Shoukkath vs State Of Kerala on 21 May, 2020

[Cites 21, Cited by 0]

Kerala High Court

Shoukkath vs State Of Kerala on 21 May, 2020

Equivalent citations: AIRONLINE 2020 KER 1288

The appellants, accused Nos:1, 2 and 4 in S.C. No. 376 of 2005 of the IIIrd Additional Sessions Court (Ad Hoc) Fast Track Court No.I, Thrissur, are in appeal against the conviction and sentence imposed by the trial court. The first appellant was convicted for the offence punishable under Section 326, the second appellant for the offence under Section 341 and the third appellant under Section 324 of the Indian Penal Code.

2. The prosecution allegations, based on which the appellants along with the absconding third accused, were charged, tried and convicted by the trial court are as under:

The accused, who were activists of a political organisation by name NDF, had, in furtherance of their common intention to commit culpable homicide of PW4;

Crl.A.No.1011 of 2006 3

who was an activist of RSS, a rival political outfit, wrongfully restrained PW4, at about 7.30 PM on 2.3.2002 near Blangad Siddique Palli Junction, within the limits of the Chavakkad Police Station. After restraining PW4, the 1st accused hit on his face with the handle of a knife, the 2nd accused hit him with a gauntlet, the 3rd accused fisted PW4 on his chest and back and the 4th accused attempted to hit on his head with an iron pipe which PW4 evaded and the blow fell on his back. As a result of the assault PW4 sustained fracture to his nasal bone and other bodily injuries.

3. In order to prove its case, the prosecution examined PWs 1 to 6 and marked Exts.P1 to P6. The accused denied the incriminating circumstances put to them during their examination under Section 313 Cr.P.C, but no evidence, either oral or documentary, was tendered in their defence. The trial Court rejected the defence contention of the accused having been falsely implicated due to political enmity, as also the contention regarding the discrepancies in the Crl.A.No.1011 of 2006 4 oral testimony of the prosecution witnesses and the delay in dispatching the FIR to the jurisdictional Magistrate Court being indicative of a partisan investigation. The trial Court held that, the prosecution having succeeded in proving that PW4 had suffered injuries and it was the accused who had assaulted PW4 and that the First Information Statement had been recorded and the F.I.R registered without delay, the fact that the F.I.R reached the Magistrate Court about twenty four hours later was immaterial.

4. Heard Sri.Sunny Mathew, learned Counsel for the appellants and Sri B. Jayasurya, learned Public Prosecutor.

5. The learned counsel for the appellants contends that other than the glaring discrepancies in the testimonies of the prosecution witnesses, which the trial Court had brushed aside, the entire investigation was tainted and was suspect for reason of the delay in dispatching the FIR. The learned counsel further contends that the manner in which the Crl.A.No.1011 of 2006 5 trial was conducted had prejudiced the accused in their defence. In elaboration, it is submitted that while PW6, and alleged chance eyewitness, but in fact a partisan witness, was examined the actual eye witnesses, including the shopkeeper who, even according to the prosecution witnesses, was present near the scene of occurrence during the incident were not examined. The order in which the prosecution witnesses were examined, i.e, the victim and the eye witness being examined after the investigation officer, is pointed out as another example of the trial having been conducted in an unfair manner.

6. The learned Public Prosecutor countered the contentions and submitted that the clear and cogent evidence tendered by PW4 and PW6 regarding the manner in which the incident had taken place and the identity of the accused, coupled with the medical evidence, was sufficient to prove the guilt of the accused and to sustain their conviction.

Crl.A.No.1011 of 2006 6

7. In the nature of the contentions urged, the prosecution evidence was subjected scrutiny, upon which the following glaring discrepancies surfaced:

i) The Assistant Surgeon (PW1), who examined PW4 within one hour of the incident and issued Exhibit P1 Accident-cum-Wound Certificate deposed that PW4 was brought to the Taluk Hospital by a person named Ayyappankuty, who claimed to be the uncle of PW1. In his testimony, PW4 also stated that he was taken to the hospital by his uncle Ayyappankutty and that the details regarding the incident was narrated to the doctor by his uncle. But the version of PW6, the eyewitness, is that he, along with CW2 Manoj, had taken PW4 to the hospital and that it was PW4 and Manoj, who had narrated the incident to the doctor.

ii) In his almost contemporaneous statement before the Doctor made at 8.30 p.m.on 02.03.2002, PW4 stated that he was attacked by around fifteen identifiable persons with hand and gauntlet. But when it came to the First Information Statement, claimed to have been Crl.A.No.1011 of 2006 7 recorded on the same day at 9.45 p.m., PW4 gave the names and even other particulars of the four accused persons and a graphic description of the manner in which he was assaulted by each of the accused, using the handle of a knife, gauntlet, iron bar and with hands.

iii) In the First Information Statement, PW4 stated that the third accused Sirajuddin tried to hit him on his head with an iron bar which he evaded and thereupon the blow fell on his back and that, had he not evaded the blow, he would have died. But in his cross examination PW4 categorically denied having stated that the blow with the iron rod fell on his back.

iv) After recording the First Information Statement, the FIR was registered at 10.45 p.m. on 02.03.2002 and dispatched to the Magistrate Court at 11.15 p.m on the same day. Surprisingly, the FIR is seen to have reached the Magistrate Court only at 9:30 p.m the next day (03.03.2002), almost twenty four Crl.A.No.1011 of 2006 8 hours after it was dispatched. The fact that the Chavakkad Police Station and the Magistrate Court are in the same locality is not in dispute. PW3, the Additional Sub Inspector who took over the investigation on 03.03.2002, deposed that he had prepared Exhibit P4 Scene Mahazar at 9:30 a.m. on

03.03.2002 and had arrested the first accused on the same day. Hence, by the time the FIR reached the court, the scene mahazar was prepared and the first accused arrested. When questioned about the reason for the delay in the FIR reaching the court, PW3 was candid in his reply that he was not aware of the reason.

v) As far as the examination of eye witnesses is concerned, PW4 himself admitted that some people had gathered hearing his cries and that after the incident he had seen Moideen inside his shop situated nearby. PW6 also stated that other than himself and Manoj, five or six others had also witnessed the incident. Neither, Moideen, the adjacent shop keeper, nor any of Crl.A.No.1011 of 2006 9 the other eyewitnesses and for that matter not even Ayyappankutty, who had taken PW4 to the hospital, was questioned by the investigating officer and cited as witnesses. The explanation offered by PW3 is that, on being asked, Moideen and others did not state that they had seen the incident. To what extent the refusal to question the natural eye witnesses and to examine them would impact the trial has to be considered in the light of the specific contention raised by the defence that right from the stage of First Information Statement onwards the investigation was conducted in a faulty and partisan manner.

8. There cannot be any quarrel with the proposition that an impartial investigation and fair prosecution are fundamental for a proper trial, lest the Constitutional guarantee Article 21, of no person being deprived of his life and personal liberty except in accordance with procedure established by law, would be rendered otiose. A fair, transparent and judicious investigation is the minimum requirement of the rule Crl.A.No.1011 of 2006 10 of law. The investigating officer cannot be permitted to conduct the investigation in a tainted and biased manner. The principle that an impartial investigation is the foundation of a fair trial is well settled through a plethora of decisions. In Manu Sharma v. State (NCT of Delhi) [(2010) 6 SCC 1], the Apex Court, while dealing with the fairness of the investigation held as follows:

"197. ......The criminal justice administration system in India places human rights and dignity for human life at a much higher pedestal. In our jurisprudence an accused is presumed to be innocent till proved guilty, the alleged accused is entitled to fairness and true investigation and fair trial and the prosecution is expected to play balanced role in the trial of a crime. The investigation should be judicious, fair, transparent and expeditious to ensure compliance with the basic rule of law. These are the fundamental canons of our criminal jurisprudence and they are quite in conformity with the constitutional mandate contained in Articles 2o and 21 of the Constitution of India."

Again in Babubhai v. State of Gujarat [(2010) 12 SCC 254], the legal position was reiterated in the following words:

"32. The investigation into a criminal offence must be free from objectionable features or infirmities which may legitimately lead to a Crl.A.No.1011 of 2006 11 grievance on the part of the accused that investigation was unfair and carried out with an ulterior motive. It is also the duty of the investigating officer to conduct the investigation avoiding any kind of mischief and harassment to any of the accused. The investigating officer should be fair and conscious so as to rule out any possibility of fabrication of evidence and his impartial conduct must dispel any suspicion as to its genuineness. The investigating officer "is not merely to bolster up a prosecution case with such evidence as may enable the court to record a conviction but to bring out the real unvarnished truth"

Recently in Ankush Maruti Shinde v. State of Maharashtra, [(2019) 15 SCC 470], dilating on the imperativeness of truthful investigation, and fair trial, for which the Public Prosecutor should assist the court in reaching the truth, it was held as under:

"10.1. Apart from ensuring that the offences do not go unpunished, it is the duty of the prosecution to ensure fairness in the proceedings and also to ensure that all relevant facts and circumstances are brought to the notice of the court for just determination of the truth so that due justice prevails. It is the responsibility of the investigating agency to ensure that every investigation is fair and does not erode the freedom of an individual, except in accordance with law. One of the established facets of a just, fair and transparent investigation is the right of an accused to ask for all such documents that he may be entitled to under the scheme contemplated by CrPC.

10.2. Nothing is allowed by the law which Crl.A.No.1011 of 2006 12 is contrary to the truth. In Indian criminal jurisprudence, the accused is placed in a somewhat advantageous position than under different jurisprudences of some of the countries in the world. The criminal justice administration system in India places human rights and dignity for human rights at a much higher pedestal and the accused is presumed to be innocent till proven guilty. The alleged accused is entitled to fair and true investigation and fair trial and the prosecution is expected to play a balanced role in the trial of a crime. The investigation should be judicious, fair, transparent and expeditious to ensure compliance with the basic rule of law. These are the fundamental canons of our criminal jurisprudence and they are quite in conformity with the constitutional mandate contained in Articles 20 and 21 of the Constitution of India.

10.4. Even in a case where the Public Prosecutor did not examine the witnesses who might have supported the accused, this Court in Darya Singh v. State of Punjab [Darya Singh v. State of Punjab, AIR 1965 SC 328 : (1965) 1 Cri LJ 350] has observed that the prosecution must act fairly and honestly and must never adopt the device of keeping back from the court only because the evidence is likely to go against the prosecution case. It is further observed that it is the duty of the prosecution to assist the court in reaching to a proper conclusion in regard to the case which is brought before it for trial. It is further observed that it is no doubt open to the prosecutor not to examine witnesses who, in his opinion, have not witnessed the incident, but, normally he ought to have examined all the eyewitnesses in support of his case. It is further observed that it may be that if a large number of persons have Crl.A.No.1011 of 2006 13 witnessed the incident, it would be open to the prosecutor to make a selection of those witnesses, but the selection must be made fairly and honestly and not with a view to suppress inconvenient witnesses from the witness box. It is further observed that if at the trial it is shown that the persons who had witnessed the incident have been deliberately kept back, the court may draw an inference against the accused (sic prosecution) and may, in a proper case, record the failure of the prosecution to examine the said witnesses as constituting a serious infirmity in the proof of the prosecution case."

9. The delay in despatching the first information report to the court lends support to the allegation regarding faulty investigation. A perusal of Ext.P3 would show that the first information report was registered at 9.45 p.m on 02.03.2002. The date and time of despatch to court is recorded as 11.15 p.m on the same date. The endorsement by the Magistrate Court shows that the FIR had reached the court only at 9.30 p.m on 03.3.2002. In this context, it may be pertinent to have a look at Section 157(1) of the Cr.P.C, the relevant portion of which reads as under:-

"157.Procedure for investigation (1) If, from information received or otherwise, an officer-in- charge of a police station has Crl.A.No.1011 of 2006 14 reason to suspect the commission of an offence which he is empowered under section 156 to investigate, he shall forthwith send a report of the same to a Magistrate empowered to take cognizance of such offence upon a police report and shall proceed in person, or shall depute one of his subordinate officers not being below such rank as the State Government may, by general or special order, prescribe in this behalf, to proceed, to the spot, to investigate the facts and circumstances of the case, and, if necessary, to take measures for the discovery and arrest of the offender:

PROVIDED that-

(a) when information as to the commission of any such offence is given against any person by name and the case is not of a serious nature, the officer-in-charge of a police station need not proceed in person or depute a subordinate officer to make an investigation on the spot ;

b) if it appears to the officer-in-charge of a police station that there is no sufficient ground for entering on an investigation, he shall not investigate the case."

(underlining supplied) It is evident from the Section that on the officer-in- charge of a Police Station suspecting the commission of a cognisable offence, he should forthwith sent a report of the same to the jurisdictional magistrate and shall proceed in person or depute one of his subordinate officers, as the case may be to the spot to investigate the facts and circumstances of the Crl.A.No.1011 of 2006 15 case, and, if necessary to take measures for the discovery and arrest of the offender. Therefore, it is incumbent upon the officer to 'forthwith send a report' when he has reason to suspect the commission of a cognisable offence. This report need not necessarily be the first information report, which is recorded only when information relating to the commission of cognisable offence is given orally or in writing to the officer in charge of the Police Station, whereas the mandate of Section 157 would apply even when the officer has a suspicion regarding such commission, based on information received or otherwise. The insistence under Section 157, for making a report forthwith is to avoid all chances of manipulation and distortion of the true facts. Even though, the mere delay in despatching the report under Section 157 would not by itself invalidate an investigation, the delay coupled with other factors would definitely have a bearing on the impartiality or otherwise of the investigation. The consequence of Crl.A.No.1011 of 2006 16 failure of the investigating agency to comply with the mandate of Section 157 on the trial of criminal cases had engaged the attention of this Court and the Honourable Supreme Court on earlier occasions.

10. The learned counsel for the appellants placed reliance on the decision of this Court in Biju v. State of Kerala [ 2012 (4) KLT 382], wherein it was held that unexplained delay in despatching the FIR would cause injustice and prejudice to the accused, owing to chances of manipulation and distortion of the true facts during the interregnum between the registration of the FIR and it reaching the Court. Dilating on this aspect, the Honourable Supreme Court in Arjun Marik v. State of Bihar [(1994) Supp (2) SCC 372] had held as follows:-

"24. The matter does not stop here. There is yet another serious infirmity which further deepens the suspicion and casts cloud on the credibility of the entire prosecution story and which has also been lost sight of by the trial court as well as the High Court and it is with regard to the sending of occurrence report (FIR) to the Magistrate concerned on 22.07.1985 i.e. on the 3 rd day of the occurrence. Section 157 of the Code of Criminal Procedure mandates that if, from Crl.A.No.1011 of 2006 17 information received or otherwise, an officer in charge of police station has reason to suspect the commission of an offence which he is empowered under Section 156 to investigate, he shall forthwith send a report of the same to the Magistrate empowered to take cognizance of such offence upon a police report. Section 157, CrPC thus in other words directs the sending of the report forthwith i.e. without any delay and immediately. Further, Section 159 Cr.P.C. envisages that on receiving such report, the Magistrate may direct an investigation or, if he thinks fit, to proceed at once or depute any other Magistrate subordinate to him to proceed to hold a preliminary inquiry into the case in the manner provided in the Code of Criminal Procedure. The forwarding of the occurrence report is indispensable and absolute and it has to be forwarded with earliest despatch which intention is implicit with the use of the word "forthwith" occurring in Section 157, which means promptly and without any undue delay. The purpose and object is so obvious which is spelt out from the combined reading of Sections 157 and 159 Cr.P.C. It has the dual purpose, firstly to avoid the possibility of improvement in the prosecution story and introduction of any distorted version by deliberations and consultation and secondly to enable the Magistrate concerned to have a watch on the progress of the investigation.

26. Even if we ignore the question of delay there is no material on record to show that it was actually despatched and received by the Magistrate concerned and if so on what date and time. A mere note in the FIR itself that report was despatched by special messenger is not enough. There is no mention as to which Magistrate it was despatched. The evidence of investigating officer is totally silent about it. It is true that quite often there are valid reasons for the delay in the despatch of the first information report and it is not always a Crl.A.No.1011 of 2006 18 circumstance on the basis of which the entire prosecution case may be said to be fabricated, but it all depends on the facts and circumstances of each case where the circumstance of delay may lead to serious consequences. But in the present case as discussed above there are other circumstances discussed which cast a serious cloud on the prosecution case and this circumstance of delay in sending the FIR still hardens the suspicion and leads to the definite conclusion that the Fard-beyan and FIR both were recorded much later in point of time than the one as shown in the said documents and in any case in our considered opinion after the appellant's house was raided and seizure of the articles was effected."

In Suresh Chaudhary v. State of Bihar [(2003) 4 SCC 128], the delay of 1½ days in FIR reaching the court was considered to be a fatal defect when coupled with other deleterious circumstances. The relevant portion in paragraph 9 of the judgment is extracted hereunder:-

"9. ..........There are certain suspicious circumstances surrounding the investigation made by this IO. We find no reason whatsoever why he chose not to conduct inquest on the body of Rajendra Chaudhary which was lying outside the police station and chose to go to the village and conduct inquest on the other two dead bodies at the pump house. This conduct of the IO also creates some doubt in our minds as to the time of the incident in question. That Crl.A.No.1011 of 2006 19 apart, the express message which PW13 sent to the Jurisdictional Magistrate reached the said Magistrate at his place only on 12-10-1992 nearly 1 ½ days after the said complaint was registered and we find no explanation from PW 13 as to this inordinate delay which only adds to the doubtful circumstances surrounding the prosecution case."

(underlining supplied)

11. The next contention to be dealt with is regarding the prejudice caused to the accused by the haphazard order in which the prosecution witnesses were examined. According to the learned counsel for the petitioner, by examining the investigating officer before bringing the injured and the eyewitness to the dock, substantial prejudice was caused to the accused in their defence. It is pointed out that justice would be the causality in the absence of a fair trial. Reliance placed on the decision of the Apex Court in Himanshu Singh Sabharwal v. State of M.P. And others [(2008) 3 SCC 602].

12. It is true that the very purpose of the criminal trial is to search for the truth, so as to Crl.A.No.1011 of 2006 20 mete out justice by convicting the guilty and protecting the innocent. Fair trial for criminal offence consists not only in technical observance of the frame and forms of law, but also in recognition and just application of its principles in substance, to find out the truth and prevent miscarriage of justice. But here the question is whether, by reason of the investigating officer being examined prior to the victim and the eyewitness, any substantial prejudice was caused to the accused. In this regard it may be apposite to have a look at Section 135 of the Evidence Act and Sections 230, 231 (2) and 311 of the Cr.P.C. As per Section 135 of the Evidence Act, the order in which the witnesses are produced and examined shall be regulated by the law and practice for the time being relating to civil and criminal procedure respectively, and, in the absence of such law by the discretion of the court. The Code of Criminal Procedure or the Kerala Criminal Rules of Practice do not contain any provision regulating the Crl.A.No.1011 of 2006 21 order in which the witnesses shall be produced and examined and therefore, discretion in this regard is vested with the trial court. The date for examination of witnesses is fixed as provided under Section 230 and the court shall proceed to take evidence produced by the prosecution on the date so fixed, as mandated under Section 231 (1) of the Cr.P.C. As per Section 231 (2), the Judge is vested with the discretion to permit the cross-examination of any witness to be deferred until any other witness or witnesses have been examined or to recall any witness for further cross-examination. Section 311 grants power to the court to recall and re-examine any person already examined, at any stage of the trial. Therefore, it was open for the defence to have requested the court to defer the cross-examination of the investigating officer till the examination of the victim and eyewitness was completed, or to have requested for recall of the investigating officer for the purpose of re-examination. Having failed to avail such Crl.A.No.1011 of 2006 22 opportunity, the appellants cannot contend that they were prejudiced by the order in which the prosecution witnesses were examined.

13. On appreciation of the evidence and on consideration of the contentions, the only conclusion that can be arrived at is that, coupled with the discrepancies in the evidence discussed earlier, the delay in the FIR reaching the court has seriously impacted the trustworthiness of the investigation and consequently the validity of the trial. The contention of the appellants that the investigating officer had utilised the interregnum between the incident and the FIR reaching the court for manipulating the First Information Statement, succumbing to political pressure, cannot be ruled out. Another disturbing feature is the complete silence on the part of the investigating officer of any attempt having been made for recovery of the alleged weapons of offence.

Crl.A.No.1011 of 2006

In the result, the appeal is allowed, the conviction set aside and the appellants set at liberty. The bail bonds executed by the appellants are cancelled.

Sd/-

V.G.ARUN JUDGE Scl/21.05

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