Kerala High Court
Chotta Babu @ Santhosh Babu vs State Of Kerala on 10 January, 2012
Bench: R.Basant, P.Q.Barkath Ali
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE R.BASANT
THE HONOURABLE MR.JUSTICE P.Q.BARKATH ALI
TUESDAY, THE 10TH DAY OF JANUARY 2012/20TH POUSHA 1933
CRA.No. 946 of 2009 ( )
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SC.334/2002 of ADDL.SESSIONS COURT (ADHOC)-II, THALASSERY
CP.12/2002 of J.M.F.C.-II, KANNUR
APPELLANT/1ST ACCUSED:
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CHOTTA BABU @ SANTHOSH BABU,
S/O CHOTTA KELU, COOLI, NALUKUKKU
KADALAYITHERU, CHERUKUNNU, KANNUR DISTRICT.
BY ADV. SRI.C.K.SREEJITH
RESPONDENT/COMPLAINANT:
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STATE OF KERALA, REP. BY ITS
PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
BY PUBLIC PROSECUTOR SRI.GIKKU JACOB.
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
10-01-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
R. BASANT & P.Q.BARKATH ALI, JJ.
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Crl. A. No. 946 of 2009 C
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Dated this the 10th day of January, 2012
JUDGMENT
Basant, J.
i) Is the learned Sessions Judge justified in holding that the case against the appellant stands proved by circumstantial evidence, when the prosecution has failed to prove its case on ocular testimony as initially proposed?
ii) Is the accused entitled to the benefit of any reasonable doubt?
These questions are raised for consideration by Sri.C.K.Sreejith, the learned counsel for the appellant, in this appeal.
2. Originally there were two accused persons. Appellant faced indictment for the offence of murder CRL.A.946/2009 2 punishable under section 302 IPC. The co-accused, a woman (A2), faced indictment for the allied offence punishable under section 201 IPC. The appellant has been found guilty, convicted and sentenced, whereas the second accused was found not guilty and acquitted. The appellant faces a sentence of imprisonment for life and a fine of Rs.10,000/- under section 302 IPC.
3. The prosecution alleged that the appellant on account of animosity arising from the objections raised by deceased Prasanthan against his illicit sexual relationship with the 2nd accused, a neighbour, inflicted multiple injuries on the deceased with MO1, to which injuries the deceased succumbed on the next day. The alleged incident took place at about 7.15 p.m. on 6-1-1999. The deceased succumbed to the injuries while undergoing treatment at Calicut Medical College Hospital at about 7 p.m. on 7-1-1999.
4. Investigation commenced with Ext.P7 F.I.S. lodged by the deceased before the police, on the basis of which Ext.P9 F.I.R. was registered. The investigation was CRL.A.946/2009 3 completed and final report was filed by the Investigating Officer, who succeeded PW23. The learned Magistrate committed the case to the Court of Sessions after observing all legal formalities. Both the accused denied the charges framed against them by the learned Sessions Judge. Thereupon, the prosecution was directed to adduce evidence in support of its case. The prosecution examined PWs.1 to 23 and proved Exts.P1 to P17. MOs.1 to 8 were marked.
5. The accused took up a defence of total denial. No defence witness was examined. Exts.D1 to D3, case diary contradictions, were marked.
6. The learned Sessions Judge notwithstanding the hostility of the eye witnesses examined by the prosecution, came to the conclusion that circumstances relied on by the prosecution have been successfully established and such circumstances clearly established the charge under section 302 IPC levelled against the appellant. As stated earlier, the 2nd accused was found not guilty and acquitted. Accordingly, CRL.A.946/2009 4 the learned Sessions Judge proceeded to pass the impugned judgment.
7. Before us the learned counsel for the appellant/1st accused and the learned Public Prosecutor have advanced their arguments. The learned counsel for the appellant argues that the circumstances, which have been introduced, in evidence have not been established satisfactorily. The circumstances proved in the case are not sufficient to safely drive home the charge against the appellant. At any rate, the appellant is entitled to the benefit of doubt and deserves to be acquitted, contends the learned counsel for the appellant.
8. The learned Public Prosecutor, on the other hand, contends that the hostility of eye witnesses cannot deliver any advantage to the appellant. Notwithstanding the fact that the prosecution was not able to establish its case on the basis of ocular account of eye witnesses, the circumstances that have actually been introduced in evidence convincingly establishes the charge against the CRL.A.946/2009 5 appellant. The impugned verdict of guilty, conviction and sentence against the appellant does not deserve to be interfered with, contends the learned Public Prosecutor.
9. We have concerned all relevant inputs. An appellate judgment is and is intended to be read in continuation of the judgment of the trial court. In that view of the matter, it is not necessary for us to re-narrate the oral and documentary evidence adduced in the case. Suffice it to say that the learned counsel has taken us exhaustively through the oral evidence of PWs.1 to 23 and contents of Exts.P1 to P17. These have been read to us in detail. We have also been taken through the charge framed against the appellant by the learned Sessions Judge and the answers given by the appellant in the course of his examination under section 313 Cr.P.C. We have been taken through Exts.D1 to D3 also. We shall refer to the relevant materials specifically wherever necessary in the course of discussions later.
10. As referred to earlier, the prosecution had CRL.A.946/2009 6 expected to prove its case by tendering direct ocular testimony. The eye witnesses examined by the prosecution turned hostile to the prosecution and therefore direct ocular testimony could not be placed before the Sessions Court. In these circumstances, the prosecution relied on other pieces of evidence to support its charge. The prosecution relied on various circumstances. We shall now attempt to narrate the circumstances relied on by the prosecution. We shall later consider whether these circumstances have been proved. Thereafter, we shall consider whether the circumstances proved establish the charge against the appellant satisfactorily.
11. The circumstances relied on by the prosecution are:-
1) The deceased had succumbed to homicidal injuries suffered on his person described in Ext.P6 postmortem certificate.
2) There was a wordy altercation between the appellant and the deceased at the scene of CRL.A.946/2009 7 occurrence near the house of the deceased at about 7 p.m. on 6-1-1999.
3) The accused had run away from the scene of the crime and the deceased was seen at the scene with injuries on his person.
4) The deceased stated to many persons at the scene and later that he had suffered the injuries at the hands of the appellant.
5) The appellant stated to PW7 and another, after the incident, that "he had done it"
against the deceased ( )
6) The deceased stated to the Medical Officer who prepared Ext.P13 that he had suffered the injuries at the hands of the appellant.
7) The deceased stated to PW16 Asst. Sub Inspector of Police in Ext.P7 FIS that he had suffered the injuries at the hands of the appellant.
8) On the basis of the information furnished by CRL.A.946/2009 8 the appellant in his confession statement to PW23 blood-stained MO1 weapon was recovered by PW23 under Ext.P2 in the presence of PWs.12 and 20.
12. We shall now proceed to consider whether these circumstances have been proved.
13. Circumstance No.1: About the cause of the death of the deceased we have Ext.P6 postmortem certificate and the oral evidence of PW15. We have also Ext.P13 wound certificate issued by the Medical Officer in which the injuries suffered by the deceased are described. There is not a semblance of doubt on the question that the deceased had succumbed to the injuries described in Ext.P13 wound certificate and Ext.P6 postmortem certificate. The evidence of PW15 indicates that the injuries could have been inflicted with a weapon like MO1. We are satisfied in these circumstances that it has been established beyond doubt that the deceased had succumbed to the fatal injuries described in Exts.P13 and P6 and those injuries could have CRL.A.946/2009 9 been inflicted with a weapon like MO1. The first circumstance is established convincingly thus.
14. Circumstance Nos.2 and 3: Even though the obliging witnesses did not tender ocular testimony against the appellant, we have the evidence of PWs. 1 to 6, which establish beyond any reasonable doubt that the incident had taken place outside the house of the deceased and near the houseS of the 2nd accused and PW4. There was a wordy altercation between the appellant and the deceased. The evidence of hostile witnesses, PWs.1, 2, 4 and 5, clearly establish this wordy altercation between the appellant and the deceased at the relevant time. We have also the oral evidence of PW5 that the accused was seen running away from the scene of the crime holding something in his hand and that the deceased was holding his abdomen after the incident suggesting that he had suffered some injuries. Both PWs.1 and 2 had spoken that the appellant was seen near their house after the incident wanting the 2nd accused to open the back door of her house to enable him to enter into CRL.A.946/2009 10 that house. Thus, there is convincing evidence made available to show that at the time of occurrence there was a wordy altercation between the appellant and the deceased and that at the end of the incident the appellant was seen running away from the scene of the crime, whereas the deceased who had suffered the injuries was available at the scene of the crime. These circumstances are established convincingly by the evidence of PWs.1 to 5. We entertain not an iota of doubt on the acceptability of these circumstances from the oral evidence tendered by PWs.1 to 5.
15. Circumstance No.4: The prosecution wanted to rely on the circumstance that the deceased told many persons with whom he had interaction after the incident that the injuries found on his person were inflicted by the appellant herein. On this aspect we have the evidence of PW6, a woman, and PWs.8, 9 and 10. They are all persons who were available at or near the scene of occurrence and who had helped to remove the injured/deceased for medical treatment.
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16. The evidence of PW6 suggests that the deceased had told her that he had suffered the injuries at the hands of the appellant, though it is also stated by PW6 that the deceased told her that he had fallen and suffered the injuries. PW8 deposed that the deceased told him that the deceased had suffered the injury at the hands of the appellant, but his evidence is challenged on the ground that this was a significant omission in his statement to the police during investigation. PWs.9 and 10 are persons who had reached the scene of occurrence and who had removed the injured/deceased to the hospital in a pickup van. Both of them had stated that the deceased revealed to them that the injuries were suffered by him at the hands of the appellant. Notwithstanding the omission marked in the oral evidence of PW8 on this aspect, we find it absolutely safe to rely on the evidence of PWs.6, 8, 9 and 10 to come to the conclusion that dying declarations were made by the deceased to those witnesses to confirm that the deceased had suffered the injuries seen on his person at the hands of the appellant. CRL.A.946/2009 12
17. Circumstance No.5: The prosecution relies on the extra-judicial confession allegedly made by the appellant to PW7 and another that he had attacked the deceased Prasanthan ( ). On this aspect the prosecution has adduced only the evidence of PW7. Another person, who was present along with PW7 (when this extra-judicial confession was allegedly made) has not been examined by the prosecution. But notwithstanding such omission, we find absolutely no reason not to accept and act upon the oral evidence of PW7. We have been taken in detail through the oral evidence of PW7 on this aspect. We are of the opinion that the learned Public Prosecutor is eminently justified in contending that the oral evidence of PW7 about the extra- judicial confession made by the appellant as to what he had done to deceased Prasanthan can be safely accepted. We entertain no doubt whatsoever on the acceptability of the oral evidence of PW7. This circumstance is thus clearly established.
18. Circumstance Nos. 6 and 7: The prosecution relies CRL.A.946/2009 13 on the dying declarations made by the deceased to the doctor who prepared Ext.P13 and also the dying declaration made by the deceased to PW16, a Police Officer. The deceased is alleged to have stated to both of them that he had suffered the injuries at the hands of the appellant.
19. So far as the dying declaration recorded in Ext.P13 is concerned, we do not have the evidence of the doctor who recorded the said dying declaration. The dying declaration is recorded in Ext.P13 and the recorded dying declaration is proved by PW21 doctor who proved the handwriting and signature of his colleague who prepared Ext.P13. That colleague was not available in India at the time when the evidence recorded. We find absolutely no reason not to rely on the dying declaration recorded in Ext.P13 by the duty Medical Officer. However, it is brought to our notice that there is no specific statement in Ext.P13 that the alleged cause was narrated to the doctor who prepared Ext.P13 by the patient himself. It is true that such specific statement is not recorded in Ext.P13. But, a reading CRL.A.946/2009 14 of the alleged cause narrated in Ext.P13 clearly shows that the statement is recorded in first person singular and the statement must have been given by the deceased himself. In these circumstances, even in the absence of direct testimony from the doctor who prepared Ext.P13, we feel persuaded to agree that the dying declaration recorded in Ext.P13 can be safely accepted.
20. It is not, of course, necessary for the court to found any finding of fact or conclusion on the dying declaration recorded in Ext.P13. We have the oral evidence of PW16 Asst. Sub Inspector of Police who recorded Ext.P7 F.I.S from the deceased. That statement was recorded at 3 p.m. on 7-1-1999. Statement Ext.P7 recorded at the Medical College Hospital by PW16 was taken to the police station by PW16 and Ext.P9 F.I.R was registered by PW17 at 9 p.m. on the basis of Ext.P7. Ext.P9 F.I.R. had reached the court at 10.15 a.m. on 8-1-1999. We have gone through the cross- examination of PW16. There is no circumstance worth the name brought out in the cross-examination of PW16 which CRL.A.946/2009 15 can persuade the court to entertain any doubt or reservation on the acceptability of Ext.P7 F.I.S. Ext.P7 F.I.S., we further note, is in tandem with the narration of the alleged cause in Ext.P13 wound certificate also. All guns are trained by the learned defence counsel at Ext.P7 F.I.S. It is contended that the deceased had undergone some medical procedures and was in the hospital. No doctor has been examined to prove the physical and mental condition of the deceased at the time when Ext.P7 was recorded at 3 p.m. on 7-1-1999. This affects the acceptability of Ext.P7 dying declaration, contends the learned counsel for the appellant. We look at the oral evidence of PW16 again. We confirm that there is no reason to doubt or suspect the version of PW16 about his recording of Ext.P7 F.I.S. In this context, we take note of the evidence of PW18, the brother-in-law of the deceased, to whom also the deceased is alleged to have made the dying declaration about the responsibility of the appellant for the injuries found on his person. Identical dying declaration was also made by the deceased to PW18. CRL.A.946/2009 16 According to PW18, PW16 had come later and had recorded the dying declaration in his presence. Thus, the evidence of PW16 about Ext.P7 dying declaration made by the deceased to him is eminently supported by the oral evidence of PW18 about identical dying declaration made by the deceased to PW18 before PW16 came to the hospital to record the dying declaration. We find no reason to approach the evidence of PWs.16 and 18 with any amount of doubt, suspicion or distrust. The fact that Medical Officer has not been examined is, according to us, too unsatisfactory a reason not to accept and act upon the oral evidence of PWs.16 and 18. In this context, we revisit the cross-examination of the Medical Experts, PW15 and 21. No attempt whatsoever is made in the course of examination of PWs.15 and 21 to even remotely suggest that the deceased with such injuries on him would not have been in a position to make the alleged dying declaration which he made in Ext.P7 to PWs.16 and
18. In these circumstances, we take the view that circumstances 6 and 7 have also been satisfactorily CRL.A.946/2009 17 established by the prosecution.
21. Circumstance No.8: The prosecution relies on the 8th circumstance that MO1 knife allegedly used for the infliction of the injury on the deceased by the appellant was recovered by PW23, the Investigating Officer, on the basis of information furnished by the appellant in the course of his interrogation after his arrest, when he allegedly made a confession statement. Under Ext.P2 recovery mahazar MO1 was recovered by PW23 in the presence of PWs.12 and 20, attesters. PWs.12 and 20 and also PW23 gave evidence in support of this recovery. The appellant was arrested on 24th February,1999 by PW23 - the incident having taken place on 6-1-1999. It is the case of the prosecution that the appellant with the active collusion of the 2nd accused was absconding and could be arrested only on 24-2-1999. MO1 was found to be blood-stained and this was confirmed in chemical examination. The evidence of PW15 doctor indicates that the injuries described in Ext.P6 postmortem certificate could have been suffered by the deceased with a weapon like CRL.A.946/2009 18 MO1. In this context, recovery of MO1 on the basis of the information furnished by the appellant under Ext.P2 is definitely relevant and admissible under section 27 of the Evidence Act. We find no reason not to accept and act upon the recovery effected by PW23 of MO1 under Ext.P2. This last/8th circumstance is also thus established satisfactorily by the prosecution.
22. The last question that falls for consideration is whether on the basis of these circumstances proved it is safe to come to a conclusion that the fatal injuries described in Ext.P6 were suffered by the deceased at the hands of the appellant. It is true that the prosecution initially wanted to rely on ocular testimony of eye witnesses to drive home the charge against the appellant. It is certainly not law that when the prosecution finds itself unable to support the charge on the basis of ocular testimony, initially relied upon by it, the prosecution cannot aspire to support of the charge on the basis of circumstantial evidence that the prosecution has been able to adduce. Such a proposition is legally CRL.A.946/2009 19 untenable. Whatever may have the initial expectation of the prosecution, their inability to adduce such eye witness evidence consequent to hostility of the prosecution witnesses cannot in any view of the matter frustrate the attempt of the prosecution to establish the charge by circumstantial evidence, which is sought to be adduced and supported. That approach is impermissible in law. Acceptance of such a proposition would amount to concession of a premium to hostile witnesses, whose tribe is unfortunately on the increase. The crucial question is only whether the pieces of circumstantial evidence established do lead to a safe and sure conclusion about the guilt of the indictee.
23. About the law relating to proof in a case resting entirely on circumstantial evidence, we do not think it necessary to advert to any specific precedents. The law is well settled. We need only remind ourselves of the law. In a case resting on circumstantial evidence all the circumstances are to be proved firmly and clearly beyond CRL.A.946/2009 20 doubt. All the circumstances, it has got to be insisted, must constitute strong links in a strong chain of circumstances which chain must point clinchingly and unerringly to the complicity (guilt) of the indictee. The chain of circumstance must also exclude every reasonable hypothesis of innocence of the indictee.
24. We come back to the proved circumstances 1 to 8 in this case. That the deceased died due to homicidal injuries described in Ext.P6 which could have been inflicted a weapon like MO1 is proved convincingly. That the appellant and deceased were together present at the scene of occurrence at the relevant time when deceased must have suffered injuries is also proved. That there was a wordy altercation between them is convincingly established, that the deceased suffered bleeding injuries on his abdomen and chest is proved satisfactorily. That the appellant moved away from the scene of the crime is established. That the deceased made dying declaration to people who came to him and who helped him to be removed to the hospital is CRL.A.946/2009 21 established. In such dying declaration he had clearly stated that the injuries were suffered by him at the hands of the appellant. To the Medical Officer, who examined him and prepared Ext.P13 wound certificate, it was stated clearly that he suffered injuries at the hands of the appellant. To PW16 a police official also, the deceased had stated in Ext.P7 that he suffered the injuries at the hands of the appellant. A fairly detailed narration of the sequence of events appears in Ext.P7. To PW18 brother-in-law of the deceased had stated that he suffered the injuries at the hands of the appellant. PW18 physically present with the deceased and PW16 when the deceased made Ext.P7 statement (dying declaration) to PW16. The recovery of MO1 under Ext.P2 by PW23 in the presence of PWs.12 and 20 on the basis of information furnished by the appellant offers the final assurance for the complicity of the appellant. The above circumstances clearly lead the court to the unerring conclusion that the injuries must have been suffered by the deceased at the hands of the appellant and CRL.A.946/2009 22 the appellant alone. No reasonable doubt whatsoever survives on the question that the fatal injuries were suffered by the deceased at the hands of the appellant.
25. As to what is the the offence made out, we do note that in Ext.P6 there are injuries other than injuries which could have been suffered with a weapon like MO1 and that some of the injuries in Ext.P6 are not specifically explained. This cannot be given any undue importance in a case like the instant one - where the appellant has not even attempted to advance any different version about the incident. There is no case that the accused is entitled to any right of private defence. Such a plea is not raised by the appellant on whom the burden lies under section 105 of the Evidence Act. Such a plea does not emerge from the nature of the evidence available. In these circumstances, we are satisfied that the presence of some injuries on the deceased described in Ext.P6, which may not have been suffered with a weapon like MO1 in Ext.P6, cannot deliver any advantage to the appellant.
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26. We take note of the nature of the injuries described in Ext.P6. We take note of the nature of weapon (MO1) with which the injuries were inflicted. We take particular note of injuries Nos. 2,7, 14, 17 and 18 described in Ext.P6. Any one who inflicts such injuries on the victim with a weapon like MO1 can safely be assumed to have intended to cause the death of the deceased. At any rate, the serious injuries suffered to the chest, diaphragm, lung, heart etc. clearly indicate that those intentional injuries are sufficient in the ordinary course of nature to cause death. Under clause thirdly of section 300 IPC, if not under clause firstly of section 300 IPC, the offence proved is definitely the offence of murder defined under section 300 IPC punishable under section 302 IPC. The verdict of guilt, conviction and sentence imposed under section 302 IPC do not in the circumstances warrant any interference.
27. It follows from the above discussions that this appeal only deserves to be dismissed. No other contentions are raised.
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28. This appeal is accordingly dismissed.
R. BASANT, JUDGE P.Q.BARKATH ALI, JUDGE mn.