Mahesh vs State Of Kerala on 30 January, 2010

[Cites 6, Cited by 2]

Kerala High Court

Mahesh vs State Of Kerala on 30 January, 2010

The accused in this case was prosecuted for the offences punishable under Sections 302 and 324 read with Section 34 of Indian Penal Code. Initially there were two accused. Among whom, second accused, who is the brother of first accused, being a juvenile, was deleted from the party array. Therefore, the first accused alone stood trial. He was found guilty of the offence under Section 302 read with Section 34 IPC and was therefore convicted and sentenced to suffer rigorous imprisonment for life for the said offence.

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2. The prosecution story runs thus:

The incident occurred on 21.05.2001 at about 10.30 a.m. The father of PWs 1 and 2, the deceased, according to prosecution case, questioned the act of the accused hurling abuses at another person to which objection was taken by the deceased and that resulted in wordy altercation between the deceased and the accused. By that time, the deceased moved towards the house of the accused and had reached the pathway in between. The prosecution allegation is that the brother of the first accused, who was initially shown as second accused, hurled a stone at the deceased which caused the fall of the deceased. No sooner than the deceased got up, accused rushed towards him and inflicted two stab wounds; one on the right and other on the left side of his chest. The deceased fell down and became unconscious. As per the prosecution version, seeing the incident, PWs 1 and 2 rushed towards the aid of their father Crl. Appeal No.186/2011 3 and they were also attacked by the accused causing injuries to them. PW2 suffered an injury on the middle finger of his right hand and PW1 received injuries on his buttocks.

Seeing the incident, when people gathered at the spot, deceased ran away from the place with the weapon. One Sivasankaran and Bhuvanachandran, who were neighbours of the deceased, took the deceased and PWs 1 and 2 in a car to the Medical College Hospital. On reaching the Medical College Hospital, the doctor pronounced the father of PWs 1 and 2 namely, Madhu dead. PW1 then went to the Police Station and laid Ext.P1 First Information Statement. That was recorded by PW10 who registered a crime as per Ext.P1(a) First Information Report.

3. PW13 took over investigation. He proceeded to the place where the body of Madhu was retained and conducted inquest over the same and prepared Ext.P7 inquest report. He seized M.O.s 2 to 5 found on the body of Crl. Appeal No.186/2011 4 the deceased. Thereafter he had the body sent for autopsy. PW11, the Forensic Surgeon, conducted autopsy over the body of deceased and furnished Ext.P9 report. She also proved Ext.P10 chemical analysis report of the sample taken by her. In the meanwhile, PW13 went to the scene of occurrence and prepared Ext.P8 scene mahazar. He recovered the various articles ranging from M.O.6 series and other articles found at the place of incident. He had the first accused arrested on 26.05.2001 from the house of one relative of the first accused namely, Karunakaran and according to him, on questioning the accused, as per Ext.P4(a) confession statement, the weapon used to commit the offence was recovered as per Ext.P4 mahazar. PW13 filed a report before court namely, Ext.P14 showing the complete details of the accused. He had the articles seized during investigation sent for chemical examination and obtained Ext.P17 report.

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4. It may be mentioned here that from the records, it appears that there was complaint with regard to the investigation and PW12 conducted investigation of the case and filed a supplementary report without any changes whatsoever.

5. The court before which final report was laid took cognizance of the offence and finding that the offence is exclusively triable by a Court of Sessions, the case was committed to Sessions Court, Thiruvananthapuram under Section 209 Cr.P.C after following necessary procedures. The said court made over the case to 1st Additional Sessions Court, Thiruvananthapuram for trial and disposal. The latter court, on receipt of records and on appearance of accused, framed charges for the offences under Sections 302 and 324 read with Section 34 IPC. To the charge, accused pleaded not guilty and claimed to be tried.

6. The prosecution, therefore, had PWs 1 to 15 Crl. Appeal No.186/2011 6 examined and Exts.P1 to P18 marked. The defence had Exts.D1 to D4 marked. It appears that the third party exhibit was marked as Ext.X1. M.O.s 1 to 7 were got identified and marked.

7. After the close of the prosecution evidence, accused was questioned under Section 313 Cr.P.C regarding the incriminating evidence brought out by the prosecution against him. He denied them and maintained that he is innocent.

8. Finding that the accused could not be acquitted under Section 232 Cr.P.C, he was asked to enter on his defence. The defence adduced no evidence.

9. The court below, in spite of contradictions, inconsistencies and various other infirmities in the evidence furnished by the prosecution, was persuaded to accept the evidence of PWs 1 and 2 who are the sons of the deceased, and found their evidence to be convincing enough and held Crl. Appeal No.186/2011 7 the accused guilty. The conviction and sentence as already mentioned followed.

10. Sri.T.A.Unnikrishnan, learned counsel appearing for the appellant, assailed the conviction and sentence on several grounds. Learned counsel pointed out that in fact, if one carefully looks at the conviction, it is moral conviction rather than a conviction based on evidence. Learned counsel pointed out that PW1, who is the son of the deceased and who furnished Ext.P1 First Information Statement, deviates a lot at the time of evidence from Ext.P1 and many of the statements given by him in Ext.P1 are given a go bye at the time of evidence. The other item of evidence which the prosecution relies is that of PW2, another son of deceased. If one goes by the evidence of PW1, presence of PW2 at the initial stage of incident is doubtful. In fact, the evidence of PW1 is to the effect that PW2 reached the place after the second incident Crl. Appeal No.186/2011 8 had occurred near the heap of stones. If one looks at the evidence of PW2, we will get altogether a different story. According to the learned counsel, PW2 insists that he had seen the first incident itself, a case which PW1 neither has in his evidence nor in Ext.P1.

11. Learned counsel appearing for the appellant also drew the attention of this Court to the origin of the incident. Going by the evidence of PWs 1 and 2, the prosecution case is that one Sumesh was hurling abuses at Mahesh, the accused and the deceased questioned the act of Sumesh. Then the prosecution says, that infuriated Mahesh. Learned counsel pointed out that it is unbelievable that an accused person who gets support from deceased person becomes agitated towards the deceased.

12. Learned counsel for the appellant then drew the attention of this Court to the fact that going by Ext.P1, the persons who had taken the deceased to the hospital Crl. Appeal No.186/2011 9 were Sivasankaran and Bhuvanachandran. However, the evidence of PW13 shows that in the hospital records, the person who had brought the deceased to the hospital was one Gopalakrishnan for which the prosecution has no explanation.

13. Apart from the above, learned counsel pointed out that it is quite evident that PWs 3 and 5 are planted witnesses. Had they been present or they had occasion to see the incident, even assuming that there was omission in mentioning of their names in Ext.P1 which, as usually stated, need not be an encyclopedia, PW1 could not have omitted to state their names at least at the time of evidence. If PW1 has omitted to state their names, at least PW2 could have remembered. The conspicuous absence of names of PWs 3 and 5 in the evidence of PWs 1 and 2 makes their presence extremely doubtful and the reliance placed on their evidence by the prosecution cannot be Crl. Appeal No.186/2011 10 supported.

14. Learned counsel then pointed out that recovery of weapon is equally shabby. Even going by the prosecution version, accused was arrested from the house of his relative namely, Karunakaran and he was questioned at the very same place and recovery was made from another room of the same house. PW6, though admitted his signature in Ext.P4 mahazar, denied having seen the actual recovery. Even the lower court, according to the learned counsel, was not persuaded to accept the recovery as a piece of evidence and therefore it serves no purpose. Finally, learned counsel pointed out that not satisfied with any of these infirmities, the prosecution attempted to manipulate the records also. They had Ext.X1 brought before court to show that PW2 had suffered injuries in the incident. Apart from the lack of authenticity of document, it is also interesting to see, according to the learned counsel, Crl. Appeal No.186/2011 11 that the evidence of PWs 1 and 2 are crystal clear to the effect that the injuries suffered by PW2 is on the middle finger of his right hand whereas injury shown in Ext.X1 is on the left index finger. These infirmities, inconsistencies, contradictions, embellishments and developments at the time of evidence could not have been brushed aside by the court below and probably, the court below was carried away by the fact that one person has lost his life and two of his sons were deposing in favour of the prosecution. Learned counsel pointed out that probably an incident might have happened at the place but not certainly as stated by the prosecution. The origin, development and culmination of the incident is a mystery in which case the accused is entitled to benefit of reasonable doubt and he is entitled to be acquitted.

15. Learned Public Prosecutor, on the other hand, contended that the evidence of PWs 1 and 2 are sufficient to Crl. Appeal No.186/2011 12 bring home the guilt of the accused. They speak about the incident and there is no inconsistency or contradiction in their evidence. They are natural witnesses. Learned Public Prosecutor also pointed out that true, there are certain minor inconsistencies and contradictions in their evidence. But that are only natural because they were deposing after several years of the incident and it is imprudent on the part of court to insist for photographic memory. The attempt of the court, according to learned Public Prosecutor, is to see whether the so called contradictions or inconsistencies affect the core of the prosecution case and not whether there are any inconsistencies. If, as a matter of fact, the inconsistencies and contradictions pointed out do not affect the substratum of the prosecution case, it may not be proper to throw out the prosecution case on that ground. Learned Public Prosecutor pointed out that PWs 1 and 2 are injured witnesses also. According to learned Public Crl. Appeal No.186/2011 13 Prosecutor, the evidence of injured witnesses stand on higher pedestal and their presence being established by the fact of having suffered injury cannot be easily brushed aside unless there are convincing and cogent reasons to believe that they are not giving a true version of the incident. There is no reason to believe as to why they should give a false version of the incident. Even assuming that the recovery may be doubted, there is no reason to disbelieve the evidence of PWs 1 and 2 on which the lower court has placed considerable reliance and unless it is shown that the reliance placed by the lower court is not proper and legal, this Court may not be justified in taking a different view. In short, the contention is that there are no grounds to interfere with the findings of the court below.

16. Before going into the evidence in the case, one may recapitulate the prosecution version. Going by Ext.P1, the short case put forward is that the deceased Crl. Appeal No.186/2011 14 hearing the abuses being hurled from the house of the accused took objection and that resulted in wordy altercation between the two and the deceased walked towards the house of the accused and the brother of the accused pelted stones on the chest of the deceased and when he got up, he was stabbed by the accused.

17. The first issue that arise for consideration is that what is the cause of death of Madhu. One need not labour much on this issue for the simple reason that it is not in much dispute. PWs 1 and 2 have spoken about the stab injuries inflicted by the accused. As to the acceptability of the evidence in this regard, we will deal with at a later stage.

18. PW13 conducted inquest over the body of deceased and prepared Ext.P7 report. Autopsy was conducted by PW11 who furnished Ext.P9 report. Ext.P9 report shows the following antemortem injuries: Crl. Appeal No.186/2011 15

"1. Incised penetrating wound 7x2cm horizontally placed on the left side of front of chest, its inner sharply cut end being 4cm to the left of midline and 18cm below the collar bone. Its outer end was blunt. The chest cavity was seen penetrated after cutting the left fifth intercostal space and upper part of sixth rib, transfixed the lower lobe of left lung for a depth of 4.5cm pierced the pericardium, cut the apex of heart and terminated in the left ventricle of heart. The wound was directed backwards and to the right for a total minimum depth of 9.3cm. The pericardial cavity contained 100ml of fluid blood and the left chest cavity 500ml of fluid blood and 450G of blood cot. Left lung was partially collapsed.

2. Incised wound 4.5x1.5x1cm, obliquely placed on the right side of front of chest its lower inner end 7cm to the right of midline and 11cm below collar bone.

3. Incised wound 3.9x1x1cm obliquely placed on the right side of chest its lower back end Crl. Appeal No.186/2011 16 6cm below the middle of armpit.

4. Abrasion 1x1cm on the back of middle of right forefinger.

5. Abrasion 1x0.5cm on the back of right forefinger 4cm above its tip.

6. Abrasion 1x1cm on the back of root of right middle finger.

7. Abrasion 1x0.5cm on the back of right middle finger 2cm above its tip.

8. Multiple small abrasions over an area 9x7cm on the back of chest 10cm to the right of midline and 16cm below the top of shoulder".

19. As many as eight antemortem injuries have been noted in Ext.P9 report. Three are incised wounds. Two of which are on the chest and one on the back. The evidence of PW11 may be of some relevance in this regard. After deposing about Ext.P9 certificate, the Forensic Surgeon mentions the cause of death as penetrating injury inflicted on the chest of deceased i.e injury No.1. The Crl. Appeal No.186/2011 17 surgeon is also of the opinion that such an injury can be caused by the use of a weapon like M.O.1. That is a fatal injury and is sufficient in the ordinary course of nature to cause death. It is therefore very evident that the death of Madhu was caused due to the injury inflicted on his chest and therefore it is a clear case of homicide.

20. The next question that arises for consideration is whether the prosecution has succeeded in establishing that the fatal injury which resulted in death of Madhu and the so called injuries suffered by PWs 1 and 2 are in fact caused by the accused as alleged by the prosecution.

21. It has already been noticed that the main evidence in this regard is furnished by PWs 1 and 2. Of course, at the time of trial, PWs 3 and 5 also joined the band. Since the evidence of PWs 1 and 2 have been given considerable weight by the court below, it is only Crl. Appeal No.186/2011 18 appropriate that this Court refers to their evidence in some detail.

22. One fact should be borne in mind. The author of Ext.P1 First Information Statement is none other than PW1. It is also conceded by the learned counsel for the appellant that First Information Statement need not be an encyclopedia of facts. But it should contain true version. The story put forward in Ext.P1 has already been referred to. The evidence of PW1 is to the effect that on the date of incident at about 10.30 a.m, his father returned home after bath. Then he says that he heard CW5 Sumesh who is examined as PW4 hurling abuses at Mahesh (accused) from his courtyard and they were hurling abuses at each other. The house of the accused is only a short distance from the house of PW1. The deceased questioned the act of Sumesh in hurling abuses at Mahesh. Then he says, that infuriated Mahesh and there was wordy altercation between them. Crl. Appeal No.186/2011 19 PW1 then says that the brother of Mahesh namely, Dinesh pelted stones at his father which fell on his chest and his father fell down. According to his evidence, at that time accused inflicted two stab injuries; one on the right side and another on the left side of his chest. One may at once notice here that in Ext.P1 First Information Statement, his version is that after the deceased had fallen down being hit by the stone, he had got up and thereafter the stab injury was inflicted. One may consider this as a minor inconsistency. According to PW1, after suffering two stabs at the hands of the accused, his father staggered towards the heap of stones. He fell down near the heap of stones. Then the accused is said to have followed him and exhorting " " inflicted yet another stab injury on the deceased. PW1 then says that his brother came running to the place at that time and then the accused attacked his brother also who suffered an injury in the finger of his right Crl. Appeal No.186/2011 20 hand. Then he says that he also rushed to the place and he suffered injury on his buttocks. He claims to have fallen on the ground. PW1 then says that the people who had gathered there had taken them to the Medical College Hospital, Thiruvananthapuram.

23. The evidence of PW2 is to the effect that after their father had returned taking bath, he happened to hear Sumesh and Mahesh hurling abuses at each other. When that act was questioned by the deceased, according to PW2 also, that infuriated Mahesh who questioned the act of deceased. That was followed by wordy altercation between Mahesh and deceased. He too would say that by that time, the younger brother of Mahesh namely, Dinesh pelted a stone at his father. He gives a version similar to PW1 regarding the rest of the incident. However, he says that he happened to see the 2nd stab injury inflicted by accused on the right side of the chest of his father. Then he says that Crl. Appeal No.186/2011 21 the accused turned towards him and he was attacked followed by the attack on his brother. He is definite that the injury was caused to his right finger and that his brother had suffered injury on his buttocks.

24. PW3 is the daughter of deceased. She is married and living away from her paternal house. However, she says that she had come home on the previous day and had occasion to witness the incident on 21.05.2001. She too would say that Sumesh was hurling abuses at Mahesh to which objection was taken by the father of PW3. Quite surprisingly, PW3 also would say that the act of the deceased infuriated Mahesh and there was wordy altercations between them. She also gives a version similar to PW1 regarding the rest of the incident.

25. PW5 is the next witness who speaks about the incident. He says that he had occasion to see the incident which resulted in death of Madhu. He would say Crl. Appeal No.186/2011 22 that on the date of incident, he had gone for bath with one Anil Kumar and while they were bathing, they heard a sound and when they looked at the place from where the sound had emanated, they found the accused stabbing the deceased for the 'second time'. Of course, if the evidence of PWs 1, 2, 3 and 5 can be accepted as trustworthy, then there can be no doubt that the prosecution has proved its case. But the question is whether it is creditworthy and is without blemish.

26. PW1 speaks about the advent of PW2, only after the second incident had occurred i.e. after the deceased was stabbed by the accused near a heap of stones. He had no case that during the initial stage of incident, his brother was present or his brother had occasion to see the incident. He also does not make mention of the presence of PW5. It is significant to notice that Ext.P1 is totally silent about the presence of PW2 at the initial stage Crl. Appeal No.186/2011 23 of incident and it does not state about the presence of PWs 3 and 5 at any point of time. Even assuming that there could have been a bonafide omission at the time of giving the First Information Statement, it could not have been so at the time of giving evidence. If, as a matter of fact, PWs 3 and 5 had occasion to see the incident, PW1 would have noticed the same and he would not have omitted to mention the said fact at the time of giving evidence. The total absence of any mention of names of PWs 3 and 5, as rightly pointed out by the learned counsel for the appellant, makes the evidence of PWs 3 and 5 doubtful and suspicious.

27. As far as PW1 is concerned, he deviates a lot from his First Information Statement. In Ext.P1 First Information Statement, there is no mention of Sumesh at all. He gives a totally different version regarding the origin of incident at the time of evidence which is inconsistent with his version in Ext.P1. It is significant to notice that in Crl. Appeal No.186/2011 24 Ext.P1, he makes no mention of the second incident i.e. stabbing after the deceased had moved towards heap of stones which made him to fall near the heap of stones. It is significant to notice that in Ext.P1 he asserts that his brother suffered an injury on the right hand finger.

28. The evidence of PWs 1 and 2 have already been referred to in detail and it can be easily seen that they cannot co-exist. While PW1 would say that PW2 came after the second incident was over, PW2 has altogether a different case that he had seen the entire incident. However, he does not speak about the stab inflicted near the heap of stones. As rightly pointed out by the learned counsel for the appellant, the version given by PW5 that he had seen the second stabbing cannot be believed. It escapes ones understanding as to how he knew the stab injury that he saw being inflicted was the 2nd stab injury unless he had seen the infliction of the 1st stab injury, a case Crl. Appeal No.186/2011 25 which he does not have. As rightly pointed out by the learned counsel for the appellant, he is nothing but a planted witness.

29. Apart from the fact that PW1 does not make mention of the presence of PW3, even PW2 also makes no mention of the presence of PW3, their own sister, at the time of incident who claims to have seen the whole incident. If, as a matter of fact, she was present at the relevant place, PWs 1 and 2 could not have omitted to notice her presence. These inconsistencies and contradictions in the evidence of these witnesses make them extremely dangerous for the court to rely on their evidence.

30. Coming to the recovery, even the lower court was not inclined to accept the same. We need not labour much on that as that has been rejected by the court below. It is sad to note that there is an attempt to manipulate the records. Going by the prosecution case, PWs 1 and 2 Crl. Appeal No.186/2011 26 suffered injury and they were treated in the Medical College Hospital. It is shocking and surprising to note that no records regarding the treatment given to them are either seized or produced initially. The prosecution had caused production of Ext.X1 which is said to have been the treatment given to PW2 at the Medical College Hospital. That, in fact, goes against the prosecution case. Ext.X1 shows that the patient who was treated as per that document had suffered an injury on his left hand whereas the consistent case of PWs 1 and 2 is that PW2 had suffered an injury on his right hand. Merely because two persons have simply mentioned about an incident in which their father lost his life at the hands of accused, unless it is shown that their evidence is convincing and cogent enough, it may not be proper to accept their evidence. In the case on hand, inconsistent versions have been given by two main witnesses and the evidence of PW1 read along with recovery Crl. Appeal No.186/2011 27 creates considerable doubt regarding the origin, development and culmination of the incident. Probably, an incident did happen at that place in which Madhu lost his life. But, surely and certainly, it is not in the manner as alleged by the prosecution. It appears that prosecution is concealing more than what it has revealed. But that is not a reason to find the accused guilty without acceptable evidence.

31. It may be possible to say that the incident 'might' have happened in the manner alleged by the prosecution. But test applied is that the incident 'must' have happened in the manner alleged by the prosecution. There is long distance to travel between 'might' and 'must'.

32. For the above reasons, we are unable to accept the finding of the court below that the prosecution has established its case beyond reasonable doubt against the accused.

Crl. Appeal No.186/2011 28

In the result, this appeal is allowed. The conviction and sentence passed by the court below for the offence under Section 302 read with Section 34 of Indian Penal Code are set aside and it is held that the accused is not guilty of the said offence. He stands acquitted of all the charges levelled against him. He shall be released forthwith unless wanted in any other case.

Sd/-

P.BHAVADASAN JUDGE Sd/-

RAJA VIJAYARAGHAVAN V JUDGE smp // True Copy // P.A to Judge.

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