Document Fragment View

Matching Fragments

8. We also heard at length the learned Senior Counsel appearing for the accused/respondents Sri.B.Raman Pillai. He stressed much on the favorable aspect of double presumption of innocence available to the accused on acquittal by the trial Court. According to him, the Court below arrived at a just conclusion by analyzing the oral and documentary evidence available in this case. The Court below had the opportunity to witness the demeanor of the witnesses as well. Evidence in its totality is taken, discussed, analyzed and appreciated and then only the Court had come to the above conclusion. It is settled position that the appellate Courts should be reluctant to interfere in the judgment of acquittal by the lower Court. It is not to be reversed just because another view is possible or to say a more probable view is possible. There is absolutely no error on the side of the Court below in arriving at a conclusion that the prosecution has miserably failed to prove its case. It is argued that the conduct of Crl.Appeal (V) No.1445/12 & the prosecution itself was not impartial as the Special Public Prosecutor appointed to conduct the case was a private Counsel of PW2. PW2 is the brother of the deceased. He was keeping animosity towards A1. What PW2 deposed in Court was entirely different from his FIS version. Trial Court had the privilege to watch the demeanor of the witnesses and considering all those, the Court below came to a conclusion that the prosecution miserably failed to prove the case against the accused. The acquittal was a well-considered, well-reasoned one and it need not be interfered with by this Court. The father of the deceased and PW2, Mr.Devadas was not examined. The Doctor at Tiraviyam hospital was also not examined. The prosecution avoided these key witnesses who could give a picture about the incident which aspect should go against the prosecution and the Court below was justified in considering these aspects among other flaws in the prosecution case. Two scene plans were prepared. But there is absolutely no evidence that there was light in front of the house of A1. Prosecution does not have a case that there was at least moonlight. The story that there was starting trouble for the car was incorporated in the prosecution story only to make the Crl.Appeal (V) No.1445/12 & Court believe that ,at the time of incident, the car was not in switch off mode and there was light from its headlight. Exts.P2, P3, P13 and P14 would not reveal that there was a light source. There is uniform improvement of case by the prosecution witnesses. The evidence of PW12, Assistant Executive Engineer of KSEB and Ext.P12 document is not admissible as it is hit by S.162 Cr.P.C. Court below found out that there was no light and hence the witnesses would not have witnessed the incident. Nothing is stated in the scene mahazar about the light source. Ext.P21 complaint shows that PW2 has utmost animosity to A1. The deposition of DW1, the wife of the deceased is credible and it is consistent with the version of the defence. Previous statements were changed and witnesses lied. PW3 is the friend and relative of PW2 and is an interested witness. His father was the ASI of Police at the relevant time. His conduct at the scene of occurrence is so strange and abnormal. According to PW3, he was standing as a mere spectator throughout the incident. The brother of PW4 is the classmate of the deceased. Ext.D1 contradiction is marked through PW4. According to PW4, A1 and A2 attacked PW2 and the deceased interfered and got injured and Crl.Appeal (V) No.1445/12 & came back in two seconds. It is not at all believable. Prosecution examined PW9 the Doctor who treated PW2 at Government Taluk Hospital, Neyyattinkara. MO1 was not even shown to the said witness. Also there is not even a suggestion that stab is caused using MO1. The Investigating Officer had to depose the contents of the scene mahazar, not the witnesses and hence it cannot be treated as evidence. Exts.P4(a), P5(a) and P10(a) are not admissible. According to the learned Senior Counsel, the versions of PW2 and PW3 cannot be believed. PW3's version is not corroborating the version of PW2. PW4 deposes that he saw the incident with the help of light from the lamp at A1's gate. He did not depose about the availability of light from the headlight of the car. There is no evidence to show as to who caused the provocation. Admittedly, there was a scuffle. It is in the deposition of PW4 that A1 and A2, after the incident came near to the car and uttered: " Let no one come near". The said version is an omission as it did not find a place either in section 161 statement or in the statement before the Magistrate. Police did not produce the car before Court. It is difficult to believe that the Doctor after examining the injured, gave MO9 bed sheet to the Crl.Appeal (V) No.1445/12 & victim on their way to Medical College Hospital. There was power cut during the time of alleged incident and hence the witnesses could not identify who inflicted the injury upon the deceased. PW4 stated that he was inside the car while the incident took place. Later he deposed that he cried aloud and PW3 came there hearing it. Regarding how the injury was inflicted on PW2, the witnesses have different versions both as to the force with which the stabbing was done and also the posture at which injury was inflicted on PW2. PW16, the Investigating Officer, recovered MO2 handle of the spade from the compound of A1's house, which is an open place and hence the recovery is not proper. It is only in 2005, that too by another investigating officer PW17, the lorry was recovered. Lorry driver and other relevant witnesses were not examined. There are material contradictions in Ext.P2, FIS of PW2 and his deposition in Court. They are full of embellishments and improvements. There is absolutely no circumstance to even look into the judgment of the lower Court as it is just and fair and hence it must be confirmed. He placed reliance on the following judgments to substantiate his arguments:

(x) Through Ext.P21 mahazar, on 20.09.03 at 09.30 a.m., PW16 seized Ext.P1(a) complaint lodged by A1 against PW2.

(xi) Ext.P13 is the scene plan prepared by PW13 Village Officer.

(xii) Ext.P12 is the report marked through PW12 with regard to the load-shedding in the area of place of occurrence.

(xiii) Ext.P6 is the post-mortem certificate proved through PW8 the Doctor who conducted the autopsy. According to her, cause of death is the incised injury sustained on the chest of the victim involving axillary artery leading to massive bleeding.

(iii) The prosecution failed to prove that PW2 sustained stab injuries by A1 as alleged by them.
(iv) In 161 statements of PWs 2 to 4, nothing was spoken about the light available to see the incident. It is an omission amounting to contradiction. If there was light from the headlight of the car and from the pillars of the gate as contended by the prosecution, definitely that should have found a place in Ext.P2 FI Statement. In Ext.P3 scene mahazar and two scene plans Exts. P13 and 14, there was no mention about the source of light. Also, from the depositions of PW2, PW4 and PW12 it is revealed that during the relevant period, there was power cut in the said area. Evidence of PW12 and Ext.P12 shows that at the relevant time i.e., on 18.09.2003, the load-shedding time of Pozhiyoor Feeder was from 19.00 hrs to 19.30 hrs. There was no evidence to prove that the place of Crl.Appeal (V) No.1445/12 & occurrence comes under Pozhiyoor feeder at the relevant time. Even in the absence of the said light, though it is possible for the witnesses to see the incident since the accused are closely related, the prosecution has no case that they saw the incident in the moonlight.

34. Another circumstance relied upon by the Court is Crl.Appeal (V) No.1445/12 & regarding the source of light for seeing the incident. Of course, in Ext.P3 scene mahazar, nothing is stated about the existence of lamp. As rightly pointed out by the learned Sessions Judge, the two scene plans prepared by Village Officers and marked as Exts.P13 and P14 also do not contain any material to indicate the source of light in the area. The source of light has been spoken to by PW2 to PW5, but it is treated as an omission which amounts to contradiction. However, even in the absence of any light, all the parties are known to each other and their presence had been admitted by the accused. That apart, PW4 has given evidence stating that the headlight of the car was on and therefore sufficient light was always available to witness the incident.