Kerala High Court
B. Sundara vs State Of Bihar (Air 1976 Sc 2263) ... on 25 April, 2012
Author: C.K. Abdul Rehim
Bench: C.K.Abdul Rehim
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM
&
THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR
TUESDAY, THE 9TH DAYOF AUGUST 2016/18TH SRAVANA, 1938
CRL.A.No. 615 of 2012 ()
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AGAINST THE JUDGMENT IN SC 342/2007 of ADDL.DISTRICT COURT (ADHOC),
KASARAGOD DATED 25-04-2012
APPELLANT/ACCUSED:
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B. SUNDARA
AGED 58 YEARS, S/O. KANDA VELICHAPPATA,
SHANTI NAGAR, PAIVALIGE VILLAGE,
KASARAGODE.
BY ADV. SRI.T.G.RAJENDRAN
RESPONDENTS/COMPLAINANT & STATE
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1. THE CIRCLE INSPECTOR OF POLICE
KUMBLA-671321.
2. STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
BY PUBLIC PROSECUTOR ADV. SRI. ALEX M. THOMBRA
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 09-08-2016,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
AMG
C.K. ABDUL REHIM, J.
&
B. SUDHEENDRA KUMAR, J.
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Crl. Appeal No. 615 OF 2012
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DATED THIS THE 9th DAY OF AUGUST, 2016
J U D G M E N T
B. Sudheendra Kumar, J:
The accused in SC 342/2007 on the files of the Additional Sessions Court, Kasaragod filed this appeal challenging the conviction and sentence passed by the court below under Section 447 and 302 IPC.
2. The prosecution allegation is that on 14-12-2004 at about 7 a.m., the appellant trespassed in to the residential compound of deceased Mohana with the intention of committing murder of deceased Mohana. When deceased Mohana came out from his residence in response to the call made by the appellant, the appellant cut with an axe on the head and right shoulder of the deceased Mohana and as a consequence, Mohana sustained grievous injuries and he succumbed to the injuries on 16-12-2004 while undergoing treatment in Kasturba Medical College Hospital, Mangalore.
Crl. Appeal No. 615/2012 -2-
3. In connection with the above incident, PW1, who is the sister of the deceased gave Ext.P1 F.I. statement to PW12 and pursuant to Ext.P1 statement, PW12 registered Ext.P1 (a) F.I.R for offences under Section 447, 326 and 308 IPC. The initial investigation was conducted by PW14. He prepared Ext.P2 scene mahazer after visiting the place of occurrence. After getting Ext.P11 death intimation, he filed Ext.P12 report before the court for conducting investigation by adding Section 302 IPC, deleting Sections 326 and 308 IPC. Thereafter, the investigation was taken over by CW32 (not examined). CW32 conducted the inquest on the body of the deceased on 16-12-2004 between 2 p.m. and 4 p.m. and prepared Ext.P3 inquest report. CW32 arrested the appellant on 29-01-2005 at 3.30 p.m. and when questioned, the appellant had made Ext.P17 disclosure statement and pursuant to Ext.P17 disclosure statement and as led by the appellant, MO3 handle of the axe was discovered at the instance of the appellant by CW32. PW16 had taken over the investigation on 18-07-2005. After completing the investigation, PW16 filed the final report before the court. Crl. Appeal No. 615/2012 -3-
4. Before the court below, PW1 to PW17 were examined and Exts.P1 to P24 were marked for the prosecution, besides identifying MO1 to MO5. DW1 was examined and Exts.D1 and D2 were marked for the appellant. After evaluating the evidence, the court below found the appellant guilty under Sections 302 and 447 IPC and convicted him thereunder and sentenced him to imprisonment for life and a fine of Rs.10,000/- with a default clause for rigorous imprisonment for one year under Section 302 IPC and rigorous imprisonment for three months under Section 447 IPC.
5. We have heard the learned counsel for the appellant Sri. T.G. Rajendran and the learned Public Prosecutor Sri. Alex M. Thombra
6. PW1 was examined by the prosecution to prove the occurrence. PW1 is the sister of the deceased. She stated that on 14-12-2004 at about 7 a.m. the incident occurred. She witnessed the incident. The incident occurred near to the well situated near to the house of her mother. While she was making tea, she heard somebody calling Crl. Appeal No. 615/2012 -4- deceased Mohana. She came out. Then she found that it was the appellant. Deceased Mohana came out. At that time, the appellant said that he would deal with Mohana. The appellant was having an axe with him. The deceased Mohana went inside the house and brought a knife and he approached the appellant. Then the appellant inflicted injuries on the deceased with the axe. At that time, the deceased brandished the sword possessed by him and as a consequence, the appellant sustained injury on his left hand. The deceased fell down and he became unconscious. The axe fell down at the place of occurrence from its handle. The appellant had run away with the handle of the axe. The deceased was taken to the hospital. However, he succumbed to the injuries while undergoing treatment in the hospital. PW1 had given Ext.P1 statement before the police in connection with the incident . She identified MO1 axe used by the appellant to inflict injuries on the deceased. She also identified MO2 series of chappels and MO3 handle. PW2 and PW3 were occurrence witness examined by the prosecution to prove the occurrence. Both PW2 and PW3 Crl. Appeal No. 615/2012 -5- had only hearsay information regarding the occurrence. However, PW2 and PW3 stated about the motive for the occurrence.
7. PW10 was the Doctor who examined deceased Mohana and issued Ext.P5 wound certificate. PW10 noted the following injuries on the body of the deceased:-
1. Comminuted fracture of frontal bone.
2. sub arachnoid haemorrage with diffuse cerebral oedema.
3. Multiple lacerations of scalp over the frontal region.
4. Laceration of skin 4 c.m. X 3 c.m. over the right shoulder region.
PW10 stated that injury Nos.1 and 2 referred to in Ext.P5 wound certificate were grievous in nature.
8. PW17 was the Doctor, who conducted autopsy on the body of the deceased and issued Ext.P24 post mortem certificate. PW17 noted the following ante-mortem injuries on the body of the deceased.
" 1. Surgically sutured wound of size 6 cm situated obliquely over the left frontal region, anterior part is 6.5 cm above left eyebrow and 3 cm away from midline.
Crl. Appeal No. 615/2012 -6-
2. Surgically sutured wound of size 3 cm situated 2.5 cm left to injury No.1 and anterior end is 8cm above eyebrow.
3. Surgically sutured wound of size 2 cm with 2 stitchs situated in the top of head on midline.
4. Surgically sutured wound of size 2 cm with one stitch situated 2 cm in front of injury No.3.
5. Surgically sutured wound of size 2 cm with 2 stitches situated 7 cm above right ear.
6. Surgically sutured wound of size 2 cm with 2 stitches obliquely placed in right frontal area, 8cm above eyebrow and 4.5cm medial to injury No.5.
7. Surgically sutured wound of size 4 cm with 3 stitches in right parietal area, 11cm above right ear.
8. Cut wound, 2cm long obliquely placed over right parietal eminence.
9. Abrasion of size 0.5 X 0.2 cm each present just above medial end of right eyebrow.
10. Curvilinear Surgically sutured wound of size 8 cm with 6 stitches situated on the top of right shoulder.
11. Two abrasions, 0.2 & 0.2 cm each present on the outer aspect of right elbow.
12. Abrasion of size 2 X 2 cm present on the back of right elbow.
13. Abrasion of size 2 X 2 cm present 3 cm above the back of right elbow.
Crl. Appeal No. 615/2012 -7-
14. Needle puncture wounds are present on the outer aspect of right forearm.
15. Abraded contusion 2.5 X 0.5 cm. present on the outer aspect of left arm, 16 cm below shoulder.
16. Contusion 3 x 1 cm present on the back of left forearm, 2 cm below elbow.
17. Abrasion 1 X 1 cm present 1 cm above the back of left elbow.
18. Contusion 1 X 1 cm present on the back of trunk 2 cm left to midline, 12 cm above iliac crest.
19. Contusion 5 x 5 cm situated in front of chest in midline at the level of nipple."
PW17 stated that injury Nos.1 to 8 and 10 could be caused with MO1 axe. It is further in the evidence of PW17 that the deceased died of cranio cerebral injuries (head injuries) sustained by him.
9. In this case, the prosecution relies on the evidence of PW1 and PW16 and the recovery of MO1 axe to prove its case. The prosecution also relies on medical evidence to support the evidence of PW1.
10. The learned counsel for the appellant has argued that eventhough the deceased had sustained very severe injuries in the incident, the prosecution did not explain as to Crl. Appeal No. 615/2012 -8- how the said injuries were sustained by the appellant and in the said circumstances, it has to be held that the prosecution has withheld the origin and genesis of the case. The learned counsel relied on various decisions of the Apex Court to support his argument.
11. The Apex Court in Lakshmi Singh and others V. State of Bihar (AIR 1976 SC 2263) observed thus:-
"It seems to us that in a murder case, the non- explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:
(1) That the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version:
(2) that the witness who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable.
(3) that in case there is a defence version which explains the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case."
In Moideenkutty V. State of Kerala (2005 KHC 1825), the accused sustained a lacerated and incised injury on his neck measuring 8x1x1cm. The injury sustained by the accused in that case was a very serious one. The accused was also Crl. Appeal No. 615/2012 -9- treated in the hospital as inpatient and there were medical records to prove the same. However the prosecution did not incline to produce the wound certificate and other medical records before the court to prove the injury sustained by the accused. The prosecution also did not explain as to how the accused therein sustained injury. In the said circumstances, this court held that the prosecution had suppressed the factum of the accused sustaining injuries in the same occurrence. The Apex Court in State of M.P. V. Mishrilal (dead) and others (JT 2003 (3) SC 550) observed in paragraph 19 thus:-
"In Ext P1, as already noticed, there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Misrilal were dangerous to life. The prosecution witnesses consist of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case".
The learned Public Prosecutor relied on the decision of the Apex court in Inder Singh and others V. State of Crl. Appeal No. 615/2012 -10- Rajasthan (2015 KHC 4009 = 2015 (2) SCC 734) and argued that since the prosecution has come out with the convincing evidence of PW1, the non-explanation of the injuries sustained by the appellant is not at all material particularly when the prosecution had produced Ext.P6 wound certificate of the appellant. In Inder Singh (supra), the Apex Court held that if the injuries were neither fatal nor they caused any threat to life, the burden upon the prosecution to explain the injuries on the accused would be reduced particularly when there was no counter version for the appellant.
12. A Division Bench of this court in Vijayan V. State of Kerala (2015 KHC 416) held that when the prosecution comes with a definite case that the offence has been committed by the accused and proves its case beyond any reasonable doubt, it becomes hardly necessary for the prosecution to again explain how and under what circumstances injuries have been inflicted on the person of the accused particularly when the injuries are trivial in nature.
Crl. Appeal No. 615/2012 -11-
13. In this case, Ext.P6 is the wound certificate showing the injuries sustained by the appellant. PW11 was the Doctor who examined the appellant on 14-12-2004 at about 8.30 a.m. and issued Ext.P6 wound certificate.
14. The following injuries were noted by PW11 in Ext.P6 wound certificate:- (1) one incised wound of 1c.m. X 0.5 c.m. over left side of face. (2) cut injury left wrist and (3) cut injury left shoulder with bone exposed and cut.
15. PW11 stated that he was not in a position to state as to whether injury Nos.2 and 3 were grievous in nature or not as he did not explore the wound. However, PW11 stated that injury No.3 is possible with severe blow with a sword and injury No.2 is possible during defending a cut with a sword. It is clear from the evidence of PW11 coupled with Ext.P6 that the appellant sustained two cut injuries in the incident. One of the cut injuries was having the bone exposed and cut. The said injury cannot be said to be a simple injury.
16. In connection with the incident in this case, two crimes were registered by the police. One was Crime Crl. Appeal No. 615/2012 -12- No.532/2004 which is the present case and the other was Crime No.533/2004 registered against the deceased. In Crime No.533/2004, the police after completing the investigation came to the conclusion that there were materials to file final report before the court under Section 326 IPC. However, since the accused therein, who is the deceased in this case, was no more, the police filed a report before the court for treating the charge as abated. It is clear from Ext.D1 that there was an accusation against the deceased for the offence under Section 326 IPC. This would also show that the deceased inflicted grievous injuries on the accused herein. Exhibit D1 would show that the investigation conducted by the police resulted in arriving at a conclusion by the police that there were materials to file final report for the offence under Section 326 IPC. From Ext.D1 also, it is clear that the injuries sustained by the appellant were grievous in nature. It is true that PW1 stated before the court about one of the injuries sustained by the deceased. PW1 stated that after sustaining injuries by the deceased, the deceased brandished the sword which Crl. Appeal No. 615/2012 -13- hit on the left hand of the appellant and as a consequence, the appellant sustained injury on the hand. However, PW1 clearly stated in Ext.P1 that PW1 was not aware as to whether the appellant sustained any injury or not. If PW1 had omitted to mention the injuries sustained by the appellant in the F.I.R., that could have been considered as an inadvertent omission due to the mental condition of PW1. However, PW1 clearly stated that PW1 was not aware as to how the appellant sustained injuries in the incident, eventhough PW1 narrated all other aspects in Ext.P1 statement. PW1 further stated that the deceased had left the sword at the place of occurrence which was thrown away by PW1. Since PW1 had initially stated that she was not aware as to how the appellant sustained injuries, it has to be held that the subsequent evidence by PW1 before the court explaining one of the injuries sustained by the appellant cannot be accepted without any corroborative piece of evidence. At this juncture, it is pertinent to note the evidence of PW16 who is the investigating officer in this case. PW16 stated after referring the case diary of both the Crl. Appeal No. 615/2012 -14- cases that he could not state as to who the aggressor was. The evidence of PW16 would further show that no investigation was conducted with regard to the sword allegedly thrown away by PW1. It is true that the prosecution produced Ext.P6 wound certificate to show that the deceased sustained injuries. However, the investigation conducted by PW16 could not explain as to how the appellant sustained the injuries.
17. At this juncture, it is profitable to mention the decision of the Full Bench of this court in Augustine V. State (1982 KLT 351 = 1982 KHC 84). In the said decision, this court held that if in respect of the same transaction relating to an offence, a case and a counter case happen to be registered by the police, based on conflicting versions given by rival persons, it is not incumbent on the part of the investigating officer to file separate charge-sheets in both the cases and the investigating officer is expected to file a charge-sheet only in the case where it appears to him as a result of investigation that an offence has been committed. The Apex court in State of M.P. V. Mishrilal (dead) and Crl. Appeal No. 615/2012 -15- others (supra) observed thus:-
"In the instant case, the investigating officer submitted the challan against both the parties. Both the complaints cannot be said to be right. Either of them must be false. In such a situation, legal obligation is cast upon the investigating officer to make an endeavour to find out the truth and to cull out the truth from the falsehood. Unfortunately, the investigating officer has failed to discharge the obligation, resulting in grave miscarriage of justice."
18. In the instant case, eventhough Ext.P6 was produced and proved through PW11 by the prosecution, PW16 did not conduct any investigation to ascertain the truth involved in this case. Instead of ascertain the truth, the investigation was conducted after registering both crimes and thereafter, the investigating officer came to the conclusion that there were materials in both crimes to file final report relating the offences concerned. In view of the separate investigation conducted by PW16 without ascertaining the truth involved in this case, PW16 was not able to give evidence with regard to many material aspects connecting both the cases. PW16 could not state who the aggressor was. PW16 also could not state as to what happened to the sword allegedly used by the deceased to Crl. Appeal No. 615/2012 -16- inflict injuries on the deceased. Having gone through the relevant inputs, we are satisfied that the evidence of PW1 explaining one of the injuries sustained by the appellant on his hand cannot be accepted as the explanation given by the prosecution, as PW1 had categorically stated at the time of giving Ext.P1 statement that she did not know as to how the appellant sustained injuries. There is no other evidence to explain the injuries sustained by the deceased. PW16 also could not explain the injuries sustained by the appellant in the same transaction. The appellant sustained one incised wound and two cut injuries. One cut injury was on his left wrist, which might have been sustained as stated by PW1. However, the other cut injury exposing and cutting the bone of the shoulder of the appellant and the incised wound sustained by the appellant on his face could not be explained by the prosecution. Having gone through the evidence of PW1, we are satisfied that PW1 could not state as to how the appellant sustained two of the three injuries. Therefore, PW1 was either not present at the scene of occurrence or PW1 was not stating the truth before the Crl. Appeal No. 615/2012 -17- Court. Having meticulously scrutinized the evidence of PW1, we are of the considered view that the evidence of PW1 does not inspire confidence. From the evidence on record, we are of the considered view that the prosecution withheld the true origin and genesis of the transaction involved in this case. The above finding by this court is fortified by Ext.D1 as well.
19. The next piece of evidence relied on by the prosecution is the discovery of MO3 handle of the axe pursuant to Ext.P17 disclosure statement given by the appellant. Admittedly, no disclosure statement was given to PW16 by the appellant. According to PW16, the appellant had given disclosure statement to CW32 and pursuant to the said disclosure statement, CW32 discovered MO3 at the instance of the appellant. CW32 was not examined before the court.
PW16 did not state that PW16 was present when the appellant had given Ext.P17 disclosure statement to CW32. This would show that the
investigating officer to whom the statement was allegedly Crl. Appeal No. 615/2012 -18- given by the appellant was not examined. In the said circumstances, the statement alleged to have been given to CW32 by the appellant cannot be proved by examining PW16. In the said circumstances, it cannot be said that there was any discovery of MO3 handle of the axe at the instance of the appellant as provided under Section 27 of the Evidence Act. In other words, it has to be held that the prosecution could not establish that MO3 handle of the axe was discovered at the instance of the appellant pursuant to the disclosure statement given by the appellant. Therefore, the detection of human blood on MO3 is of no consequence. There is no other evidence to connect the appellant with the commission of the offence.
20. Having carefully gone through the evidence on record, we are satisfied that the prosecution could not establish that the appellant committed the offence under Sections 447 and 302 IPC and in the said circumstances, the verdict of guilty, conviction and sentence passed by the court below cannot be sustained.
Crl. Appeal No. 615/2012 -19-
21. In the result, this appeal stands allowed, setting aside the conviction and sentence passed by the court below under Sections 447 and 302 IPC and the appellant is acquitted for the said offences. The appellant is in jail. Therefore the appellant shall be released forthwith, if his detention is not required in connection with any other case.
Sd/-
C.K. ABDUL REHIM, JUDGE.
Sd/-
B. SUDHEENDRA KUMAR, JUDGE.
AMG True copy P.A. to Judge