Kerala High Court
Saji @ Aayi vs State Of Kerala on 25 May, 2012
Author: V.K.Mohanan
Bench: V.K.Mohanan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE V.K.MOHANAN
FRIDAY, THE 25TH DAY OF MAY 2012/4TH JYAISHTA 1934
CRL.A.No. 70 of 2010 (C)
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SC.178/2008 of ADDL.SESSIONS JUDGE (ADHOC)-1, KOTTAYAM
CP.6/2008 of J.M.F.C.,PALAI
APPELLANT/SOLE ACCUSED (UNDER CUSTODY):
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SAJI @ AAYI, S/O.RAGHAVAN,
INCHIYIL VEEDU, EDAPALLY KARA, BHARANANGANAM VILLAGE
KOTTAYAM DISTRICT.
BY ADVS.SRI.JOHNSON MANAYANI
SRI.BENHUR JOSEPH MANAYANI
RESPONDENT/COMPLAINANT AND STATE OF KERALA:
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1. STATE OF KERALA,
REP.BY ITS PUBLIC PROSECUTOR,
HIGH COURT OF KERALA
ERNAKULAM.
2. CIRCLE INSPECTOR OF POLICE, PALA.
BY PUBLIC PROSECUTOR SRI P.M. SANEER.
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 25-
05-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
V.K.MOHANAN, J.
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Crl.A.No.70 of 2010
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Dated this the 25th day of May, 2012.
J U D G M E N T
The sole accused in S.C.No.178 of 2008 of the court of Sessions, Kottayam Division, is the appellant since he is aggrieved by the judgment dated 5.1.2010 of the trial court in the above sessions case by which he is convicted and sentenced under sections 28 and Section 3 read with section 25 (1)(B) of the Arms Act.
2. The prosecution case is that, the appellant/accused, who involved in numerous criminal cases of Pala Police Station, had attempted to commit murder of A.R.Police Constables, namely, CWs 2 to 4, who accompanied the Circle Inspector of Police, Pala for arresting the accused, by firing with revolver when the prosecution witnesses chased the accused and thus the accused is liable to be punished for committing the offence under section 307 IPC. It is the further allegation that, the accused had used the fire arm for the purpose of escaping himself from arrest and therefore he is liable to be punished CRL.A. No. 70 of 2010. :-2-:
for the offence under section 28 of the Arms Act. The another allegation is that since the accused was not having any licence for the possession of country made revolver, he has also committed the offences punishable under section 3 read with Section 25(1)(a) of the Arms Act. With the above allegation, crime No.502/2002 was registered in the Kalamassery Police station for the offence punishable under section 307 IPC and Section 3 read with Section 25(1) (B) and Section 28 of the Arms Act 1969.
3. On completing the investigation, charge was laid before the Judicial First Class Magistrate Court, Palai wherein C.P.No.6/2008 was instituted and subsequently, by order dated 30.7.2008, the learned Magistrate committed the case to the Sessions Court where the same was received as S.C.No.178/2008. Subsequently, the case was made over to the Additional Sessions Judge, (Adhoc)-I, Kottayam. When the accused was produced, after hearing the prosecution as well as the accused, a formal charge was framed against the accused for the offence punishable under section 307 IPC and also for the offences punishable under sections 25(1)(B) and section 28 of the Arms Act. When the charge read over and explained to CRL.A. No. 70 of 2010. :-3-:
the accused, he denied the same and pleaded not guilty, consequently, the trial was proceeded further during which PWs 1 to 14 were examined from the side of the prosecution and Exts.P1 to P13 were marked. Besides the above, MOs. 1 and 2 revolvers were also produced and marked. No evidence, either oral or documentary, was produced from the side of the defence.
4. The trial court, after having considered the evidence and material on record, has categorically found that the prosecution has miserably failed in proving the offence punishable under section 307 of IPC against the appellant, and accordingly, he is acquitted of the said offence under section 235(1) Cr.P.C. Whereas by the very same judgment, the trial court has found that the accused is guilty for the offences under section 28 and Section 3 read with Section 25(1)(B) of the Arms Act. On such conviction , the accused is sentenced to undergo simple imprisonment for 5 years for the offence under section 28 of the Arms Act and also sentenced to undergo imprisonments for 2 years for the offence under section 3 read with Section 25(1)(B) of the Arms Act. Set off is allowed, but there is no order to run the sentence concurrently. It is the CRL.A. No. 70 of 2010. :-4-:
above conviction recorded by the trial court and the sentence made thereon are challenged in this appeal. Suffice to note that the State has not filed any appeal against the acquittal of the appellant for the offence under section 307 IPC.
5. The crux of the prosecution allegation is that, while PW5 and other officials of the police department chased the accused, who is involved in several other criminal cases, attempted to commit murder of them by firing from MO1 revolver and also possessed MO1 without any licence or authority and used such MO1 revolver, to prevent PW5 and others from arresting the appellant. As I indicated earlier, in order to prove the above allegations, though the prosecution has examined several witnesses, and produced documents, the prosecution mainly depends upon the evidence of PW5 to prove its case against the appellant. PW1, the C.I of police, Pala, filed Ext.P1 report before the then Assistant Commissioner of police Thrikkakara who was examined as PW11. In Ext.P1, PW1 has stated the details of the incident as gathered from PW5. It was PW5 and CWs 3 and 4 chased the accused on 24.10.2002 to arrest him as directed by PW1. Though PWs 2, 3 and 4, who are independent witnesses, CRL.A. No. 70 of 2010. :-5-:
when examined to prove the incident, they turned hostile towards the prosecution. PW6 is the A.R Head constable, Ernakulam. PW7 is the Village Officer who prepared Ext.P3 site plan. PW8 is the S.I of Police, Eloor Police Station who took MO1 and two revolvers in custody, when they were produced by PW11 in crime No.22/2003 of Eloor Police Station. Ext.P5 complaint of PW1 was registered by PW9. PW10 and PW12 are the Junior Superintendents of the court of Pala and North Paravoor respectively, who received the thondi articles in the court and PW11 is the then Assistant Commissioner of Police who arrested the appellant/accused on 6.2.2003 and recovered the material objects i.e. Mos 1 and 2. The investigation was undertaken by PW13 and finally , the charge was laid by PW14. These are the evidence and materials referred to by the learned Judge of the trial court and relied on to convict the appellant.
6. Sri S.Johnson Manayani, the learned Counsel for the appellant vehemently submitted that the prosecution has miserably failed to prove beyond reasonable doubt that MO1 revolver is the one which allegedly used by the appellant on the date of the alleged incident. According to the learned counsel, CRL.A. No. 70 of 2010. :-6-:
the trial court by committing wrong believed PW5, in spite of the fact that, the very same learned Judge disbelieved the case of PW5 and the prosecution that the appellant attempted to commit murder of PW5 and other police men using the same gun, i.e., M.O-1. It is also the submission of the learned counsel that there is serious lapse on the part of the investigating agency in conducting a thorough investigation in the case, since according to the learned counsel, though the independent witnesses, viz,. PWs 2, 3 and 4 turned hostile, the prosecution has not shown any interest to examine CW 2 and CW4, who are official witnesses, and allegedly chased the appellant along with PW5 and thereby the prosecution suppressed material evidence from the scrutiny of the court. Therefore, according to the learned counsel, the conviction recorded by the trial court against the appellant for the offences under Sections 28, S.3, and S.25(1)(B) of the Arms Act are not legally and factually sustainable.
7. On the other hand, Sri P.M. Saneer, the learned Public Prosecutor strenuously submitted that, as per the prosecution case, PW5 had got ample opportunity to notice the revolver CRL.A. No. 70 of 2010. :-7-:
used by the appellant who fired against PW5 and CWs 2 and 4 and he had seen the revolver when the accused took the same from his waist. It is also the submission of the learned Public Prosecutor that after arrest of the appellant and seizure of MO1, PW5 had identified MO1 from Eloor Police Station and had correctly identified MO1 in the court when he was examined as PW5. Therefore, according to the learned Public Prosecutor, the trial court is fully justified in its finding and convicting the appellant for the said offences and therefore no interference is warranted.
8. I have carefully considered the submission made by the learned counsel for the appellant as well as the learned Public Prosecutor and I have also perused the judgment of the trial court and the evidence and materials on record.
9. At the outset it is to be noted that, though the prosecution has got a case that the appellant had attempted to murder of PW5 and CWs. 2 and 4 by using MO1, and committed the offence punishable under section 307, the trial court acquitted the appellant of the said charge and the prosecution has not filed any appeal against the above acquittal CRL.A. No. 70 of 2010. :-8-:
and the finding and reasoning of the court below. In the light of the rival arguments advanced by the counsel for the appellant and the learned Public Prosecutor and in the light of the evidence and materials on record, the question to be considered is whether the trial court is justified in its finding that the appellant has committed the offences punishable under section 28 and Section 3 read with Section 25(1)(B) of the Arms Act, especially, in the light of the findings of the court below, that the appellant has not committed the offence punishable under section 307 IPC as alleged by the prosecution.
10. As I indicated earlier, to substantiate the prosecution case regarding the incident and the allegation against the appellant, the prosecution mainly depends upon the evidence of PW5. In this juncture it is relevant to note that, though PWs.
2, 3 and 4, the independent witnesses were examined by the prosecution to prove the incident, they turned hostile against the prosecution, and as such, there is no independent evidence. It is at this juncture, the submission made by the learned counsel for the appellant becomes relevant, regarding the lapse on the side of the prosecution in producing and CRL.A. No. 70 of 2010. :-9-:
examining CW2 and CW4, who are the official witnesses, who claimed to have joined with PW5 for chasing the appellant and, against whom, the appellant allegedly pointed his revolver to commit murder of CWs 2 and 4. No explanation is forthcoming from the part of the prosecution for non examination of those material witnesses. Therefore, the question to be further considered is, how far PW5 can be relied, and whether the prosecution, on the basis of the sole evidence of PW5, has succeeded in proving the incident. I have carefully gone through the deposition of PW5. According to PW5, he along with CWs 2 and 4 came to Ernakulam, as directed by PW1, to arrest the appellant/accused. Their attempt to arrest the accused at the GCDA Complex and at the Ernkulam Medical Centre, failed, therefore, they claimed to have chased the appellant and intercepted him in front of the Pipeline junction of Palarivattom. In the chief examination PW5 has stated:
'' Auto . .
'' "
''.
PW5 has further stated:
" 10 shirt
CRL.A. No. 70 of 2010. :-10-:
...........'''
He has also stated:
"Revolver .
Revolver "
From the above version of PW5, it can be seen that, if what he had stated is true, after intercepting the appellant and when PW5 and party approached the appellant, according to PW5, at that time the accused had not taken the revolver. So there was no opportunity for PW5 to see MO1 revolver, even though he was very near to the appellant. According to PW5, the revolver was taken after running 10 metres distance from them. PW6 had deposed that the incident was at about 6 p.m. There is no whisper in the deposition of PW5 that there was sufficient light to see MO1 in the hands of the accused. It is also relevant to note that, in Ext.P1 report, there is no description about Ext.P1 revolver, but in the additional statement of PW5, what stated is that the handle of the revolver was black in colour. But in Ext.P1 report, there is no such description. PW5 has stated that :
CRL.A. No. 70 of 2010. :-11-:
"
".
The deposition of PW5 is not sufficient to hold that he had occasion to see the handle of the revolver when the same was taken from the waist of the appellant, since at the time alleged was after 6 p.m. and PW5 claimed to have seen the same when the appellant as well as PW5 and party were running chasing the appellant. In any of the prosecution documents, or in the 161 statement of PW5, no special identifiable mark of MO1 revolver was mentioned so as to identify the same subsequently. In this juncture, it is relevant to note that, PW5 was examined in the court on 18.11.2009 whereas the alleged incident had taken place on 24.10.2002 and the accused was arrested on 6.2.2003. The above shabby evidence of PW5, who is the interested and official eye witness, cannot be believed unless there are credible independent evidence to corroborate the evidence of PW5.
11. At this juncture it is pertinent to note that, on the basis of Ext.P8 forensic report, the learned Judge of the trial court has categorically found that, absolutely, there is no CRL.A. No. 70 of 2010. :-12-:
reliable evidence to show that the accused had fired from MO1 revolver against PW5 in this case. Ext.P8 shows that the experts could not get any evidence to show that MO1 was used for firing as alleged by the prosecution. So the learned Judge of the trial court disbelieved the version of PW5 to the effect that the appellant by using MO1 fired at PW5. Two aspects are borne out from the above facts. Firstly, the evidence of PW5 is unbelievable. Secondly, MO1 is not the weapon allegedly used by the appellant at the time of the alleged incident , since no firing can be effected from MO1, though PW5 deposed in that direction. So, the available prosecution evidence in effect is not satisfactory to show that it is M.O-1 revolver that was used by the appellant at the time of the alleged incident. As rightly pointed out by the learned Public Prosecutor, even if MO1 was not capable of firing, the offence under section 28 and 25(1) (B) of the Arms Act would lie against the appellant. But, the prosecution has to prove that it was MO1 used by the appellant at the time of the alleged incident. But the finding of the learned judge itself is against the prosecution. The claim of PW5 that, the accused used MO1 CRL.A. No. 70 of 2010. :-13-:
revolver, is not supported by any independent evidence and the prosecution has also failed to examine the official witnesses, who allegedly was present at the relevant time, to prove the above aspect. In this juncture, it is pertinent to note that, the prosecution has not made any attempt to bring out any evidence by examining the expert to show that MO1 was capable to fire at the relevant point of time and such capacity was lost due to passage of time. Therefore, according to me, the evidence of PW5 is insufficient to hold that, the appellant had used MO1 revolver at the time of the incident as alleged by the prosecution, especially, when the learned Judge of the trial court refused to accept the prosecution allegation under section 307 IPC against the appellant on the basis of MO1 revolver and the evidence of PW5. Therefore, the prosecution has miserably failed to prove beyond reasonable doubt that, the appellant had used MO1 revolver in the incident and, therefore, the benefit of doubt goes in favour of the appellant and I do so.
Consequently, the conviction recorded by the trial court against the appellant under section 28 and Section 3 read with section 25(1)(B) of the Arms act are set aide and the sentence CRL.A. No. 70 of 2010. :-14-:
imposed against him is also set aside.
In the result, this appeal is allowed setting aside the judgment dated 5.1.2010 in S.C.No.178 of 2008 of the court of Additional Sessions Judge (Ad hoc)-1, Kottayam and the appellant/accused is acquitted of all the charges levelled against him and he is set at liberty.
As the appellant is acquitted of all the charges levelled against him after setting aside the impugned judgment in this appeal, the appellant is entitled to get released from the jail forthwith, if he is not required in any other case. The Registry is directed to forward the gist of this judgment to the Superintendent, Central Prison, Viyoor, forthwith, for appropriate action.
V.K.MOHANAN, Judge kvm/-
CRL.A. No. 70 of 2010. :-15-:
V.K.MOHANAN, J.
---------------------------------------- Crl.A.No. 70 of 2010
---------------------------------------- Dated the 15th day of February, 2012 ORDER Registry is directed to furnish a copy of the petition dated 31.8.2011 of the appellant and received by the Registry, and a copy of the communication sent by the registry to the Additional D.G.P. (Prisons) on 11.7.2011, to the learned Public Prosecutor, who in turn, is directed to file a report showing the steps taken by Addl. DGP pursuant to the direction issued by this Court. Registry is directed to furnish the above materials along with a copy of CRL.A. No. 70 of 2010. :-16-:
this order to the Public Prosecutor, forthwith and the Public Prosecutor is directed to file a report within 10 days from the date of receipt of the above materials.
Post after 10 days.
V.K.MOHANAN, JUDGE kvm/-
kvm/-
CRL.A. No. 70 of 2010. :-17-: