Kerala High Court
State Of Kerala Rep. By Deputy vs Mohanan on 29 March, 2010
Bench: K.Balakrishnan Nair, P.S.Gopinathan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL.A.No. 1146 of 2005()
1. STATE OF KERALA REP. BY DEPUTY
... Petitioner
Vs
1. MOHANAN, S/O.KANIYAPARAMBIL KOCHUNNU
... Respondent
2. KRISHNAKUMAR, S/O.VADAKKUMCHERI
For Petitioner :PUBLIC PROSECUTOR
For Respondent :SRI.P.VIJAYA BHANU
The Hon'ble MR. Justice K.BALAKRISHNAN NAIR
The Hon'ble MR. Justice P.S.GOPINATHAN
Dated :29/03/2010
O R D E R
K.BALAKRISHNAN NAIR & P.S.GOPINATHAN, JJ.
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Crl.Appeal No.1146 of 2005.
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Dated this the 29th day of March, 2010.
J U D G M E N T
Gopinathan, J.
Appeal by the State assailing the judgment of acquittal in Sessions Case No.258/2001 on the file of the Sessions Judge, Thrissur. The Deputy Superintendent of Police, Thrissur prosecuted the respondents herein, the accused before the trial court, alleging offence under Section 341 and 302 read with Sec.34 IPC and Sec.3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. By judgment dated 4.2.2003, the learned Sessions Judge acquitted the respondents under Sec.235(1) of the Code of Criminal Procedure and set them at liberty. Aggrieved by the judgment, this appeal was preferred.
2. The prosecution case is that deceased Baiju, Son Crl.Appeal No.1146/2005.
-: 2 :- of Pw5, Saraswathy, belongs to Hindu Vettuva community which is a schedule caste as per Scheduled Castes/Scheduled Tribes (Prevention of Attrocities) Act, 1989. Respondents belong to Hindu Ezhava community which is neither scheduled caste nor scheduled tribe. Respondents, themselves, are alleged to be relatives. The first respondent has a daughter by name Sheena. Deceased Baiju and Sheena were in love. Though Pw5 and others put forward a marriage proposal, it was declined by the first respondent and others on caste consideration. Because of the affair between the deceased Baiju and Sheena, the respondents were nurturing enmity against Baiju.
3. The deceased Baiju was residing in K.E.R.1 Staff Quarters near Peechi Dam. Pw1, a friend of Baiju, is one of his neighbours and was residing in yet another staff quarters. On 26.12.1997 at 4.30 p.m. deceased Baiju and Pw1 proceeded to Mannuthy on a motor cycle ridden by the deceased Baiju. They roamed around the house of Sheena. Crl.Appeal No.1146/2005.
-: 3 :- While roaming, they met one of their friends, Shiji and they went for food in Green City Hotel at Pattikkad. By the time, they came to know that there was an NSS programme at Pattikkad school. Baiju and Pw1 decided to go there. They went to the nearby petrol pump, replenished fuel and proceeded. When they reached near Kuruveli Shopping Complex they took a turn hoping that they could go to the school through the road passing through the shopping complex. After proceeding a little ahead, they understood that they were in a wrong route. Pw1 asked Baiju to take a turn. While turning the motor cycle, the first respondent rushed to them and Baiju was stabbed at his chest and abdomen. To facilitate the stabbing, second respondent restrained Baiju by holding at his shoulder. Baiju and Pw1 fell down along with the motor cycle. Pw1 got up and rushed to the nearby police aid post and with the help of a police constable on duty, lifted Baiju with the knife in situ to the Medical College Hospital, Thrissur, where Pw6 was Crl.Appeal No.1146/2005.
-: 4 :- working as a Lecturer. Pw6 examined Baiju and declared dead. Leaving the body of Baiju at the hospital, Pw1 went to the Peechi police station wherein Pw7 was the Sub Inspector. He informed the matter. Pw7 recorded the statement given by Pw1 at 9.00 p.m. and registered a case as Crime No.210/97 for offence under Sec.341 and 302 read with Sec.34 IPC. Ext.P1 is the first information statement and Ext.P1(a) is the first information report.
4. Pw8, the Circle Inspector of Police, Ollur took over the investigation. He proceeded to the Medical College Hospital and seized MO1 knife which was handed over to him by Pw6, who removed the same from the body and kept in his custody. Ext.P3 is the seizure mahazar. He conducted inquest on the dead body and prepared Ext.P4 Inquest Report. While preparing the inquest report he seized the jeans, shirt, baniyan, brief, shoes and leather belt worn by the deceased, which were marked as MOs.4 to 9. Pw8, then proceeded to the spot of occurrence and Crl.Appeal No.1146/2005.
-: 5 :- prepared Ext.P5 scene mahazar. From the spot of occurrence, he seized a cap, spects, watch, chappals and blood stained clothes which were marked as MO2 and MOs.10 to 13. He, then went to the house of the first respondent bearing Door No.PP.V/336. A lorry bearing registration No.KLH 7713 was seen parked in a shed adjacent to the house of the first accused. Lorry was seized on the strength of a mahazar which was marked as Ext.P6. The left handle of the lorry and the number plates were found stained with blood. That blood was collected with a piece of cloth which was marked as MO14.
5. On 3.1.1998, the respondents were arrested. When interrogated, the first respondent stated that he had kept the clothes at his property and in the event he was led to that place, he would take it and hand it over. Accordingly, Pw8 went to the house along with the first respondent and seized two shirts, one lunki and one double dothi kept packed in a plastic cover. Ext.P7 is the seizure Crl.Appeal No.1146/2005.
-: 6 :- mahazar. MOs.15 to 19 are the articles so seized. The material objects seized were forwarded to the Chemical Examiner and obtained Ext.P10 certificate. Ext.P11 is a certificate certifying the community of the deceased. Pw8, on finding that offence under Sec.3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act was also disclosed, a report was filed to that effect. Further investigation was conducted by the Deputy Superintendent of Police who forwarded the final report to the Court of the Judicial Magistrate of the First Class-III, Thrissur, wherein it was numbered as CP.No.23/2000.
6. Finding that the main offences alleged are exclusively triable by a Court of Session, the learned Magistrate, after complying with requisite procedures, committed the case to the Court of Session by order dated 8.2.2001. The learned Sessions Judge took cognizance and issued process to the respondents who were released on bail during the investigation stage. On their appearance, Crl.Appeal No.1146/2005.
-: 7 :- after hearing the prosecution and the respondents, charge for offences under Sec.341 and 302 read with 34 IPC and Sec.3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 was framed. The respondents pleaded not guilty. So, they were sent for trial. On the side of the prosecution, Pws.1 to 9 were examined. Exts.P1 to P12 and MOs.1 to 19 were marked. During the course of the cross examination of Pws.1 and 2, certain portions of their case diary statements were marked as Exts.D1 and D2. When questioned under Sec.313 of the Crl.P.C., the respondents took a defence of total denial and further stated that they were implicated due to political motive. No defence evidence was let in. The learned Sessions Judge on appraisal of the evidence arrived at a finding that the prosecution failed to establish the offences alleged. Consequently, the respondents were acquitted.
7. To prove the occurrence, the prosecution examined Pws.1 to 3 of whom Pw3, a neighbouring shop Crl.Appeal No.1146/2005.
-: 8 :- keeper turned totally hostile. Pws.1 and 2 had given evidence supporting the prosecution.
8. Pw1 had deposed that he along with late Baiju proceeded from their house at 4.30 p.m. on 26.12.1997 on a motor cycle belonging to Pw1. They went through the side of the house of the first respondent. Baiju was in love with the daughter of the first respondent. On the way they met their friend Shiji. They spent some time along with Shiji and replenished petrol in the Bike from the nearby petrol pump and then they had their food from a hotel. While so, they knew that there was a programme of NSS at Pattikkad school. They proceeded to the school. On the way to the school they took a turn near the Karuveli shopping complex. Immediately they felt that they were on wrong route. Pw1 asked Baiju, who was riding the motor cycle, to take a turn. While they were turning the motor cycle, the respondents rushed to them and the first respondent stabbed three or four times at the chest and abdomen of Baiju. The 2nd Crl.Appeal No.1146/2005.
-: 9 :- respondent caught Baiju at his shoulders from back and thus restrained him. As a result of assault, both the riders fell down along with the motor cycle. Pw1 rushed to the nearby police aid post and requested for help. By the time the respondents left the scene. Baiju was lifted to the Medical College Hospital with knife in situ. For lifting Baiju, police constable on duty at the Aid Post and others assisted. The Doctor, after examining Baiju, declared him dead and that MO1 was the knife with which Baiju was stabbed and that he reported the matter to the police and that Ext.P1 is the first information statement. It was further deposed that while they were proceeding to Mannuthy, the second respondent was standing in front of the house of the first respondent and that when the incident occurred there was power cut. But, there were emergency lights in the nearby shops. It was also deposed that Baiju had told him that the first respondent was not interested in the love affair.
Crl.Appeal No.1146/2005.
-: 10 :-
9. Pw2 had deposed that he was running a cool bar near Peechi Police Station and that on 26.12.1997 between 7.00 and 7.30 pm. while he was waiting for a bus at Pattikkad bus stop, late Baiju and Pw1 were found riding a motor cycle. Following the motor cycle there was a lorry. Motor cyclist took a turn to the shopping complex. The lorry went a little ahead and stopped. The respondents alighted down from the lorry and they went to the motor cycle. The first respondent stabbed Baiju, the rider at his chest and abdomen with a knife and that while the first respondent was stabbing, the second respondent had been holding Baiju and that after stabbing Baiju, respondents returned to the lorry and drove away. He had also deposed that he could witness the incident in the light from the emergency lamps kept in the nearby shops and from the headlight of the vehicles passing thereby. Baiju was taken to the hospital. He had further deposed that Baiju was murdered since the first respondent was not agreeable to Crl.Appeal No.1146/2005.
-: 11 :- get his daughter married to Baiju, who had been loving her and that Pw2 had heard that Baiju was intimidated by the first respondent.
10. Pw6, who was working as Lecturer in Medical College, Thrissur had deposed that Baiju was brought dead to the hospital with knife in situ. He took out the knife from the body, kept in the hospital and handed it over to the investigating officer on the next day.
11. Pw9, the Asst.Professor of Forensic Medicine, Medical College, Thrissur had deposed that at 12.30 p.m. on 27.12.1997 he conducted autopsy on the body of Baiju and that Ext.P12 is the postmortem certificate issued by him. Pw9 had noticed the following 12 wounds:
1. Incised penetrating wound 5 x 2.3 cm horizontally placed on the front of chest in midline, 9 cm below upper end of sternum.
Both ends were sharply cut. The sternum was separated. The wound entered the left chest cavity through 5th intercostal space and terminated in the upper lobe of left lung by a cut 2.3 cm long 1.2 cm deep. The left lung was collapsed and the left chest cavity Crl.Appeal No.1146/2005.
-: 12 :-
contained 600 ml of blood. The wound was directed backwards and to the left for a total minimum depth of 6.5 cm.
2. Incised penetrating wound 6.3 x 2 cm obliquely placed on the right side of front of abdomen. Both ends were sharply cut. The upper outer end being 7.5 cm to the right of midline and 10 cm below and inner to right nipple. The wound entered the chest and abdominal cavity by cutting through the 8th space and 7th costal cartilage, cut the diaphrum and terminated in the right lobe of liver by a cut of 10.8 cm long and 6.5 cm in depth. The abdominal cavity contained 800 ml of blood. The wound was directed backwards and downwards for a total minimum depth of 9.5 cm.
3. Incised penetrating wound 4 x 1.6 cm obliquely placed on the right side of front of abdomen 0.9 cm below, injury No.2. Both ends were sharply cut. The wound entered the abdominal cavity and transfixed the mesentery and omentum and terminated in the right posterior abdominal wall between 11th and 12th ribs. The wound was directed backwards and downwards for a depth of 2.05 cm.
4. Superficial incised wound 1.2 x 0.3 cm obliquely placed on the right side of front of chest 3.5 cm above and inner to right nipple.
5. Abrasion 2.5 x 1.7 cm on the front of left leg Crl.Appeal No.1146/2005.
-: 13 :-
11 cm below knee.
6. Incised punctured wound 4.5 x 2.2 cm obliquely placed on the front of left thigh, the lower inner end 13 cm above knee. The upper end showed a side cut of 2.3 cm upwards and inwards. Both ends were sharply cut. The wound directed downwards and inwards for a depth of 8 cm.
7. Superficial incised 1 x 0.2 cm on the inner aspect of left hand between 1st and 2nd finger 7 cm above from the tip of thumb.
8. Two superficial incised wounds 1.2 x 0.2 cm;
1 x 0.2 cm, placed one above the other at 0.8 cm apart on the inner border of proximal segment of left 2nd finger.
9. Multiple small anrasopms over an area 2 x 1.6 cm on the back of left elbow.
10. Incised wound 5.2 x 1.4 x 4 cm obliquely placed on the left side of back of abdomen.
Both ends were sharply cut, the lower inner end 5 cm to the left of midline and 10.6 cm above giuteal line.
11. Superficial incised wound 1 x 0.4 cm on the right sides of back of trunk 9 cm to the right midline and 13 cm below lower end of shoulder blade.
12. Superficial incised wound 1.2 x 0.4 cm obliquely placed on the left side of front of Crl.Appeal No.1146/2005.
-: 14 :-
abdomen 20 cm below left nipple 5 cm to the left of midline.
12. Pw9 had further deposed that injury Nos.1 and 2 were individually capable of causing death in the ordinary course of nature. Injury Nos.1 to 4, 6 to 8 and 10 to 12 would be caused with weapon like MO1. The wounds were inflicted with a double edged weapon. Injury Nos.7 and 8 would be caused while defending the attack. Injury Nos.5 to 9 would be caused due to fall on a rough surface and that the injuries were sustained within seven hours of his last meal. The cause of death deposed by Pw9 was not at all challenged in cross examination. By the unchallenged evidence of Pw9, it is convincingly established that death of Baiju was a homicide. The question then remains is as to whether the respondents did it or not?
13. Pw1 was subjected to a searching cross examination. Only one contradiction was brought out in his evidence. During the course of investigation, on 3.1.1998 Crl.Appeal No.1146/2005.
-: 15 :- when Pw8 questioned Pw1 pointing out, presumably the second respondent, it was stated that the motor cycle was restrained by him. In the box he had denied of having seen the motor cycle restrained by any person. Other than that, there is no contradiction and his evidence supports the prosecution case in all material particulars. Ext.P1 first information statement would also corroborate with the evidence of Pw1 in material particulars.
14. It is the very case of the prosecution supported by the evidence of Pw1 that on the eve of the incident, Pw1 along with deceased Baiju had been roaming round on a motor cycle ridden by the deceased. They had proceeded to Pattikkad school where there was a programme. They took a turn near a shopping complex. After moving a little ahead they understood that they were on the wrong way and while turning the motor cycle the incident occurred. In the evidence, the registration number of motor cycle was not at all brought out. In Ext.P1 the registration number of the Crl.Appeal No.1146/2005.
-: 16 :- motor cycle is mentioned. It was also stated that the motor cycle was belonging to Pw1 and the deceased was riding the same and that due to the stab, the deceased and Pw1 along with the motor cycle fell down. Pw8 had been to the spot of occurrence for preparing Ext.P5 scene mahazar. The motor cycle was lying near the spot of occurrence. The number of the motor cycle was noted as KL-8/E 1133 in Ext.P5. That is the very number mentioned in Ext.P1. The blood stain found on the floor was collected by Pw8 with the help of a cloth. Regarding the spot of occurrence, there is no challenge in cross examination. Blood stains on the ground and the motor cycle lying on the spot lend support to the evidence of Pw8 regarding the spot of occurrence. The fact that Pw1 and the deceased were friends and while they riding the motor cycle, the unfortunate incident occurred, was not challenged in cross examination. Pw1 had also deposed that the knife with which Baiju was stabbed was in situ in the wound. That evidence was Crl.Appeal No.1146/2005.
-: 17 :- corroborated by the testimony of Pw6. It was Pw6, who removed the knife from the wound and handed it over to the investigating officer. That evidence of Pw1 is corroborated by Ext.P1. In Ext.P1 it is stated that deceased was stabbed twice or thrice. In the box he had deposed that the deceased was stabbed three or four times. Injuries found on the deceased would show that there were number of insiced wounds. We find that, for that reason, it may not be appropriate to disbelieve Pw1. Rather than the number of stab, the fact is that the deceased was stabbed more than twice. In the situation revealed out in this case, Pw1 may not be exact in counting the stabs. The medical evidence supports the evidence of Pw1.
15. Ext.P1 would show that it was given by Pw1 at 9 pm. on the same day. But in the box he had deposed that the statement was given at 8 or 8.30 am. on the next day. However, the Prosecutor didn't care to clarify the same. He ought to have done it. The evidence of Pw7, who recorded Crl.Appeal No.1146/2005.
-: 18 :- Ext.P1, would show that Ext.P1 was given by Pw1 at 9 pm. on the very same day. There is no suggestion to Pw1 or Pw7 that Ext.P1 was later concocted. There is no suggestion to Pw7 that there was any delay in forwarding Ext.P1 and Ext.P1(a) to the court. Ext.P1(a) would show that it was seen received in court at 2.15 p.m. on 26.12.1997. It appears that the date shown is not correct. It might be 27.12.1997 at 2.15 pm., because the incident alleged itself was happened at 7.30 pm. on 26.12.1997. The evidence of Pw8 who investigated the case would show that he reached the casualty department of the Medical College Hospital, Thrissur at 8 am. At what time he got information is not brought out. Pw8 had seized MO1 at 8 am. after preparing Ext.P3 seizure mahazar. Crime number is noted in Ext.P3. There is no suggestion to Pw8 that he went to the Medical College Hospital, Thrissur before Ext.P1 or before registering the crime. Such being the evidence of Pws.7 and 8, it appears that the time and date of the first Crl.Appeal No.1146/2005.
-: 19 :- information statement mentioned by Pw1 in Court is either a slip of tongue or because of the faded memory. Pw1 was examined 4 years and 11 months after the occurrence. So, the possibility for fading memory cannot be ruled out. We find that Ext.P1 was given at 9.00 pm. on the very same day as noted in Ext.P1 and deposed by Pw7 and there was no delay at all.
16. There is no case for the defence that the crime was committed at a different place or in any other manner or that it was not Pw1 who had taken Baiju to the hospital. What was suggested to Pw1 in cross examination is that the respondents were implicated due to suspicion. Pw1 had denied the same. It is not disputed that Pw1 was familiar to respondents. The name of the assailants and the address of the first assailant were specifically mentioned in Ext.P1 also. Of course, we do not forget that Pw6 had deposed that it was stated to him that an unknown person was the assailant. We cannot ignore the fact that Pw6 was not in Crl.Appeal No.1146/2005.
-: 20 :- the process of investigation, but he was examining the victim. So, he might not have been very particular to enquire as to who was the accused or to record the name of the assailant in the register. So long as the medical officer attending a medico legal case has no machinery to cross check the correctness of the statements given by the bystanders and they have no role in investigation, their query to the bystanders is to understand the cause and not the assailants. Probably, he might have seldom cared as to who was giving information. In the event, he was not informed about the name of the assailant, he may record in the manner stated by him. In the evidence of Pw1, it was not revealed that Pw1 had stated to Pw6 about the assailant. So, the evidence of Pw6 that it was stated to him that the assailant was an unknown person has no significance because, no other person who had witnessed the occurrence had been to the hospital. Someone who had not seen the incident might have stated so to Pw6. From the very inception of the crime itself the assailants names were mentioned by Pw1. In Ext.P1, Pw1 had even stated the address of the first Crl.Appeal No.1146/2005.
-: 21 :- respondent as well as the motive. Of course, the motive as stated in Ext.P1 was not brought in evidence. What was brought in evidence is that the deceased was in love with the daughter of the first respondent and that the first respondent was not interested in it. Since the motive is very specifically alleged in Ext.P1, the Public Prosecutor ought to have put it to Pw1 while he was in the box, but, not done. It appears that it was an omission by the Public Prosecutor. However, it is not disputed that the assailants are not familiar to Pw1. So, there is little chance for mistaken identity.
17. It was suggested to Pw1 that Baiju, who was an active worker and a leader of DYFI, had some conflict with BJP workers. Pw1 had deposed that he was not aware of it. Other than that suggestion, no material was brought out in evidence to find that Baiju was in conflict with any other person or that he had got any other enemies. The respondents also haven't got any case that Baiju had any Crl.Appeal No.1146/2005.
-: 22 :- conflict with any other people. Whereas, they stated that the case was because of the political enmity. There is no suggestion to Pw8 that he had any axe to grind against respondents, so as to cook up a false case. Neither there is any suggestion to Pw1 that he was motivated against the respondents so as to implicate the respondents with the offence alleged after sparing the true culprit. What was suggested to Pw1 is that some workers of the Marxist Party had been to the police station when Pw1 went there to give Ext.P5 statement. The deceased being a DYFI worker and if he had been loyal to Marxist Party, some workers of the Marxist Party might have gone to police station. If any such person had gone to the police station, there is nothing wrong and it is not a reason to come to a conclusion that within 1 = hours of the incident, Pw1 had an over thought to implicate a wrong person with an offence of murder, either with or without the intervention of any other person. Since Pws.1 and 2 were disbelieved by the Crl.Appeal No.1146/2005.
-: 23 :- trial court, we had a very careful and critical scrutiny of the evidence of Pw1. We find that in material particulars the evidence of Pw1 corroborate with the prosecution case except some minor discrepancies here and there, which are not affecting the core of the prosecution case. All relevant materials revealed by the evidence of Pws.1, 6 and 7 coupled with Ext.P1 lead us to arrive at an inference that it was the first respondent who had stabbed the deceased.
18. In disbelieving Pw1, in the impugned judgment, the learned Sessions Judge in paras.12, 14, 15, 16, 17 and 20 had given eight or nine reasons. Going by the judgment, we find that those reasons are very peripheral, imaginary and even the learned Sessions Judge had approached the evidence with a prejudice. In second paragraph of the judgment it is stated that 'the deceased Baiju, a member of the Vettuva community, who is a DYFI activist and a drop out from the college had found pleasure in wooing Sheena, a member of Ezhava community and that he had used to say his friends Crl.Appeal No.1146/2005.
-: 24 :- that nobody else will marry her as he had used to pacify his lust with her and spoiled her'. It appears that the learned Sessions Judge had a notion that the deceased was an unwanted or bad element and he was involved in such activities which can no way be justified. The learned Sessions Judge forgot the fact that the majority of the drop outs from our educational institution belong to scheduled caste or tribe. It is the social circumstances that make the students of the scheduled castes/tribes dropping out during their educational process. It is a social issue, which has no significance in the adjudication of this case. So also, a young man and woman falling in love,or having premarital sex or telling those stories to friends are not at all a sin or crime, though premarital sex may be against the morality in our culture. Whatever that may be, those are extraneous matters for the disposal of the case on hand. Starting a judgment in a session trial with contemptuous remarks against the victim is manifestation of a Crl.Appeal No.1146/2005.
-: 25 :- prejudiced approach. It is pertinent to note that as against the respondents, those matters constitute a strong motive. But in finding motive, those matters were not considered by the learned Sessions Judge. We feel that it is not a just and fair approach.
19. In para.14 of the impugned judgment it was mentioned that Pw1 is a DYFI activist, a some what militant association. There is no suggestion to any of the witnesses by the defence that DYFI is a militant association. It appears that the learned Sessions Judge had an extraneous notion that the deceased, who was a DYFI activist, was a militant person. The other observation in the judgment would make it appear that the learned Sessions Judge had a feeling that the crime was invited by the deceased himself. It is with that notion the learned Sessions Judge appraised the evidence. Irrespective of the drawbacks or demerits of an individual, he has the right to life - so guarantees the Constitution of India - the holy book of every citizen in our Crl.Appeal No.1146/2005.
-: 26 :- country. Nobody shall be allowed to take law in his hands. In the event, the deceased had committed any breach of law, it shall be dealt according to law. No crime shall go unpunished for the reason that the victim is a bad person. Such observations, unless otherwise warranted for the appreciation of the evidence, shall not find a place in a judgment. Such observations may sometimes influence the conclusion or tilt the balance. The learned Sessions Judge ought to have remembered that those in other world couldn't respond to such comments. By making such comments, the basic concept of the principle of natural justice 'audi alteram partem' - no man shall be condemned without affording an opportunity to be heard, is violated. Such comments should have been avoided.
20. In cross examination, it was suggested to Pw1 that the talk of area was that the deceased was stabbed by an unknown person. He stated that he didn't know about it. It was then suggested that four or five persons were Crl.Appeal No.1146/2005.
-: 27 :- stabbing the deceased. He stated that he didn't hear that. Then it was suggested that whether it was not reported so. He stated that he was not aware. It was also suggested that a week before the incident there was a clash between the deceased and his friends on one side and BJP workers on the other side. To that Pw1 had stated that he was not there for about two months and he came back only on the previous day of the incident. According to the learned Sessions Judge, since Pw1 and the deceased were very close, they would have certainly discussed the matter, that occurred during the absence of Pw1 from the place, immediately on his arrival. The learned Sessions Judge in disbelieving Pw1, had given undue importance to the evidence of Pw1 that he was unaware of the suggestions put to him. There is nothing to show that the suggestions made were either true or that Pw1 was aware of it. If such things not happened as suggested or Pw1 was not aware of it, he could give no better answer. It is crucial to note that Crl.Appeal No.1146/2005.
-: 28 :- neither the respondents had got any case that Baiju had any clash with BJP workers or any evidence was let in to the effect that Baiju had got any other rivals. That being the evidence on record, the suggestions to the witness in the box was nothing but beating the bush and requires no consideration to determine the credibility of a witness. The suggestion made to the witness are on hearsay information, which is not admissible. The learned Sessions Judge disbelieved Pw1 for his answer that he was not aware of matters, about which he has no direct knowledge It is a fundamental error. So long as there is no evidence to show that Pw1 had direct knowledge about the matters suggested in cross examination, witness shouldn't have been disbelieved for his answer that he was unaware.
21. To Pw1, it was suggested that he is a DYFI worker. He had denied the same and had deposed that he had no politics. But, Pw2, whom the Sessions Judge didn't believe, in cross examination had deposed that Pw1 is a DYFI activist. The learned Sessions Judge for that reason arrived a conclusion that Pw1 was suppressing the true facts. That is also not a fair Crl.Appeal No.1146/2005.
-: 29 :- approach in appreciating the evidence.
22. It was also observed that Pw1, being a DYFI activist, some what militant association, when the deceased was stabbed, Pw1, who was in the pillion, would have responded. But he has no case that he had responded. According to the learned Sessions Judge, for that reason the evidence given by Pw1 is highly improbable and that the evidence given by him is a story hatched about the cause of death. On the same time, the learned Sessions Judge omitted to note that the prosecution case in all material particulars starting from the assault to taking the victim to the hospital corroborate with the evidence of Pw1, the veracity of which couldn't be impeached in cross examination. The finding of the learned Sessions Judge that DYFI is some what militant association is not borne out by any records. It is an extraneous observation of the learned Sessions Judge, which is not at all warranted and is not sufficient enough to disbelieve Pw1. The power to respond vary from person to person. Irrespective of the political philosophy or other thinking, a man may look stunned or scared when a close friend or relative is Crl.Appeal No.1146/2005.
-: 30 :- brutally and suddenly assaulted. The evidence on record would show that Pw1 who was on the pillion did get no time to respond or rescue. Baiju was repeatedly and suddenly stabbed and assailants left the scene with knife in situ. Victim was shocked with assault, lost control of the vehicle and fell down with vehicle and Pw1 on the pillion. Pw1, even couldn't avoid falling down. In such circumstance, at no stretch of imagination we can agree with learned Sessions Judge that the failure of Pw1 to respond is any indication against Pw1 regarding his presence at the spot.
23. In disbelieving Pw1, the learned Sessions Judge had also noted that though Pw1 had a case that he along with the motor cycle and the deceased fell down, he had not sustained any injury and the absence of injury was taken as a reason to improbabilise the presence of Pw1 with the deceased. When Pw1, who was pillion rider and the motor cycle and along with the rider falling down due to a stab on the rider, it is not at all necessary that the pillion rider might have sustained injuries or scratches. So, the absence of scratch or injury, because of the fall, on Pw1 is not at all Crl.Appeal No.1146/2005.
-: 31 :- a reason to conclude that he was not along with the rider, the deceased. Adding to that, when a friend of Pw1 was stabbed to death, always the attempt would be to rescue and when the death occurred, the attention would be for the funeral and other related matters. Pw1 might have even ignored his minor injuries if at all sustained. In the event, if Pw1 had sustained some minor scratches or injuries and he didn't go to the hospital or to make record of the same, that is also not at all a reason to disbelieve him.
24. Yet another reason that was stated by the learned Sessions Judge to disbelieve Pw1 is that someone, who accompanied the deceased to the hospital stated to Pw6 that the stab was by an unknown person and that in the normal course, the person who accompanied the deceased to the hospital must have made it and the statement regarding the cause would have been recorded in the register and the failure to produce the register in which the entry was made was with a view to suppress the fact that Pw1 had given such a Crl.Appeal No.1146/2005.
-: 32 :- statement. That observation is also not correct because there is nothing to conclude that even if that register is brought into evidence, any further material other than what was deposed by Pw1 would be revealed, either in favour of the prosecution or in favour of the accused. We had earlier mentioned that the Doctor who attended the victim was not probing about the assailants, whereas his attention would be for managing the victim and in the event there was any omission to mention the name of the person who accompanied the victim/deceased to the hospital or failed to record the name of the assailant, it is not at all a reason to disbelieve Pw1 whose evidence, as we stated earlier, is corroborated in all material particulars.
25. Yet another reason stated is that during the cross examination, Pw1 had admitted that party local committee member directed him to give evidence. In fact, there is no such evidence given by Pw1. It was suggested to Pw1 that a member of the local committee of the Marxist Party had Crl.Appeal No.1146/2005.
-: 33 :- been to the police station to which Pw1 had answered that he was inside the police station. So, that is also not a reason to disbelieve Pw1. Even if it is believed that any of the party workers of the Marxist Party had been to the police station, it is not at all a reason to disbelieve Pw1 because, there is no case that the respondents were at logger heads with the party workers or that Pw1 or the party workers had any other ulterior motive to substitute the real culprits.
26. Yet another reason mentioned by the learned Sessions Judge to disbelieve Pw1 is that he had deposed that he sought the assistance of the police personnel on duty at the police out post and brought two police constables for taking the victim to the hospital. But those constables had not recorded any statement. Though it was revealed out that there was a police constable in the police out post, what are the facilities available there to record the first information statement is not revealed. There is no Crl.Appeal No.1146/2005.
-: 34 :- suggestion to Pws.7 or 8 that there was crime recording facility at the out post. In the above circumstance, it is to be concluded that there was no crime recording facility at the police out post. So, the omission of any such police personnel at the out post to record the statement of Pw1, that too before taking the victim, who was seriously assaulted, is not at all a reason to reject Ext.P1 or the evidence of Pw1 in toto.
27. The last reason that was given by the learned Sessions Judge to disbelieve Pw1 is that Pw1 had deposed that Ext.P1 statement was given on next day morning and it might be after a prolonged deliberation. We had earlier found that the evidence of Pw1 that Ext.P1 was given on the next day is not at all probable. Adding to that, there is no material to show that in between the occurrence and the recording of the statement, there was any external interference or there was any room for an after thought to cook the case against innocent persons after sparing the Crl.Appeal No.1146/2005.
-: 35 :- real culprits, especially in the absence of materials to find that Pw1 was anyway motivated against the respondents.
28. In our considered opinion, we find that the reasons stated by the learned Sessions Judge to disbelieve Pw1 are neither legal nor sustainable. The reasons stated, which we discussed earlier in detail, would show that those reasons are either peripheral or extraneous or even imported from his imagination. The minor discrepancies in evidence of Pw1 are nothing but the discrepancies of truth. It is not at all affecting the core. In this case evidence was recorded after a gap of five years. There is every possibility for minor discrepancies. When evidence is recorded after a long gap, the veracity of the testimony of witness need be doubted only if there is no discrepancy at all. There is no material to come to a conclusion that Pw1 was anyway motivated against the respondents so as to implicate them with a grave crime after sparing the real culprits. We find that regarding the cause of death, the evidence given by Pw1 Crl.Appeal No.1146/2005.
-: 36 :- instill confidence. The defence suggested during the course of trial is that the victim might have been assaulted by some one else as reported in one of the dailies. Neither the daily was brought in evidence nor the reporter was examined, nor any evidence was let in to bring on record that any other person was the assailant. Even if newspaper reports are brought on record, they are ordinarily, unreliable as they form only hearsay evidence.
29. The evidence of Pw1 would show that the first respondent was not well with the deceased because of his love affair with the daughter of the first respondent. That fact was not shaken in cross examination. Pw5, the mother of the deceased had deposed that twice or thrice the first respondent had been to her house and the deceased was intimidated. She had also deposed that she had gone to the house of the first respondent and put forward the marriage proposal. But the evidence of Pw8 would show that during the course of the investigation, Pw5 had not stated that she had gone to the house of Pw1 and advanced the marriage proposal. To that extent, there is some development in the Crl.Appeal No.1146/2005.
-: 37 :- evidence of Pw5. But that is not at all a reason to disbelieve the evidence of Pw5 that the deceased Baiju was in love with the daughter of the first respondent and the first respondent had been to the house of Pw5 and intimidated the deceased. It was also deposed by Pw5 that she belongs to Vettuva community. Whereas the first respondent belongs to Ezhava community. It was revealed that the deceased was a college drop out. In the normal course, the first respondent would not find favour with his daughter marrying a college drop out man belonging to another community, which is considered to be of a lower strata. When all these circumstances taken together, we find that the evidence of Pw5 that the first respondent was motivated against the son appears to be convincing. The motive alleged by the prosecution stands proved. The learned Sessions Judge had observed that motive is a double edged weapon. In this case, such observation is not at all correct. There is nothing brought out to show that Crl.Appeal No.1146/2005.
-: 38 :- Pw1 or Pw5 had any motive against the respondents to falsely implicate them with the murder. Respondents hadn't even such a suggestion.
30. Going by the evidence of Pw2, we find that it is not safe to rely upon his evidence. According to him, he who has been residing at Peechi was proceeding to Thrissur and on the way he alighted down at Pattikkad and thus he had occasion to witness the incident. It was revealed out that Pattikkad where the incident occurred is not enroute from Peechi to Thrissur. According to him, on the way to Thrissur he went to Pattikkad and had been waiting for the bus to Thrissur. He had admitted that from Peechi, without coming to Pattikkad, he could straight away go to Thrissur and that, to go to Thrissur, he had to go to the west from the highway, and towards Pattikkad, he had to go towards east from the national highway. So, the explanation of Pw2 as to how he reached at Pattikkad on his way to Thrissur is not at all convincing. He had deposed that the assailants Crl.Appeal No.1146/2005.
-: 39 :- were travelling in a lorry behind the motor cycle and when the motor cycle took a turn through the road along the side of a shopping complex, the lorry was stopped a little ahead, the assailants alighted down from the lorry, went to the spot, assaulted Pw1, returned to the lorry and drove away. It is crucial to note that Pw2 claims to be a worker of the same political party in which deceased was working. But he has no case that he had gone to the hospital or he shared efforts to take the victim to the hospital. He had not noted the registration number of the lorry. To the police, he had stated that the deceased was stabbed with something. In the box he had stated that the deceased was stabbed with a knife. According to Pw2, the incident occurred when there was power cut and he witnessed the incident in the light from the emergency lamps in the nearby shops and also the light from the head lights of the vehicles passing through the Highway. His evidence is not convincing. So, we find that the learned Sessions Judge had correctly Crl.Appeal No.1146/2005.
-: 40 :- disbelieved him.
31. From the evidence of Pw1 we find that the deceased was assaulted by none else other than the first respondent. Though there is no mention in the evidence of Pw1 as to where did the assailant go after the crime, in Ext.P1 it was stated that the assailant had gone to the highway and left the scene in a lorry parked along the side of the road. It was the evidence of Pw2 also. It appears that it was following that statement the investigating officer had seized a lorry which was parked in a shed near the house of the first respondent. According to the investigating officer, there were blood stains on the handle of the lorry as well as on the number plates. But, there is evidence lacking to show that the blood stain noted is that of the deceased. However, the vehicle in which the assailants left the scene is not of much relevant, especially when the blood stains said to have been found on the lorry is not proved to be that of the deceased.
Crl.Appeal No.1146/2005.
-: 41 :-
32. Though, the evidence of Pw1 is that while the first respondent was stabbing the victim, the 2nd respondent had been holding the victim at his shoulder from his back and thus restrained him, on a close scrutiny of the evidence, we fail to come to a conclusion that to facilitate the first respondent stab the victim, the 2nd respondent restrained the victim. There is no material to come to a finding that the second respondent had any intention to commit murder or that had not Baiju been held on his shoulders by the 2nd respondent, he wouldn't have been stabbed to death by the first respondent. Since the victim was on the motor cycle and he was in the process of turning the motor cycle; and thus he himself was in a confined position and unable to escape or even to respond or ward off the assault, there was no necessity for the 2nd respondent to restrain the victim to facilitate the stabbing. In the above circumstances, we are of the opinion that the second respondent is entitled to the benefit of reasonable doubt. At the same time we find that Crl.Appeal No.1146/2005.
-: 42 :- the prosecution had succeeded to establish an offence under Sec.302 IPC as against the first respondent. There is little material to come to a conclusion that the first respondent stabbed the deceased all on a sudden provocation or that the stabbing was not with intent to commit murder. The repeated stabbing would show that the first respondent had no lesser intention than to commit murder of the deceased. So, he is liable to be convicted under Sec.302 IPC.
33. Though offence under Sec.3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, was also alleged, there isn't any whisper in the evidence of any witness that the offence was committed for the reason that the victim belonged to a scheduled caste or tribe; or for the reason that assailants are belonging to a caste other than scheduled caste/scheduled tribe. There is no material on record even to frame a charge for that offence.
Crl.Appeal No.1146/2005.
-: 43 :-
34. Normally, if the view taken by the trial court is probable, we shouldn't have interfered in a judgment of acquittal. Here in this case, not only the view taken by the court below is not probable, but also against ground reality. Pw1 was disbelieved on picking holes from here and there. There is total failure on the side of the learned Sessions Judge to read the evidence as a whole. Undue regard was given for minor discrepancies, which are of truth and for negligible omission in the investigation process, like failure to procure the accident-cum-wound certificate register. To disbelieve Pw1, the learned Sessions Judge had even imported materials, which he had either presumed or believed so, like DYFI, is a militant association in which Pw1 and deceased were members or activists. The reasons stated by the learned Sessions Judge to acquit the first respondent are not at all justifiable whereas it is extraneous and there is utter failure to appreciate the evidence in its correct perspective. All Crl.Appeal No.1146/2005.
-: 44 :- relevant materials were not at all considered. The result is that the finding is perverse and against the evidence on record. In such circumstances, High Court has a duty to interfere and to arrive at a correct conclusion taking a view different from the conclusion arrived at by the trial court. Or else, the result would be failure of justice.
35. It has been settled by various decisions of the Apex Court that interference in appeal against acquittal is permissible only when the finding of the trial court is perverse and contrary to law and facts. Thanedar Singh v. State of M.P. [2002(1) SCC 487]; Bodhraj v. State of J & K [(2002) 8 SCC 45; Kallu v. State of M.P. [2006(10) SCC 313] Chandrappa v. State of Karnataka [2007(4) SCC 415] and Batcu Venkiteshwaralu v. Public Prosecutor, High Court of Andhra Pradesh [2009(1) Crimes 252 (SC)] are some of the leading decisions whereby it is ruled that to interfere with the order of acquittal, there should be convincing reasons for differing with the decision of the trial court and if the Crl.Appeal No.1146/2005.
-: 45 :- conclusions arrived by the trial court are probable on the evidence, it shall not be interfered even if an alternate view is possible.
36. In Bodhraj's case (supra) the Apex Court further held in para.29 as follows:
".......[B]ut where the relevant materials have not been considered to arrive at a view by the trial court, certainly the High Court has a duty to arrive at a correct conclusion taking a view different from the one adopted by the trial court."
Here, as held by the Apex Court, in Bodhraj's case, the learned Sessions Judge had failed to consider the relevant materials revealed in evidence. At the same time he had given undue importance to extraneous and peripheral materials to disbelieve Pw1. As a result, the balance of justice was tilted against ground realities resulting denial of justice. Therefore, we are constrained to interfere with, to the extent mentioned above. In the result, first respondent is liable to be convicted for offence under Sec.302 IPC. Crl.Appeal No.1146/2005.
-: 46 :-
37. With the materials on record, we find that this is not a rarest of the rare case so as to award the maximum punishment. We find that minimum punishment of imprisonment for life with direction to pay of Rs.One lakh as compensation to Pw5 would meet the ends of justice.
In the result, the appeal is allowed in part. While reversing the judgment of acquittal against the first respondent, he is convicted for offence under Sec.302 IPC and sentenced to imprisonment for life. He is further directed to pay Rs.One lakh as compensation to Pw5 under Sec.357(3) of the Code of Criminal Procedure. In default of payment of compensation, the first respondent shall undergo simple imprisonment for a further period of two years. The first respondent is entitled to set off under Sec.428 of the Code of Criminal Procedure, in the event the sentence against him is commuted under Sec.433 Crl.P.C. In all other respects the judgment of the learned Sessions Judge would stand confirmed. The trial court shall see the Crl.Appeal No.1146/2005.
-: 47 :- execution of the sentence and report compliance. The first respondent shall surrender forthwith before the Sessions Judge for execution of sentence.
K.BALAKRISHNAN NAIR (Judge) P.S.GOPINATHAN (Judge) Kvs/-