K.Muhammed Iqbal @ Iqbal @ Ikku vs Stateof Kerala on 27 February, 2009

[Cites 5, Cited by 0]

Kerala High Court

K.Muhammed Iqbal @ Iqbal @ Ikku vs Stateof Kerala on 27 February, 2009

The first accused in S.C. No.210/2008 namely, A.K.Muhammed Iqbal alias Ikku, S/o.Abdul Rehiman alias Pakki Anduman, who stands convicted under Sections 302 and 153A IPC and sentenced to undergo imprisonment for life and to pay fine of 25,000/-, in default, to undergo simple imprisonment for three years under Section 302 IPC, and rigorous imprisonment for two years under Section 153A IPC, has come up in appeal.

2. Originally, the crime was registered as crime No.646/1992 of Kasaragod Police Station against one Crl.A.1197/2009 : 2 : Ashraf as the 1st accused and the present appellant as the 2nd accused. Subsequently, during investigation, the 2nd accused in S.C. No.210/2008 was also arraigned as 3rd accused in the crime by incorporating an offence under Section 212 IPC. All along, the original 1st accused namely, Ashraf has been absconding and still he is absconding. Therefore, the present appellant as 1st accused and the original 3rd accused as the 2nd accused faced the trial before the court below.

3. The prosecution case is that out of communal hatred, on 15.12.1992 at 11 a.m., the absconding 1st accused and the appellant hired the autorickshaw being driven by deceased Vinodkumar at a place called Thalangara near Kasaragod and when they reached a lonely place, they got the autorickshaw stopped and alighted from it and swiftly dragged down the deceased from the driving seat and indiscriminately inflicted stab injuries on him by using sharp weapons. After inflicting such injuries, both Crl.A.1197/2009 : 3 : the said accused persons fled away from the scene. On hearing the cries of the deceased, PW11, who was working as a Plumber in a nearby house, rushed to the spot and saw the deceased in an injured state. He obtained the presence of PW2, who came by that way, and both of them took him to another autorickshaw came by the way and took him to the Taluk Head Quarters Hospital, Kasaragod.

4. At the Taluk Head Quarters Hospital, Kasaragod, PW14 Doctor attended and examined the injured and he has subsequently issued Ext.P17 wound certificate, noting down the various injuries found on the body of the injured. In Ext.P17, PW14 has noted down the history and alleged cause of injury as "Alleged assault. At about 11 a.m., near Thalangara, Kadavath, Ashraf Gabbar and Pakki Anda's son alleged to have stabbed". He has noted the following injuries on the body of the injured:-

"(1) Incised wound 5 x 2 cms penetrating to the chest wall on the left side of lower part of Crl.A.1197/2009 : 4 : chest, horizontally placed 5 cm away from mid line.

(2) Incised wound 2 x 1 = x 1 cm 5 cms below the injury No.1 in the mid line.

(3) Incised wound 2 x 1 x 1 cms 1 cm away from mid line obli (torned) placed in the lower part of left side of chest.

              (4)    Incised wound 2 x 1 x 1 cms (torned)

        lateral to injury No.3.

              (5)    Incised wound 1 x 1 cms penetrating

(torned) chest wall on the upper part back chest on the mid line.

(6) Incised wound 1 x 1 cms penetrating to chest wall on the back 1 cm above injury No.5.

              (7)    Incised wound 3 x 2 x 1 cm on the

        (torned) shoulder bridge.

              (8)    Incised wound 10 x 3 x 3 cms (torned)

the web of left palm between thumb and index finger cutting muscles.

(9) Incised wound 5 x = x 1 cm in the dorsum of the left hand."

5. PW14 immediately referred the deceased to the Government Wenlock Hospital, Mangalore as his condition was critical. He was taken to the Mangalore Hospital by Crl.A.1197/2009 : 5 : PW2, PW3, PW4 and PW6 and on the way to the hospital, the deceased succumbed to the injuries.

6. The local police conducted the investigation, which did not yield any result. Subsequently, the investigation was handed over to the Crime Branch.

7. At first, the investigation was conducted by PW19 Dy.S.P., who was the then Circle Inspector of Police.

Subsequently, the investigation was continued and completed by PW18, who filed the final report.

8. On the side of the prosecution, PWs 1 to 19 were examined and Exts.P1 to P29 were marked. As contradictions in the statements under Section 161 Cr.P.C., Exts.D1 to D3 series were marked on the side of the accused. MOs 1 to 5 were identified. The court below heard the prosecution and the defence and found that there were no grounds to acquit the appellant and the 2nd accused in the sessions case, under Section 232 Cr.P.C. and they were called upon to enter on their defence. No defence Crl.A.1197/2009 : 6 : evidence was adduced. Again, the prosecution and the appellant were heard. The court below acquitted the original 3rd accused, who is the 2nd accused in the sessions case, and found the appellant guilty of the offences punishable under Sections 302 and 153A IPC, convicted him thereunder, and sentenced him as aforesaid.

9. Heard the learned Senior Counsel Sri.B.Raman Pillai for the appellant and the learned Public Prosecutor Sri.Roy Thomas for the respondent. The learned Senior Counsel for the appellant has pointed out that there are no materials at all in this case to connect the appellant with the crime and the conviction is entered by the court below without any evidence, which has resulted in substantial miscarriage of justice. We have heard the matter in extenso.

10. The only available evidence in the matter as far as the prosecution is concerned, is the aforesaid contents of Ext.P17 wound certificate and the evidence of PW14. We Crl.A.1197/2009 : 7 : are satisfied that, that itself is not beyond any doubt. Ext.P17 does not show that the injured was conscious and oriented at the time when he was examined by PW14. Further, Ext.P17 clearly reveals that his pulse was feeble and not recordable. It seems that the B.P. has also not been recorded; evidently because the same might not have been recordable. PW14, when examined, has admitted that he has not stated in Ext.P17 that the history and alleged cause of injury noted by him was furnished by the injured.

11. On going through the evidence of PW6, it has come out that PW6 has got a specific case that on coming to know about the admission of the injured at the Taluk Head Quarters Hospital, Kasaragod, he rushed to the hospital and saw the injured and at that time, the injured was in unconscious condition. In the evidence of PW14, when he was subjected to cross examination, a specific question was asked as follows:- " Doctor, having sustained all the injuries noted in the wound certificate, is the patient Crl.A.1197/2009 : 8 : in a position to speak or even to open the mouth?". The answer was "No". It seems that even PW14 has admitted the fact that a person who has sustained these much of injuries cannot speak normally and he cannot even open his mouth. Coupled with the evidence of PW6, the said version of PW14 seems to be probable. More over, Ext.P19 shows that the heart of the deceased was empty and the peritonial cavity contained 1000 cc of blood and all the internal organs were pale. It seems that on account of the severe stab injuries, all of which are incised wounds, there was profuse bleeding. It definitely might have resulted in unconsciousness of the injured. The same is evident from the evidence of PW6, whose testimony is not challenged by the prosecution.

12. Ext.P19 was not proved by the person, who has conducted the autopsy, as he was no more. Ext.P19 was proved by PW17 by identifying the signature of the Doctor, who conducted the autopsy. It is true that PW17 has stated Crl.A.1197/2009 : 9 : in evidence that a person who had sustained the said injuries found on his body may be able to speak till 1 to 1= hours from the time of sustaining injuries. It seems that the court below has considered the history and alleged cause of injury noted by PW14 in Ext.P17 as a dying declaration made by the injured, when he was examined by him. Even if it is admitted, we are of the considered view that the same is not sufficient to connect the present appellant.

13. It seems that the name of the original 1st accused has been recorded by PW14. At the same time, as far as the present appellant is concerned, what is admittedly recorded as "Pakki Anda's son". It has come out in evidence that Pakki Anduman has got other sons also over and above the present appellant. The said Pakki Anduman is not cited or examined as a witness. Even if the said version noted by PW14 in Ext.P17 was narrated by the injured as a dying declaration, there is absolutely nothing to prove that the present appellant was the said person Crl.A.1197/2009 : 10 : intended by the said injured as the son of Pakki Anduman. Nobody has identified the appellant as a person, who hired the autorickshaw, travelled in it, or allegedly dragged down the deceased and inflicted injuries on him.

14. It seems that CW2 was cited as an occurrence witness. At the time of examination, he was no more and, therefore, he could not be examined. It seems that strangely the court below has put the portions of the statement of CW2 under Section 161 Cr.P.C. to the investigating officer and treated it as an evidence to connect the present appellant with the crime. It seems that in order to have an identification of the appellant, the court below has placed reliance on Section 161 Cr.P.C. statement of CW2. In the absence of any other evidence to connect the appellant with the crime, as rightly pointed out by the learned Senior Counsel, the conviction of the appellant is without any basis and without any evidence. Matters being so, we have no hesitation to find that the conviction and sentence passed by Crl.A.1197/2009 : 11 : the court below as against the present appellant have resulted in substantial miscarriage of justice and, therefore, the same are liable to be set aside.

In the result, this Criminal Appeal is allowed and the conviction and sentence passed by the court below are set aside. The appellant is acquitted. His bail bonds shall stand cancelled and he is set at liberty.

Sd/-

(V.K.MOHANAN, JUDGE) Sd/-

(B.KEMAL PASHA, JUDGE) aks/03/02 // True Copy // PA to Judge

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