hand, Smt.Laliza, learned Public Prosecutor strenuously submitted that the prosecution has succeeded in proving its allegation by adducing cogent and satisfactory evidence. The learned Public Prosecutor has submitted Crl.A.No.741 of 2007 :-14-:
that the accused has not disputed the love affairs between himself and the victim. It is also the submission of the learned Public Prosecutor that the evidence of PW1, PW3 and PW4 would show that on the date of the incident, right from 10.45 a.m. the accused was in the company of PW1 till PW1 is taken to the Little Flower Hospital, Angamaly. Therefore, it was upto the accused to give a proper account as to how the incident has taken place, submits learned Public Prosecutor. After taking me through the deposition of PW1, the learned Public Prosecutor submitted that the deposition of PW1 positively proves as to how the accused administered the poison on PW1. Learned Public Prosecutor pointed out that in this case, PW1 is the victim, who has undergone treatment as an inpatient, till he was discharged as per Ext.P6 discharge certificate. Therefore, according to the Public Prosecutor, in the light of the settled legal position, the evidence of the injured victim can be safely acted upon to prove the incident. It is also submitted that the evidence of PW1 is free of Crl.A.No.741 of 2007 :-15-:
contradiction and infirmities. According to the learned Public Prosecutor, absolutely there was no delay in registering the F.I.R. since though PW1 was taken firstly to the Hospital at Perumbavoor, she was not in a position to speak as froth was coming from her mouth and as on that day itself, she was shifted to the Little Flower Hospital wherein she was admitted in the I.C.Unit and therefore, she had no occasion to furnish the information and complaint to the appropriate authorities at that time. According to the learned Public Prosecutor, the conduct of the accused immediately after the incident is also relevant in the present case and he was absconding and therefore, the investigating agency could not arrest him and also the remnants of the poison could not be traced out. Thus, according to the learned Public Prosecutor, the finding of the court below is fully supported by material and evidence and therefore, no interference is warranted.
11. I have carefully considered the arguments advanced by counsel for the appellant as well as the learned Public Crl.A.No.741 of 2007 :-16-:
Prosecutor and I have carefully gone through the judgment impugned and also through the evidence and materials on record.
12. In the light of the rival arguments advanced and in the light of the evidence and materials on record, the question to be considered is whether the trial court is justified in its finding and convicting the appellant for the offence under Section 307 of I.P.C.
13. The crux of the prosecution allegation is that aggrieved by the persistent demand of PW1 to marry her and to take her to the house of the accused, he attempted to commit murder of PW1 by administering poison on her. Going by the evidence and the materials and the stand of the accused, it can be seen that the accused is not disputing the case of the prosecution that himself and PW1 were in love for last six years. It is the version of PW1 that when her family brought proposals for marriage, she was not amenable for that and thus, on the date of the incident, she came out of her house with a pair of dress as directed Crl.A.No.741 of 2007 :-17-:
by the accused and after contacting the accused over phone, she joined with the company of the accused and they were travelling in the car driven by the accused at about 10.45 a.m. onwards, on the date of the incident and during their journey, they have discussed the problems faced by PW1 in her house. It is the further case of PW1 that when the car reached at the place of occurrence, the accused got down from the car and asked PW1 to get down, but she was not prepared for the same. Thus, according to PW1, the accused came to the back seat and asked her to eat some substance appears to be snuff given to her for which also according to PW1, she was not amenable. According to PW1, when she declined to the demand of the accused to consume the substance, she stated that at that time the accused forcefully put the same into her mouth. She had also stated during her chief examination that thereafter, she got a feeling of heaviness in her head. But, during the cross- examination, regarding the above incident, her version is that paper packet was not given to her hands and the same was not opened Crl.A.No.741 of 2007 :-18-:
and shown to her and according to her, the packet was so thin that one could easily hold in hand and the accused offered her to consume it. But, she did not receive it. Then, she stated that the same was put to her mouth and pressed with force. It is also stated that the accused pressed her cheeks. She had further stated that the poison did not put into her mouth through her hands. She has also stated that paper has not gone to her mouth. According to her, the accused put the same on his hands and thereafter put to her mouth. As rightly pointed out by the learned counsel for the appellant, in the police charge as well as in the court charge, the allegation is that the poison was put in the hands of PW1 and thereafter, the accused put her hands forcefully into the mouth of the victim/PW1. So regarding the overt act of the accused and how the poison was allegedly administered on PW1, PW1 has no consistent and acceptable case. Therefore, the allegation of PW1 that accused administered poison on her, cannot be believed safely.
14. In this juncture, it is relevant to note that PW1 has Crl.A.No.741 of 2007 :-19-:
stated that while they were travelling together, they have consumed cooldrinks and chips and PW1 has no case that she had noticed any paper packet or something like that in the possession of the accused. Suffice to say during the deposition of PW1, she has also not stated as to from where the accused has taken the paper cover as alleged by PW1. It is quite impossible to believe the version of PW1 that the accused tried to administer poison forcefully into the mouth of the victim at the place where there are several shops and persons. During the cross-examination, she has stated that the car was stopped on the road where there is frequent vehicular traffic and there are shops within 50 meters. She had also stated that the nearby shops were opened. She had also stated that she had not noticed whether persons in the shop noted them. She further stated that if she cries, the persons in the shop can hear the same. In the light of the above facts and the surroundings where the car was stopped, no prudent man is prepared to believe the case of PW1 that the accused tried to administer poison on PW1 as alleged. So Crl.A.No.741 of 2007 :-20-:
the evidence of PW1, though she is the victim, cannot be safely relied upon, for convicting the accused.
15. It is further relevant to note that though the alleged incident was on 14.1.2004, the F.I.R. was registered only on 31.1.2004 on the basis of Ext.P1 F.I.statement recorded on 31.1.2004. The delay, according to me, is not properly explained by the prosecution. PW1 herself deposed that she was taken to the Government Hospital, Perumbavoor firstly and she was examined by PW8 who issued Ext.P5 wound certificate. As per Ext.P5 wound certificate and as per the deposition, during the examination of PW8, it is proved that PW1 was conscious. No evidence is brought on record by the prosecution to show that PW1 was not in a position to speak about the incident when she was brought to the Government Hospital, Perumbavoor. Though the learned Public Prosecutor has pointed out that the froth was coming from the mouth of PW1 at that time, that is not a ground to hold that PW1 was unable to speak about the incident to the Doctor, unless there Crl.A.No.741 of 2007 :-21-:
is positive evidence to that effect. Suffice to say, no attempt was made by the prosecution by putting question to PW8 to get admission in this regard during his examination. In this juncture, it is relevant to note that as per the evidence of PW1 and PW5, the accused as well as one Eldho, the brother of PW1 were also present in the Government Hospital at Perumbavoor. The said Eldho is not cited as charge witness and he was also not examined by the prosecution because of the reason best known to them. Had the brother of PW1 got any grievance or complaint against the accused, the said brother could have set the law in motion by giving a timely information to the Police. PW8 and the hospital authorities are also bound to intimate the Police since the case of PW1 is a medico-legal one, but no explanation is sought for by the prosecution from PW8, in her failure in intimating about the case of PW1 to the Police. Those facts re-inforce the case of defence that PW1/the victim herself consumed the poison. It is also pertinent to note that on the same day itself, the victim was Crl.A.No.741 of 2007 :-22-:
removed to the L.F.Hospital, Ankamaly she was attended by PW9, who issued Ext.P6 discharge certificate. During the examination of PW9, in the chief examination itself, he had stated as follows:-
"Accidentally intimation late .
Accidentally mean it was not with her knowledge." So the above version of PW9 shows that the victim or her relatives are not intended to intimate the incident to the Police. The use of the word 'accidentally' by PW9 has much relevance in the light of the facts and circumstances involved in the case, especially in the absence of any positive evidence to show that without her knowledge, it safely reached in the body of PW1. Though PW5 Panchayath member was also present in the Hospital along with the brother of the victim. None of those persons gave information to the Police with respect to the incident. Thus, according to me, the prosecution has miserably failed to explain the delay that occurred in registering the crime against the accused. In the light of the evidence and materials referred in this connection and the Crl.A.No.741 of 2007 :-23-:
discussion thereon, the only conclusion that can be arrived is that either PW1 or his relatives has no grievance against the accused probably for the reason that the incident was happened as PW1 herself volunteered to consume poison, as the accused declined her request to marry her.
16. As I indicated earlier, the allegation of the prosecution against the accused is that he tried to commit murder of PW1 by administering poison. The medical evidence does not suggest as to what kind of poison administered by the accused on PW1. There is no expert opinion or medical evidence in this regard. The prosecution has also miserably failed to trace the name of the substance allegedly given by the accused. PW1 has no case that the accused was in possession of poison when she joined with the accused on the date of the incident. PW1 has also no case that she had witnessed as to how the accused got possession of the poison, if any. During the cross-examination of the investigating officer PW12, he had deposed that when CW8 was questioned, he Crl.A.No.741 of 2007 :-24-:
had stated as follows:-
" Eldho
. Eldho- ."
and thus, it is crystal clear that though the investigating agency
has got an ample opportunity to trace out the remnants of the poison after consumption by PW1, from the possession of the brother of PW1, no investigation was conducted in this regard and even the said brother of the victim was not questioned and examined as a witness. The non-action on the part of PW12 in this regard pre-supposes the innocence of the accused since the accused and the victim are in love and according to the prosecution, the accused was not amenable for the persistent demand of the victim to marry her. So, absolutely there is no scientific and legal evidence to show that the accused had administered poison on PW1.
17. In the light of the above facts and circumstances and the evidence and materials referred to above and the foregone Crl.A.No.741 of 2007 :-25-:
discussion, I am of the view that the prosecution has miserably failed to prove beyond reasonable doubt its allegation against the accused and therefore, I am unable to uphold the conviction recorded by the trial court and accordingly, by extending the benefit of doubt in favour of the accused, the conviction recorded against the appellant is set aside and the accused is acquitted.
In the result, this appeal is allowed setting aside the judgment dated 23.4.2007 in S.C.No.685 of 2005 of the court of Additional Sessions Judge (ADHOC-I), Ernakulam and the appellant/accused is acquitted of all the charges levelled against him and the bail bond, if any, executed by him shall stand cancelled and he is set at liberty. This appeal is accordingly allowed.
V.K. MOHANAN, JUDGE.
MBS/ Crl.A.No.741 of 2007 :-26-: