Kerala High Court
Wilfer Raj vs State Of Kerala on 20 December, 2018
Equivalent citations: AIRONLINE 2018 KER 933
Bench: A.M.Shaffique, P.Somarajan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
&
THE HONOURABLE MR. JUSTICE P.SOMARAJAN
THURSDAY ,THE 20TH DAY OF DECEMBER 2018 / 29TH AGRAHAYANA,
1940
CRA(V).No. 1445 of 2012
AGAINST THE JUDGMENT IN SC 321/2005 of ADDITIONAL SESSIONS
COURT-I, THIRUVANANTHAPURAM DATED 20-07-2011
APPELLANT/DEFACTO COMPLAINANT/INJURED WITNESS PW2:
WILFER RAJ, AGED 31 YEARS,
S/O DEVADASAN, MYLODI VEEDU, KULATHOOR,
UCHAKKADA P.O, THIRUVANANTHAPURAM
BY ADVS.
SRI.S.RAJEEV
SRI.K.K.DHEERENDRAKRISHNAN
RESPONDENTS/ACCUSED & STATE:
1 STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF
KERALA, ERNAKULAM 682031 (CRIME NO 145/2003 OF
POZHIYOOR POLICE STATION, THIRUVANANTHAPURAM)
2 VIJAYAN
S/O GABRIEL, V.R. BHAVAN, KUTTANTHURANNAVILA,
KULATHOOR DESOM, KULATHOOR VILLAGE,
THIRUVANANTHAPURAM 695583
Crl.Appeal (V) No.1445/12 &
Crl.Appeal No. 1447/12
-:2:-
3 SOMAN
S/O GABRIEAL, PARATHATTUVILA VEEDU, KULATHOOR
DESOM, KULATHOOR VILLAGE, THIRUVANANTHAPURAM-
695583
BY ADV. SR PUBLIC PROSECUTOR SRI.S.U.NAZAR
THIS CRL.A BY DEFACTO COMPLAINANT/VICTIM HAVING BEEN
FINALLY HEARD ON 14.9.2018, ALONG WITH CRL.A.1447/2012, THE
COURT ON 20.12.2018 DELIVERED THE FOLLOWING:
Crl.Appeal (V) No.1445/12 &
Crl.Appeal No. 1447/12
-:3:-
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
&
THE HONOURABLE MR. JUSTICE P.SOMARAJAN
THURSDAY,THE 20TH DAY OF DECEMBER 2018/29TH AGRAHAYANA, 1940
CRL.A.No. 1447 of 2012
AGAINST THE JUDGMENT IN SC 321/2005 of ADDITIONAL SESSIONS
COURT-I, THIRUVANANTHAPURAM DATED 20-07-2011
APPELLANT/COMPLAINANT:
STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH
COURT OF KERALA, ERNAKULAM.
BY ADVS.
SR.PUBLIC PROSECUTOR SRI.S.U.NAZAR
RESPONDENTS/ACCUSED:
1 VIJAYAN
S/O.GABRIEL, V.R.BHAVAN, KUTTAN THURANNA VILA,
KULATHOOR DESOM, KULATHOOR VILLAGE, PIN-695583.
2 SOMAN
S/O.GABRIEL, PARATHATTUVILA VEEDU, KULATHOOR
DESOM, KULATHOOR VILLAGE, PIN-695 583.
BY ADVS.
SRI.ANIL K.MOHAMMED
R1 AND R2 SRI.B.RAMAN PILLAI (SR.)
SRI.MANU TOM
SRI.M.SUNILKUMAR
SRI.R.ANIL
SRI.SUJESH MENON V.B.
SRI.T.ANIL KUMAR
SRI.THOMAS ABRAHAM (NILACKAPPILLIL)
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
14.9.2018, ALONG WITH CRA(V).1445/2012, THE COURT ON
20.12.2018 DELIVERED THE FOLLOWING:
Crl.Appeal (V) No.1445/12 &
Crl.Appeal No. 1447/12
-:4:-
JUDGMENT
Shaffique, J.
Crl.Appeal No. 1445 of 2012 is a victim appeal preferred by the brother of the deceased Russel Raj and Crl.Appeal No. 1447 of 2012 is preferred by State of Kerala aggrieved by the order of acquittal passed by the learned Additional Sessions Judge-I, Thiruvananthapuram in SC No. 321/2005. As these appeals arise out of the same incident, both of them are heard and decided together. Learned Counsel Sri.S.Rajeev appeared for the victim and Sri.S.U.Nazar, the learned Public Prosecutor appeared for the State of Kerala and learned Senior Counsel Sri.B.Raman Pillai appeared for both the accused. We heard the detailed arguments made by all the respective Counsels.
2. The prosecution alleged that the accused committed murder of their own brother-in-law, Russel Raj and voluntarily caused grievous hurt by means of dangerous weapons to the brother of the deceased, PW2 Wilfer Raj. The accused Vijayan and Soman were charged for offences punishable under Sections 302, 323, 324 and 326 read with Section 34 of the Indian Penal Code (for short 'IPC'). Court below, after trial, found that prosecution Crl.Appeal (V) No.1445/12 & Crl.Appeal No. 1447/12 -:5:- was unable to prove the case against the accused and acquitted them.
3. The prosecution case is detailed as under: The appellant Wilfer Raj (PW2) is the brother of the deceased. The deceased Russel Raj is the brother-in-law of the accused. On 18.09.03 at around 08.00 p. m., the father of PW2 Mr. Devadas, aged 75 years, developed acute illness. To take him to hospital, PW2 went to a taxi stand situated at Uchakkada to avail a taxi and on the way, at Viraly Junction, he met his friend Praveen (PW3) and he accompanied him. At the taxi stand, there was only one taxi available which belonged to PW4 Ravikrishnan. PW4 told them that the car was having some starting problem and expressed his reluctance to go. Since there was no other taxi available at that time and considering the urgency of the situation, PW2 and PW3 insisted PW4 to come with them. Accordingly, PW4 agreed to take the taxi and asked PW2 and PW3 to proceed to their house and that he would follow them after push starting the car. Accordingly, PW2 and PW3 proceeded to their house in the bike and PW4 followed them in his taxi car. When they reached the place called Kuttanthurannavila, they saw Crl.Appeal (V) No.1445/12 & Crl.Appeal No. 1447/12 -:6:- a lorry loading coconut husk on the side of the road situated on the western side of the house of the first accused. They reached the house of PW2. PW2, PW3 and Russel Raj took PW2's father into the car. The deceased Russel Raj also entered into the car and the car proceeded to the hospital. PW2 and PW3 followed the car in the bike. When the car reached in front of the house of the first accused, the lorry mentioned above was obstructing the passage. PW2 and PW3 who were following the car also reached there. Initially, PW4 the driver of the car requested the lorry driver to make way. The lorry driver was moving the lorry to and fro. Thereafter, PW2 asked the driver to move the lorry to enable the car to proceed to the hospital. At that time, accused no. 1 who was standing there rushed to the front of the lorry uttering "
who are you to ask the lorry to be moved?" and pulled down the bike in which PW2 and PW3 were traveling. As a result of it, both of them fell down and as they stood up from the ground, the first accused gave a blow on the chest and dorsal side of PW2 with his fist. Thereafter, the first accused pushed PW2 up to a lane situated 30 feet away towards north from the said place and PW2 fell down. When PW2 got up, the first accused took MO1 knife Crl.Appeal (V) No.1445/12 & Crl.Appeal No. 1447/12 -:7:- from the tucking of his waist and stabbed PW2 on the left side of the head and right side of the shoulder. At that time, the second accused rushed to the spot from the compound of the house of the first accused with MO2, the handle of a spade and gave a blow aiming at the head of PW2. PW2 prevented the blow with his right hand. He suffered a fracture on his hand. Seeing the incident from the car, Russel Raj got out of the car and rushed towards PW2 and the first accused uttering, "please don't do any harm to my brother." When Russel Raj reached near PW2 and the first accused, the first accused stabbed Russel Raj using MO1, on right side of his chest just above the nipple, uttering "Will kill and bury all of you". When Russel Raj attempted to run away, the first accused again with the same MO1 knife, stabbed on the dorsal side of Russel Raj and inflicted serious injuries on him. On sustaining injuries, the deceased screamed and ran towards the car. Both the accused followed the deceased with MO1 and MO2. Russel Raj fell down in front of the car. Both the accused stood near to him by waving the knife and prevented others from approaching them and saving the deceased, by uttering that the same would be the fate, if anybody tries to save the injured. After Crl.Appeal (V) No.1445/12 & Crl.Appeal No. 1447/12 -:8:- a short while, both the accused went to the compound of the first accused with the weapons. After both the accused went away, PW2 and PW3 took Russel Raj to the hospital in the same car. First they went to Tiraviyam hospital. A Doctor came near to the car and examined Russel Raj, and after giving first aid, they were asked to take the patient to Medical College Hospital (MCH), Thiruvananthapuram. PW2's father was admitted there. On their way to MCH, Russel Raj screamed with severe pain and hence they went to Government Hospital, Neyyattinkara where the patient was given Oxygen and Glucose and referred to Medical College Hospital. PW2 and PW3 took Russel Raj in an ambulance to MCH. At the Medical College Hospital, the Doctor on examining the patient, declared him dead. The wound in the body of PW2 was sutured, his x-ray was taken and he was admitted in the MCH.
4. On the very mid-night i. e., 19/09/03 at 01.15 a.m., PW2 gave Ext.P2 a detailed FI Statement with names of both the accused, to PW15, who registered Ext.P2(a) FIR.
5. To prove the case, prosecution examined PW1 to PW17 and proved Exts.P1 to P26. MO1 to MO13 were produced and Crl.Appeal (V) No.1445/12 & Crl.Appeal No. 1447/12 -:9:- identified.
6. According to the learned Public Prosecutor and learned counsel for the appellant, the judgment of the Court below is unreasonable and perverse. The Court below committed serious error in appreciating even the oral testimony of the eyewitnesses including injured witness PW2. Three contradictions are marked as Exts.D1, D2 and D3 through PW4 and PW5. It is settled position that only those contradictions which are material and relevant affects the prosecution case. That apart, the omissions which are pointed out are not relevant in order to treat them as contradictions. In this case, the Court below erred seriously by relying on certain flimsy omissions and by closing eyes to cogent, convincing and corroborating pieces of evidence adduced by the prosecution. PW2 is none other than the brother of the deceased and is an injured witness. He deposed clearly and in tune with the F. I. Statement given by him to police soon after the alleged incident that he and his brother Russel Raj were attacked by A1 and A2 with MO1 knife and MO2 handle of a spade respectively, as a result of which he got injured on his head, right hand and shoulder and his brother got a stab injury from A1 on his chest Crl.Appeal (V) No.1445/12 & Crl.Appeal No. 1447/12 -:10:- near the nipple area and one more stab on his back using the said MO1 knife. A2 hit PW2 with MO2 and that resulted in the fracture of his right hand. There was sufficient light to see the whole incident. Two lighted lamp pillars in front of the house of A1 and the headlight of the car was also on. Moreover the people involved are close relatives and even assuming that there was no light, the witnesses could easily identify the accused. PW3, PW4 and PW5 are independent witnesses who had no enmity towards the accused. They also deposed in tune with the deposition of PW2. The so called discrepancies pointed out by the Court below are not at all discrepancies, but they corroborate the version of PW2. Minor discrepancies only show that the witnesses are not tutored. Nothing unfavorable to the prosecution is brought out in the cross examination of these witnesses, instead the statements in the chief examination were affirmed. Even if there is some fault in investigation, justice cannot be denied. It is argued that the Doctor who conducted the autopsy of the deceased opined that injury nos. 1 and 2 are fatal and injuries 3 and 4 are abrasions. It is brought out in the evidence of PW2 that following the marriage between DW1 and the deceased, accused had enmity towards Crl.Appeal (V) No.1445/12 & Crl.Appeal No. 1447/12 -:11:- the deceased and PW2. In the 313 statement of the accused, they admitted their presence at the scene of occurrence. A1 deposed that he accompanied the party which brought the deceased and PW2 to the hospital which was clearly proved to be a lie. The false explanation given by the accused in their 313 statement is another additional circumstance pointing to the guilt of the accused. There is no evidence to show that the second accused helped the deceased to get into the car. Based on the disclosure statement of A1, MO1 knife was recovered and based on the disclosure statement of A2, MO2 handle of spade was also recovered. The said recoveries satisfies all the conditions of recovery under S.27 of the Indian Evidence Act, 1872 (for brevity 'the Evidence Act'). According to the learned Public Prosecutor, even assuming that the said recoveries were not admissible under S.27, that can as well be admitted as their conduct under S.8 of the Evidence Act. The following precedents were relied upon to substantiate the contentions:-
(i) A.N.Venkatesh and Another v. State of Karnataka [(2005) 7 SCC 714]. In this case the accused took the Police Officer to the place where the dead body was buried and Crl.Appeal (V) No.1445/12 & Crl.Appeal No. 1447/12 -:12:- consequently it was exhumed. The Apex Court held that even if it is held that the disclosure statement made by the accused is not admissible under Section 27 of the Evidence Act, still it is relevant under Section 8.
(ii) Dharam Deo Yadav v. State of U.P. [(2014) 5 SCC 509]. In this judgment, skeleton of the deceased was exhumed as per the statement of the accused. It was held that even if the recovery of skeleton was not in terms of S.27 of the Evidence Act, on the premise that the accused was not in the custody of the police by the time he made the statement, the statement so made by him would be admissible as "conduct" under S.8 of the Evidence Act.
(iii) Machhi Singh v. State of Punjab (AIR 1983 SC 957).
In this judgment, the Apex Court considered a case with reference to an incident which happened during night hours when sufficient light was not available. It was held that identification did not pose any serious problem as the accused were known to the witnesses. In fact they were embroiled in a long-standing family feud. As the culprits had not covered their faces to conceal their identity, it was not difficult to identify them from their facial Crl.Appeal (V) No.1445/12 & Crl.Appeal No. 1447/12 -:13:- features, build gait etc. Light shed by the lantern was enough to enable the witnesses to identify the culprits under the circumstances.
(iv) State of Rajasthan v. Arjun Singh [(2011) 9 SCC 115]. In this case one question that was considered was whether the evidence of relatives can be discarded. It was held that the testimony of such eyewitnesses should not be rejected merely because witnesses are related to the deceased. The Court has held that their testimonies have to be carefully analysed because of their relationship and if the same are cogent and if there is no discrepancy, the same are acceptable.
(v) Edward v. Inspector of Police v. Aandimadam Police Station (AIR 2015 SC 2374). In this case the Apex Court, while considering a contention that the evidence of single eye- witness who is inimical towards the accused, was being considered held that though it is true when feelings run high and there is a personal cause for enmity, there is a tendency to drag in an innocent person against whom the witness has a grudge but foundation must be laid for such a criticism and each case must be judged and governed on its own facts.
Crl.Appeal (V) No.1445/12 & Crl.Appeal No. 1447/12 -:14:-
(vi) Kilakkathaparambath Sasi and Others v. State of Kerala [(2011) 4 SCC 552]. In this case Apex Court considered the scope of appellate jurisdiction and held that if the view taken by the trial Judge was reasonable and could possibly be taken on the evidence, no interference by the appellate court was called for as the presumption of innocence of an accused was strengthened by an acquittal recorded by the trial court.
(vii) State v. Saravanan (AIR 2009 SC 152). In this case it was held that the law is long settled that relationship is not a factor to affect the credibility of a witness, for the mere reason that an eyewitness can be said to be an interested witness, his/her testimony need not be rejected. Most of the times, eyewitnesses happen to be family members or close associates because unless a crime is committed in a public place, strangers are not likely to be present at the time of occurrence. Whenever any plea is taken by the accused persons about the interestedness of witnesses, materials have to be placed in that regard and in such cases, the Court has to adopt a careful approach and analyse evidence to find out whether it is cogent and credible.
Crl.Appeal (V) No.1445/12 & Crl.Appeal No. 1447/12 -:15:-
(viii) Shivaji Sahabrao Bobade and another v. State of Maharashtra [(1973) 2 SCC 793]. In this case the Apex Court reminds the Courts about the social perspective to be adopted in criminal cases. It was held as under:
"6. Even at this stage we may remind ourselves of a necessary social perspective in criminal cases which suffers from insufficient forensic appreciation. The dangers of exaggerated devotion to the rule of benefit of doubt at the expense of social defence and to the soothing sentiment that all acquittals are always good regardless of justice to the victim and the community, demand special emphasis in the contemporary context of escalating crime and escape. The judicial instrument has a public accountability. The cherished principles or golden thread of proof beyond reasonable doubt which runs through the web of our law should not be stretched morbidly to embrace every hunch, hesitancy and degree of doubt. The excessive solicitude reflected in the attitude that a thousand guilty men may go but one innocent martyr shall not suffer is a false dilemma. Only reasonable doubts belong to the accused. Otherwise any practical system of justice will then break down and lose credibility with the community. The evil of acquitting a guilty person light heartedly as a learned Author has sapiently observed, goes much beyond the simple fact that just one guilty person has gone unpunished. If unmerited acquittals become general, they tend to lead to a cynical disregard of the law, and this in turn leads to a public demand for harsher legal presumptions against indicted "persons" and more severe Crl.Appeal (V) No.1445/12 & Crl.Appeal No. 1447/12 -:16:- punishment of those who are found guilty. Thus, too frequent acquittals of the guilty may lead to a ferocious penal law, eventually eroding the judicial protection of the guiltless. For all these reasons it is true to say, with Viscount Simon, that "a miscarriage of justice may arise from the acquittal of the guilty no less than from the conviction of the innocent ...." In short, our jurisprudential enthusiasm for presumed innocence must be moderated by the pragmatic need to make criminal justice potent and realistic. A balance has to be struck between chasing chance possibilities as good enough to set the delinquent free and chopping the logic of preponderant probability to punish marginal innocents. We have adopted these cautions in analysing the evidence and appraising the soundness of the contrary conclusions reached by the courts below. Certainly, in the last analysis reasonable doubts must operate to the advantage of the appellant. In India the law has been laid down on these lines long ago."
(ix) State of Karnataka v. Yarappa Reddy (AIR 2000 SC
185). In this case the Apex Court was considering an instance of lapse in investigation, wherein the Station House Diary was found to be not genuine. It was held that if the other evidence, on scrutiny, is found credible and acceptable, the Court should not be influenced by the machinations demonstrated by the Investigating Officer in conducting investigation or in preparing the records so unscrupulously. It was further held that Crl.Appeal (V) No.1445/12 & Crl.Appeal No. 1447/12 -:17:- investigation is not the solitary area for judicial scrutiny in a criminal trial, the conclusion of the Court in the case cannot be allowed to depend solely on the probity of investigation. Even if the investigation is illegal or even suspicious, the rest of evidence must be scrutinized independently of the impact of it. Otherwise criminal trial will plummet to the level of the Investigating Officer ruling the roost. The Court must have predominance and pre- eminence in criminal trials over the action taken by Investigating Officers. Criminal justice should not be made the casualty for the wrongs committed by the Investigating Officers in the case. In other words, if the Court is convinced that the testimony of a witness to the occurrence is true, the Court is free to act on it albeit Investigating Officer's suspicious role in the case.
7. According to the learned counsel for the victim, while reiterating the arguments of the Public Prosecutor it is argued that, FIR in this case was lodged by PW2 within 5 hours of the incident and it was a detailed one. The incident was fairly described and the names of both the accused can be found in it. PW2 deposed in Court in tune with it and the other witnesses corroborated it. He submitted a tabular comparison of key areas Crl.Appeal (V) No.1445/12 & Crl.Appeal No. 1447/12 -:18:- of deposition of witnesses to show the inconsistency of the witnesses in material particulars regarding the incident. He further added that Ext.P12 document i.e., load-shedding details at the relevant time of incident at the Pozhiyoor feeder, which was marked through PW12, a valid document to prove that there was no load shedding during the relevant time. It is evident from Ext.P12 that power cut timing in the area on the said date was between 7.00 p.m. and 7.30 p.m. On the other hand, these evidence prove the falsity of the accused in claiming that there was power failure at the time of incident. It is true that PW12 did not state whether the place of occurrence is included in the Pozhiyoor feeder of KSEB. But PW16, the Investigating Officer clearly deposed that in his investigation he understood that the said area comes under Pozhiyoor feeder of KSEB. According to the learned counsel, the Court below was thoroughly prejudicial in appreciating the evidence and as a result of which gross miscarriage of justice occurred. They strongly argued for a reversal of the perverse finding of the trial Court. He cited the following precedents in support of his arguments:
(i) V.K.Mishra v. State of Uttarakhand [(2015) 9 SCC Crl.Appeal (V) No.1445/12 & Crl.Appeal No. 1447/12 -:19:- 588]. In this judgment Apex Court was considering a contention regarding discrepancy in the FIR. It was held that FIR is not meant to be an encyclopedia nor is it expected to contain all the details of the prosecution case. It may be sufficient if the broad facts of the prosecution case are stated in the FIR. In the said case, complaint was lodged within few hours after the event. It was held as under:
"PW1 has lost his young daughter just married before six weeks in unnatural circumstances. Death of a daughter within a few days of the marriage: the effect on the mind of the father PW 1 cannot be measured by any yardstick. While lodging the report, PW1 must have been in great shock and mentally disturbed. Because of death of his young daughter being grief stricken, it may not have occurred to PW1 to narrate all the details of payment of money and the dowry harassment meted out to his daughter. Unless there are indications of fabrication, prosecution version cannot be doubted merely on the ground that FIR does not contain the details."
(ii) Mani v. State of Kerala (1987 KHC 1620). This is also a case in which a contention was urged that there is no mention about the injuries sustained by the injured eyewitness, in the FIR. It was held that an FIR is not, and need not be, a catalogue of all information that may be in the mind of the Crl.Appeal (V) No.1445/12 & Crl.Appeal No. 1447/12 -:20:- informant. Several factors would determine what would be said, and what would be missed. The dimensions of perception, the sense of importance or unimportance of events in the mind of the maker of the statement, his own state of mind, his view of relevancy and irrelevancy, would all form the back-drop in which the statement made, will have to be considered. The first information report is only a starting point that alerts the investigating machinery into the process of probe, the result of which will be evaluated by the court.
(iii) Dinubhai Boghabhai Solanki v. State of Gujarat (2017 KHC 6746). In this case also Apex Court was highlighting on the impact of the criminal justice system with reference to the larger interest of the society. It is held that:
"Those persons who have committed the crime, if allowed to go unpunished, this also leads to weakening of the criminal justice system and the society starts losing faith therein. Therefore, the first part of the celebrated dictum "ten criminals may go unpunished but one innocent should not be convicted" has not to be taken routinely. No doubt, latter part of the aforesaid phrase, i.e., "innocent person should not be convicted" remains still valid. However, that does not mean that in the process "ten persons may go unpunished" and law becomes a mute spectator to this Crl.Appeal (V) No.1445/12 & Crl.Appeal No. 1447/12 -:21:- scenario, showing its helplessness. In order to ensure that criminal justice system is vibrant and effective, perpetrators of the crime should not go unpunished and all efforts are to be made to plug the loopholes which may give rise to the aforesaid situation."
8. We also heard at length the learned Senior Counsel appearing for the accused/respondents Sri.B.Raman Pillai. He stressed much on the favorable aspect of double presumption of innocence available to the accused on acquittal by the trial Court. According to him, the Court below arrived at a just conclusion by analyzing the oral and documentary evidence available in this case. The Court below had the opportunity to witness the demeanor of the witnesses as well. Evidence in its totality is taken, discussed, analyzed and appreciated and then only the Court had come to the above conclusion. It is settled position that the appellate Courts should be reluctant to interfere in the judgment of acquittal by the lower Court. It is not to be reversed just because another view is possible or to say a more probable view is possible. There is absolutely no error on the side of the Court below in arriving at a conclusion that the prosecution has miserably failed to prove its case. It is argued that the conduct of Crl.Appeal (V) No.1445/12 & Crl.Appeal No. 1447/12 -:22:- the prosecution itself was not impartial as the Special Public Prosecutor appointed to conduct the case was a private Counsel of PW2. PW2 is the brother of the deceased. He was keeping animosity towards A1. What PW2 deposed in Court was entirely different from his FIS version. Trial Court had the privilege to watch the demeanor of the witnesses and considering all those, the Court below came to a conclusion that the prosecution miserably failed to prove the case against the accused. The acquittal was a well-considered, well-reasoned one and it need not be interfered with by this Court. The father of the deceased and PW2, Mr.Devadas was not examined. The Doctor at Tiraviyam hospital was also not examined. The prosecution avoided these key witnesses who could give a picture about the incident which aspect should go against the prosecution and the Court below was justified in considering these aspects among other flaws in the prosecution case. Two scene plans were prepared. But there is absolutely no evidence that there was light in front of the house of A1. Prosecution does not have a case that there was at least moonlight. The story that there was starting trouble for the car was incorporated in the prosecution story only to make the Crl.Appeal (V) No.1445/12 & Crl.Appeal No. 1447/12 -:23:- Court believe that ,at the time of incident, the car was not in switch off mode and there was light from its headlight. Exts.P2, P3, P13 and P14 would not reveal that there was a light source. There is uniform improvement of case by the prosecution witnesses. The evidence of PW12, Assistant Executive Engineer of KSEB and Ext.P12 document is not admissible as it is hit by S.162 Cr.P.C. Court below found out that there was no light and hence the witnesses would not have witnessed the incident. Nothing is stated in the scene mahazar about the light source. Ext.P21 complaint shows that PW2 has utmost animosity to A1. The deposition of DW1, the wife of the deceased is credible and it is consistent with the version of the defence. Previous statements were changed and witnesses lied. PW3 is the friend and relative of PW2 and is an interested witness. His father was the ASI of Police at the relevant time. His conduct at the scene of occurrence is so strange and abnormal. According to PW3, he was standing as a mere spectator throughout the incident. The brother of PW4 is the classmate of the deceased. Ext.D1 contradiction is marked through PW4. According to PW4, A1 and A2 attacked PW2 and the deceased interfered and got injured and Crl.Appeal (V) No.1445/12 & Crl.Appeal No. 1447/12 -:24:- came back in two seconds. It is not at all believable. Prosecution examined PW9 the Doctor who treated PW2 at Government Taluk Hospital, Neyyattinkara. MO1 was not even shown to the said witness. Also there is not even a suggestion that stab is caused using MO1. The Investigating Officer had to depose the contents of the scene mahazar, not the witnesses and hence it cannot be treated as evidence. Exts.P4(a), P5(a) and P10(a) are not admissible. According to the learned Senior Counsel, the versions of PW2 and PW3 cannot be believed. PW3's version is not corroborating the version of PW2. PW4 deposes that he saw the incident with the help of light from the lamp at A1's gate. He did not depose about the availability of light from the headlight of the car. There is no evidence to show as to who caused the provocation. Admittedly, there was a scuffle. It is in the deposition of PW4 that A1 and A2, after the incident came near to the car and uttered: " Let no one come near". The said version is an omission as it did not find a place either in section 161 statement or in the statement before the Magistrate. Police did not produce the car before Court. It is difficult to believe that the Doctor after examining the injured, gave MO9 bed sheet to the Crl.Appeal (V) No.1445/12 & Crl.Appeal No. 1447/12 -:25:- victim on their way to Medical College Hospital. There was power cut during the time of alleged incident and hence the witnesses could not identify who inflicted the injury upon the deceased. PW4 stated that he was inside the car while the incident took place. Later he deposed that he cried aloud and PW3 came there hearing it. Regarding how the injury was inflicted on PW2, the witnesses have different versions both as to the force with which the stabbing was done and also the posture at which injury was inflicted on PW2. PW16, the Investigating Officer, recovered MO2 handle of the spade from the compound of A1's house, which is an open place and hence the recovery is not proper. It is only in 2005, that too by another investigating officer PW17, the lorry was recovered. Lorry driver and other relevant witnesses were not examined. There are material contradictions in Ext.P2, FIS of PW2 and his deposition in Court. They are full of embellishments and improvements. There is absolutely no circumstance to even look into the judgment of the lower Court as it is just and fair and hence it must be confirmed. He placed reliance on the following judgments to substantiate his arguments:
(i) Mohinder Singh v. State of Punjab (AIR 2003 SC Crl.Appeal (V) No.1445/12 & Crl.Appeal No. 1447/12 -:26:- 4399). In this case, the Apex Court held that generally, it would be the endeavour of the Courts to assess the evidence of eye-
witnesses first to find whether the prosecution case is acceptable or not. But, if there are glaring discrepancies in the prosecution case which require consideration, the evidence of eye-witnesses is to be examined in the background of those inconsistencies.
(ii) Chellan v. State of Kerala (2018 (1) KLD 754). In this case, a Division Bench of this Court held that though it is not particular that all the details must be present in the F.I. Statement, but when it is a material point to prove the prosecution version, the absence of such a relevant/important version without any explanation assumes importance especially when the prosecution case rests purely on circumstantial evidence. It is further held that when material contradictions and omissions are there, it is unsafe to hold that the motive alleged by the prosecution to support it's case is proved.
(iii) State of M.P. v. Ghudan [2005 SCC (Cri) 801], the Apex Court while evaluating evidence in a case held that if really there was a tubelight at the place of the incident, the investigation officer would not have failed to mark the existence Crl.Appeal (V) No.1445/12 & Crl.Appeal No. 1447/12 -:27:- of that tubelight in the sketch and the omission to do so creates doubt as to the possibility of there being sufficient light for identification.
(iv) Rajeevan v. Superintendent of Police (2011 (1) KHC 738). In this case, a Division Bench of this court was considering the admissibility of a letter received by the investigating Officer from the Executive Officer of a Panchayat. It was held that, if a statement made by a person to a police officer in the course of an investigation is inadmissible except for the purposes mentioned in S.162, the same would be true of a letter containing narration of facts addressed by a person to a police officer during the course of an investigation. It is not permissible to circumvent the prohibition contained in S.162 by the Investigating Officer obtaining a written statement of a person instead of the Investigating Officer himself recording that statement.
(v) Kalyan v. State of U.P (AIR 2001 SC 3976). In this case, it was held that, to form an opinion giving the appellants- accused the benefit of doubt we have kept in mind the defence as projected and suggested by them to the witnesses during their Crl.Appeal (V) No.1445/12 & Crl.Appeal No. 1447/12 -:28:- cross-examination.
(vi) Baleshwar Mandal v. State of Bihar (AIR 1997 SC 3471).
(vii) In Shingara Singh v. State of Haryana (AIR 2004 SC 124), it was held as under:-
" It is well settled that in an appeal against acquittal the High Court is entitled to re-appreciate the entire evidence on record but having done so if it finds that the view taken by the trial Court is a possible reasonable view of the evidence on record, it will not substitute its opinion for that of the trial Court. Only in cases where the High Court finds that the findings recorded by the trial Court are unreasonable or perverse or that the Court has committed a serious error of law, or where the trial Court had recorded its findings in ignorance of relevant material on record or by taking into consideration evidence which is not admissible, the High Court may be justified in reversing the order of acquittal. We do not find this case to be one where the High Court was justified in reversing the findings recorded by the trial Court. At best, it may be contended that the view taken by the High Court is also a reasonable view of the evidence on record. However, we cannot say that the view taken by the trial Court was not another reasonable view of the evidence on record. It is well settled that where two views are reasonably possible on the basis of the evidence on record, the one that favours the accused must be accepted. In any event in a case of Crl.Appeal (V) No.1445/12 & Crl.Appeal No. 1447/12 -:29:- acquittal if the view of the trial Court is a possible reasonable view of the evidence on record, interference by the High Court may not be justified.
(viii) In A. Shankar v. State of Karnataka (AIR 2011 SC 2302), the Apex Court held as under:-
"19. It is settled legal proposition that in exceptional circumstances the appellate court under compelling circumstances should reverse the judgment of acquittal of the court below if the findings so recorded by the court below are found to be perverse, i.e., the conclusions of the court below are contrary to the evidence on record or its entire approach in dealing with the evidence is found to be patently illegal leading to miscarriage of justice or its judgment is unreasonable based on erroneous law and facts on the record of the case. While dealing so, the appellate court must bear in mind the presumption of innocence of the accused and further that acquittal by the court below bolsters the presumption of his innocence. (Vide: Abrar v. State of U.P., (2011) 2 SCC 750 : (AIR 2011 SC 354); and Rukia Begum and Ors. v. State of Karnataka, (2011) 4 SCC 779 : (AIR 2011 SC 1585)."
(ix) Ajayan v. State of Kerala (2011 (1) KLT 8 (FB), while considering the scope of section 27 of the Evidence Act, the Full Bench referring to Pulukuri Kottaya & Ors. v. Emperor (AIR 1947 Privy Council 67) held that Section 27 of the Act is based on the doctrine of confirmation by subsequent events. When the Crl.Appeal (V) No.1445/12 & Crl.Appeal No. 1447/12 -:30:- accused gives information to the Police Officer that a particular object is kept concealed at a particular place or given to a particular person and either points out that place wherefrom the said object is recovered by the Police or is produced by the accused or he points out the person who produces the object, recovery of the object confirms truth of the information given by the accused. For the application of S.27, it makes no difference whether information given is that the article is concealed at a particular place or that it is given to a particular person. S.27 does not say that for admissibility of the information authorship of concealment is essential. The expression "distinctly" only means "directly", "indubitably", "strictly", "unmistakably". That expression is used in S.27 to limit and define the scope of information admissible in evidence. It refers to that part of the information supplied by the accused which is the direct and immediate cause of the discovery. The expression "distinctly" is used to show 'exclusivity' of the information acquired by the Police Officer from the accused and leading to the discovery of the fact.
(x) Krishnankutty v. State of Kerala (2015 (2) KHC Crl.Appeal (V) No.1445/12 & Crl.Appeal No. 1447/12 -:31:-
322), the principle adopted is that though Section 27 of the Evidence Act permits proof of so much of the information given by the accused as it relates distinctly to the fact discovered pursuant to that information, unless and until the person to whom the information was given deposes to it, marking of the document containing the information is illegal.
(xi) Anter Singh v. State of Rajasthan (2005 SCC (Cri)
597). In this case Apex Court held that at one time it was held that the expression "fact discovered" in Section 27 of the Evidence Act is restricted to a physical or material fact which can be perceived by the senses, and that it does not include a mental fact, now it is fairly settled that the expression "fact discovered"
includes not only the physical object produced, but also the place from which it is produced and the knowledge of the accused. It is summarised as under:
"16. The various requirements of the section can be summed up as follows:
(1) The fact of which evidence is sought to be given must be relevant to the issue. It must be borne in mind that the provision has nothing to do with the question of relevancy.
The relevancy of the fact discovered must be established according to the prescriptions relating to relevancy of other evidence connecting it with the crime in order to make the fact discovered admissible.
Crl.Appeal (V) No.1445/12 & Crl.Appeal No. 1447/12 -:32:- (2) The fact must have been discovered.
(3) The discovery must have been in consequence of some information received from the accused and not by the accused's own act.
(4) The person giving the information must be accused of any offence.
(5) He must be in the custody of a police officer. (6) The discovery of a fact in consequence of information received from an accused in custody must be deposed to.
(7) Thereupon only that portion of the information which relates distinctly or strictly to the fact discovered can be proved. The rest is inadmissible."
(xii) Ganpat Raoji Suryavanshi v. State of Maharashtra (1980 KHC 1055). In this case, the Apex Court while considering the scope of Section 293 of Cr.P.C. held that any document purporting to be a report under the hand of a Government scientific expert to whom that section applies may be used in evidence in any inquiry, trial or other proceeding under this Code. The Court, however, is given discretion to summon and examine any such expert as to the subject - matter of his report. S.293 by its sub-section (4) is made applicable to only six categories of experts. Among them, the Doctor conducting the post-mortem examination is not one. Where the Crl.Appeal (V) No.1445/12 & Crl.Appeal No. 1447/12 -:33:- contents of a document are to be proved by examining the author of that document, the provisions of S.294 of the Code cannot come into play. Where the relevance of a document depends entirely on its genuineness, the procedure prescribed under S.294 of the Code can be followed and once the genuineness is admitted, then that document itself may be read in evidence. The provisions of S.294 are not meant for circumventing the provisions of the Evidence Act and in particular the provisions relating to the proof of certain facts which can only be done by examining witnesses though those facts might have been mentioned in a document. Conceivably, S.294 of the Code may cover letters written, photographs taken and it may also cover specimen hand writings and finger prints. It is not necessary for our purpose to enumerate the documents which are conceivably covered by S.294. It is enough to mention that the memorandum of the postmortem examination is not a document, the proof of which can be dispensed with by resorting to the provisions of S.294 of the Code.
(xiii) Raju v. State of Kerala (2017 KHC 984). This judgment also follows the view that when a Doctor is examined, Crl.Appeal (V) No.1445/12 & Crl.Appeal No. 1447/12 -:34:- all necessary particulars relating to the injuries seen in the body, especially ante-mortem injuries, the cause of death and all other particulars had to be recorded in evidence.
(xiv) Mohanan v. State of Kerala (2011(4) KLT 59). In this case it is held that the contents of scene mahazar cannot be treated as "evidence". The mere production of scene mahazar or marking of it through the Police Officer who prepared the same will not prove the "facts" stated therein.
(xv) Babu v. State of Kerala (2010 (4) ILR Kerala Series
1). In this judgment, the principles laid down in exercising appellate jurisdiction against an order of acquittal has been summarised and it is held that only in exceptional cases where there are compelling circumstances, and the judgment under appeal is found to be perverse, the Appellate Court can interfere with the order of acquittal. The Appellate Court should bear in mind the presumption of innocence of the accused and further that the Trial Court's acquittal bolsters the presumption of his innocence. Interference in a routine manner where the other view is possible should be avoided, unless there are good reasons for interference. The findings of fact recorded by a Court can be held Crl.Appeal (V) No.1445/12 & Crl.Appeal No. 1447/12 -:35:- to be perverse if the findings have been arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant/inadmissible material. The finding may also be said to be perverse if it is 'against the weight of evidence', or if the finding so outrageously defies logic as to suffer from the vice of irrationality.
(xvi) State of Rajasthan v. Talevar (AIR 2011 SC 2271). In this case also the Apex court had laid down the very same principle, that only in exceptional cases where there are compelling circumstances and the judgment under appeal is found to be perverse, the appellate court can interfere with the order of acquittal. The appellate court should bear in mind the presumption of innocence of the accused and further that the trial Court's acquittal bolsters the presumption of his innocence. Interference in a routine manner where the other view is possible should be avoided, unless there are good reasons for interference.
(xvii) Madathil Narayanan v. State of Kerala [2017 (1) KLD 350 (SC)]. In this case it was held that the principle of presumption of innocence is a human right and observed that the Crl.Appeal (V) No.1445/12 & Crl.Appeal No. 1447/12 -:36:- benefit of doubt belonged to the accused. While considering the appeal against the acquittal where the case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. If the evidence relied upon is reasonable capable of two inferences, the one in favour of the accused must be accepted. Thus, if the Trial Court takes the view that the accused deserves to be acquitted on the basis of the evidence on record, the same cannot be reversed unless and until it is found that the same is vitiated on account of some gross perversity and erroneous appreciation of evidence on record.
(xviii) Hakeem Khan and Others v. State of Madhya Pradesh [(2017) 5 SCC 719]. In this judgment the Apex court reiterated that the law on reversal of acquittals and quoted Murugesan v. State wherein the meaning of different expressions-- "erroneous", "wrong" and "possible", was considered and has stated the law as follows:-
"33. The expressions "erroneous", "wrong" and "possible"
are defined in Oxford English Dictionary in the following terms:
'erroneous.--wrong; incorrect.
Crl.Appeal (V) No.1445/12 & Crl.Appeal No. 1447/12 -:37:- wrong.--(1) not correct or true, mistaken. (2) unjust, dishonest, or immoral.
possible.--(1) capable of existing, happening, or being achieved.
(2) that may exist or happen, but that is not certain or probable.'
34. It will be necessary for us to emphasise that a possible view denotes an opinion which can exist or be formed irrespective of the correctness or otherwise of such an opinion. A view taken by a court lower in the hierarchical structure may be termed as erroneous or wrong by a superior court upon a mere disagreement. But such a conclusion of the higher court would not take the view rendered by the subordinate court outside the arena of a possible view. The correctness or otherwise of any conclusion reached by a court has to be tested on the basis of what the superior judicial authority perceives to be the correct conclusion. A possible view, on the other hand, denotes a conclusion which can reasonably be arrived at regardless of the fact whether it is agreed upon or not by the higher court. The fundamental distinction between the two situations has to be kept in mind. So long as the view taken by the trial court can be reasonably formed, regardless of whether the High Court agrees with the same or not, the view taken by the trial court cannot be interdicted and that of the High Court supplanted over and above the view of the trial court."
9. Needless to say that while exercising appellate jurisdiction, the High Court enjoys ample statutory powers to confirm, modify or reverse the judgment rendered by the lower Crl.Appeal (V) No.1445/12 & Crl.Appeal No. 1447/12 -:38:- Courts. S.386 of the Code of Criminal Procedure reads:
"386. Power of the Appellate Court. After perusing such record and hearing the appellant or his pleader, if he appears, and the Public Prosecutor if he appears, and in case of an appeal under section 377 or section 378, the accused, if he appears, the Appellate Court may, if it considers that there is no sufficient ground for interfering, dismiss the appeal, or may-
(a) in an appeal from an order or acquittal, reverse such order and direct that further inquiry be made, or that the accused be re- tried or committed for trial, as the case may be, or find him guilty and pass sentence on him according to law;...........
10. There is no dispute about the proposition that in criminal appeals, this Court may re-appreciate the whole evidence and come to an independent conclusion. The situation is a little different in the case of an appeal from the judgment of acquittal rendered by the trial Court. In an appeal from the order of acquittal by the trial Court, there is a double presumption in favour of the accused. Firstly, the general presumption that the accused is presumed innocent until proved guilty. Secondly, on acquittal, the former presumption is strengthened by the finding of a Court of law.
11. This is a case in which the prosecution claims that Crl.Appeal (V) No.1445/12 & Crl.Appeal No. 1447/12 -:39:- there is direct evidence available to prove the guilt of the accused. PW2 is an injured witness and PW3, PW4 and PW5 are other eyewitnesses who throw light into the incident through their depositions.
12. There is no controversy regarding the cause of death of the deceased. PW8, the Doctor who conducted the autopsy deposed that the injury no. 1 had cut the artery and there was evidence of massive bleeding. According to her, injury no. 1 was sufficient in the ordinary course of nature to cause death. A single edged sharp cutting weapon of appropriate dimension could cause injury nos. 1 and 2. She also deposed that injuries 1 and 2 could be caused by the same weapon if dimensions are appropriate. She further opined that injury nos. 1 and 2 could be caused by MO1 knife. Ext.P7 chemical analysis report was marked through PW8. She deposed that Ext.P7 would exclude any other cause of death other than injury nos. 1 and 2 in Ext.P6. Based on the evidence of PW8 and Ext.P6 post-mortem certificate marked through PW8, the Court below rightly concluded that the deceased died as a result of the injuries described in Ext.P6 and it is a homicidal death.
Crl.Appeal (V) No.1445/12 & Crl.Appeal No. 1447/12 -:40:-
13. Apart from the oral testimonies of PWs 2 to 5, the eyewitnesses, the following facts are relied upon by the prosecution:
(i) The incident took place on 18/09/03 at or around 08.00 p.m. and PW2 lodged Ext.P2 FIS, a detailed one, to PW15 S.I. of Police, Pozhiyoor on 19/09/03 at 01.15 a. m. and PW15 registered Ext.P2(a) FIR. PW2 affixed his left thumb impression on the FIS instead of signing it, because his right hand was fractured.
(ii) PW16, the Investigating Officer prepared Ext.P1 inquest report and MO8 kaily mundu and MO9 bed sheet were seized.
(iii) Ext.P3 Scene Mahazar was prepared by PW16 on 19/09/03 at 4 p. m. and PW6 is the attestor to it. Ext.P3 was forwarded to Court as per Ext. P3(a) letter.
(iv) A pair of chappals that belonged to the deceased was marked as MO10, which belonged to the deceased, MO11 which belonged to PW2 and MO12 which belonged to A1 respectively and MO7 mundu of PW2 and MO13 series wooden pieces (two in number) were seized from the scene of occurrence. Blood stained sand and sand without blood stain also collected from there. MOs were forwarded to Court on 19/12/03 through Ext.P15, 151-A Crl.Appeal (V) No.1445/12 & Crl.Appeal No. 1447/12 -:41:- Form.
(v) PW16 arrested both accused on 25/09/03 at 10.30 a.
m. Ext.P17 is the arrest memo of A1 and Ext.P17(a) is his inspection memo. Ext.P18 is the arrest memo of A2 and Ext.P18(a) is the inspection memo. Ext.P19 is the custody memo.
(vi) Through Ext.P4 mahazar, MO1 knife which was allegedly used for the commission of the offence was recovered from the compound of the house of A1 on the basis of the disclosure statement (Ext.P4(a)) made by A1, to which PW7 is the attestor.
(vii) Through Ext.P5, MO3 shirt and MO4 mundu allegedly worn by A1 at the time of commission of offence were recovered based on the disclosure statement of A1 (Ext.P5(a)), to which PW7 is the attestor.
(viii) On the same day at 01.40 p.m., MO2 spade handle was recovered from the compound of A1's house based on Ext.P9(a) disclosure statement of A2 through Ext.P9 recovery mahazar, to which PW10 is the attestor.
(ix) On the same day at 03.00 p.m., based on Ext.P10(a) disclosure statement of A2, the lunki (MO5) and shirt (MO6) allegedly worn by A2 at the time of commission of the crime is Crl.Appeal (V) No.1445/12 & Crl.Appeal No. 1447/12 -:42:- recovered through Ext.P10 mahazar, to which PW10 is the attestor.
(x) Through Ext.P21 mahazar, on 20.09.03 at 09.30 a.m., PW16 seized Ext.P1(a) complaint lodged by A1 against PW2.
(xi) Ext.P13 is the scene plan prepared by PW13 Village Officer.
(xii) Ext.P12 is the report marked through PW12 with regard to the load-shedding in the area of place of occurrence.
(xiii) Ext.P6 is the post-mortem certificate proved through PW8 the Doctor who conducted the autopsy. According to her, cause of death is the incised injury sustained on the chest of the victim involving axillary artery leading to massive bleeding.
(xiv) Ext.P7 is the chemical analysis report and it was marked through PW8.
(xv) PW9 the Doctor who treated PW2 at Taluk Hospital Neyyattinkara, issued Ext.P8 treatment certificate.
(xvi) On further investigation, PW17 seized the lorry bearing no. KET - 7853 through Ext.P11 mahazar and PW11 is the attestor to it. The lorry was released to CW15 the owner as per Ext.P26 kaichit.
(xvii) Ext.P25 notice was issued by PW17 to the owner of the lorry CW15 to furnish the address and details of the driver of the Crl.Appeal (V) No.1445/12 & Crl.Appeal No. 1447/12 -:43:- lorry at the relevant time. Ext.P25(a) is the reply to it.
14. Yet another circumstance pointed out by the prosecution is the explanation given by the accused in their section 313 statement. The accused stated that on the date and time of incident, there was power-cut in the said area. During power-cut, PW2 and his men came to the scene of occurrence and quarrelled with A1. At that time, the lorry was about to return and PW2 and his men scolded the lorry driver and quarreled with him and at that time those who were inside the lorry as well as A1 intervened and there was altercation between the two groups. Hearing this, A2 who was residing nearby, came to the scene of occurrence and intervened in the matter and in the course of the said altercation, a stab injury was sustained to the deceased by a knife which was in the hands of PW2. A1 and the neighbours who reached there took the deceased to the hospital in the car.
15. The defence has admitted the presence of PW2, the deceased, the accused persons and PW4 at the place of occurrence at the relevant time. They also admit the presence of the car and the lorry. They further admit that there was altercation between the persons mentioned above and in the said Crl.Appeal (V) No.1445/12 & Crl.Appeal No. 1447/12 -:44:- altercation, injuries were sustained to the deceased and he succumbed to the injuries.
16. The detailed discussion of evidence in the impugned judgment starts at paragraph 16 of the judgment and it begins with the following words: "Before analyzing the evidence of the ocular witnesses, PWs 2 to 5, let me advert to certain other basic and vital infirmities in the prosecution case which improbabilise the prosecution story and probabilize the defence version." The trial Court found the following flaws in the evidence adduced by the prosecution:
(i) The best person to speak about the version of the prosecution of taking the father of PW2 Mr. Devadas to hospital was the said Devadas himself. But Devadas was not examined.
(ii)It is the deposition of PW2 that both himself and PW3 took the deceased and his father to Thiraviyam hospital and his father was admitted there and was treated by Dr.Thiraviyam. Though it is deposed by PW16 the I.O. that he questioned the said Doctor, he was not cited as a witness. No medical records from Crl.Appeal (V) No.1445/12 & Crl.Appeal No. 1447/12 -:45:- Thiraviyam hospital is produced to prove the said treatment of the father and hence the presence of father at the place of occurrence is not proved.
(iii) The prosecution failed to prove that PW2 sustained stab injuries by A1 as alleged by them.
(iv) In 161 statements of PWs 2 to 4, nothing was spoken about the light available to see the incident. It is an omission amounting to contradiction. If there was light from the headlight of the car and from the pillars of the gate as contended by the prosecution, definitely that should have found a place in Ext.P2 FI Statement. In Ext.P3 scene mahazar and two scene plans Exts. P13 and 14, there was no mention about the source of light. Also, from the depositions of PW2, PW4 and PW12 it is revealed that during the relevant period, there was power cut in the said area. Evidence of PW12 and Ext.P12 shows that at the relevant time i.e., on 18.09.2003, the load-shedding time of Pozhiyoor Feeder was from 19.00 hrs to 19.30 hrs. There was no evidence to prove that the place of Crl.Appeal (V) No.1445/12 & Crl.Appeal No. 1447/12 -:46:- occurrence comes under Pozhiyoor feeder at the relevant time. Even in the absence of the said light, though it is possible for the witnesses to see the incident since the accused are closely related, the prosecution has no case that they saw the incident in the moonlight.
(v)The deposition of witnesses that the car was having a starting trouble, is an attempt by the prosecution to impress upon the Court that at the time of incident the headlight of the car was on. There is no evidence to show that the car was having starting problem. The vehicle was not examined by any vehicle expert.
Nothing has been stated by the prosecution witnesses in their earlier statements, even by PW4 the driver, that the car was having starting trouble.
(vi) Three other persons were in the lorry and some local people were also present at the time of incident. Therefore, in the absence of light, it would be difficult to identify the persons involved in the incident.
(vii) That deceased was simply sitting in the car while Crl.Appeal (V) No.1445/12 & Crl.Appeal No. 1447/12 -:47:- the accused was hitting PW2 on his chest and dorsal side with his fist. It is not believable.
(viii) PW2 was discharged from Medical College Hospital on the next day noon i.e., 19 th of September 2003. No wound certificate or treatment records of PW2 at the Medical College hospital were produced.
(ix) PW9 the Doctor who treated PW2 at the Taluk Hospital, Neyyattinkara was not questioned by the I.O. and he was not shown MO1 and MO2.
(x) The evidence tendered by PWs 7, 10 and 16 will not help at all to prove the alleged recovery of MOs 1 to 6.
(xi) Prosecution did not attempt to trace out the driver or the cleaner of the lorry who were material witnesses. PW17 admitted that the statement of lorry driver, though taken, is not produced in Court. The wife of second accused was not questioned.
(xii) Ext.P1 inquest report would show that the deceased was wearing only a lunki and he was not wearing even an underwear. If the deceased accompanied his father to the hospital in the car, Crl.Appeal (V) No.1445/12 & Crl.Appeal No. 1447/12 -:48:- definitely he would have worn shirt, mundu and underwear. DW1, the wife of the deceased deposed that hearing the altercation between the first accused and PW2, her husband went to the place of occurrence wearing only lunki. Her version need not be disbelieved.
17. The court below had analysed the evidence of PW2, PW3, PW4 and PW5 in paragraph 14 of the impugned judgment and it reads thus: "PW2 deposed that when the deceased along with his father were proceeding to hospital in a car bearing no. KL-01-K-2662 driven by PW4 and when they reached in front of the house of the accused no.1 namely V.R. Bhavan, the lorry bearing registration no. KET-7853 was parked in front of the house for loading coconut husks stored in the compound of the accused no.1 in such a manner obstructing the passage totally. He along with PW3 was following the car in his bike and in front of the house of the accused no.1, he stopped the bike behind the car and requested the lorry driver to remove the lorry so as to take the car which was proceeding to the hospital on account of illness of his father. At that time, the accused no.1 came to the Crl.Appeal (V) No.1445/12 & Crl.Appeal No. 1447/12 -:49:- spot uttering abusive words and pushed down the bike in which PW2 and PW3 came and as a result of which both of them fell on the ground and when PW2 stood up from the ground, accused no.1 gave blows on his chest and dorsal side with his fist and thereafter there were exchange of words and altercation between him and the first accused and the first accused pushed him to a lane towards east at a distance of 30 feet and there again the first accused pushed PW2 on the ground and when PW2 attempted to stand up, the first accused with MO1 knife which was kept in the tucking of his waist, stabbed on the left side of the head and right side of the shoulder of PW2 whereby inflicting injuries to him. At that time, the second accused rushed from the compound of the first accused with MO2 in his hand and hit on his right hand whereby the bone of his right paw was fractured. Seeing this incident from the car, the deceased got out of the car and ran towards both of them and when they reached in front of the first accused and PW2, the first accused by uttering " I would kill you", stabbed with MO1 knife on the right shoulder of the deceased inflicting serious injury and when the deceased attempted to run away by turning back, the first Crl.Appeal (V) No.1445/12 & Crl.Appeal No. 1447/12 -:50:- accused again with the same knife stabbed on the dorsal side of the deceased inflicting serious injuries to the deceased and thereafter, after sometime, the deceased was taken to Medical College Hospital, Thiruvananthapuram and there succumbed to the injuries on the same day. PW3 and 4 who were also occurrence witnesses deposed in tune with the evidence given by PW2. They almost reiterated the deposition given by PW2 as stated above. PW5 is the person who was present at the spot and came in the lorry kept in front of the house of accused no.1 so as to take coconut husks from the house of the accused no.1. He deposed that on 18.09.2003 at 6.00 p.m., he went to the house of accused no.1 in the lorry and while coconut husk were being loaded in the lorry, a white ambassador car went towards west and by 8 O'clock when the loading was finished and the lorry was taking a turn, the said car came behind the lorry and asked the driver to remove the lorry to proceed the car further. He asked the driver to remove the lorry and the driver also made an attempt to remove the lorry. He further deposed that one who came in the motor bike again made a request to remove the lorry but accused no.1 said not to remove the lorry. Thereafter Crl.Appeal (V) No.1445/12 & Crl.Appeal No. 1447/12 -:51:- accused no.1 pushed down the two persons who came in the bike. Thereafter, he left the place in the lorry." (Emphasis supplied).
18. Of course, the Sessions Court had given it's own reasoning regarding the veracity of witnesses and lacuna in the prosecution case. It is settled law that the High Court has full power to review the entire evidence including the reasons given by the trial Court and also its own reasons for reversing the order of acquittal. (Bava Hajee v. State of Kerala, AIR 1974 SC 902). The Apex Court had already settled the position through a number of judgments. Where the approach of the trial Court is absolutely erroneous in relying upon minor discrepancies and rejecting reliable evidences of eye-witnesses, the High Court would be justified in setting aside the acquittal recorded by the trial Court. (Bharwad Jakshibhai Nagjibhai v. State of Gujarat, AIR 1995 SC 2505).
19. In appeal against acquittal, the High Court is slow to interfere with the findings of the trial Court which had the opportunity of watching the witnesses giving evidence. Where, however, the prima facie appreciation of the recorded evidence is Crl.Appeal (V) No.1445/12 & Crl.Appeal No. 1447/12 -:52:- opposed to even a reasonable appraisement of the same, bearing in mind the relevant point or points sought to be established by the evidence, there will be no option to the High Court in the interests of justice but to step in to do justice in the case. (Ravinder Singh v. State of Haryana, AIR 1975 SC 856).
20. Now we may consider the version of eyewitnesses. Prosecution relied on the oral testimonies of PW2, PW3, PW4 and PW5 to prove the occurrence. The primary question to be looked into is whether there is any material contradiction in the depositions of these witnesses as alleged by the defence so that their version may be disbelieved.
21. PW2 is the injured eye witness. PW2 had given the FI statement on 19/9/2003 at 1.15 hours wherein he detailed the manner in which the crime had been committed. In the FIS he refers about the incident as follows:-
22. He had gone to Ucchakkada junction to hire a car as his father was having dizziness and had to be taken to hospital. He hired the vehicle of Ravikrishnan (PW4). The vehicle was brought to their house. His brother Russel Raj and his relative Praveen along with PW2 carried his father to the car. They Crl.Appeal (V) No.1445/12 & Crl.Appeal No. 1447/12 -:53:- proceeded in the car and he followed them in a motorbike belonging to his brother Devaraj. Their intention was to take his father to Tiraviyam Private Hospital at Ucchakkada. When they reached in front of the house of Vijayan, (A1, brother of Russel Raj's wife), they saw a lorry obstructing the movement of car. The lorry was parked in front of Vijayan's gate. The driver of the car told the lorry driver that he is on his way to hospital and he asked him to move the lorry to give way. Since the lorry driver did not act in accordance with the request, PW2 also asked the lorry driver to move the lorry. At that time, Vijayan (A1) who was standing near the lorry told the lorry driver that he need not move the vehicle and thereafter he asked PW2 "who are you to direct the lorry to be moved". Uttering the said words, A1 kicked on his motorcycle. He fell down. When he got up, A1 hit him two or three times on his shoulder and chest. He fell down on to the road. Thereafter A1 took a knife kept in his waist. He stabbed PW2 twice. He got injured on the left side of his head and on the right shoulder. Seeing this happening to him, the deceased got down from the car and asked A1 not to do any harm to his brother. Immediately A1 uttering that 'will kill all of you and Crl.Appeal (V) No.1445/12 & Crl.Appeal No. 1447/12 -:54:- bury', stabbed his brother with the knife he was holding. His brother got injured on his chest and started bleeding. Immediately, A1's brother Soman (A2) who was standing nearby and having a wooden rod with him inflicted a blow on PW2. He suffered an injury on his right hand. Both of them cried. People in the locality came. Vijayan and Soman ran to Vijayan's house along with the weapons. At that time, the lorry driver took his vehicle towards Vettukad. People who assembled there took him, his brother and their father in the same car to the Taluk Hospital. The Doctor examined them and sent them to hospital. From there they were taken in an ambulance to the present hospital. The Doctor on examining informed that Russel Raj has died. X-ray of his hand was taken and he was informed that here was no fracture on his right hand. He was admitted and was undergoing treatment. He further stated in Ext.P2 that it is quite usual that Vijayan used to park the lorry in front of his house for the purpose of loading copra (dried coconut) and on account of this, they used to quarrel with each other. The motive for stabbing his brother was on account of the said enmity. He also stated that their father got treatment from Tiraviyam hospital and it is thereafter Crl.Appeal (V) No.1445/12 & Crl.Appeal No. 1447/12 -:55:- they were taken to the other hospital. The incident had happened at about 8 pm during night and the incident was seen by Praveen (PW3) and the car driver (PW4). The FIR reached Court on 19/9/2003 itself.
23. PW2 in his evidence having identified the accused deposed that while going to hire a car, his friend Praveen also accompanied him to Ucchakkada junction. PW4 who was having a car told him that the self-starting of the car is not functioning and since there was no other car, he offered to come after starting the car. PW2 and Praveen came back in the motorbike. Car followed them. PW2 along with Praveen and Russel Raj took his father to the car. Russel Raj also got into the car. PW2 and Praveen (PW3) followed the car in the bike. When they reached in front of A1's house, a lorry was parked in the turning in front of A1's house. They were loading coconut husk on to the lorry. Since there was no sufficient width for the car to proceed, the driver of the car asked the lorry driver to move the lorry. He did not do so, instead the driver of the lorry was taking the vehicle to and fro. PW2 came behind the lorry in the motorbike. He asked the driver to move the lorry. Vijayan (A1) who was standing in Crl.Appeal (V) No.1445/12 & Crl.Appeal No. 1447/12 -:56:- front of the lorry asked the driver not to move the lorry and asked PW2 who he was to ask the lorry to be moved and he suddenly kicked on the motorbike. PW2 and PW3 fell down. They got up and at that time A1 hit him on his chest and back with his hand. The accused pushed him towards the east of a pathway. It is a slope. When he reached the said place, A1 pushed him down. When he got up, Vijayan took a pen knife and inflicted injury on his head and right shoulder. Immediately, second accused came from the compound with a wooden piece and attempted to hit him on his head. He defended it with his hand and he suffered injury on his hand and also a fracture. Seeing this, Russel Raj came down from the car and asked them not to harm his brother and he came near PW2. At that time, A1 uttered that all of you will be killed and buried and thereafter inflicted an injury with the pen knife on the chest of Russel Raj. When Russel Raj tried to return, A1 inflicted an injury on his back shoulder on the right side. On being stabbed, Russel Raj cried and proceeded near to the car. Accused went behind Russel Raj. When he reached in front of the car, he collapsed. Accused stood near Russel Raj and asked others not to come near them and threatened them with Crl.Appeal (V) No.1445/12 & Crl.Appeal No. 1447/12 -:57:- the knife. They even retorted that if anybody comes near them, they will also be stabbed with the knife. Thereafter both the accused went to the compound of A1. Since the headlight of the car was on and there was enough light in the gate of A1, he had witnessed the incident. He identified MO1 knife and the wooden rod (handle of spade) MO2 with which A2 had inflicted a blow on him. The shirt A1 was wearing was identified as MO3 and the dhothi which A1 was wearing at the relevant time is identified as MO4, the shirt A2 was wearing as MO5 and the lungi which A2 was wearing at the relevant time is marked as MO6. The dhothi which he was wearing on the said date was identified as MO7. The lungi Russel Raj was wearing is identified and marked as MO8. He also stated that at the Tiraviyam Hospital, the Doctor has given a bed sheet to prevent blood from oozing out and he was asked to hold it. The said bed sheet is marked as MO9. PW2's chappals which were taken from the scene of occurrence is marked as MO10 and Russel Raj's slippers are marked as MO11. Chappals of A1 is identified and marked as MO12. The wooden piece which is normally used in the lorry is marked as MO13. He also stated that his injury was stitched. He was admitted and x- Crl.Appeal (V) No.1445/12 & Crl.Appeal No. 1447/12 -:58:- ray was taken. He had reached Medical College Hospital at 10 p.m and after 3 hours the Sub Inspector of Police had come and had taken a statement. Since he had a fracture, they had plastered the same. He could not sign. So his thumb impression was affixed on Ext.P2. He further deposed that three years back there was an attempt to widen the road. Vijayan had opposed the same. A1 and A2 had previous enmity with Russel Raj on account of the said incident. In cross examination he stated that his father was having fever and dizziness. On the date of incident, it increased. He was residing with his father. His brother was residing separately. On the said day, his father was admitted in the hospital of Dr.Tiraviyam. He had not mentioned to the police that the car did not have self start and he did not mention that the car was pushed for starting. There is no reason why he did not mention about Praveen who was with him for hiring the vehicle. He stated that he had mentioned in Ext.P2 that he alone had gone to hire the car. He also stated that he had not stated in Ext.P2 that Praveen was with him when he had gone to hire the vehicle. Russel Raj had come to take his father in the car. He admitted to have stated in Ext.P2 that he alone followed the car Crl.Appeal (V) No.1445/12 & Crl.Appeal No. 1447/12 -:59:- in the motorbike. He further deposed that when he asked the lorry driver to move the vehicle, the driver did not say anything, got into the lorry and started it. After starting the lorry he had taken it towards the front and back. According to the defence, he had not given such a statement in Ext.P2. Witness says that he has no explanation for the same. He and the car driver had asked for moving the lorry. For 5 minutes the car had to be stopped behind the lorry. He also admitted that first accused was absconding and an order was passed to release the property of first accused which was attached by the Court. He had approached the Court for quashing the same and Adv.Ajith Kumar had appeared for him. He also submitted that wife of first accused filed a petition before the High Court to prevent the property from being sold. Adv.Ajith Kumar appeared for him and contested the matter. He further deposed that first accused hit him by the side of the road. He did not suffer any injury. There was pain. When he was asked in his statement Ext.P2 whether he stated that when he fell on to the road A1 took the pen knife from his waist and stabbed him twice, he said he does not remember. He also deposed that he had not stated in Ext.P2 that Crl.Appeal (V) No.1445/12 & Crl.Appeal No. 1447/12 -:60:- he was pushed down the road. He stated that there was a pathway from the road which goes to four-five houses. He further admitted that the first accused had given a complaint against him and he was summoned by the police. He further stated that he does not remember whether he had informed the police about the threat by accused 1 and 2 after the incident. He also admitted to have given a statement in Ext.P2, that Russel Raj had come down from the car before he suffered an injury on his hand. According to him, he had only given a concise statement to the police. During cross examination he further stated that Russel Raj and accused were not in good terms as Russel Raj had married their sister after a love affair which A1 did not like. He also stated that he had not mentioned to the police that the car was having light at that time and there is no specific reason for the same. He had also not mentioned that there was light in front of Vijayan's house. He also deposed that his father did not get down from the vehicle as he was not in such a condition and Russel Raj alone came down. He further deposed that the entire incident took about 4-5 minutes, that when the incident happened the lorry driver left, that was while Vijayan was hitting Crl.Appeal (V) No.1445/12 & Crl.Appeal No. 1447/12 -:61:- him, he denied the suggestion that he did not suffer any injury on his shoulder and head. Cross examination further proceeded on the basis that there was a scuffle between the first accused and PW2 and the suggestion was that he suffered the injuries on account of the said scuffle. In cross examination the suggestion was that PW2 attempted to attack A1 and that Russel Raj came down seeing their quarrel. Further defence has taken up a case that MO1 knife belonged to PW2. The suggestion was that "മലടതതനടയൽ എന ക യലണയരന പച തന ണണ റസൽര ജന കതതറന!ന" പറഞൽ ശരയല." Another suggestion was that the incident happened at around 7 pm "സ&ഭവ& നടനത കവകതനര& 7 മണതയ ട" കടയ നണന" പറഞൽ ശരയല." The defence version was again reiterated during further cross examination which reads as under:- (i)"ഒന & പ!യനട കതതറല റസൽര ജ" മരകനടയ യന!ന& എന യലള പച ത രണമ നണന& പറഞൽ ശരയല." (ii) "എനകള പർവ കവര ഗ7& ന ണ"
വജയനന ത8ത9 പദവ& ഏൽപകൻ ശമചതപ ൾ അ!" !ടസ& നBയ ൻ വന റസൽര ജന എനൽ നനമ ണ കതതറന!ന" പറഞൽ ശരയല." He also admitted that immediately near the scene of occurrence is Smitha Bhavan and on the eastern side person by name Babu is residing. That apart, Crl.Appeal (V) No.1445/12 & Crl.Appeal No. 1447/12 -:62:- on the eastern side, there are three four houses and there are houses near the pathway. During cross examination of A2, he further stated that after he suffered injury, he was restrained for about 2-3 minutes by the accused. He also stated that when they reached Dr.Tiraviyam's hospital, father was admitted and Russel Raj was given first aid in the vehicle itself. All of them got down at Neyyattinkara Hospital. Doctor examined them. From there the taxi was sent away and they had gone to Medical College Hospital in an ambulance. They reached Medical College Hospital by about 9.30-10.00. He admitted that as per Ext.P2, it could be seen that the entire incident had happened in the Panchayat Road. He further explained that the incident happened about 30 feet east on the Panchayat road -public way.
24. PW3 is Praveen. He is a friend of PW2. His name has been mentioned in FIS itself. He also spoke about the incident. He stated that he along with PW2 had gone for hiring a taxi as PW2's father was not keeping well. They proceeded to Ucchakkada junction and there was no other vehicle other than that of Ravikrishnan (PW4). He also stated that the driver told them that the vehicle does not have a self start and that he will Crl.Appeal (V) No.1445/12 & Crl.Appeal No. 1447/12 -:63:- come after starting the vehicle by pushing the same. PW3 and PW2 went in the bike towards PW2's house. When they reached in front of Vijayan's house, they saw a lorry parked loading coconut husk. They reached the house of PW2. Taxi came behind. Russel Raj was in PW2's house. Three of them together took PW2's father into the car. Car proceeded to the hospital. He along with PW2 came behind in the bike. When they reached in front of A1's house, the lorry that was loading husk was blocking the road. The driver sounded the horn and asked the lorry driver to move the lorry. After that, himself and PW2 came behind the lorry and asked him to move the same. At that time, A1 who was standing by the side of the lorry came and asked PW2, who he was to direct the lorry to be moved. A1 went near the lorry driver and told him not to move the vehicle. Thereafter, A1 kicked on to the bike, bike fell down and A1 hit PW2 on his chest and shoulder. There was a scuffle between them and both of them proceeded towards the pathway on the eastern side. The place where the bike fell down and the place where they reached by scuffling was about 12 feet. When he was asked whether there was any light, he said that the headlamp of the car was on and that apart, there Crl.Appeal (V) No.1445/12 & Crl.Appeal No. 1447/12 -:64:- was light in the gate of A1. After the scuffle, PW2 fell down. At that time, A1 took a pen knife and inflicted two injuries on the head of PW2. The injuries were inflicted when he was trying to get up. One injury was on his head and other on his shoulder. He identified MO1 knife. After that, A2 came with a wooden rod MO2 and hit PW2. The hit was on his right hand. At that time, Russel Raj got down from the car and came to the scene. The first accused with the aforesaid pen knife inflicted an injury on the chest of Russel Raj. On being stabbed, Russel Raj tried to run back. First accused followed him and inflicted an injury on his back shoulder. Russel Raj fell down in front of the car. Accused 1 and 2 went to the house of first accused with the pen knife and the wooden rod. They took Russel Raj into the car and proceeded to Tiraviyam hospital. He also narrated as to what happened later. He also identified the material objects MO3, MO5, MO7, MO8 and MO9. During cross examination, he stated that he resides about 2 kms away from the house of first accused. He used to see PW2 every day in the junction. He deposed that he was questioned on the next day evening and he was present at the time when inquest was being prepared. However he did not Crl.Appeal (V) No.1445/12 & Crl.Appeal No. 1447/12 -:65:- see the dead body. He was standing outside. He further stated that Russel Raj was wearing a shirt and kaili and when he was taken to Medical College Hospital, he was not having the shirt. During cross examination he was asked why he did not mention to the police that while proceeding to hire the car, the lorry was parked on the western side. He said there is no specific reason. He also stated that the lorry driver would have heard that the lorry should be moved as they were proceeding to the hospital. He said that he also fell down, but there was no injury. There was no damage to his pant or shirt. PW2 also did not suffer any injury while falling down. The lorry had already started. He further deposed that after he fell down, he did not run. He also did not interfere. He stated that "bike വCണ സലത നന" റസൽര ജനന ആശപതയൽ ന ണതപ ക& വനര ഞൻ അവനട നൽക യ യരന." He also stated that he was present when PW2 has given statement to the police, but he did not hear what he has stated. When he was asked that he had not given a statement to the police that A1 had stabbed him, when PW2 was trying to get up, he said it would have been omitted. He admitted having given a statement to the Crl.Appeal (V) No.1445/12 & Crl.Appeal No. 1447/12 -:66:- police that A1 had taken a pen knife from his waist and stabbed PW2 who was standing in the road twice. He also admitted that at the time of incident, the lorry driver and cleaner had got into the lorry and proceeded towards south. While cross examining him, the suggestion was that from the place where PW3 was standing, there was no occasion to see the incident, which he denied. Again the suggestion was that PW2 was responsible for the death of Russel Raj which also he denied. The further suggestion was that being a friend of PW2, he is giving false evidence and he was not even in the vicinity at that time. During cross examination by 2nd accused, he deposed that police had taken statement next day morning at 9 am. He also stated that PW2 was admitted in Medical College Hospital on the said day and he was along with him and it is in that context it was stated that the police had taken the statement at 9.00. Nothing was asked to him and he had gone to the place of inquest.
25. PW4, deposed that he knew the accused and the deceased. The incident happened on 18/9/2003 at about 7.30 p.m. PW2 and PW3 had come to hire his car for taking PW2's father to hospital. He told them that the car did not have Crl.Appeal (V) No.1445/12 & Crl.Appeal No. 1447/12 -:67:- self start. Since there were no other vehicle, he offered to somehow start the car and come immediately. They were asked to go in the bike. He push started the car and proceeded to the house of PW2 to take his father. On the way, he saw a lorry loading coconut husk in front of A1's house. He could take the vehicle with some difficulty. He went to PW2's father's house with the car. The deceased-Russel Raj and his father got into the car. PW2 and PW3 followed them in the bike. The car was on its way to the hospital. When the vehicle reached in front of A1's house, the lorry was blocking the passage. He sounded the horn. They did not move the vehicle. He asked the lorry driver to move the vehicle as he is proceeding to the hospital. Still, he did not move the vehicle. One person was standing behind the lorry. He asked the said person to remove the lorry. PW2 and PW3 came from the right side of his vehicle and reached behind the lorry. PW2 asked the lorry driver to move the lorry. At that time, 1st accused came and asked PW2, who he was to ask the lorry to be moved. The 1st accused thereafter kicked on PW2's bike and it fell down. While PW2 and PW3 was getting up, 1st accused Crl.Appeal (V) No.1445/12 & Crl.Appeal No. 1447/12 -:68:- hit PW2, two or three times. 1st accused and PW2 had a scuffle. During the scuffle, they moved towards the east, and at that time, the 1st accused took a pen knife from his waist and stabbed PW2, one injury was on the left side of his head and the other on the right shoulder. At the time 1 st accused's brother, the 2nd accused came from the compound with a wooden rod and gave a blow on the head of PW2 who shielded the blow with his right- hand. The deceased, who was sitting in his car came out and told that his brother should not be harmed and went near the 1st accused. At that time, 1st accused inflicted an injury on the deceased near to his chest with the same pen knife. On getting injured, the deceased tried to run back. At that time 1 st accused inflicted another injury behind the shoulder of the deceased with the same pen knife. Russel Raj came back to the vehicle, followed by accused 1 and 2. They uttered that nobody should come near. They remained there for some time. Thereafter, they proceeded to the house of 1st accused. He, along with PW2 and PW3 took Russel Raj into the car and took them to the Tiraviyam hospital. Doctor said that it is a major injury, and Russel Raj should be Crl.Appeal (V) No.1445/12 & Crl.Appeal No. 1447/12 -:69:- taken to Medical College Hospital. Russell Raj's father was admitted in the hospital. On the way, Russel Raj complained of severe pain and he was crying. They therefore took him to Neyyattinkara Taluk Hospital. First aid was given and thereafter, they took him in an ambulance to the Medical College Hospital. He also identified the knife used by 1st accused to inflict injury on the injured. He also identified the wooden rod by which 2nd accused assaulted PW2. He further deposed that a bed sheet was given to Russel Raj at the Tiraviyam hospital, which he identified as MO9. He also deposed that there was enough light in the front gate of 1st accused. During cross-examination, he stated that he did not inform the Police that the vehicle was push started. Despite the cross-examination of PW4, except the contradiction Ext.D1, nothing has been brought out to discredit the said witness. The contradiction is, when PW2 asked the driver of the lorry to move the lorry, he was taking the lorry to and fro, and at that time, A1 and A2 came and hit PW2. PW2's bike was kicked down, and seeing the said incident, Russel Raj came out of the car.
Crl.Appeal (V) No.1445/12 & Crl.Appeal No. 1447/12 -:70:-
26. PW5 is a person who had come to collect coconut husk in the lorry. He deposed that he had come on 18/9/2003 with the lorry to collect coconut husk by about 6 p.m from the house of 1 st accused. While they were collecting the husk, he saw a white Ambassador car proceeding towards west. By 8 p.m, they finished taking the husk. When they reached the turning near the house of 1st accused, the Ambassador car came from behind. They were taking a patient to hospital. They asked to move the lorry. PW5 asked the driver to move the lorry. Driver tried to move the lorry. 2 persons came in a bike and one of them asked to move the lorry. 1st accused whom he identified from his voice retorted by saying that there is no necessity to move the lorry. The 1st accused kicked down the two persons in the motorbike. When the driver of the lorry informed him that the vehicle was ready, he got into the lorry and left the place. In cross-examination, he said that the incident happened at about 7.30 and there was no power cut. Ext.D2 contradiction has been marked. He denied having any acquaintance with PW2. He also denied having seen them engaging in a scuffle. Ext.D3 Crl.Appeal (V) No.1445/12 & Crl.Appeal No. 1447/12 -:71:- contradiction has also been marked.
27. After the 1st accused was questioned under Section 313 of Cr.P.C, he filed a statement dated 8/4/2011, by which he admits that Russel Raj got injured in the incident. In the statement, he states that on 18/9/2003, at the time of power cut, PW2 who was not in good terms with him had come to quarrel with him. A few of his friends were also with him. The lorry driver was about to return. They started abusing the lorry driver and he was asked to move the vehicle. They quarreled with them. They took hold of the lorry driver, which was obstructed by the persons in the lorry. 1st accused also interfered and had a scuffle with PW2 and those who had come in the car. Hearing about this, Russell Raj who was residing nearby came to the scene and during the fight, he suffered a stab injury. Neither Russel Raj nor his father was in the car. The moment Russel Raj got injured, lorry driver and the persons in the lorry got into the lorry and drove off. The people in the locality knew about the incident. He had come to know later that the pen-knife, which is produced in the case belongs to PW2. He was not arrested, but he Crl.Appeal (V) No.1445/12 & Crl.Appeal No. 1447/12 -:72:- has surrendered before Police. He, along with people in the neighbouring locality had taken Russel Raj to the car. He did not have any enmity with Russel Raj. Thereafter PW2 and his friends took Russel Raj to the hospital.
28. From the aforesaid evidence and admission in the statement of 1st accused, the incident by which Russel Raj got injured and that he was taken to the hospital in the car is not disputed. Russel Raj apparently suffered a very serious injury and he succumbed to the said injury, while being taken to the Medical College Hospital.
29. PW8, the Doctor who conducted autopsy on Russel Raj opined that he suffered four ante-mortem injuries as under:-
"1 Incised wound 15.6x5.5x3.5 to 6.5 cm, vertical in disposition, deepest at the upper part on the front of right shoulder and arm (more towards the inner aspect), its lower sharply cut end being 14 cm above the elbow and upper rounded end 14 cm to the right of midline end 2.5 cm below collarbone. Underneath the muscles and axiliary artery were found cut. The wound was directed downwards, backwards and to the left.
2. Incised punctured wound 1.5x0.5x2.2 cm oblique on the back of trunk, (coursing through the muscle plane), its lower inner rounded end being 8 cm to the Crl.Appeal (V) No.1445/12 & Crl.Appeal No. 1447/12 -:73:- right of midline and 7.5 cm below top of shoulder. Outer upper end sharply cut. The wound was directed upwards and to the right.
3. Abrasion 4x2.5 cm on the front of left leg 22 cm below knee.
4. Abrasion 5.5x2.5 cm on the inner aspect of left knee."
30. PW8 opined that the death was due to the incised injuries sustained by the victim, including axillary artery. Ext.P6 is the autopsy report. She further opined that injury No.1 was sufficient to cause death in the ordinary course. She also deposed that injury Nos.1 and 2 can be caused by MO1 knife. Evidence of PW8 proves that the death of Russel Raj had occurred due to the injury suffered by him during the incident, which is not disputed by the defence as well.
31. According to the prosecution, the incident has two parts. One is the exchange of words and quarrel between the accused and PW2 at which time the lorry was attempting to move out from the spot. That aspect is proved by the deposition of PW5. The second part of the incident in which the scuffle and infliction of injuries on victims happened after the lorry departed from the place. PW5 did not depose what had happened after Crl.Appeal (V) No.1445/12 & Crl.Appeal No. 1447/12 -:74:- they left the place in the lorry. The second part of the incident is described by PW2, PW3 and PW4. The specific case of the defence is that MO1 belonged to PW2 and there was exchange of words, altercation and scuffle at the place of incident in which the deceased, PW2 and the accused were involved. Presence of PW4 is also admitted. It is their version that PW2 came with his friends to attack the accused with MO1 knife and he inflicted the fatal injuries on the deceased during the scuffle. But, there is nothing in evidence to show that the accused sustained any injury during the incident. They do not have such a case also. They also have a case that A2 helped to take the injured to the hospital. The above case of the defence was specifically put to all occurrence witnesses but they denied all of them and deposed the above version which we already discussed.
32. Taking into account the principles laid down in the judgments aforestated and in the light of the arguments raised by either side, first we shall consider whether the Court below was justified in arriving at the present conclusion. Initially the Court below found the defence version probable on account of the fact that father of PW2, Mr.Devadas was not examined. This Crl.Appeal (V) No.1445/12 & Crl.Appeal No. 1447/12 -:75:- finding, according to us, is erroneous and perverse. PW2 in his FI statement and in his evidence has stated that the car was hired for taking PW2's father to hospital. As per the evidence of PW2, his father was suffering from dizziness. Therefore, it is not at all probable that a person suffering from dizziness would come out of the vehicle to witness the incident. The learned counsel for the respondent also argued that there is no material to prove that Mr.Devadas was admitted to Tiraviyam hospital and the Doctor who treated him was not examined. First of all, we are concerned with a case involving murder and grievous hurt and what is to be considered is whether there is any evidence to prove the said crime. The fact that PW2's father was admitted in a hospital or that he had obtained necessary treatment would only prove the fact that the vehicle was hired for the purpose of taking PW2's father to the hospital. The fact that the vehicle was hired for the said purpose was proved by PW4 who is an independent witness. Therefore, when sufficient material is available to prove that PW2's father was ill, and the car was hired for taking him to a hospital, absence of examining the evidence relating to Mr.Devadas's illness or treatment should not have been taken Crl.Appeal (V) No.1445/12 & Crl.Appeal No. 1447/12 -:76:- note as a major flaw in the prosecution case while considering the totality of evidence. To that extent, the Court below was not justified in observing that absence of examining Mr.Devadas and failure to adduce evidence regarding his treatment would probabilize the defence version.
33. Yet another defence version that was found favour with the Sessions Judge is that there is no material to indicate that PW2 sustained stab injury. Reliance is placed on the evidence of PW9. The wound certificate of PW2 is Ext.P8. Apparently, Ext.P8 relates to the wound certificate issued by a hospital at Neyyattinkara. PW2 has given evidence that he had gone to Medical College Hospital. X-ray was taken, but no wound certificate or treatment records are seen produced. Evidence of PW2 is that he was stabbed on his head and right shoulder. Apparently, PW2's medical records ought to have been produced especially when the accused are implicated with offence under Sections 323, 324 and 326 of I.P.C. as well. The aforesaid finding by the Sessions Judge can only disprove the allegation of commission of offence against PW2 and not the crime of murder.
34. Another circumstance relied upon by the Court is Crl.Appeal (V) No.1445/12 & Crl.Appeal No. 1447/12 -:77:- regarding the source of light for seeing the incident. Of course, in Ext.P3 scene mahazar, nothing is stated about the existence of lamp. As rightly pointed out by the learned Sessions Judge, the two scene plans prepared by Village Officers and marked as Exts.P13 and P14 also do not contain any material to indicate the source of light in the area. The source of light has been spoken to by PW2 to PW5, but it is treated as an omission which amounts to contradiction. However, even in the absence of any light, all the parties are known to each other and their presence had been admitted by the accused. That apart, PW4 has given evidence stating that the headlight of the car was on and therefore sufficient light was always available to witness the incident.
35. The Sessions Judge also felt that there was no evidence to prove that the car was having a starting problem. This finding is perverse in so far as no such investigation is required in the matter especially when PW4, the driver of the vehicle, who is an independent witness, had deposed before Court that the car was having starting problem and he had even given a statement that the car was not switched off at the place of occurrence. Apparently, PW4 was taking a person to hospital Crl.Appeal (V) No.1445/12 & Crl.Appeal No. 1447/12 -:78:- and it is normal human conduct to ensure that the patient is taken to hospital at the earliest and no car driver will switch off the vehicle merely because there is some obstruction by another vehicle which is attempted to be moved immediately and the entire incident as spoken to by the witnesses and the accused happened within a short time. The Court below should have believed PW4 to that extent.
36. However, the prosecution could not have relied on Ext.P12 certificate issued by PW12. Ext.P12 is issued by the Assistant Engineer, KSEB, Parassala stating that the load shedding time of Pozhiyoor feeder on 18/9/2003 was from 19.00 hours to 19.30 hours. Before Court, PW12 deposed that he does not know whether the area in which the incident took place comes under the Pozhiyoor feeder of KSEB. A letter given by an officer to the investigating officer is not a document which could be marked in evidence. As rightly contended by learned counsel for respondents, the said document is hit by S.162 of Cr.P.C. The position of law in that regard is well settled in the judgment in Rajeevan (supra). Therefore, Ext.P12 can only be treated as a letter which would constitute a statement for the purpose of Crl.Appeal (V) No.1445/12 & Crl.Appeal No. 1447/12 -:79:- S.162 of the Cr.P.C. and has no evidentiary value.
37. Paragraphs 23 to 27 of the impugned judgment discusses the admissibility of recovery evidence in this case. In appreciating recovery evidence, in our view, the trial Court took a hyper-technical approach. Instead of looking into what is brought on record by the depositions of witnesses, including independent witnesses, the Court below assumed and hypothesized certain possibilities which render the recoveries improbable. It is brought in evidence by the prosecution that PW16 arrested both accused on 25/09/03 at 10.30 a. m. Ext.P17 is the arrest memo of A1 and Ext.P17(a) is his inspection memo. Ext.P18 is the arrest memo of A2 and Ext.P18(a) is the inspection memo. Ext.P19 is the custody memo. Through Ext.P4 mahazar, MO1 knife which was allegedly used for the commission of the offence was recovered from the compound of the house of A1 on the basis of the disclosure statement [Ext.P4(a)] made by A1, to which PW7 is the attestor. Through Ext.P5, MO3 shirt and MO4 mundu allegedly worn by A1 at the time of commission of offence were recovered based on the disclosure statement of A1 (Ext.P5(a)), to which PW7 is the attestor. On the same day at 01.40 p. m., MO2 spade handle was Crl.Appeal (V) No.1445/12 & Crl.Appeal No. 1447/12 -:80:- recovered from the compound of A1's house based on Ext.P9(a) disclosure statement of A2 through Ext.P9 recovery mahazar, to which PW10 is the attestor. On the same day at 03.00 p. m., based on Ext.P10(a) disclosure statement of A2, the lunki (MO5) and shirt (MO6) allegedly worn by A2 at the time of commission of the crime is recovered through Ext.P10 mahazar, to which PW10 is the attestor. Learned counsel for respondents contended that the recoveries are vitiated, as the area from which MO1 and MO2 were taken was crowded with people and it was possible that some one would have planted the said material objects. We do not think that the said contention can be accepted. Evidence of the witnesses clearly proves that MO1 and MO2 were concealed and it was taken by the accused in the presence of the police. The above evidence is more than enough to prove the recovery and we do not find any illegality in the said recoveries.
38. Yet another circumstance relied upon by the Court below for acquitting the accused is that the driver and cleaner of the lorry were not examined. But it is borne out that the lorry left immediately before the incident. Even according to the witnesses, PW2 to PW5, the lorry driver has not seen any of the Crl.Appeal (V) No.1445/12 & Crl.Appeal No. 1447/12 -:81:- incidents. He was inside the lorry. PW5 who had brought the lorry was outside. He saw the initial incident of A1 and A2 attacking PW2. Lorry driver was moving the lorry to and fro, attempting to give way to the car. Apparently, he would not have witnessed the incident. Whether there was a cleaner for the lorry and he had witnessed the incident, there is no material Therefore, the said finding of the Court below that the absence of examining the lorry driver acquires special significance, according to us, is not justified.
39. As regard to the version of DW1 the wife, she is not an eyewitness to the incident. Her deposition that there was no power supply during the time of incident cannot be believed. She deposed that she saw the deceased in injured condition and she did not accompany him to the hospital. It is her version that A1 and some neighbors helped in taking the deceased to the hospital which was also proved to be untrue. As a whole, being not an eyewitness, her version do not make any impact on already proved facts.
40. Sessions Court did not believe the testimony of PW2. It was observed that first accused had lodged a complaint against Crl.Appeal (V) No.1445/12 & Crl.Appeal No. 1447/12 -:82:- PW2 which was taken on record as per Ext.P21 mahazar which would prove the enmity between PW2 and first accused. Therefore, since PW2 was on inimical terms with the first accused, it is observed that his evidence has to be weighed with great care and caution. We do not find any error being committed by the Court in treating the evidence of PW2 with great care and caution since there is evidence to prove that PW2 had an enmity with the first accused. But, it has to be remembered that PW2 is an injured eye-witness and it is settled law that the evidence of injured eye-witness has more evidentiary value, on account of the fact that his presence cannot be disputed. However, it is only appropriate that the evidence of PW2 is carefully scrutinized, to implicate the accused.
41. The Sessions Court found that the evidence of PW2 differs from that which has been narrated in the FIS in material particulars especially regarding how he had sustained the injury, the place of occurrence and the manner in which the incident had taken place. We also find from the evidence that a detailed FIS was given by PW2. In his FIS, he stated that he alone had gone to hire the taxi whereas in evidence he says that PW3 was also with Crl.Appeal (V) No.1445/12 & Crl.Appeal No. 1447/12 -:83:- him. In the FIS, he states that PW3 helped him to take his father into the car. But PW3 has no such case. PW2 in his evidence states that while coming back after hiring the tax, he saw a lorry loading coconut husk in front of house of first accused which does not find a place in FIS. Though it is a detailed FIS, the aforesaid discrepancy in the FIS according to us is not material and the Court below was not justified in treating as the same as a reason to disbelieve PW2. In the FIS, PW2 has stated that when he asked the lorry driver to move the lorry, A1 rushed to him and pushed him down along with the motorbike and he fell down with the motor bike. When he stood up, first accused gave a blow on his body with his fist. Thereafter the first accused took MO1 knife kept in the tucking of his waist and stabbed him on his head and right shoulder. On seeing this, the deceased came out and rushed to the spot. The first accused then stabbed the deceased on his right chest with MO1 knife. It is at that time the 2 nd accused came and hit PW2. But, in the box, he had slightly deviated from the FIS. He stated that he along with PW3 was coming in the motorbike. When he directed the lorry driver to move the lorry, accused No.1 pushed them. Both PW2 and PW3 fell down. When Crl.Appeal (V) No.1445/12 & Crl.Appeal No. 1447/12 -:84:- both of them stood up, the accused fisted him on his chest and dorsal side. He was thereafter pushed 30 feet away from the said place and when they reached a lane, the first accused pushed him down and he was stabbed twice. It is thereafter the deceased came out of the car and he was inflicted with injuries by the first accused. Apparently, there is difference in the FIS and in the evidence before Court regarding the genesis of the incident. In the FIS, the idea given was that the incident happened in the place where the lorry was parked ie in front of A1's gate where it blocked the way of the taxi car. In evidence, the scene slightly shifts to a place about 30 feet away from the actual place where the incident started. There is also discrepancy as to when A2 came and hit PW2. The presence of PW3 in the motorbike was not mentioned in the FIS. Evidence of PW3 indicates that he was also present in the hospital while PW2 gave statement to the police. Therefore, there is discrepancy in the evidence of PW2 and certain omissions and contradictions which the Court below had relied upon in order to discard the evidence of PW2. Apparently, when the Court below had relied upon some material to discard the evidence of PW2 by observing that he had given a different Crl.Appeal (V) No.1445/12 & Crl.Appeal No. 1447/12 -:85:- story in the box, though we do not agree to the said view in its entirety, when such a view is taken, atleast in respect of certain matters there are discrepancies, it is not safe to act upon the evidence of PW2 alone and requires corroboration. The question to be considered is whether the evidence of PW3 can be believed. Court below found that the presence of PW3 itself in the scene is doubtful. Learned counsel for the respondents argued that if PW3 was present in the scene, definitely, he would have interfered in the quarrel between A1 and PW2. PW3 has not interfered. In his evidence he states that he had not turned a little finger. He did not interfere. He was remaining there as a silent spectator which is quite unusual. That apart, in the FIS, PW2 has not mentioned that PW3 had gone along with him for hiring the car. Secondly in the FIS, PW1 did not state that PW3 was with him when A1 kicked him down from the motorbike. But of course, he says that PW3 was in the car helping his father. Sessions Court found that PW3's conduct as deposed by him in evidence creates doubt about his presence. Apparently, the Sessions Judge had the advantage of witnessing the deposition and observing the demeanor of the witnesses and the manner in which he was answering the Crl.Appeal (V) No.1445/12 & Crl.Appeal No. 1447/12 -:86:- questions. When the Court below thought fit not to accept the evidence of PW3 based on sufficient material, we do not think that while exercising the appellate jurisdiction, we should interfere with the said finding of fact.
42. The next witness is PW4. The presence of PW4 and the car are admitted. In fact, evidence of PW4 virtually supports the prosecution case and he had even gone to the extent of stating that when the deceased got out of the car, he uttered to A1 not to harm his brother. Then he came back stating that A1 had stabbed him. Court below observes that PW4 did not see the deceased sustaining injury and he was sitting in the car until the entire incident was over. Therefore, there is no chance for him to have seen the incident. The Court below found that the evidence was not sufficient to pin-point the accused to the crime.
43. In fact, PW4 was an independent witness. He had no enmity with the accused. The incident happened while he was in the car. But it is probable and as observed by the learned Sessions Judge that he may not have actually seen A1 stabbing the deceased. In the said circumstances, we do not think it appropriate to take a different view.
Crl.Appeal (V) No.1445/12 & Crl.Appeal No. 1447/12 -:87:-
44. It is true that while considering a criminal case, the social perspective has to be kept in mind as held by the Apex Court in Shivaji Sahabrao Bobade (supra), that if unmerited acquittals become general, they tend to lead to a cynical disregard of law which in turn leads to a public demand for harsher legal presumptions against indicted persons and more severe punishment of those who are found guilty. It is also settled law that even if there is flaw in the investigation, it is for the Court to ensure that despite such flaws in the investigation, the rest of the evidence be scrutinized without the impact of such investigation.
45. In this case, one of the factors which led the Sessions Judge to acquit the accused was the absence of proof regarding the source of light at the time when the incident happened. But it is relevant to note that the accused as well as the assailants and the witnesses were known to each other and this is a case in which the accused admitted their presence in the scene of crime. But, their contention is that the deceased sustained injuries with the knife brought by PW2 and there were others present in the scene of crime. Even assuming that there was no light, the Apex Crl.Appeal (V) No.1445/12 & Crl.Appeal No. 1447/12 -:88:- Court in Machhi Singh (supra) had held that if the accused were known to the witnesses, absence of sufficient light cannot be a reason to discard their evidence. That apart, in this case, non- mention of the source of light in the locality either in the scene mahazar or in the site plan prepared by the Village officer, can be termed as a flaw in investigation. But still, it was the duty of the Court to consider the other available evidence to find out whether the incident had happened as contended by the prosecution.
46. In this case, though we do not fully agree with the learned Sessions Judge in regard to his findings, still, while considering an appeal against an order of acquittal, certain well settled principles of law are to be kept in mind. It is reiterated by the Apex Court in various judgments, which we have already cited, that though the High Court is entitled to re-appreciate the entire evidence on record and if it is found that the view taken by the trial Court is a reasonable view of the evidence on record, the High Court will not substitute its opinion with that of the trial Court. We are of the view that this is also an instance in which, though we differ from the view expressed by the learned Sessions Crl.Appeal (V) No.1445/12 & Crl.Appeal No. 1447/12 -:89:- Judge regarding certain aspects of the matter and a different view is possible, we do not think that the judgment can be set aside, as some of the materials relied upon by the court below could possibly lead to the conclusion of acquittal.
In the light of the above findings, we do not think that any grounds are made out for interference. Appeals are dismissed.
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A.M.SHAFFIQUE JUDGE Sd/-
P.SOMARAJAN
Rp //True Copy// JUDGE
PS to Judge