Kerala High Court
Vinod vs State Of Kerala on 15 March, 2013
Author: Thottathil B.Radhakrishnan
Bench: Thottathil B.Radhakrishnan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE THOTTATHIL B.RADHAKRISHNAN
&
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
TUESDAY, THE 1ST DAY OF JULY 2014/10TH ASHADHA, 1936
CRL.A.No. 1277 of 2013
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SC 184/2012 of III ADDITIONAL DISTRICT & SESSIONS COURT, THODUPUZHA
DATED 15-03-2013
CP 13/2012 of J.F.C.M. COURT, IDUKKI
APPELLANT:
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VINOD, AGED 31 YEARS, S/O.ANANDAN
ANIMANGALAM HOUSE, MURICKASSERY, VATHIKUDY VILLAGE
IDUKKI DISTRICT.
BY ADVS.SRI.BIJI MATHEW
SRI.RENJITH B.MARAR
RESPONDENTS:
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STATE OF KERALA
REP.BY CIRCLE INSPECTOR OF POLICE
IDUKKI THROUGH PUBLIC PROSECUTOR
HIGH COURT OF KERALA, ERNAKULAM.
BY PUBLIC PROSECUTOR SRI. ROY THOMAS
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 20.06.2014,
THE COURT ON 01.07.2014 DELIVERED THE FOLLOWING:
THOTTATHIL B.RADHAKRISHNAN
&
P.B.SURESH KUMAR, JJ.
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Crl. Appeal No.1277 of 2013
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Dated this the 1st day of July, 2014
J U D G M E N T
P.B. Suresh Kumar, J.
Appellant has been found guilty and convicted for the offences punishable under Sections 342, 364, 302 and 324, read with Section 34, of the Indian Penal Code, hereinafter referred to as "the IPC" for short. He was sentenced to undergo imprisonment for life and pay a fine of `25,000/-
under Section 302 of the IPC. He was also sentenced to undergo rigorous imprisonment for two years and pay a fine of `5,000/- under Section 364 of the IPC. He was further sentenced to undergo rigorous imprisonment for one year each under Sections 324 and 342 of the IPC.
Default sentences were also imposed on him.
CRA No. 1277 of 2013 22. The case against the accused, as set up by the prosecution, is that on 21.11.2004 at about 08.00 p.m., while deceased Murugan was going to his house, through the pathway lying in front of the house of accused No.2, he was dragged by the accused to the courtyard of the house of accused No.2 and beat him with an iron rod, a coffee plant stick and a few wooden stumps. It is alleged that when the deceased attempted to flee away from the scene, the accused dragged him into the hall of the house and then to the kitchen and attacked him inside the house also with the weapons was aforesaid. In the meanwhile, it is alleged that the wife of the deceased and PW3, the mother of the deceased, though, came to the scene and attempted to CRA No. 1277 of 2013 3 rescue the deceased, they were also attacked by the appellant. The wife of the deceased, then rushed to the Murikkassery police station, and on the basis of the information passed on by her, the police came to the scene and rescued the deceased. In view of the injuries sustained by the deceased, the police took him to the Taluk Head Quarters Hospital, Adimaly and from there, to the Medical College Hospital, Kottayam. It is alleged that the deceased succumbed to the injuries on his way to the Medical College Hospital.
3. Later, on the basis of Ext.P10 First Information Statement given by the wife of the deceased, a case was registered. PW23 was the investigating officer. He filed the CRA No. 1277 of 2013 4 final report, on completion of the investigation, against the accused.
4. There were altogether 5 accused in the case.
Appellant was accused No.3. Accused No.5, being a juvenile, was dealt with under the provisions of Juvenile Justice (Care and Protection of Children) Act, 2000. As the appellant was absconding at the time of committal proceeding, the case against him was split up and accused Nos.1, 2 and 4 were committed to trial. The said accused were convicted by the trial court and acquitted by this court in Crl. Appeal Nos.745, 748 and 983 of 2012. In the meanwhile, on the arrest of the appellant, he was also committed to trial.
CRA No. 1277 of 2013 55. The learned sessions judge framed charges against the appellant under Sections 120B, 364, 342 and 324, read with Section 34, of the IPC. When the charges were read over and explained, the appellant pleaded not guilty. Thereupon, the prosecution examined PWs.1 to 23, marked Exts. P1 to P22 and identified Mos.1 to 22. After the closure of evidence, when the incriminating materials were put to the appellant, he denied the version of the witnesses. He also filed a statement, stating inter alia, that his brother Girish married the sister of the deceased Murugan; that the wife of Girish committed suicide; that there was a case registered against him, his mother and Girish, at the instance of the deceased and others; that CRA No. 1277 of 2013 6 accused Nos.1 and 2 helped them to get bail in that case and consequently, the deceased was not keeping good relationship with the accused. According to him, on various previous occasions, the deceased attempted to attack accused Nos.1 and 2 on account of the said reason; that on the date of occurrence, the deceased attacked the wife of accused No.2 and when she rushed to her house to take shelter, the deceased chased her and that there were altercations in the house, in which all, including the deceased, sustained injuries and the deceased succumbed to the injuries.
6. Among the witnesses examined, PW1 was the neighbour of accused No.2, PW3 was the mother of the CRA No. 1277 of 2013 7 deceased and PW4 was the father of PW1. Exts. D1 to D15 are the contradictions in the statements given by PWs.1, 3 and 4 to the police, under Section 161 of the Code of Criminal Procedure. Among the material objects, MO1 is an iron rod, MO2 is an iron tube, MO3 is a stick of coffee plant, MO4 and MO5 are two wooden stumps.
7. The Sessions Court, on an evaluation of the materials on record, found that the accused had abducted the deceased, wrongfully confined him in the house of accused No.2, and attacked him, both in the courtyard and also inside the house, with Mos.1 to 5 and caused his death.
However, the case of the prosecution, that there was a conspiracy hatched among the accused to cause the death CRA No. 1277 of 2013 8 of the deceased, was found against.
8. We have heard Sri. Ranjith B. Marar, the learned counsel for the appellant and Sri. Roy Thomas, learned Public Prosecutor for the State. We have also called for and perused the common judgment in Crl. Appeal Nos. 745, 748 and 983 of 2012, by which, this Court had acquitted accused Nos. 1, 2 and 4 in the case.
9. The learned counsel for the appellant argued that the evidence of the prosecution is shrouded with inconsistencies and contradictions. According to him, the available evidence is not sufficient to convict the appellant, for the offences alleged.
10. The crucial witness cited by the prosecution CRA No. 1277 of 2013 9 to prove the occurrence was CW1, the wife of the deceased.
Unfortunately, her presence could not be secured by the prosecution for examination in court. Ext.P11 F.I.R was registered, based on Ext.P10 F.I.S given by CW1. The version of the occurrence in Ext.P10 was that while the deceased was coming to his house, at about 8.00 p.m., there was an affable conversation between accused No.2 and the deceased in the road in front of the house of accused No.2, concerning the performance of a ritual in connection with his pilgrimage to 'Sabarimala' and thereafter, both of them had entered the house of accused No.2 and the deceased was attacked by the accused in the house of accused No.2, with an iron rod, a coffee stick and CRA No. 1277 of 2013 10 wooden stumps. The prosecution case is not as narrated by CW1 in Ext.P10 F.I.S. The prosecution version of the occurrence is that the deceased was dragged by the accused to the courtyard of the house of accused No.2 from the road and beat him with the weapons aforesaid, and thereafter dragged him further into the hall of the house of accused No.2 and then to the kitchen of the house and he was beaten by the accused with the weapons in the house as well.
11. The prosecution relies on the evidence of Pws.1, 3 and 4 to prove the occurrence. PW1 is a neighbour of accused No 3. According to him, he was called to the house of accused No.2 by PW3, the mother of CRA No. 1277 of 2013 11 the deceased, to rescue him and when he reached the house of accused No. 2, the deceased was lying down on the floor and the accused were attacking him. Ext.D2 portion of the statement given by PW1 to the police would indicate that his version to the police as to the occurrence was that the deceased was attacked by the accused in the courtyard of the house of accused No.2. Ext.D5 portion of the statement given by PW1 to the police would indicate that he had also told the police that there was a scuffle between accused Nos.1 to 3 on one side, and the deceased, his wife and his mother, on the other side. PW4 is none other than the father of PW1. He also gave evidence to the effect that the mother of the deceased called him to the house of accused CRA No. 1277 of 2013 12 No.2 to rescue him and when he proceeded to the house, he saw the accused attacking the deceased in the house of accused No.2. PW3 is the mother of the deceased. Her version before the court was that hearing the screaming of the deceased, she went to the house of accused No.2 and when she reached the house, she saw the accused attacking the deceased, in the courtyard of the house first, and then inside the house. In cross-examination, she initially said that when she went to the scene of the occurrence, the accused were attacking the deceased in the courtyard of the house. Later, she said that she has also seen the accused dragging the deceased from the road to the courtyard of the house of accused No.2 also. To sum up, CRA No. 1277 of 2013 13 Pws.1, 3 and 4 have substantially deviated from their earlier version to the police. Among them, Pws.1 and 4 have not supported the case of the prosecution that the deceased was dragged from the road to the courtyard of the house of accused No.2 and attacked him. None of them has stated anything as to what had happened inside the kitchen of the house also.
12. The judgment in Criminal Appeal Nos.745, 748 and 983 of 2012, filed by accused Nos. 1, 2 and 4 in the case against their conviction, indicates that Pws.1, 3 and 4 alone have given evidence in that case also to prove the occurrence. It indicates that accused Nos.1, 3 and 4 in the case have sustained injuries in the occurrence and there CRA No. 1277 of 2013 14 was a case registered against the deceased, his wife and his mother also, in connection with the said occurrence. It was found in the said case by this Court that the prosecution has failed to prove the true genesis of the occurrence. Based on ExtP13 scene mahazar and P14 scene plan prepared by the Village Officer, which were Exts.P5 and P12 in that case, this Court observed that as there are no windows to the house of accused No.2, it may not be possible for anyone to see the occurrence, taking place inside the house. The judgment would indicate that the version of PW3 was totally different in the case against accused Nos.1, 2 and 4. The court observed that the prosecution has failed to establish as to how the deceased happened to be inside the house of CRA No. 1277 of 2013 15 accused No.2. To sum up, this Court had concluded in that case that this might have been, in all probability, a case where the deceased had gone to the house of accused No.2 to attack him and in the course of the attack, the accused might have exercised their right of private defence. The relevant portion of the judgment reads as follows:
"The preponderance of broad probabilities in the case pointed out by A4 in Ext.P15 and the contents of Exts.P19, P20 and P21, clearly reveal that they had exercised their right of private defence. The incident happened to be inside the kitchen of the house of A2, A4 and A5. The prosecution has no case that these appellants have gone to the house of the deceased and attacked him or gone to any other place to attack the deceased. On the contrary, the deceased happened to be inside the kitchen of the house of A2, A4 and A5. In such circumstances, the prosecution is duty bound to prove as to how the decease had gained entry into the kitchen of the house of A2, A4 and A5. The prosecution has failed to adduce any evidence to show as to how the deceased happened to be inside the kitchen of that house. Normally, the deceased was not expected to be there. When he happened to CRA No. 1277 of 2013 16 be there, the prosecution ought to have proved the circumstances in which he happened to be inside the house, beyond the shadow of doubt. There is no evidence to show as to how the deceased happened to be inside the kitchen of the said house. When Ext.P5 shows the broken tiles from the roof of the house lying scattered at the courtyard as well as inside the house, and the subsequent presence of the deceased inside the kitchen of the house, it points towards the possibility of the correctness of the versions of A4 regarding the incident. The nature of weapons allegedly made use of, also has to be considered. The weapons include firewood, which points towards the fact that the deceased was there at the kitchen of the house. Further, it points towards the fact that there was no prior preparation for an attack from the part of the appellant and the other accused; otherwise they would have been ready with other lethal weapons. The preponderance of broad probabilities point towards the possibility of the fact that A2, A4 and A5 were exercising their right of private defence."
After having entered the said finding, the court found that the prosecution has failed to bring out the guilt of accused Nos.1, 2 and 4, and that failure of justice had occasioned on account of the conviction of the accused. It is, in view of the said finding, that the accused in that case were acquitted.
CRA No. 1277 of 2013 1713. As far as the present case is concerned, there is no new material for the prosecution to establish the guilt of the accused. The Prosecution has only examined Pws.1, 3 and 4 to prove the guilt of the accused. The judgment referred to above would indicate that the evidence tendered by Pws.1, 3 and 4 are more or less the same. As stated above, Pws.1, 3 and 4 have substantially deviated in court from their version before the police.
Among them, Pws.1 and 4 did not support the case of the prosecution that the deceased was dragged by the accused from the road to the courtyard of the house of accused No.2. PW3 also did not support the case of the prosecution fully. With these facts and circumstances, we are also of CRA No. 1277 of 2013 18 the view that it is not safe to find the guilt of the appellant, relying on the evidence of Pws.1, 3 and 4. On a close scrutiny of the materials on record, we are of the firm view that the prosecution has failed to bring out the guilt of the accused beyond reasonable doubt.
14. In the result, this Criminal Appeal is allowed and the conviction and sentence passed by the court below against the appellant are set aside. Appellant is acquitted under Section 386(b)(i) of the Code of Criminal Procedure and he shall be set at liberty forthwith. He shall be released from custody, if his continued presence is not required in connection with any other case.
The Registry is directed to send the gist of this CRA No. 1277 of 2013 19 judgment forthwith to the concerned prison, where the appellant is undergoing incarceration.
Sd/-
THOTTATHIL B.RADHAKRISHNAN, JUDGE Sd/-
P.B.SURESH KUMAR, JUDGE smv