Kerala High Court
Abdul Majeed vs State Of Kerala on 30 March, 2011
Author: P.Bhavadasan
Bench: P.Bhavadasan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE P.BHAVADASAN
&
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
MONDAY, THE 28TH DAY OF MARCH 2016/8TH CHAITHRA, 1938
CRL.A.No.1542 of 2011
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AGAINST THE JUDGMENT IN SC 469/2006 of 1st ADDITIONAL SESSIONS
COURT, PALAKKAD DATED 30-03-2011
APPELLANT/FATHER OF VICTIM:
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ABDUL MAJEED, S/O. AHAMMED SAHIB,
AGED 63 YEARS, "RAJKAMAL", JOULYKADA BUILDING, OOTTY MAIN
ROAD, METTUPALAYAM, TAMILNADU.
BY ADV. SRI.P.K.VARGHESE
RESPONDENTS/ACCUSED & STATE:
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1. STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
2. LUKMANUL HAKKIM, S/O.AHAMMEDKUTTY,
AGED 30 YEARS, PAZHAYAPEEDIKAKKAL HOUSE,
KANJIRAMPARA, MANNUR-678 642.
R1 BY SMT. V.H. JASMINE, PUBLIC PROSECUTOR.
R2 BY SRI.P.VIJAYA BHANU (SENIOR ADVOCATE)
R2 BY ADVS. SRI.P.M.RAFIQ
SRI.VIPIN NARAYAN
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
28-03-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
P.BHAVADASAN &
RAJA VIJAYARAGHAVAN V, JJ.
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Crl. Appeal No.1542 OF 2011
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Dated this the 28th day of March, 2016.
J U D G M E N T
P.Bhavadasan, J.
This appeal is by the legal heir of the victim against acquittal of accused for the offence under Section 302 of Indian Penal Code.
2. The facts necessary for the purpose of disposal of this appeal are as follows:
The deceased was married to the sister of accused and it seems that their family life was not very pleasant. On the date of incident, deceased and his wife were on their way to the house of wife of deceased, and PW1, the first informant, was asked by father of deceased to meet the deceased and his wife on the way and to take them to the in laws home of the deceased. Accordingly, it Crl. Appeal No.1542/2011 2 is claimed by PW1 that he met them on the way and though the deceased and his wife mounted the bus along with PW1, on the way the deceased dismounted the bus and told PW1 to take his wife and child to her house as he anticipated that if the deceased went along with PW1 and his wife, things may not be quite comfortable at the house of the wife of deceased. Further allegation is that when PW1 reached the house of wife of deceased along with the child, he was detained there by the inmates of the house of wife of deceased by pointing out that unless deceased came to the house, PW1 would not be let out of the house. This information was passed on to the deceased and the deceased is alleged to have come to the house of accused. Further allegation is that deceased came home and there was talk between the inmates of house of wife of deceased and deceased. The prosecution would allege that the accused had threatened earlier that he would do away with anyone who played with the life of Crl. Appeal No.1542/2011 3 his sister. While conversation was going on between the inmates of the house of wife of deceased and deceased, it is stated that for no reason whatsoever, the accused plunged knife into the abdomen of the deceased. The deceased who was wriggling in pain was taken to the next room of the place of incident and was thereafter removed to the hospital in an autorickshaw. PW1 is alleged to have followed them. At Mannur Junction on the way deceased was shifted from the autorickshaw to a car and he was taken to the hospital at Valluvanadu. On examination by the doctor concerned i.e. PW5, deceased was pronounced dead.
3. PW1 soon thereafter went to the Mankara Police Station in Palakkad and laid Ext.P1 First Information Statement. Ext.P1 was recorded by PW7 who registered crime as per Ext.P1(a) First Information Report.
Crl. Appeal No.1542/2011 4
4. Investigation was taken over by PW10 on 17.02.2005. He proceeded to the hospital where body of deceased had been retained, conducted inquest over the body and prepared Ext.P2 report. He seized M.O.s 3 and 4 and other clothes found on the body of deceased as per the inquest report. He then handed over the body for autopsy and PW11 conducted autopsy over the body and prepared Ext.P14 postmortem certificate. In the meanwhile, PW10 proceeded to the place of occurrence and prepared Ext.P8 scene mahazar. On 20.02.2005 at about 10 a.m, accused was arrested from the KSRTC bus stand at Palakkad. On questioning the accused, based on his confession statement, weapon of offence was recovered as per Ext.P6 mahazar. PW10 then filed Ext.P11 report giving the details of accused before the court concerned. He also had the properties seized produced before court and also preferred forwarding note to have the articles sent for chemical analysis. The report Crl. Appeal No.1542/2011 5 so received is Ext.P12. He questioned the witnesses, recorded their statements, completed investigation and laid charge before court.
5. The court before which final report was laid took cognizance of the offence and finding that the offence is exclusively triable by a Court of Sessions, the case was committed to Sessions Court, Palakkad under Section 209 Cr.P.C after following requisite procedures. The said court made over the case to Additional Sessions Court-I, Palakkad for trial and disposal. The latter court, on receipt of records and on appearance of accused, framed charge for the offence under Section 302 IPC. To the charge, accused pleaded not guilty and claimed to be tried.
6. The prosecution therefore had PWs 1 to 13 examined and Exts.P1 to P15 marked. M.O.s 1 to 6 were got identified and marked.
Crl. Appeal No.1542/2011 6
7. After the close of the prosecution evidence, accused was questioned under Section 313 Cr.P.C. He denied all the incriminating circumstances brought out in evidence against him and claimed that he has nothing to do with the incident. He further added that he has not caused the death of Ashraf Ali and on the date of incident, at the relevant time, he was in the Mankara Police Station in relation to Crime No.54/2005 to take the accused in that case on bail and he continued to be in the Police Station till 7.30 p.m. He denied having given any confession statement to the Investigating Officer and recovery on that basis. He also claimed that he resides in house No.8/240 of Mannur Grama Panchayath.
8. Finding that the accused could not be acquitted under Section 232 Cr.P.C, he was asked to enter on his defence. He examined DWs 1 and 2 and had Exts.D1 and D2 marked.
Crl. Appeal No.1542/2011 7
9. The court below though found that the evidence of PW1 is in tune with the contents of Ext.P1 First Information Statement, found it extremely difficult to accept the version given by PW1 regarding the incident for various reasons. The court below was of the opinion that there was no evidence to show that PW1 was at the place of incident and it is found by the court below that had he been there, it is inconceivable that he would not have accompanied the injured to the hospital. The court below also placed reliance on Ext.P5 death intimation proved by PW5 wherein place of occurrence is shown as a different place. Various other circumstances were taken aid of by the court below to come to the conclusion that it is extremely doubtful whether PW1 can be termed as trustworthy witness and if reliance can be placed on his evidence at all. In the light of this ambiguous state of affairs, court below felt it proper to grant benefit of doubt to the accused and acquitted him.
Crl. Appeal No.1542/2011 8
10. The father of deceased, being a legal heir of the victim, as per Section 372 read with Section 2(wa) of the Code of Criminal Procedure has preferred this appeal.
11. Assailing the acquittal, learned counsel appearing for the appellant contended that the court below has omitted to notice that the version given by PW1 compares well with the contents of Ext.P1 which came into existence soon after the incident and that guarantees that the true version of the incident has been given to the Police and also fortifies the version given by PW1. The reason given by the lower court to doubt the presence of PW1 at the place of incident is not sustainable in law. According to the learned counsel, there is nothing to indicate that PW1 had any reason to falsely implicate the accused. PW1 had clearly stated that he had occasion to attend the phone call made by the deceased and he had conveyed his captivity to him which brought the deceased Crl. Appeal No.1542/2011 9 to the place of incident.
12. Learned counsel appearing for the appellant went on to point out that the deceased died of inflicted injuries and the evidence adduced by the prosecution clearly points out the role of accused in the act of causing injury to the deceased. Learned counsel went on to point out that the finding of the court below that since in Ext.P5 place of incident is shown as somewhere else, that casts doubt on the prosecution version of the incident, cannot be sustained in law. It is in evidence that the deceased was removed to the hospital from the house of accused and no explanation is offered by the accused for the said act. Further, presence of bloodstains at the place of incident adds to the complicity of accused. The court below was also not justified in accepting the defence version that at the relevant time accused was not at home and he was at the Mankara Police Station though court below does not Crl. Appeal No.1542/2011 10 accept the whole version given by the accused in this regard. The court takes it as an additional ground to suspect the prosecution version. According to the learned counsel, on a dispassionate and impartial assessment of evidence of PW1 taken along with Ext.P1 which is a virgin account of incident, it is clear that it was the accused who had caused the death of deceased. The court below has not analysed the evidence in the proper perspective and that has led to miscarriage of justice. It is inconceivable, according to the learned counsel, that PW1 would falsely implicate the accused and let the real culprit escape. These vital aspects have been omitted to be noticed by the court below.
13. Learned counsel appearing for the respondent-accused, on the other hand, cautioned this Court that this Court is exercising its appellate jurisdiction against an order of acquittal where the scope of interference is considerably limited. Learned counsel Crl. Appeal No.1542/2011 11 emphasised that the court below which had the opportunity to watch the demeanour of witnesses has chosen to acquit the accused on certain grounds which are formidable in nature. The conduct of PW1 has to be taken note of and so also the absence of attempt from the part of prosecution to examine any witness to show that PW1 was present at the place of incident even though it was strongly disputed by the accused. If the version given by the accused is true, one would have expected the prosecution to examine the autorickshaw driver in whose auto the injured was removed to the hospital initially though at a later stage he was shifted to a car. The reluctance on the part of the Investigating Agency to examine anyone from the house of PW1 to show that it was PW1 who had taken the wife and the child of deceased to the house of wife of deceased goes a long way in casting serious doubt of the prosecution version of the incident. In short, except for the interested testimony Crl. Appeal No.1542/2011 12 of PW1, learned counsel points out that there is absolutely no evidence to show that PW1 was ever at the place of incident at the time of occurrence. It could not be said, according to the learned counsel, that the view taken by the court below is perverse or is contrary to the evidence on record. The view taken by the court below was after appreciating the evidence in considerable detail and that being a possible view, even if this Court is inclined to take a different view, appeal one being against an order of acquittal, interference may not be justified.
14. There is much to be said in favour of either sides. But the fact remains that the court below which, as rightly pointed out by the learned counsel for the appellant, had occasion to watch the demeanour of witnesses and had the first opportunity to assess the evidence, had chosen to acquit the accused on certain grounds which will be dealt with later.
Crl. Appeal No.1542/2011 13
15. The fact that Ashraf Ali, the deceased, was married to the sister of accused is not in dispute. It cannot also be disputed that Ashraf Ali died of inflicted injury. If there is any doubt, that is set at rest by Exts.P2 and P14. Ext.P2 is the inquest report prepared by PW10 and Ext.P14 is the postmortem certificate. PW11 is the Forensic Surgeon who had conducted autopsy. Ext.P14 postmortem certificate shows the following ante-mortem injuries:
"B. Injury (Ante-mortem):-
1. Incised penetrating wound 2.5 x 0.8 cm oblique over the front of left side of chest just below the costal margin. Its inner end 11 cm outer to midline and its outer end 16cm below nipple. Both ends of the wound were sharply cut.
On dissection the wound had entered abdominal cavity and cut the abdominal aorta and inferior vena cava 3 cm above its bifurcation (Aorta 3x0.9cm, inferior vena cava 3.2x0.8cm). The soft tissues in and around Crl. Appeal No.1542/2011 14 the injured area was infiltrated with blood. The abdominal cavity contained 1.5 litres of fluid blood with clots. The wound was directed downwards, and backwards and to the right for a total minimum depth of 14.5cm.
Test of air embolism was done on the heart and found strongly positive. On cutting the neck vessels copious amount of frothy blood escaped".
16. PW11, the Forensic Surgeon who had conducted autopsy, opined that deceased died due to penetrating injury sustained on his abdomen involving aorta and inferior vena cava. He also deposed that the injury could be caused by the weapon of offence recovered by PW10 and that the injury caused to the victim was sufficient in the ordinary course of nature to cause death of a person concerned. These items of evidence leave one in no doubt that the death of Ashraf Ali was homicidal.
Crl. Appeal No.1542/2011 15
17. The next question that arises for consideration is whether the court below was justified in not accepting the evidence of PW1 which is alleged to be foolproof by the appellant.
18. It is not disputed by the defence that PW1 is the brother of deceased. Of course, accused seriously controverts the version given by PW1 regarding his presence at the place of incident. The prosecution relies heavily on the evidence of PW1. Therefore, it becomes necessary to refer to his evidence in some detail.
19. The deceased was the younger brother of PW1. The house of wife of deceased is at Mannur. PW1 would say that the incident had taken place in the said house. At the relevant time, PW1 used to earn his living by selling lottery tickets. On 16.02.2005 i.e. on the date of incident, PW1 claims to have been at his wife's house at Kalleppulli. He states that he received a phone call from his father informing him that the deceased and his Crl. Appeal No.1542/2011 16 wife have started from Mettuppalayam and were proceeding to Mannur. He was asked to intercept them at KSRTC bus stand at Palakkad and the father of PW1 asked him to accompany the deceased and his wife to the house of wife of deceased. PW1 says that he reached the KSRTC bus stand by about 3.15 p.m and met Ashraf Ali and his wife and child. All of them mounted the bus to Mannur. When the bus stopped at the bus stop at Pathirippala, deceased got down from the bus and instructed PW1 to take his wife and child to the house of wife of deceased. PW1 claimed that deceased informed him that if he went along with his wife and child to the house of his wife, it is probable that he may pick up quarrel with the brothers of his wife who would be at home. He therefore proceeded to his house.
20. PW1 claimed that he took the wife of deceased and child to Mannur. They claimed to have reached the house by about 5 p.m and the parents of Crl. Appeal No.1542/2011 17 Mohsina, the wife of deceased, were at home. After dropping the wife of deceased at her home, when PW1 wanted to return to his house, he was prevented from doing so and he was threatened that unless the deceased came to the house of his wife, he would not be let off. Soon thereafter, parents of wife of deceased were joined by her brothers. PW1 claims to have talked the matter to the accused who, according to him, then wielded a knife threatening to do away with anyone who played with the life of his sister. By about 7 p.m, deceased had telephoned to the house of Mohsina. PW1 claims that the phone was handed over to him and he informed Ashraf Ali that he has been held in captivity and he would be released only on Ashraf Ali reaching the house of his wife. Since he had no other option, according to PW1, deceased came to the house of his wife. The accused is then alleged to have talked to the deceased and soon thereafter, after threatening the deceased, he went to the Crl. Appeal No.1542/2011 18 next room and came back with the weapon and plunged it into the abdomen of the deceased. He then ran away from the place of incident. PW1 claims that he and one Mubarak removed the victim from the place of incident to the next room. PW1 claims that he came out of the house and cried aloud about the acts of accused which brought the people to the place of occurrence. In an autorickshaw, Ashraf Ali, the deceased, was taken to the hospital at Valluvanad. When they reached the hospital at about 8.15 p.m, the doctor, on examination of the deceased, pronounced him dead. PW1 says that by about 9.30 p.m on the same day, he laid Ext.P1 First Information Statement. He identified M.O.1 as the knife wielded by the accused. He also identified the clothes worn by the deceased.
21. It is true that the version given by PW1 compares well with the contents of Ext.P1 and that corroborates his evidence. The question is whether that Crl. Appeal No.1542/2011 19 by itself is sufficient to warrant a conclusion that it was the accused who had inflicted fatal injury on the deceased.
22. In spite of the fact that the defence strongly refuted the presence of PW1 in the house of accused, there was no attempt from the side of prosecution to examine any witness to show that PW1 had actually gone to the house of accused. One would have expected the prosecution to examine either the father of deceased or anyone from his house to show that PW1 was asked to accompany the deceased and his wife and child to the house of wife of deceased. The reason for not doing so is not clear. It is in the above context that other item of evidence will have to be considered.
23. As already stated, there can be no doubt that the death of Ashraf Ali was homicidal. The Investigating Officer namely, PW10 while preparing the scene mahazar had noticed the presence of blood stains Crl. Appeal No.1542/2011 20 at the place of incident. This is highlighted by the appellant's counsel to show that the deceased died at the house of wife of deceased. The court below found that that alone is a brittle piece of evidence to justify the conclusion that the accused has committed the act. The court below was guided by certain other factors which made the court suspicious of the prosecution case. Ext.P5 is the death intimation given by PW5 to the Police Station when the body was brought to the hospital. In Ext.P5, the place of occurrence is shown as 'Thenusal House'. The prosecution has no explanation for this entry in Ext.P5. The prosecution has no case that the incident has taken place in the house made mention of in Ext.P5.
24. Equally baffling is the conduct of PW1. The deceased was none other than his younger brother. It is inconceivable that, since the claim of PW1 was that he was present at the place of incident at the relevant time, as rightly noticed by the court below, PW1 would not have Crl. Appeal No.1542/2011 21 accompanied the deceased to the hospital. Of course, he gives a version that he followed the person who had taken his brother to the hospital. For this also, there is no evidence at all.
25. It is here that non examination of autorickshaw driver who had taken the injured first to the hospital assumes importance. One fails to understand why prosecution was shy and reluctant to examine him. Had he been examined, at least there would have been some evidence to show that deceased was taken from the house of wife of deceased where the incident had taken place instead, the prosecution thought it wise enough to examine the taxi driver who had taken the victim to hospital after he was shifted to the car driven by PW6.
26. The claim of alibi set up by accused did not find favour with the court below. We also, after analysing the evidence, is of the opinion that the court below was justified in not accepting that item of evidence. The plea Crl. Appeal No.1542/2011 22 was that at the relevant time accused was in the Mankara Police Station in connection with taking of bail of accused in that case. Even though records were produced by the defence to show that it was so, we find that the evidence of PW7 was that the whole proceedings of granting bail to the accused in that case was over by 6.35 p.m. The incident in the case on hand happened at 7.15 p.m. The court below has found that the distance is not far between the Police Station from which the bail was taken and the place of incident.
27. It is true that PW10 has deposed about the recovery of M.O.1 on the basis of confession statement said to have been made by the accused. Even assuming that the evidence of PW1 can be accepted in that regard, though the witness who claims to have witnessed the seizure turned against the prosecution, that by itself cannot form the basis for conviction. The court below has also noticed the same inconsistency in the evidence of Crl. Appeal No.1542/2011 23 PW1 regarding the place where he was kept in captivity by the inmates of the accused. The court below also found the prosecution claim that Ashraf Ali had made a call to the house of accused to be extremely doubtful.
In the absence of any evidence to show that PW1 was deputed to accompany the deceased and his wife and child to the house of accused and also in the absence of any evidence to show that PW1 was actually present at the place of incident, court below was justified in holding that the prosecution has not been able to successfully prove the case beyond reasonable doubt. As rightly pointed out by the learned counsel for the respondent-accused, a different view may be possible. But, armed with two presumptions, as accused is well placed, it could not be said that the finding of the court below is so perverse so as to warrant an interference at the hands of appellate court. Being a possible view, this Court will not be justified, even it feels a different view is Crl. Appeal No.1542/2011 24 possible, in interfering with the order of acquittal.
For the above reasons, we find no merit in this appeal. It is accordingly dismissed.
Sd/-
P.BHAVADASAN JUDGE Sd/-
RAJA VIJAYARAGHAVAN V JUDGE smp // True Copy // P.A to Judge.