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2003 DIGILAW 400 (KER)

Jaimy v. The State Of Kerala

2003-06-23

K.A.ABDUL GAFOOR, N.KRISHNAN NAIR

body2003
Judgment :- Krishnan Nair, J. This appeal is directed against the judgment dtd.29th January 2001 of the 1st Addl. Sessions Judge Ernakulam in S.C.No.68/1997. The appellant and 7 others were charged with the offences punishable under sections 143, 147, 148, 341, 323, 324 and 302 read with Section 149 of the Indian Penal Code. After the trial, the learned Addl. Sessions Judge found the appellant (first accused) guilty of the offences punishable under Section 302 and 341 of the IPC. He was sentenced to undergo imprisonment for life and to pay a fine of Rs. 50,000/- in default to undergo rigorous imprisonment for two years under section 302 of the IPC and to undergo simple imprisonment for one month under Section 341 of the IPC. The sentences were allowed to run concurrently. Accused Nos.2 to 8 were found not guilty of the offences and they were acquitted. The order of conviction and sentence passed against the appellant is seriously challenged in this appeal. 2. The prosecution story runs in the following lines. On 17.3.1996, accused Nos.1 and 3 in this case attacked Pw4 Manoj. The said Manoj lodged a complaint before the police. The accused were under the impression that deceased Unni @ Jeemon had pointed out the house of the first accused to the police during investigation. On account of this, the accused were nursing a grudge against Unni. On 18.3.1996 at about 6.30 p.m., accused Nos.1 to 4 were waiting on the road in front of the house of the deceased while accused Nos.5 to 8 were waiting for him on the western side his house. The deceased Unni came to the spot on a motor cycle and immediately the accused surrounded and assaulted him by fists. Thereafter the first accused stabbed the deceased with a dagger on the left side of his chest and on the right forearm. The deceased was taken to the City Hospital, Ernakulam. While undergoing treatment in the hospital, the deceased succumbed to the injuries at 1.45 a.m on 21.3.1996. 3. On the basis of Ext.P8 information given by PW13 Martin, PW17 registered crime No.50/1996 under Ext.P8 (a) FIR. PW18, the Circle Inspector, Ernakulam Town North Police Station took up the investigation in the case. Dr. Satheesh Babu conducted autopsy on the dead body and issued Ext.p11 Post Mortem Certificate. On the basis of the information furnished by the first accused. On the basis of Ext.P8 information given by PW13 Martin, PW17 registered crime No.50/1996 under Ext.P8 (a) FIR. PW18, the Circle Inspector, Ernakulam Town North Police Station took up the investigation in the case. Dr. Satheesh Babu conducted autopsy on the dead body and issued Ext.p11 Post Mortem Certificate. On the basis of the information furnished by the first accused. M.O.3 knife was recovered. After completing the investigation, PW18 laid the charge before the court. 4. The accused denied the charge. In order to prove the guilt of the accused, PWs.1 to 18 were examined, Exits.P1 to P24 were marked and Mos. 1 to 7 were identified. Ext.C1 was marked as Court Exhibit. The defence marked Exts.D1 to D2 (b). On an elaborate consideration of the evidence, the learned Addl. Sessions Judge found the first accused (appellant) guilty of the offences under Section 302 and 341 of the IPC, convicted him and sentenced him as stated earlier. 5. The learned counsel for the appellant strongly contended that the Court has seriously erred in placing reliance on the evidence of a hostile witness to convict the appellant. According to him, the lower court should have found that the discrepancy between the FIR and the prosecution version of the occurrence before the court casts doubt on the veracity of the prosecution case. He further contended that the lower court should have found that the death could have been prevented, if proper and adequate medical treatment were given to the deceased at the hospital. He also contended that the court below has not properly scanned or weighed the evidence in the case. On the other hand, the learned public prosecutor supported the impugned judgment and urged that there is no ground for interference. 6. It is not disputed that Unni @ Jeemon died on 21.3.1996 at 1.40 a.m. while he was undergoing treatment in the City Hospital, Ernakulam. It is in evidence that on 21.3.1996 at 11.30 a.m., Dr.Satheesh Babu, police surgeon conducted autopsy on the dead body of the deceased. Ext.P11 is the Post Mortem Certificate. As Dr.Satheesh Babu was not available for examination, PW16 Dr.Govindan was examined. On a consideration of the evidence of Pw.12, Pw.16 and Exts.P11, the lower court found that the deceased had a homicidal death. We see no reason to take a different view. 7. Ext.P11 is the Post Mortem Certificate. As Dr.Satheesh Babu was not available for examination, PW16 Dr.Govindan was examined. On a consideration of the evidence of Pw.12, Pw.16 and Exts.P11, the lower court found that the deceased had a homicidal death. We see no reason to take a different view. 7. Then the question for consideration is whether the first accused was the author of the injuries sustained by the deceased, which resulted in his death. Pw13 Martin who gave Ext.P8 information is the eyewitness to the occurrence. He was asserted in his evidence that on 18.3.1996 at about 6.30 p.m. while he was in front of the Geetha Cottage Industry, he saw the accused beating and fisting the deceased Unni. According to him, when Unni cried out for help, the first accused took a knife from his waist and stabbed Unni on the left side of his chest. On receipt of the stab injury, Unni fell on the road. When people gathered at the scene of occurrence, the accused ran away from the scene. He has also stated that Unni was taken to the City Hospital, Ernakulam in a car and he had undergone an emergent surgery. In cross-examination Pw13 stated that the second accused who is the brother of the first accused was not known to him. Therefore, he was declared hostile to the prosecution. The learned counsel for the appellant strongly contended that no reliance could be placed on the evidence of Pw13 since he was declared hostile to the prosecution. In this case, the public prosecutor sought the permission of the court to declare him hostile on the ground that he did not identify the other accused. We have scrutinized the evidence of Pw13 and found that he had fully supported the prosecution case that it was the first accused who inflicted the stab injuries on the deceased. The part of deposition is found to be trustworthy. Merely because a witness is declared hostile or he does not identify some of the assailants, his evidence cannot be wiped out. In this connection, it is relevant to note the following observations of the Supreme Court in Gura Singh v State of Rajasthan (AIR 2001 SC 330) “There appears to be misconception regarding the effect on the testimony of a witness declared hostile. It is a misconceived notion that merely because a witness is declared hostile. In this connection, it is relevant to note the following observations of the Supreme Court in Gura Singh v State of Rajasthan (AIR 2001 SC 330) “There appears to be misconception regarding the effect on the testimony of a witness declared hostile. It is a misconceived notion that merely because a witness is declared hostile. It is a misconceived notion that merely because a witness is declare hostile is his entire evidence should be excluded or rendered unworthy of consideration”. In Anil Rai v State of Bihar (2001(7) SCC 318), the Supreme Court held that ‘Merely because a witness has been declared hostile because of his not mentioning the name of one of the accused, his entire evidence can not be wiped out. 8. In this case, we are of the view that evidence of Pw13 can be relied upon to hold that it was the first acused who stabbed the deceased since his evidence is to a limited extent corroborated by the evidence of Pw1 and Pw2. No doubt, Pw1 was not a witness to the stabbing incident. According to her, at the time of the incident, she was in the shop and on hearing an out cry, she rushed to the spot of occurrence and saw the accused fleeing away from the scene. She has also stated in her evidence that the first accused was holding a knife in his hand. She added that Unni told her that the first stabbed him. She would also say that on the next day of the occurrence, she met deceased Unni in City Hospital, Ernakulam along with her parents and at that time the deceased narrated the incident to them. 9. Pw2 Xavier was working in a shop at palarivattom at the time of the incident. According to him, on 18.3.1996 at about 6.30 p.m. while he was in Unni’s shop, he heard a cry form outside. Then he saw four persons running away from the place and he identified them a Accused Nos. 1 to 4. He would further say that the first accused wielded a knife when he left the place. The learned counsel for the appellant contended that the presence of this witness at the time of the occurrence, in Unni’s shop was not probable and he is a got up witness. 1 to 4. He would further say that the first accused wielded a knife when he left the place. The learned counsel for the appellant contended that the presence of this witness at the time of the occurrence, in Unni’s shop was not probable and he is a got up witness. Pw2 has given cogent explanation for his presence in the shop at the time of the occurrence. The learned counsel also pointed out that Pw2 was involved in a criminal case and the locality. It is true that he was convicted in a criminal case. But he was released on probation. Merely because Pw2 was an accused in a criminal case, it cannot be said that he is not a truthful witness. The evidence of PW3 would show that PWs.1 and 3 were present at the scene of occurrence immediately after the stabbing incident. Pw3 is conducting an Automobile work shop in the building owned by deceased Unni. His workshop is very close to the Geetha cottage conducted by the deceased. He stated that while he was in his shop, he heard a loud cry and when he came out of the shop, he saw the deceased lying on the lap of PW1 and he along with Pw13 took the deceased to the City Hospital. 10. The prosecution has also a case that the first accused had the motive to kill the deceased. According to the prosecution, the first accused was nursing a grudge against the deceased since he was under the impression that it was the deceased who had helped the police to find out his house while the police was enquiring into allegations in the complaint filed by Pw4 against him and third accused. Pw4 has stated in his evidence that he preferred Ext. P1 complaint before the police against the first and third accused in the case alleging that on 17.3.1996, he was attacked by them. Pw5 was a police constable attached to the Ernakulam Town North Police Station. He would say that on 18.3.1996, the sub Inspector of police handed over Ext.P1 complaint to him for enquiry and report. According to him, the deceased Unni helped him to find out he house of accused No.1 Jimmy. The learned counsel for the appellant contended that the motive alleged by the prosecution is feeble. He would say that on 18.3.1996, the sub Inspector of police handed over Ext.P1 complaint to him for enquiry and report. According to him, the deceased Unni helped him to find out he house of accused No.1 Jimmy. The learned counsel for the appellant contended that the motive alleged by the prosecution is feeble. Even if it is assumed that the motive alleged by the prosecution is feeble, the motive is irrelevant in this case, since there is reliable and acceptable evidence of eyewitness pointing against the first accused. 11. Another item of evidence relied on by the prosecution is the recovery of M.O.3 knife on the basis of the information furnished by the first accused PW18, the investigating officer has asserted in his evidence that pursuant to the statement given by first accused, M.o.3 knife was recovered under Ext.P4 mahazar. According to him, when the first accused was questioned, he told him that he had concealed the knife on the top of the kitchen wall of an uninhabited house located on the north of Deshabhimani press, kaloor. He would further say that when the first accused was taken to the said house, he took out the knife which was concealed on the top of the kitchen wall of the house. The learned counsel for the appellant strongly contended that no reliance could be placed on the evidence of PW18 regarding the recovery of M.O.3 since the evidence is not confirmed and corroborated by the attesting witnesses to Ext. P4 mahazar. PW8 Johny was an attestor to Ext.P4. He had to admit his signature in Ext.p4. He has stated that when M.O.3 Knife was recovered, the first accused was present along with the police officers. But he would say that he saw the police officers taking out a knife from the beam. PW15 Benoy is another witness to Ext.P4. It is true that this witness could not identify the first accused before the court. But he has identified M.O.3 knife as the one recovered at the instance of a young man. Even though the evidence of PW18 is not fully corroborated and confirmed by the evidence of PWs.8 and 15, their evidence would show that on the alleged date and time, M.O.3 was recovered from the house and the first accused was present along with the police officers. Even though the evidence of PW18 is not fully corroborated and confirmed by the evidence of PWs.8 and 15, their evidence would show that on the alleged date and time, M.O.3 was recovered from the house and the first accused was present along with the police officers. It is settled position that if the evidence of the investigating officer who effected the recovery is acceptable and reliable, the evidence as to the recovery need not be rejected merely on the ground that seizure witnesses do not support the prosecution version. In Mohammed Aslam v State of Maharashtra (2001(9) SCC 362), the Supreme court held that the evidence of a police officer effecting recovery is not vitiated by reason of panch witnesses hostile. 12. Another infirmity pointed out by the learned counsel is that learned counsel counsel is that the recovery was effected from a place accessible to others. He also contended that the uninhabited house from where the alleged recovery of M.O.3 knife was made was easily accessible to the public and it was being used by several persons for antisocial activities. We see no force in this contention also. It is gatherable form the prosecution evidence that M.O.3 knife was recovered from the top of the kitchen wall of that house. Only a person who had knowledge of the concealment could take it out. In this connection, it is also relevant to note the decision of the Supreme Court in State of Maharahstra v Bharat Fakira Dhiwar (AIR 2002 SC 16). In that case it has been held by the supreme court that merely because the recovery was made from an open space or an accessible place, the evidence would not become unreliable when the article was concealed there. 13. It is also contended by the learned counsel for the appellant that the absence of blood stains in M.o.3 casts doubt on the veracity of the prosecution case. No doubt, Ext.P19 analysis report would show that no blood was found in M.O.3 knife. But PW18 has stated in his evidence that the first accused had told him that before concealing the knife, he washed it. If that be so, non-existence of blood in M.O.3 was quite natural. As observed by the court below, merely because blood was not found in M.O.3 knife, its recovery cannot be doubted. 14. But PW18 has stated in his evidence that the first accused had told him that before concealing the knife, he washed it. If that be so, non-existence of blood in M.O.3 was quite natural. As observed by the court below, merely because blood was not found in M.O.3 knife, its recovery cannot be doubted. 14. The learned counsel for the appellant lastly contended that even if it is assumed that the first accused in the case was the author of the injuries on the deceased, he is not liable for the offence of murder. According to the learned counsel, in this case, the death could have been prevented, if proper and adequate medical treatment was given to the injured. He pointed out that after receiving the stab injury on 18.3.1996,t he deceased survived up to 1.40 a.m. on 21.3.1996. According to the learned counsel, the possibility of developing nosocomial infection by the deceased Unni from the hospital cannot be ruled out in this case. He further submitted that the failure of the prosecution to examine the doctor who treated the deceased and also nonproduction of the case sheet before the court are fatal to the prosecution. The prosecution relies on the evidence of PW12, Dr.Lissy Cletus to show that there was no chance of developing noso comial infection by the deceased while he was in the city Hospital, Ernakulam. In our view, Ext.P11 post Mortem Certificate also rules out any possibility of infectious death in this case. In Ext.P11 post Mortem Certificate, Injury No.3 is sutured surgical curved incised wound. No sign of any infection is mentioned in Ext.P11. PW16 Dr.Govindan has stated in his evidence that signs of infection is recognizable at the time of autopsy by the discovery of septic changes. He further stated that it is seen from Ext.P11 post Morten Certificate that all the wounds were slightly healed. He could not find any evidence of infection or septicemia. In view of the evidence of PWs.12 and 16, we are not inclined to accept the contention of the learned counsel for the appellant that the failure of the prosecution to examine the Doctor who treated the deceased and also the nonproduction of the case sheet before the court are fatal to the prosecution case. In view of the evidence of PWs.12 and 16, we are not inclined to accept the contention of the learned counsel for the appellant that the failure of the prosecution to examine the Doctor who treated the deceased and also the nonproduction of the case sheet before the court are fatal to the prosecution case. In this case, medical attention had been afforded to the deceased at the earliest possible opportunity and there is nothing on record to show that no proper and adequate treatment were given to him. The first accused had inflicted the stab injuries on the vital parts of the body of the deceased. The injuries were inflicted with M.O.3 which is a dangerous weapon. Thus, it is clear that the intention of the first accused was to cause the death of the deceased. Therefore the first accused has committed culpable homicide amounting to murder as defined in Section 300 IPC which is punishable under section 302 IPC. We see no infirmity in the judgment of the lower court. This appeal is groundless and is dismissed.