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2020 DIGILAW 565 (KER)

Sabu v. State of Kerala

2020-07-01

P.V.KUNHIKRISHNAN

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JUDGMENT : P.V. Kunhikrishnan, J. 1. The first accused in S.C. No. 344/03 on the file of the II Additional Sessions Judge, Ernakulam is the appellant in this appeal. The above case is charge sheeted by the Circle Inspector of Police, Njarakkal Police Station against the appellant and his father alleging offences punishable under Sections 341, 302 r/w Section 34 of IPC. The trial court acquitted the second accused, who is the father of the appellant, and convicted the appellant herein who is the first accused. Hence this appeal. (hereinafter the parties are mentioned according to their rank before the trial court). 2. In short, the prosecution case is as follows: Deceased Shibu alias Kuttappi had borrowed Rs. 2000/- from the second accused, and after making payment of Rs. 1,700/- he kept a balance of Rs. 300/-. The second accused repeatedly demanded the amount from the deceased, and the deceased did not pay the amount. Out of that enmity, accused persons in furtherance of their common intention to murder Kuttappi, second accused wrongfully restrained him on 11.5.2001 demanding money while the deceased was going towards west from Elamkunnapuzha bus stop. The second accused caught hold of the pants of the deceased from his backside and prompted the first accused, who reached there with a wooden reaper, to murder him. The first accused gave three blows on the head of deceased Kuttappi by using a wooden reaper. As a consequence of the blows sustained on the head, the deceased fell down on the road. Subsequently, the deceased was taken to Lourde Hospital, and from there, he had succumbed to the injuries sustained by him. The first accused is the son of the second accused. 3. On appearance before the trial court, the trial court framed charge under Sections 341, 302 r/w Section 34 of IPC. 4. To substantiate the case, the prosecution examined PW1 to PW17. Exts. P1 to P12 are marked on the side of the prosecution. Ext. D1 is marked on the side of the defence. M.O. 1 to M.O. 9 are the material objects. 5. After going through the evidence and documents, the trial court found that the second accused had not committed the offence and he is acquitted. The first accused, who is the appellant herein was found guilty under Section 304 Part II of the IPC. M.O. 1 to M.O. 9 are the material objects. 5. After going through the evidence and documents, the trial court found that the second accused had not committed the offence and he is acquitted. The first accused, who is the appellant herein was found guilty under Section 304 Part II of the IPC. He is sentenced to undergo rigorous imprisonment for seven years and to pay a fine of Rs. 10,000/-. In default of payment of fine, he is directed to undergo simple imprisonment for one year. Aggrieved by the conviction and sentence, this criminal appeal is filed. 6. Heard the counsel for the appellant and the learned Public Prosecutor. 7. The counsel for the appellant submitted that, the trial court convicted the first accused based on the solitary evidence of PW1, who is the defacto complainant in this case. The trial court disbelieved the other eye witnesses in this case. According to the counsel, the evidence of PW1 cannot be believed because of several infirmities in his evidence. He submitted that the submission of the complaint by PW1 itself is suspicious. He also argued that the trial court erred in relying on the evidence relating to the recovery of M.O. 1. According to the counsel, the recovery evidence is not reliable, the evidence of PW1 is not reliable, and hence the court cannot convict the accused based on the same. 8. The Public Prosecutor submitted that the offence under Section 304 Part II is proved in this case. The Public Prosecutor submitted that, it is a case in which, a prompt FIR is registered. The FIR is registered at 3 a.m., on 12.5.2001 whereas the occurrence was on 11.5.2001 at 8 p.m. The prosecution witness No. 1 deposed in accordance with the version in Ext. P1 FIR. There is nothing to disbelieve the evidence of PW1. The Public Prosecutor also submitted that recovery of M.O. 1 based on the statement of the accused is also admissible and it will corroborate the evidence of PW1. Therefore, the trial court is perfectly justified in convicting and sentencing the accused under Section 304 Part II of IPC. 9. The point for consideration in this case is whether the accused committed the offence under Section 304 Part II of IPC. 10. Altogether 17 witnesses were examined in this case. PW1 is the defacto complainant who gave Ext. P1 FIR statement. 9. The point for consideration in this case is whether the accused committed the offence under Section 304 Part II of IPC. 10. Altogether 17 witnesses were examined in this case. PW1 is the defacto complainant who gave Ext. P1 FIR statement. PW2 is examined to prove Ext. P2 inquest report. PW3 is examined to prove Ext. P3 scene mahazar. PW4 is examined to identify the dress and diary of the deceased. PW5 is an alleged eye witness to the incident. According to PW6, he saw the accused running away from the place of occurrence. PW7 is the person who took the deceased to the hospital. PW8 is the sister of the deceased. She is examined to prove the borrowal of Rs. 2,000/- by the deceased from the second accused. PW9 is examined to prove Ext. P4 scene mahazar by which the dress of A2 is seized. PW10 is the witness to the recovery of M.O. 1 wooden reaper. PW11 is examined to prove the recovery of the dress of first accused. PW12 is the taxi driver who took the first accused in his car to Paravur on the date of the incident. PW13 is the doctor who conducted the postmortem of the deceased. Ext. P7 is the postmortem certificate. PW14 is the Village Officer who prepared Ext. P8 site plan. PW15 is the then Circle Inspector of Police who recorded Ext. P1 F.I. statement and based on which, Ext. P9 FIR is registered. PW16 conducted part of the investigation. PW17, Circle Inspector submitted the final report after verification. These are the evidence available in this case. 11. The trial court disbelieved the evidence of PWs. 5, 6 & 7 and convicted the first accused based on the evidence of PW1 coupled with the recovery evidence of M.O. 1 wooden reaper and the medical evidence. I find no reason to interfere with the findings of the trial court regarding the rejection of the evidence of PWs. 5 to 7. The findings of the trial court are after appreciating the evidence of PWs. 5 to 7 in-depth. 12. Now what remains is the evidence of PW1. Whether the evidence of PW1 can be believed or not is the question in this case. The counsel for the appellant submitted that the presence of PW1 at the place of occurrence itself is doubtful. 5 to 7 in-depth. 12. Now what remains is the evidence of PW1. Whether the evidence of PW1 can be believed or not is the question in this case. The counsel for the appellant submitted that the presence of PW1 at the place of occurrence itself is doubtful. According to the counsel, his first information to the police immediately after the incident on 12.05.2001 at 3 a.m. is to the effect that he will open his shop at 8.30 a.m. and will close the shop at 7 p.m. PW1 is the owner of a 'C' class shop situated adjacent to the place of occurrence. The counsel submitted that in the original F.I. Statement, there is a correction regarding the time when his shop used to close in the evening. The counsel submitted that even though, the F.I. Statement was recorded on 12.05.2001 at 3 a.m., and the FIR was registered immediately thereafter, the original FIR reached the learned Magistrate only on 12.05.2001 at 4.15 p.m. The counsel submitted that the time mentioned by PW1 is corrected as 9 PM' instead of 7 PM' to suit the time of occurrence in this case. Admittedly, the alleged occurrence, in this case, happened at 8 p.m. I carefully perused Ext. P1 F.I. Statement. It is true that there is a correction regarding the time of closure of the shop of PW1 mentioned by PW1 in Exhibit P1. It is very clear that originally it was mentioned as 7 p.m.' and it is subsequently corrected as 9 p.m.' The trial court also found that there is correction in Exhibit P1 regarding the time when PW1 closed his shop. But the trial court believed the evidence of PW15 who registered the FIR. PW15 deposed that it was an inadvertent mistake committed while recording the statement of PW1. 13. In the light of the facts and circumstances of this case, I think the correction of the entry regarding the time when the shop will be closed has got some importance. I will consider this aspect subsequently. The evidence of PW1 has to be looked into based on Ext. P8 site plan. On a perusal of Ext. P8 site plan, it can be seen that the shop of PW1 is noted as item No. 7. The place of occurrence is noted as item No. 10. I will consider this aspect subsequently. The evidence of PW1 has to be looked into based on Ext. P8 site plan. On a perusal of Ext. P8 site plan, it can be seen that the shop of PW1 is noted as item No. 7. The place of occurrence is noted as item No. 10. Admittedly, the place of occurrence is on the south western side of the shop of PW1. Admittedly, there are two houses adjacent to the place of occurrence which is marked as item No. 2 and item No. 6. Item No. 2 is the house of one Sukumaran and item No. 6 is the house of Mohanan. Their houses are situated on both side of the place of occurrence. They were not examined. The description of the shop of PW1 is narrated by him in his evidence. According to him, the shop is facing towards south. He also deposed that there is a door to the eastern side. But admittedly, the incident happened on the south western side of the shop. PW1 deposed that he is conducting a 'C' class shop at Elamkunnapuzha. According to him on 11.05.2001 at 7.30 p.m., there was an altercation between the second accused and the deceased in connection with a money transaction. According to PW1, that incident happened on the western side of his shop. He was in his shop. PW1 deposed that, a lady came at the time of the altercation between the deceased and the second accused. The lady took the deceased, and they went towards east. Subsequently, at about 8 p.m., the deceased again came to the place of occurrence. At that time also, there was altercation between the deceased and the second accused. He deposed that, he heard the sound of beating using a wooden reaper. According to PW1, the first accused beat the deceased 2 to 3 times and the deceased fell down. At that time, an autorickshaw belongs to one Sojan came there and Kuttappi was taken to Perumpilly Kristujayanthi Hospital in that autorickshaw. From there the deceased was taken to Lourde Hospital. According to PW1, one Dileep informed him that the Kuttappi died. Thereafter, at about 3 a.m., he went to the police station and gave Ext. P1 F.I. statement. This is the chief examination portion of PW1. From there the deceased was taken to Lourde Hospital. According to PW1, one Dileep informed him that the Kuttappi died. Thereafter, at about 3 a.m., he went to the police station and gave Ext. P1 F.I. statement. This is the chief examination portion of PW1. In cross examination, he described the place of occurrence and the distance from his shop to the place of occurrence. PW1 also deposed that since the altercation was with sound, he heard the same. That itself shows that the distance from the shop of PW1 to the place of occurrence is not too short. PW1 deposed that the persons who are on the road can see the incident well. From the evidence of PW1, it is clear that his shop is not situated adjacent to the place of occurrence. It is also clear that there are houses adjacent to the place of occurrence. It is also clear from the evidence of PW1 that there was altercation between the deceased and the second accused. It is also clear that the first accused intervened only when there was altercation between his father and the deceased. 14. The counsel for the appellant submitted that the accused had a definite case. The case of the accused is that when he saw that the deceased attacking his father using a clutch cable and when his father was in a dangerous situation, he intervened and attacked the deceased. Admittedly, there is a cycle repairing shop adjacent to the place of occurrence. It is not mentioned in the site plan but it is admitted by PW1. The only evidence available in this case is the evidence of PW1. If we go through the evidence of PW1, it can be seen that, the entire incident started because of the provocation from the side of the deceased. The provocation continued for some time. In the first incident, there was provocation between the deceased and the second accused. Then a lady came there and she took the deceased from the place of occurrence. Thereafter, the deceased again came and started altercation with the second accused. At the time of first incident, or at the time of starting the second incident, the first accused was not there. Admittedly, the first accused came there when the altercation between the deceased and the second accused was going on in the second part of the incident. Thereafter, the deceased again came and started altercation with the second accused. At the time of first incident, or at the time of starting the second incident, the first accused was not there. Admittedly, the first accused came there when the altercation between the deceased and the second accused was going on in the second part of the incident. When his father was attacked by the deceased, it is the normal human conduct from any person, to intervene in the matter. In the facts and circumstances of this case, the case put forward by the defence is also probable. The defence case is that the deceased strangulated the second accused with a clutch cable and at that time without any other option, the first accused attacked the deceased using a wooden reaper. Admittedly, the first accused was not having any weapon in his possession. It was taken from the place of occurrence. It is true that PW1 denied the questions regarding the defence case that the deceased strangulated the second accused. But from the facts and circumstances, the defence case is also probable. It is a settled position that the accused need not prove the case beyond reasonable doubt. If the accused is able to establish that the defence case is also probable, he is entitled to the benefit of doubt. In this case, the circumstances narrated by PW1 itself shows that there is an apprehension on the part of the first accused that, his father is in danger. In such circumstances, he intervened. The deceased strangulated the second accused and at that time first accused intervened, is the defence case. But there is no evidence to that effect. But this defence is probable according to me in the facts and circumstances of the case. 15. Moreover, as I said earlier, the evidence of PW1 is also not convincing. As pointed out by the learned counsel for the appellant, the alleged incident happened at 8 p.m. The counsel for the appellant submitted that the first information statement, he originally gave a statement that he will close the shop at 7 p.m. According to the counsel, subsequently, 7 p.m. is corrected as 9 p.m. to suit the prosecution case. It is also to be noted that the FIR reached the magistrate only at 4.15 p.m. on 12.05.2001. It is also to be noted that the FIR reached the magistrate only at 4.15 p.m. on 12.05.2001. In such circumstances, the correction of 7 p.m., as 9 p.m., cannot be ruled out. It is true that PW15 denied the correction. But a bare looking of Ext. P1 itself, it is clear that there is correction. Admittedly, there are houses on both sides of the place of occurrence, but nobody was examined. Moreover, PW1 also admitted that there were several persons on the road, but nobody was examined who were present at the road. It is also to be noted that one Dileep informed PW1 about the death of the deceased. Therefore, PW1 went to the police station. Dileep was also not examined. In the light of the facts and circumstances of the case, I think the evidence of PW1 is also not convincing. 16. Moreover, according to me, the case put forwarded by the accused is also probable in the facts and circumstance mentioned above. I think the accused is entitled the benefit of doubt. Therefore, the criminal appeal is allowed. The conviction and sentence imposed on the appellant as per judgment dated 16.12.2004 in Sessions Case No. 344/2003 on the file of the II Additional Sessions Judge, Ernakulam is set aside. The appellant is set at liberty. Bail bond if any, executed by him is cancelled.