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2020 DIGILAW 629 (KER)

Sunil v. State of Kerala

2020-07-23

A.HARIPRASAD, N.ANIL KUMAR

body2020
JUDGMENT : N. Anil Kumar, J. 1. The appellants are the 1st and 2nd accused respectively in S.C. No. 967/2013 on the file of the Additional Sessions Court, Irinjalakuda for the offences punishable under Sections 341, 323, 302 read with Section 34 of the Indian Penal Code (hereinafter referred to as the IPC). 2. By judgment dated 26.10.2016, the learned Additional Sessions Judge convicted and sentenced the 1st accused to undergo life imprisonment and to pay a fine of Rs. 50,000/- and in default of payment of fine to undergo rigorous imprisonment for six months more for the offence under Section 302 of the IPC. For the offence under Section 323 of the IPC, the learned Sessions Judge convicted and sentenced the 1st accused to undergo simple imprisonment for one month and to pay a fine of Rs. 1,000/- and in default of payment of fine to undergo simple imprisonment for one month more. The second accused was convicted and sentenced to undergo simple imprisonment for one month and to pay a fine of Rs. 1,000/- and in default of payment of fine to undergo simple imprisonment for one month more for the offence punishable under Section 323 of the IPC. The 1st accused was acquitted for the offence under Section 341 of the IPC and the 2nd accused was acquitted for the offences under Sections 302 and 341 of the IPC. 3. Prosecution case in brief is hereinbelow:- The 1st accused Sunil is none other than the son-in-law of the deceased Babu and the husband of PW6. The 2nd accused is the brother of the 1st accused. Right from the very beginning, the 1st accused had been regularly harassing his wife-PW6. On 06.11.2012, the 1st accused had inflicted injuries on PW6. The deceased intervened in the matter and PW6 was admitted in a hospital. While so, the deceased forcibly took elder child from the house of the 1st accused. On 07.11.2012 at 8.30 pm., the deceased again went to the house of the 1st accused and made an attempt to take away the younger child. Following this, the 1st accused in furtherance of his common intention with the 2nd accused stabbed the deceased with MO1 knife. The deceased was taken to the hospital and he succumbed to the injuries later. Following this, the 1st accused in furtherance of his common intention with the 2nd accused stabbed the deceased with MO1 knife. The deceased was taken to the hospital and he succumbed to the injuries later. Hence it is alleged that accused 1 and 2 have committed the offences punishable under Sections 341, 323 and 302 read with Section 34 of the IPC. 4. Immediately after the occurrence, PW1, one of the neighbours of the accused, lodged Ext. P1 First Information Statement before PW17. He is not an eye witness to the occurrence. He testified that on the fateful day, he heard a noise from the house of the accused. According to him, on hearing the hue and cry, he along with PWs. 2 and 4 went to the crime scene and found the deceased lying in a pool of blood. He immediately tied a cloth over the injuries on the body of the deceased and took him to Modern Hospital, Kodungallur. Later, the injured was referred to Elite Hospital. The investigation was taken over by PW21. He had taken steps to conduct postmortem on the body of the deceased, obtain postmortem certificate, recover material objects and send the same for chemical examination, record the statements of witnesses, complete the investigation and file the final report. 5. On committal, the learned Sessions Judge framed charges against accused Nos. 1 and 2 for the offences punishable under Sections 341, 323 and 302 read with Section 34 of the IPC. The accused 1 and 2 pleaded not guilty. 6. During the trial, PWs. 1 to 21 were examined and marked Exts. P1 to P27 on prosecution side. MOs. 1 to 9 were marked as material objects. On closing the evidence of the prosecution, the accused were questioned under Section 313(1)(b) of the Cr.P.C. Their defence is one of total denial. DW1 was examined on the side of the accused. Exts. D1 and D2 were also marked. 7. PWs. 1 to 4 are the neighbours of the accused. According to them, they had no occasion to see the occurrence. However, they stated that they heard the deceased screaming aloud in the crime scene and accordingly they rushed to the scene. When they reached the crime scene, they found the deceased in a pool of blood. They extended a helping hand in taking to the deceased to the hospital. PW1 lodged Ext. P1 FIS. However, they stated that they heard the deceased screaming aloud in the crime scene and accordingly they rushed to the scene. When they reached the crime scene, they found the deceased in a pool of blood. They extended a helping hand in taking to the deceased to the hospital. PW1 lodged Ext. P1 FIS. He had attested Ext. P2 seizure mahazar and identified MO1 knife and MO2 to MO4 dress materials worn by the deceased at the time of occurrence. PW5 provided his car to take the deceased to the hospital. PW6 is the wife of A1 and the daughter of the deceased. She stated that she had no direct knowledge about the occurrence. 8. On the request of PW21, PW7 had conducted postmortem examination on the body of the deceased and issued Ext. P3 postmortem report. As per Ext. P3 postmortem report, the following antemortem injuries are noted:- "1. Incised wound 2.5x0.5 cm obliquely placed over the right side and front of chest, upper inner blunt end 21 cm below the collar bone and 10 cm to right of midline. The wound was cleanly cutting the chest wall (1 cm thickness) and cutting the 9th rib producing an incised wound 2 cm and 0.1 cm width and ending inside the rib without penetrating into the chest cavity. Surround blood in filtration 5x3 cm noted around the injury. 2. Incised wound 2.5x0.2 cm obliquely placed over the left side of lower part of chest, its upper inner blunt end 13 cm outer to midline and 5 cm above the left costal margin. A portion of omentum 6 cm long was seen protruding out through the injury. The wound piercing the intercostal muscles of 7th intercostal space obliquely (2.5x0.2 cm), partly cutting the lower border of 7th rib, piercing the outer lower margin of lower lobe of left lung producing an incised wound 2x0.2 cm and passing through the left side of diaphragm 2.5x0.2 cm and cutting the left lobe of liver at the left lower border producing an incised wound 3x0.1 cm. the wound was seen piercing the mesentery of intestine and terminating over the body of pancrea producing an incised wound 2x0.1 cm with surrounding haematoma 14x8 cm. left chest cavity contained 2 litres of fluid blood. The left lung was partly collapsed. The wound tract was directed forward, right downwards and medially. the wound was seen piercing the mesentery of intestine and terminating over the body of pancrea producing an incised wound 2x0.1 cm with surrounding haematoma 14x8 cm. left chest cavity contained 2 litres of fluid blood. The left lung was partly collapsed. The wound tract was directed forward, right downwards and medially. The minimum depth of the wound was 8 cm from the skin of left chest wall. 3. Incised penetrating wound 6.5x0.3 cm vertically placed over the front and left side of abdomen, its upper end 1 cm below the left costal margin and 4 cm outer to midline. Portion of stomach and large intestine with mesentery seen protruding through the injury along with the omentum. The front aspect of the stomach showed an incised wound 3.5x0.3 cm entering into the stomach cavity near the lesser curvature. Blood infiltration was noted at the root of mesentery along the lesser curvature of stomach. On dissecting the intestines and mesentery seen smeared with blood. The peritoneal cavity contained 200 ml of fluid blood. 4. Incised wound 2x0.2 cm and 4 cm depth vertical over the left side and back of trunk, its upper blunt end 16 cm below the root of neck and 0.5 cm outer to midline. The wound was seen terminating in the muscles. 5. Incised wound 2x.2 cm and 4 cm depth vertical over the left side and back of trunk, its upper blunt end 16 cm below the root of neck and 0.5 cm outer to midline. The wound was seen terminating in the muscles. 6. Incised wound 2x0.2 cm and 1.5 cm depth vertically placed over the left side and back of trunk, its lower sharp end 10 cm above the small fossa of left side and 6 cm outer to midline. 7. Incised wound 5.5x0.3 cm muscle deep obliquely placed over the inner aspect and back of left forearm, its lower end 7 cm above the wrist." Ext. P3 postmortem report would show that the deceased died due to incised penetrating wounds (injury Nos. 2 and 3) sustained to the chest and the abdomen. Going by the evidence of PW7 and Ext. P3 postmortem report, it is clear that the death of the deceased was homicidal. The accused have no case that the death of the deceased was either accidental or suicidal. Thus, it can be safely concluded that the deceased suffered a homicidal death. Going by the evidence of PW7 and Ext. P3 postmortem report, it is clear that the death of the deceased was homicidal. The accused have no case that the death of the deceased was either accidental or suicidal. Thus, it can be safely concluded that the deceased suffered a homicidal death. 9. In Ext. P1 First Information Statement, PW1 would state that the deceased, immediately on seeing him, told him that A1 had stabbed him and A1 and A2 had hit him. Ext. P1 statement was recorded by the police on 08.11.2012 at 2 pm. According to PWs. 1, 2 and 4, they had seen the deceased immediately after the occurrence. It is their case that the deceased told them that A1 had stabbed him and A1 and A2 had hit him. The trial court is of the view that the spontaneous statement made by the deceased immediately after the occurrence is admissible under Sections 6 and 32(1) of the Evidence Act. 10. Section 6 of the Evidence Act is an exception to the general rule where under the hearsay evidence becomes admissible. The rule embodied in Section 6 is usually known as the rule of res gestae. It is settled law that a statement in order to be part of res gestae must have been made substantially, contemporaneously, with the fact in issue immediately after it and there is no proximity for reflection or fabrication. As far as evidence of PWs. 1 to 4 is concerned, the principle of res gestae appears to be not applicable. The statement, of course, must have been made contemporaneously with the acts which constitute the offence for at least immediately thereafter. In this case, the facts are different. Although PW1 witnessed the occurrence on 07.11.2012 at 8.30 pm., he lodged Ext. P1 FIS before police on 08.11.2012 at 2 pm. He had taken the injured to the hospital along with PWs. 2 and 4. They had interacted together. Thereafter, PW1 lodged Ext. P1 FIS before police. In view of the above circumstances, it is very difficult to hold that the alleged declaration was simultaneous with the incident or substantially contemporaneous either during or immediately before or after the occurrence. The investigating officer recorded the statement of PW2 on 10.11.2012 whereas the statement of PW3 was taken on 08.11.2012. Similarly, the statement of PW4 was taken on 14.11.2012. The investigating officer recorded the statement of PW2 on 10.11.2012 whereas the statement of PW3 was taken on 08.11.2012. Similarly, the statement of PW4 was taken on 14.11.2012. The statement of PW3 alone was taken immediately after Ext. P1 FIS and consequent to Ext. P13 FIR. The statement of PWs. 2 and 4 were recorded belatedly. In view of the above circumstances, it is not safe to act upon the alleged statement of the deceased as spoken by PWs. 1, 2 and 4. No oral evidence was adduced by PW3 in support of the alleged declaration made by the deceased immediately after the occurrence. 11. The trial court is of the view that the statement made by the deceased to PWs. 1, 2 and 4 before he was taken to the hospital is admissible under Section 32(1) of the Evidence Act. It is well settled law that court can act upon the dying declaration on the facts and circumstances of each and every case though there is neither a rule of law nor of prudence that dying declaration cannot be acted upon without corroboration but the court must be satisfied that the dying declaration is true and voluntary and in that event, there is no legal impediment in convicting the accused without corroboration. At the same time, where a dying declaration is suspicious, it should not be acted upon without corroborative evidence. In the case on hand, no evidence was adduced by the prosecution to prove that the deceased was conscious enough to make a declaration. There is also no evidence to show that the alleged statement of the deceased relates to the cause of his death. When the Doctor was examined before the trial court, it is not seen from the Doctor's evidence that before the alleged declaration was made to PWs. 1, 2 and 4, the deceased was conscious and in a position to give the declaration. In the present case, the evidence of PWs. 1, 2 and 4 clearly establishes that an oral declaration was made by the deceased. Before the said declaration can be acted upon, it is necessary on the prosecution to establish about the truthfulness of the same and that the said declaration was made by the deceased while he was in a fit condition to make the declaration. 1, 2 and 4 clearly establishes that an oral declaration was made by the deceased. Before the said declaration can be acted upon, it is necessary on the prosecution to establish about the truthfulness of the same and that the said declaration was made by the deceased while he was in a fit condition to make the declaration. The oral dying declaration is a weak kind of evidence, where the exact words uttered by the deceased are not available, particularly because of the failure of memory of the witnesses, who are said to have heard it. In the present case, the exact words are not available. They differ from witness to witness. We are of the view that the evidence brought on record would suggest that the alleged oral dying declaration does not inspire confidence on the court and it cannot be treated to be above board and free from all suspicion. 12. Ext. P6 sketch, Exts. P15, and P16 would show that the crime scene was within the compound where A1 and A2 were residing. During the examination before the court, PW6 stated that the deceased had gone to the residence of A1 to take back his grand children. PW12 the Scientific Assistant had collected blood stains and other materials from the compound of A1 and A2. These circumstances would show that the accused had inflicted a stab injury on the deceased within the premises of A1 and A2. Since the occurrence took place within the premises of A1 and A2, the burden is very heavy on the prosecution to prove the prosecution case. Res gestae evidence under Section 6 of the Evidence Act and oral dying declaration of the deceased as testified by PWs. 1, 2 and 4 are not sufficient to prove the prosecution case. 13. PW21 recovered MO1 knife and MO5 dress materials by preparing Ext. P11 mahazar. As per the confession statement of the accused, PW21 went along with A1 as led by the accused and recovered MO1 and MO5 placed on the sunshade of a building bearing door No. 10/144 of Edavilangu Panchayat behind an advertisement board. The material objects were sent for chemical analysis and on examination it was reported that MOs. 1 and 5 contained human blood. The trial court mainly relied on the res gestae evidence adduced by PWs. 1, 2 and 4, oral dying declaration of PWs. The material objects were sent for chemical analysis and on examination it was reported that MOs. 1 and 5 contained human blood. The trial court mainly relied on the res gestae evidence adduced by PWs. 1, 2 and 4, oral dying declaration of PWs. 1, 2 and 4 and recovery of MOs. 1 and 5 under Section 27 of the Evidence Act. 14. As indicated earlier, statements of PWs. 1, 2 and 4 witnessing the occurrence are relevant if they were made while the transaction was in progress or shortly before or after it has to form part of the same transaction. In this connection, witnesses means all persons who were present at the time of the incident and not persons who gathered at the place of incident after the event. In this case, PWs. 1, 2 and 4 went to the spot after hearing a hue and cry from the deceased and had occasion to see the deceased on the ground with injuries. Hence the statements of PWs. 1, 2 and 4 are not coming within the purview of Section 6 of the Evidence Act and are not admissible in this case. Similarly, the oral dying declaration is not proved in evidence before the trial court. Coming to the recovery effected under Section 27 of the Evidence Act, we are of the view that the process of recovery based upon the statement of the accused made to the investigating officer and consequent recovery alone is not sufficient to convict an accused for the offence punishable under Section 302 of the IPC. 15. After giving our anxious consideration to the entire facts and circumstances of the case and after a careful reappraisal of the oral and documentary evidence, we are not satisfied that the prosecution has succeeded in establishing that the appellants had any role in inflicting injuries on the deceased. The appellants are therefore certainly entitled to the benefit arising out of the aforementioned imperfections in the prosecution evidence. The 1st accused is accordingly found not guilty for the offences punishable under Sections 323 and 302 of IPC and the 2nd accused is found not guilty for the offence punishable under Section 323 of the IPC. They are acquitted for the said offences. In the result, the Criminal Appeal is allowed. The 1st accused is accordingly found not guilty for the offences punishable under Sections 323 and 302 of IPC and the 2nd accused is found not guilty for the offence punishable under Section 323 of the IPC. They are acquitted for the said offences. In the result, the Criminal Appeal is allowed. The conviction and sentence imposed by the Additional Sessions Court, Irinjalakuda in S.C. No. 967/2013 as against A1 and A2 stand set aside. A1 is found not guilty of the offences punishable under Sections 323 and 302 of the IPC and is acquitted thereunder. The 2nd accused is not guilty of the offence punishable under Section 323 of the IPC and he is also acquitted thereunder. The 1st accused shall be released from prison forthwith, if he is not wanted in connection with any other crime. The 2nd accused is on bail. Cancelling his bail bond, this Court directs that he be set at liberty.