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2012 DIGILAW 944 (KER)

Reghu v. State of Kerala

2012-10-16

C.T.RAVIKUMAR, M.SASIDHARAN NAMBIAR

body2012
JUDGMENT : Appellant was tried for the offences under sections 307 and 302 read with section 34 of indian Penal Code by Additional Sessions Court, Thiruvananthapuram in S.C.1412/2004. The second accused died even before submitting the final report. Learned Sessions Judge convicted the appellant and sentenced him to imprisonment for life and a, fine of Rs. 50,000/- and in default rigorous, imprisonment for two years for the offence under section 302 read with section 34 of Indian Penal Code and rigorous imprisonment for five years and a fine of Rs.15,000/- and in default rigorous imprisonment for one year for the offence under section 307 read with section 34 of Indian Penal Code. The appeal is filed challenging the conviction and sentence. 2. Prosecution case is that second accused was having illicit relationship with the wife of the first accused. PW1 as well as his neighbours cautioned the second accused not to go to the house of the first accused which was not liked by the second accused. Due to the enemity towards PW1, on the midnight of 5.6.1997 while PW1 Surendran was sleeping in the veranda of his house, both the accused came near to the house and made sound. PW1 woke up and warned the accused to go away. The second accused asked PW1 who he is to command them to go. First accused slashed M01 sword on PW1 causing injury to his left wrist, left cheek and left little finger. Second accused with the intention to cause his death took out M02 pen knife and stabbed on the back of PW1. When PW1 cried, his brother deceased Unni who was sleeping inside the house came out and caught hold of the sword in the hands of first accused. First accused asked the second accused to finish Dnni and using M02 pen knife second accused inflicted injuries on deceased Unni two or three times and as a result, he fell down. PW9 Anil Kumar another brother of PW1 also reached there. Both the accused carrying M01 and M02 left the scene. PW9 and others took PW1 and injured Unni to Medical College Hospital, Thiruvananthapuram. PW 13 Dr. Thomas Assistant Professor in Surgery, examined Unni and prepared Ext.P8 wound certificate and admitted him in the hospital as an inpatient. PW13 examined PW1 and prepared Ext.P9 wound certificate, and admitted him also as an inpatient. PW9 and others took PW1 and injured Unni to Medical College Hospital, Thiruvananthapuram. PW 13 Dr. Thomas Assistant Professor in Surgery, examined Unni and prepared Ext.P8 wound certificate and admitted him in the hospital as an inpatient. PW13 examined PW1 and prepared Ext.P9 wound certificate, and admitted him also as an inpatient. Deceased Unni breathed his last on the same night. PW14 the Head Constable of Attingal Police Station on getting information that injured Unni and PW1 were taken to Medical College Hospital and later Unni died from the Hospital, informed the Sub Inspector of Police and took steps to guard the scene of occurrence and then proceeded to Medical College Hospital. PW14 recorded Ext.P1 First Information Statement of PW1 at 8.30 a.m. on 6.6.1997 and on returning to the Police Station prepared Ext.P10 F.I.R. and registered Crime 247/1997 for the offences under Sections 307 and 302 read with section 34 of Indian Penal Code and Section 27 of Arms Act. PW17 the Circle Inspector of Police took over the investigation on the same day. He reached the Medical College Hospital and conducted the inquest and prepared Ext.P6 inquest report. He submitted the necessary requisition for autopsy. PW7 Dr. Sreekumari, Professor of Forensic Medicine, performed autopsy and prepared Ext.P4 postmortem certificate. PW17 reached the scene of occurrence at 4.15 p.m. on the same day and prepared Ext.P3 scene mahazar. At that time M03 shirt and M04 dhothi which were worn by the deceased at the time of the incident were produced by PW6, the brother of PW1 and they were seized, so also M05 bed sheet and M07 blood stained soil and M08 soil without blood stains were seized. First accused was detained by public at Puthiyakav of Kilimanoor. The Sub Inspector of Police, Attingal reached there and finding that first accused sustained injuries, admitted him in the hospital and kept him under surveilance. When the first accused was discharged from the hospital on 9.6.1997, PW17 arrested him. On the information furnished by the first accused, PW17 recovered M01 sword under Ext.P11 recovery mahazar at 1.30 p.m. on 10.6.1997, in the presence of PW15 the attesting witness. Second accused was admitted in the Taluk Headquarters Hospital, Chirayinkeezhu sustaining injuries on 6.6.1997 at 4.25 a.m. PW17 kept him under surveilance. On his discharge from the hospital on 14.6.1997, PW17 arrested him. Second accused was admitted in the Taluk Headquarters Hospital, Chirayinkeezhu sustaining injuries on 6.6.1997 at 4.25 a.m. PW17 kept him under surveilance. On his discharge from the hospital on 14.6.1997, PW17 arrested him. On the information furnished by the second accused, under Ext.P12 mahazar M02 pen knife was recovered. After completing the investigation final report was submitted before the Judicial First Class Magistrate, Attingal. By that time second accused was no more and the charge as against him was abated. 3. Learned Magistrate committed the case to Sessions Court, Thiruvananthapuram. Learned Sessions Judge made over the case for trial to Additional Sessions Court, Thiruvananthapuram. As the appellant did not engage a counsel, a counsel was appointed by the court to defend him at the expense of the State. When the learned Sessions Judge framed charges for the offences under Sections 307 and 302 read with Section 34 of Indian Penal Code, read over and explained to the appellant, he pleaded not guilty. Prosecution examined 18 witnesses and marked 14 exhibits and identified 8 material objects. After closing the prosecution evidence, appellant was questioned under Section 313 of the Code of Criminal Procedure. He denied the incriminating evidence put to him and contended that he was sleeping in his house on that night and hearing the sound he came out and found the second accused lying sustaining injuries. He went to Chirayinkeezhu Hospital to enquire about the second accused and getting information that police is searching for him, he appeared before the Police at the Police Station. He did not commit any of the offences. Finding that appellant cannot be acquitted under section 232 of the Code of Criminal Procedure, learned Sessions Judge called upon the appellant to enter on his defence and adduce evidence. Appellant did not adduce any oral evidence. Instead the Accident Register-cum-wound certificate and the case sheet in respect of the injuries and the treatment of the second accused were summoned and their certified copies were marked as Exts.D2 and D3. On the evidence learned Sessions Judge found the appellant guilty of the offences under sections 307 and 302 read with section 34 of Indian Penal Code. He was convicted and sentenced as stated earlier which is challenged in the appeal. The appeal is preferred from prison. Adv. Sri. Sabu George later filed the Vakalath for the appellant and argued the appeal. 4. He was convicted and sentenced as stated earlier which is challenged in the appeal. The appeal is preferred from prison. Adv. Sri. Sabu George later filed the Vakalath for the appellant and argued the appeal. 4. Learned counsel appearing for the appellant and the learned Public Prosecutor were heard. 5. Learned counsel appearing for the appellant submitted that Ext.P3 scene mahazar shows that in respect of the same incident Crime 249/1997 of the same Police Station was registered for the offences under sections 143, 147, 148 and 324 read with section 149 of Indian Penal Code and Section 27 of Arms Act, which is the countercase of Crime 247/1997 and the scene of occurrence and the time of the incident in both the cases is one and the same and even though prosecution is obliged to produce the F.I.R and the final report in the counter case these material records were suppressed and as directed by Supreme Court in Sudir v. State of M.P. ( 2001 (1) KLT 682 ), the countercase was not tried along with the main case and it is seriously prejudiced the appellant. Learned counsel argued that the prosecution purposely suppressed the production of the material records in the countercase, to deny the benefit to the appellant and as appellant was defended by a counsel appointed by the court, the material aspects were omitted to be brought to the notice of the learned Sessions Judge. Learned counsel argued that when in Ext.PI First Information Statement the case of PW1 was that he alone was sleeping in the veranda and deceased Unni and PW9 Anil Kumar, the brothers, were sleeping inside the house and they came to the scene of occurrence while the accused were allegedly attacking PW1, at the time of evidence PW1 modified the case and deposed that only deceased Unni came to the scene of occurrence. It was pointed out that as per Ext. P1 First Information Statement, hearing the sound PW1 woke up and walked towards the way where the. It was pointed out that as per Ext. P1 First Information Statement, hearing the sound PW1 woke up and walked towards the way where the. accused were allegedly making noise but when examined, PW1 has no case that he had gone out of the courtyard of his house and as is clear from Ext.P3 scene mahazar, the scene of occurrence is 4.82 metres to the south of the residential house of PW1 and that too within the property of Kuttan Pillai where tapioca and coconut trees exist and PW1 has no explanation how he reached there and how he sustained the injuries from there. Learned counsel also pointed out that evidence of PW3 the sister of PW1 shows that hearing the sound she came out of the house and though in chief examination PW3 claimed that she had witnessed the accused inflicting injuries on PW1 and deceased Unni, in the cross examination, she deposed that when she came out of the house she witnessed the second accused being attacked by PW9 and another brother and neither PW1 nor PW9 has such a case and it is clear that PW3 did not witness the incident. Learned counsel also pointed out that though PW9 was examined, he has no case that he witnessed the incident and in such circumstances the only evidence as to how PW1 and deceased Unni sustained injuries is that of PW1. Learned counsel argued that because of the contradictions in the evidence of PW1 and Ext.P1 First Information Statement as well as the evidence of PW3, no reliance could be placed on the evidence of PW1. It is clear that PW1 is suppressing the origin and genesis of the incident. It was pointed out that if the evidence of PW1 is to be believed, there is no explanation for the injury sustained by the second accused. Exts.D2 and D3 establish that second accused also sustained injuries and Ext.P3 scene mahazar establish that he also sustained injuries at the same time and the very same scene of occurrence. It is therefore argued that prosecution did not unveil the true facts and in such circumstances appellant is at least entitled to the benefit of reasonable doubt. 6. Exts.D2 and D3 establish that second accused also sustained injuries and Ext.P3 scene mahazar establish that he also sustained injuries at the same time and the very same scene of occurrence. It is therefore argued that prosecution did not unveil the true facts and in such circumstances appellant is at least entitled to the benefit of reasonable doubt. 6. Learned Public Prosecutor submitted that though the records in the counter case were not produced, Ext.P14 judgment in the countercase was produced which shows that the accused in that case were not PW1 or deceased Unni but PW9 and his brother Sabu and Ext.P14 establish that that case ended in acquittal. Learned Public Prosecutor pointed out that though at the inception when preparing Ext.P3 scene mahazar, PW17 was under the impression that second accused sustained injuries in the same incident and at the same scene of occurrence, investigation revealed that it is not so and therefore Crime 249/97 is not the countercase of this case and in such circumstances non-production of the records of that Crime is not fatal to the prosecution case. Learned Public Prosecutor also pointed out that PW1 being the injured is entitled to due weight and there is no reason to disbelieve his evidence and it cannot be believed that PW1 will suppress the real culprit and falsely foist a case as against the appellant. Learned Public Prosecutor argued that the evidence of PW3 though did not fully corroborate the evidence of PW1, would corroborate his evidence that both the accused were found near the injured Unni and PW1 was armed with a sword and second accused was armed with a pen knife and there is no reason to disbelieve at least that portion of the evidence. Learned Public Prosecutor argued that Exts.D2 and D3 establish that though second accused sustained injuries, it was not in the same incident as is clear from the alleged cause of injury noted in Ext.D2. Ext.P14 judgment also shows that the incident was different and in such circumstances based on the alleged countercase appellant is not entitled to get any benefit of doubt and on a proper appreciation of evidence, it can only be found that deceased Unni sustained injuries which caused his death and the injuries were inflicted by the first accused using M01 sword and the second accused using M02 pen knife. It was also argued that evidence of PW1 establish that the injuries sustained by him and recorded by PW13 in Ext.P9 wound certificate were inflicted by the appellant using M01 and by second accused using M02 pen knife and there is no reason to disbelieve his evidence and in such circumstances no interference is warranted either in the conviction or the sentence. 7. Though learned Public Prosecutor vehemently argued that Crime 249/1997 is not the counter case of Crime 247/1997, which is tried as S.C.1412/2004, we find no material in support of the said submission. On the other hand, Ext.P3 scene mahazar unambiguously reveal that Crime 247/1997 is the main case and Crime 249/1997 is the counter case. Ext.P3 also shows that PW17 prepared only one common mahazar for both the main case and the counter case for the reason that the scene of occurrence and the time of the incident in both the crimes is one and the same. There is no material to support the submission of the learned Public Prosecutor that on further investigation PW17 could collect necessary materials to find that the incident in Crime 249/1997 did not occur at the scene of occurrence in Ext.P3 or it was later or earlier in time to the incident involved in this case. PW17 is the most competent person to clarify that Crime 249/1997 is not the counter case of Crime 247/1997 and Crime 247/1997 is not the main case. We find that PW17 did not disclose anything about the investigation in Crime 249/1997. When examined he has no case that it is not the counter case to the main case. PW17 also did not depose that on the investigation he found that Crime 24 9/1997 was committed at a different place or time as canvassed by the learned Sessions Judge. Prosecution did not produce either the F.I.R or the final report in the counter case. True Ext.P14 judgment in C.C.97/2000 of Judicial First Class Magistrate Court I, Attingal was produced, which shows that PW6 and his brother Sabu were tried for the offence under Section 324 read with Section 34 of Indian Penal Code and that offence was taken cognizance by the learned Magistrate based on the final report submitted in Crime 249/97. True Ext.P14 judgment in C.C.97/2000 of Judicial First Class Magistrate Court I, Attingal was produced, which shows that PW6 and his brother Sabu were tried for the offence under Section 324 read with Section 34 of Indian Penal Code and that offence was taken cognizance by the learned Magistrate based on the final report submitted in Crime 249/97. It is also true that the prosecution case as narrated in Ext.P14 judgment was that the incident occurred at 12 noon of 5.6.1997, when the incident in this case occurred at 12 midnight on 5.6.1997. But possibility of 12 noon was mistakenly referred, instead of 12 midnight cannot be ruled out in the light of the statement in Ext. P3 that the time of the incident in both the cases is one and the same. Ext.P14 shows that the injured in that case, evidently the second accused in this case, died and was not available for examination and three other witnesses examined turned hostile and the learned Magistrate dispensed with the examination of the remaining witnesses and acquitted PW9 and his brother. Based on Ext.P14 it is not possible either to hold that the scene of occurrence in that case or the incident in that case did not occur at the scene of occurrence or time in this case. If that be so, it can only be found that the Crime 249/1997 is the counter case of this case and this case is/the main case. 8. When there is a main case and a counter casein respect of the same incident and the prosecution has contradictory versions in the main case and the counter case, the proper procedure to be adopted for trial of the cases is as declared by the Supreme Court in Sudhir's case (supra). The main case and the countercase are to be tried one after e other. Though the evidence in one case cannot looked into in the other, both the cases are to disposed by separate judgments on the same day so as to avoid conflicting decisions. Unfortunately learned Sessions Judge did not consider the said aspect while trying the appellant. True, Ext.P14 judgment shows that the counter case was disposed on 26.6.2001 earlier to the date of trial of this case. Unfortunately learned Sessions Judge did not consider the said aspect while trying the appellant. True, Ext.P14 judgment shows that the counter case was disposed on 26.6.2001 earlier to the date of trial of this case. In such circumstances no purpose will be served by remanding the case back to the Sessions Court, to try this case along with the counter case for the irregularity committed. 9. When there is a main case and a counter case, the prosecution is bound to produce the FIR, the scene mahazar and the final report in the counter case in the main case so as to enabl the court to consider the origin and genesis of the incident. Prosecution did not make available either the FIR or the final report in Counter the case though Ext.P3 scene mahazar is common to both the main case and the countercase. Even when PW17 was cross examined, he deposed that second accused sustained injuries in the same incident on that night. In re-examination an attempt was made by the Prosecutor to show that PW14 without reference to the case records in the countercase cannot disclose whether second accused sustained the injuries in the same incident, as admitted in cross examination. But even then PW17 has no case that second accused did not sustain the injuries in the incident. Evidence of PW3 the sister of PW1 and an inmate of the same house prove that the said incident also occurred at the same time at scene of occurrence. In such circumstances the non-production of the FIR and the final report in the countercase definitely materially prejudiced the defence. 10. Learned Sessions Judge relied on the evidence of PW1, PW3 and PW9 to hold that appellant in furtherance of the common intention with the second accused, inflicted injuries on PW1 with the intention to cause his death and also inflicted injuries on deceased Unni to cause his death. PW1 is the injured and therefore his presence at the time of the incident can never be disputed. PW3 is the sister of deceased Unni. According to prosecution case, PW3 was sleeping inside the house along with their mother. PW1 is the injured and therefore his presence at the time of the incident can never be disputed. PW3 is the sister of deceased Unni. According to prosecution case, PW3 was sleeping inside the house along with their mother. PW3 in chief examination deposed that she woke up hearing the sound and as the house was not electrified, she lighted the kerosene lamp and with the kerosene lamp in her hand, she came out of the house and she found both the accused attacking PW1 and deceased Unni. She has narrated how the accused inflicted the injuries on PW1 as well as deceased Unni. In cross examination when PW3 was asked what she witnessed when she came out of the house, she deposed that when she came out of the house on hearing the sound she found the second accused being attacked by PW9 and her other brother from the courtyard. It is thus clear that PW3 did not witness the earlier incident spoken to by her in chief examination. If the evidence of PW3 is to be believed, second accused sustained injuries from the courtyard of their house when PW9 and his brother attacked him and by that time PW1 and the deceased had already sustained the injuries and were lying on the ground. 11. The evidence of PW9 is to the effect that hearing the sound he came out of the house from where he was sleeping and he found his brothers deceased Unni and PW1 lying sustaining injuries and he went to fetch a vehicle and returned back with a car and thereafter took PW1 and deceased Unni in that car to Medical College Hospital. If that version of PW9 is true, PW3 would not have deposed that PW3 had witnessed PW9 inflicting injuries on the second accused from their courtyard. If the evidence of PW9 is to be believed and he had gone to fetch the car and returned back and took PW1 and injured Unni in the car to the hospital and the version of PW3 is true, it could only be after inflicting the injuries on the second accused. Prosecution has no such case. 12. Again if the evidence of PW3 is to be accepted, it was not only PW1 but also deceased Unni who were sleeping in the veranda and PW3, their mother and PW9 were sleeping inside the house. Prosecution has no such case. 12. Again if the evidence of PW3 is to be accepted, it was not only PW1 but also deceased Unni who were sleeping in the veranda and PW3, their mother and PW9 were sleeping inside the house. If that be so and hearing the sound PW9 also came out of the house it could only be along with PW3. According to PW3 she came out of the house, immediately on hearing the sound. There is no reason to disbelieve the evidence of PW3 that deceased Unni was sleeping in the veranda along with PW1 on that night. If that be so the evidence of PW1 that he alone was sleeping in the veranda and Unni came later hearing the sound cannot be true and it was not PW1 alone who was sleeping on the veranda on that fateful night coacaIso sleeping there. If so why did PW1 suppressed it? At this juncture it borne in mind that the version First Information Sta. different. As per his version in Ext. P1, PW1 was sleeping in the veranda and he heard the noise from the way to the south of his house and hearing it PW1 woke up and proceeded to the way where the accused were making noise and asked them to go. It was alleged in Ext. P1 that when the accused attacked him and sustaining injury he cried and hearing it PW9 as well as deceased Unni came out of the house and thereafter the accused inflicted the injuries on deceased Unni and caused his death. If that version is true, it is not known why PW9 suppressed that fact and claimed that he came to the scene of occurrence only later. As against the version in Ext.P1 statement, the evidence of PW1 from the box was that only deceased Unni came out of the house, hearing the sound and not PW9. The evidence of PW9 is to the effect that he did not witness the incident. He only claimed that he found the brothers PW1 and deceased Unni lying sustaining the injuries and the accused standing near them armed with a sword and a pen knife and finding him they ran away carrying the weapons. 13. The evidence of PW9 is to the effect that he did not witness the incident. He only claimed that he found the brothers PW1 and deceased Unni lying sustaining the injuries and the accused standing near them armed with a sword and a pen knife and finding him they ran away carrying the weapons. 13. The evidence of PW3 that she witnessed the incident cannot be believed, as in cross examination she deposed that she found the incident only from the stage when second accused was being attacked. The evidence of PW3 is not at all helpful to find how deceased Unni and PW1 sustained the injuries. PW9 deposed that he did not witness the incident. Therefore his evidence is also not helpful. The only other evidence is that of PW1. 14. As stated earlier PW1 being the injured deserves due recognition and weight. But that does not mean that if it is clear that PW1 has suppressed the true genesis and the origin of the incident and did not reveal true facts, his evidence is to be blindly accepted. That exactly is the case herein. As stated earlier when there is no reason to disbelieve the evidence of PW3 that deceased Unni was sleeping in the veranda along with PW1, PW1 has no reason to suppress that fact and introduce a case that hearing his cry Unni came to the scene later. The evidence of PW1 does not disclose that Unni came out of the house, before PW1 sustaining the injuries. His evidence is that hearing the sound, he woke up and looked and found the accused making noise and he directed to go without making sound then the accused attacked him. Ext.P3 scene mahazar establish that the scene of occurrence is 5.85 metres away, to the south eastern corner of the residential house of PW1. The distance between the scene of occurrence and the southern wall of the house of PW1 is 4.82 metres. The scene of occurrence is to the south of the house. Ext.P3 also establish that scene of occurrence is not the courtyard of the house of PW1. The scene of occurrence is inside the property of Kuttan Pillai and tapioca is cultivated. There were also coconut trees. If PW1 sustained the injuries 4.82 metres to the south of his house, necessarily PW1 has to move 4.82 metres to the south of his house. The scene of occurrence is inside the property of Kuttan Pillai and tapioca is cultivated. There were also coconut trees. If PW1 sustained the injuries 4.82 metres to the south of his house, necessarily PW1 has to move 4.82 metres to the south of his house. PW1 has not thrown any light on what was the necessity for him to move that much distance from his house on that night. Though in Ext.P1 First Information Statement he had a version that hearing the sound and finding the accused he went towards the way and from there he sustained the injuries, PW1 did not stick on to that version from the witness box. If that be so, it is clear that PW1 did not disclose the true facts as to how the incident originated and what its genesis was. 15. In spite of the evidence of PW3 and PW17 that second accused sustained the injuries on that night, time and scene of occurrence, no evidence was tendered on how second accused sustained the injuries. The failure of the prosecution to produce the F.I.R and the final report in the countercase is to be appreciated in this background. Ext.D2 wound certificate and Ext.D3 case sheet establish that second accused sustained injuries on that fateful night. Though the time of the alleged cause of injury disclosed in Ext.D2 is 11.30 p.m. on that night, evidence of PW3 establish that the second accused sustained the injury subsequent to the injury sustained by PW1 and the deceased. In such circumstances, on a proper appreciation of evidence, it can only be found that prosecution did not disclose the true genesis and origin of the incident. Evidently the true facts are suppressed. It could only be for the reason that if it is disclosed, the prosecution case may not be upheld. It is also strange to note that the prosecution case is that due to the enemity of the second accused against PW1 for preventing or prohibiting the second accused from entering the house of the first accused, the two accused in furtherance of the common intention committed murder of Unni and inflicted injuries to PW1 with the intention to cause his death. What was alleged by the prosecution was that the second accused was having illicit relationship with the wife of the first accused. What was alleged by the prosecution was that the second accused was having illicit relationship with the wife of the first accused. If that be so, we do not understand why the first accused would join the second accused and have a common intention to cause the death of PW1 or Unni especially when prosecution has no case that the alleged illicit relationship of the second accused with the wife of the first accused was either with his consent or connivance. In the ordinary human conduct, if the prosecution is true first accused would never join with the second accused. In any case there is no possibility for a common intention for the first accused with the second accused to murder either, Unni or PW1 for preventing the second accused to have illicit relationship with the wife of the first accused. In such circumstances, on appreciating the entire evidence, we find it impossible to rely on the evidence of PW1 to hold that the incident in which deceased Unni and PW1 sustained injuries occurred in the manner as deposed by him. The possibility of PW1 and deceased Unni sustaining injuries in some other manner and even from the hands of the second accused alone without the consent, connivance or participation of the first accused cannot be overruled. If that be so, appellant is at least entitled to get the benefit of reasonable doubt on the failure of the prosecution to conclusively prove the offences against the appellant. In such circumstances, conviction of the appellant cannot be sustained. Appeal is allowed. Conviction and sentence of the appellant in S.C. 1412/2004 on the file of Additional Sessions Judge, Thiruvananthapuram for the offences under sections 307 and 302 read with section 34 of Indian Penal Code are set aside. The appellant is found not guilty of the offences charged and he is acquitted. If the appellant is not wanted in any other case, he shall be released from prison forthwith.