Supreme Court - Daily Orders
Allakal Jose @ Androse vs State Of Kerala on 29 October, 2015
Bench: Fakkir Mohamed Ibrahim Kalifulla, Uday Umesh Lalit
Criminal Appeal No. 123 of 2009
ITEM NO.104 COURT NO.7 SECTION IIB
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Criminal Appeal No. 123/2009
ALLAKAL JOSE @ ANDROSE Appellant(s)
VERSUS
STATE OF KERALA Respondent(s)
(With office report)
Date : 29/10/2015 This appeal was called on for hearing today.
CORAM :
HON'BLE MR. JUSTICE FAKKIR MOHAMED IBRAHIM KALIFULLA
HON'BLE MR. JUSTICE UDAY UMESH LALIT
For Appellant(s) Mr. Monohar Singh Bakshi, Adv.[A.C.]
Mr. L.B. Singh, Adv.
Mr. Renjith B. Marar, Adv. [A.C.]
For Respondent(s) Ms. Liz Mathew, A.O.R.
Mr. M.F. Philip, Adv.
UPON hearing counsel the Court made the following
O R D E R
For the reasons stated in the signed order, the appeal is dismissed.
While hearing this appeal, we found that Mr. Monoher Singh Bakshi had some handicap in referring to the evidence of the witnesses which Signature Not Verified were recorded in Malayalam. We, therefore, Digitally signed by Kalyani Gupta Date: 2015.11.07 11:34:56 IST Reason: requested Mr. Renjith B. Marar, learned Advocate-on-Record, present in Court to assist PAGE NO. 1 of 2 Criminal Appeal No. 123 of 2009 us along with Mr. Monoher Singh Bakshi in order to get proper assistance.
While appreciating the services rendered by Mr. Monoher Singh Bakshi, learned Amicus Curiae, we recommend the payment of Rs. 10,000/-(Rupees Ten thousand) towards his fee and a separate fee of Rs.10,000/- (Rupees Ten thousand)also to Mr Renjith B. Marar, learned Advocate-on-Record who had rendered his valuable assistance on our request.
[KALYANI GUPTA] [SUMAN JAIN]
COURT MASTER COURT MASTER
[SIGNED ORDER IS PLACED ON THE FILE.]
PAGE NO. 2 of 2
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 123 OF 2009
ALLAKAL JOSE @ ANDROSE ….. APPELLANT
VERSUS
STATE OF KERALA ….. RESPONDENT
O R D E R
This appeal is directed against the Division Bench judgment of the High Court of Kerala at Ernakulam in Criminal Appeal No. 1106 of 2003(C) dated 19 th June, 2006.
2. Sole accused is the appellant. The genesis of the case, as projected by the prosecution, was that on 9 th September, 2000 at about 4:00p.m. there was a quarrel between the appellant and P.W. 4 near Balal Sub-Registry Office when the deceased Appachan intervened and pushed the appellant away. The appellant while leaving the scene of occurrence at that time stated to have left the place with a threat towards the deceased that he would take revenge on him if the deceased is found at the Criminal Appeal No. 123 of 2009 place called Balal. Same day at about 7:30p.m., when the deceased was standing near the shop of P.W. 1, appellant who was armed with a knife (M.O.1) stabbed the deceased which was witnessed by P.Ws. 1, 2 and 3 and when P.W. 2 rushed towards the spot to rescue the deceased, the appellant inflicted an injury on P.W. 2 as well. Thereafter,the appellant stated to have ran away towards nearby school compound and he was chased by a mob who also pelted stones at him. The appellant was stated to have sustained injuries and while running away from the scene of occurrence and while running he dropped M.O. 1, knife, there itself. The injured P.W. 2 and the deceased were taken to surge Care Hospital which was nearby at Kanhangad where they were examined by P.W. 7, Doctor. While the deceased was declared dead, after giving first aid to P.W. 2 he was referred for better treatment to Mangalore. P.W.2 was thereafter taken to Father Muller's Hospital, Mangalore where he was examined by P.W.8, Doctor and (2) to (6) injuries were detected. P.W.1 preferred Exhibit P1, Complaint, based on which P.W.9, prepared Exhibit P1(a) F.I.R. and the case was registered under Sections 302 and 307 IPC as against the appellant. Investigation was initially conducted by P.W.10, the Circle Inspector and thereafter PAGE NO.2 OF 9 Criminal Appeal No. 123 of 2009 it was continued by P.W. 11.
3. After the filing of the Final Report the appellant was tried wherein as many as 11 witnesses were examined, 14 Exhibits were marked and Material Objects M.O. 1 to 8 were also marked. The appellant did not choose to examine any witnesses on his side. At this juncture, it must be noted that the appellant himself rendered a statement before P.W. 9, which was recorded under Exhibit P7(a) in which he requested for the counter case under Sections 143, 147, 148 and 324 read with 149 I.P.C. to be registered. P.W. 6 was the post-mortem Doctor who issued Exhibit P5 Certificate.
4. The counter case filed by the appellant was an independent case, though in all fairness, both the cases ought to have been tried together. However, we find from the impugned judgment of the High Court that ultimately the appellant was convicted for the offences under Section 302 for which he was and imposed life sentence and further imprisonment of two years for the offence under Section 326. Both the sentences were directed to run concurrently. The counter case ended in acquittal. When the appellant preferred the appeal before the High Court, he expressed his grievance under the separate trial of the counter case. In order to PAGE NO.3 OF 9 Criminal Appeal No. 123 of 2009 obviate any prejudice caused to the appellant and in the interest of justice, the High Court entertained a Revision suo motu, against the order of acquittal in counter case C.C. No. 370 of 2001. The said revision was also heard along with the appeal preferred by the appellant. The said revision was also heard along with the appeal preferred by the appellant and by a separate judgment dated 19th August, 2006, the said revision was dismissed.
5. The Division Bench after detailed analysis of the entire evidence and the judgment of the trial Court ultimately found that there was no scope for interfering with the conviction and sentence imposed insofar as the charge under Section 302 was concerned. However, when we refer to the charge under Section 326 pertaining to the injury inflicted on P.W.2, having regard to the injuries noted in Exhibit P6 read along with evidence of Doctor P.W. 8, the High Court found that there was no grievous hurt inflicted on P.W.2 and consequently, the said conviction was modified as one under Section 324 and the sentence was also altered as one year and with that minor modification the appeal was partly allowed.
6. We heard Mr. Monoher Singh Bakshi, learned counsel PAGE NO.4 OF 9 Criminal Appeal No. 123 of 2009 for the appellant and Ms. Liz Mathew, learned Standing Counsel for the State.
7. While hearing this appeal, we found that Mr. Monoher Singh Bakshi had some handicap in referring to the evidence of the witnesses which were recorded in Malayalam. We, therefore, requested Mr. Renjith B. Marar, learned Advocate-on-Record, present in Court to assist us along with Mr. Monoher Singh Bakshi in order to get proper assistance.
8. Mr. Monoher Singh Bakshi in his submissions initially made serious contentions as regards the failure to try both the cases together which according to learned counsel caused serious prejudice to the appellant. It was contended that in the counter case because of the stand of the prosecution, the case of the appellant was not properly projected and thereby as a consequence of its own the stand of the appellant resulted in a hostile situation. It was, therefore, contended that the failure to hear both the cases together caused serious prejudice to the appellant.
9. Though in the first blush such contention put forth by the appellant appeared to be appealing, we find that the appellant miserably failed to pursue his complaint even after the case was registered by the Police to its PAGE NO.5 OF 9 Criminal Appeal No. 123 of 2009 conclusion. When according to the appellant, the prosecution failed to conduct the case based on his version of complaint, in accordance with law, in the first instance, he should have taken appropriate steps by filing necessary protest petition and should have taken steps to prove his case and ensured the prosecution was directed to take the appropriate course. Secondly when the said trial ended in acquittal the appellant failed to take any steps to pursue his case further. The mere statement of the appellant that as he was in jail, he could do nothing cannot be a ground for condoning his lapse on this aspect. It may be stated that there was enough assistance provided after the coming into force of the Legal Services Authority Act to give necessary free legal assistance for the convicts wherever they are disabled from engaging their own lawyers. That apart, the appellant himself could have initiated required steps through the Jail authorities for redressing his grievance as against the acquittal which resulted in the counter case. In any event, when the said grievance was again raised before the High Court, the Division Bench in order to ensure that the grievance of the appellant was duly addressed, the High PAGE NO.6 OF 9 Criminal Appeal No. 123 of 2009 court suo motu entertained a revision as against the counter case in C.C. No. 323 of 2001 in Criminal Revision No. 317 of 2003. The Division Bench, therefore, examined the said grievance of the appellant in the said revision and by separate judgment found no good grounds to interfere with the acquittal made in C.C. No.323 of 2001. Even thereafter, though the appellant had the legal assistance through the present counsel Mr. Monoher Singh Bakshi, learned Amicus curiae, appointed by the Registry of this Court, there is no reason why no steps were taken by the appellant to make any challenge to the order in Revision dated 13 th June, 2006 passed in Criminal Revision Petition No. 317 of 2003.
10. In the said circumstances, we do not find any merit in the said submission made on behalf of the appellant and therefore, same stands rejected. Once we steer clear of the said submission, what remains is the conclusion of the trial Court finding the appellant guilty of the offence of murder of the deceased Appachan based on the eye witness account, namely, P.Ws. 1 to 3. Of whom, P.W. 2 was the injured eye witness, P.W. 4 witnessed the occurrence which took place at 4:00p.m. on PAGE NO.7 OF 9 Criminal Appeal No. 123 of 2009 that day near the Sub-Registrar's office at Balal. Mr. Singh in his submissions tried to demonstrate that there was a serious discrepancy in the version of P.W. 4 as regards the earlier occurrence in order to substantiate the motive. We do not find any serious discrepancy as has been sought to be raised at the instance of the appellant. On the other hand, we find the evidence of P.Ws. 1 to 3 in particular, the injured eye witness account of P.W. 2 to be cogent and convincing and, therefore, we do not find any scope to take a different view than what has been reached by the trial Court and as confirmed by the Division Bench of the High Court.
11. Lastly, it was sought to be contended that the gravity of the offence would not fall under Section 302 IPC but would at best fall under Section 304 Part I. It was also submitted that the appellant has already undergone 15 years of incarnation and, therefore, taking into account the nature of the offence and the injury sustained it would fall under Exception (iv) to Section 300 and consequently, the conviction could at best fall under Section 304 Part I and not under Section 302. We tried to appreciate the said contention, but having perused the evidence of P.W. 6, the Doctor who conducted the post-mortem and the injury inflicted with the M.O. PAGE NO.8 OF 9 Criminal Appeal No. 123 of 2009 I, knife, which pierced the chest of the deceased, we are convinced that there is no scope to interfere with the ultimate conviction ordered and confirmed by the courts below. We find no merit in this appeal, the same fails and is dismissed.
12. While appreciating the services rendered by Mr. Monoher Singh Bakshi, learned Amicus Curiae, we recommend the payment of Rs. 10,000/-(Rupees Ten thousand) towards his fee and a separate fee of Rs.10,000/- (Rupees Ten thousand)also to Mr Renjith B. Marar, learned Advocate-on-Record who had rendered his valuable assistance on our request.
…...................................J [FAKKIR MOHAMED IBRAHIM KALIFULLA] …...................................J [UDAY UMESH LALIT] NEW DELHI OCTOBER 29, 2015.
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