Kerala High Court
Gopi vs State Of Kerala on 24 August, 2009
Bench: A.K.Basheer, P.S.Gopinathan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL.A.No. 970 of 2005()
1. GOPI, S/O. CHELLAPPAN,
... Petitioner
Vs
1. STATE OF KERALA,
... Respondent
For Petitioner :SRI.M.RAJAGOPALAN NAIR
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice A.K.BASHEER
The Hon'ble MR. Justice P.S.GOPINATHAN
Dated :24/08/2009
O R D E R
A.K.BASHEER & P.S.GOPINATHAN, JJ.
== = = = = = = = = = = = = = = = = = Crl.Appeal No.970 of 2005.
= = = == = = = = = = = = = = = = = = Dated this the 29th day of June, 2009.
J U D G M EN T Basheer, J.
The appellant was tried for the offences punishable under Sections 447, 324 and 302 IPC. He was found guilty and convicted and sentenced to undergo rigorous imprisonment for one month for the offence under Sec.447 IPC. He was sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rs.5,000/- with a default sentence of rigorous imprisonment for six months for the offence under Section 324 IPC and for the offences punishable under Sec.302 IPC he was sentenced to undergo imprisonment for life and to pay a fine of Rs.10,000/- with a default sentence of rigorous imprisonment for two years. It was further directed that if the fine amount was realised from the appellant, a sum of Rs.5,000/- shall be paid to PW1 as compensation under Sec.357(1) of the Code of Criminal Procedure.
2. The prosecution case may be briefly noticed.
3. On November 4, 2000 at about 12.30 p.m. deceased Appu was having his lunch in his house. At that time PW1 who had been living with deceased Appu, as his second wife, had gone out near the well in the residential compound of their property to fetch some firewood. According to PW1, appellant/accused came and stood in the lane in front of their house and abuse her in filthy language. Pw1 asked the accused to go away. But the accused snatched a log of firewood (MOI) from her hands and hit on her head. She evaded the hit with her right hand. In that process she sustained any injury on the elbow. She cried aloud and fell down on the ground. At that time deceased Appu came to the scene and picked her up from the ground. The accused hit deceased Appu on his abdomen with MO1 wooden log. Deceased Appu sustained a bleeding injury on his abdomen and he bent down. At that time accused hit deceased Appu on his head with MOI, Appu fell down on the ground on his nose. PW1 stated that the brain matter came out of the skull of Appu. It was bleeding. She sat down and put the head of Appu in her lap. Accused hit PW1 on her head again which fell on the right side of her head. Accused went away towards north in the direction of the residence of Uthaman with MOI wooden log in his hand. According to PW1, the accused went away from the scene saying that Appu should not remain alive to speak falsehood against anybody and that he had come to finish him off. PW1 also stated that some people had come to the scene hearing her cry. Her son was also at the scene. She took the injured to Medical College Hospital, Thiruvananthapuram along with her son and Uthaman. Police recorded her statement at the hospital (Ext.P1) at about 3.30 p.m. Later, Ext.P1(c) First Information Report was registered by the police at 5.30 p.m. on the same day. Initially the police had registered the crime against the accused only for the offences punishable under Sec.447 and 324. But later Sec.307 IPC was also incorporated. Still later, Sec.302 IPC was incorporated after the death of Appu. Investigation was completed and charge sheet was laid subsequently.
4. Prosecution examined PW1 to PW13 and marked Exts.P1 to P10 and MOI and MOII on its side. Exts.D1 to D4, which were contradictory portions of the case diary statements of PW1, PW2 and PW5 were mared on the side of the defence.
5. The learned Sessions Judge after considering the oral and documentary evidence on record held that the prosecution had succeeded in proving the charge against the accused under Sections 447, 324 and 302 IPC. Accordingly, appellant/accused was convicted and sentenced under the three counts as mentioned above.
6. It is contended by learned counsel for the appellant that the court below has committed serious illegality in relying on the highly contradictory versions given by PWs.1, 2 and 5 regarding the alleged incident. He further points out that even going by the recital in Ext.P4 scene mahazar prepared on the next day of the alleged incident, there were fell tale marks of a scuffle involving more than three or four people. Several material objects at the alleged scene of occurrence, which under normal circumstances would have been very crucial pieces of evidence in a criminal prosecution. never saw the light of the day. He has also invited our attention to the material contradictions (Exts.D1 to D4) marked in the course of the examination of witnesses, which according to him, will cut at the root of the prosecution case. In short, it is contended by the learned counsel that the evidence on record did not in any way establish that the alleged incident could have taken place as claimed by the prosecution.
7. Per contra, it is contended by the learned Public Prosecutor that PWs.1, 2 and 5 being rustic witnesses had narrated the incident in a totally convincing manner. It is true that there were some glaring defects in the investigation; but still, the court below was justified in holding the appellant guilty of the offences alleged against him.
8. PW1 claimed that she had been living with deceased Appu as his wife (though there was no legal marriage) along with her minor son born in her first marriage with one Surendran. On the day of the incident deceased Appu had gone for work as usual, in the nearby property of Uthaman. He came back at about 12.30 and was having his lunch in the house. At that time PW1 wanted to collect some firewood kept near the residential compound across the lane. About ten meters away while she was collecting firewood from their property the accused came and stood in front of her house in the lane near the courtyard. Accused abused her in filthy language. She told him to go away. According to PW1, at that time the accused snatched away one piece of firewood (wooden log) and hit her on her head. She tried to evade the hit in which process the hit fell on her right elbow and sustained a wound. She fell down and cried aloud. Appu came to the scene and lifted her from the ground. At that time the accused hit Appu on his head with MOI wooden log. He sustained an injury on his head, Appu get down on his abdomen and went down. When the accused hit Appu on his head with MOI wooden log, Appu fall down on his face. The brain material came out of his skull with blood. PW1 kept the head of Appu on her lap and cried. Thereupon the accused hit PW1 again on her head with MOI. She sustained a wound on the right side of her head. The accused went towards the house of Uthaman with MOI on his hand. According to PW1, while going away from the scene the accused stated that Appu should not remain alive to speak falsehood against nobody and it is therefore that he had come there to finish him off. PW1 identified the wooden log produced before the Court as MOI. According to her, PW2, her son was also there at the scene of occurrence. She took Appu to the Medical College Hospital, Thiruvananthapuram along with Uthaman and her son. Police recorded her first information statement at the hospital. She identified her signature in Ext.P1. Appu remained in the intensive care unit of the hospital till he died on the seventh day (Appu died on Novermber 9, 2000 as is revealed from the records). PW1 further stated that the accused was enimically disposed of towards deceased Appu, since the latter had spoken to the police against one Mohanan, a close friend of the accused, in the course of an enquiry conducted by the police in connection with a complaint. It is because of the statement given by deceased Appu against Mohanan that the accused had assaulted him.
Pw.2, the son of Pw.1 who was aged about 9 years at the time of the alleged incident stated that he saw the accused hitting deceased Appu with M.O.1 wooden log. He further stated that he had seen the incident while he was standing along with his mother (Pw.1), Leela (Pw.5), Sura, Uthaman, Ani and Kuttappan. According to this witness, the accused hit Appu with M.O.1 on his head. Initially he had stated that the accused had not hit anyone else. But when he was prompted by the Public Prosecutor he answered that the accused had hit his mother also before hitting Appu. The accused had abused both of them, according to this witness. Ext.D2 was marked in the course of examination of this witness. In this contradictory portion of his statement given before the Police he had stated that he had come out of the house along with his mother and stood in the courtyard and seen the incident. He further stated that he had gone near the well after hearing his mother's call. Deceased Appu had come to the scene later. We will deal with the evidence of this witness further, a little later.
10. Pw.3, Assistant Professor, Department of Forensic Medicine, Medical College, Trivandrum conducted autopsy on the body of the deceased and issued Ext.P2 post mortem certificate. The doctor had noted 11 injuries including an infected bed sore on the back (injury No.11). The injuries (ante mortem) are extracted hereunder:
"1.'^' shaped sutured lacerated wound on the right side of top of head the front end of the longer inner limb (2.5 cm long and 0.5 cm deep) being 1 cm. to the right of midline and 12 cm above the root of nose. The front end of the outer short limb (1.5 cm long and 0.5 cm deep) was 12 cm above the top of right ear.
2. Sutured lacerated wound 1.5 cm. long and 0.5 cm. deep vertical on the top of head in the middle 8 cm. above the root of nose.
3. Sutured lacerated wound 2 cm. long and 0.5 cm. deep obliquely placed on the right side of forehead, its lower inner end being 1 cm. to the right of midline and 5.5. cm.
above the root of nose.
4. Sutured infected wound 2 cm. long and 0.5 cm. deep surrounded by an abrasion 2 x 2 cm. on the right side of forehead 1 cm. to the right of mid line and 1 cm. above eyebrow.
The scalp on the forehead and adjacent part of top and sides was seen contused over an area 23 x 14 x 1cm. and was dark red in dolour. The frontal and parietal bones underneath showed commuted fracture over an area 16 x 9cm with fissured fractures extending to both temporal bones.
Extradural haematoma 14 x 11x 2 cm. dark red in colour was seen on both temporo parietal areas with corresponding indentation on the surface of brain. Brain showed bilateral dark red sub arachnoid bleeding, softening inright busal ganglion (2 x 1 x 0.5 cm.) and signs of raised intra cranial tension.
5. Infected wound 1 x 0.5 x 0.3 cm. on the root of nose.
6.Infected wound 2 x 2 x 0.3 cm. on the right ala of nose.
7. Multiple linear abrasions over an area 6 x 2 cm. on the front of right forearm 8 cm.
above wrist.
8. Contusion 16 x 15 x 0.5 cm. bluish on the right side of lower abdomen and adjacent part of front of thigh just to the right of symphysis pubis and over and around the top of hip bone with multiple linear abrasions over an area 6 x 4 cm. on the top of hip bone.
9. Multiple small abrasions over an area 4 x 4 cm. along the lower margin of injury on the front of thigh.
10. Abrasions 3 x 2 cm. on the left side of front of chest 10 cm. to the left of mid line and 16 cm. below collar bone.
11. Infected bed sore 3 x 1.5 x 0.2 cm. on the back of head overlying occipit."
Pw.3 in Ext.P2 as well as in her deposition stated that the victim died due to head injury.
11. Pw.4 was the Scientific Assistant who issued Ext.P3 report after examining M.O.1 wooden log. He examined the log in August, 2001 (nearly nine months after the incident). In Ext.P3 report he stated that the wooden stick contained blood which was insufficient for determining the origin and group. The certificate was issued by him on November 12, 2001.
12. Pw.5 is the other material witness on the side of the prosecution. She had been admittedly residing on the southern side behind the residence of Pw.1 which is slightly in an elevated position. This witness stated that at about 12.30 p.m. she heard a hue and cry from the residence of Appu. She saw Pw.1 lying on the ground. Deceased Appu and Pw.2 were standing nearby. The accused was also standing near them with a wooden log. When deceased Appu tried to lift Pw.1 from the ground, the accused hit him on his head with the wooden log. Deceased Appu warded off the hit with his left hand. It hit on his left hand. The accused hit again which fell on the head of Appu. He fell down on his face. Pw.1 kept the head of Appu in her lap. At that time the accused gave another blow on the head of Pw.1. The accused ran towards the house of Uthaman with M.O.1. Pw.5 also spoke about the words allegedly spoken by the accused while running away. This witness categorically stated that Sura alias Surendran and Uthaman were standing at the scene of occurrence seeing the incident. She had pointed out the scene of occurrence. She stated that she did not know the reason for animosity which led to the incident. We will revert to the evidence of this witness also, a little later.
13. Pw.6 stated that she was residing on the northern side of the residence of the deceased. At about 12.30 p.m. on November 4, 2000 she saw the accused running from the side of the well in the residential compound of Appu with M.O.1 in his hand towards the residence of Uthaman. She had given a complaint to the Director General of Police against one Sadasivan and Divakaran alias Mohanan alleging that they had falsely implicated her son Josy Abraham in a case. According to her, these two persons had given a false complaint against her son Josy Abraham and 8 others alleging that they had inflicted cut injuries on them. Though the 9 accused had approached the Magistrate's Court and the Sessions Court seeking anticipatory bail, they did not succeed. It was thereafter that she had given a complaint before the Director General of Police alleging that her son and others were falsely implicated in the case. In connection with the enquiry pursuant to the complaint given by her, some higher Police Officials had conducted an enquiry two weeks prior to the death of Appu. While he was questioned by the Police Officers, deceased Appu had allegedly given a statement against Divakaran alias Mohanan. The prosecution case was that the accused who was a close friend of Mohanan became inimical towards deceased Appu after he gave such a statement against Mohanan before the Police.
14. Pw.7 was an attestor to Ext.P4 scene mahazar. Pw.8 attested Ext.P5 inquest report. Pw.9 Head Constable recorded Ext.P1 First Information statement of Pw.1 and registered Ext.P1(a) First Information Report.
15. Pw.10, Sub Inspector took up the investigation of the case and visited the scene of occurrence on November 5, 2000. He prepared Ext.P4 scene mahazar and recovered M.O.1 wooden log used for commission of the crime allegedly from very near to the scene of occurrence, about 5 meters away from the residence of Cw.6. In the course of investigation he filed Ext.P6 report incorporating Section
307. In cross examination this witness admitted that M.O.1 wooden log was produced by him before the court. But he admitted that it was received in the court only on July 31, 2007, about 8 months after the incident. He said he could not give any explanation for the delay. He thought that M.O.1 might have been kept in the Police Station in order to show it to the witnesses. He further stated that in Ext.P4 mahazar it had not been stated that there were blood stains on M.O.1. He further stated that he did not record that brain matter had been found in the soil, at the scene of occurrence.
16. Pw.11 the Circle Inspector of Police took over the investigation on November 8, 2000. He conducted inquest on the body of the victim and prepared Ext.P5 inquest report. He filed Ext.P8 report before the court requesting to delete Section 307 IPC and to incorporate Section 302 IPC. He arrested the accused on November 29, 2000 at about 6.45 p.m. He recovered two ten rupee notes from the pocket of the accused which were marked as M.O.2 series. In cross examination this witness stated that on November 8, 2000 when he took over the investigation he had instructed Pw.10 sub Inspector to produce M.O.1 before the Court.
17. Pw.12, Circle Inspector, Nemom stated that he conducted investigation in the crime from July 23, 2001 till July 15, 2002. He verified the records and submitted charge sheet before the court after questioning Cw.14. Ext.P9 scene plan prepared by the Village Officer was marked through th is witness.
18. Pw.13 was working as Lecturer in Surgery in the Trivandrum Medical College Hospital during the relevant period. On November 4, 2000 at about 2.10 p.m. he had examined Appu and issued Ext.P10 wound certificate. He deposed before the Court that he noted only the following injury:
"Multiple small laceration scar. Bleeding from right ear. "
He further noticed that the patient was drowsy and disoriented. The alleged cause of injury was assault at Choozhattukotta at 12 noon on that day.
19. As mentioned earlier, Pws.1, 2 and 5 had allegedly witnessed the occurrence. Pw.1 stated that the accused came towards her and snatched away one wooden log from her hand and hit on her head. But she warded it off with her hand. It is the specific case of Pw.1 that she received a wound on her hand. She fell down on the ground. At that time her husband came to the scene hearing her cry and lifted her up from the ground. The accused hit deceased Appu on his abdomen with M.O.1 wooden log. He sustained a bleeding injury on his abdomen. When Appu bent down because of the impact of the hit on his abdomen, the accused hit him on his head. Appu fell down to the ground face down.
20. It is significant to note that Pw.1 stated that brain matter came out of the bleeding skull of deceased Appu. She put the head of deceased Appu on her lap and cried. At that time the accused gave another blow on his head with M.O.1 stick. The specific case of Pw.1 was that she was wearing a kyli (coloured dhoti) at the time of the incident. In cross examination this witness conceded that large quantity of blood had been oozing out from the abdomen of Appu. But when it was pointed out that she had no case before the Police that deceased Appu was hit on his abdomen with M.O.1 stick, she stated that she had said so before the Police. Similarly she had also told the Police that when Appu had bent down because of the impact of the hit on his abdomen the accused had hit him on his head. She also stated that she had told the Police that the brain matter had come out of the skull of deceased Appu. The above versions were absent in her statement before the Police.
21. What is significant is that this witness asserted that the red kyli which she had been wearing at the time of the incident was smeared with brain matter and blood. She categorically stated that she did not show the Kyli to the Police. According to her, she changed her kyli and wore a saree before going to the hospital with Appu. Similarly the towel (thorthu mundu) which was used to wipe off the blood on the head of Appu was also left at the scene of occurrence. She further stated that she used another towel (thorthumundu) for bandaging the head of Appu, which she took from her house. Curiously this witness stated that the kyli which she had been wearing at the time of occurrence was still available at home. She further stated that Police had questioned her for the second time three months after the incident. Even at that time she did not choose to show the kyli to the Police. The Police also did not ask her about the same. The towel which was used as a bandage on the head of Appu while he was taken to the hospital was left behind at the hospital. That was also not produced before the Police, since according to her she did not see it. This witness insisted that she had told the Police about the kyli and the thorthu which she had left behind at the scene of occurrence. But she could not say why such a statement was absent in the statement recorded by the Police. She had also informed the Police that the brain matter and blood were splashed on the ground. She also stated that she did not show the Police the saree she was wearing when she went to the hospital. The Police did not seize it.
22. One other striking aspect in the evidence of this witness is that she had taken Appu to the hospital in the autorickshaw of one Ani along with Uthaman and Pw.2 But neither Uthaman nor Ani was examined before the court. But Pw.2 , in no uncertain terms, stated that Suran and Uthaman were present at the scene apart from Pw.1, Pw.5 and Kuttappan when the incident took place. He had a further case that uncle Sura, Ani Annan, Kuttappan uncle apart from him and Pws.1 and 5 had been watching the incident. Pw.5 had categorically stated that Suran alias Surendran and Uthaman were there at the scene of occurrence. But the prosecution did not choose to examine Suran, Uthaman, Kuttappan or Ani. There is no explanation for the non examination of these material witnesses.
23. In the course of cross examination of Pw.1, it had also come out that deceased Appu had been wearing a lunki with green lines at the time of the incident. She had stated that brain matter and blood were found on the lunki. When she was questioned whether it was produced before the Police, she stated that it was changed in the ICU. at the hospital. She forgot to hand it over to the Police. As regards the thorthumundu which was left behind at the scene of occurrence, her version before the Police was that her "relatives" had burnt it. But she disowned that statement in the court. That portion of her statement was marked as Ext.D1. Similarly she stated that she had told the Police about the oral abuse made by the accused before leaving the scene. But she could not say why that portion was missing from her statement recorded by the Police. Though in cross examination she had stated that she could not remember who had furnished the necessary information to the doctor about the injuries on the deceased, later in re- examination she stated that she was present when the doctor examined the deceased. She stated that herself, Uthaman and Ani had told the doctor (Pw.13) as to how the incident had taken place. As has been noticed already, Pw.13 in Ext.P10 certificate had recorded the history and alleged cause of injury as only "alleged assault" at Chuzhattukotta at 12 noon.
24. Coming to the evidence of Pw.2, the son of Pw.1, he categorically stated that he saw the incident standing along with Pw.1, Pw.5, Uncles Sura, Uthaman, Kuttappan and Ani. In cross examination this witness admitted that firewood had been kept in a heap near the well. Pw.1 had also stated that she had gone near the well to collect a few pieces of firewood kept near the well. But in Ext.P4 scene mahazar there is not even a mention of any firewood being stocked there.
25. Pw.2 stated in his cross examination that he had told the Police that he ran towards the well. Though he had stated so before the Police, he could not say why such a statement was absent in the statement recorded by the Police. He further stated that he had not told the Police that he had remained in the courtyard of the house itself and he had not gone near the well because he was frightened. He admitted that he had stated so before the Police. But according to him that was not correct. He had in fact gone near the well. Similarly the other embellishments or contradictions (Exts.D2 and D3) in the deposition of this witness brought out during his cross examination were never stated before the Police at the time when he was questioned. We do not propose to refer to each and every one of them. He disowned Ext.D3 statement given to the Police by which he had told the Police that the thorthu used for giving a bandage to the head of Appu was available at home. He also asserted that he had mentioned the names of all the people like Sura, Uthaman, Kuttappan etc. before the Police. But if such a statement is absent, she could not say why.
26. Pw.5 stated that she was in her kitchen when she heard some hue and cry from the residence of deceased Appu. According to her, she went to the residence of Appu and saw Pw.1 lying on the ground. It is not necessary to repeat what she had stated in her chief examination or refer to various embellishments and contradictions/omissions in her evidence. Significantly, according to this witness, the accused had not hit deceased Appu on his abdomen as stated by Pw.1. Incidentally Pw.2 had also no such case. The specific case of Pw.5 was that the accused had hit Appu on his head which was warded off by him with the left hand. Accused hit him once again on his head, consequent to which Appu fell down on the ground face down.
27. It could be noticed that as regards the specific overt acts of the accused there is marked variation in the evidence of these three material witnesses. Pw.5 had a further case that Sura alias Surendran and Uthaman had witnessed the incident. But for some unknown reasons these two persons were not examined, as has been mentioned earlier. More significantly and quite contrary to what she had stated earlier in the deposition, Pw.5 in her re-examination deposed that she had seen the incident standing in her residential compound.
28. There is yet another vital aspect of the matter. According to Pw.1 she had sustained cuts or injuries not only on her hand but also on the right side of her head. But no doctor was examined to prove that she was examined at the hospital. No wound certificate had also been produced. But in cross examination this witness had a specific case that she was examined by a doctor and she was advised to be admitted in the hospital. According to her she was given a bandage on her hand. Sutures were also put on her hand and head. According to her she did not get herself admitted because there was nobody to remain as a bystander with deceased Appu. In this context it may be remembered that deceased Appu was admittedly put in the Intensive Care Unit till his death, right from the day of his admission. Therefore there was no question of allowing any bystander in the ICU.
29. Pw.1 further stated that the same doctor (Pw.13) who had examined deceased Appu had examined her also. According to her the doctor had examined her first and she had told him about the cause of injury. Doctor had noted them down. Though in cross examination this witness went on to say that she did not remember who had told the doctor about the injury sustained by Appu, in re-examination, as has been noted already, she had stated that those details were furnished by Ani and Uthaman. But significantly these witnesses were not examined, as mentioned already.
30. In this context it may be noticed that Pw.13 had recorded in Ext.P10 that the alleged assault on deceased Appu was at Chuzhattukotta at 12.00 noon. But the scene of occurrence as revealed from Ext.P4 is at Panamkode Velaikonam in Edakode desom of Pallichal village. Non examination of Uthaman and Ani who along with Pw.1 had informed the doctor (according to Pw.1) as to how deceased Appu had sustained the injuries, assumes significance in this context.
31. According to the prosecution, M.O.1 wooden log was seized on the next day morning in the course of preparation of Ext.P4 scene mahazar. This is revealed from Ext.P4 also. It was admitted by Pw.10 that he had not recorded that M.O.1 contained any blood mark on it. Further, Pw.10 admitted that M.O.1 was received in the court only on July 31, 2001, nearly 8 months after the alleged seizure. This witness stated that he thought M.O.1 might have been kept in the Police station to be shown to the witnesses. He could not explain the delay for non production of M.O.1 before the court at the earliest point of time. Pw.11 Circle Inspector in his examination stated that he had instructed Pw.10 to produce the M.O.1 before the court immediately. If in fact M.O.1 had been seized by the police on the next day, why was it kept in the police station without being produced before the court? There is no answer. If there was blood stain on M.O.1 why was it not referred to in Ext.P4 mahazar? Yet again, there is no answer. Pw.4, the Scientific Assistant in his report dated November 12, 2001 had stated that the blood found on the object was not sufficient enough "to determine the origin and group".
32. Learned counsel for the appellant had invited our attention to Ext.P4 scene mahazar to highlight another aspect. He points out that in Ext.P4 the police officer had noted that at the scene of occurrence the ground was found dishevelled indicating a fight or scuffle among several people. Several plantain saplings and other plants were found trampled and dishevelled on the ground. He also points out that the officer had not noticed any heap of firewood at the alleged scene of occurrence near the well, though Pw.1 had stated that she had gone to that place to collect a few pieces of firewood stocked there. Pw.2 had also categorically stated that a heap of firewood was stored there. Learned counsel submits that these two vital aspects as revealed from Ext.P4 scene mahazar will clearly belie the prosecution case. According to the learned counsel, the incident could not have taken place as alleged by the prosecution at all.
33. While dealing with the evidence of Pw.3, the doctor who conducted post mortem, the injuries noted in Ext.P2 post mortem certificate have been extracted above. A ^ shaped sutured lacerated wound was noticed by the doctor as injury No.1. Injury Nos.2 to 4 sutured infected wounds were also found on the top of the head or forehead. The doctor further noted that the scalp on the forehead and adjacent part of top and sides was seen contused over an area 23 x14 x 1cm. Injury Nos.5 and 6 were located on the nose and the surrounding areas. Injury No.8 was a contusion on the right side of lower abdomen and adjacent part of thigh, just to the right of symphysis pubis and over and around the top of hip. Injury No.9 were multiple small abrasions over an area 4 x 4 cm along the lower margin of injury on the front of thigh.
34. It is contended by learned counsel for the appellant that the several injuries found on the victim's body will clearly show that they could not have been inflicted by the alleged overt act of the accused and that too in the manner in which the prosecution alleged. There is considerable force in the above contention since it may be remembered that going by Ext.P1, F.I Statement, the accused had given only one blow on the head of the deceased. No other assault was made by the accused on the deceased. But in the course of her examination, Pw.1 had a further story that the accused hit the deceased first on his abdomen resulting in a bleeding injury and then on the head when the deceased bent down. But Pw.2 spoke about only one blow on the head. Pw.5 stated that the first blow towards the head was warded off with left hand; but the second blow fell on the head of Appu. There was no mention by Pw.5 of a blow on the abdomen at all. The evidence of Pw.3 is relevant in this context.
35. Thus having regard to the oral evidence and other material pieces of evidence brought on record by the prosecution, it can not be said that the prosecution had succeeded in proving the charge levelled against the accused. It may be true that the evidence of Pws.1, 2 and 5 may suggest that deceased Appu might have sustained some injury in the course of some incident that took place on the ill fated day. But there are some glaring omissions and commissions in the investigating process. As has been noticed already, the scene of occurrence mentioned in Ext.P10 wound certificate is at total variance from the scene mentioned in Ext.P4 scene mahazar. Thus the evidence adduced by the prosecution does not inspire any confidence. The prosecution has not succeeded in proving the charge beyond reasonable doubt. In the above facts and circumstances and for the foregoing reasons, I am satisfied that the order of conviction and sentence passed by the court below is liable to be set aside. I do so.
A.K. Basheer, Judge.
an.
Gopinathan, J.
I do fully endorse the views expressed by my learned Brother regarding the cause of death of Appu. Regarding the injuries sustained, it was specifically deposed by Pw.3 that injury Nos.1 and 2 could be caused by beating with M.O.1. So also injury No.8 could be caused by beating with M.O.1 . Further it was deposed that after sustaining injury Nos.1 and 2 if the injured fell down prostrate, injury Nos.5, 6, 7, 9 and 10 could be caused and that Appu died due to the injury sustained. In cross examination there was an attempt to bring on record that injury Nos.1 and 2 could not be caused by a single beat. The answer against the suggestion was that injury Nos.1 to 4 could be caused by a single blow with M.O.1. Though Pw.3 was subjected to a searching cross examination, no material was disclosed to impeach the veracity of his testimony or to come to a conclusion that the death of Appu was natural or by any other means or that any weapon other than M.O.1 was used for inflicting the injuries. It is a clear case of homicide. The evidence of Pw.1 is to the effect that the deceased was beaten at the abdomen and head. She is specific that the appellant beat twice. Injury Nos.1 and 8 corresponds to the evidence adduced by Pw.1. The evidence of Pw.3 would show that the deceased sustained no injury other than what was deposed by Pw.1. The evidence of Pw3 coupled with Ext.P2 would convincingly establish that the death was due to the injury noted in Ext.P2 and deposed by Pw3.
2. Summary of the evidence of Pws.1, 2,5 and 6 is that at 12.30 PM on 4/11/2000, while Pw.1 was collecting firewood from their compound, the appellant arrived at the nearby lane and showered abuses. When Pw.1 asked him to leave the place, the appellant trespassed to the property, caught hold of M.O.1 firewood piece from Pw.1 and beat her at head. When she warded, it fell at her right hand and as a result she sustained injury at hand, fell down and cried. The deceased, who was taking gruel, rushed to lift her. By the time, the appellant beat the deceased at his abdomen with M.O.1 as a result of which he bent forward. No sooner, the appellant again beat the deceased at his head as a result of which the deceased fell down prostrate and was bleeding profusely. When Pw.1 lifted the head of the deceased and placed on her lap, Pw.1 was beaten at her head with M.O.1. When neighbours gathered seeing the incident, the appellant went away to west with M.O.1 and then abandoned M.O.1 in the property of Uthaman and left the scene. While leaving the spot, the appellant was uttering that if the deceased survived, he would not dare to give false evidence and that the appellant had gone there with determination to finish the deceased. As a result of assault Pw.1 sustained injuries at her head and hand. Deceased Appu sustained the injuries which are specifically mentioned in Ext.P2 and deposed by Pw.3 and was taken to the Medical College Hospital, where he succumbed to the injuries while undergoing treatment. Thus, in essence, it being a case of assault and homicide, the question then remains is as to whether the evidence of Pws.1, 2, 5 and 6, the available evidence, could be relied upon to connect the appellant with the injuries sustained. My learned Brother had observed that there are marked variations as regards the overt act alleged, there is much doubt about the weapon produced, the delay in production, non production of blood stained cloths, non-examination of some witnesses and that there were more number of injuries than possible.
3. As mentioned in the earlier part, M.O.1 was seized on the next day 55 meters away from the scene of occurrence, when Ext.P4 scene mahazar was prepared by Pw.10. Pw.7, who deposed the seizure of MO1 had fully corroborated the evidence of Pw.10 and Ext.P4. It is true that at the time when M.O.1 was seized, the Investigating Officer could not find out any stain of blood on M.O.1. MO1 being a blunt weapon, and the assault was by beating, there may not be chance for much blood on it as it hadn't pierced into the body. The evidence of Pw.4, the Scientific Assistant, coupled with Ext.P3 would show that though blood was detected it was not sufficient enough to determine the origin and group. The blood was detected only on scientific examination. M.O.1 being a firewood, the blood might have been dried up and colour changed when it was seized on the next day. The Investigating Officer could not be found fault with for not noticing blood stain on M.O.1. So for that reason the prosecution case as such cannot be thrown out, especially when there is no material to conclude that any weapon other than M.O.1 was used for inflicting injuries. If M.O.1 was not the actual weapon used, an identical weapon would have been used. It is what one can legitimately conclude from the nature of the injury sustained to PW1 and the deceased and the evidence of P.W.3.
4. It is pertinent to note that Ext.P1 statement was given by Pw.1 within 3 hours of the incident, at the Medical College Hospital. Ext.P1
(a) and (b) would show that at the time when Ext.P1 was recorded, Pw.1 was subjected to clinical treatment. Her wound at the head and hand were bandaged. As regards the injury sustained to Pw1 deposed by her, the bandages noted in Ext.P1(a) would corroborate. Absence of wound certificate or treatment records are insignificant. Trustworthiness of the evidence of Pw1, is not lost for that reason. The deceased was also subjected to clinical treatment. He was unconscious and in the intensive care unit. Deceased is none other than the husband of P.W.1, though there is no proof of marriage. The state of mind of the first informant while she was on the verandah of the Intensive Care Unit at Medical College is very significant. Ext.P1 was given before Pw1 being absolved from the shock of the assault. There is every possibility that Ext.P1 may not contain a narrative description in a picturesque manner as to how the incident occurred. Assailant was specifically named. Assault and the weapon were also mentioned. No new case is advanced later. So, minute variations with reference to Ext.P1 First Information Statement and the evidence of the witnesses in the box may not be a reason to disbelieve the witness as such.
5. While appreciating the evidence of prosecution witnesses, the defence suggestion, if any, is very relevant. Of course the defence has got a right to keep mum. But in this case it was suggested during the cross examination of some of the witnesses that the deceased was inflicted injuries by Mohanan and another. So, it is to be examined whether defence suggestion is probable. There is no suggestion to Pws.1,2 and 5 to the effect that they had got any axe to grind against the appellant so as to implicate him with a crime like this after sparing the real culprit. It is pertinent to note that the appellant was implicated within three hours of the incident. The First Information Statement was recorded and the case was registered against him without much delay. In the event someone-else was the assailant, Pw1 would have mentioned his name and not that of the appellant. That fact itself would rule out the probability of the defence suggestion. It is also pertinent to note that the appellant was implicated not as a suspect, but was specifically named as assailant. True that there is a delay of about one day in reaching the First Information Report to the Court. It was reached the Court only on 6/11/2000. According to the learned Public Prosecutor the next day (5/11/2000) was Sunday and hence there was no delay. Whatever that may be, the case was registered only for offences under Sections 447 and 324 which are triable before any Magistrate. So the investigating officer might not have sent Ext.P1 express. However there is nothing on record to show that there was any occasion for an afterthought to substitute the real culprit with the appellant. In this view of the matter there is no delay and there is nothing to indicate any manipulation.
6. In disbelieving Pw.1 my learned Brother had observed that the kyli worn by Pw.1, the thorthu (towel) used to wipe the blood and the thorthu used for bandaging the injuries were not procured by the prosecution. Ext.D1, though not otherwise admissible in evidence, would show that the Investigating Officer had enquired about the blood stained cloths after three or four months, which is an indication that the Investigating Agency had handled the case in a leisurely manner for which Pw.1 could not be found fault with. The evidence on record ,which is discussed earlier, would show that there was bleeding injury and soon after the incident the deceased became unconscious and was hospitalized and had been in the Intensive Care Unit till 09/11/2000 when he breathed his last. The agony of the wife could be appreciated. The first attempt would be to save the life and not to preserve materials to prosecute the assailant. It is also pertinent to note that Pw.1 is a rustic village lady engaged in rubber tapping. She may not be so curious to preserve the evidence. For that reason it may not be appropriate to disbelieve her. No artificial conduct is inferable.
7. Had the blood stained cloths been seized and produced, it would have been better in the fitness and fairness of things. Those materials are relevant only to support the evidence of Pw.1 that the deceased sustained injury and was profusely bleeding. The crucial question is whether the prosecution would fail in establishing the injury sustained. It could be answered only negatively, because there is supporting medical evidence. Injury No.1 noted in Ext.P3 and deposed by Pw.3 itself is more than sufficient to support the evidence of ocular witnesses that the deceased had sustained bleeding injury. The volume of blood could have been appreciated if the cloths were produced. But the volume of blood is not relevant. What is relevant is the nature and location of injury and whether it was inflicted by the appellant.
8. My learned Brother had observed that Pw.1 had deposed that because of the beat, brain matter had come out. But the injuries did not suggest such a possibility. Medical evidence would show that in fact the brain matter had not come out. Had the brain matter come out, the injured would not have survived for 4 days. When beaten with firewood and the scalp is cut, the subcutaneous tissue might have been exposed. Pw.1 being a rustic lady who had no chance to see the brain matter on previous occasion, might have misunderstood the subcutaneous tissue as brain matter that had come out. Womenfolk and children have a natural tendency to exaggerate incidents, especially when it relates to gruesome and old. Adding to that, the witnesses in general may have a tendency to exaggerate with an apprehension that unless the assailant would be let off or the factum of death could be disbelieved. Such exaggeration cannot be a reason to disbelieve the witness as such. The evidence of the witnesses is to be analysed with reference to the medical evidence. Though the brain matter had not come out, there was serious injury at the head to which the deceased succumbed. Then, what is relevant is whether the appellant was the assailant or not or whether there is false implication. In this view of the matter, a little exaggeration by the witness regarding the nature of the injuries sustained may not be a reason to conclude that the assailant might be some one else.
9. Pw.2 is a child witness. When he was examined in 2005 he was 14 years, indicating that he was only 9 years on the date of the incident. In cross examination it was revealed that at the age of 14 he was studying in Standard VI. He himself had admitted that he had failed in one class. The age and the class in which he was studying would show that he had missed 3 years. In this era when 100% pass is given in Std. I, if a student fails in three classes by the time he reached VIth std., he would be below average. His intellectual capacity is imaginable. Adding to that, he being a child witness, his capacity to re-present what he had seen 4 or 5 years back in a picturesque manner also would be poor. Generally mentioning the power or capacity to observe, retain and re-present after four or five years varies from individual to individual. Often witness may feel strange circumstance while in the box. As stated earlier, what is to be looked into while scrutinizing the evidence is whether there was any attempt to implicate an innocent person after sparing the real culprit. If the evidence of Pw.2 is analysed in this manner, though there are some discrepancies, it is quite natural. For that reason the evidence of Pw.2 cannot be brushed aside as such. The discrepancies in his evidence indicates nothing but that he is not a tutored witness. On a careful scrutiny of the evidence I also find that it is not safe to rely upon his evidence fully to base a conviction. But when his evidence is analysed in the light of the testimony of Pws.1,5 and 6 the evidence of this witness also could be relied upon to conclude that the injuries were sustained to the deceased and Pw.1 only from the appellant and it was at the spot and time alleged by the prosecution.
10. Pw.5 had specified the overt act alleged against the appellant. She reached the spot hearing the cry and she could see only from the stage at which the deceased lifting Pw.1 when she fell down with the first beat. From that stage onwards, she corroborated with Pw.1. It is true that supporting with Pw.2 she had also deposed that Suran, Uthaman and Ani were also present in the spot. While analysing the evidence, it is not relevant as to why the other witnesses were not examined by the prosecution. Despite the fact that Pws.2 and 5 had deposed the presence of those persons, they were not examined, though cited by the prosecution as witnesses. It is not clear from the version of witnesses as to at what time of the incident they had reached the spot. It is best known to the Prosecutor alone as to why all the witnesses cited by the prosecution were not examined. I do not forget the fact that the Prosecutor has got a free discretion and privilege to choose among the witnesses. Suppose the Prosecutor finds that the evidence of the witnesses already examined is reliable to come to a conclusion, he has got the liberty to give up the other witnesses. It is true that it is always safe to examine all the occurrence witnesses if the number is not so large. But for the reason that two other witnesses who were stated to have been present at the spot were not examined, it is not just and proper to discard the available evidence. Crucial test is reliability. It is true that had all those witnesses been examined, there might be evidence to corroborate to the extent to which they had seen or to the extent to which they deposed. Corroboration is neither a rule of evidence nor rule of law. But it is rule of prudence. Rather than the quantity, quality is important. It is not appropriate to put the prosecution in the dock for non examination of all witnesses, if there are other convincing evidence. Available evidence is to be sifted to find out the grain of truth. In all probability, the other persons might have reached the spot at the end scene. If they were present in the scene before inflicting the injuries, the anger of the assailant should have been sometimes, cooled down by the sight of familiar persons and the deceased would have escaped unhurt.
11. Pw.6 had deposed that soon after the incident the appellant was found going away towards the property of Uthaman with M.O.1. Ex.P4 coupled with the evidence of Pw.7 and the Investigating Officer would show that M.O.1 was abandoned at a distance of 55 meters. If distance is calculated in surveyor's style, it would be at a distance of about 75 or 80 footsteps. When the evidence of Pw.6 is analysed in the light of the evidence of Pws.1, 2 and 5, nothing appears to be unnatural, though it is revealed in cross examination that this witness has got some favour to the deceased. The defence suggestion is that Divakaran and others are the assailants. The evidence of Pw.6 would suggest that implicating the son of Pw.6 one Divakaran alias Mohanan and Sadasivan had filed a complaint before the police and her son could not get bail in the crime registered against him and others. Owing to that she had filed a complaint before the Director General of Police requesting that the said case had to be investigated in a fair manner. It appears that the said petition was referred to some higher officials viz., Dy.S.P and he had made an enquiry whereupon the deceased had stated that it was a false case. The case of the prosecution is that since the deceased had so stated to the Police Officer who enquired about the complaint, Divakaran alias Mohanan and Sadasivan were got angry and at their instance the appellant who was a friend attacked the deceased. Even if it is so, Pw.6 would not have implicated the appellant against whom she has no axe to grind after sparing the alleged culprits who were alleged to have filed a false complaint against her son. The evidence of Pw. 6 corroborate with the evidence of Pws. 1, 2 and 5 as regards the appellant leaving the scene with MO1 in his hands. If actually Divakaran and others were the assailants, Pw.6 would have definitely mentioned their presence. The evidence of Pw.6 belie the defence suggestion. On the other hand it supports the evidence of Pws.1, 2 and 5 that the appellant alone was the assailant. There is no case for the appellant that the statements of the non-examined witnesses mention the presence of the persons suggested by the appellant as assailants.
12. The prosecution was also found fault with the non examination of the auto rickshaw driver. If he was not a witness to the occurrence, his non-examination is not much relevant because the crime occurred at broad day light at noon in November and the deceased was shifted to the Medical College Hospital within hours and First Information Statement implicating the appellant was given within three hours. Even otherwise, there is ample evidence regarding the lifting of Pw1 and the deceased to the hospital with injuries. There is little material to conclude that either Pw.1, 2, 5 or 6 were so influential to persuade the Investigating Officer to book a person who was totally innocent after shielding the real culprit. There was little time for any afterthought. Pw.1 was accompanying the deceased from the spot to the hospital. No gap in the evidence. So the non-examination of the auto rickshaw driver could not be taken as an indication that there was attempt to book an innocent person after shielding the real culprit. There is nothing to suggest that any other event occurred on the way to hospital.
13. The non production of the wound certificate and the fact that Pw.1 had not undergone any hospital treatment are also not reasons to disbelieve that witness because of the special circumstances of this case. Ext.P1(a) would show that Pw.1, as I mentioned earlier, had undergone clinical treatment and her wounds at the right elbow and right side of the head were bandaged clinically along with the wounds of the deceased. The injuries sustained to Pw1 were simple. According to Pw.1, she was advised to undergo treatment but she did not care because her husband was in the Intensive Care Unit. Her abstination from undergoing treatment is only an indication about her love and affection to the deceased and the anxiety. Pw1 was not caring to make evidence. She ignored her simple injuries. It need not be viewed in any other manner or to suspect the veracity of her evidence. The evidence of Pw.1 regarding assault to her is also supported by clinical bandages noted in Ext.P1(a). All failures of PW1, including the failure to preserve the blood stained cloths are indications that PW1 was not caring to collect materials to wreak vengeance, but looking forward for the future management. Her orientation was to sustain and not to prosecute. There is nothing abnormal in her behaviour.
14. The prosecution could not be suspected for having seen the plantain saplings and grass at the spot of occurrence smashed. It is pertinent to note that the crime occurred in a remote village. The injured was lying collapsed at the spot for some time till an auto rickshaw was fetched to lift him to the hospital. Various persons in the locality would have rushed and assembled there ignoring the plantain saplings. That is the psychological behaviour of the rural mass. There is every possibility for the plantain saplings getting damaged or the grass or any other vegetation, if any, smashed because of the assembled spectators. It did not suggest that there were more assailants especially when the evidence of Pw.3 coupled with Ext.P2 regarding the injury is given regard. Expert evidence is specific that the injury found on the head of the deceased could be caused with one blow and the other injury found on the abdomen could be caused with the second blow. The number of injury corroborate with the evidence of the occurrence witness. Smashing of the grass or vegetation could not be considered as an indication about the involvement of more assailants. There is no suggestion to the investigating officer, while in the box that there was any symptom of group fight. It is not for the court, especially in appeal to infer or guess for a third theory.
15. There is some delay in forwarding M.O.1 to the Court. It appears that there was lack of earnestness and seriousness from the side of the Investigating Officer. It is evident that the Investigating Officer took everything leisurely, probably because it was registered as a crime to be tried by a Magistrate of the Second Class. The evidence of Pw.3 would show that despite the fact that the deceased was in intensive care unit, wounds were infected and even bed sore developed in 5 days. Deceased got only a casual treatment at the hospital. It appears that the dealings of the Investigating Officer is also not better. But that may not amount to a reason to reject the evidence of ocular witness, in respect of a crime occurred at midday. Criminal justice shall not be a casualty for the wrong committed by the Investigating Officer.
16. There are some minor discrepancies and exaggerations here and there in the evidence of Pws.1, 2, 5 and 6. Having due regard to the fact that Pws.1, 5 and 6 are rustic rural women and Pw.2 is a child witness, these discrepancies and exaggerations are nothing but that of the truth. In justice delivery system, efforts shall be to find out the nuggets of truth. While searching for truth, it shall not be forgotten that pleadings and evidence in general are not immune from exaggerations and embellishments. It is the human tendency to have extra fittings for making others believe. On a critical scrutiny of the evidence of Pws.1, 2 , 5 and 6, contradictions like Exts.D1 to D4 in the evidence of those witnesses are very minor. Those contradictions didn't affect the core of the prosecution case. There is nothing to suggest that those witnesses had any animosity to the appellant or that he was falsely implicated or that the real culprit was spared for any reason, valid or not. There is nothing to suggest that the Investigating Officer or the witnesses had got any other motive to falsely implicate the appellant or that the witnesses could influence the Investigating Officer to cook up a case against the appellant. There is nothing on record to suggest that the persons mentioned by the defence as assailant were pesent in the scene or in the vicinity. There is no material to suspect those persons. Other than the delay to produce M.O.1 in Court and failure to seize the bloodstained cloths, there is no material irregularity or illegality in the investigation. Having due regard to the nature of the assault, it didn't appear that the delay in production of M.O.1 is part of manipulation. Because of the nature of injury and the evidence on record, the failure to seize bloodstained cloths would not absolve the appellant. Even otherwise there is proof regarding injury and its cause. It is also noticed that in Ext.P4 there isn't any mention about the other firewood pieces. Such omission is also not sufficient enough to discard the evidence of Pws.1, 2 and 5 that the appellant was the assailant or to conclude that the deceased and Pw1 sustained injury in any other manner at any other place or at any other time or that there was any other assailant. Though Pws.1 and 2 can be termed as witnesses interested in the prosecution, they are not interested in convicting an innocent person after sparing the real culprit. Pws.5 and 6 are no way interested witnesses.
17. The evidence of Pw3 coupled with Ext.P2 would show that the injuries found on the deceased exactly corroborate with the evidence of Pws.1, 2 and 5. The injuries found on Pw1 as revealed from the bandages noted in Ext.P1(a) also tallies with the evidence of Pw1. There is absolute harmony between the ocular evidence and medical evidence. In other way, the evidence of Pws.1, 2 and 5 explain all the injuries; leaving no room for any doubt. Had it been a case of manipulation, the medical evidence and ocular evidence would have been contradicted. The evidence of Pw3 coupled with Ext.P2 rule out the possibility of manipulation. Ring of truth is evident. Minor discrepancies in the evidence of Pws.1, 2, 5 and 6 and omissions or irregularity in the investigation do not brake any ring. Neither it is sufficient enough to cause a shadow of reasonable doubt.
For the foregoing reasons I respectfully disagree with my learned Brother in not believing the testimony of Pws.1, 2, 5 and 6 supported by attendant circumstances. In my opinion, their evidence is trustworthy to conclude that it was the appellant alone who was the assailant and none else was involved in the crime. There is ample evidence to establish that the appellant committed criminal trespass to the property of the deceased and Pw.1 and they were inflicted injuries with M.O.1, which is a deadly weapon. Pw.1 sustained only simple injury. The injury sustained to the deceased at his head was grave and was sufficient enough, in the ordinary course, to cause death. Motive is evident from the words uttered by him while leaving the spot. There is no probability, other than what is arrived by the learned Sessions Judge. Offences alleged are proved and there is no good reason to interfere with the conviction and sentence under challenge.
P. S. Gopinathan
an. Judge
Basheer, J:
Since the two of us are divided in our opinion, this case has to be placed before another Judge of this Court for his opinion, as provided under Section 392 of the Code of Criminal Procedure. Therefore the Registry shall place the matter before the Hon'ble the Chief Justice for appropriate orders A.K. Basheer, Judge.
P.S.Gopinathan Judge.
K. BALAKRISHNAN NAIR, J.
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Crl.Appeal No.970 of 2005
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Dated, this the 19th day of August, 2009 Opinion rendered under Section 392 of the Cr.P.C.:
I had the benefit of reading the divergent judgments of my learned and esteemed brothers, Basheer,J. and Gopinathan, J.. Since they have stated the facts in their respective judgments, it is not necessary for me to re-state them again.
2. The trial court found the accused guilty of offences under Section 324, 447 and 302 of the Indian Penal Code (hereinafter referred to as "the I.P.C."). The conviction was mainly based on the depositions of PW.1-Yesoda, the wife of the deceased Appu, PW.2 -Vineed, the son of PW.1 and the step son of the deceased, and also PW.5-Leela and PW.6-Deenamma, who were neighbours of the deceased. Reliance was also placed on the post mortem certificate, which was proved by PW.3-Dr.Rema, the Assistant Professor of Forensic Medicine, Medical College, Thiruvananthapuram, who conducted the post mortem examination.
3. The prosecution case in brief was as follows. The deceased Appu gave an incriminating statement before the police against one Mohanan, who was a friend of the accused - Gopi. At the instance of the said Mohanan, the accused committed the crime on 4.11.2000 at about 12.30 p.m.. It is the prosecution case that the accused came through the pathway which lies between the courtyard of the house of the deceased and the well used by him. PW.1, who was staying along with the deceased as his wife, came to the side of the well to take firewood. While she was carrying the firewood to her house, the accused who came through the pathway abused her and the deceased. When PW.1 asked him to go away, he snatched a firewood stick from her hand and beat on her elbow and head and she fell down crying.
Seeing this, the deceased rushed to the scene, who was also attacked by the accused on his abdomen, head etc.. On receiving the blow on the head, he fell on the ground on his face. The accused again beat him and then went away carrying the firewood. Later, Appu, the injured was carried in an autorickshaw belonging to one Ani by their neighbour, Uthaman, along with PWs. 1 and 2. The injured Appu was admitted in the Medical College Hospital, Thiruvananthapuram where he succumbed to the injuries on 9.11.2000. The crime was initially registered based on the statement of PW.1 on 4.11.2000 itself, in the afternoon, for the offences punishable under Sections 447 and 324 of the I.P.C. Later, report was filed before the Magistrate by the Investigating Officer including the offence under Section 302 of the I.P.C. also.
4. Initially, the investigation was conducted as in a run-of-the mill case for the offences under Sections 447 and 324 of the I.P.C.. So, the usual procedures done in connection with a murder case were not taken in this case. If Appu died on the spot, the blood stained clothes of the deceased and of PW.1 would have been seized under a mahazar. The blood stained clothes which were left in the house of the deceased might have been washed, while he was in the hospital and even if they were seized after a lapse of about one week, such materials will not have any probative value also. So, if we look at the investigation in comparison with a case where the injured died on the spot or before lodging the First Information Statement, several lapses can be noticed. The point to be considered is whether the version of the witnesses PWs. 1, 2, 5 and 6 could be believed in the light of the medical evidence and whether the lapses on the side of the investigating officers have in any way weakened the case of the prosecution.
5. I heard Mr.Rajagopalan Nair, the learned counsel for the appellant/accused and Mr. Noble Mathew, the learned Public Prosecutor for the State. The learned counsel for the appellant submitted that the evidence of PW.1 cannot be believed. According to him, though she claims that, she sustained injuries on her right elbow and on her head, there is no medical evidence to support that version. Further, in Ext.P1 F.I.Statement, she spoke of only one beating on the head of the deceased, but, while in the box, she stated that the accused hit the deceased on his stomach, twice on his head and thereupon he fell on his face. The accused allegedly went away saying some warning words, it was deposed. According to the appellant, it is a tutored version. Her deposition has been moulded, so that, it is in tune with the medical evidence regarding the injuries on the body of the deceased. The version of PW.1 that as a result of hit on the head, the brain matter came out and spilled all over is disproved by the medical evidence, it is submitted. According to him, PW.2 is a planted witness to speak about the incident. His version is also at variance with the version of PW.1 on many material particulars, especially regarding the presence of other persons at the time of the occurrence. The version of PW.5, who is also an interested witness, is not consistent regarding the place from where she saw the incident. PW.6 is also an interested witness and her evidence is also to be discarded, it is submitted. So, the prosecution has failed to prove its case beyond reasonable doubt. The learned counsel also relied on the decision of the Apex Court in Mahendra Singh v. State of Rajasthan, AIR 1989 SC 982, wherein the Apex Court disbelieved the version of a witness, who gave statement before the court in accordance with the medical evidence, deviating from the earlier statement given by him before the police.
6. The learned Public Prosecutor, on the other hand, submitted that initially the investigation was conducted in a casual manner, but the same has not affected the veracity of the prosecution case. He submitted that the death of Appu was homicide and the same was proved beyond doubt by the medical evidence. PWs.1, 2, 5 and 6 have spoken about the role of the accused in the homicide. Though there are some contradictions and discrepancies, PWs.1 and 2 speak about the attack made by the accused on the deceased. PW.5 also corroborates their version to certain extent. PW.6 has spoken about the accused going away from the scene carrying the firewood stick used for beating the deceased. The learned Public Prosecutor submitted that the wife of the deceased would never shield the real culprit and implicate an innocent person. The irregularities in the investigation, unless they vitiate the prosecution, can be ignored. In support of his submissions, the learned Public Prosecutor relied on the decisions of the Apex Court in Major Singh v. State of Punjab, (2006) 10 SCC 499, Trimukh Maroti Kirkan v. State of Maharashtra, 2006 (4) KLT 638, Bikau Pandey v. State of Bihar, (2003) 12 SCC 616, Sajjan Singh v. State of Madhya Pradesh, AIR 1998 SC 2756.
7. The summary of the statements of the aforementioned witnesses have already been given in the judgments of my learned brothers. Therefore, it is unnecessary for me to re-state them. Both my learned brothers agreed on the point that the death of Appu was homicide. The said fact is proved by the medical evidence beyond doubt. The point to be decided is, who inflicted the injuries found on the body and the head of the deceased.
8. As per the medical evidence on record, the head injury became fatal. Going by the evidence of PW.1, it can be safely concluded that it was the accused who attacked the deceased using the firewood stick. The said basic fact is proved beyond doubt, notwithstanding the discrepancies in her statement on other details. She has named the accused in the First Information Statement which she gave a few hours after the incident on 4.11.2000 itself. She has no reason to implicate the accused falsely and to shield the real culprit. The presence of the accused at the relevant time near the scene is also proved by the versions of PWs. 5 and 6. I find no reason to think that all these witnesses conspired together and implicated an innocent person and shielded the real culprit. It is also not possible to believe that police would be a party to such a conspiracy. There are certain embellishments in the statements of PW.1. But, it is quite natural that, when a rustic uneducated woman gives evidence, there can be some exaggerations. In her over enthusiasm, she might have done that to prevent the accused, from being let off. But the embellishments or the contradictions in the deposition, making it in tune with the medical evidence, are not sufficient to discard her evidence regarding the presence of the accused in the scene and his role in the crime. It was he who only attacked the deceased. For the failure of PW.1 to state correctly in the First Information Statement, the number of beatings made by the accused, the cause of justice cannot suffer. Even if the version of PW-2 is discarded, the corroboration by PWs. 5 and 6 lends further credence to the version of PW.1. It is also proved beyond doubt that, it was PW.1 who took the injured to the hospital and admitted him there. The examination of auto driver or other persons who accompanied her is not necessary to believe the version of PW.1 that the injured was taken to the hospital in an autorickshaw. The non-seizure of the blood stained clothes etc. were occasioned, as initially the crime was registered only for the offences under Sections 447 and 324 of the I.P.C.. By the time it was converted into an offence under Section 302 of the I.P.C., a few days have elapsed and therefore, those materials were not available or became worthless by that time. Those materials were necessary to show that the deceased suffered the injuries as stated by the witnesses. But, the said fact is proved by the unimpeached medical evidence in this case. Further, some discrepancies regarding the details of the beating in the version of PW.1 is quite natural. First she was attacked and when her husband came to assist her, he was also attacked. So, the witness who suffered injuries and crying for help because of pain, need not necessarily notice meticulously all the overt acts of the accused. PW.1 has also spoken of brain matter coming out from the head injury of the deceased. She might have seen the flesh tissues over the skull and would have misunderstood the same for brain matter. So, the version of a rustic village woman on that point will not weaken the prosecution case, in view of the other materials on record including the medical evidence. PW.2 has spoken about other persons also at the scene of occurrence. The witness was giving evidence after the lapse of about five years. So, naturally, he spoke of all the persons who came to the scene. After the beating was over and the accused went away, it is natural that all persons in the neighbourhood came to the scene. The child witness has spoken about three persons who were present at the time of the crime. It can only be a mistake, as those witnesses could have come to the scene only after the incident. I find no reason to disbelieve the version of PWs.5 and 6 also. Even if they are interested witnesses, it cannot be presumed that they all entered into a conspiracy, shielded the real culprit and implicated an innocent person. Such presumptions and assumptions go against normal human conduct. So, I am of the view that, the fact that the accused beat the deceased on his head and the same resulted in his death is proved beyond reasonable doubt by the prosecution. I am also in agreement with the learned Public Prosecutor that the irregularities, highlighted by the defence, in the investigation of the case, are of no consequence. They have not affected the tenability of the prosecution case.
9. But, regarding the offence under Section 324 of the I.P.C., that is, the accused inflicting simple injury using the firewood stick on the head and right elbow of PW.1, I find that the said case is not supported by any medical evidence. There is only the version of PW.1 on that point. Therefore, I am of the view that the appellant is entitled to get the benefit of doubt regarding the commission of the offence under Section 324 of the I.P.C. Though the case of PW1 that she sustained injuries at the hands of the appellant is not proved beyond doubt, her version that her husband Appu was attacked and fatally injured by the appellant is corroborated by other reliable evidence including medical evidence.
10. In the result, I am of the opinion that the conviction of the appellant for the offences under Sections 447 and 302 of the I.P.C. was fully justified and the sentence imposed on him was quite appropriate to the facts of the case.
Sd/-
K. BALAKRISHNAN NAIR, JUDGE.
DK.
A.K.Basheer & P.S.Gopinathan, JJ.
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Crl.A.No. 970 of 2005
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Dated this the 24th day of August, 2009.
ORDER Basheer, J:
In view of the opinion rendered by Hon'ble Mr.Justice K.Balakrishnan Nair as provided under Section 392 of the Code of Criminal Procedure, the Crl.Appeal is liable to be dismissed with the modification that the order of conviction and sentence passed against the appellant under Section 324 IPC shall stand set aside. In all other respects, the order of conviction and sentence passed by the court below shall stand confirmed.
Ordered accordingly.
A.K. Basheer, Judge.
P.S.Gopinathan Judge.
an.