Biju v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE A.HARIPRASAD TUESDAY, THE 25TH DAY OF MARCH 2014/4TH CHAITHRA, 1936 CRL.A.No. 496 of 2004 (B) -------------------------- SC 233/2001 of ADDITIONAL SESSIONS COURT (ADHOC-II), KOZHIKODE APPELLANT(S)/ACCUSED:: --------------------------------------- BIJU, S/O. PREMAN, AGED 28 YEARS, NEZHIKKAD, THARAPARAMBIL, MELADY AMSOM KANNAMKULAM DESOM, KOZHIKODE DIST. BY ADVS.SRI.P.S.SREEDHARAN PILLAI SRI.K.B.SAJEESH SRI.P.GOPINATH SRI.C.S.SUNIL SRI.P.R.SREEJITH RESPONDENT(S)/COMPLAINANT:: ------------------------------------------------------ STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SMT.V.H.JASMINE THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 25-03-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **A.HARIPRASAD, J. -------------------------------------Crl.Appeal No.496 of 2004 -------------------------------------Dated this the 25[th] day of March, 2014.** ## **JUDGMENT** Appeal filed under Section 374(2) of the Code of Criminal Procedure (for short, “Cr.P.C.”). 2. Learned Additional Sessions Judge (Adhoc-II), Kozhikode convicted the appellant under Section 324 of the Indian Penal Code (for short, “IPC”). He was originally charged with an offence under Section 307 IPC. Prosecution case, in nut shell, is that on 19.05.2000 at 6.45 p.m. the appellant stabbed PW1 with a knife (MOs 1 and 2) on the left side of his body with an intention to kill him. The incident took place by the side of a road margin at Melady near Koyilandy beach. Prosecution examined 12 witnesses and marked nine documents. MOs 1 and 2 are the material objects. Exts.D1 and D2 were also marked. 3. Heard the learned counsel for the appellant and the learned Public Prosecutor. 4. Learned counsel for the appellant submitted that conviction of the appellant under Section 324 IPC is legally unsustainable. According to him, learned Additional Sessions Judge did not consider the improbability in the prosecution case. Per contra, learned Public Prosecutor submitted 2 Crl.Appeal No.496/2004 that material witnesses examined on the side of the prosecution clearly established the incident of stabbing by the appellant on PW1. It will be apposite to go through the evidence first. PW1 is the injured. He deposed that the incident was on 19.05.2000 at about 6.45 p.m. PW1 along with PWs 5 and 10 and others were sitting by the side of a road. At that time, he found the appellant coming on foot. Prosecution has a case that the appellant and one Kanakarajan were on enmical terms. It is the case of the prosecution that the appellant wanted to marry a girl to whom Kanakarajan proposed himself. On account of this, there was a rift between the appellant and Kanakarajan. Said Kanakarajan is a relative of PW1. Prosecution would further contend that prior to the incident, there was a fight between the appellant and Kanakarajan on account of the aforementioned reason. PW1 intervened in the matter and pacified the combatants. At the time of occurrence, PW1 went near the appellant to enquire as to what was the issue between Kanakarajan and the appellant. Without any provocation, the appellant drew out a dagger and stabbed PW1 on left side of belly. Immediately PW1 was taken to hospital by PW5, PW10 and others. He was in the hospital for about nine days. Ext.P8 wound certificate is the document which came into existence first in point of time. It is issued from the Medical College Hospital, Kozhikode to which the appellant was removed after giving first aid in a local Government 3 Crl.Appeal No.496/2004 Hospital. Ext.P8 was prepared at 9.15 p.m.. In Ext.P8 it is mentioned that the injury was due to a stab inflicted at 6.45 p.m. by a person called Viju. The defence case is that the name of the accused is Biju. Ext.P8 shows the name as Viju. This discrepancy can be ignored because the name could have been written wrongly due to inadvertence. However, as per the testimony of PW9 Doctor the information contained in Ext.P8 regarding the occurrence was furnished by one Sathyanathan, who is the paternal uncle of the injured. It is pertinent to note that Sathyanathan was not examined in this case. 5. PW1 was cross-examined at length. PW1 stated that the previous incident between the appellant and Kanakarajan happened at 4.15 p.m. on the same day. Both the injured and the appellant are fishermen. PW1 stated that the appellant assaulted Kanakarajan, who is a relative of PW1 and he was sad about that incident. Prosecution case is that the accused (appellant) was proceeding to the house of one Lalu, who is described as 'khaganji'. The appellant was actually going to get his daily wages from Lalu. It appears from the trend of cross-examination that the defence case was that PW1 and his associates attacked the appellant while he was proceeding to get his wages and somebody in the group stabbed him. But it landed mistakenly on PW1 instead of the appellant. There is no direct evidence to establish this contention. Learned counsel 4 Crl.Appeal No.496/2004 for the appellant submitted that this case is discernible from the totality of the prosecution evidence. PW1 stated in cross-examination that the contents of Ext.P1 first information statement were narrated by his uncle Lakshmanan. He only signed on Ext.P1. It is his definite version in crossexamination that he was unaware of the contents of Ext.P1. Even though, PW1 deposed that he was questioned by the Police on a later occasion also, there is no evidence to show that he ever stated in tune with Ext.P1. No question was put to the Investigating Officer to show that PW1 was questioned after recording Ext.P1. 6. Another important witness on which the prosecution relied on is PW5. He was also present at the place of occurrence. According to his evidence, while PWs 1 and 5 and others were sitting by the side of the road, the appellant was seen coming through that road. PW1 approached him and they had a brief chat. Suddenly the appellant stabbed PW1. PW5 stated that he did not see the knife with which appellant stabbed PW1. Prosecution wanted this witness to depose in support of Ext.P5. Ext.P5 is the seizure mahazar prepared on 30.05.2000. As per the recitals in Ext.P5, MO1 knife was produced by PW5 in Police Station. PW5 completely deviated from this case of prosecution. It is also come out in evidence that after the incident, the knife split into two pieces. MO1 is the blade portion of the knife and MO2 is the handle. PW5 stated that he had never seen 5 Crl.Appeal No.496/2004 the knife. He expressed his disconnection with MOs 1 and 2. In spite of cross-examination, it could not be established by the prosecution that PW5 entrusted the knife to the Investigating Officer as spoken to by the Investigating Officer, as well as described in Ext.P5. 7. Another important witness is PW10. He was also present at the place of occurrence along with PWs 1 and 5. In the chief-examination, he deposed that the appellant without any provocation stabbed PW1. The injured was removed to a nearby Government Hospital and later, to the Medical College Hospital, Calicut. He identified MO1 knife. In chiefexamination, PW10 stated that when they saw the appellant approaching them, PW1 was of the view that the appellant should be questioned in connection with the issue between him and Kanakarajan. PW10 feigned ignorance as to the reason for the incident. Learned counsel for the appellant pointed out the incongruity in the evidence of PWs 1 and 10 to the effect that PW1 stated that on receiving the stab injury, PW1 started running, whereas PW10 would state that his friends supported him as he was about to fall down. 8. Another important debility in the prosecution case is that the blood stained clothes worn by PW1 were not recovered. Explanation given by the Investigating Officer is that by the time of investigation the clothes were washed. 6 Crl.Appeal No.496/2004 9. Learned counsel for the appellant contended that delay in registering the case and sending the first information report to court have not been properly explained. Admittedly, the incident was at about 6.45 p.m. on 19.05.2000. The first document in point of time, Ext.P8, came into existence at 9.15 p.m. on the date of occurrence. First information statement was recorded at 2 p.m. on 20.05.2000 only. First information report was registered at 8.15 p.m. on 20.05.2000. First information report reached the court concerned only on 22.05.2000. The case was initially registered under Section 324 IPC. Later a report was filed by the Investigating Officer and the charge was altered to one under Section 307 IPC. Learned counsel for the appellant relying on **Biju v. State of Kerala (2012 (4) KLT 382)** would contend that intervening holidays for the court cannot be projected as a ground for explaining away the delay in reaching the first information report before the Magistrate. The Division Bench of this Court in the above decision held that the first information report could have been produced before the Magistrate even on holidays. This decision is capable of being distinguished on facts. That was a case where the accused was tried for an offence under Section 302 IPC. Since the charge being grave, it is expected that the first information report should reach the court or the residence of the Magistrate with all promptitude. In this case, the initial charge was one under Section 324 IPC. Therefore, I do not find 7 Crl.Appeal No.496/2004 that the said decision can be straight away applied in this case. 10. Learned counsel for the appellant contended that delay in the registration of the case and sending the first information report caused prejudice to the appellant. Prosecution got sufficient time to develop and embellish their versions on account of the delay in starting the investigation. In fact, the prosecution has also suffered a set back on account of delay because the material evidence like blood stained clothes, sand smeared with blood, etc. could not be recovered. The delay in investigation proceedings is capable of casting doubt in the veracity of the prosecution case. 11. Learned counsel for the appellant further contended that the prosecution case is strange that in spite of happening the incident at 6.15 p.m. on 19.05.2000 and the incident took place at a thickly populated place, nobody had informed the local Police about the incident and no attempt was made to register the first information report for starting the investigation. According to the learned counsel for the appellant, this is because the incident had happened not as stated by the prosecution, but actually the appellant was the prey of aggression. However, he was able to escape unhurt and those who intended to cause injury to the appellant mistakenly caused injury on PW1. It is true that PW1 sustained injury with a sharp weapon. PWs1 and 10 identified MOs 1 and 2 as the knife, which 8 Crl.Appeal No.496/2004 caused the injury. The question here is as to who brought the weapon at the time of incident. Prosecution contended that it was held by the appellant and without any provocation, he stabbed PW1. Appellant suggested a case to the material prosecution witnesses that somebody in the group of the injured attacked the appellant and in that process PW1 sustained injuries. When the appellant was examined under Section 313 Cr.P.C., he stated this definite version. I am of the view that merely for the reason that PW1 sustained injury, it cannot be attributed to the appellant, especially in the light of the shaky evidence adduced by the prosecution in this case. The important infirmities in the prosecution case are that the testimony of PW1 is not fully in tune with the averments in Ext.P1 first information statement, that PW5 has shown a volte-face to the prosecution case and refused to support recovery of MOs 1 and 2 knife and that the reasons for non-examination of Kanakarajan and accused's uncle Sathyanathan have not been properly explained by the prosecution. Therefore, the reasons stated by the trial court for convicting the appellant are not acceptable because the broad probabilities of the case borne out from the evidence would indicate that the prosecution has not proved the case beyond reasonable doubt. Hence the appellant is entitled to get the benefit of doubt in this case. In the result, the appeal is allowed. Conviction of the appellant Crl.Appeal No.496/2004 9 under Section 324 IPC by the Additional Sessions Court (Adhoc-II), Kozhikode in S.C.No.233 of 2001 is hereby set aside. He shall be set free forthwith, if not wanted in any other case. His bail bond shall stand cancelled. All pending interlocutory applications will stand dismissed. ## **A. HARIPRASAD, JUDGE.** ## **cks**