Kerala High Court
Ayyappan vs State Of Kerala on 28 April, 2004
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH
THURSDAY, THE 16TH DAY OF MARCH 2017/25TH PHALGUNA, 1938
CRL.A.No. 768 of 2004 (B)
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AGAINST THE JUDGMENT IN SC 110/2000 of ADDITIONAL DISTRICT AND SESSIONS
COURT (ADHOC), FAST TRACK COURT NO.I, MANJERI DATED 28-04-2004
AGAINST THE ORDER/JUDGMENT IN CP 2/2000 of JUDICIAL FIRST CLASS MAGISTRATE
COURT-II,PERINTHALMANNA
APPELLANT(S)/ACCUSED::
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1. AYYAPPAN, S/O. RAMANKUNHAN,
CHELAKKODAN HOUSE, CHERUKULAMBU,, ADAKKAKUNDU, KALIKAVU.
2. CHATHUNNI, S/O. REVI,
MAPPADAM HOUSE, CHERUKULAMBU,, ADAKKAKUNDU, KALIKAVU.
BY ADV. SRI.M.P.PRAKASH
RESPONDENT(S)/COMPLAINANT::
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STATE OF KERALA,
REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,
ERNAKULAM.
BY PUBLIC PROSECUTOR SRI. UDAYAKUMAR K.B.
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 16-03-2017, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
SHG/
K.P. JYOTHINDRANATH, J.
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Crl.A.No.768 of 2004
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Dated this the 16th day of March, 2017
J U D G M E N T
This appeal is preferred against the conviction and sentence dated 28.4.2004 made in S.C.No.110/2000 on the file of the Additional District and Sessions Court (Adhoc) Fast Track Court No.I, Manjeri. The conviction is under Section 304 of IPC and sentenced to undergo rigorous imprisonment for five years and to pay a fine of Rs.1,000/- each with default simple imprisonment for one year. Originally the charge was under Section 302 r/w. Section 34 of IPC. There were two accused. Both of them were convicted and this appeal is also originally filed by both the accused who were convicted.
2. When the appeal was taken up for hearing, on 28.2.2017, it was reported that the second appellant is no more. The learned Public Prosecutor is directed to file a report regarding the same. Today, the learned Public Prosecutor filed a report stating that the second appellant is no more. The death recorded and the appeal filed by him is Crl.A.No.768 of 2004 2 treated as abated.
3. The court charge is as follows:
"that about 4.30 p.m. on 4.9.98 accused No.1 had pelted granite stone against the deceased Nercha and it hit on his head and you had also hit his head with granite stones and that accused No.2 beat him on his head with an umbrella and thereby both of you had caused grievous injuries to him and that in pursuance to that incident Nercha was undergoing treatment at Medical College Hospital, Calicut and that he had succumbed to the injuries on 5.9.98 at Paraquary, Porur amsom near to the house No.IX/348 belonging to Ummer Haji, within the cognisance of this court and both of you are liable to be punished u/s 302 r/w 34 of IPC. "
4. The prosecution altogether examined 15 witnesses and Exts.P1 to P15 were marked. MOs 1 to 3 were marked and Exts.D1 to D3 were marked. After appreciating the evidence, the court below convicted the accused as stated above and sentenced. Aggrieved by the above conviction and sentence, this appeal is preferred.
5. When the appeal came up for hearing, the learned counsel appearing for the appellant submitted before me that without any legal evidence and without proper appreciation of the evidence, the court below convicted the accused. It is the submission that PW5 was disbelieved by Crl.A.No.768 of 2004 3 the court below so as to give credence to the evidence of PW11. It is to be remembered that PW5 was not declared as hostile and when, PW5 was not declared as hostile the evidence which will belie the evidence of PW11 or the claim of the PW11 that she is an eyewitness should have been disbelieved by the court. It is the submission that the court charge is specific to the effect that the fatal injury was caused by pelting of stones. But it can be seen that the wound certificate, Ext.P7 is not supporting the same. There are so many injuries on the body and the nature of the injuries noted in the wound certificate as well as the post mortem certificate, which is marked as Ext.P8 will belie the prosecution charge itself. It is the submission that while appreciating the evidence, it is to be considered that as per the evidence of PW5 he saw the accused and thereafter he saw the deceased with blood coming from the head and neck area. At the time of chief examination, the version of PW5 was that "%OnMHa" LtaA{a"e:D_:na" . At the time of Crl.A.No.768 of 2004 4 cross examination a goby was given to this version and his case was that "%UV .fK 5aM_f5^Ia" 5\oaf5^Ia"
5aJ_fOK^Cm" and if it is treated as a dying declaration the evidence cannot be relied upon. To rely upon a dying declaration, it should be specific and clear. When the witness is changing the version, that cannot be treated as a dying declaration and no explicit reliance can be made upon it. It is the further submission that after he saw the deceased he found that deceased was not in a talking position, thereon he went to call a vehicle to take him to the hospital. When he came back, the relatives of the deceased was therein and Nercha, brother-in-law of the deceased Nercha and Chakkykutty and Mundichi were present therein. Mundichi is none other than PW11 on whom the explicit reliance is now made by the court below to arrive at a conclusion that the appellants are the persons committed culpable homicide not amounting to murder. It is the submission that PW5 is none other than the person who Crl.A.No.768 of 2004 5 gave Ext.P1 F.I. Statement and PW5 was not declared as hostile. His specific case is that Mundichi came only on a later point of time. If Mundichi came on a later point of time, it can be seen that the versions of PW11 cannot be believed at all. The learned counsel also draw my attention to the evidence of PW11. The version of PW11 is that she saw a scuffle from a distance and when she reached near, she understood that it is her brother as well as the accused. Her version was that "'UV /GmfH %?_:na DU_O_?aKDm 5Ia.e/GX 5_]Am M^7gJOmAm U`Ca. I?_E^ya M^7Jm gy^Ax_5_W 5\oa5Z 5bG_O_xaKa %D_W H_Km 5f\o?aJm 'O^Z /GfH .y_OaKDm 5Ia". It appears that the said evidence is adduced to tally with the present prosecution case or charge. If the evidence of PW11 is believed, it can be seen that the evidence of PW5 to the effect that when he saw the accused at first, he was carrying a stone. These evidence will not go together. That is, if he was having a stone at the first instance, when PW5 saw the accused, then the version of PW11 to the effect that first pushed down and thereafter Crl.A.No.768 of 2004 6 took a stone cannot be believed i.e. if the version of PW5 is believable then the version of PW11 to the effect that after pulling down or pushing down the deceased he took a stone and pelted cannot be believable. The submission made before me is that neither PW5 or PW11 is a reliable witness and the version now projected before the court is not at all reliable. There was some family dispute regarding the marriage of Ayyappan with Kuppichi. Due to that animosity, the accused is falsely implicated in this case and false evidence was adduced.
6. I have heard the learned Prosecutor, who submitted before me that the court below disbelieved the evidence of PW5. The court fully relied upon the evidence of PW11. It is true that PW5 was not declared as hostile by the prosecution. But when the court below disbelieved PW5, the discrepancy in the dying declaration or regarding carrying a stone will not effect the evidence of PW11. As per the evidence of PW11, after the fall, accused took a stone and hit against the head. It can be seen that as per the Crl.A.No.768 of 2004 7 Ext.P8 post mortem certificate, there is a fracture on the head that can be caused by such a hit. When the totality of the evidence of PW11 is believable and further considering the fact that even though the charge was under Section 302 of IPC the conviction is only under Section 304 of IPC it can be seen that the crux of the evidence can be acted upon and there is nothing to interfere with the conviction entered into by the court below.
7. Now, in this case, PW1 is a witness to the preparation of Ext.P1 inquest report. PW2 is an attestor to the scene mahazar, Ext.P2. PW3 is an attestor to the mahazar Ext.P3. PW4 is an attestor to the mahazar prepared on production of dresses of the first accused. PW6 is the doctor who examined the deceased Nercha and issued Ext.P7, wound certificate. The injuries noted by him are lacerated wound 3 cm deep on the left parietal region, bleeding, lacerated wound on the occipital region 3x2 cm, abrasion on forehead and abrasion on left knee, abrasion on Crl.A.No.768 of 2004 8 the left arm. He also deposed that the person who brought the patient told him that injuries were caused due to fall. Injuries No.1 & 2 could be caused due to hit with granite piece. During cross examination, he submitted before court that 3 to 4 persons brought the injured. It was not mentioned in Ext.P7. He further admitted that all these injuries could be caused by fall. PW7 is the doctor who conducted the post-mortem and issued Ext.P8 post-mortem certificate. He opined that the injuries are fatal and would come death in the normal course. He also deposed that the injuries could be caused by hitting with granite piece, which was shown to him. He further deposed that cause of death was head injury. During cross-examination he stated that the injuries No.1 & 2 could be caused due to fall over a granite piece; but multiple fall is required. PW8 is the Junior Superintendent attached to the Judicial First Class Magistrate Court, Perinthalmanna, who deposed that he is the person who forwarded the articles for chemical examination (Ext.P9 forwarding note). PW9 is the village Crl.A.No.768 of 2004 9 officer who prepared Ext.P10 plan. He deposed scene mahazar was referred for preparation of the same. PW10 is the Circle Inspector who conducted the inquest in this case which was already marked before the court as Ext.P1. PW11 is one Mundichi Chokkadchi who is an eyewitness. She deposed before the court that she know the accused and identified the accused from the court. She further deposed that the deceased, after taking toddy from the toddy shop, sustained injuries. Her further evidence was that she saw a scuffle near to the toddy shop and first thought that it was tamilians and when reached near to the scene, understood that it was her brother. She further deposed that the accused beat her brother and pushed him down. Her brother fell towards east and on the western portion of the road there were granite pieces. The first accused took a stone from therein, threw against the deceased and it fell upon his back side and when the deceased stood up again he was pushed down and then Ayyappan took a stone and beat him on the head. Her Crl.A.No.768 of 2004 10 brother told her that nothing happened and thereafter he went towards south. She heard Ayyappan telling that from Makaram onwards, he was waiting to give his share. By that time one Chakkikutty and Nercha also reached therein. They also went in the direction in which the deceased went. She also deposed that Chathunny beat with an umbrella. Thereafter she came to know that her brother died. It is stated that Ayyappan is the son-in-law of the deceased Nercha and Chathunny was a friend of Ayyappan. It is also deposed that about one year back, the accused Ayyappan married again. During cross-examination, she deposed that at first she heard mutually abusing in a high tone and also there was push and pull. It is further deposed that she saw the push and pull for three times. She further deposed that she don't know from which injury the blood came. She saw the accused throwing twice with stone. She also deposed that more than 50 persons were assembled therein. PW12 is the son of deceased. He is not an eyewitness. According to him, he came to know about the incident from Nercha Crl.A.No.768 of 2004 11 and he further deposed that when the deceased was taken to the hospital he was aware of the cause of injury as stated by Nercha. PW13 is a salesman of the toddy shop who deposed that accused came for purchase of two bottles of toddy. When the deceased saw the accused, he went out of the shop. His evidence was that by the time he took the toddy bottles, he saw the accused going behind Nercha. PW14 is the S.I. who recorded the statement and registered Ext.P11 F.I.R. PW15 is the C.I. Of Police who investigated the crime. He recorded the statements and MO1 stones which were seized from the place of incident. PW5 is the witness who gave the F.I. Statement. According to him on the day of Thiruvonam he was present along with the accused. He further deposed that he consumed toddy along with the deceased. It was about 3 p.m. and according to him, when he was going towards his house he saw the accused and behind them the deceased. His further evidence was that in the hands of the second accused there was an umbrella and in the hands of the first accused there Crl.A.No.768 of 2004 12 was a granite stone. It is also stated that when he saw the deceased Nercha, there was blood on his head as well as on the neck area. When he enquired it is stated that %OnMHa"
LtaA{a"e:D_:na and thereafter he went to hire a vehicle and when he came back the relatives of the deceased; his brother in law Nercha, Chakkikutty as well as Mundichi PW11 were therein. After sometime PW12 Sukumaran also came there. His case is that he had not gone to the hospital at Manjeri and others took him. Thereafter deceased was taken to Calicut Medical College and after that he came to know that Nercha died. He went to the police station and gave a complaint. His case is that he had not witnessed the anything done by the accused against the deceased Nercha. His evidence is that he came to know that the deceased was beat by accused using stone and bottle. During cross examination he stated that "%UV .fK 5aM_f5^Ia" 5\oaf5^Ia"
5aJ_fOK^Cm %Da IyE )?fH %O^Z %U_f? 'xaKa".
8. In this case the main aspect is regarding the Crl.A.No.768 of 2004 13 reliability of PW11. The trial court explicitly relied on the evidence of PW11. PW11 is none other a cousin of the deceased. She is calling the deceased as brother. In this case, it can be seen that the death was a homicidal one. Now it is the burden of the prosecution to show that first it is a culpable homicide and then who committed the culpable homicide. In this case to prove the same the prosecution is mainly relying upon PWs 5 and 11. PW5 deposed before the court that he has not actually witnessed the incident in which the deceased sustained the injury. Surely he got a case that when he was going towards his house, the accused was seen coming and on the back side the deceased was seen. It is also the evidence of PW5 to the effect that in the hands of the accused No.1 there was a stone and blood was oozing out from the head and neck of the deceased. Immediately on seeing the deceased with bleeding injuries, enquired how he sustained the same his answer was that %OnMHa" LtaA{a"e:D_:na. The second Crl.A.No.768 of 2004 14 appellant is not a relative of the first appellant, but only a friend as per the evidence of PW5. It is further to be remembered that first accused is none other than the son- in-law of the deceased. Surely, there is a case that the marriage relationship was strained. But the relatives of the first accused will be known to the deceased. When the second accused is not a relative of first accused then the reference of Ayyappan and relatives cannot be relating to the second accused. It is pertinent to note that not only this aspect but at the end of the chief examination his evidence was that "gHV:nfO dID_5Z 2Ka" f:OnaKDm >^X 5I`G_\oo 5aM_f5^Ia" 5\oaf5^Ia" dID_5Z 5aJ_fOKm gHV:n IyE^Cy_EDm. When his evidence is that the deceased stated that he was beat with bottle and stone, it is also relevant to note that no bottle is seized during investigation. The evidence of the salesman of the toddy shop, who is examined as PW13 is to the effect that toddy bottle was not actually taken from the toddy shop. Thus, the evidence of Crl.A.No.768 of 2004 15 this witness regarding the dying declaration can be viewed only with suspicion. Now, we can examine the evidence of PW11, who claims that she is an eyewitness. As per the evidence adduced by PW5 it can be seen that PW11 is coming to the spot only after he went to hire a car. PW11 is the sole eyewitness. The question is whether she is fully reliable. The question is that when PW11 is admittedly a close relative of the deceased whether her evidence can be fully acted upon to come to a conclusion that accused inflicted the injury as stated by her. As already stated, as per the evidence of PW5, she came to the spot only on a later point of time. I have very carefully examined Ext.P7 wound certificate. After going through the wound certificate the injuries are mainly on head and there are some abrasions. It is an admitted case that there was push and pull. The main question is that whether the head injury is inflicted by hitting with a stone. In this case PW11 categorically deposed before the court that she saw the accused no.1 hitting with a stone. But it is not clear why Crl.A.No.768 of 2004 16 immediately after the incident she has not reported the same to the police. In this case admittedly there are two days delay in registering the FIR. The person who gave F.1 statement to the police has got no case that he saw the accused inflicting the fatal injury. When at the earliest point of time, as per Ext.P1, PW1 is reaching at the spot only later. As per Ext.P1, PW5 is not actually witnessed the incident. As per the F.I. Statement, Ayyappan and his relative Chathunny was coming towards him and thereafter the deceased was coming. When he enquired to the deceased regarding the injury his statement was that %UV xI^{a" .fK 5\oaf5^Ia" 5aM_f5^Ia" 5aJ_ and thereafter PW12 Sukumaran and his brother in law kalinjar nercha came therein. There is no mention of PW11 in Ext.P1. i.e. at that point of time, in Ext.P1 the name of PW11 is not seen stated. Surely, the name of all the witnesses need not be stated in the F.I. Statement. But in this case, it is to be remembered that F.I. Statement was not given immediately Crl.A.No.768 of 2004 17 after the incident. It is a fact that even though the deceased sustained injuries on 4.9.1998 the F.I. Statement was given only on 6.9.1998 at 11.30 hours. Then the details of the persons who arrived at the place also should have been collected by the police while his statement was recorded. When the name of PW11 is not in the F.I. Statement, without corroboration it may not be possible to give explicit reliance on the evidence of PW11. As per the evidence of PW11, after the incident, PW11 went to her house. If such an incident was actually witnessed by her and such a bleeding injury was seen inflicted upon the brother she will not leave him in such a state. It is also to be appreciated that even a stranger who is not related to the deceased went to hire a vehicle on seeing him in that condition. Under such circumstances a conviction entered upon fully relying on PW11 may not be sustainable in a case like this. Surely, there is high suspicion regarding the involvement of the accused herein. The question is whether the true picture of the incident is before the court. If the injury is Crl.A.No.768 of 2004 18 not sustained as stated by PW11, then the conviction cannot be sustained. Suspicion cannot be a substitute for positive evidence. When there is a possibility that the head injury can be caused during a push and pull and harmful fight, especially in the light of the evidence of PWs 6 & 7 and only condition highlighted is multiple fall is required and when there is evidence to the effect that more than one fall is witnessed by the witness considering all these aspects it may not be possible to come to a definite conclusion that the injury was actually inflicted by the accused and it can be only held that the prosecution failed to prove the causation of culpable homicide by the appellant. Hence, this criminal appeal is allowed setting aside the conviction and sentence imposed against the first appellant. The bail bond, if any, executed by the appellant is cancelled and he is set at liberty.
Sd/-
K.P. JYOTHINDRANATH JUDGE //True copy// P.A. TO JUDGE shg/