Kerala High Court
Peethambaran Prasad vs State Of Kerala on 27 February, 1998
Equivalent citations: 1998CRILJ2122
ORDER S. Marimuthu, J.
1. This Revision Petition has arisen against the conviction and sentence delivered by the Sessions Judge, Trivandrum in Crl. Appeal No. 223 of 1991 which was directed against the conviction and sentence rendered by the Prl. Assistant Sessions Judge, Attingal in Sessions Case No. 7 of 1991 in which the Assistant Sessions Judge found the accused-revision-petitioner guilty under Section 307 of the Indian Penal Code and thereby sentenced him to undergo rigorous imprisonment for a term of three years and also found him guilty under Section 324, IPC and thereby sentenced him to undergo rigorous imprisonment for one year and also to pay a fine of Rs. 500/- each as compensation to PWs. 1 to 4 failing which he will undergo simple imprisonment for a further period of two months. The substantial sentence of imprisonment have to run concurrently. The above conviction and sentence of the Prl. Assistant Sessions Judge were challenged by the revision-petitioner as appellant in Crl. Appeal No. 223 of 1991 before the Sessions Judge, Thiruvananthapuram, who affirmed the conviction and sentence passed by the trial Judge, Attingal.
2. As pointed out above, now the above conviction and sentence affirmed by the Sessions Judge are challenged in this revision. The only point that was urged before me for consideration is whether the prosecution has established the guilt of the revision-petitioner under Sections 307 and 324, IPC beyond all reasonable doubt.
3. The crux of the prosecution case based on the investigation and the evidence projected by them leading the conviction, in short, is as follows :
The revision-petitioner-accused was a quarry worker employed under the brother-in-law of PW-6. PWs. 1 to 4 are also quarry workers employed in the same quarry under PW-6. On 23-5-1990 in the noon there was a quarrel between PW-2 and the revision-petitioner on account of , taking away of the stones blasted. On account of this quarrel between the revision-petitioner and PW-2 on the relevant day i n the noon, the revision-petitioner got enraged and was waiting for PWs. 1 to 4 with an intention of assaulting them at about 8 p.m. on the same day in Kattuchantha. At 'the relevant time, namely, 8 p.m. on the material day, PWs. 1 to 4 casually were going along that way. On seeing PWs. 1 to 4 the revision-petitioner first assaulted PW-2 by giving a blow with M.O.I. knife on his abdomen which resulted in causing a grievous injury through which the intestine came out. At that time, PW-1 brother of PW-2 intervened who was also assaulted by the revision-petitioner by inflicting hurts on his right palm and left fore-arm. Then PW-3 intervened. He was also assaulted by the revision-petitioner by causing one injury on the right fore-arm and other two injuries, one on the right chest and other on the right rib. Lastly, the revision-petitioner assaulted PW-4 by causing injury on the tip of his male organ. After this occurrence, the revision-petitioner escaped from the scene of occurrence. But the four injured were immediately taken to the Kilimanoor police station. In the Kilimanoor police station PW-1 gave oral statement to the Sub-Inspector of Police but, however, it was not reduced into writing by the S. I. of Police and instead he suggested them to take the injured persons immediately to the hospital to save their lives. Accordingly, PWs. 1 to 4 were taken to the Medical College Hospital, Thiruvananthapuram, where PWs. 1 to 4 were seen by PW-7 the Doctor and he treated them between 10.05 and 11.05 p.m. on that day, 23-5-1990. PW-7 the Doctor who treated the injured had issued the wound certificates marked at Exts. P-3, P-4, P-5 and P-6 but he failed to inform the police immediately. PW-12 Head Constable attached to the Kilimanoor police station received information from the Medical College Hospital at 9 a.m. on 24-5-1990 and he lei surely proceeded to the hospital, got Ext. PI F.I. Statement from PW-1, returned back to the police station where he registered a case in Crime No. 72 of 1990 of the concerned police station under Sections 324 and 307, IPC against the revision-petitioner. Thereafter investigation was taken up by PW-13 Circle Inspector who immediately went to the spot, prepared Ext. P2 Scene Mahazar and also examined the witnesses and recorded their statements under Section 161, Cr. P. C. On 25-5-1990, the accused-revision-petitioner was arrested by PW-13 and on the confession Ext. P-11 given by the revision-petitioner M.O.I. knife was recovered. After completing the investigation a charge-sheet was filed under Sections 324 and 307, IPC before the Judicial Second .Class Magistrate, Attingal. The Judicial Second Class Magistrate furnished the copies of the documents to the accused and then on going through the records he found that there is a prima facie case to be tried by the Sessions Judge and hence committed the case under Sections 209, Cr. P. C. to the Court of Session, Trivandrum. The Sessions Judge, thereafter made over the case for trial to the Prl. Assistant Sessions Judge, Attingal. The Prl. Assistant Sessions Judge on examining the records as well as hearing the Public Prosecutor and the learned Counsel appearing for the revision-petitioner framed charges under Sections 307 and 324, IPC. When the charges were read over and explained to the revision petitioner by the Prl. Asstt. Sessions Judge, he denied the same in toto. Therefore, to establish the charges framed, on the prosecution side, PWs. 1 to 13 were examined. In addition to it, they have marked Exts. P1 to P12. M.O. 1 knife also was marked before the trial Court. After the evidence of prosecution were over, the accused was questioned under Section 313, Cr. P. C. The accused totally denied the entire prosecution case. During the trial, on the side of the revision petitioner Exts. Dl to D6 were also marked, as contradictions as between the oral evidence in the box and the statements of the witnesses recorded under Section 161, Cr. P. C.
4. On hearing the arguments of the learned Public Prosecutor and the learned Counsel appearing for the revision-petitioner as noted above, the Prl. Asstt. Sessions Judge found the accused guilty under Sections 307 and 324, IPC and sentenced the revision-petitioner as stated above in addition to the payment of a total compensation of Rs. 2000 to the four injured persons and he had also set-off the period of imprisonment already undergone by the revision-petitioner under Section 428, Cr. P. C. towards the sentence of imprisonment. As noticed above that conviction was challenged before the Sessions Judge, Trivandrum who affirmed the conviction and sentence of the trial Judge.
5. Now the only point, urged before me by the learned counsel appearing for the revision-petitioner would be that the prosecution has miserably failed to establish the guilt of the accused under Sections 307 and 324, IPC beyond all reasonable doubt and, therefore, he has to be acquitted giving the benefit of doubt.
6. The learned Counsel appearing for the revision-petitioner urged before me two important points in favour of revision-petitioner for disbelieving the theory of the prosecution, namely, that Ext; PI (a) is not the First Information Report and the true First Information Report has been suppressed by the prosecution with an ulterior motive that the first report does not contain any overt act by the revision-petitioner and, in fact, the revision-petitioner's name has no place in that report. In the suppression of the earlier FIR, there is a considerable amount of doubt in the case of prosecution. The next point urged by him would be that even if Ext. PI (a) is taken as the FIR in this criminal prosecution, there is inordinate delay in registering the case. The inordinate delay is not properly explained by the prosecution. That also throws doubt on the prosecution case. One more point urged by the learned counsel appearing for the revision-petitioner would be that the motive suggested by the prosecution, namely, the occurrence in the noon on the relevant date is not established by the prosecution. Now the points can be examined and answers on them can be recorded. The evidence of PWs. 1 and 5 would disclose that soon after the occurrence was over they went to the Kilimanoor police station where the S. I. of Police was available to whom they informed about the occurrence and, however, he did not reduce it into writing, and instead he suggested them to take the persons injured immediately to the Medical College Hospital, Trivandrum. In this context, the argument of the learned counsel appearing for the revision-petitioner would be that it is the duty of the police officer as enjoined under Section 154, Cr. P. C. that he must immediately reduce the statement into writing and register a case. The failure on the part of the S. I. of Police is a violation of the statutory provision of law and however, in fact, in this case it was reduced into writing by the S. I. of Police and that has been purposely concealed by the prosecution as it was not in favour of their case. The above argument of the learned Counsel appearing for the revision-petitioner is sounding to reason because except P.W. 2, even according to the prosecution case, other injured persons sustained only simple injuries. PWs. 1 and 5, according to their evidence informed the S. I. of Police about the occurrence. P.W. 5 is not an injured. Therefore, the S. I. of Police would have very well obtained a complaint either from PW-1 or from PW-5 and sent the other injured to the Medical College Hospital immediately. But as argued by the learned Counsel appearing for the revision-petitioner, a sorry state of affairs had been created by the S. I. of Police completely forgetting the provision laid down under Section 154, Cr. P. C. It is the duty of the S. I. of police to immediately get a written complaint from anyone of the injured or from any eye-witness or from anybody who came to know the occurrence or to get the oral statement of any of them and reduce it into writing and then register a case under the relevant sections of the IPC. It is also his argument, as noted above, that on the relevant night itself a written complaint was lodged before the police and that was suppressed as it was quite against the prosecution case. This submission of the learned counsel appearing for the revision-petitioner does sound to reason and has got more weight also. Therefore, as per the well settled principle of law laid down by all the High Courts and by the Apex Court of this land that suppression of the First Information Report is a vital infirmity, sufficient to throw a shadow of doubt, on the case of the prosecution, leading to an end of acquittal.
7. The next argument, as pointed out above, would be even if Ext. PI (a) is taken as the First Information Report to the police, there is delay in registering the case and such inordinate delay is not explained by the prosecution. This argument of the learned counsel appearing for the revision-petitioner is also squarely coming within the settled principles, namely, that when the prosecution failed to explain the inordinate delay in registering the case, that alone is sufficient to give the benefit of doubt to the accused like the revision-petitioner. In the instant case on hand', the occurrence was at 8 p.m. on 23-5-1990. All the four injured PWs. 1 to 4 were seen by P W-7 the Doctor of the Medical College Hospital, at 8 p.m. on the night of 23-5-1990. Therefore, PW-7 ought to have sent immediately the message to the police about the occurrence. As a matter of fact, PW-7 did not do it, for which no explanation was offered by the prosecution. The evidence of PW-12-Head Constable of the concerned police station would disclose that he received information only on the next day, namely, 24-5-1990 at about 9 a.m. and then he went to the Trivandrum Medical College Hospital where he obtained Ext. P1 complaint from PW-1. Then he returned to the police station and registered a case at about 11 a.m. under Sections 324 and 307, IPC against the revision-petitioner in Crime No. 72/90. The occurrence, as I have pointed out above, was at 8 p.m. on 23-5-1990. But the case has been registered at about 11 a.m. on 24-5-1990. Needless to say that there is inordinate delay which has not been explained by the prosecution satisfactorily. Therefore, I opine that it is a strong circumstance to throw shadow of, doubt on the case of the prosecution.
8. The 3rd point would be that the motive suggested by the prosecution is also not established by them, No doubt, it is the well settled principle of law as laid down by the Supreme Court that motive is not a must in criminal prosecution. However, when a motive is suggested by the prosecution, the motive must be established at least to some extent by the prosecution. In the instant case on hand, the motive is that there was an occurrence in the noon on the relevant day in respect of the taking of the blasted stones from the quarry. It appears that to establish the motive along with PWs. 1 to 4 the; have examined PW-6. PWs. 1 to 4, as right pointed out by the learned Counsel for the revision-petitioner are interested witnesses. PW-6, no doubt, can be taken as an independent witness to speak of the motive and his evidence is not satisfactory to establish the motive set forth by the prosecution.
9. Before leaving the judgment I have to necessarily to advert to that both the Judges of the Courts below in this case have erred in marking and discussing Exts. Dl to D6. For, during investigation, the statements are recorded by the-investigating agency under Section 161, Cr. P. C. and those statement shall not be signed by the witnesses as contemplated under Section 162 Cr. P. C. Therefore, the particular portions of those unsigned statements recorded by the Investigating Officer, when needed, can be used during the course of the examination of the witnesses in the witness-box for the purpose of contradiction as provided under Section 145 for for corroboration as provided under Section 157 of the Indian Evidence Act. It is also a sorry state' of affair, to mention that the failure in taking timely action and the action then taken with lethargy by the concerned police in this case where one of the injured persons received a fatal injury on his abdomen which resulted in his intestine coming out, mainly paved the way to set the revision-petitioner at large. On account of the above doubts which have been created by the prosecution in their case, the benefit of doubt necessarily will have to go to the revision-petitioner.
In the result, the revision petition is allowed by acquitting the revision-petitioner and by reversing the sentence and conviction delivered by the Sessions Judge, Trivandrum affirming the sentence and conviction of the Principal Asstt. Sessions Judge, Attingal. Both the Courts below, as pointed out above, have directed the revision-petitioner to pay a total compensation of Rs. 2000/- to the injured PWs. 1 to 4. The learned Counsel appearing for the revision-petitioner is not in a position to submit whether the compensation was received by the injured or not so far. If the compensation amount of Rs. 2000/- had already been paid by the revision-petitioner to PWs. 1 to 4, the revision-petitioner is entitled to get back the same in accordance with the provision of law before the proper forum.